Terrorism and the Military's Role in Domestic Crisis Management: Background and Issues for Congress
Released: 2003-01-27T00:00:00

Introduction

The United States faces a wide range of national security threats, from intercontinentalballistic missiles to the use of weapons of mass destruction (WMD) (1) by terrorists. The debate overthe seriousness of the various threats has intensified recently. Various studies and commissions haverecommended far reaching changes in the approach to domestic preparedness and response to threatsto the homeland. The threat of domestic terrorism has generated a wide ranging debate regardingall organizational aspects of the problem, including the approach from a strategic perspective andthe more focused aspects of organizational structure, budgetary priorities, and intelligence collection.Several recent studies have proposed a greater role for the U.S. military in combating terrorism whileothers call for the creation of entirely new structures to combat the complete spectrum of threats tothe United States, including terrorism and the use of WMD by terrorists. (2)

This paper (3) outlines current legislation and policies that govern the military's role when supporting lawenforcement in a domestic terrorism crisis. It also highlights some of the issues confronting the U.S.government. The military forces designed to respond to a crisis differ significantly from unitsdesigned to support the post-crisis consequence management of a terrorist incident. As such, theyare governed by different directives and levels of authorization for their employment.

Until recently, terrorism to many Americans was a remote, if frightening possibility thataffected only individuals or groups outside the territorial boundaries of the United States. Eventsof the past decade indicate that the terrorist threat has changed significantly in ways that make itmore dangerous and much more difficult to counter. The terrorist attacks of the 1970s and 1980susually had clear political objectives. These attacks resulted in just enough bloodshed and loss of lifeto gain attention to the terrorists' cause yet not enough to alienate them from the public support theysought. Bombings, kidnapings, and aircraft hijacking were accomplished by declared, identifiablegroups with specific political goals in mind. In contrast, the decade of the 1990s has produced adifferent type of terrorism - terrorism designed to produce massive casualties with little regard fordistinct political goals and often no claims of responsibility. Recent examples of this type of attack,such as the World Trade Center bombing in New York City, the Alfred P. Murrah Federal Buildingbombing in Oklahoma City, the East African Embassy bombings in 1998, and destruction of theWorld Trade Center in 2001 make it appear that a terrorist's aim is to kill as many people as possible. The possible inclusion of weapons of mass destruction in the terrorists' arsenal now makes this aneven more dangerous proposition.

Recently, in the trial of the perpetrators of the East African Embassy bombings, a witnesstestified that Usama bin Laden's group, al Qaeda (Arabic for "the Base"), sought to acquire chemicaland nuclear material to use against the United States. (4) Although it is unknown whether al Qaeda was successful inacquiring the material, the probability that terrorist groups who have openly threatened the UnitedStates are attempting to acquire a WMD capability is a serious escalation of this dangerous problem.

The Forecast Trend

Many recent government and private sector reports and studies conclude that the UnitedStates is becoming increasingly vulnerable to terrorism. (5) Although terrorism is defined in different ways by various U.S.government agencies, (6) it is generally accepted that terrorism is a crime designed to coerce others into actions they wouldnot otherwise take or into refraining from actions that they desire to take. Today's terrorists, liketheir predecessors, seek to instill fear, undermine government authority, and possibly goad thegovernment into overreacting to the incident or threat. What has changed in the past decade is thewillingness of the terrorist to inflict indiscriminate casualties as evidenced by the data in Figure 1. In the preceding decade, the United States emerged as the only superpower, and as such, the mostlucrative target for terrorists.

Figure 1: Terrorism Becoming More Lethal

Source: Countering the Changing Threat of International Terrorism. Report from the National Commission on Terrorism, p. 5.

Although many analysts agree that terrorists are most likely to use conventional explosives,their use of a WMD in the U.S. is now seen as a possibility. For example, the United StatesCommission on National Security/21st Century states:

The combination of unconventional weaponsproliferation with the persistence of international terrorism will end the relative invulnerability ofthe U.S. homeland to catastrophic attack. A direct attack against American citizens on Americansoil is likely over the next quarter century. (7)

The release of a chemical agent into the Tokyo subway system by the Aum Shinrikyo terroristgroup in 1995 demonstrated the devastating possibilities of a WMD attack as well as the difficultiesof using a WMD to produce mass casualties. The group spent millions of dollars using highlyskilled technicians with an overall result that probably produced far fewer casualties thanconventional explosives. (8) However, the global cultural and political impact of the attack was massive.

Although terrorists have long intended to harm the public, now they may posses much greatercapabilities to do so. A former member of al Qaeda described the terrorist group's world-widecorporate structure of multiple businesses and bank accounts from Africa to Europe and Asia. (9) By purchasing an excess U.S.military business jet and flying it to Sudan where it was to be used for transporting the terroristorganization's weapons, al Qaeda vividly portrayed its ability to effect undercover transactions. (10)

The Central Intelligence Agency and the National Intelligence Council forecast the followingtrends that may affect the future security of the United States:

Asymmetric threats in which state and non-stateadversaries avoid direct engagements with the US military but devise strategies, tactics, and weapons- some improved by "sidewise" technology - to minimize US strengths and exploit perceivedweaknesses.

Internal conflicts stemming from religious, ethnic,economic or political disputes will remain at current numbers or even increase innumber.

Prospects will grow that more sophisticated weaponry,including weapons of mass destruction - indigenously produced or externally acquired - will get intothe hands of state and non-state belligerents, some hostile to the United States. The likelihood willincrease over this period that WMD will be used either against the United States or its forces,facilities, and interests overseas.

Chemical and biological threats to the United States willbecome more widespread; such capabilities are easier to develop, hide, and deploy than nuclearweapons. Some terrorists or insurgents will attempt to use such weapons against US interests -against the United States itself, its forces or facilities overseas, or its allies. (11)

The consequences of failing to deter, detect, or preempt terrorist attacks, some possibly withWMD, would be devastating. In addition to the tragedy of hundreds or thousands of dead andinjured citizens, the long lasting serious economic and psychological damage to American societycould well prove to be the terrorists' greatest victory.

Current U.S. Government Policy

The implications of a successful WMD attack against the United States goes beyond thepotential loss of life, mass casualties, and infrastructure damage of a single incident. Many expertssay the probable long term affects of such an attack on the population, environment, and theeconomy make it imperative that the U.S. be fully prepared to either deter or interdict an attemptedattack by force if necessary. Should an incident take place, the U.S. government must be preparedto manage the consequences of the attack. These two responses - crisis and consequencemanagement - are the cornerstones of current U.S. policy towards combating terrorism.

Presidential Decision Directive 39 (PDD 39), signed in June 1995, is the foundation forcurrent U.S. policy for combating terrorism. (12) The document spells out three objectives for confrontingterrorism: 1) reduce the nation's international and domestic vulnerabilities to terrorism; 2) deterterrorism; and 3) respond to terrorism rapidly and decisively. PDD 39 designates Lead FederalAgencies (13) forinternational and domestic terrorism policy. The Lead Federal Agency for combating terrorismoverseas is the Department of State (DOS) and the agency designated to respond to terrorist attackson U.S. soil is the Department of Justice (DoJ) through the Federal Bureau of Investigation (FBI). The Federal Emergency Management Agency (FEMA) has primary responsibility to lead federalefforts to deal with the consequences and collateral second and third order effects of terrorist WMDattacks on American soil. (14)

PDD 39 pays particular attention to WMD and includes language stating "The United Statesshall give the highest priority to developing effective capabilities to detect, prevent, defeat andmanage the consequences of nuclear, biological or chemical (NBC) materials or weapons use byterrorists." (15) It goeson to state that the highest priority in combating terrorism is to prevent the acquisition or use of aWMD capability by terrorist groups opposed to the U.S. (16) PDD 62, Protection Against Unconventional Threats to theHomeland and Americans Overseas , reinforced PDD 39 and further clarified agency roles incombating terrorism. In both PDDs, the Department of Defense (DoD) plays a supporting role tothe Lead Federal Agencies.

President George W. Bush recently signed National Security Presidential Directive-1(NSPD-1) establishing the organization of the National Security Council under his Administration. Among other things, the document abolishes the previous system of interagency working groups andreplaces them with policy coordination committees (PCC). (17) The functions of the PCCdealing with terrorism and WMD are discussed below.

Crisis Management of Domestic Terrorism Events

To understand fully the military's role in domestic crisis response it is necessary to explorethe national-level structures and response options prior to the involvement of military forces. Ingeneral, the laws of the United States assign primary authority to the federal government to preventand respond to terrorism. The FBI, through DoJ, is designated the Lead Federal Agency for crisismanagement of threats or acts of terrorism that take place in the United States or in internationalwaters that do not involve the flag vessel of a foreign country. Crisis management is predominatelya law enforcement function that manages the resources necessary to prevent or resolve a terroristincident including intelligence gathering, surveillance, tactical operations, negotiations, forensics,and follow-on investigations. It also includes technical missions involving WMD such as search,render safe procedures, transfer and disposal of a device, and limited decontamination ifnecessary. (18) Thefederal response to a terrorist incident is seen as a highly coordinated interagency operation that caninclude federal, State, and local participation. Primary federal agencies besides the DoJ and the FBIare the Federal Emergency Management Agency, (19) DoD, the Department of Energy, the Environmental ProtectionAgency, the Department of Health and Human Services, and now the Department of HomelandSecurity.

National Level Crisis Management Structure

Past experience has shown that non-federal local authorities are normally the first to respondto most emergencies or threats. Once it is determined that federal authorities should enter thecoordination and decision process, those same authorities will ultimately decide if or when thefederal government will begin coordination of the entire process. Some of the factors that determinehow fast and to what extent federal intervention takes place are the nature of the incident, theintended target, the potential consequences of a successful incident, and the capabilities of the localauthorities. The United States Government Interagency Domestic Terrorism Concept of OperationsPlan (CONPLAN) states that the "laws of the United States assign primary authority to the federalgovernment to prevent and respond to acts of terrorism or potential acts of terrorism." (20) The federal response willsurely come sooner than later if the possibility exists that a WMD is involved in the incident. Additionally, if WMD is involved, the FBI may look to DoD for assistance in earlier stages of thecrisis.

Figure 2. NSC Terrorism Response Policy Structure

Source : National Security Council Memo, Implementing NSDP-1, Counterterrorism and NationalPreparedness , National Security Council, Washington, DC, February 28, 2001.

The National Security Council. The NationalSecurity Council (NSC) is the center of U.S. government efforts to coordinate the national responseto threats or acts of domestic terrorism. The NSC Principals Committee, the Deputies Committee,and the Counterterrorism and National Preparedness Policy Coordination Committee (PCC)constitute the major policy and decision making bodies involved in the federal response to terrorism(see Figure 2).

The PCC has four standing subordinate groups to coordinate policy in specific areas. TheCounterterrorism and Security Group (CSG) coordinates policy for preventing and responding toforeign terrorism, either internationally or domestically. The Preparedness and Weapons of MassDestruction Group provides policy coordination for preventing WMD attacks in the United Statesand developing response and consequence management capabilities to deal with domestic WMDincidents. The Information Infrastructure Protection and Assurance Group handles policy forpreventing and responding to major threats to America's cyberspace, and the Continuity of FederalOperations Group is charged with policy coordination for assuring the continued operation ofConstitutional offices and federal departments and agencies. (21)

When the NSC is advised of the threat of a terrorist incident or actual event, the appropriate subordinate group will convene to formulate recommendations for the Counterterrorism andPreparedness PCC who in turn will provide policy analysis for the Deputies Committee. TheDeputies Committee will ensure that the issues being brought before the Principals Committee andNSC are properly analyzed and prepared for a decision by the President.

The FBI Crisis Management Structure

The FBI's first step when a terrorist threat is discovered is to initiate a threat credibilityassessment. The FBI takes immediate steps to identify, acquire, and plan for the use of federalresources to augment the State and local authorities if the threat is deemed highly credible or anincident is verified. The FBI will designate a Federal On-Scene Commander (OSC) who functionsas the incident manager for the U.S. Government. Initially, incident response resources are acquiredfrom the United States Attorney's Office in the affected area. The OSC considers the followingpriorities when developing the strategy to respond to the threat:

1) Preserving life or minimizing risk to health;

2) Preventing a threatened act being carried out or an

existing act from being expanded;

3) Locating, accessing, rendering safe, recovering, and disposing

of a WMD;

4) Rescuing, decontaminating, transporting, treating victims,

and preventing secondary casualties;

5) Releasing emergency public information;

6) Restoring essential services and mitigating suffering;

7) Apprehending perpetrators

8) Conducting site restoration. (22)

The FBI Operational Response. The FBImanages the crisis from a local command center known as the Joint Operations Center (JOC) (seeFigure 3). The JOCs primary purpose is to coordinate the law enforcement activities of the variousfederal, State, and local agencies responding to the emergency. The local FBI Special Agent InCharge (SAC) will establish the JOC with the express purpose of countering the threat or actualincident based on a graduated and flexible response. The JOC is designed to quickly accommodatethe participation of other agencies responding to the terrorist threat or incident. FBI Headquartersin Washington D.C. activates its Strategic Information Operations Center (SIOC) to aid incoordinating national-level support to the terrorism incident site when notified that a field office hasactivated a JOC. The SIOC coordinates the federal response and draws upon the appropriatetactical, technical, scientific, and medical resources available from national-level organizations. (23) This is especiallyimportant when a credible nuclear, biological, or chemical terrorist threat is received. DoD, amongother federal agencies, will provide liaison officers to the SIOC during a threatened or actual WMDincident.

Figure 3: FBI Joint Operations Center

Source: U.S. General Accounting Office, Combating Terrorism: Federal Agencies' Efforts toImplement National Policy and Strategy , Report Number GAO/NSIAD-97-254, September 1997,p. 44

The Critical Incident Response Group. Normally,the FBI will respond initially to the incident with tactical assets from the local field office. Fieldoffice assets include Special Weapons and Tactics Teams trained in planning and executing high-risktactical operations when called upon. When the threat or actual incident exceeds the capability ofthe on-scene forces, the FBI's Critical Incident Response Group (CIRG) can deploy the necessaryresources to augment the local team. The CIRG was established in 1994 to give the FBI the abilityto respond with the tactical and investigative expertise needed in a major terrorist incident. TheCIRG can augment with crisis managers, hostage negotiators, behavioral scientists, psychologist,surveillance assets, and agents. (24)

The tactical centerpiece of the CIRG is the Hostage Rescue Team (HRT). The team isheadquartered in Quantico, Virginia, with 91 FBI Special Agents authorized and its mission is toserve as a full time national-level tactical team able to deploy to any location within four hours ofnotification. The HRT is also specially trained and exercised to ensure it can operate in a chemicalor biological environment. The team is structured to deploy in segments, or as an entire unitdepending on the severity of the crisis and it can be augmented with other law enforcement criticalentities from the CIRG. (25)

The Domestic Emergency Support Team. Acritical element of effective national- level coordination is the notification and deployment of theDomestic Emergency Support Team (DEST). The DEST is a rapidly deployable, interagency teamof experts to advise and support the FBI crisis management effort. The DEST can includerepresentation from the DOE, HHS, EPA, FEMA, and DoD. It is the responsibility of DoD toprovide transportation for the DEST. The FBI Director, in consultation with the Attorney General,requests that the National Security Council Deputies Committee activate and launch the DEST foron-scene advice that can include nuclear, biological, and chemical expertise. The Secretary ofDefense authorizes the deployment of the DEST aircraft and all DoD personnel assigned to theteam.

Specialized assistance is available from other federal, state, or local agencies such as theDepartments of Transportation and Agriculture. (26) The DEST is incorporated directly into the existing on-site FBIcrisis management structure to advise the OSC of federal-level capabilities that can be brought tobear on the incident. (27) Besides providing interagency crisis management assistance, the DEST can provide informationmanagement support and enhanced communications to ensure the OSC maintains connectivity withnational-level decision makers during the on-going crisis. The DEST also can be organized toprovide the expert advice required for certain explosive devices and their components includingchemical, biological, nuclear, and radiological dispersal devices. Technical expertise and equipmentis also available to operate in a contaminated environment in order to conduct on-site activities likethreat sampling, technical measurements, tactical intelligence collection, evidence collection, andother actions.

The Military's Role in Domestic Crisis Management

PDD 39 and assorted legislation permits DoD to develop and maintain plans and capabilitiesto respond to threats or acts of terrorism, including use of nuclear, biological, and chemical weapons. In a domestic crisis involving WMD, DoD may be called upon to assist in several different waysranging from actual interdiction of the terrorists to the loaning of specialized equipment for use bylaw enforcement agencies in the crisis. The Department of Defense has published directivesestablishing policy and assigning responsibility for providing military assistance to civil authoritiesincluding specific policy for assistance to civil law enforcement officials in emergencies involvingterrorism and WMD.

DoD Policy

The Department of Defense is governed by myriad statutes and directives pertaining todomestic use of the armed forces for any law enforcement action. DoD Directive 3025.15, MilitaryAssistance to Civil Authorities , provides basic policy guidelines for the Defense Department whensupporting civilian law enforcement agencies. It covers "acts or threats of terrorism" and "requestsfor aid to civil law enforcement authorities" taking place "within the 50 states, District of Columbia,Commonwealth of Puerto Rico, U.S. possessions and territories, or any political subdivisionthereof." (28) When DoDevaluates requests, it considers the following criteria before providing assistance:

1) Legality - compliance withlaws;

2) Lethality - potential use of lethal force by oragainst DoD forces;

3) Risk - safety of DoDforces;

4) Cost - who pays and the impact on the DoDbudget;

5) Appropriateness - is the mission in the interestof DoD to conduct;

6) Readiness - impact of the request on DoD'sability to perform its primary mission. (29)

The FBI recognizes four separate situations where the military may be called upon to assistin a domestic law enforcement situation involving a threat or an act of terrorism, including WMDterrorism: (1) providing technical support and assistance to law enforcement and other crisisresponse personnel; (2) interdicting an event and apprehending those responsible; (3) restoring lawand order following an incident; and (4) abating the consequences of a terrorist act. (30) The first two of thesesituations are considered crisis response and are governed by different statutes, directives, andapproval authorities than the last two which are consequence management activities.

The Secretary of Defense is responsible for providing military assets that can assist in bothcrisis response and consequence management aspects of a WMD threat or incident upon the AttorneyGeneral's request. The Secretary of Defense also designates follow-on assets capable of providingtechnical assistance to the FBI when responding to the actual or threatened use of chemical,biological, or nuclear weapons, or radiological dispersal devices. In order to focus militarycontributions to homeland defense and assistance to civilian authorities for consequencemanagement, DoD established a new unified, combatant command -- U.S. Northern Command --in October 2002. (31)

The Posse Comitatus Act

Military involvement in direct law enforcement activities is normally prohibited by 18 U.S.C.Section 1385, unless otherwise specifically authorized under the Constitution or Act ofCongress. (32) Betterknown as the Posse Comitatus Act, 18 U.S.C. Section 1385, prohibits the use of the military inactivities such as:

Arrest; seizures of evidence; search of persons; searchof a building; investigation of a crime; interviewing witnesses; pursuit of an escaped prisoner; searchof an area for a suspect and other like activities. (33)

The Posse Comitatus Act, however, has not precluded the military from providing logisticalsupport, technical advice, facilities, training, and other forms of assistance to civilian lawenforcement agencies even though that assistance may aid those activities. Using a test based uponwhether the military's involvement is "active" or "passive," the courts have held that providingassistance as listed above falls in the "passive" category and does not violate the Posse Comitatus Act. (34) Technicalsupport activities such as explosive ordinance disposal and providing specialized equipment andexpert advice on WMD devices is seen in the same manner. Specific statutory authorities exist thatcover these contingencies.

Requests for Technical Assistance

Military technical assistance to law enforcement authorities may take many different forms,including loaning equipment, facilities, or personnel. The Secretary of Defense is the final approvingauthority for any requests for potentially lethal support, all support for counterterrorism operations,and certain support in situations involving WMD. (35) This includes support under 10 U.S.C. Section 382, EmergencySituations Involving Chemical or Biological Weapons of Mass Destruction and 18 U.S.C. Section831, Prohibited Transactions Involving Nuclear Materials . (36) In general, these twostatutes allow the use of military personnel, equipment, and technical assistance in non-hostileemergency situations (as determined jointly by the Attorney General and the Secretary of Defense)that pose a serious threat to the United States and its interests. A further test of the need forassistance is if civilian expertise and capabilities are not available or sufficient to counter the threat,the unique capabilities of the Department of Defense are critical to defeating the threat, and theenforcement of applicable federal law would be seriously impaired if DoD assistance was notprovided. (37)

Military Technical Assistance OperationalResponse. In an emergency situation, 18 U.S.C. Section 831 authorizes theAttorney General to request DoD law enforcement assistance when nuclear materials are involved. 10 U.S.C. Section 382 authorizes assistance when chemical or biological weapons are involved. When providing assistance under these statutes, the military units and personnel will remain underthe military chain of command at all times. The senior on-scene federal law enforcement official(the FBI's designated OSC in most cases), may request support directly from the senior militarycommander at the crisis site. The planning and execution of all military support will remain theresponsibility of the military commander. Any disagreements between the OSC and the militarycommander regarding the request for support will be referred to the Secretary of Defense and theAttorney General for resolution.

The commander of the military unit determines the appropriate technical assistanceprocedures based on the following priorities:

1) Protect human life or prevent injuries, includinginjury to the military personnel involved;

2) Prevent the use of a chemical, biological, or nuclearweapon;

3) Mitigate the consequences in the event of a the useof a chemical, biological, or nuclear weapon;

4) Protect property. (38)

Normally, military units providing technical assistance to federal law enforcement authoritieswill not be armed unless specifically requested through the military chain of command andauthorized in advance by the Secretary of Defense and agreed to by the OSC. Members of militaryunits, whether armed or not, will not be placed in hostile fire situations and are only authorized touse force in self-defense as defined in the Chairman of the Joint Chiefs of Staff Peacetime Rules ofEngagement. The rules specify self-defense as the reasonable, necessary, and proportional force todefend him- or herself and to defend the unit against hostile intent and/or acts. Deadly force isauthorized against any person demonstrating hostile intent or committing hostile acts if there is areasonable belief that the person poses an imminent danger of death or serious physical injury to themember or to another person. (39) When providing technical assistance to the FBI or other lawenforcement agencies, DoD expects the controlling agency to have made the incident area safe forassistance operations prior to admitting the military.

Notwithstanding the prohibitions of the Posse Comitatus Act, (40) the military, whenproviding assistance to civilian law enforcement authorities under 18 U.S.C. Section 831 and 10U.S.C. Section 382, may extend technical advice and assessment to law enforcement personnelincluding:

1) Providing expert advice on all matters pertaining tothe search, location, identification, seizure, render safe/disarm/disable procedures, handling and /ortransport of a suspected WMD;

2) Check an area, such as a room, when trained lawenforcement personnel are unavailable and there is reason to suspect that the area contains bobbytraps or improvised explosive devices and render such devices safe by monitoring, containing,disabling, or disposing of them or their components or elements before a law enforcement searchof the area is conducted;

3) Undertake appropriate rendering-safe and disposalactions, including monitoring, containing, disabling and/or disposing of or otherwise rendering safea suspected biological, chemical, or nuclear material or device that is notweaponized;

4) Upon approval of the National CommandAuthority, (41) undertakeappropriate rendering-safe and disposal actions, including the monitoring, containing, disabling and/or disposing of or otherwise rendering safe a suspected WMD, to include its components orelements;

5) Participate in the questioning of suspects by lawenforcement personnel, only when necessary to determine the characteristics of the suspected WMDdevice, its components or elements for the purpose of rendering itsafe;

6) Provide and operate specialized equipment orvehicles;

7) Provide other assistance as requested by the AttorneyGeneral or lawfully delegated representative and approved by the Secretary of Defense. (42)

Searches and Evidence. Military personnel maysearch non-DoD property during an emergency involving WMD when there is reason to suspect thatthe area contains booby traps and trained FBI personnel are not available. The FBI may ask themilitary to clear the area of hazardous devices prior to a law enforcement search of the area. Possiblecriminal evidence encountered during the search may be brought to the attention of the FBI. The FBIand the senior military commander will determine the procedures to use when performing thetechnical assistance requested based on safety to the public, the unit, and surrounding property. Themilitary may consider preservation of forensic evidence when choosing the assistance technique. Military personnel will not compromise safety standards in order to enhance the survival orcollection of evidence for law enforcement purposes.

Disposition and Transportation of a WMD. When a suspected or actual WMD is rendered safe or otherwise made safe for transportation, federallaw enforcement officials are responsible for obtaining approval to dispose of the device, includingapproval of the ultimate disposal site. If the FBI specifically requests DoD assistance through theAttorney General in the transportation and disposal of the WMD, it must be approved by theSecretary of Defense. The transportation of the WMD from the incident site is not viewed astechnical assistance under 10 U.S.C. Section 382 or 18 U.S.C. Section 831. As such, it must beauthorized and funded under a different authority. The specific nature of the device (chemical,biological, radiological, or nuclear) is a critical factor when considering disposition and transport. Also, the evidentiary imperatives of the law enforcement process are considered before deciding onthe disposal location and method of transportation.

Reimbursement. Military assistance provided byDoD under 10 U.S.C. Section 382 or 18 U.S.C. Section 831 may not require reimbursement to DoDunder the provisions of 10 U.S.C. Section 377, Reimbursement . Section 377 states that if in DoD'sjudgment, the assistance is provided in the normal course of training or operations and the result ofthe support provides a benefit to the military that is equivalent to that which the military unit wouldreceive from normal training or operations, no reimbursement is necessary. (43) DoD evaluates eachsituation separately and normally attempts to resolve reimbursement issues prior to deploying forces.

Training. DoD requires that all personnel likelyto participate in providing assistance to federal law enforcement agencies be adequately trained andmeet the minimum operational standards set within each military unit. Specialized units may trainin methods for defeating WMD devices to prepare for possible employment in domestic lawenforcement situations. The Department of Justice, in coordination with the FBI provides themilitary an orientation package addressing how military members may participate in the search andseizure of evidence or take the necessary precautions to avoid degrading or destroying the evidence.All military personnel likely to support law enforcement agencies are also trained in the rules ofengagement they are to follow when assisting civil law enforcement members in the performanceof their duties. This is particularly important when the Secretary of Defense has authorized that themilitary personnel be armed when performing their duties because of the danger involved in themission.

Requests for Tactical Assistance

Employing a military tactical force in response to a domestic law enforcement emergencyconcerning terrorism and WMD could take place in two situations - 1) armed conflict-like situationsthat threaten the continuity of government and 2) a threat endangering public safety that is beyondthe tactical response capability of law enforcement. Most feel the more likely scenario foremployment of a tactical military force in a domestic situation will be alleviating a public safetythreat that requires capabilities exceeding the traditional law enforcement functions of arrest andprosecution. In either case, employment of a military force to resolve a domestic terrorist incident,whether or not some type of WMD is involved, will mean acting outside of statutory limitationsnormally imposed on the military when assisting law enforcement agencies.

Constitutional Authority. Only the President canauthorize the employment of active duty military in a domestic situation. Although not expresslystated in the Constitution, it is a generally accepted constitutional interpretation that the Presidenthas authority under his Commander in Chief powers to direct the conduct of military action toinclude the employment of a military force to repel a sudden attack against the United States. Among several other situations, if the President determined that a terrorist situation threatenednational survival or continuity of government or to ensure public safety, he could order theemployment of the military in a domestic role. (44)

The Insurrection Statutes. Title 10 U.S.C.Sections 331-334, known as the Insurrection Statutes, authorize the President to seek militaryassistance to support civilian law enforcement authorities when confronted with a rebellion, unlawfulobstruction, or combination of assemblage which makes enforcement of the law by duly constitutedcivilian authorities impracticable. (45) If the President found it necessary to employ the military in adomestic situation involving terrorism and WMD, invoking the Insurrection Statutes could allow themilitary to operate outside the traditional military support to law enforcement (technical assistance)and the prohibitions of the Posse Comitatus Act.

The President may, when requested by a state legislature, or governor when the legislaturecannot be convened, send active military forces to suppress an insurrection against stateauthority. (46) Normallythe state authorities will specify to the President that the violence cannot be brought under controlby state and local law enforcement agencies and the state National Guard. The President may alsotake unilateral action by invoking Sections 332 and 331 of the Insurrection Statutes when he findsthat widespread unlawful activities "make it impracticable to enforce the laws of the United States"or when the violence "hinders the execution of the laws of that State, and of the United States withinthat State" or obstructs the execution of federal law. (47)

If the President either receives a request for assistance from a state or decides to takeunilateral action under the Insurrection Statutes, he would execute the process in two steps following10 U.S.C. Section 334, Proclamation to Disperse . First, the President would issue a proclamationcommanding all persons engaged in acts of domestic violence and disorder in the affected area tocease and desist and to leave the area peaceably. The President would then immediately issue anexecutive order authorizing the Secretary of Defense to use active duty members of the armed forcesto suppress the violence described in the proclamation. The Secretary would be authorized todetermine when the active military forces should be withdrawn from the area. The order would alsorequire the Secretary to coordinate law enforcement policies with the Attorney General. (48)

Military Tactical Assistance OperationalResponse. If military force is authorized by the President, DoD has a variety ofoptions. The most likely option in the case of terrorism (especially a WMD situation) would involvetactical assistance in the form of a Joint Special Operations Task Force (JSOTF). The task force isan agile, highly trained special mission force available to the FBI if a threat or an actual incident ofdomestic terrorism is considered beyond the tactical response capability of law enforcement. In sucha case, the FBI On-Scene Commander would request that the FBI Director recommend that theAttorney General seek DoD support for the situation. The FBI would normally ask for militarysupport only if its assets are overwhelmed by multiple threats or incidents, or if the specific target,including a suspected or known WMD, is beyond the capability of FBI tactical and technical assets. The JSOTF may include or have immediate access to specially trained personnel capable of dealingwith various types of WMD. The Attorney General will begin the process by conferring with theSecretary of Defense to determine if military support is appropriate using the same criteria employedin a technical assistance situation.

The OSC will also request that the FBI Director ask the Attorney General to deploy theemergency support team if it has not already been launched to the incident site. The DoD componentof the DEST will include liaison officers familiar with the capabilities of the military units mostlikely to be tasked to support the FBI in a potentially hostile domestic terrorism situation. Thelaunching of the DEST aircraft and all DoD personnel assigned to the team must be authorized bythe Secretary of Defense. The military liaison officers assigned to the DEST are allowed to reportdirectly to DoD and contingency planning for possible military intervention may begin. Thecommander of the JSOTF is integrated directly into the command group of the FBI JOC in order togain first-hand knowledge of the tactical situation. Technical assistance operations may run inconcert with military tactical assistance planning. DoD may undertake precautionary steps, such asthe prepositioning of a limited number of military forces near the incident site with the approval ofDoJ and the OSC.

When the OSC anticipates that federal military assistance is necessary to resolve the incident,he will immediately notify the FBI Director who will advise the Attorney General of the situation. After consultation with the Secretary of Defense, the Attorney General will advise the President thatconditions warrant the employment of federal military forces. If the President decides to approvethe use of military force, he invokes the Insurrection Statutes as previously discussed. The AttorneyGeneral, through the FBI, remains responsible for coordinating all activities for federal, State, andlocal agencies assisting in the resolution of the incident and the administration of justice in theaffected area.

When presidential approval to use military force is granted, the Attorney General will advisethe FBI who will notify the OSC. The Secretary of Defense will advise the commander of themilitary task force who in turn will begin coordination with the OSC for transfer of operationalcontrol of the incident site to the military. Responsibility for the tactical phase of the operation istransferred to military authority when the OSC relinquishes command and it is accepted by themilitary commander. The OSC may revoke the military authority at any time prior to the assaultphase of the operation if he determines that military intervention is no longer required provided thatthe military commander agrees a withdrawal of forces can be accomplished without endangering thesafety of his personnel.

Once the incident is resolved, the military commander will return on-scene authority andresponsibility to the OSC. The military forces will normally evacuate the area to a mutually agreedupon relocation site to prepare for redeployment to their home station. However, key militarypersonnel may be requested to remain at the incident site if the OSC determines their presence isnecessary in the investigative process. The FBI will provide the military members the appropriateconstitutional and procedural safeguards, including the presence of military counsel if required bythe circumstances. The FBI will also, to the extent permitted by law, protect the identity of themilitary members participating in the event and any sensitive tactics, techniques, and proceduresused by the military during the operation.

The decision to employ active military forces against a target in the United States, especiallyif it involves American citizens, remains a sensitive and complicated issue with numerous potentialpolitical and legal ramifications. Questions remain concerning the appropriateness of the use offederal troops and how military force should be employed in the United States. (49)

Conclusion and Issues for Congress

A number of intelligence and terrorism experts argue that the trend toward terrorists' use ofWMD is not as great a danger as other, more traditional national security threats. But, because of theserious implications of the successful use of a WMD by terrorists on American soil, it is most likelynot an event that the American public is willing to accept either. To successfully combat thepossibility of a terrorist incident, especially one using WMD, the current interagency domestic crisismanagement policies and structures should be analyzed to determine their effectiveness against thecurrent threat and their adaptability to the future threat.

There are many critical issues concerning U.S. terrorism policy overall and domesticterrorism specifically. Several issues that could significantly affect the nation's crisis responsecapabilities were explored in recent national-level commissions. Most experts believe that acomprehensive national strategy coherently linking national policy with the capabilities of the manyagencies charged with domestic terrorism responsibilities is a critical step in defeating the threat. Many experts also contend that the United States would be better served by employing the full rangeof DoD's capabilities during domestic crisis response operations. (50) Some see the creation ofan entirely new agency with responsibility for "homeland defense" as the best method to ensuresuccess against domestic terrorism. (51) Lastly, newly proposed congressional oversight roles are seenby many as an important factor in a more effective response to domestic terrorism.

National Strategy

The current national strategy for terrorism is seen by many as an uncoupled system of plansthat individually respond to various aspects of the threat but do not collectively ensure acomprehensive response capability in the event of a credible threat or actual terrorism act onAmerican soil. As a starting point, most observers recommend the United States articulate an endstate to which it should aim to accomplish its combating terrorism policy.

For example, there is no one definition of terrorism to use when coordinating interagencycombating terrorism policy. The State Department, the Department of Justice, and DoD, all usedefinitions with subtle, yet far-reaching differences. If terrorism is defined as merely a legal issue,then law enforcement takes priority. In legal terms, terrorist-related acts are now arson, murder, orkidnaping. If terrorism is seen as affecting national security, it is a political or military issue thatcould end with response by military forces to prevent, deter, or interdict the terrorist act.

With no specific national objectives for which federal, State, and local agencies can gaugeprogress or measure capability, terrorism policy, it is argued, becomes an exercise in executingprograms within a set budget. The general policies that involve preparation for interdicting athreatened terrorist act have no clear priority of implementation among those responsible forexecuting the policy. Comprehensive threat and risk assessments concerning the possible use ofWMD by terrorists would allow federal authorities to make judgments as to whether funding is atthe proper level overall, as well as allocations for specific programs. These same assessments couldassist in establishing priorities and reducing or eliminating duplication of effort in combatingterrorism programs.

Employing the Full Range of DoD Capability

Current statutory authority allows the U.S. military to act in a support role in domestic crisisresponse. Even if the President invokes the Insurrection Statutes allowing a military response to aspecific situation, federal law enforcement personnel remain in overall charge of the operation. Itis debatable what affect the employment of the military as a Lead Federal Agency in a domesticcrisis response role during limited terrorist attacks would have on the military's capabilities andprobability of success. The military appears to have sufficient capability to respond to the narrowmission of interdicting a domestic terrorist event prior to its execution or responding to a situationin progress when the FBI either does not have the capability or is overwhelmed by multiplecontingencies.

What appears to be the main stumbling block to better coordination and response betweenthe FBI and the military is the numerous and often confusing statutory and regulatory authorities thatgovern the use of the military in a domestic situation. Different statutes apply to a situationdepending on whether it is a nuclear, chemical, or biological threat or incident. Many experts assertthat a clearly specified legal authority in place prior to the use of federal military forces in a domesticsituation could allow for a more streamlined and effective use of these forces while ensuring civilliberties and law enforcement concerns are respected. Different laws apply when employing themilitary in a tactical role as opposed to providing non-hostile technical assistance. Current laws maytend to delay or complicate military involvement in the situation which could reduce effectiveness. Another issue is that some in DoD see the use of crisis response forces in a domestic situation as notbeing a legitimate mission. They express concern about the effect such use has on the preparationof those forces to fight and win our nation's wars. Reduced force structure and shrinking budgetsalso make it difficult to focus on taskings outside of their primary mission. Some express concernover widespread use of the military in domestic situations and the effect it could have on civil rights. They contend the military is not trained to carry out police work, although others point out thatmilitary forces do train in law enforcement situations and regularly exercise with federal agenciesin crisis response situations in the United States. (52)

Laws that more clearly specify the military's role in domestic crisis response would mostlikely make committing resources, personnel, and effort to that role more successful while at thesame time continuing to protect the civil liberties of our citizens.

New Federal Structures

Several recent studies and legislative initiatives proposed new governmental structures toalleviate what they contend is the federal Government's fragmented approach to homeland security. Recommendations dealing with combating terrorism issues range from creating an independenthomeland defense agency responsible for the entire spectrum of security to reorganizing the existingstructure with more focus on current terrorism issues and threats. These recommendations tendedto concentrate on the consequence management side of the combating terrorism issue - how thenation should prepare to respond to the aftermath of a successful terrorist attack. Many of thesedebates were resolved when the Administration proposed and Congress mandated the formation ofthe Department of Homeland Security, formed in January 2003. (53) The narrower mission ofcrisis response - interdicting or deterring an attack with either law enforcement or military forces -receives much less attention in the proposals.

Many of the suggestions for creating a new agency were grounded in the perceived need fora unified national framework for combating terrorism. The new structure would be responsible forplanning and integrating the activities of the multiple government agencies involved in terrorismpolicy, budget considerations, and operations. Most importantly supporters say, the agency wouldcoordinate the federal response with local and state authorities to make full use of all resourcesavailable. While all these suggestions may make great strides towards focusing federal, State, andlocal consequence management programs on the current challenges, they do not necessarily makea contribution to crisis response issues.

Many argue that the existing operational capabilities, processes, and procedures that the FBIpossesses as the Lead Federal Agency for domestic crisis management are currently working wellwith DoD as a supporting agency. By most accounts, the FBI has a clear and unambiguousrelationship with military crisis response forces. Military training in domestic law enforcementscenarios is sufficient to prepare for the employment of crisis response forces in a support role underthe lead of the FBI. Exercises designed to simulate both technical assistance and tactical support ofa domestic terrorist incident, including the use of WMD, have been successful. (54) The statutory andregulatory authorities guiding the use of the military in domestic situations tends to complicate theadministrative process of military involvement, thereby slowing down the operational response. But,advocates claim that the existing processes and structures for terrorism crisis response appear towork well overall while protecting civil liberties.

Congressional Oversight

Congress has taken a proactive approach to the significant challenges associated withcombating terrorism. Recent legislation like the Nunn-Lugar-Domenici Domestic PreparednessProgram has been successful in enhancing domestic consequence management capabilities at thefederal, State, and local levels. However, other attempts to legislate policy and structure forcombating terrorism have been less successful. Proposals to create an Office of TerrorismPreparedness and a new Deputy Attorney General for Combating Domestic Terrorism during the lastCongressional session, while initially receiving wide support, were eventually not approved whenthe final version of the bill emerged. The proposals were an attempt to create a structure that wouldhave budgetary and policy oversight on the dozens of departments and agencies responsible forresponding to terrorist attacks. With over $11 billion in the fiscal year 2001 combating terrorismbudget, Congressional oversight of increasingly complex and rapidly growing programs is aconsiderable task.

Responsibility for reviewing the combating terrorism budget is now divided among a numberof key Congressional committees in both houses. Several recent studies have recommend a newapproach to providing oversight for both combating terrorism policy and budget. A special jointcommittee or one in each chamber with a full-time staff having the necessary experience andbackground in terrorism issues that would bridge these jurisdictional boundaries has beenproposed. (55) Proponentspoint to the permanent select committees on intelligence that each chamber now employs foroversight of an equally complicated issue. The objective is to help eliminate duplication in programsand funding and develop a more coherent national plan for combating terrorism.

Additionally, Congress may wish to undertake a thorough review of the current statutes andother legislation affecting domestic combating terrorism policy, with a view toward facilitatingincreased cooperation among federal agencies charged with combating terrorism responsibilities.

Conclusion

Most experts agree that the United States is vulnerable to terrorism. While intelligenceexperts contend that the use of a WMD is less likely than the more conventional forms of terrorism,the consequences of a successful attack could be massive. Many believe that current U.S. policy fordealing with domestic terrorism lacks coherent focus. Recent proposals for restructuringnational-level organizations to deal with a major terrorist event have mostly centered on theconsequence management aspect. Crisis response cooperation between the FBI and the military iswell demonstrated. The military has demonstrated that it understands its supporting role to lawenforcement and is prepared to act with technical assistance or tactical forces as called upon. Recentchanges in the NSC policy structure will most probably take some time to have an effect on policyor operational issues. Additionally, reshaping national strategy on domestic terrorism, more clearlyarticulating the military's statutory authority or limitations in domestic situations, and providingcritical and focused congressional oversight and assistance to those functions would clearly enhancethe capabilities of crisis response forces to deter or interdict a possible terrorist incident.