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HOMELAND SECURITY AND RELATED LEGAL ISSUES

HOMELAND SECURITY AND RELATED LEGAL ISSUES. Roadmap. Al Qaida & Terrorism Homeland Security Reorganize for the Fight Interagency Cooperation DoD Mission Homeland Defense Support to Civil Authorities. Terrorism.

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HOMELAND SECURITY AND RELATED LEGAL ISSUES

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  1. HOMELAND SECURITY AND RELATED LEGAL ISSUES

  2. Roadmap • Al Qaida & Terrorism • Homeland Security • Reorganize for the Fight • Interagency Cooperation • DoD Mission • Homeland Defense • Support to Civil Authorities

  3. Terrorism • “The calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological.” (U.S. SROE) • Criminal in nature

  4. Players: Al Qaida & Friends • 1993 - Support of anti-US operations in Somalia • 1993 - Bombing of World Trade Center • 1994-95 - Failed plots to assassinate the Pope & Pres. Clinton and bomb US embassies and airlines • 1995 - Bombing of US compound in Riyadh • 1995 - Attempted assassination of Egyptian Pres. Mubarak

  5. Players: Al Qaida & Friends • 1998 - Bombings at US embassies in Kenya and Tanzania • 1999 - Failed New Year’s attacks in US & Jordan • 2000 - Bombing of USS Cole

  6. Players: Al Qaida & Friends 11 September 2001 • World Trade Centers • Pentagon • Shanksville, Pennsylvania • Bioterrorism?

  7. Post 11 September 2001 • French Oil Tanker • Attack on US Marines • Bombings

  8. Post 11 September 2001: The Attacks Continue • Hotel bombing in Kenya • SAM fired at civilian airliner • Assassinations • Bombings in Bali, Morocco and Saudi Arabia

  9. The Future???

  10. United States Response • Congressional: • Joint Resolution 23 (18 Sep 01) • USA Patriot Act • Presidential: • Declaration of National Emergency (14 Sep 01) • Report to Congress (24 Sep 01) • Executive Order 13223 (Mobilization) • Executive Order: Office of Homeland Security • Executive Order: President’s Homeland Security Council • Creation of the Homeland Security Agency

  11. Office of Homeland Security • Director - Tom Ridge • Mission: To develop and coordinate a comprehensive national plan to strengthen domestic protections against terrorism directed against the United States. • Established Homeland Security Council

  12. Homeland Security Council • Responsible for advising President on all aspects of homeland security • Members: • President and Vice President • Secretary of Homeland Security • Secretaries of Defense, Transportation, Treasury • Attorney General • Directors of FEMA, FBI, CIA

  13. Homeland Security: Interagency Cooperation “The national [homeland security] plan will include all levels of government and the private sector. The principal challenge of homeland security is to focus all the resources at our disposal - - to safeguard our country from those who try to do us harm.” Tom Ridge

  14. Major Areas of Homeland Security • Preparation • Prevention • Protection of infrastructure • Response and recovery • Incident Management • Continuity of Government • Public Affairs • Legislation • Budget

  15. Crisis Management - Law Enforcement Mission To identify, acquire, plan use of resources to anticipate, prevent or resolve threats or acts - primarily a federal responsibility Consequence Management - Emergency Management Mission To protect public, restore services, provide emergency relief - primarily state and local responsibility

  16. HLS: Reorganization • Established 25 Nov 02 • Merges 22 agencies into 1 - USCG, Border Patrol, Customs Service, INS, Secret Service, FEMA, Transportation Security Administration, etc… • Five Divisions: • Border & Transportation Security • Emergency Preparedness & Response • Science and Technology • Information Analysis & Infrastructure Protection • Management

  17. Homeland Security: Interagency Cooperation Department of Justice • Lead agency in responding to terrorism inside U.S. • Coordinates with Dep’t of Homeland Security • FBI • Lead agency within DoJ • Coordinates with state and local law enforcement

  18. Homeland Security: Interagency Cooperation • Lead agency for investigating terrorist activities that occur aboard civilian aircraft • Air Marshal Program – now part of Bureau of Immigration and Customs Enforcement (ICE)

  19. Homeland Security: Interagency Cooperation Department of Energy Nuclear and Radiological Scientific and Technical support: • diagnostic • radiological • material identification • hazards assessment • on-site management • clean-up

  20. Homeland Security: Interagency Cooperation Dep’t of Health & Human Services • Regulatory follow-up • Identification of agents, medical management • Immunization • Fatality management • Patient tracking, evacuation, and records

  21. Homeland Security: Interagency Cooperation Environmental Protection Agency • Chemical, Biological, and Radiological Scientific and Technical support: • agent identification • hazard detection • environmental monitoring • on-site safety • Works with HSA if navigable waters are involved

  22. Role of the DoD in Homeland Security

  23. Role of the DoD in Homeland Security I think as we look at the role that the Department of Defense plays in homeland security . . . the most obvious component of the DoD force structure to have a role with domestic security is the National Guard. We will have to work within DoD and with the governors to identify what that role would be. If it requires changing the configuration of some units or redeploying some of the assets in a different way, certainly that has got to be something we should consider - - and we will consider.” Secretary Tom Ridge

  24. Role of the DoD in Homeland Security Six DoD Homeland Security Missions • SecDef is member of Homeland Security Council • Protection of DoD personnel and facilities • Homeland Defense • Biological & Chemical Weapon Support • Assistance to civilian law enforcement • Assistance to other civilian authorities

  25. Homeland Defense “Homeland Defense Activity”: “An activity undertaken for the military protection of the territory or domestic population of the United States, or of infrastructure or other assets of the United States determined by the Secretary of Defense as being critical to national security, from a threat or aggression against the United States.” 32 U.S.C. §901

  26. HLS: Reorganization Unified Command Plan • UCP effective 1 Oct 02 • Created US Northern Command • Eliminated US Space Command • Shifted JFCOM’s geographic AOR to NORTHCOM and EUCOM • Assigned most of Russia to EUCOM

  27. US Northern Command • Established 1 Oct 2002 • Admiral Timothy Keating - Commander • Mission: Homeland Defense and Civil Support • To deter, prevent, and defeat threats and aggression aimed at the United States, its territories and interests within the AOR, and • As directed by Pres or SecDef, to provide military assistance to civil authorities including consequence management operations

  28. Civil Support Operations • Disaster Assistance • Immediate Response • Consequence Management • Special Events • Counternarcotics/counterterrorism • Civil Law Enforcement

  29. Support to Civilian Law Enforcement Agencies • Posse Comitatus Act is still in effect. "Whoever, except in cases & under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part (person) of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined or imprisoned for not more than 2 years, or both.” (18 USC § 1385)

  30. Support to Civilian Law Enforcement Agencies The Who: • Active duty Army and Air Force • Navy & Marines per DoDD 5525.5 (B)(1) • Civilians under command of military • Reserves • Guard in Title 10 • NOT Title 32 status

  31. Support to Civilian Law Enforcement Agencies The What: DoDD 5525.5 defines “posse comitatus” as involving: interdiction of a vehicle, vessel, aircraft, or similar activity; search or seizure; arrest, apprehension, stop and frisk or similar activity; or the use of military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators.”

  32. Support to Civilian Law Enforcement Agencies The Where: • Applies in United States • Extraterritoriality: • DoJ Position - not applicable • DoD Position - applies per DoDD 5525.5 • Judicial Position - 9th Circuit says applicable

  33. Support to Civilian Law Enforcement Agencies Exceptions to Posse Comitatus: Military Purpose Doctrine • “furthering military function” Civil Disturbances • “extraordinary circumstance” • ROE: GARDEN PLOT Passive Support • Loaning equipment and facilities • Expert training • Information sharing Drug & Immigration Enforcement – by statute

  34. The Future of Posse Comitatus • Sen Joseph Biden, Chairman, Senate Foreign Relations Committee – “the law has to be amended, but we are not talking about general police power.” (21 July 2002) • Gen Eberhart – favored changing law to grant “greater domestic powers to the military”

  35. Debate Resolved? Reaffirmed in Homeland Security Act of 2002 “The PCA is “not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.” Section 886, HSA of 2002

  36. Support to Non-Law Enforcement Agencies • Stafford Act (42 USC § 5121) • Immediate Response Authority (10 days) • Pres Declaration of National Emergency • Oklahoma City & 11 Sep 01 • Pres Declaration of Emergency • Governor’s request required • Pres Declaration of Major Disaster • Governor’s request required

  37. Legal Issues since 9/11 • Self-Defense • Character of Operations • Status of Personnel • Employment of Force Issues • Targeting, Civil Aircraft, Entry in Sovereign Airspace, Assassination, Use of Force to Counter CONUS Terrorist Incident, Force Protection • Military Support to Civilian Authorities • Status of Forces Issues • Coalition Issues • Mobilization Issues

  38. QUESTIONS?

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