The law: homeland security: the concept and the presidential coordination office--first assessment.

Author:Relyea, Harold C.

The September terrorist attacks on the World Trade Center and the Pentagon prompted the introduction of a new concept and a new presidential coordination office. Homeland security may be a substitute for the cold war-weary national security concept, devoid of the latter's intellectual development, but prone to the same use as a justification for the exercise of prerogative power in ways harmful to constitutional arrangements of government and guaranteed citizen rights. The presidential coordination office, mandated by a presidential order and directed by a White House assistant to the president, is seemingly beyond congressional accountability, including efforts to assess the efficiency and effectiveness of its operations. This is a first assessment.

Considering the Concept

Policy concepts, as many students of the so-called policy sciences well know, are often artistic phrases of momentary fashion, appearing briefly in popular parlance and then disappearing, perhaps overtaken by other concepts, developments, or events. Homeland security may prove to be one of these short-lived terms. Some regard it as being unpleasantly reminiscent of past, highly nationalistic invocations of the "fatherland" or the "motherland" by nations pursuing cultural or racial purity or seeking to expand their borders or political influence--as Hitler did in Austria with the Anschluss of 1938--to embrace their nationals in neighboring lands. Others may find it attractive as a new term to address an old concern, maintaining the security of the country, without resorting to the national security concept of the cold war era (see Relyea 1994, 41-61).

The concept of homeland security appears to be rooted in past efforts at civil defense. President George W. Bush acknowledged this relationship in his November 8, 2001, address on homeland security, saying that as part of the new concept, "We will ask state and local officials to create a new modern civil defense service, similar to local volunteer fire departments, to respond to local emergencies when the manpower of governments is stretched thin." (1) Acknowledged to be "as old as history," civil defense took shape as a programmatic concept in the aftermath of World War II, when "steady growth in the destructiveness of weapons, improvements in the means of their delivery, and the aggressive actions of a well-armed and hostile Communist bloc ... forced a re-evaluation of the security position of the United States" (Yoshpe 1981, 1).

Civil defense had its origins in World War I, when warring nations had developed the capability of using aircraft for direct attacks on targets behind the forces in the field. Non-combatant civilians manning the industries that supported mass armies came to be viewed as the "home front," and therefore a proper target for enemy attack ... For the U.S., World War I posed no real threat of air attack; and civil defense could hardly be said to have existed during that war. (Ibid., 56-57) By the time war commenced again in Europe in September 1939, aircraft and aerial bombs had undergone significant development, and the idea of using such weapons to attack populations and production centers in the prosecution of war had received elaboration and notoriety at the hands of the Italian theorist, Guilio Douhet ([1921] 1943). However, at the time of America's entry into world war in 1941, little civil defense preparation had occurred: "no significant research had been done on sheltering, warning devices, blackout and camouflage, control centers, and other tactics in defense against enemy weapons" (Yoshpe 1981, 59). An Office of Civilian Defense had been created in May 1941, but it was in almost continuous administrative disarray and was dismantled before the close of the war, making it evident that "the Administration did not then consider civil defense as part of the permanent national security structure" (Ibid., 75).

As World War II was drawing to a close, several factors contributed to the realization that civil defense should have a place in planning for future conflicts. Among these were the growing range of aircraft, the introduction of the V-2 rocket, heavier and more powerful ordinance, and the development of the atomic bomb. Sensitivity to, and thinking about, these developments were enhanced by the studies and findings of the U.S. Strategic Bombing Survey, inaugurated by the Secretary of War in November 1944 to examine, among other considerations, the extent of civil defense preparations in Great Britain, Germany, and Japan and the success of these preparations under conditions of attack. In July 1945, the Office of the Chief of Staff of the Army approved the initiation of planning for postwar civil defense by the Department of War. Thereafter, several assessments of civil defense planning and preparation were undertaken by the Office of the Provost Marshal General, the Civil Defense Board, and the Office of Civil Defense Planning. This last entity, created in March 1948, prepared and issued, seven months later, Civil Defense for National Security, the foundation document for the subsequent civil defense program of the cold war era. Within the developing concept of national security, civil defense was characterized by the report as

the mobilization, organization and direction of the civilian populace and necessary supporting agencies to minimize the effects of enemy action directed against people, communities, industrial plants, facilities and other installations--and to maintain or restore those facilities essential to civilian life and to preserve the maximum civilian support of the war effort. (U.S. National Military Establishment 1948, 1) The Truman and Eisenhower administrations developed and maintained active and rather thorough civil defense programs, but some decline in these efforts occurred during the Kennedy administration, and the "deterioration of the U.S. civil defense posture that set in about the mid-sixties continued through the seventies." For the decade thereafter, civil defense preparedness remained "at a relatively low level" due to "the failure of Presidents, Democratic and Republican alike, to provide the necessary leadership, and of Congress to supply the funds, to ensure the proper place for civil defense in the national security structure" (Yoshpe 1981,399, 509). With the collapse of the Soviet Union and the end of the cold war, civil defense, as a program and as a concept, became a relic.

Homeland security seemingly embraces not only civil defense, but also several other considerations. Its origins, by one account, may be traced to a panel of experts who, having reviewed potential biological weapons, "reported to the Secretary of Defense the need for `home defense, involving collaborative efforts of federal, state and private agencies'" (McIntyre 2001). Almost fifty years later, some national study commissions examined, and made recommendations for improving, the defense of the homeland, and it

soon became clear that the term "Homeland Defense"--conceived initially as actions by the Department of Defense--was not broad enough to capture all the actions required by a variety of government and private actors at multiple levels. Gradually, Homeland Security came to define that broader set of actions and initiatives. (Ibid.) (2) In the aftermath of the September 11 terrorist attacks, the homeland security concept began to take shape. An agency, a presidential council, and a series of presidential directives were established in its name, indicating at least that it was a distinct, although in these cases an undefined, concept. To realize homeland security, past cold war-era barriers between foreign intelligence and domestic law enforcement were virtually abandoned in the USA Patriot Act (115 Stat. 272). (3) Also, for purposes of maintaining homeland security, a few traditional administration of justice practices have been modified, including the authorized use of military tribunals to adjudicate criminal cases in which noncitizens have been charged; allowing authorities to listen in on the conversations of lawyers and their clients in federal custody, including those who have been detained but not charged with any crime; and anonymous detentions for immigration violations or under a material witness warrant. Information has been removed from government Web sites for reasons of homeland security. University administrators are concerned that law enforcement agencies are seeking access to the records of foreign students without obtaining a court order, and some businesses have also been confronted by federal agents seeking immediate access to their files but having no subpoena, court order, or search warrant. (4) Senior military authorities reportedly favor the establishment of a command to manage and coordinate armed forces deployed for homeland security within the United States, and a military draft to create a homeland security guard has been recommended. (5) Finally, it may be anticipated that some reorganization of the federal executive branch may occur relative to the homeland security concept. A Department of Homeland Security has already been proposed.

The Presidential Coordination Office

In his September 20, 2001, address to a joint session of Congress, President Bush announced that as part of his response to the September 11 terrorist attacks, he was creating an Office of Homeland Security (OHS). According to the president's initial description of the new entity, it was to be located within the White House Office and would be headed by a director who would have Cabinet rank and would report directly to the president. Pennsylvania Governor Tom Ridge, a decorated Vietnam war veteran and former member of the House of Representatives, was named as the president's choice to direct OHS. His mission and that of his office would be, in the president's words, to "lead, oversee, and coordinate a comprehensive national strategy to...

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