Homeland security: definitions and accountability

Abstract

Counter-terrorism measures must be developed that are both effective and meet accountability standards. This article approaches the issue by: (1) proposing a matrix facilitating the measurement of the effectiveness or ineffectiveness of a particular counter-terrorism measure; and (2) proposing an accountability matrix for measuring the effectiveness of particular measures. The article's central focus is on developing criteria for measuring effective counter-terrorism – premised on the rule of law, policy considerations and the limits of power. If utilised, these criteria will provide empirical evidence that particular counter-terrorism measures in actuality contribute to effective and legal counter-terrorism.

Keywords:

• homeland security
• effectiveness and accountability
• threats to homeland security
• balancing individual liberties
• infrastructure

Acknowledgement

With thanks to Jason Shelton (JD expected 2014), S. J. Quinney College of Law, University of Utah, for his editorial assistance.

Notes on contributor

Amos N. Guiora is Professor of Law and Co-Director of the Center for Global Justice, S. J. Quinney College of Law, University of Utah. He is also a Research Associate at the Oxford Institute for Ethics, Law and Armed Conflict; a Research Fellow at the International Institute on Counter-Terrorism, Interdisciplinary Center, Herzylia, Israel; and a Corresponding Member, Netherlands School of Human Rights Research, University of Utrecht School of Law. His recent books include Homeland Security: What Is It and Where Are We Going? (CRC Press/Taylor & Francis, 2011); Freedom from Religion: Rights and National Security (Oxford University Press, 2009, 2012); Legitimate Target: A Criteria-based Approach to Targeted Killing (Oxford University Press, 2013); Modern Geopolitics and Security: Strategies for Unwinnable Conflicts (CRC Press, 2013); and Tolerating Intolerance: The Price of Protecting Extremism (Oxford University Press, 2013).

Notes

1. See, further, the article by Appleton in this issue.

2. Amos N. Guiora, ‘Written Testimony Before a Hearing of the Committee on Homeland Security, US House of Representatives’, in The Resilient Homeland: How DHS Intelligence Should Empower America to Prepare for, Prevent, and Withstand Terrorist Attacks (U.S. Government Printing Office, May 2008) 11; http://www.gpo.gov/fdsys/pkg/CHRG-110hhrg43940/html/CHRG-110hhrg43940.htm.

3. Homeland Security Council, National Strategy for Homeland Security (Washington, DC: HSC, 2007), 3, http://www.dhs.gov/xlibrary/assets/nat_strat_homelandsecurity_2007.pdf.

4. Joint Publication 3–27 , Homeland Defense (Washington, DC, 2013), I-1, http://www.dtic.mil/doctrine/new_pubs/jp3_27.pdf.

5. Homeland Security Council, National Strategy for Homeland Security, 13.

6. Department of Defense, Strategy for Homeland Defense and Civil Support (Washington, DC: DoD, 2005), 5, http://www.defenselink.mil/news/Jun2005/d20050630homeland.pdf.

7. Ibid.

8. Amos N. Guiora, Global Perspectives on Counterterrorism (New York: Aspen Publishers, 2007), 139.

9. Wayne McCormack, Legal Responses to Terrorism (San Francisco: LexisNexis/Matthew Bender, 2005), 10.

10. Executive Order No. 13228, 66 F.R. 51812, http://www.dojgov.net/13228.pdf ‎ (accessed December 27, 2013).

11. Homeland Security Council, National Strategy for Homeland Security, 3. See also Department of Homeland Security, ‘Strategic Plan Fiscal Years 2012–2016′, 2 , Feb. 2012, https://www.dhs.gov/xlibrary/assets/dhs-strategic-plan-fy-2012-2016.pdf.

12. Homeland Security Council, National Strategy for Homeland Security, 1.

13. Paul Light and James Lindsay, Council on Foreign Relations, ‘Views of Homeland Security’, Washington Times, July 25, 2002, http://www.cfr.org/world/views-homeland-security/p6395.

14. Homeland Security Council, National Strategy for Homeland Security, 15.

15. Ibid., 19.

16. Foreign Intelligence Surveillance Act of 1978, 50 USC 1801, http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg1783.pdf.

17. Protect America Act of 2007, 50 USC 1801, http://www.intelligence.senate.gov/laws/pl11055.pdf.

18. Homeland Security Council, National Strategy for Homeland Security, 21.

19. Ibid., 16.

20. Ibid.

21. Light and Lindsay, ‘Views of Homeland Security’.

22. Stephen Flynn, Council on Foreign Relations, ‘Report Card’, October 25, 2006, http://www.cfr.org/publication/11814/flynn.html. Stephen Flynn, Council on Foreign Relation's senior fellow for national security studies, considers the state of homeland security five years after the creation of the Office of Homeland Security, handing out grades A – F representing performance levels in several vulnerable key areas of homeland security. See also US Department of Homeland Security, ‘Annual Performance Report for Fiscal Years 2010–2012’, http://www.dhs.gov/xlibrary/assets/cfo_apr_fy2010.pdf; and Stephen Flynn, ‘Recalibrating Homeland Security: Mobilizing American Society to Prepare for Disaster’, Foreign Affairs 90, no. 3 (2011), 130–140. ‘The Bush administration's emphasis on combating terrorism overseas meant that it devoted limited strategic attention to the top-down law enforcement and border-focused efforts of the federal departments and agencies assigned new Homeland Security responsibilities. President Barack Obama has largely continued his predecessor's policies, and congressional oversight has been haphazard.’

23. Stephen Flynn and Jeane Kirkpatrick, ‘Written Testimony Before a Hearing of the Committee on Homeland Security and Governmental Affairs, US Senate’, The Department of Homeland Security: The Way Ahead After a Rocky Start (2005), http://www.cfr.org/publication/7643/department_of_homeland_security.html.

24. Ibid.

25. Ibid.

26. Ibid.

27. Homeland Security Council, National Strategy for Homeland Security, 27.

28. Flynn, ‘Report Card’.

29. Ibid.

30. Ibid.

31. Ibid.

32. Ibid.

33. Symposium, ‘Homeland Security, Law, and Policy through the Lens of Critical Infrastructure and Key Asset Protection’, Jurimetrics Journal 47 (2007): 259, 260.

34. Department of Homeland Security, National Infrastructure Protection Plan (Washington, DC: DHS, 2009), https://www.dhs.gov/sites/default/files/publications/NIPP_Plan.pdf.

35. Lucy L. Thompson, ‘Critical Issues in Identity Management – Challenges for Homeland Security’, Jurimetrics Journal 47 (2007): 335, 348.

36. Ibid., 337.

37. Ibid.

38. Ibid., 333.

39. See Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, P.L. 109–13 ss 201–207, 119 Stat. 231, 312–16 (2005).

40. Ibid., 343.

41. Ibid., 347.

42. See Federal Financing Institutions Examination Council, http://www.ffiec.gov/default.htm (accessed December 17, 2013).

43. Ibid., 346. See also FFIEC Central Repository's Public Data Distribution website for compliance reports, https://cdr.ffiec.gov/public/.

44. Flynn, ‘Report Card’.

45. Flynn & Kirkpatrick, ‘Written Testimony’.

46. Homeland Security Council, National Strategy for Homeland Security, 18.

47. Flynn & Kirkpatrick, ‘Written Testimony’.

48. Homeland Security Council, National Strategy for Homeland Security, 18.

49. Ibid.

50. Light and Lindsay, ‘Views of Homeland Security’.

51. Homeland Security Council, National Strategy for Homeland Security, 31.

52. Flynn, ‘Report Card’.

53. Guiora, Global Perspectives on Counterterrorism, 14.

54. Ibid., 15, quoting Alan Cullison, ‘Inside Al Qaeda's Harddrive’, Atlantic Monthly, Sept. 2004.

55. Benjamin Franklin, Pennsylvania Assembly, ‘Reply to the Governor, 11 November 1755’, in The Papers of Benjamin Franklin, ed. Leonard W. Labaree, vol. 6 (New Haven: Yale University Press, 1963), 242.

56. Guiora, Global Perspectives on Counterterrorism, 63.

57. The Geneva Convention states that minimising collateral damage is a requirement of international law and nations must limit collateral damage in times of war. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) art. 57 (2).

58. Guiora, Global Perspectives on Counterterrorism, 19.

59. Ibid., 242.

60. Sec. 216, H.R. 1, Implementing the 9/11 Commission Recommendations Act of 2007, http://www.cfr.org/content/publications/attachments/911.pdf (accessed December 17, 2013). The Assistant Secretary for Infrastructure Protection must compile an annual report notifying Congress of the following: (1) Changes in the infrastructure vulnerability from the year before; (2) Explanation of the greatest risks facing the country; (3) Recommendations to mitigate those risks.

61. ‘One example might be dissemination of preparedness information about potential threats and emergency plans. The state of California currently has a law pending that would require the State Department of Education to electronically distribute disaster preparedness educational materials and lesson plans that are currently available to local education agencies.’ Amos Guiora and Kyle McKenzie, ‘A Framework for Evaluating Counterterrorism Regulations’, Mercatus Policy Series, Policy Resource No. 3 (2006): 25–26, quoting Assembly Bill No. 103, California Legislature 2005–06 Regular Sessions, Legislative Counsel's Digest, last amended 22 May 2006, http://www.homeland.ca.gov/legislative.html.

62. 9/11 Commission, Final Report of the National Commission on Terrorist Attacks upon the United States (Washington, DC: US Government Printing Office, 2004), 364.

63. Ibid., 364–5.

64. Guiora, Global Perspectives on Counterterrorism, 75.

65. See Public Law 107–40, Authorization for Use of Military Force (September 18, 2001), http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf.

66. Suzanne Uniacke, ‘On Getting One's Retaliation in First’, in Preemption: Military Action and Moral Justification, eds. Henry Shue and David Rodin (Oxford: Oxford University Press 2007), 88.

67. Homeland Security Act of 2002, 6 USC 101.

68. See Office of Management and Budget, ‘Program Assessment Rating Tool (PART)’, http://www.whitehouse.gov/omb/performance_past (accessed December 17, 2013).

69. DHS, ‘PART Program Ratings’, http://georgewbush-whitehouse.archives.gov/omb/expectmore/agency/024.html; and http://www.dhs.gov/xlibrary/assets/cfo_aprappc_fy2008.pdf (accessed December 17, 2013).

70. Ibid.

71. Pam Fessler, ‘Experts Challenge Homeland Security Strategy’, http://www.npr.org/templates/story/story.php?storyId=18118652 (accessed October 28, 2013).

72. Program Assessment, FBI Counterterrorism Program, http://www.whitehouse.gov/omb/expectmore/summary/10003802.2005.html (accessed October 28, 2013).

73. Ibid.

74. Testimony of Robert S. Mueller, III, Director, FBI, Before the Select Committee on Intelligence of the United States Senate, February 24, 2004, ‘Success in The War on Terrorism’, http://www.au.af.mil/au/awc/awcgate/fbi/mueller022404.htm.

75. Program Assessment, FBI Counterterrorism Program.

76. Martin S. Feldstein, ‘Designing Institutions to Deal with Terrorism in the United States’, American Economic Review 98, no. 2 (2008): 122–6, http://nrs.harvard.edu/urn-3:HUL.InstRepos:2920114; and Designing Institutions to Deal with Terrorism in the United States, National Bureau of Economic Research (NBER) Working Paper 137299 (Washington, DC: NBER, 2008), http://www.nber.org/papers/w13729.

77. Ibid., 10–11.

78. Program Assessment, FBI Counterterrorism Program.

79. Program Assessment, Transportation Security Administration, http://www.whitehouse.gov/omb/expectmore/summary/10003632.2006.html (accessed October 30, 2013).

80. Ibid; and Program Assessment, FBI Counterterrorism Program.

81. Program Assessment, Transportation Security Administration.

82. Statement of Gerald L. Dillingham to the National Commission on Terrorist Attacks Upon the United States, April 1, 2003, http://govinfo.library.unt.edu/911/hearings/hearing1/witness_dillingham.htm.

83. CIA, ‘What We Do’, https://www.cia.gov/about-cia/todays-cia/what-we-do/index.html (accessed October 30, 2013).

84. Ibid.

85. Ibid.

86. See, for example, El-Masri v. Former Yugoslav Republic of Macedonia, App no 39630/09, 13 December 2012.

87. OIG, Report on Accountability of CIA with Respect to the 9/11 Attacks (Washington, DC: US Congress, 2005), Executive Summary, http://www.fas.org/irp/cia/product/oig-911.pdf.

88. 10 U.S.C.A. s 111.

89. U.S.C.A Art. 1 s 8 cl. 11.

90. 10 U.S.C.A. s 372.

91. See http://www.whitehouse.gov/omb/expectmore/rating/all.html.

92. See also http://oig.state.gov/documents/organization/105953.pdf.

93. Department of State, FY 2008 Performance Report, http://www.state.gov/documents/organization/114172.pdf (accessed October 25, 2013).

94. See, further, the paper by Mueller and Stewart in this issue.