The Normalization of Homeland Security After September 11: The Role of the Military in Counterterrorism Preparedness and Response

• Author: William C. Banks
• Position: Laura J. and L. Douglas Meredith Professor, Syracuse University College of Law
• Pages: 735-778

Page 735

Laura J. and L. Douglas Meredith Professor, Syracuse University College of Law, Professor of Public Administration, Maxwell School of Citizenship and Public Affairs, Syracuse University.

Imagine that accomplices of the hijackers that commandeered the airliners that struck the World Trade Center and the Pentagon and crashed in rural Pennsylvania on September 11, 2001, had the variola virus that causes smallpox and aerosol devices designed to disperse smallpox. Once the crashes occurred, the accomplices would have waited for the cover of nighttime and then covertly dispersed the smallpox virus in densely populated areas in New York City and Washington, D.C. As horrific as September 11 was, it could have been much worse. If the terrorists had carried out an attack with a biological agent as an aftermath to the hijackings,¹ designed to kill silently while attention is focused on the immediate trauma, our nation's public health and emergency management infrastructure could have been brought to its knees.

Smallpox is an acute, infectious, disfiguring, highly contagious disease that can cause slow and painful death in humans. Symptoms, usually flu-like, may not appear for ten or more days.² Exposure is hard to avoid for anyone near the virus, particularly because the variola virus is so easily airborne. There is no effective medical treatment for smallpox, and the fatality rate is approximately thirty percent.³ Because the disease was eradicated worldwide by 1977, the United States ended its mandatory vaccination program.⁴ Due to aging populations and the waning effectiveness of old vaccinations, virtually everyone is susceptible to the disease.

Although about 200,000 people would be infected in each of the two primary exposure areas, the first five percent of affected individuals would not show symptoms for seven days, and the average case would not appear for nearly two weeks.⁵ Because most Page 736 physicians have never seen a smallpox case, early analysis would likely have been unable to determine the cause of illness. Although the smallpox vaccine can prevent the onset of the disease if given within three days of exposure,⁶ most potential victims would lose the window of opportunity before the outbreak would be confirmed. Two weeks after the attacks, public health officials in New York City and Washington, D.C. would report thousands of dead and dying people and tens of thousands of hospitalizations due to an outbreak of unknown origins.

Hundreds of thousands more may have been exposed to the agent as those exposed originally went about their daily lives. The area of contamination and exposure would be unclear, especially since travelers would have been moving to and from those cities into untargeted areas. As contamination spreads, hospitals in other areas would recognize sharp increases in patient load, including some emergency personnel exposed in the initial responses. The sheer numbers of sick people would quickly overload the resources in many local areas. Growing awareness would also bring media attention to the incident, which could create panic and make containment increasingly difficult.

As federal agencies become involved with the local, state, and non-governmental agencies, interagency relationships would become strained due to the number of organizations involved, as well as the ambiguity over command, control, and communications. The unprecedented strain would complicate the interagency relationships and could affect the flow of critical information to and from first- responders.

Panic from the growing health crisis, limited response personnel, and problems in coordinating emergency responses could result in failures of the local infrastructure. Public transportation, telephone and radio communications could break down, and road and air transportation would quickly become overloaded. Fear that water and food supplies could be contaminated may also cause strains on supplies. Public health agencies in the affected areas would be overwhelmed by the surge in the illness, and resources would not be adequate to isolate all of those who are sick. Civilian personnel-;including law enforcement personnel-;would begin to abandon their tasks, as they fear contamination and are looking to escape the area with their families. Despite their insufficient resources, the Governor of New York and the Mayors of New York City and Washington, D.C. would be pressured to consider state, city, and district-wide orders of quarantine, and to forbid all unauthorized traffic in or out of the areas.

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Law enforcement agencies would be overwhelmed by the demands of maintaining order, making it easier for others allied with the hijackers to slip undetected into mass transit, government buildings, and other commercial public places, where they could spread additional contagion with aerosolized smallpox spray. Because it is relatively easy to make quantities of variola once the virus is obtained, terrorists intent on disabling our government could strike again and again, in new urban areas on successive days.⁷ New cycles of outbreak and ensuing panic could continue indefinitely.

This scenario and others like it are no longer considered the products of overfed imaginations. The specter of mass casualty terrorist attacks on the homeland is now all too real, as is the prospect that uniformed military may be deployed in our cities. In 1999, one study of the threat of terrorism posed by weapons of mass destruction (WMD)⁸ concluded that a "priority mission" of the Department of Defense (DoD) would be "to develop, deploy, and operate a wide range of defensive measures for the protection of the United States homeland."⁹ The National Commission on Terrorism suggested in June 2000 that a "catastrophe . . . beyond the capabilities of local, state, and other federal agencies" may prompt the President "to designate DoD as a lead federal agency"¹⁰ to respond to a terrorist attack in the homeland. Former Secretary of the Navy, Richard Danzig, noted that a "single biological attack can kill a great many people, while the technologies to develop and deliver these weapons Page 738 are relatively inexpensive, accessible, and difficult to detect, much less interdict."¹¹ When these risks are augmented by what Danzig calls "reload," the capacity of terrorists to repeat the biological attack over and over again ("we cannot shut down the atmosphere"), "our national power to manage the consequences of repeated biological attacks could be exhausted while the terrorist ability to reload remains intact."¹²

After September 11, the military presence in the homeland increased literally overnight. The President approved orders for the Air Force to shoot down civilian airliners in the event of a hijacking, National Guard troops were deployed at the nation's airports, and more United States forces were deployed for security at the Salt Lake City Olympic Games in February 2002 than were then deployed fighting the Taliban in Afghanistan.¹³ In addition, President Bush proposed and Congress established the Department of Homeland Security¹⁴ and conferred through that legislation, the USA PATRIOT Act,¹⁵ and related intelligence authorization measures¹⁶ with broad new authorities to combat terrorism in the homeland.

Fundamental changes have also been made in the organization of the military in relation to domestic security. The September 30, 2001, Quadrennial Defense Review Report restores the defense of the United States as the DoD's primary mission,¹⁷ and the National Strategy for Homeland Security in July 2002 called for "a concerted national effort to prevent terrorist attacks within the United States, reduce America's vulnerability to terrorism, and minimize the damage and recover from attacks that do occur."¹⁸ On October 1, 2002, a new combatant command, the United States Northern Command (NORTHCOM) became the first military entity since the Civil War with responsibility for military activities inside the United Page 739 States.¹⁹ It remains unclear what forces will be assigned to NORTHCOM, and what roles NORTHCOM will play in homeland security. Still, a recent Judge Advocate's Corps Operations Law Handbook states that the "role of the military in domestic operations has changed drastically"²⁰ since September 11. But just what will soldiers do in anticipation of or in response to a terrorist attack on the homeland? On what legal bases are military activities planned?

Among the nations of the world, the United States has been proudly unique in entrusting law enforcement to civilian forces, managed and controlled by civilians. Our federal system has helped cement control over and, thus, accountability for law enforcement activities and decisions at the lowest levels of government, closest to the operations being conducted. At the same time, our revolutionary and constitutional heritage, fed by experiences in...