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Newsletter 10-52
July 2010

Section 1: Background

Securing America from Attack: The Defense Department’s

Evolving Role after 9/11

Frank L. Jones

Reprinted with permission from U.S. Army War College Guide to National Security Issues.

At 8:46 a.m. on September 11, 2001, a clear, sunny day on the East Coast, an American Airlines plane loaded with passengers, crew and thousands of gallons of fuel slammed into the 110-story north tower of World Trade Center in downtown Manhattan, exploding in a massive inferno. Seventeen minutes later, a second airplane, this time a United Airlines flight, crashed into the Center's twin south tower, igniting another firestorm. President George W. Bush, traveling in Florida, was informed of the incidents and immediately departed for the capital. Before leaving, he made a brief statement at 9:30 a.m. confirming that the planes were part of "an apparent terrorist attack" on the United States (U.S.). Less than 10 minutes after he spoke, a third airliner crashed into the U.S. Department of Defense (DoD) headquarters, more commonly known as the Pentagon, setting off an enormous fire causing hundreds of casualties; jet fuel literally ran down the corridors. The events did not end there. Shortly after 10:00 a.m., a fourth airliner plummeted to earth in a field just outside rural Shanksville, Pennsylvania, before it could reach its intended target, the result of a heroic effort by the passengers to prevent another horrific act from occurring.1

In a matter of less than 2 hours, both the World Trade Center's towers had collapsed, an unimaginable event, and nearly 3,000 people were killed. Manhattan was a storm of dust, ash, and debris. After the Pentagon attack, the Federal Aviation Administration, for the first time in U.S. history, shut down the nation's airspace, ordering all airborne planes to land immediately at the nearest airport. In their place, U.S. fighter jets streaked into the sky above the nation, their pilots ordered to shoot down any aircraft that did not comply. The horrific events of the morning now surpassed the nation's most famous day of infamy: the Japanese attack on Pearl Harbor 60 years earlier.2

The terrorist attacks were stunning not only in the tragedy they produced, but also as demonstrations of the creative lengths to which enemies of the United States could go to use everyday technology as weapons of mass destruction (WMD) against us. The capacity to wreck havoc of this magnitude was not unexpected for the signs of such an attempt had been foretold through a series of earlier events, both at home and overseas, including the 1993 World Trade Center bombing and an attack on the U.S. Navy destroyer Cole in Yemen in which dozens of crew members were killed or injured. What was startling to many Americans was the inability of the U.S. Government agencies to discern and prevent such a clever use of civilian aircraft. It was, as one of the commissions established to investigate the incident ominously warned, "a failure of imagination" on the part of the government.3 These words also signaled that protecting the United States from further attack would be neither simple nor immediate despite the best intentions of U.S. Government leaders.

Years before the catastrophic events of September 11, 2001, various commissions established by the U.S. Congress urged the President and other officials to place substantial emphasis on improving the security of the U.S. against terrorist attack through increased resources, organizational redesign, and enhanced coordination among federal, state, and local governments.4 Unfortunately, September 11, 2001 would not only represent a distressing event in American history, it would take this tragedy to catalyze the governments and the private sector in the U.S. to undertake such a massive concerted effort to prevent such an attack from recurring. However, there was always the nagging realization that such an event could happen again, and if so, then the public and private sector needed to be prepared to respond to the consequences. Such an expectation had been noted decades before when President Calvin Coolidge gave voice to those fears in an address delivered before the American Legion convention in Omaha, Nebraska, on October 6, 1925. "In spite of all the arguments in favor of great military forces, no nation ever had an army large enough to guarantee it against attack in time of peace or to ensure victory in time of war."5 Nonetheless, as the preamble to the U.S. Constitution underscores, it is the duty of the U.S. Government to "insure the domestic tranquility" and "provide for the common defense." Mindful of this obligation, U.S. Government leaders initiated a number of actions to respond to this exceedingly complex mission.

The attacks on the U.S. forced President George W. Bush and other administration officials to concentrate intently on the possibility of threats to the U.S. homeland. For DoD officials, there was recognition that the country had become, to use military parlance, a "battle space." There was an immediate refocusing from programs spending millions of dollars to develop a high-tech missile shield to prevent a ballistic missile attack by another state to fundamental concerns about a growing non-state threat. Thus, DoD would be given domestic duties to fight terrorism at home because as then Deputy Secretary of Defense Paul Wolfowitz explained, "The government is just not organized to deal with catastrophes on that scale, and when we do have catastrophes on that scale we inevitably end up turning to the military." There were skeptics nonetheless who contended that the military would embrace this mission as it would justify force structure and increase the defense budget, while Republican politicians would view it as an ironclad rationale for promoting national missile defense as a component of overall homeland defense.6 More reflective thinkers recognized that defending the U.S. homeland against terrorism required a new paradigm-a new structure for meeting a more ambiguous challenge. The Pentagon no longer had to sell the idea of homeland defense politically. The issue now was how to make it work."7

The first response to this challenge was conventional with the president ordering a retaliatory strike on Afghanistan, which was harboring the Al-Qaeda terrorist leaders who had planned the suicide attack on Manhattan and Washington, and where this terrorist group had training camps. Nonetheless, there was no major overhaul of U.S. military forces nor was there a significant reallocation of funds to homeland defense missions, which had not even been defined. The 2001 Quadrennial Defense Review (QDR), presented to Congress in early October, largely upheld traditional thinking although it claimed that homeland defense was the Pentagon's highest priority. This document continued to stress U.S. advantages in space, information and power projection as well as the future of its nuclear arsenal. The underlying warfighting concept remained focused on combat with nation-states, emphasizing regime change in one war and repelling an aggressor in another.8 One critic said the thinking remains "full speed ahead with the status quo," while Andrew Krepinevich, the executive director of the Center of Strategic and Budgetary Assessments, a Washington, DC think tank, complained that the QDR was a "thematic" document that called for transformation but provided no specifics on how this is to be accomplished. He was perplexed as to the Secretary of Defense's public statements that while the priority is on homeland defense, intelligence and other features for the changed strategic environment, new fighter jet programs remained the major acquisition programs.9 Krepinevich's observation was astute. Although Rumsfeld heralded an ambitious program for transforming the military, the changes were marginal. The department had already begun to deflect any serious responsibility for this new mission by declaring in the QDR that the September 11 attacks made clear that "the Department of Defense does not and cannot have the sole responsibility for homeland security." The only concession mentioned expressly was to consider establishing a new combatant commander for homeland defense.10 In the White House, other actions were occurring at a more rapid pace. The President signed Executive Order 13228 on October 8, 2001, that established the post of Assistant to the President for Homeland Security in the Executive Office of the President as well as a Homeland Security Council, modeled on the National Security Council, which had existed since 1947.

The creation of this post and the council required Secretary of Defense Rumsfeld to name Secretary of the Army, Thomas E. White as DoD's first homeland security coordinator with responsibility for representing the department in council deliberations as well as interacting with the new homeland security advisor, a former Pennsylvania governor and member of the U.S. House of Representatives, Thomas J. Ridge. Pundits suggested that by naming White to the coordinator mission, the army would have a pivotal role in whatever responsibility is given to the military for homeland defense. White added to that perception by stating: "Since the early days of our nation, the army, both active and reserve, has engaged in homeland security. The army brings enormous experience, talent and capabilities to this effort."11 The rhetoric was comforting to a nation still reeling from the attacks, but the exact role that White would have remained unclear. Nonetheless, Rumsfeld soon delivered on his promise to examine whether a separate combatant command should be established for the purpose of securing the U.S. homeland.

By mid-October 2001, a review of the Unified Command Plan was in progress. Rumsfeld was convinced that the current manner in which the armed forces were organized along regional lines was inappropriate to execute a global campaign against terrorism. There was considerable concern that transnational threats such as weapons proliferation and terrorism had not received sufficient attention from senior commanders and that the capability to coordinate with law enforcement concerning these threats from region to region was nonexistent. To fasten the military's attention on homeland defense there was also extensive discussion about the creation of an American command that would be responsible for the Western Hemisphere. In addition to this effort, the Pentagon leadership released the defense planning guidance for the war on terrorism that consisted of three goals: assail state support for terrorism, weaken its non-state support, and defend the U.S. homeland from additional terrorist attacks. Pentagon officials recognized that the current Unified Command Plan addressed the first two aims but not the third.12

By the end of 2001, Ridge and his staff were largely in place, but there were continued concerns by lawmakers and anti-terrorism experts that Congress needed to create a permanent homeland security post with a large staff and consolidate government agencies as part of it. The White House disagreed, arguing that Ridge could accomplish more as an adviser with the president's mandate and a staff detailed from other U.S. agencies than as head of a separate bureaucracy. DoD cautiously adopted its new homeland defense mission. By late January 2002, Defense officials sought to pull National Guard troops from security duties at the nation's airports, turning that responsibility over to the new Transportation Security Administration, which Congress established by law a month earlier. Approximately 6,000 troops were on duty at 400 airports across the U.S. to deter terrorists and reassure the public about the safety of air travel. The disengagement of the National Guard as a security force bespoke DoD's view that other federal agencies as well as state and local governments should handle the majority of the nation's homeland security duties. Ridge shared this view and declared that federal funding would be made available for this purpose. Secretary White endorsed Ridge's priorities, stating publicly that the military should have a limited role in guarding the borders and policing airports and other potential terrorist targets in the U.S. Instead, it should concentrate on Afghanistan and other areas of the world. Additionally, National Guard troops assisting in border security in some states should be relieved of this duty also. Meanwhile, the DoD was considering scaling back the air patrols the Air Force had been conducting over major U.S. cities and critical infrastructure locations since September 11.13

White's remarks and the slow pace at which bureaucratic reorganization was occurring suggested to one observer, former U.S. ambassador and retired U.S. Army lieutenant general Edward Rowny, that there was a lack of urgency on the part of the Bush White House. Rumsfeld, however, in early February announced a proposal to establish a new regional command, Northern Command, to deal with the military component of homeland security. Rowny applauded Rumsfeld's initiative but contended that more needed to be done. He recommended that the Bush administration push for a similar consolidation and reorganization of the intelligence, border security, and emergency response agencies of the federal government. He also criticized Ridge's organization as ineffective because it lacked the needed tools and resources to handle a large-scale terrorist attack. Ridge, in Rowny's opinion, also had insufficient authority: he could not order federal agencies to act. Rowny's viewpoint was not a solitary one. Even the Bush administration recognized this deficiency, and in a speech at the National Press Club in Washington, DC, Ridge remarked that the President was considering reorganizing some federal departments and agencies, which would require congressional authorization.14

Meanwhile, Rumsfeld, sensing the mood of the country and particularly Congress, announced in April 2002, a military reorganization designed to give higher priority to homeland defense against terrorist attacks by the establishment of Northern Command. The new command, with headquarters in Colorado Springs, Colorado, and commanded by an Air Force general, was tasked to oversee the defense of U.S. territory, except for Hawaii and the U.S. possessions in the Pacific Ocean. Responsibility for these areas would belong to the existing U.S. Pacific Command. Northern Command would not only be responsible for the homeland defense mission, but would also coordinate with other federal agencies in preparing and responding to the consequences of a terrorist attack as well as natural and manmade disasters. Canada and Mexico would be included as part of the command's regional responsibilities.

Rumsfeld's decision was criticized, particularly by civil libertarians who were concerned about the use of the U.S. military for domestic security, particularly the erosion of constraints placed on the military by the Posse Comitatus Act. This federal law, enacted after the Reconstruction in 1878, prohibits the regular military from performing domestic law enforcement functions. Other critics expressed concern that the use of the military for domestic security and response diverted limited resources and weakened the military's effectiveness to fight wars overseas.15 Almost simultaneously with the creation of the command, the Bush administration proposed the creation of a new executive branch department, the Department of Homeland Security (DHS).

Rumsfeld remained determined, however, to limit the scope of DoD's homeland defense mission. On May 7, 2002, testifying before the Senate Appropriations Committee, he continued to stress the importance of forward deterrence, that is, the prosecution of the war on terrorism abroad. Eventually, he turned to the subject of homeland defense and in doing so, articulated clearly and for the first time, the circumstances under which DoD would be involved in operations in the U.S. First, there were extraordinary circumstances that required DoD to execute its traditional military missions and therefore, DoD would take the lead with support from other federal agencies. Examples of these missions were combat air patrols and maritime defense operations. Also included in this category were cases in which the president, exercising his constitutional authority as commander-in-chief and chief executive, authorizes military action. This inherent authority, Rumsfeld pointed out, may only be used in instances such as terrorist attacks, where normal measures were insufficient to execute federal functions. The second category was more traditional: in emergency circumstances of a catastrophic nature. Rumsfeld offered the example of responding to an attack or assisting other federal agencies with natural disasters. In these cases, the department would be providing capabilities that other agencies did not possess. The third category he described as missions limited in scope, where other agencies have the lead from the outset, giving the example of security at a special event such as the Olympics.16

Rumsfeld stressed that of the three categories, the first one was homeland defense since the department was carrying out its primary mission of defending the people and territory of the U.S. The other two categories were homeland security, whereby other federal agencies have the lead and DoD lends support. He continued by justifying the need for a $14 billion supplemental funding request for fiscal year 2002, and an increase in fiscal year 2003 funding of $48 billion. He added that both were essential for the war on terrorism but made no claim that any of the funding would be used for homeland defense. This was understandable given his limited definition of the department's role.17

He also announced that the president had approved a major revision of the Unified Command Plan and that one feature was the establishment of a combatant command for homeland defense, U.S. Northern Command at Peterson Air Force Base, Colorado. The primary missions of the new command were defending the United States against external threats, coordinating military support to civil authorities, as well as responsibility for security cooperation with Canada and Mexico.18

He followed this announcement with another, stating that he had established his own interim Office of Homeland Defense, and his intention to establish, by summer, a permanent office in the Office of the Secretary of Defense. The office would ensure internal coordination of DoD policy, provide guidance to Northern Command regarding homeland defense and support of civil authorities, and coordinate with the White House's Office of Homeland Security and other government agencies.19

Lastly, he assured the committee members that the department was conducting the study on the DoD role in homeland defense directed by the 2002 National Defense Authorization Act. Specifically, the comprehensive plan on how best to structure the Office of the Secretary of Defense to combat terrorism, defend the homeland, and enhance intelligence capabilities was expected to be completed during the summer.20 The plan was completed as promised.

Acting on the recommendations in that plan, in July 2002, Rumsfeld decided to reorganize the Office of the Secretary of Defense by adding the position of Assistant Secretary of Defense for Homeland Defense based on the plan required by Congress. He selected Paul McHale, a former Democratic member of Congress from Pennsylvania, as the first to hold this position, pending Senate confirmation. One of the new assistant secretary's responsibilities would be to serve as a liaison between the Department of Defense and the proposed new homeland security department.21

Weeks later, Rumsfeld found himself, along with the Secretaries of State and Treasury, and the Attorney General, in the midst of the Bush Administration's controversial plan to establish a new homeland security department using all or parts of twenty-two existing agencies, a proposal that the President laid out in June. Rumsfeld and the other cabinet officials testified in support of the President's plan before the House Select Committee on Homeland Security. The plan faced substantial opposition because the 12 committees in the House of Representatives that oversaw these agencies wanted to preserve their oversight responsibilities. Some standing committees of the House had already voted against provisions of the proposed legislation to create the department. The presence of the four cabinet heads before the select committee underscored not only the seriousness of the issue, but also the interdepartmental nature of the homeland security function and the domestic and international dimensions of the mission, ranging from border patrol and law enforcement to immigration and the issuance of visas.22 As Attorney General John Ashcroft noted, "America's security requires a new approach, one nurtured by cooperation, collaboration, and coordination, not compartmentalization, one focused on a single, overarching goal-the prevention of terrorist attacks."23 The emphasis on homeland defense remained more rhetoric than reality in DoD at least in terms of funds, procurement programs, and force structure changes. The Defense Planning Guidance, a document providing budgeting and planning guidance to DoD components, that Secretary Rumsfeld issued in May 2002, placed greater emphasis on the new strategic concept, "forward deterrence," that is, a commitment to attacking potential threats overseas. While the projection of U.S. forces over long distances to fight new adversaries made sense, the Defense Planning Guidance paid no attention to the support missions that the Department of Defense might have to provide federal, state, and local responders should a WMD, such as a nuclear, chemical, radiological, or biological device, be detonated in the United States. Instead, the emphasis was primarily on a global strike capability with added emphasis on overseas intelligence collection, covert special operations, unmanned air vehicles, cyber-warfare, hypersonic missiles, and the capacity to prevent an adversary from disrupting U.S. communications and intelligence assets in space and to strike underground targets.24 This was a position Rumsfeld articulated publicly in a Foreign Affairs article that appeared that spring.25

This narrow perspective was expected to change because of two events. The first was that Northern Command became initially operational as an organization on October 1, 2002. The second event promised equally dramatic change, based on a provision in the 2003 Defense Authorization Act, which Congress passed in October 2002. The act authorized the establishment of the position of the Assistant Secretary of Defense for Homeland Defense. Four months later, in February 2003, Paul McHale was confirmed as the first person to hold this position. Additionally, Congress established the new Department of Homeland Security by the Homeland Security Act of 2002, enacted in November. Its first secretary would be Tom Ridge. The only major provision of the law that affected DoD was that the Homeland Security Council was established statutorily, consisting of the President, Vice President, Attorney General, the Secretary of Defense and the newly created Secretary of Homeland Security.

In February 2003, the new department and the two new DoD organizations would faced the first test of their abilities to respond to a domestic event and coordinate with other U.S. Government organizations when the space shuttle Columbia broke up over Texas during reentry to earth. Within an hour after the disaster, Ridge conferred with intelligence and White House officials as well as Northern Command, and determined that the incident had not resulted from terrorism. Ridge put the Federal Emergency Management Agency (FEMA), now part of DHS, in charge of recovering debris from the shuttle, while Secretary Rumsfeld assigned Northern Command to assist with this effort; a variety of aircraft and ships responded.26

This experience also helped prompt a new presidential directive, Homeland Security Presidential Directive-5, Management of Domestic Incidents, in which DoD would ultimately have a substantial role in implementation. In this document, the President designated the Secretary of Homeland Security as the principal federal officer for domestic incident management. The Secretary of Defense was tasked to provide military support to civil authorities for domestic incidents under the president's direction or when consistent with military readiness, the appropriate circumstances, and law. The directive indicated that even during these events, military forces would remain under the command and control of the Secretary of Defense. The Secretary of Defense and the Secretary of Homeland Security were to develop mechanisms to promote cooperation and coordination between the two departments. Lastly, the directive called for the formulation of a National Response Plan (NRP) that would integrate the federal government's domestic prevention, preparedness, response, and recovery plans into a single all-hazards plan. An initial version of the NRP was due to the Assistant to the President for Homeland Security by April 1, 2003, along with a recommendation for the time needed to develop and implement a final version of this plan.27

By the beginning of April 2003, with U.S. military forces having invaded Iraq a month earlier, and now within 50 miles of Baghdad, Rumsfeld's view about homeland defense was apparent: the best way to secure the United States was to pursue terrorists in their havens.28 Meanwhile, Paul McHale was busily putting his office in place with all the attendant bureaucratic headaches associated with such a venture. He also had his first appearance before Congress in April, when he testified before the Senate Armed Services Committee regarding defense of the U.S. homeland. McHale reiterated Rumsfeld's three conditions under which the Department of Defense would be involved in activities within the United States. However, these conditions were already being eroded. As McHale indicated, since September 11, 2001, DoD had flown more than 28,000 sorties over U.S. cities and responded to more than 1,000 requests from the Federal Aviation Administration to intercept potential air threats. Air patrols over the U.S. domestic airspace were no longer extraordinary but routine.29

During the summer of 2003, McHale's office would devote substantial time to a major department-wide, Secretary of Defense-directed classified study of the homeland defense mission and the force structure required to execute that mission. Later that year, the office would shape the next Strategic Planning Guidance, which required his office to formulate with assistance from other DoD components a homeland defense strategy within a year.

On December 17, 2003, President Bush approved two new homeland security directives that affected DoD. The first document, Homeland Security Presidential Directive-7, Critical Infrastructure Identification, Prioritization and Protection, established national policy for federal departments and agencies to identify and prioritize U.S. critical infrastructure and key resources and to protect them from attack. The directive recognized that there were several critical infrastructure sectors, each with its own characteristics and operating processes. Although the DHS would have principal responsibility for implementing this directive, specific departments were designated responsible for collaborating with business and industry, conducting or facilitating vulnerability assessments, and encouraging risk management activities to protect against terrorist attacks or mitigate their effects. The Department of Defense assumed responsibility for the defense industrial base, thereby gaining another homeland security mission.30

The President also issued Homeland Security Presidential Directive-8, National Preparedness, that established policies to bolster the preparedness of the United States to prevent or respond to threatened or actual terrorist attacks, major disasters, and other emergencies. This measure called for the establishment of a national all-hazards preparedness goal, mechanisms for improving the delivery of federal preparedness assistance to state and local governments, and defining actions to improve preparedness at all levels of government. The Department of Defense's role, though not as major as other federal departments and agencies, was to provide the DHS with information concerning organizations and functions that could be utilized to support civil authorities during a domestic crisis.31

Despite the attention to these strategic issues, the tyranny of daily operational demands was also present. During the Christmas holiday season, intelligence indicators stressed that al Qaeda's intent to carry out multiple catastrophic attacks in the United States was greater than at any point since September 11. The indicators suggested that the terrorist group was testing the vulnerabilities of the air transportation system, both passenger and cargo. In response, Secretary Ridge announced an upgrade in the threat level from elevated risk to high risk or orange alert, the second highest level in the color-coded system, after President Bush approved the recommendation by Ridge along with senior officials of the Federal Bureau of Investigation, the Central Intelligence Agency, DoD, the Justice Department, and White House staff. Raising the threat level increased security measures across the country to protect government buildings, critical infrastructure, shopping malls and other places where large numbers of people congregate. This decision was not made lightly. A few months earlier, in response to al Qaeda suicide bombings in Saudi Arabia and Morocco, and after several orange alerts within a few months, Ridge and Rumsfeld opposed raising alert levels. Ridge argued that frequent changes only caused considerable psychological unease in Americans as well as making the public cynical. Rumsfeld stated that raising the alert diverted military resources from Iraq and Afghanistan.32 The holiday season ended uneventfully, but operational concerns continued to intrude because of the need to refine security procedures.

Slowly and subtly, the three conditions for DoD involved in domestic activities that Rumsfeld articulated 2 years earlier were jettisoned. In March 2004, McHale appeared before the Senate Armed Services Committee to update the members on DoD's ongoing homeland defense initiatives. At that time he did not mention the three conditions. Instead, McHale laid out a concept of layered defense, which he called the lines of defense. The first line of defense was combating terrorism far from U.S. territory. The second line of defense was the air and maritime approaches to the United States and interdicting terrorists before they reached U.S. borders, which was largely the responsibility of two combatant commands-Northern Command and Pacific Command. Within the United States, the domestic law enforcement community was responsible for countering terrorist attacks, in a sense a third line of defense, with DoD ready to provide its capabilities to civil authorities, consistent with U.S. law. However, McHale also stated that DoD had established and maintained a small number of reaction forces in the United States. These forces consisted of U.S. Army and Marine Corps personnel who were postured to respond to a full range of threats if ordered by the president, and when deployed, under NORTHCOM's command and control.33

Additionally, throughout 2004, as had been the case in 2003, DoD actively continued to enhance its homeland defense and civil support missions. It maintained the readiness of its own forces by hosting exercises and participating in those sponsored by other government entities. Further, it was implementing its responsibilities under HSPD-7 regarding critical infrastructure by consolidating funding for this effort under a single program and managing it by a program office. It also undertook a number of supporting missions including establishing a DoD presence in the DHS's Operations Center, detailing personnel to DHS to fill critical specialties primarily in intelligence analysis and communication, creating various liaison mechanisms, and identifying and transferring technology items and equipment that DoD had or was developing that might be of assistance to federal, state and local governments in their homeland security roles. Simultaneously, the department was responding to requests for assistance from several civilian agencies-for example, providing emergency support in natural disasters such as Hurricane Isabel and California wildfires. It also responded to the ricin incident on Capitol Hill in January 2005. That incident saw the first operational use of NORTHCOM's Joint Force Headquarters-National Capital Region, which provided the command and control of the U.S. Marine Corps Chemical-Biological Response Force's assistance to the U.S. Capitol Police. 34

DoD support to the interagency was broadened in August 2004, when President Bush established by executive order, the National Counterterrorism Center under the direction and control of the Director of Central Intelligence. The primary function of the center was to serve as the hub for analyzing and integrating all intelligence pertaining to terrorism, except purely domestic intelligence information. Additionally, it was to conduct strategic operational planning for counterterrorism activities by integrating all the national instruments of power.35 To that end, DoD, as well as other partner organizations, provided personnel to assist the center with its mission.

DoD also assumed a major role in the development of the National Response Plan (NRP) required by HSPD-5. The development of the initial NRP met with resistance from state, local and tribal governments as well as non-governmental organizations, since they were not consulted by DHS during its formulation. Consequently, DHS and a small group of its federal partners, including DoD personnel, began anew-mindful of outreach to other stakeholders-in an intense writing process of monumental proportions that addressed planning assumptions and considerations, roles and responsibilities of the variety of organizations involved in responding to an emergency, and a concept of operations. The NRP identified fourteen emergency support functions, of which DoD (U.S. Army Corps of Engineers) would have the lead for public works and engineering, but would be a supporting agency in the remaining 13. The document also included special support annexes dealing with myriad topics such as tribal relations and private sector coordination and incident annexes for specifically troublesome situations such as a terrorism event involving a biological agent or hazardous materials pollution.36

The document, consisting of more than 300 pages, was approved in December 2004 by Secretary Ridge along with 27 federal departments and agencies, the U.S. Postal Service, the American Red Cross, the Corporation for National and Community Service, and the National Voluntary Organizations Active in Disaster.

Within days of the NRP's approval, President Bush issued a combined National and Homeland security directive on maritime security, an initiative of his new homeland security adviser, Frances Fragos Townsend. This directive not only established U.S. policy regarding protection of the nation's maritime interests, but directed the development of a national strategy for maritime security and eight national plans addressing such critical subjects as the U.S. Government's capability to respond to a maritime threat, the nation's capacity to recover from an attack or disaster affecting the maritime infrastructure, and security of both the maritime transportation system and the related supply chain. The President tasked DoD and DHS to lead an interagency task force to formulate the national strategy for maritime security for his approval within six months. The eight plans were to be delivered nearly simultaneously.37 This approach was fraught with problems since the plans relied on the guidance framed in the strategy as well as coordination with various state and local governments, transportation and port authorities, and maritime industry trade associations.

It turned out that maritime security was not the only domain that required additional attention. In May 2005, a privately owned Cessna 150 airplane inadvertently penetrated the 16-mile-radius no fly zone around Washington, DC, established after the events of September 11, and designed to prevent air attacks on the White House and the Capitol. Federal Aviation Administration and DHS officials could not communicate with the pilot, so Secretary Rumsfeld gave military officials the authority to shoot the plane down, if necessary. Aircraft from DHS Customs and Border Protection and military fighters moved to intercept the plane, and after eleven tense minutes, the pilot heeded instructions to turn away from the city. The incident required Defense Department and civilian officials to review the effectiveness of the air defense system for the nation's capital. Once again, DoD and its civilian counterparts were confronting sensitive issues involving internal governmental decision-making, communications, and federal interagency relations as well as authorities.38 With respect to the latter, the DHS, under the new leadership of Secretary Michael Chertoff, a former federal judge, argued that his agency should have the shoot down authority. President Bush rejected this request. Nonetheless, the incident led to increased congressional scrutiny of the procedures and agency responsiveness. The event was also a warning signal that although air transportation security had been upgraded, the focus had been limited to scrutiny of passengers and cargo security. However, the Homeland Security Council staff contended that this issue would have to be deferred since other areas such as domestic nuclear attention had priority.

A month earlier, President Bush issued another combined NSPD/HSPD, designed to enhance protection against an attack in the United States using a nuclear or radiological device, and to advance the technology and integration of detection capabilities among across federal, state, local and tribal governments. To achieve these policy goals, the chief executive directed the Secretary of Homeland Security to create a national level Domestic Nuclear Detection Office within DHS. The Secretaries of State, Defense, and Energy as well as the Attorney General were ordered to assign personnel to staff this new organization and to lend expertise to strengthen the development and deployment of a detection system, coordinate the detection effort with the other government entities in the United States, and develop a global nuclear detection architecture consisting of domestic and international portions. The Departments of Defense, State, and Energy would design and implement the international segment.39

June 2005 marked a critical milestone in reshaping DoD's approach to its homeland defense and support to civil authorities' missions through the development and approval of DoD's Strategy for Homeland Defense and Civil Support. Although Secretary Rumsfeld directed the formulation of the strategy in the Strategic Planning Guidance of March 2004, internal delays and bureaucratic resistance associated with organizational change hampered progress. Nonetheless, these impediments were ultimately overcome, and the strategy represented the Department's vision for transforming homeland defense and civil support capabilities.

The strategy specifically concentrated on DoD's paramount goal: securing the United States from direct attack. Recognizing the sensitivity associated with the role of the military in domestic affairs, the strategy made clear that it was rooted in a respect for America's constitutional principles. The strategy also sought to capitalize on Secretary Rumsfeld's commitment to transformation of U.S. military capabilities. Thus, it examined a ten-year period and gave equal recognition of terrorist and state-based threats to the United States.40

The strategy's foundation was the concept of an active, layered defense outlined in the National Defense Strategy. Specifically, this active, layered defense is understood to be global, seamlessly integrating U.S. capabilities in the foreign regions of the world, the global commons of space and cyberspace, in the geographic approaches to U.S. territory, and within the United States. In short, it is defense in depth predicated on viewing the strategic environment as an open system in which people, trade, and information move continuously and for which the entire U.S. Government contributes to its defense through a variety of capabilities in a synchronized manner. For an active, layered defense to be effective, it "requires superior intelligence collection, fusion, and analysis, calculated deterrence of enemies, a layered system of mutually supporting defensive measures that are neither ad hoc nor passive, and the capability to mass and focus sufficient warfighting assets to defeat any attack."41

Although the concept of an active, layered defense had a global context, the strategy focused primarily on the U.S. homeland and the approaches to U.S. territory. The Defense Department recognized its responsibility for a number of activities in these geographic layers, but as an organizing construct, there were three principal categories: "Lead, Support and Enable." "Lead" meant that DoD, at the direction of the President or the Secretary of Defense, executed military missions to dissuade, deter, or defeat attacks on the United States. "Support" considered DoD's traditional role of providing support to civil authorities at the direction of the President or Secretary of Defense. This support was to be part of a comprehensive national response to prevent or protect against terrorist incidents or to recover from an attack or disaster. Finally, "Enable" sought to enhance the homeland security and homeland defense capabilities of domestic and international partners and, in turn, improve DoD capabilities by sharing technology and expertise across military and civilian boundaries. The strategy also addressed key objectives of this three pronged framework as well as specific operational capabilities that were needed to achieve these objectives and the strategic risks of not doing so.42 In addressing capabilities the authors of the strategy sought to influence other departmental processes, namely, funding, force structure, and technology development, in order to implement the strategic tenets of the document. The next opportunity to have an influence on these processes would be the QDR. However, before that review occurred, an incident of national significance43 would also have an effect.

On August 29, 2005, the most destructive hurricane in U.S. history, Katrina, hammered the Gulf of Mexico, killing more than a thousand people and causing substantial devastation to the states of Louisiana, Mississippi, and Alabama. New Orleans bore the brunt of the damaging effects when the powerful storm breached the levee system and flooded eighty percent of the city.44 Public order disintegrated because of inadequate planning by municipal and state officials and a lack of foresight regarding potential scenarios when a category 5 hurricane hits. The federal response proved unequal to the task as well, and poor communication and coordination between federal and state authorities only exacerbated the deficient response effort. FEMA was overwhelmed by the magnitude of the destruction and the requests for assistance. It soon became apparent that even with the support of other civilian agencies, DoD and National Guard units from across the country would need to be deployed.45

Ultimately, more than 72,000 active duty military and National Guard personnel deployed to provide assistance to ravaged areas between August 29 and September 10. The figure was twice the record deployment of military assets in response to a natural disaster since Hurricane Andrew in 1992. The department acted on more than 90 requests for assistance from civil authorities, many of which were approved orally by the Secretary of Defense, including one that had an estimated value of one billion dollars. There were deficiencies in the Department's response such as lack of pre-planned response capabilities for possible disaster scenarios, the need for closer coordination between DHS and Northern Command, and the requirement for more accurate and rapid initial damage reconnaissance and assessment. Nonetheless, the DoD evaluation was that U.S. military forces were ready and capable to execute the largest, most comprehensive, and most responsive civil support mission ever.46

Overall, the media, the American public and federal authorities rated DoD's response a success. When departmental advocates pointed out, however, that an even more robust DoD response might be required in the event of a catastrophic terrorist event where the loss of life and destruction of property would exceed Katrina's devastation, the argument was dismissed because of the department's successful response.47 The DoD leadership overseeing the ongoing QDR, which examined U.S. defense strategy in late 2005 and resulted in a report to Congress in February 2006, paid scant attention to homeland defense and civil support issues. In short, the touting of DoD's rapid and dependable response before congressional committees and in the media made these issues victims of their own success.

Publication of the QDR report is certainly not the end of DoD's involvement in homeland defense or support to civil authorities. While publication of the DoD Strategy for Homeland Defense and Civil Support represents the zenith of attention to these missions, the QDR review represented a plateau. The QDR report itself signaled that the Department's leadership felt confident that in the more than four years since the tragic events of September 11, 2001, DoD had made substantial progress in improving its capability to protect the U.S. homeland from attack and to respond effectively to a catastrophic event. The latter was a capability that required further attention, as the QDR report noted, but it was not the priority. Iraq and Afghanistan were consuming the leaders' attention and the Department's resources. As the QDR report noted, DoD believed that the civilian agencies that had these missions as their primary responsibility needed to attend to them. It was a position with which the Secretary of Homeland Security and the Congress agreed. The former stated that an enhanced FEMA was needed, and the Congress obliged him by passing the FEMA Reorganization Act in 2006. For many, DoD had amply proved its ability to fulfill its three roles specified in its own strategy: lead, support and enable. For its part, the Department was confident in its strategy and its ability to accomplish the homeland defense mission.


END NOTES

1. Bruce Maxwell, Homeland Security: A Documentary History, Washington, DC: CQ Press, 2004, pp. 241-242.

2. Ibid., p. 242.

3. 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks Upon the United States, New York: W. W. Norton & Co., 2004, p. 336.

4. Illustrative are: New World Coming: American Security in the 21st Century, United States Commission on National Security/21st Century Report, September 15, 1999; Assessing the Threat, Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction Report, December 15, 1999; and Countering the Changing Thereat of International Terrorism, National Commission on Terrorism Report, 5 June 2000.

5. John Woolley and Gerhard Peters, The American Presidency Project [online]. Santa Barbara, CA: University of California, hosted, Gerhard Peters, database, available from www.presidency.ucsb.edu/ws/?pid=438.

6. Esther Schrader, "America Attacked; Policy Changes," Los Angeles Times, 16, Sept. 2001, p. A12.

7. Ibid.

8. Robert J. Bartley, "Thinking Things Over: Pentagon Fires and Pentagon Reform," The Wall Street Journal, 17, Sept. 2001, p. A23.

9. Vernon Loeb, "Pentagon Says Homeland Defense Is Top Priority," The Washington Post, 2, Oct. 2001, p. A23.

10. Department of Defense, Quadrennial Defense Review Report, Washington, DC: U.S. Department of Defense, 30, Sept. 2001, p. 19.

11. "Homeland Security In a Pentagon Post," The New York Times, 3, Oct. 2001, p. B7.

12. Thomas E. Ricks, "Military Overhaul Considered," The Washington Post, 11, Oct. 2001, p. A1.

13. Bill Miller and Eric Pianin, "National Guard's Airport Role to End," The Washington Post, 24, Jan. 2002, p. A8.

14. Edward Rowny, "Homeland Defense Needs a Real Commander," The Wall Street Journal, 14, Feb. 2002, p. A20.

15. Greg Jaffe, "Homeland Defense to Receive Higher Priority in New Command," Wall Street Journal, 17, Apr. 2002, p. A4.

16. Donald Rumsfeld, Testimony before the United States Senate Appropriations Committee, 7, May 2002.

17. Ibid.

18. Ibid.

19. Ibid.

20. Ibid.

21. Thomas E. Ricks, "Bush Plans to Tap Ex-Lawmaker for New Defense Post," The Washington Post, 2, July 2002, p. A13.

22. Nicholas Kulish, "House Panel Votes Down Parts of Homeland-Security Plan," Wall Street Journal, 12, July 2002, p. A4.

23. Ibid.

24. William M. Arkin, "The Best Defense," Los Angeles Times, 14, July 2002, p. M1.

25. Donald H. Rumsfeld, "Transforming the Military," Foreign Affairs 81, No. 3, May/June 2002, pp. 20-32.

26. Bradley Graham and Susan Schmidt, "Homeland Office Promises Investigation," The Washington Post, 2, Feb. 2003, p. A5.

27. George W. Bush, "Homeland Security Presidential Directive-5, Management of Domestic Incidents, 28, Feb. 2003.

28. "Rumsfeld's Second Front," The Wall Street Journal, 1, April 2003, p. A14.

29. Paul McHale, Testimony before the 108th Congress, United States Senate Armed Services Committee, 8, April 2003.

30. George W. Bush, "Homeland Security Presidential Directive-7, Critical Infrastructure Identification, Prioritization, and Protection," 17, Dec. 2003.

31. George W. Bush, Homeland Security Presidential Directive-8, National Preparedness, 17, Dec. 2003.

32. John Mintz, "U.S. Threat Level Rises to Orange; Attack Risk May Be Highest Since 9/11," The Washington Post, 22, Dec. 2003, p. A1.

33. Paul McHale, Hearing Statement, 108th Congress, U.S. Senate Armed Services Committee, 25, Mar. 2004.

34. Ibid.

35. George W. Bush, Executive Order 13354, National Counterterrorism Center, August 27, 2004. In December 2004, Congress codified the NCTC in the Intelligence Reform and Terrorism Prevention Act (IRTPA) and placed the NCTC in the Office of the Director of National Intelligence.

36. U.S. Department of Homeland Security, National Response Plan, Dec. 2004.

37. George W. Bush, National Security Presidential Directive-44/Homeland Security Presidential Directive 13, Maritime Security Policy, 21, Dec. 2004.

38. Spencer S. Hsu and John Mintz, "Military Was Set To Down Cessna; Authority Granted As Plane Strayed Deep Into Capital," The Washington Post, 26, May 2005, p. A1.

39. George W. Bush, National Security Presidential Directive-45/Homeland Security Presidential Directive-14, Domestic Nuclear Detection, 15, Apr. 2005.

40. U.S. Department of Defense, Strategy for Homeland Defense and Civil Support, Washington, DC: US Department of Defense, 2005, p. 1.

41. Ibid., pp. 1-2.

42. Ibid., pp. 2-4.

43. U.S. Department of Homeland Security, National Response Plan, December 2004, p. 3. "Incidents of National Significance are those high-impact events that require a coordinated and effective response by an appropriate combination of Federal, State, local, tribal, private-sector, and nongovernmental entities in order to save lives, minimize damage, and provide the basis for long-term community recovery and mitigation activities."

44. Gary Gilmore, "Assistant Secretary McHale: DoD Acted Quickly to Provide Post-Katrina Support," U.S. Department of Defense, American Forces Information Service Press Release, 13, Mar. 2006.

45. The White House, The Federal Response to Hurricane Katrina: Lessons Learned, Washington, DC: Executive Office of the President, February 2006, pp. 1-3, 51-64; U.S. Senate, Hurricane Katrina: A Nation Still Unprepared, Washington, DC: Committee on Homeland Security and Government Affairs, 2006, pp. 1-19; U.S. House of Representatives, A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, Washington, DC: U.S. Government Printing Office, 2006, pp. x-xi, 1-5.

46. Gilmore, "Assistant Secretary McHale: DoD Acted Quickly to Provide Post-Katrina Support," Statement by Paul McHale, Assistant Secretary of Defense for Homeland Defense, before the 109th Congress, Committee on Appropriations, Subc ommittee on Defense, U.S. House of Representatives, 28, Sept. 2005.

47. Geoff Fein, "Katrina Showed Need for Rapid Damage Assessment," C4I News, 3, Aug. 2006, p. 1.


Note: This article was originally published in the June 2008 issue of U.S. Army War College Guide to National Security Issues, Volume II, National Security Policy and Strategy.


 

New Requirements for a New Challenge: The Military's
Role in Border Security

Bert Tussing

Reprinted with permission from Homeland Security Affairs.

Introduction

Threats along America's borders have taken on a new and ominous character. In the past, United States customs and border officials were focused on relatively benign matters of enforcing laws surrounding trade and immigration, protecting agriculture and economic interests from pest and disease, and processing people, vehicles and cargo.1 In the last three decades, however, these issues have been joined, and eclipsed, by growing apprehension surrounding matters of far greater concern than illegal immigrants in search of economic opportunities. The migration of gangs across the nation's borders and into our cities, organized criminal elements trafficking drugs and human beings into the United States, and the specter of terrorists and terrorist devices seeping through our borders to the north and south, all combine to contribute to a growing set of dangers to our people. Moreover, a compounded threat is emerging at the intersection of these concerns, wherein criminal and terrorist elements may unite toward the attainment of shared and separate goals. The combination of these elements elevates the potential disruption to our society beyond the responsibilities of law enforcement to matters of defense.

As the nature and severity of the threat increases, the character of our response to it must change. This country has a cherished tradition of separation between its police and its military. That tradition has generally delegated responsibility for keeping the citizenry safe from internal, domestic dangers to federal, state, and local law enforcement agencies. Likewise, safeguarding that citizenry from external aggression has, for the most part, been the obligation of the United States armed forces. But in a time where criminal and terrorist activities may merge at our borders, this distinction may not be maintainable. New cooperation is mandated between the military and the border patrol. In terms of that cooperation, the military must be prepared to assume a greater role.


An Over-taxed Border

No one seems to underestimate the urgency of the requirement. Nor have they since before 9/11. The United States Commission on National Security/21st Century, commonly known as the Hart-Rudman Commission, recommended that the executive branch establish a "National Homeland Security Agency." Among other things, this agency would encompass the Customs Service, the Border Patrol, and the United States Coast Guard in a synergistic environment to patrol U.S. borders and police the flow of peoples and goods through hundreds of ports of entry.2 Legislation creating the Department of Homeland Security (DHS) included border and transportation security as one of the original five under-secretariats. When Secretary Michael Chertoff came to Washington in February 2005, he entered the department with "six priorities;" the third of those was to "strengthen border security and interior enforcement..."3 The new secretary would make his concerns clear as he unveiled a new organizational structure that would remove bureaucratic layers between his office and customs and border protection as part of an effort to ...gain full control of our borders to prevent illegal immigration and security breaches. Flagrant violation of our borders undercuts respect for the rule of law and undermines our security. It also poses a particular burden to those in our border communities. We are developing a new approach to controlling the border, one that includes an integrated mix of additional staff, new technology and enhanced infrastructure investment.4 Institutionally, the requirement for a robust border security mechanism seemed clear.

Functionally, the requirement was even clearer. In the best of times, under the best of circumstances, the need for diligence at the border is compelling. On a typical day, more than 1.1 million passengers and pedestrians, including 635,000 aliens, over 235,000 air passengers, over 333,000 privately owned vehicles, and over 79,000 shipments of goods are processed at the nation's borders.5 Every year U.S. Customs and Border Protection (CBP) processes nearly half a billion people, 130 million trucks and cars, and 20 million cargo containers through 325 ports of entry.6

Curiously enough, however, the immensity of the daily requirement is not the most compelling factor among concerns over the security of the border. What is described above is the routine, legitimate traffic that allows for the free flow of visitors and commerce, keeping open the doors of the "land of opportunity" and, coincidentally, sustaining much of the economy. The greater concern for security lies beyond these factors in an accompanying flow that does not seek legitimate opportunity, but criminal gain; that is not interested in sharing the American way of life, but in undermining it and the institutions and values which sustain it. A report developed in the House of Representatives' Committee on Homeland Security offers an interesting and potentially ominous contrast: During 2005, Border Patrol apprehended approximately 1.2 million illegal aliens [along the Southwest border between the United States and Mexico]; of those, 165,000 were from countries other than Mexico. Of the non-Mexican aliens, approximately 650 were from special interest countries. 7, 8

The threat along the northern border, while far less publicized, is nevertheless cause for concern; perhaps equal concern, perhaps greater. In 1988, U.S. Customs officials arrested three members of a Syrian terrorist group, linked to al Qaeda in the process of entering the U.S. with explosives.9 Members of the terrorist cell that executed the 1993 attack on the World Trade Center entered the U.S. from Canada, and were planning to use Canada as a possible escape route. In December 1999, Ahmed Ressam was arrested crossing into the United States in possession of bomb making materials and plans for what became known as the Millennium bomb plot against Los Angeles International Airport.10 Ressam would be characterized by the State Department as a textbook example of someone who "capitalized on liberal Canadian immigration and asylum policies to enjoy safe haven, raise funds, arrange logistical support, and plan terrorist attacks."11

And the past, we have every reason to fear, may well be prelude, as pointed out by Dr. Todd Hataley of the Royal Military College of Canada: In the post 9/11 period Canada has continued to raise security concerns in the United States. U.S. security officials believe that Canada is not only home to "sleeper cells" waiting for a chance to cross the border and attack the United States, but also that crossing from Canada has become a favorite route for illegal immigrants, drug smugglers, and potential terrorists.12


The Military in (limited) Support

Juxtapose this history against a northern border that stretches nearly 5,000 miles and a southwestern counterpart that runs another 2,000, and the challenge weighing against CBP is irksome, to say the least. In October 2006 there were 11,000 agents assigned to watch and protect both sets of borders.13 In May 2006, the Administration embarked upon a plan to raise those numbers to over 18,000 by the end of 2008,14 increasing the total number to over 101% of the number that stood when the president took office in 2001.15

Whether or not that number will be sufficient is debatable. Whatever the case, plans for the future do not meet a requirement facing us today. The challenges that have inspired these increases will not be suspended until the increases can be brought about. As though acknowledging the same, the Administration launched Operation Jump Start in May 2006. The operation was officially terminated on July 15, 2008,16 but at its height included over 6,000 National Guard from forty-eight states, brought to "strengthen border security and encourage deterrence."17 David V. Aguilar, chief of the Office of Border Patrol for CBP, testified as to the nature of the Guard's mission before members of the House Homeland Security Committee:

National Guard units will assist DHS by executing missions such as logistical and administrative support, operating detection systems, providing mobile communications, augmenting DHS's border-related intelligence analysis efforts, building and installing border security infrastructure, providing transportation and training.18 It is important to note, however, that while the presence of the Guard allowed CBP agents to return focus to law enforcement activities along the border, the troops did not join the agents in those activities, nor were they ever intended to do so. At the same hearing, Chief Aguilar was quick to remind the Congress of one clear distinction between the National Guard and the CBP mission. However, law enforcement along the border between the ports of entry will remain the responsibility of Border Patrol agents. The National Guard will play no direct law enforcement role in the apprehension, custodial care or security of those who are detained.19

This pronounced distinction in the roles that the National Guard may assume in border operations may seem confusing. After all, the immediate requirement that saw the deployment of Guard seems to invite additional manpower on the border to assist in surveillance, intervention, apprehension, and arrest. In the face of the immensity of their task, CBP lauding the fact that 6,000 National Guard allowed the Border Patrol to return 350 agents to "traditional frontline duties"20 could easily lead to questions as to why more Guard could not be positioned on those "frontlines."

Those slightly schooled in laws and regulations surrounding the issue of military support to law enforcement agencies may still be confused. The hub of much of the discussion surrounding these issues is the Posse Comitatus Act, legislation enacted in the immediate aftermath of the Civil War, which largely prohibits the use of the active duty armed forces in executing the domestic laws of the United States.21 Note, however, that the act only applies to federal forces. It does not apply to the National Guard, unless the Guard forces in question have been "federalized," or mobilized under Title 10 of the United States Code to perform a federal mission. Title 10, for instance, is the authority under which National Guard units are serving overseas in support of the United States' mission in Iraq. If the Guard forces are either in a "state active duty" status, or serving under the authority of Title 32 of the United States Code (a status that has the forces sustained by funds from the Department of Defense but retained under the command and control of the state governors and their adjutant generals), National Guard forces may serve in a direct law enforcement function.22 Why, then, the distinction, and restriction, in border operations in the Southwest or any other operations of this sort? Perhaps even more to the point: Why restrict the military-active or reserve-from directly supporting the law enforcement function of the border security mission?

Soldiers-Not Policemen

The motivation behind the restriction is, perhaps, uniquely American and embedded in our national mindset. Simply stated, the people of the United States do not want our soldiers to be policemen, or our policemen to be soldiers. The philosophical underpinnings of this aversion can be traced to the colonies of the pre-Revolutionary War, when the heretofore loyal subjects of Great Britain were repulsed by oppressive measures like the Quartering Acts that cast the British forces in the role of overseers and, even, oppressors.23 These same attitudes emerged at the end of the Reconstruction following the Civil War, when the federal military stood as an occupying force over the former Confederate states. These historic examples - combined, perhaps, with persistent images of military oppression that accompanied much of our immigrant ancestry from overseas - may help us to understand our citizenry's aversion to too much of a military presence for too long in our streets. Consider, for instance, what may be thought of as the subliminal response to the presence of the military in our nation's airports following 9/11. Initially the sight of soldiers along the concourses of O'Hare and Kennedy International kindled an air of assurance and accompanying goodwill. But how long was it before some of us were asking "Why are these military people here, with those rifles and that equipment?" The truth is Americans live in a state of dichotomy regarding attitudes about the military. We appreciate their sacrifice. We acknowledge their dedication. We take pride in their prowess and the virtue of their leadership. But we are dedicated to the proposition that these soldiers will ever remain the servants of the people, and not our overseers.

Fortunately, few are more sensitive to the military's role than the military's leadership. The clear distinction between the roles and responsibilities of law enforcement and the military is ingrained in the mindset of its generals. Any number of reasons could be cited for this sensitivity, beginning with the fact that the country's all-volunteer force is very much a military "of the people" and therefore very much "for the people." Moreover, the senior leadership currently directing our armed forces evolved from a generation of young officers born in the shadow of the Vietnam era.24 The soldiers, sailors, airmen, and Marines of that era undeservedly bore the derisive brunt of a society turned sour on the war. In the same time period, reports of the Pentagon gathering intelligence against anti-war groups further broadened the divide between much of America and her military. Institutional assurances were put in place in the 1980s to prevent this type of surveillance from ever occurring again;25 but having survived that era of distrust between the nation's people and the nation's military, the current uniformed leadership is keenly aware of how important the support of the citizenry is to its soldiers - and how fragile.

Nothing New in the Requirement?

Even so, Chief Aguilar reminds us that border security operations involving the National Guard are not a requirement unique to the new century: Let me first state that National Guard support and coordination with DHS and the Border Patrol is nothing new. While this new infusion will be on a larger scale, the Border patrol has a history of nearly two decades working with National Guard units to utilize their unique expertise, manpower, technology and assets in support of our mission and as a force multiplier.26

In fact, recent history witnessed the United States military's involvement in border security operations not only by the National Guard, but by the active duty component as well. In response to a growing connection between border security and counter-narcotics programs in the 1980s, President Ronald Reagan signed a National Security Decision Directive that simultaneously described drug trafficking as a threat to national security and authorized military involvement in combating it.27 In 1989, the military's Joint Task Force 6 (JTF-6) was created to coordinate its expanding support for "the anti-drug efforts of border region police agencies, including the Border Patrol."28 Like the Guard, this task force would eventually play an important role in constructing physical barriers designed to slow or channel the flow of illegal immigrants. Unlike the Guard, JTF-6 also deployed aviation assets and ground troops along the border.29

Support for the military's role along the border continued through the 1990s. In 1991, key legislation was passed that codified a consensus to allow the Department of Defense to support any agency of the federal government with counterdrug responsibilities. More noteworthy yet, the legislation opened the way for DoD support to state and local government law enforcement agencies in achieving the same ends.30 In 1997, the United States House of Representatives passed a resolution calling for the deployment of 10,000 additional troops in support of counterdrug operations along the southwest border.31

Tragedy was to interrupt the final passage of that resolution. On the evening of May 20, 1997, eighteen-year-old Ezequiel Hernandez was herding goats when he was mistakenly shot by the leader of a Marine rifle team that was observing an area of the Rio Grande known for its illegal drug trafficking. The Marines were members of JTF-6 and had been acting in support of the Border Patrol, but had received no civilian law enforcement training or briefings on local conditions.32

The outcry against the tragic occurrence would eventually subside across most of the social landscape, but not from the perspective of the military. Returning to its traditional degree of reticence, the Pentagon's leadership withdrew its armed forces from the border and levied new restrictions that would cast the military in a predominantly technical-support capacity. In the future, JTF-6 would be re-designated Joint Task Force-North and the personnel-intensive, boots-on-the-ground support provided by the unit in the 1990s would be replaced along the border with ground sensors, radar, airborne platforms, and thermal imagery. Deliberately postured in support of federal, state, and local law enforcement entities, the command's website notes that its technological focus has allowed for a reduction in manpower requirements.33 But the first, and perhaps most significant, reduction came in terms of troops on the ground.

This would largely characterize the military's consistent role, for both the active and reserve components (including the National Guard) from the time of the tragedy in Texas until the calamity of September 11, 2001. In the aftermath of the attacks on the World Trade Center and the Pentagon, immediate steps were taken to reinforce the security of the nation's borders. Along entries from both north and south, the president commanded the deployment of roughly 1,600 National Guard troops for six months to support federal border officials.34 New emphasis in maritime and aviation security along, within, and through the approaches to our borders became accompanying measures to land border security, and were formalized in interagency strategies.35

In the midst of these events, the United States Northern Command (NORTHCOM) was established on October 1, 2002 "to provide command and control of Department of Defense (DoD) homeland defense efforts and to coordinate defense support of civil authorities."36 The new combatant command, primarily responsible for active service components' activities within the domestic confines of the United States, was charged in their mission statement to: Deter, prevent, and defeat threats and aggression aimed at the United States, its territories and interests within its assigned area of responsibility; and as directed by the President or the Secretary of Defense, provide military assistance to civil authorities, including immediate crisis and subsequent consequence management operations.37

This mission statement instantly distinguished the new command from its counterparts overseas. The first part of the mission was reasonably clear, if ominous. "Deter, prevent and defeat" could be realistically expected as part and parcel of a military mission anywhere around the globe. The armed forces of the United States identify with this language and are fully prepared to do whatever is required to fulfill this mission. But the second half of the command's mission statement (euphemistically referred to across the military as the "right of the semicolon" requirement) was less intuitive, and arguably more complex than the first. The powerful segue - "as directed by the President or the Secretary of Defense" - is indicative of a very measured approach to this part of the mission. Placing the military in support of civil authorities will concurrently place them in activities normally conducted and controlled by those authorities. And the closer the military comes to controlling civil activities, the less comfortable it finds the mission.


A Shift in Focus: Counterdrug to Counterterror

The military's directives support its reticence. Civil support is characterized by the Department of Defense as granted in response to domestic emergencies and "for designated law enforcement and other activities."38 However, the DoD directive regulating military support to civilian law enforcement agencies specifically prohibits the use of the military for interdiction; search and seizure; arrest, apprehension, stop and frisk or similar activity; and the use of military personnel in the pursuit of individuals, or as undercover agents, informants, investigators, or interrogators.39

As the new structure of NORTHCOM was designed to meet the threat, along with a new office in the Department of Defense to oversee it,40 the support mission for the military along the border was also changing. JTF-6, as previously noted, was redesignated JTF-North. This change in designation would mirror a change in focus, away from counterdrug operations to counterterror operations. Persistent, legitimate concerns over drug trafficking were being overshadowed by revelations of looming threats to our north and south. In Canada, as early as 1998, the Special Senate Committee on Security and Intelligence labeled the country as ...a 'venue of opportunity' for terrorist groups: a place where they may raise funds, purchase arms, and conduct other activities to support their organizations and their terrorist activities elsewhere. Most of the international terrorist organizations have a presence in Canada. Our geographic location also makes Canada a favorite conduit for terrorists wishing to enter the United States, which remains the principal target for terrorist attacks worldwide.41

More recently, the same committee reported that "[a] relatively large number of terrorist groups [is] known to be operating in Canada, engaged in fundraising, procuring materials, spreading propaganda, recruiting followers and conducting other activities."42

To the south, there is growing concern over the opportunities being taken to transplant elements of international terrorist organizations among our closest neighbors. As early as May 2001, Adolfo Aguilar Zinser, former Mexican national security adviser and ambassador to the United Nations warned that "Spanish and Islamic terrorist groups are using Mexico as a refuge."43 General James T. Hill, former commander of U.S. Southern Command, warned that the U.S. faces a growing risk, both from terrorist groups relocating to Latin America and "homegrown" groups originating therein. He warned specifically that Hezbollah and groups like it had established bases in Latin America, taking advantage of nearly ungovernable areas like the tri-border region between Brazil, Argentina, and Paraguay.44 Add to these viable concerns over Venezuela's support to radical Islamic groups,45 and the security concerns surrounding the well-being of our people at home continue to grow.

Unfortunately, as the military and the law enforcement agencies it supports along the border have moved on to this new concern, they can ill-afford to leave the old concerns behind. As though adding to the population of a snake pit, the arrival of terrorist concerns has done nothing to thin out the presence of drug traffickers among the cartels. Neither has it had an effect in reducing other organized-crime activities, like human trafficking, or diminishing a rise in criminal gang activity immigrating through Mexico into the United States. A majority report from the House of Representatives Committee on Homeland Security gave voice to these concerns, warning against "the triple threat of drug smuggling, illegal and unknown crossers, and rising violence" facing communities in the southwest.46

Criminals involved in this activity have taken on an air of arrogance that should further spur the nation's concerns. The aforementioned House study validates frequent reports that the cartels may be literally "outgunning" local law enforcement agencies on both sides of the border, possessing military-grade weapons, technologies and intelligence, and their own "paramilitary enforcers.47" The enforcers usually restrict their activities to actions against rival factions, but not always. In 2005, just hours after being sworn in as Nuevo Laredo's police chief, Alejandro Dominguez was killed. Dominguez came to office on the promise of cracking down on the cartels.48

This threat across the border should be enough to warrant alarm, but there are growing concerns that it cannot be contained there. Violence against U.S. law enforcement officials, from the Border Patrol to local law enforcement agencies, is rising at an alarming rate. From 2004 to 2005, attacks against Border Patrol agents on the Southwest border increased 108 percent. During fiscal year 2006 there were 746 violent incidents launched against these agents, including rock assaults, physical assaults, vehicle assaults, and firearm assaults. In March 2006, the House Judicial Committee's Subcommittee on Immigration, Border Security, and Claims conducted a hearing addressing these issues, noting a growing concern over law enforcement agents literally being "outmanned and outgunned" by criminal elements.49 In January 2008, a U.S. Border Patrol agent was run down and killed near the Imperial Sand Dunes in Southern California, by men suspected of drug and alien smuggling.50 And in what is perhaps the most blatant disregard for our territorial integrity so far, various cartel elements have recently initiated open attacks across our borders - against rival cartel members, against former Mexican law enforcement officials who have fled to the United States, and even against state and federal law enforcement officials.51

General Barry R. McCaffrey, former director of the White House Office of National Drug Control Policy, commented on the disturbing partnership growing between crime and terrorism at the nation's door. These groups are drawn together because of their complementary capabilities. Terrorists can create chaotic circumstances that allow for illicit activities. Criminal organizations have pre-established networks to move and sell narcotics and launder money.52

To date, the manifestations of this partnership have not taken on a character that would call for a military response. However, a recent report from Arizona indicates that a future requirement for the same is not beyond reason. Officials at Fort Huachuca, the nation's largest intelligence training center, changed security measures in May of last year after being warned that Islamist terrorists, with the paid assistance of Mexican drug cartels arranging their entry, were planning an attack against the post.53 The plotters, up to sixty in number, were reported to be Afghan and Iraqi terrorists with high-powered weapons (including anti-tank missiles, Soviet-era surface-to-air missiles, and grenade launchers) smuggled into the United States through tunnels. The FBI would not elaborate on investigations surrounding the threat; neither would they comment on other reports suggesting the "plot" was a Gulf cartel "plant" to bring in the U.S. military against a rival cartel. But an FBI representative did acknowledge that the report "demonstrates the cross-pollination that frequently exists between criminal and terrorist groups."54

The immediacy of genuine defense concerns, as opposed to law enforcement concerns along the border, is certainly open to question. Nevertheless, the evolving, intersecting threats of organized crime and terrorism, masked by the relentless challenge of illegal immigration across our borders, clearly present a dangerous and perplexing set of difficulties for federal, state, and local government officials. Law enforcement agencies across all three levels of government have the lead in addressing the difficulties. The military has been, and continues to be, in support. But is the current role being played by the military - under the current circumstances, against the current threat - appropriate?

Temporary, but Recurring?

As though hedging bets, all discussion of placing the military in support of border security operations in the United States is consistently couched in terms of temporary requirements. Such was the case in 2002; such was the case again in 2006. It is clear that the current Administration is making an honest effort in re-tooling Customs and Border Protection, in terms of both technology and "boots-on-the-ground" to meet the broader threat that has emerged since 9/11. The functions that have characterized DoD support along the border - communications and logistical support, lending and operating detection and sensor systems, augmenting border-related intelligence analysis efforts, training, and so forth - are being reflected in the strategic plans of the Department of Homeland Security in general and its Customs and Border Protection agency in particular. CBP's strategic plan specifically lays out a strategic objective to "maximize border security...through an appropriate balance of personnel, equipment, technology, communications capability and tactical infrastructure."55 Moreover, the DHS is clearly intent on putting resources behind their rhetoric, as demonstrated by the fact that approximately half of its $5.4 billion information technology budget for 2008 will go towards developing and modernizing these capabilities.56 Ostensibly, the intent is to enable CBP to completely take control of that part of the mission the military has served to supplement to date.

The question is, can we reasonably expect them to do that? Is it reasonable, for instance, to expect the Department of Homeland Security to duplicate the sensor capabilities that have been introduced in their support during this "period of transition?" Is it feasible and/or advisable for them to reproduce the communication suites that have supported their operations along the southwest border since 2006? Is it fiscally responsible to match the engineer assets that the military has introduced in support of the mission over the last few decades...and the maintenance capability...and the training capacity? To be sure, DHS has the means and the aptitude to address all of these functions to a degree; but does it have enough to meet the requirement posed by the threat according to our current assessment? And if it does, or shall soon, is it fair to assume that DHS will be able to meet the full evolving requirement to meet an evolving threat? Is it safe to make that assumption?


Planning for the Longer Term Against a Variable Threat

I would contend that it is not. The Department of Homeland Security's current direction towards strengthening border security will not, and can never, be the final solution. Trying to empower a single federal agency with the ability to solve foreseeable challenges in this area is neither feasible, nor advisable. Expecting our military forces to continue to "stand in the gap" in their present capacity is also ill-advised, whether referring to the federal component - our active duty forces - or the "states militia" whose strength resides principally in the National Guard. A closer approximation of a solution to the evolving dilemma will begin with the realization that the border challenge must be addressed as a problem that varies with the introduction of a variable threat (See Figure 1).

Experience has taught us that the lower end of that threat is embodied in massive numbers of illegal aliens, albeit ones without malicious intent (indeed, a significant amount of the nation's concern in this regard is for the well-being of the aliens themselves).57 It is reasonable to assign day-to-day cognizance over that end of the threat to Customs and Border Protection, as the clear "lead federal agency."



Chart showing variable scale of border protection



As the threat moves further up the scale, however, we are introduced to an organized criminal element which has been seen trafficking both drugs and human beings. At this point, one might envision a requirement quite literally calling for greater force. That force could begin with a concentration and coordination of other law enforcement agencies (federal, state, and local). These would be keyed to their requirement by integrated information and intelligence from across the federal interagency. But they should also be served by mechanisms designed for intergovernmental intelligence and information exchange - up and down the chain between federal, state, and local authorities.

That exchange could also provide warnings and signals at the upper end of our threat spectrum, manifested in the aforementioned confluence of organized crime and international terrorism. In her study "U.S. Border Enforcement: From Horseback to High-Tech," Deborah Waller Meyers suggests that the difference in responding to the variations of the threat at our borders may parallel the difference between border control (protection against the illegal entry of people and goods), border safety (protection against criminals, violence, smuggling, etc.), and border security (protection against terrorists).58

Responsibility for security at the border, therefore, becomes a shared concern. Federal, state, and local government must arrive at a common understanding of what is needed to provide an acceptable level of security at the borders, and then determine a package to provide that security that is feasible, affordable, and acceptable to the American people. Addressing our variable scale, therefore, begins in the federal government with an interagency plan, led by the Department of Homeland Security. The impetus for border protection that began with consolidating the nation's frontline border enforcement agencies under Customs and Border Protection must be continued to harness the support of other agencies (including but not limited to DoD) that have vital roles in meeting the complexities of the task. This will certainly include agencies like the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA) whose traditional roles along both borders provide a background in both information and intelligence exchange and law enforcement. Multiple sectors of the intelligence community, led by DHS' own under secretariat for intelligence and analysis, can provide for the underpinnings of what the Department of Defense calls an "active, layered defense."59 In turn, they will provide for the security of our borders, ideally well before the threat reaches it.

A stand-alone federal solution, however, will be one doomed to failure. Governor Janet Napolitano of Arizona begrudgingly acknowledged as much when she declared: "States are not responsible for operational control of international borders; however, due to the dire situation that exists along the United States-Mexico border in Arizona, the state has had to act to preserve the rights and bests interests of its citizens".60

Concerns mirroring those of Governor Napolitano, in Texas, New Mexico, and California, led to the memorandum of understanding signed between those states and the Department of Defense that served as the foundation for Operation Jump Start. Comparable shared concerns between the states of New York, New Hampshire, Vermont, and the federal government led to similar agreements in the initiation and execution of Operation Winter Freeze in 2004.61

Beyond these operations, a host of evolving mechanisms are being built to strengthen cooperative efforts between the three levels of government that could be trained to address concerns for border security. The FBI's Joint Terrorism Task Force offices located across the country (notably including cells in Phoenix, San Diego, and El Paso) could certainly be utilized towards these ends, bringing together representatives not only from state and local law enforcement, but agencies like the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Central Intelligence Agency, the Bureau of Immigration and Customs Enforcement, the U.S. Coast Guard, and DoD. Likewise, state fusion centers, financially sponsored in their development through grants from the Department of Homeland Security, are already serving as principal conduits for information exchange.

The military's role in the solution set that will be required in this combined interagency and intergovernmental solution, while occasionally cumbersome for the services, is inescapable. The expected transition described by the Bush Administration as the impetus behind Operation Jump Start may begin to solve the immediate problem at the lower end of the variable scale, but it should not be relied upon to address the middle and upper dimensions of its concerns. Even assuming CBP receives a significant infusion of resources to provide for technological solutions, that infusion will not take place overnight. While Operation Jump Start was officially terminated, counterdrug operation support is still being provided by our armed forces, Innovative Readiness Training (IRT) from the National Guard remains on the borders,62 and sensor support operations from elements of both the active and reserve component remain underway.63 The equipment and expertise currently being provided by the military will, for at least the time being, remain a requirement.

Moreover, technology can only serve to complement boots-on-the-border; it cannot replace them. Whether focused on interdicting the threat or - more ideally - deterring or preventing illegal transit, it is the physical presence of people that will actually accomplish the desired function. Again, DHS recognizes this reality and, along with the infusion of funds provided for technology along the border, is asking for an increase of $442.4 million to hire, train, and equip 2,200 new Border Patrol agents.64 But these planned increases will not translate into immediate reinforcement along the borders. And, when spread across more than 7,000 miles of border to our north and south, 2,200 new agents may still project a degree of protection that is exceedingly thin. Therefore - even if only addressing the steady-state, lower-end requirement suggested by our variable scale - sufficient numbers for accomplishing this mission may only be available if the military remains actively engaged.

Keeping the military engaged and, as necessary, bolstering that engagement, will present a series of questions. First, the nation's leadership must decide which component of the military is best suited to address the issue along our variable scale: the active duty forces, or the National Guard, or both? Next, it will have to address the relative capacity of those forces to take on these responsibilities. Finally, having addressed the feasibility of the requirement, the leadership will have to return to the question of whether such engagement is advisable and, most importantly, acceptable in the eyes of the American people.

Active Duty Forces

Recent tradition shows that if an active component organization is involved in domestic civil support operations, its role is specialized and its numbers are small. A good example is the United States Marine Corps Chemical-Biological Incident Response Force (CBIRF). The CBIRF's mission requires it to respond to credible threats of a chemical, biological, radiological, nuclear, or high explosive yield incident in order to assist local, state, or federal agencies.65 The unit lists an impressive array of capabilities to include agent detection and identification, casualty search and rescue, personnel decontamination, medical care, and stabilization of contaminated personnel.66 However, the unit is composed of only 350 personnel and its mission is focused, and contained, around CBRNE (Chemical, Biological, Radiological, Nuclear, or High Explosive Yield) incident response. The United States Northern Command's Joint Task Force for Civil Support (JTF-CS) was also designed as a very specialized force, dedicated to planning and integrating consequence management support from the Department of Defense to civil authorities following a CBRNE incident. However, the task force is essentially a command and control entity, without assigned forces or dedicated transportation. In the event of a CBRNE crisis, several thousand personnel could be attached to JTF-CS by order of the secretary of defense to handle manpower intensive requirements alongside the specialized requirements the unit is uniquely qualified to fulfill.67

Joint Task Force North, as already noted, is much more directed to matters associated with the concerns of this article. The mission statement of the organization reiterates its relevance here.

"As directed, Joint Task Force North employs military capabilities to support law enforcement agencies and supports interagency synchronization within the United States Northern Command area of responsibility in order to deter and prevent transnational threats to the homeland".68

As is the case with much of the current National Guard mission along the southwest border, JTF-N has frequently assisted law enforcement efforts by means of detection and monitoring missions and by facilitating engineer support. This facilitation is brought about by the unit processing and prioritizing requests, and then sourcing those requests through appropriate active duty units.69 In addition to these roles, however, the task force has played an important part in providing intelligence analysis and information sharing with federal, state, and local law enforcement agencies; other federal interagency partners; military units in support (from the active component, the service's reserves, and the National Guard); and (when authorized and appropriate) Canadian, Mexican, and other international partners by way of bi-national agreements.70 Beyond this support, the task force has a history of conducting collaborative planning with federal, state, and local law enforcement agencies. This ability to plan for complex operations, incorporating bi-national, federal, state, and local stakeholders, highlights a core competency of the military and continues to prove more than beneficial in civil support missions inside and out of the United States.

Placed reasonably along the variable scale, the role of JTF-N could be seen in support of the Border Patrol in interdicting and arresting criminal elements, and intercepting and/or deterring the flow of terrorists over the nation's borders. While very deliberately not involved in arrest and apprehension themselves, the task force can support CBP as the primary law enforcement agency charged with that responsibility. Truthfully, if statutes and regulations were amended to allow JTF-N to join in those more direct functions, they are hardly configured to do so. Possessing approximately 150 soldiers, the unit's main contribution is in intelligence and information sharing, and in facilitating the introduction of other military forces to accomplish specified ends.

Perhaps curiously, JTF-N may be the only standing force from the military's active component dedicated to an aspect of land border security. Its ties to the mission are indirect, born out of a concern over the illicit flow of drugs across our borders; but the evolution of those counterdrug concerns to the newer concerns over counterterrorism will no doubt assure the task force's continued association with the CBP and its partner agencies.

In the meantime, there are other units whose missions could be applied to these endeavors, especially as concerns progress from border control, to border safety, to border security. The United States Northern Command itself may serve a vital liaison function between the militaries of the United States, Canada, and Mexico, ensuring transparency and encouraging cooperation through bilateral and multilateral Theater Security Cooperation Plans (TSCPs). NORTHCOM's Standing Joint Force Headquarters-North (SJFHQ-N) is poised as a deployable command and control element about which a Joint Task Force could be quickly configured in response to any number of homeland defense scenarios71 - to include scenarios along our borders. Pre-designated Quick Response Forces in both the United States Army and the United States Marine Corps could rapidly fall in as the key components of those JTFs, if deployed. But they are not, nor are they envisioned to be, dedicated forces for those missions.

The National Guard

Then again, neither is the National Guard. Operation Jump Start, like the 2002 mission conducted in the wake of 9/11, was framed by the Administration as being an anomaly. Unless an unexpected turn of events lifts the threat from our borders, however, or a remarkable (some would suggest inadvisable) infusion of manpower takes place in the Border Patrol, it is likely to be a recurring anomaly. In spite of understandable reticence surrounding their use, no force recommends itself better to the mission than the Guard.

The thing that recommends the Guard most as the military resource of choice in support to civil authorities is its traditional relationship with those authorities. Recruiting offices across the country remind us of this relationship, an affinity born of both empathy and the proximity of the Guard to the people they serve. No one in the military is more attuned to the border enforcement, safety, and security challenges facing Yuma County, Arizona than the Arizona National Guard; no one in the armed forces is more aware of persistent concerns surrounding aliens of interest passing through the Swanton sector of New Hampshire, Vermont, and New York than their Guard. Likewise, no element of the United States military enjoys a closer working relationship with state and local government than those who dwell among them, exercise with them, and plan to respond to emergencies alongside them - in the National Guard.

Accordingly, logic continues to dictate that if greater forces are needed along the border, the Guard is the "go to" solution. The same thought process that calls for closer integration between federal, state, and local law enforcement extends easily to incorporating the local "state militia" in support of those integrated efforts. By further extension, as regional state cooperative efforts like the ones discussed here continue, cooperative, collaborative planning between the adjoining states' National Guard will provide a synergy that could "close the seams" between states' borders while simultaneously addressing the larger national border issue.

While the greatest urgency surrounding border security may exist in the states that constitute those borders, the cost for providing that security should not be theirs to bear alone. In fact, there are a number of precedents that have been set since 9/11 which allow for greater federal support to the states' immediate concerns. Notable among these are measures designed to fund deployment and employment of the National Guard in missions which remain under state control. For instance, Title 32 of the United States Code has been invoked by the secretary of defense in providing funds for state missions that remain under the authority of that state's governor as "necessary and appropriate" in supporting "homeland defense" activities.72 Similarly, the potential exists for states' governors to fund National Guard activities undertaken in state active duty status through Department of Homeland Security grant monies.73 Additionally, federal funding available to the states via 32 U.S.C. §112 for "drug interdiction and counterdrug activities" could logically be extended to a state force whose mission is tied to the federal effort to interdict these illicit activities coincident with the general policing of the nation's borders.74

Funding issues, however, become secondary when viewed against the greater concern of how the National Guard could afford the additional manpower demands implied in a recurring border security mission. A partial solution to this more immediate challenge to border states is to continue to augment their efforts with National Guard units from other states. Doing so would continue the pattern begun in 2002, revisited in Operation Winter Freeze, and most recently exhibited in Operation Jump Start. Officials are quick to point out that military readiness was not degraded by the Guard's participation in these endeavors.75 Rather, the Guard's support has been portrayed as enhancing the engaged units' readiness in engineering, logistics, transportation, aviation, medical, and maintenance. Given continued federal funding, and accompanying cooperation among the states through the EMAC, this is a mechanism that could be applied to the problem for some time.

One should understand, however, that this is only a partial solution, and one that may not be sustainable. Indeed, rising demands, set against existing numbers in the Guard, may make sustainability the ultimate "deal breaker" in these discussions. The current strain being felt by the National Guard due to its employment at home and abroad is well documented. Expecting the Guard to accept an increased burden by way of operations along the border amounts to what has been called "a further strain on already overextended military resources."76 What most people fail to realize is that the National Guard has taken on these unprecedented demands, escalating from deployments in Bosnia-Herzegovina and Kosovo in the late 1990s and on through Operations Iraqi Freedom and Enduring Freedom, with historically weakened manpower rolls. Following the fall of the Soviet Union, the Guard was charged with making force reductions that have never been recovered. In 1989, the end strength of the National Guard stood at 570,000 personnel. Buoyed by the confidence of a "peace dividend" yet to be realized, that force has now been reduced by 20 percent to numbers that today stand at approximately 456,000, of which 350,000 are Army Guard.77 Balance this depletion against the comparative operational tempo of the National Guard in the last three decades, and the picture becomes bleaker still. In the 1980s, serving Guard accounted for approximately 1 million man-days of duty per year. In the 1990s, (with a shrinking force), that figure had grown to 12.5 million man-days. In 2003, statistics showed that these figures had ballooned to 63 million man-days per year.78

It is beyond the intent of this article to suggest how many personnel are required to effectively secure the borders of the United States. In 2005, the late Representative Charlie Norwood (R-GA) sponsored a study that suggested 36,000 National Guard and/or authorized "State Defense Forces" would be required to assist the Border Patrol in securing the southwest border of the United States.79 At one point before the activation of Operation Jump Start, the Administration had planned to deploy 1012,000 troops in support of the border patrol, as opposed to the 6,000 that were eventually sent.80 Whatever the case, the numbers and the need that inspire them are more than appreciable. Combine concerns for the southwest border with the realization that our border with Canada is twice its size - and that there are only one-tenth the number of border patrol agents there as exist in the southwest to "protect" it - and the immensity of the requirement at hand becomes more appreciable still.

But up until this point we have only examined numbers, without coming to grips with how those numbers should be applied. It should be obvious that the 36,000-man augmentation envisioned in Congressman Norwood's study were not intended merely for surveillance, intelligence analysis, or engineering functions. They were intended to be postured as the deterrent effect that can only be supplied by boots-on-the-ground, standing in the gap, able to interdict and, as necessary, arrest and apprehend the threat to our people. They were intended to augment law enforcement agents alongside of those agents, occasionally providing peripheral support to their mission, but equally prepared to provide direct support to policing requirements. Were the threats we are facing still limited to those unintentionally accompanying the "huddled masses yearning to breathe free," the necessity for this augmentation would be significantly different. But that is not the case and the nation is obliged to prepare for a greater menace.

We are faced in the center and upper levels of our variable scale with a requirement that fails to fit comfortably in the realm of either law enforcement or national defense. Given the adversaries encountered in what has been called the "seam of ambiguity" between the two, the best path is to prepare to meet the trials of both environments. With all deference to the Department of Homeland Security and especially to their Border Patrol agents, it is illogical to expect them to be prepared for an upper-end threat that may see them outgunned. Neither is it logical to expect the American public to duplicate the assets and capabilities contained in the military to perform a function it should be capable of fulfilling. The reticence the armed forces have demonstrated in taking on the more direct involvement envisioned here is understandable - but perhaps misguided. Beyond the question of technology and manpower, of capabilities and numbers, the military requires a new mindset in addressing the border security issue.

The spirit embedded in the Posse Comitatus Act, and the laws and regulations which reflect it, is focused on reiterating and retaining the role of the military of the United States as the servant of its people. But the preponderance of the concern along our borders does not have to do with the comings and goings of the American people. Our concern is over the illegal entry into our country of those who wish to do us harm. The nation's primary defensive focus, as always, remains outward against an external threat - but that focus must now begin on the nation's shorelines and along its territorial boundaries. The studied hesitancy of leadership in the Department of Defense should be viewed against how quickly border enforcement issues could become border safety issues and, finally, reactive issues of national defense. An organization that justifiably prides itself on a preemptive mentality should bear no umbrage against employing itself as an obstacle to the threats envisioned here.

There is no doubt that these measures will require a reexamination of statutes, policies, and directives. But 9/11 has forced many such reexaminations. Moreover, the redirection envisioned here need not automatically alter the traditional relationship between America and its military concerning matters of domestic law enforcement. It will, however, automatically and exponentially emphasize a message of deterrence along our borders and bolster the means of defending those borders should deterrence fail.


Conclusion

Border security isn't what it used to be. Over the last three decades our concerns have steadily escalated from what was once as much a humanitarian issue as a security issue, to concerns over paramilitary violence, organized crime, and international terrorism. The requirements to meet these concerns have likewise increased, to the point that anything less than an interagency and intergovernmental response will inevitably leave the nation's citizenry vulnerable to a new and expanding series of threats.

One would like to think that the new era of threats to the country's borders and its people is a temporary condition and that the nation could soon settle back to a less demanding posture of readiness. Unfortunately, reality does not accommodate those wishes. The "long war" our leadership forecasts for the nation and our allies cannot be expected to remain "over there." Mr. Craig Duehring, principal deputy assistant secretary of defense for reserve affairs, framed the current state of affairs succinctly and with candor: "The nature of the mission has changed because of the Global War on Terrorism. The potential danger to our country has increased dramatically. It's not just a story of people looking for a better way of life. It is, in fact, a great potential for increased damage to our country, threats to our citizens, to our way of life. That's something that needs to be addressed. We took the border mission for granted for too many years, and that's no longer going to be the case".81

The new threat portends a new challenge for the military, both active and reserve components, from the United States Northern Command through to the individual states' National Guard. It will compel the military to revisit its thinking, motivation, and ethos in addressing this particular "law enforcement" requirement. The National Guard is by far the best tool to apply to the problem, but to do so must itself be re-tooled - principally in terms of numbers, but likewise in its predilection to take on a mission that normally resides outside of its traditional "lane." This should not imply, however, that the Guard should be the only military component focused on the problem. As the issue of security along the nation's borders climbs to concerns over protection against terrorism, assets and components of the active duty force, under the direction of the NORTHCOM, must be folded into the process - first in terms of planning, and then, as necessary, in execution of those plans alongside their counterparts in the Guard. This coordination in planning and execution will be essential, as the National Guard will provide the foundation from which to launch a graduated response, if and when required.

Inevitably, a national strategy, emanating from the same impetus that launched Homeland Security Presidential Directives on maritime and aviation security82 will be required for the land component of the nation's border protection. Reason and tradition dictate that the Department of Homeland Security takes the lead on the development of this strategy, with the Department of Defense heavily in support. When DoD's supporting role is portrayed, it should be as a reflection of an operational concept drawn up in cooperation and coordination between NORTHCOM and the National Guard Bureau. This strategy will require our government to decide from the depth and breadth of its capabilities which entities are best postured, best equipped, and best trained to meet the trials that lay ahead. Once those means are selected, however, they must come with an accompanying commitment from our government to ensure that they are sustainable. That sustainability must be measured in terms of equipment, in terms of technology and, above all, in terms of manpower.

Bert Tussing joined the Center for Strategic Leadership of the U.S. Army War College in October of 1999. His focus areas include homeland defense, terrorism, and Congress and military policy. In 2004, at the invitation of the assistant secretary of defense for Homeland Defense, he served on a senior advisory group to examine the development of a comprehensive strategy for DoD's role in homeland security. He is a senior fellow to George Washington University's Homeland Security Policy Institute; a senior fellow and adjunct faculty member of Long Island University's Homeland Security Management Institute; and on the Board of Experts of the University of California-Irvine's Center for Unconventional Security Affairs. In July 2005 he was appointed the Center for Strategic Leadership's director of homeland defense and security issues. Professor Tussing graduated with honors from The Citadel in 1975 and was commissioned a second lieutenant in the United States Marine Corps, where he served for twenty-four years. He holds master's degrees in national security and strategic studies (from the United States Naval War College) and strategic studies (from the United States Army War College). Mr. Tussing may be contacted at bert.tussing@us.army.mil.


End notes

1. U.S. Customs and Border Protection, Protecting America: U.S. Customs and Border Protection 20052010 Strategic Plan (Washington, DC: 2005), 3.

2. The United States Commission on National Security/21st Century, Phase III Report, Roadmap for National Security: Imperative for Change, February 15, 2001, 32-33, http://www.au.af.mil/au/awc/awcgate/nssg/phaseIIIfr.pdf.

3. Department of Homeland Security, "Homeland Security Secretary Michael Chertoff Announces Six-Point Agenda for Department of Homeland Security," July 13, 2005, http://www.dhs.gov/xnews/releases/press_release_0703.shtm.

4. Department of Homeland Security, "Secretary Michael Chertoff U.S. Department of Homeland Security Second Stage Review Remarks," July 13, 2005, http://www.dhs.gov/xnews/speeches/speech_0255.shtm.

5. U.S. Customs and Border Protection, Office of Field Operations, Securing America's Borders at Ports of Entry: Strategic Plan FY 2007-2011 (Washington, DC: 2006), 2.

6. Ibid., "Message from the Commissioner."

7. United States House of Representatives Committee on Homeland Security, A Line in the Sand: Confronting the Threat at the Southwest Border (Washington, DC: 2006), 2.

8. "Special interest countries" are those designated by the intelligence community as countries that could export individuals seeking to bring harm to our country in the way of terrorism.

9. Christopher Sands, "Canada and the war on terrorism: The U.S. challenge on the North American front," Canada Focus 2, no.3 (October 2001), http://www.csis.org/component/option,com_csis_pubs/task,view/id,902/.

10. Deborah Waller Meyers, U.S. Border Enforcement: From Horseback to High-Tech, Migration Policy Institute Insight, no. 7 (November 2005).

11. Fred Burton, "U.S. Border Security: Looking North," STRATFOR.com, http://www.nixatron.com/StratT-bordernorth.htm.

12. T.S. Hataley, "Catastrophic Terrorism at the Border: The Case of the Canada-United States Border," Homeland Security Affairs, Supplement No. 1 (2007), 4, www.hsaj.org.

13. Committee on Homeland Security, A Line in the Sand, 2.

14. National Guard Bureau, Operation Jump Start Fact Sheet (Washington, DC:2006), http://www.ngb.army.mil/features/southwestborder/files/OJS_Fact_Sheet29Sept.doc.

15. House Armed Services Committee, National Guard and Border Security: Testimony of David V. Aguilar, Chief, Office of Border Patrol, U.S. Customs and Border Protection, Department of Homeland Security, 109th Cong., Sess. 2, May 24, 2006, 4.

16. Authors interview with Mr. David Lively, National Guard Bureau, August 29, 2008.

17. National Guard Bureau, Operation Jump Start Fact Sheet.

18. Testimony of David Aguilar, 3.

19. Ibid.

20. U.S. Customs and Border Protection Fact Sheet, Operation Jump Start, http://www.asisonline.org/newsroom/051506operationjumpstart.pdf.

21. The Act actually only prohibits the Army and, by extension, the Air Force that grew from it. It has been subsequently applied to the Navy and Marine Corps by policy and legislative supplement. There have been, nevertheless, both legislative and executive measures which have provided for rare exceptions in the military's direct support to law enforcement entities. For a complete discussion of the Act and its implications, see Charles Doyle, The Posse Comitatus Act & Related Matters: the Use of Military to Execute Civilian Law, Congressional Research Service Report 95-964.

22. For an expanded explanation of Titles 10, 32, and State Active Duty statuses of the National Guard, see Timothy J. Lowenberg, The Role of the National Guard in National Defense and Homeland Security, Vol. 2006 (Washington, DC: National Guard Association of the United States, 2005), 2-3, http://www.ngaus.org/ngaus/files/ccLibraryFiles/Filename/000000000457/primer%20fin.pdf.

23. The first Quartering Act (May 1765) provided that Great Britain could house its soldiers "in inns, livery stables, ale houses, victualling houses, and the houses of sellers of wine and houses of persons selling rum, brandy, strong water, cider or metheglin," and if numbers required in "uninhabited houses, outhouses, barns, or other buildings." It further required any inhabitants (or in their absence, public officials) to provide food and alcohol for the soldiers "without paying any thing for the same." A second Quartering Act (June 1774) was designed to restore imperial control over the American colonies. This became part of what the colonists would refer to as the Intolerable Acts. See David Ackerman's "The Tea Crisis and its Consequences through 1775," in Jack P. Greene and J.R. Pole, eds., The Blackwell Encyclopedia of the American Revolution (Malden, Massachusetts: Blackwell, 1999).

24. The current and immediate past Chairman of the Joint Chiefs of Staff served in Vietnam (or off the coast thereof). So, too, did the Vice Chairmen and the Chiefs of Naval Operations. The current Chief of Staff of the Army, Chief of Staff of the Air Force, and Commandant of the Marine Corps are not Vietnam veterans, but each of their predecessors was.

25. See, for instance, DoDD 5143.01, Under Secretary of Defense for Intelligence; DoDD 5148.11, Assistant to the Secretary of Defense for Intelligence Oversight; and DoDD 5240.01, Department of Defense Intelligence Activities. The department's attitude is clearly displayed in the latter, leading its Policy section with the declaration: "All DoD intelligence and CI activities shall be carried out pursuant to the authorities and restrictions of the U.S. Constitution, applicable law, Reference (c) [Executive Order 12333, United States Intelligence Activities, and Executive Order 13355, Strengthened Management of the Intelligence Community], the policies and procedures authorized herein, and other relevant DoD policies authorized by Reference (b)[DoDD 5143.01, Under Secretary of Defense for Intelligence]. Special emphasis shall be given to the protection of the constitutional rights and privacy of U.S. persons."(emphasis added)

26. Testimony of David Aguilar, 2.

27. Timothy J. Dunn, The Militarization of the U.S.-Mexico Border 1978-1992: Low Intensity Conflict Doctrine Comes Home (Austin, TX: Center for Mexican American Studies, University of Texas at Austin, 1996), 25.

28. Meyers, U.S. Border Enforcement: From Horseback to High-Tech, 4.

29. Dunn, The Militarization of the U.S.-Mexico Border 1978-1992, 153-154.

30. National Defense Authorization Act of 1991, Public Law 101-510, Section 1004.

31. For further information surrounding these recommendations, see the Report of Chairman Lamar Smith to the Subcommittee on Immigration and Claims of the Committee on the Judiciary of the House of Representatives, titled Oversight Investigation of the Death of Esequiel Hernandez, Jr., 105th Cong., Sess. 2, November 1998.

32. Robert Suro, "Report: U.S. 'Failures' Led to Border Death," Washington Post, November 13, 1998. 33 Joint Task Force North, , http://www.jtfn.northcom.mil

33. Joint Task Force North, http://www.jtfn.northcom.mil.

34. Stephen R. Viña, Border Security and Military Support: Legal Authorizations and Restrictions, RS22443 (Washington, DC: Library of Congress, 2006), 5.

35. The White House, The National Strategy for Maritime Security (Washington, DC: 2005) http://www.whitehouse.gov/homeland/maritime-security.html; and The National Strategy for Aviation Security (Washington, DC: 2007) http://www.whitehouse.gov/homeland/aviation-security.html.

36. United States Northern Command website, http://www.northcom.mil.

37. Scott Shepherd and Steve Bowman, Homeland Security: Establishment and Implementation of the United States Northern Command, RS21322 (Washington, DC: Library of Congress, 2005), 1.

38. Strategy for Homeland Defense and Civil Support (Washington, DC: U.S. Department of Defense, June 2005), 5, http://www.fas.org/irp/agency/dod/homeland.pdf.

39. U.S. Department of Defense, DoD Cooperation with Civilian Law Enforcement Officials, DoD Directive 5525.5 (1989).

40. The Office of the Assistant Secretary of Defense for Homeland Defense, established under the authority of the Bob Stump National Defense Authorization Act of 2003, signed by the President on December 2, 2002.

41. Canada's Special Senate Committee on Security and Intelligence, The Report of the Special Committee on Security and Intelligence (Ottawa:1999).

42. Canadian Security Intelligence Service, Public Report 2004-2005, (Ottawa:2006), 2. http://www.csis-scrs.gc.ca/en//publications/annual_report/2004/report2004_e.pdf.

43. Ramón J. Miró and Glen E. Curtis, Organized Crime and Terrorist Activity in Mexico, 1999-2002 (Washington, DC: Library of Congress, 2003), 43. http://www.loc.gov/rr/frd/pdffiles/OrgCrime_Mexico.pdf.

44. Chris Kraul and Sebastian Rotella, "Hezbollah presence in Venezuela feared," Los Angeles Times, August 28, 2008.

45. Ibid.

46. Committee on Homeland Security, A Line in theSand, 3.

47. Ibid., 4.

48. Ibid., 13.

49. House Judiciary Committee Joint Hearing before the subcommittee on Border Security, Immigration and Claims and the Subcommittee on Crime, Terrorism and Homeland Security, Outgunned and Outmanned: Local Law Enforcement Confronts Violence Along the Southern Border, 109th Cong., Sess. 2, March 2, 2006, www.hsdl.org/homesec/docs/legis/nps03-05240610.pdf&code=d2664b6364f601e7446d60362694349c.

50. Jerry Seper, "Mexico arrests suspect in U.S. agent's death," Washington Times, January 24, 2008.

51. "Mexico, U.S.: Threats of Cross-Border Cartel Killings," Stratfor Today, 26 August 2008. www.stratfor.com/analysis/mexico_u_s_threats_cross_border_cartel_killings_0.

52. GEN Barry R. McCaffrey and MAJ J.A.Basso, "Narcotics, Terrorism and International Crime: The Convergence Phenomenon," in R.D. Howard and R.L. Sawyer, eds., Terrorism and Counterterrorism: Understanding the New Security Environment (Dubuque, IA: McGraw-Hill /Contemporary Learning Series: 2003), 323.

53. Sarah A. Carter, "Terrorist target Army base in Arizona," Washington Times, November 26, 2007. http://www.washingtontimes.com/article/20071126/NATION/111260034/1002.

54. Ibid.

55. U.S. Department of Homeland Security, Protecting America: U.S. Customs and Border Protection, 2005-2010 Strategic Plan (Washington, DC: 2005), 24.

56. Jill R. Aitoro, "Border security dominates DHS technology budget request," Government Executive, February 5, 2008, http://www.govexec.com/story_page_pf.cfm?articleid+39224.

57. Fact sheets on Operation Jump Start from Custom and Border Protection and the National Guard both list numbers of "Alien rescues" among their significant accomplishments.

58. Meyers, U.S. Border Enforcement: From Horseback to High-Tech, 22.

59. U.S. Department of Defense, Strategy for Homeland Defense and Civil Support.

60. Office of the Governor of Arizona, News Release, "Governor, Legislators, Visit Border Communities to see effects of Operation Strong Border, Secure Arizona," November 2, 2005, http://www.governor.state.az.us/press/2005/0511/NR~110205~Bordervisit.pdf.

61. Operation Winter Freeze was a designated National Special Security Event (NSSE) conducted by the Department of Defense in support of Border Patrol operations in its Swanton sector, encompassing 295 miles of continuous border between Canada and New York, New Hampshire, and Vermont. The sector had become notorious as the area with the largest number of Special Interest Aliens intercepted in the entire country. Conducted from 30 October 2004 to 26 January 2005, the operation was initiated in partial response to the terrorist attacks in Barcelona prior to their national elections and current intelligence data that highlighted the timeline between the presidential election of 2004 and Inauguration Day 2005 as a period of vital concern. Both active duty and reserve component assets were utilized in support of the event, but by far the greater percentage of support came from the National Guard. Ninety-three percent of the Task Force was Guard, hailing from twenty-one different states.

62. These IRT initiatives include Joint/multi-Service horizontal and vertical engineering projects in support of U.S. Border Patrol southwest border infrastructure objectives. Units and individuals are sourced through U.S. NORTHCOM's Joint Task Force -North. Training evolutions are scheduled and coordinated by National Guard-led IRT Task Forces. See Office of the Assistant Secretary of Defense for Reserve Affairs website, http://www.defenselink.mil/ra/html/irt.html.

63. Author's interview with Mr. Lively, August 29, 2008.

64. Katherine McIntire Peters, "Homeland Security seeks to bolster management, border security," Government Executive, February 4, 2008, http://www.govexec.com/story_page_pf.cfm?articleid=39217.

65. In addition, and unlike the National Guard's Weapons of Mass Destruction Civil Support Teams (WMDCST), CBIRF can also deploy overseas in support of the Unified Commands.

66. USMC Chemical Biological Incident Response Force, http://www.mnfwest.usmc.mil/public/iimefpublic.nsf/UnitSites/cbirf.

67. U.S. Northern Command, Joint Task Force Civil Support, http://www.jtfcs.northcom.mil.

68. U.S. Northern Command, Joint Task Force North, http://www.jtfn.northcom.mil/subpages/mission.html.

69. Lieutenant Colonel William J. Barnett, (Operations Officer, Joint Task Force North), telephone interview with the author, February 8, 2008.

70. Ibid.

71. U.S. Northern Command, "Standing Joint Force Headquarters North," http://www.northcom.mil/About/index.html.

72. 32 U.S.C.§905. Cited in Viña, Border Security and Military Support, 6.

73. Timothy J. Lowenberg, The Role of the National Guard in National Defense and Homeland Security,4

74. Viña, Border Security and Military Support, 5-6

75. House Armed Services Committee, Testimony of LTG H. Steven Blum, Chief, National Guard Bureau: National Guard and Border Security, 109th Cong., Sess. 2, May 24, 2006, 3

76. Peter Baker, "Bush Set to Sent Guards to Border," Washington Post, May 15, 2006.

77. Roger Allen Brown, Sizing the National Guard in the Post-Cold War Era, (Santa Monica, CA: Rand Institute, 1995), http://www.rand.org/pubs/research_briefs/RB7506/index1.html and Michael Waterhouse and JoAnne OBryant, National Guard Personnel and Deployments: Fact Sheet, RS22451 (Washington, DC: Library of Congress, 2007), 2.

78. Christine E. Wormuth, et al., The Future of the National Guard and Reserves: the Beyond Goldwater-Nichols Phase III Report, (Washington, DC: The Center for Strategic and International Studies, 2006), 32.

79. Frederick A. Peterson III and John E. Stone II, "Results and Implications of the Minuteman Project: A Field Report submitted to The Congressional Immigration Reform Caucus, (Washington, DC: Government Printing Office, 2005), 4.

80. John E. Stone, "Operation Jump Start: Failure by Design," (Washington, DC:, U.S. Freedom Foundation, 2007), http://www,humanevents.com/article.php?print=yes&id=21993.

81. Craig Duehring, Principal Deputy Assistant Secretary of Defense for Reserve Affairs, quoted in Sgt Jim Greenhill's National Guard Bureau Press Release, "Operation Jump Start a success, officials say," December 11, 2006, http://www.ngb.army.mil/news/archives/2006/12/121106-OJS_success.aspx.

82. See HSPD-13, Maritime Security Policy, and HSPD-16, Aviation Strategy, both available at http://www.dhs.gov/xabout/laws/editorial_0607.shtm.


Note: This article was originally published in the October 2008 edition of Homeland Security Affairs.


Border Security and Military Support: Legal Authorizations and Restrictions

Stephen R. Viña

Reprinted with permission from CRS Report for Congress.


Summary

The military generally provides support to law enforcement and immigration authorities along the southern border. Reported escalations in criminal activity and illegal immigration, however, have prompted some lawmakers to reevaluate the extent and type of military support that occurs in the border region. On May 15, 2006, President Bush announced that up to 6,000 National Guard troops would be sent to the border to support the Border Patrol. Addressing domestic laws and activities with the military, however, might run afoul of the Posse Comitatus Act, which prohibits use of the armed forces to perform the tasks of civilian law enforcement unless explicitly authorized. There are alternative legal authorities for deploying the National Guard, and the precise scope of permitted activities and funds may vary with the authority exercised. This report will be updated as warranted.


Background

The Secretary of the Department of Homeland Security (DHS) is charged with preventing the entry of terrorists, securing the borders, and carrying out immigration enforcement functions. The Department of Defense's (DOD) role in the execution of this responsibility is to provide support to DHS and other federal, state and local (and in some cases foreign) law enforcement agencies, when requested. Since the 1980s, the DOD (and National Guard), as authorized by Congress, has conducted a wide variety of counterdrug support missions along the borders of the United States. After the attacks of September 11, 2001, military support was expanded to include counterterrorism activities. Although the DOD does not have the "assigned responsibility to stop terrorists from coming across our borders,"1 its support role in counterdrug and counterterrorism efforts appears to have increased the Department's profile in border security.

Some states, particularly those along the southern border that are experiencing reported escalations in crime and illegal immigration, are welcoming the increased military role and have taken steps to procure additional military resources. Governor Janet Napolitano of Arizona, for example, sent the DOD a request for federal funding to support the state's deployment of National Guard troops to the border after reportedly exhausting available state resources for combating illegal immigration and drug trafficking.2 Others view the increased presence of military support along the borders as undiplomatic, potentially dangerous,3 and a further strain on already overextended military resources.4 Nonetheless, the concerns over aliens and smugglers exploiting the porous southern border continue to grow, and some now argue that the military should play a much larger and more direct role in border security.

On May 15, 2006, President Bush announced that up to 6,000 National Guard troops would be sent to the southern border to support the Border Patrol. According to the President, the Guard will assist the Border Patrol by operating surveillance systems, analyzing intelligence, installing fences and vehicle barriers, building roads, and providing training.5 Guard units will not be involved in direct law-enforcement activities and will be under the control of the Governors.6 The Administration has indicated that the vast majority of the force at the border would be drawn from Guardsmen performing their regularly scheduled, two- or three-week, annual training, pursuant to Title 32 of the U.S. Code (see later discussion).7 In Congress, the Senate passed an amendment (S.Amdt. 4076) to the Comprehensive Immigration Reform Act of 2006 (S. 2611) that would allow the Governor of a state, with the approval of the Secretary of Defense, to order units of the National Guard of such state to perform specified activities (e.g., reconnaissance, training, construction) during annual training duty along the southern land border for border security purposes. Section 1026 of the House-passed Defense Authorization Act for FY2007 (H.R. 5122) would allow the Secretary of Defense, upon a request of the Secretary of DHS, to assign members of the armed forces to assist DHS officials in preventing the entry of terrorists, drug traffickers, and illegal aliens.8


Military Assistance along the Border

The military does not appear to have a direct legislative mandate to protect or patrol the border or to engage in immigration enforcement. Indeed, direct military involvement in law enforcement activities without proper statutory authorization might run afoul of the Posse Comitatus Act.9 The military does have, however, general legislative authority that allows it to provide support to federal, state, and local law enforcement agencies (LEA) in counterdrug and counterterrorism efforts, which might indirectly provide border security and immigration control assistance. Military personnel for these operations are drawn from the active and reserve forces of the military and from the National Guard.


Restrictions

The primary restriction on military participation in civilian law enforcement activities is the Posse Comitatus Act (PCA).10 The PCA prohibits the use of the Army and Air Force to execute the domestic laws of the United States except where expressly authorized by the Constitution or Congress. The PCA has been further applied to the Navy and Marine Corps by legislative and administrative supplements. For example, 10 U.S.C. §375, directs the Secretary of Defense to promulgate regulations forbidding the direct participation "by a member of the Army, Navy, Air Force, or Marines in a search, seizure, arrest, or other similar activity" during support activities to civilian law enforcement agencies. DOD issued Directive 5525.5, which outlines its policies and procedures for supporting federal, state, and local LEAs. According to the Directive, the following forms of direct assistance are prohibited: (1) interdiction of a vehicle, vessel, aircraft, or other similar activity; (2) a search or seizure; (3) an arrest, apprehension, stop and frisk, or similar activity; and (4) use of military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators. It is generally accepted that the PCA does not apply to the actions of the National Guard when not in federal service.11 As a matter of policy, however, National Guard regulations stipulate that its personnel are not, except for exigent circumstances or as otherwise authorized, to directly participate in the arrest of suspects, conduct searches of suspects or the general public, or become involved in the chain of custody for any evidence.12


Authorizations

The PCA does not apply "in cases and under circumstances expressly authorized by the Constitution." Under the Constitution, Congress is empowered to call forth the militia to execute the laws of the Union.13 The Constitution, however, contains no provision expressly authorizing the President to use the military to execute the law. The question of whether the constitutional exception includes instances where the President is acting under implied or inherent constitutional powers is one the courts have yet to answer. DOD regulations, nonetheless, do assert two constitutionally based exceptions - sudden emergencies and protection of federal property.14 The PCA also does not apply where Congress has expressly authorized use of the military to execute the law. Congress has done so in three ways: by giving a branch of the armed forces civilian law enforcement authority (e.g., the Coast Guard), by addressing certain circumstances with more narrowly crafted legislation,15 and by establishing general rules for certain types of assistance.

The military indirectly supports border security and immigration control efforts under general legislation that authorizes the armed forces to support federal, state, and local LEAs. Since the early 1980s, Congress has periodically authorized an expanded role for the military in providing support to LEAs. Basic authority for most DOD assistance was originally passed in 1981 and is contained in Chapter 18 of Title 10 of the U.S. Code - Military Support for Civilian Law Enforcement Agencies. Under Chapter 18 of Title 10, Congress authorizes DOD to share information (§371); loan equipment and facilities (372); provide expert advice and training (§373); and maintain and operate equipment (§374). For federal LEAs, DOD personnel may be made available, under §374, to maintain and operate equipment in conjunction with counterterrorism operations (including the rendition of a suspected terrorist from a foreign country) or the enforcement of counterdrug laws, immigration laws, and customs requirements. For any civilian LEA, §374 allows DOD personnel to maintain and operate equipment for a variety of purposes, including aerial reconnaissance and the detection, monitoring, and communication of air and sea traffic, and of surface traffic outside the United States or within 25 miles of U.S. borders, if first detected outside the border. Congress placed several stipulations on Chapter 18 assistance, e.g., LEAs must reimburse DOD for the support it provides unless the support "is provided in the normal course of military training or operations" or if it "results in a benefit...substantially equivalent to that which would otherwise be obtained from military operations or training."16 Pursuant to §376, DOD can only provide such assistance if it does not adversely affect "the military preparedness of the United States." Congress incorporated posse comitatus restrictions into Chapter 18 activities in §375.

In 1989, Congress began to expand the military's support role. For example, Congress directed DOD, to the maximum extent practicable, to conduct military training exercises in drug-interdiction areas, and made the DOD the lead federal agency for the detection and monitoring of aerial and maritime transit of illegal drugs into the United States.17 Congress later provided additional authorities for military support to LEAs specifically for counterdrug purposes in the National Defense Authorization Act for FY1991.18 Section 1004 authorized DOD to extend support in several areas to any federal, state, and local (and sometimes foreign) LEA requesting counterdrug assistance. This section has been extended regularly and is now in force through the end of FY2006.19

As amended, §1004 authorizes the military to: maintain, upgrade, and repair military equipment; transport federal, state, local, and foreign law enforcement personnel and equipment within or outside the U.S.; establish bases for operations or training; train law enforcement personnel in counterdrug activities; detect, monitor, and communicate movements of air, sea, and surface traffic outside the U.S., and within 25 miles of the border if the detection occurred outside the U.S.; construct roads, fences, and lighting along U.S. border; provide linguists and intelligence analysis services; conduct aerial and ground reconnaissance; and establish command, control, communication, and computer networks for improved integration of law enforcement, active military, and National Guard activities. Section 1004 incorporates the posse comitatus restrictions of Chapter 18.20 Unlike Chapter 18, however, this law does allow support which could affect military readiness in the short-term, provided the Secretary of Defense believes the support outweighs such short-term adverse effect.


The National Guard

The National Guard is a military force that is shared by the states and the federal government and often assists in counterdrug and counterrrorism efforts. After September 11, for example, President Bush deployed roughly 1,600 National Guard troops for six-months under Title 10 authority to support federal border officials and provide a heightened security presence.21 Under "Title 10 duty status," National Guard personnel operate under the control of the President, receive federal payand benefits, and are subject to the PCA.22 Typically, however, the National Guard operates under the control of state and territorial Governors. In "state active duty" National Guard personnel operate under the control of their Governor, are paid according to state law, can perform activities authorized by state law, and are not subject to the restrictions of the PCA.

Because border security is primarily a federal concern, states, such as Arizona, have looked to the federal government for funding to support some of their National Guard activities. Under Title 32 of the U.S. Code, National Guard personnel generally serve a federal purpose and receive federal pay and benefits, but command and control remains with the Governor. This type of service is commonly referred to as "Title 32 duty status," and examples are discussed below. The deployment of the 6,000 Guardsmen might be derived from one or more of the authorities listed below. However, because the National Guard are supposed to be performing their border activities during their annual training duty, authority may also stem from 32 U.S.C. §502(a) - the authority that allows the Secretary of the Army and Air Force to prescribe regulations for National Guard drill and training.


State Drug Plan

Federal funding may be provided to a state for the implementation of a drug interdiction program in accordance with 32 U.S.C. §112. Under this section, the Secretary of Defense may grant funding to the Governor of a state who submits a "drug interdiction and counterdrug activities plan" that satisfies certain statutory

However, it appears that the National Guard could be deployed by the President under 10 U.S.C. §§331-333 and §12406 to "execute the laws of the United States." requirements. The Secretary of Defense is charged with examining the sufficiency of the drug interdiction plan and determining whether the distribution of funds would be proper. While the emphasis is certainly on counterdrug efforts, a state plan might include some related border security and immigration-related functions that overlap with drug interdiction activities. Arizona's drug interdiction plan, for example, recognizes related border issues created by human smuggling and terrain vulnerabilities with respect to the illegal entry of aliens into the United States.23 By approving the State of Arizona's drug interdiction plan, the Secretary of Defense has enabled the Arizona National Guard to engage in some border security measures.


Other Duty

Section 502(f) of Title 32 has been used to expand the operational scope of the National Guard beyond its specified duties. This provision provides that "a member of the National Guard may...without his consent, but with the pay and allowances provided by law...be ordered to perform training or other duty" in addition to those they are already prescribed to perform (emphasis added). This is the provision of law which was used to provide federal pay and benefits to the National Guard personnel who provided security at many of the nation's airports after September 11, and who participated in Katrina and Rita-related disaster relief operations. States, such as Arizona, have argued that the "other duty" language should be liberally applied (like it was for Hurricane Katrina and Rita) to include activities associated with border security efforts.24 Some question, however, whether domestic operations, in general, are a proper use of this Title 32 authority.25


Homeland Defense Activity

In 2004, Congress passed another law that could arguably provide federal funding for National Guard personnel conducting border security operations under Title 32.26 Chapter 9 of Title 32 of the U.S. Code authorizes the Secretary of Defense to provide federal funding at his discretion to a state, under the authority of the Governor of that state, for the use of their National Guard forces if there is a "necessary and appropriate" "homeland defense activity."27 A "homeland defense activity" is statutorily defined as "an activity undertaken for the military protection of the territory or domestic population of the United States ... from a threat or aggression against the United States." Although a deployment of National Guard troops for border security purposes could arguably be an activity "undertaken for the military protection" of a "domestic population," it is unclear whether the porous nature of the border or illegal entry of aliens is the type of "threat" or "aggression" that would be "necessary and appropriate" for National Guard troops. The State of Arizona has requested federal funds for its National Guard under Chapter 9 for the performance of homeland defense-border security activities.


End notes

1. Dep't. of Defense, Strategy for Homeland Defense and Civil Support, at 5 (June 2005) available at [http://www.fas.org/irp/agency/dod/homeland.pdf].

2. See [http://azgovernor.gov/dms/upload/NR_030706%20Rumsfeld_Chertoff%20Letter.pdf].

3. In 1997, a Marine who was part of a four-man border observation team near Redford, Texas, shot and fatally wounded an 18-year old man after reportedly taking fire. See Oversight Investigation of the Death of Esequiel Hernandez, Jr., A Report of Chairman Lamar Smith to the Subcommittee on Immigration and Claims of the Committee on the Judiciary, 105th Cong. 2d Sess. (Nov. 1998).

4. Peter Baker, Bush Set to Send Guard to Border, THE WASHINGTON POST, May 15, 2006.

5. Stephen Dinan, Bush Calls for Guard on Border, THE WASHINGTON TIMES, May 16, 2006.

6. Id.

7. The White House, Press Briefing on the President's Immigration Reform Plan, May 16, 2006, available at [http://www.whitehouse.gov/news/releases/2006/05/20060516-2.html].

8. H.R. 1986, H.R. 3938, H.R. 3333, and H.R. 4437 would propose similar measures.

9. For a more complete discussion of the Posse Comitatus Act, see CRS Report 95-964, The Posse Comitatus Act & Related Matters: The Use of Military to Execute Civilian Law, by Charles Doyle.

10. 18 U.S.C. §1385.

11. See CRS Report 95-964, at 42 (citing numerous cases); see also DOD Directive 5525.5.

12. NGR 500-2/ANGI 10-801, National Guard Counterdrug Support, March 31, 2000.

13. U.S. Const. Art. I, §8, cl. 15. In addition, the PCA does not apply to actions furthering a military purpose. See CRS Report 95-964, at 31 (describing the exception).

14. 32 C.F.R. §215.4.

15. See, e.g., 10 U.S.C. §§ 331-333 (to suppress insurrections).

16. 10 U.S.C. §377.

17. National Defense Authorization Act for FY1990 and 1991, P.L. 101-189, Div. A, Tit. XII, §1202(a)(1), codified at 10 U.S.C. §124. A similar provision was first passed as part of the National Defense Authorization for FY1989 (P.L. 100-456), but was repealed by P.L. 101-189.

18. P.L. 101-510, Div. A, Tit. X, §1004, codified at 10 U.S.C. §374 note.

19. P.L. 107-107, Div. A, Tit. X, §1021 (extending §1004 through FY2006).

20. Id. at §1021(g).

21. Maj. Gen. Timothy J. Lowenberg, The Role of the National Guard in National Defense and Homeland Security, (Sept. 2005) available at [http://www.findarticles.com/p/articles/mi_qa3731/ is_200509/ai_n15638615/print] [hereinafter Lowenberg, The Role of the National Guard].

22. 10 U.S.C. §§12301-12304.

23. State of Arizona, Press Release, Title 32: Statutory Funding Options (Mar. 6, 2006) [http://azgovernor.gov/dms/upload/NR_030906_%20Border%20Veto%20Legal%20Support %20Letter.pdf].

24. Id.

25. Lowenberg, The Role of the National Guard.

26. Defense Authorization Act for Fiscal Year 2005, P.L. 108-375, Div. A, Tit. V, Subtitle B, §§901-908.

27. 32 U.S.C. §905.


Note: This article was originally published in the 23 May 2006 edition of CRS Report for Congress.


 

Defend the United States and Support Civil Authorities at Home

Reprinted with permission from Quadrennial Defense Review.

The first responsibility of any government and its defense establishment is to protect the lives and safety of its people. Because the United States benefits from favorable geography and continental size, direct attacks against the country itself have been rare throughout our history. However, events since the terrorist attacks of September 11, 2001, remind us that the rapid proliferation of destructive technologies, combined with potent ideologies of violent extremism, portends a future in which all governments will have to maintain a high level of vigilance against terrorist threats. Moreover, state adversaries are acquiring new means to strike targets at greater distances from their borders and with greater lethality. Finally, the United States must also be prepared to respond to the full range of potential natural disasters.

The experiences of the past several years have deepened the realization that state- and non-state adversaries alike may seek to attack military and civilian targets within the United States. Protecting the nation and its people from such threats requires close synchronization between civilian and military efforts. Although many efforts to protect the United States are led by other federal agencies, including the Department of Homeland Security (DHS), the role of the Department of Defense in defending the nation against direct attack and in providing support to civil authorities, potentially in response to a very significant or even catastrophic event, has steadily gained prominence.

When responding to an event within the United States, the Department of Defense (DoD) will almost always be in a supporting role. DoD can receive requests to provide federal assistance through two avenues: first, through DHS as the lead federal agency, or second, through a governor's request under U.S. Code Title 32 authorities.

To ensure that the Department of Defense is prepared to provide appropriate support to civil authorities, the QDR examined the sufficiency of the programmed force and sought to identify capability enhancements that were of highest priority for the future. Key initiatives resulting from this assessment include efforts to:

  • Field faster, more flexible consequence management response forces. The Department has gained important experience and learned valuable lessons from its efforts to field specialized consequence management response forces for chemical, biological, radiological, nuclear, and high-yield explosives events (CBRNE). Given the potential for surprise attacks within the United States, the Department will begin reorganizing these forces to enhance their lifesaving capabilities, maximize their flexibility, and reduce their response times. First, the Department will begin restructuring the original CBRNE Consequence Management Response Force (CCMRF), to increase its ability to respond more rapidly to an event here at home. To address the potential for multiple, simultaneous disasters, the second and third CCMRFs will be replaced with smaller units focused on providing command and control and communications capabilities for Title 10 follow-on forces. Complementing the evolution of the first CCMRF, the Department also will draw on existing National Guard forces to build a Homeland Response Force (HRF) in each of the ten Federal Emergency Management Agency (FEMA) regions. These ten HRFs will provide a regional response capability; focus on planning, training and exercising; and forge strong links between the federal level and state and local authorities.
  • Enhance capabilities for domain awareness. The Department of Defense and its interagency partners must be able to more comprehensively monitor the air, land, maritime, space, and cyber domains for potential direct threats to the United States. Such monitoring provides the U.S. homeland with an extended, layered in depth defense. This effort includes enhanced coordination with Canada for the defense of North America as well as assisting Mexico and Caribbean partners in developing air and maritime domain awareness capacities. Special attention is required to develop domain awareness tools for the Arctic approaches as well. In coordination with domestic and international partners, DoD will explore technologies that have the potential to detect, track, and identify threats in these spheres to ensure that capabilities can be deployed to counter them in a timely fashion. For example, the Department is working with DHS and the Defense Intelligence Agency (DIA) through a joint technology capability demonstration program to explore new technologies to assist in the detection of tunnels. This technology can support U.S. authorities conducting domestic missions and also help meet the needs of forces operating overseas.
  • Accelerate the development of standoff radiological/nuclear detection capabilities. DoD will improve its ability to detect radiological and nuclear material and weapons at a distance. Developing and fielding these sensors will make possible more effective wide area surveillance in the maritime and air approaches to the United States, and will help address the challenge of locating and securing nuclear weapons and materials during overseas contingencies.
  • Enhance domestic counter-IED capabilities. To better prepare the Department to support civil authorities seeking to counter potential threats from domestic improvised explosive devices (IEDs), DoD will assist civil authorities with counter-IED tactics, techniques, and procedures (TTPs) and capabilities developed in recent operations.

Note: This article was originally published in the Feb. 2010 edition of Quadrennial Defense Review.

 


 

Last Reviewed: May 18, 2012

 
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