[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE RESILIENT HOMELAND: HOW DHS INTELLIGENCE SHOULD EMPOWER AMERICA TO
PREPARE FOR, PREVENT, AND WITHSTAND TERRORIST ATTACKS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION
SHARING, AND TERRORISM RISK ASSESSMENT
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MAY 15, 2008
__________
Serial No. 110-115
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Edward J. Markey, Massachusetts Lamar Smith, Texas
Norman D. Dicks, Washington Christopher Shays, Connecticut
Jane Harman, California Mark E. Souder, Indiana
Peter A. DeFazio, Oregon Tom Davis, Virginia
Nita M. Lowey, New York Daniel E. Lungren, California
Eleanor Holmes Norton, District of Mike Rogers, Alabama
Columbia David G. Reichert, Washington
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Charles W. Dent, Pennsylvania
Donna M. Christensen, U.S. Virgin Ginny Brown-Waite, Florida
Islands Gus M. Bilirakis, Florida
Bob Etheridge, North Carolina David Davis, Tennessee
James R. Langevin, Rhode Island Paul C. Broun, Georgia
Henry Cuellar, Texas Candice S. Miller, Michigan
Christopher P. Carney, Pennsylvania
Yvette D. Clarke, New York
Al Green, Texas
Ed Perlmutter, Colorado
Bill Pascrell, Jr., New Jersey
Jessica Herrera-Flanigan, Staff Director & General Counsel
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
______
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING, AND TERRORISM RISK
ASSESSMENT
Jane Harman, California, Chair
Norman D. Dicks, Washington David G. Reichert, Washington
James R. Langevin, Rhode Island Christopher Shays, Connecticut
Christopher P. Carney, Pennsylvania Charles W. Dent, Pennsylvania
Ed Perlmutter, Colorado Peter T. King, New York (Ex
Bennie G. Thompson, Mississippi (Ex Officio)
Officio)
Thomas M. Finan, Director and Counsel
Brandon Declet, Counsel
Natalie Nixon, Deputy Chief Clerk
Deron McElroy, Minority Senior Professional Staff Member
(II)
C O N T E N T S
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Page
Statements
The Honorable Jane Harman, a Representative in Congress From the
State of California, and Chair, Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment............. 1
The Honorable David G. Reichert, a Representative in Congress
From the State of Washington, and Ranking Member, Subcommittee
on Intelligence, Information Sharing, and Terrorism Risk
Assessment..................................................... 2
Witnesses
Dr. Stephen E. Flynn, Ph.D., Jeane J. Kirkpatrick Senior Fellow
for National Security Studies, Council on Foreign Relations:
Oral Statement................................................. 4
Prepared Statement............................................. 6
Mr. Amos N. Guiora, Professor of Law, University of Utah:
Oral Statement................................................. 9
Prepared Statement............................................. 11
Mr. R.P. Eddy, Executive Director, Center for Policing Terrorism,
the Manhattan Institute for Policy Research:
Oral Statement................................................. 17
Prepared Statement............................................. 19
THE RESILIENT HOMELAND: HOW DHS INTELLIGENCE SHOULD EMPOWER AMERICA TO
PREPARE FOR, PREVENT, AND WITHSTAND TERRORIST ATTACKS
----------
Thursday, May 15, 2008
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment,
Washington, DC.
The subcommittee met, pursuant to call, at 10:08 a.m., in
Room 311, Cannon House Office Building, Hon. Jane Harman [chair
of the subcommittee] presiding.
Present: Representatives Harman, Dicks, Perlmutter,
Reichert, Shays, and Dent.
Ms. Harman. The subcommittee will come to order.
We meet today to receive testimony on ``The Resilient
Homeland: How DHS Intelligence Should Empower America to
Prepare for, Prevent and Withstand Terrorist Attacks.''
For more than 6 years, the Bush administration has been
relentlessly sounding the alarm about apocalyptic terrorist
groups, but meaningful guidance to first responders about what
to look for and what to do about these apocalyptic terrorist
groups has been in short supply.
One of today's witnesses, a valued friend and counselor,
Dr. Stephen Flynn, labels this a ``toxic mix of fear and
helplessness'' in his recently published article, ``America the
Resilient.'' He sees it increasing the risk that the U.S.
Government will overreact to another terrorist attack. I agree.
What Dr. Flynn says about resiliency and information-
sharing is also on the mark. He says, ``After decades of
combating Soviet espionage during the Cold War, the Federal
security establishment instinctively resists disclosing
information for fear that it might end up in the wrong hands.
Straight talk about the country's vulnerabilities and how to
cope in emergencies is presumed to be too frightening for
public consumption.''
Well, in my view, the American people deserve honesty about
what threatens us and deserve an open discussion about what we
need to do to protect ourselves and our families from the
terrorists who want to kill us. Make no mistake: There are
terrorists out there who want to kill us.
This subcommittee has spent the last year-and-a-half
working to get intelligence right for State, local and tribal
law enforcement officers, the people who will most likely see
something out of place and act to prevent the next attack.
Starting with the information needs of State and locals is the
way to go. I think we are unanimous, on a bipartisan basis,
about that, and so is Matt Bettenhausen of California, Juliet
Kayyem of Massachusetts, Frank Cilluffo at GW, who testified at
last month's hearing.
There is good news here. Let me be clear, there is good
news here. Police and sheriff's officers increasingly see
themselves as our Nation's first preventers. That is a term we
use here too, but they use it. Obviously, it makes much more
sense to prevent or disrupt an attack than to respond to one.
At the same time, they have started to understand the full
impact of what ``prevention'' means, that the critical
infrastructure in their communities--power plants, mass
transit, public health, chemical facilities, roadways, bridges
and telecom--are all part of their protective responsibility.
We are finally making progress, a point I stressed at a
major conference in San Francisco in March. The Department of
Homeland Security's intelligence products are better. They
include some local input, and put first preventers in the
private sector on notice about a number of things: which terror
plots most threaten the homeland; what State, local and tribal
private-sector leaders should be doing to prepare for them so
we can bounce back quickly; and how best to put those
preparations into action, by running drills and exercises and
testing the resiliency of the systems we are establishing.
By honestly assessing our vulnerabilities and preparing all
levels of government, the private sector and the public to
protect against them, we will become more and more secure in
our ability to withstand attacks from our enemies.
After all, what is terrorism? Terrorism is the ability to
terrify. If we are prepared, or as prepared as we can be, we
will surely be less terrified and surely have more capability
to prevent attacks.
I look forward to the testimony this morning. This is an
excellent panel. I welcome all our witnesses.
I now yield to the Ranking Member, Sheriff Reichert, for
his opening remarks.
Mr. Reichert. Thank you, Madam Chair.
Good morning and thank all of you for being here this
morning with us. We look forward to your testimony and your
responses to our questions.
While the Department of Homeland Security's Office of
Intelligence and Analysis should be primarily focused on
preventing terrorist attacks, they do have a role in resiliency
and in ensuring that they have a full continuity of operational
plans in place in case of a terrorist attack.
As a part of these efforts, the Department of Homeland
Security is working to ensure that they can provide the
services that State and local governments need to prevent
future attacks and recover from any attacks that may take
place.
In order to help with these resiliency efforts, the
Department has worked hard to create an information-sharing
system that is multilayered and fairly resilient. In addition
to off-site facilities that can house analysts and intel
components, DHS has several information-sharing councils that
they can use to share information.
These councils and information-sharing mechanisms, however,
are only as good as the resiliency of the communications
backbone. DHS has worked to create an unclassified Homeland
Security Information Network, called HSIN, that is available
from any computer terminal, making HSIN available even when
other Government facilities are not.
For secure communications, DHS has also built
communications resiliency through the Homeland Secure Data
Network and secure voice communications. Additionally,
intelligence and analysis communications will benefit immensely
from the legacy systems deployed to the fusion centers across
the country. Many fusion centers have Department of Defense
networks and communication through FBI, ICE, CBP and the Coast
Guard. Ironically, one of the many things that we hear
complaints about multiple networks and information systems may
actually be helpful in making sure that States and locals have
effective communication channels in the wake of an attack.
Finally, while threat information can help prevent terrorism,
specific information on the composition of the threat when
available can help manage the consequences of an attack.
I look forward to hearing from our witnesses today on what
else I&A has done to aid resiliency and what they may be able
to better do before the next attack.
I yield.
Ms. Harman. I thank the Ranking Member.
Other members of the subcommittee are reminded that, under
the committee rules, opening statements may be submitted for
the record.
It is now time to welcome our witness.
Our first witness, Dr. Stephen Flynn, is the Jeane J.
Kirkpatrick senior fellow for national security studies at the
Council on Foreign Relations, where we he directs an ongoing
private-sector working group on homeland security. Dr. Flynn is
a consulting professor at the Center of International Security
and Cooperation at Stanford and a senior fellow at the Wharton
School of Risk Management and Decision Processes Center at the
University of Pennsylvania.
From August 2000 to February 2001, Dr. Flynn served as the
lead consultant to the U.S. Commission on National Security. He
served in the White House Military Office during the George H.
W. Bush administration and as director for the global issues on
the National Security Council staff during the Clinton
administration. He is the author of many books and someone I
call when I want to understand this issue better.
Our second witness, Amos Guiora, is professor of law at the
S.J. Quinney College of Law at the University of Utah.
Professor Guiora teaches criminal law, global perspectives on
counterterrorism, religion and terrorism, and national security
law. His publications include the published case book, ``Global
Perspectives on Counterterrorism,'' as well as the forthcoming
titles, ``Constitutional Limits on Coercive Interrogation'' and
``Terrorism Primer.''
Professor Guiora writes and lectures extensively on issues
such as legal aspects of counterterrorism, global perspectives
of counterterrorism, terror financing, international law, and
morality in armed conflict. He served for 19 years in the
Israel Defense Forces Judge Advocate General Corps, where he
held a number of major senior command positions.
Our third witness, R.P. Eddy, is a senior fellow for
counterterrorism at the Manhattan Institute and the executive
director for the Center for Policing Terrorism, CPT. He is also
CEO of Ergo Advisors. Mr. Eddy has worked with the NYPD, LAPD,
the Greek Government, the United Nations, and various
multinational corporations on terrorism and security issues. He
is founding member of the International Counterterrorism
Academic Community.
Previously, Mr. Eddy was senior policy officer to the U.N.
Secretary General, as director the counterterrorism at the
White House National Security Council, chief of staff to the
U.S. Ambassador to the United Nations, Richard Holbrooke;
senior advisor for intelligence and counterterrorism to the
Secretary of Energy; and a U.S. representative to international
negotiations, including the creation of the International
Criminal Court.
Obviously, we have people who know this subject inside and
out.
The subcommittee welcomes you.
Without objection, your full statements will be inserted in
the record, and I urge you to summarize your statements, each
of you, to summarize your statements for 5 minutes. There is a
little clock that will start beeping close to 5 minutes. In
order to allow time for questions, I will try to cut you off.
Finally, let my say in advance, we are expecting procedural
votes on the floor this morning, so this hearing may have to be
recessed a couple of times. Hopefully, if we are very
efficient, we will be able to do this and then leave for votes.
Dr. Flynn, you are the first witness.
STATEMENT OF STEPHEN E. FLYNN, PH.D., JEANE J. KIRKPATRICK
SENIOR FELLOW FOR NATIONAL SECURITY STUDIES, COUNCIL ON FOREIGN
RELATIONS
Mr. Flynn. Thank you very much. It is an honor to be before
you today and the distinguished members of this subcommittee on
this hearing, which I really commend your leadership for
hosting.
To some extent, I increasingly describe myself as a bit
like a reformed, recovering alcoholic, as a reformed national
security guy. Reformed in two ways: first, in having to come to
grips with the inherent limits of the professional tools often
available to national security professionals to deal with the
threat that we must as a Nation deal with in this post-9/11
world; and, second, for underestimating the capacity of the
American people to play an essential role in supporting that.
I would argue that I, like many of the generation of folks
who are now at the front lines in our national security
apparatus, are creatures of a Cold War where essentially the
security was in the hands of a few while we, as everyday
citizens, went about our lives. Problems were managed beyond
our shores, and they were managed with the tools that we have
available and dominate in, in terms of what other nations have
around the world.
But I make the case in my written testimony, and it is one
that I feel increasingly more passionate about, that really,
with the benefit of hindsight, we missed one of the most
important and, I would argue, critical lessons of September 11.
Nine-eleven taught us not only that we have a determined
adversary who is intent on exploiting vulnerabilities here at
home to cause mass destruction and disruption, but also that
the greatest asset we have as our Nation is the ``we, the
people'' part.
That story is really captured in, not the first three
airplanes, but the fourth, United 93. United 93 was, of course,
the plane that got off the ground late, and it was the one
plane where the passengers on board got information that was
critical for them to do something extremely important in time
enough for them to act. They got that information not because
it was shared with them via the U.S. Government, but they got
it in the course of frenzied phone calls made to friends and
loved ones in the heart of the emergency, where they found out
something that, again, parts of our U.S. Government knew but
the general public did not know, which is that we had an
adversary out there intent on taking an airplane and turning it
into a missile.
Armed with that information, those passengers did something
that was critical for this body, as well as for the other
branch of Government just down the other end of Pennsylvania
Avenue. Armed that with information, they charged the cockpit
and kept that target--foiled al Qaeda from reaching its likely
intended target, which was here in Washington.
There is an enormous irony and, in a larger sense, I would
argue, a quintessentially heroic part of the American narrative
captured in what those passengers did. The people who are
gathered in this town with the sworn obligation, as our
Constitution requires, of providing for the common defense
were, themselves, on September 11 defended by one thing alone:
an alerted, brave, everyday citizenry.
The Air Force did not know the plane had been taken hostage
and was heading this way. There were no Federal air marshals
aboard the plane. The only thing that kept it from reaching its
intended target was the alerted, courageous, everyday Americans
who were gathered in that plane.
That should have been something we in Washington took as a
very sober lesson with a healthy element of humility: that, in
the end, managing a threat that increasingly will be in the
civil and economic space cannot possibly be achieved without
including as many of the people who occupy it as possible.
Those will turn out to be everyday citizens, State and local
officials, and private-sector leaders.
We should have been working overtime in the immediate
aftermath of September 11, empowering and informing and
inspiring those very same players to be a part of the solution
of managing the terrorist hazard.
Unfortunately, we had a Cold War reflex, which was
essentially to say the national security apparatus of this
country must do whatever it takes, further empowered with new
authorities and resources, to prevent and protect the American
people from this ever happening again.
Now, that is a potent tool, and I want to continue to use
it. But the nature of this threat, again, as 9/11 should have
taught us, is in a place which is more likely to be occupied by
civilians than it is by our active-duty military, our spies or
Federal law enforcement apparatus.
What this screams to is the imperative that this hearing is
holding, is a need to get information out to the people who are
most likely to be the first preventers and the first
responders, and engaging them in meaningful ways to deal with
this hazard.
What we have is enormous structural barriers, a culture
that grew up in the Cold War that treats the American people as
either potential victims or possibly, because they haven't been
vetted, as part of the problem, but also the classification
schemes and so forth that we have in place that make it
difficult to get that information out to them.
So I would be happy, of course, to address a lot of these
issues and some of the recommendations I have here in my
testimony during the questions. But I think what is fundamental
here--and I hope this hearing can help to develop, and it is
clearly something we will probably have to look toward in the
next administration regardless of party--but is a change in
course that really empowers and enables and inspires the
American people to be a part of the solution and make sure that
the Department of Homeland Security is able to provide them
those tools.
[The statement of Mr. Flynn follows:]
prepared statement of stephen e. flynn
May 15, 2008
Chairwoman Harman, Ranking Member Reichert, and distinguished
members of the House Subcommittee on Intelligence, Information Sharing
and Terrorism Risk Assessment, thank you for inviting me to provide an
assessment of the current U.S. Government efforts to share intelligence
and homeland security information with the American public. This issue
has for too long received only cursory attention, and I commend your
leadership for holding this important hearing today.
As a stepping off point, it is my strongly held view that the
single greatest lapse in leadership in response to the attacks of
September 11, 2001 was the failure of the White House and Congress to
look beyond the U.S. military and the national and homeland security
agencies in formulating its response to the terrorist threat. As a
result, it has neglected the Nation's greatest asset: the legacy of
American grit, volunteerism, and ingenuity in the face of adversity.
Instead, the Bush administration has sent a mixed message, declaring
terrorism to be a clear and present danger while, at the same time,
telling Americans to just go about their lives. Unlike during World War
II when everyday people, industry leaders, and local and State
officials were mobilized in a national effort, since 9/11, national
security and homeland security officials have too often treated
citizens as potential security risks to be held at arm's length or like
helpless children in need of protection.
Overwhelmingly, the national defense and Federal law enforcement
community have chosen secrecy over openness when it comes to providing
the general public with details about the nature of the terrorist
threat and the actions required to mitigate and respond to that risk.
Officials reflexively assert that candor would only ``provide ideas to
the terrorist and spook the public.'' Not only is this instinct
shortsighted and counterproductive, I would argue it ignores what
should have been one of the central lessons from the 9/11 attacks.
In retrospect, it is remarkable that Washington has done so little
to enlist citizens and the private sector in addressing the
vulnerability of the Nation to catastrophic terrorism. September 11
made clear two things. First, the targets of choice for current and
future terrorists will be civilians and infrastructure. Second,
safeguarding those targets can only be accomplished with an informed,
inspired and mobilized public. The first preventers and the first
responders are far more likely to be civilians and local officials, not
soldiers or Federal law enforcement officers.
The prevailing interpretation of September 11 focuses almost
entirely on the three airliners that struck the World Trade Center
towers and the Pentagon. President Bush concluded from those attacks
that the U.S. Government needs to do whatever it takes to hunt down its
enemies before they kill innocent civilians again. He has essentially
said that this is a job that must be left to more fully empowered and
resourced national security professionals. However, as I recently
outlined in an article published in the March/April 2008 issue of
Foreign Affairs, it is the story of United Airlines flight 93, the
thwarted fourth plane which crashed 140 miles from its likely
destination--the U.S. Capitol or the White House--that ought to have
been the dominant 9/11 narrative.
United 93 passengers foiled al Qaeda without any help from the U.S.
Government. The North American Aerospace Defense Command (NORAD) could
not intercept the flight. Officials did not even know that the plane
had been hijacked. There were no Federal air marshals aboard. The
passengers of United 93 mobilized to thwart their terrorist hijackers
because they knew the hijackers' intention. United 93 was the last of
the hijacked planes to get off the ground. Once the terrorists took
control, they did not prevent passengers from making urgent calls to
family and friends. These passengers found out something that their
counterparts on the three earlier flights discovered only after it was
too late to act: that the terrorists were on a suicide mission, intent
on using the commandeered jet airline as a deadly missile. Armed with
that information, the everyday Americans aboard United 93 did something
very important: they charged the cockpit and prevented the plane from
reaching its intended target.
In the aftermath of September 11, Washington should have soberly
embraced the implications of what was both an ironic and
quintessentially American testament of national strength: that the
legislative and executive centers of the U.S. Federal Government, whose
constitutional duty is ``to provide for the common defense,'' were
themselves defended that day by one thing alone: an alert and heroic
citizenry. With regret, government officials should have acknowledged
that the brave passengers aboard United 93 accomplished what they did
without an advance warning of the threat, despite the fact that
intelligence had been collected by the U.S. Government that terrorists
were intent on using planes as missiles. That information had to be
learned by way of frantic calls to family and friends during the height
of the emergency.
We will never know what might have happened aboard American Flight
11 or United Flight 175--the two planes flown into the World Trade
Center towers in New York--if those passengers knew what their
counterparts on United 93 were able to learn. But we do know that
complying with the terrorist demand to remain quietly in their seat
would have been an appropriate response for people who were relying for
guidance on the pre-9/11 incidents of air hijackings. The pre-9/11
protocol was for passengers to do what they were told and leave it to
professional negotiators or SWAT teams to deal with the captors after
the plane landed. Had the U.S. Government been open about this risk,
would the other plane passengers been more alert to the possibility
that they were not involved in a conventional hijacking? Would they
have decided to marshal a counterattack? Sadly, it never occurred to
senior officials to share this critical information with the general
public. Despite otherwise exemplary work, even the 9/11 Commission
failed to discuss this issue in their final report. And, if anything,
when it comes to developing responses to plausible threat scenarios,
the instinct within the U.S. Department of Homeland Security and across
the U.S. Government has been for officials embrace secrecy instead of
openness.
The discounting of the public can be traced to a culture of secrecy
and paternalism that now pervades the national defense and Federal law
enforcement communities. Though, in historical terms, this culture has
relatively recent roots. From the founding of the American republic
through World War II, everyday citizens were presumed to be willing and
able to contribute to the Nation's security in times of war. It was
only during the cold war that the general public was increasingly
relegated to the sidelines. The immediacy, complexity, and lethality of
the threat of nuclear weapons placed the fate of millions in the hands
of a few. Combating Soviet espionage during this high-stake conflict
resulted in an extensive classification system premised on sharing
information only with well-vetted individuals who were assigned
specific duties that provided them with ``a need to know.'' Despite the
passage of nearly two decades since the fall of the Berlin Wall, this
secretive system remains almost entirely intact. The sanctions for not
protecting classified information from unlawful disclosure include
arrest and imprisonment.
Today we live in an era in which the most likely battlegrounds will
lie outside the conventional military realm. Terrorists will
increasingly target civilians and critical infrastructure which places
a premium on creating open and inclusive processes that provide
meaningful information about threats and vulnerabilities to the
citizens and private sector leaders. These groups are the Nation's best
positioned resources for devising and implementing plans for
safeguarding likely targets, responding to attacks--as the United 93
story highlights--and recovering from them should prevention efforts
fail.
There is another vital imperative for placing greatest emphasis on
information sharing: it is the key ingredient for building the kind of
societal resilience that is essential to depriving al Qaeda and other
terrorists of the fear dividend they hope to reap by attempting to
carry out catastrophic attacks. In military terms, the United States is
too large--and al Qaeda's capacity too limited--for an attack to cause
damage that could weaken U.S. power in any meaningful way. What they
can hope for is to spawn enough fear to spur Washington into
overreacting in costly and self-destructive ways.
Fear arises from the awareness of a threat coupled with a feeling
powerless to deal with it. Although it is impossible to eliminate every
threat that causes fear, Americans do have the power to manage fear as
well as their reactions to it. However, for nearly 7 years, Washington
has been sounding the alarm about weapons of mass destruction and
radical jihadists while providing the American people with no
meaningful guidance on how to deal with these threats or the
consequences of a successful attack. This toxic mix of fear and
helplessness jeopardizes U.S. security by increasing the risk that the
U.S. Government will overreact in the event of another terrorist
attack.
What the Department of Homeland Security should be doing is arming
Americans with greater confidence in their ability to prepare for and
recover from terrorist strikes and disasters of all types. Bolstering
confidence in our resilience will cap fear and in turn undermine much
of the incentive our current and future adversaries have for incurring
the costs and risks of targeting the U.S. homeland.
The United States should be striving to develop the kind of
resilience that the British displayed during World War II when V-1
bombs were raining down on London. Volunteers put the fires out,
rescued the wounded from the rubble, and then went on with their lives
until air-raid warnings were sounded again. More than a half century
later, the United Kingdom showed its resilience once more after suicide
bombers attacked the London Underground with the intent of crippling
the city's public transportation system. That objective was foiled when
resolute commuters showed up to board the trains the next morning.
The approach the Department of Homeland Security should be pursuing
is to gather and share as much threat, response, and recovery
information as possible with private industry and State and local
emergency responders. At the same time, it must place far greater
emphasis on informing and engaging the American public. The key is to
target the relevant audience with threat information that is matched
with specific guidance on how to respond to the threat. To sounds
alarms about the threat without providing people with details on what
they should do only needlessly stokes anxiety. This is the fundamental
problem with the color-coded national alert system.
Undertaking this approach will require far more interaction with
the private sector and civil society than the Department of Homeland
Security can currently support. For instance, the private sector
liaison office at DHS that has been capably led since its inception by
Assistant Secretary Al Martinez-Fonts has only 15 civil service
positions supported by seven contractors. The office responsible for
Ready.Gov and the Citizen Corps is less than half that size. Citizen
Corps has been funded at only $15 million per year, roughly what the
United States is spending each and every hour in Iraq. The vast
majority of contact the public has with the Department of Homeland
Security arises from its interactions with its operational agencies
like TSA, CBP, ICE, the U.S. Coast Guard, and the Secret Service. The
law enforcement and security missions of these organizations have
frequently translated into strained and even adversarial relationships
with private industry and the general public.
This is a formula that guarantees failure. When it comes to
protecting the critical foundations that support our way of life and
quality of life there are few law enforcement or security officials in
government who have an intimate understanding of the design and
operation of the complex infrastructure or who are capable of
recognizing the real versus the perceived issues. Since Federal, State,
and local agencies rarely work well together, if they are left to their
own devices, the result is bound to be a mix of unacknowledged gaps and
misguided or redundant requirements.
The problem boils down to this: the design, ownership, and day-to-
day operational knowledge of many of America's most essential systems
rest almost exclusively with the private sector, both domestic and
foreign. But the security of these systems throughout and following the
cold war era has been handled almost exclusively by military, national
security, and Federal law enforcement professionals. Government
officials are unable to protect things about which they have only a
peripheral understanding and over which they have limited jurisdiction,
and the market, left on its own, is unlikely to provide the socially
desired level of security and dependability.
What is required is a truly collaborative approach which engages
civil society and taps extensive private-sector capabilities and
ingenuity for managing risk and coping with disasters. A critical
barrier to advancing collaboration is excessive secrecy throughout the
Federal Government reinforced by a reflexive tendency to classify
material or to designate it as ``For Official Use Only'' or ``Treat as
Classified.'' This instinct is enormously counterproductive since it
holds the process of information system hostage to a completely
overwhelmed and increasingly dysfunctional security clearance process.
In order to successfully accomplish its core mission, the Department of
Homeland Security should be taking the lead within the Federal
Government in instituting controls to prevent the inappropriate
classification of information and to work aggressively to declassify
material so that vital information reaches the people who are best
positioned to act on it.
The Department of Homeland Security should be provided with a clear
mandate for public outreach and 750 new positions to be deployed to
major cities around the country and at its headquarters. Each morning
these individuals should arrive at their office and respond to this
question: ``Who needs homeland security-related information and how can
I work to get it to them?'' DHS should be the chief Federal conduit for
sharing intelligence and threat, response, and recovery information
with the Nation. They should lead the charge of moving the intelligence
community away from its cold war ``need-to-know'' paradigm and toward
the essential ``need-to-share'' paradigm that today's threat imperative
requires.
Three tactical changes should be made immediately to help signal
the overdue change in direction on information sharing. First, DHS
should abandon the color-coded national alert system. Its fatal flaw is
that it provides no meaningful guidance to the general public on what
they should do. An alert system will never work at the national level.
It must be tailored to regions, communities, and sectors where there is
a known audience. Second, DHS should embrace the notion of
``resilience'' as a core strategic objective. Resilience is a concept
that has the advantage of being an adult-like acknowledgment that
disasters cannot always been prevented, but pragmatic measures can be
taken to minimize the risk of occurrence and the consequences that can
flow from them. In addition, resilience can only be achieved by an open
and inclusive process that serves as a check on the secretive instincts
of security professionals. Third, DHS must commit itself to making
information sharing with local officials, the private sector, and the
general public a two-way street with robust capabilities in place to
support this. Only if DHS is committed to leading a team-effort will it
achieve its mission.
In the end, it is essential that the next administration revisit
the excessive reliance President Bush has placed on the U.S. military
and intelligence community for dealing with the dangers associated with
terrorism. These capabilities were developed for a different adversary,
in a different time during which a closed and secretive culture was
justifiable. However, America's greatest asset has always been and
remains the industry, inventiveness, and patriotism of its people.
Actively engaging the public in the work of managing the hazards of our
post-9/11 world must be the top priority for the next President and the
U.S. Congress.
Thank you and I look forward to responding to your questions.
Ms. Harman. Thank you, Dr. Flynn. I think this subcommittee
has been channeling your thoughts for quite a while.
Mr. Guiora.
STATEMENT OF AMOS N. GUIORA, PROFESSOR OF LAW, UNIVERSITY OF
UTAH
Mr. Guiora. Thank you very much. It is a pleasure and an
honor to be here this morning.
When I examined the issue that I have been asked to address
this morning, I think that, in order to frame the issue, I
think what we need to do is to establish the paradigm. To do so
required defining terms, because I think without defining terms
it is going to be very difficult for this subcommittee to go
forward.
So the question is, what is effectiveness? What is
accountability? What is terrorism? What is counterterrorism?
What is homeland security? What is this threat assessment that
we are all talking about? Because without doing that, we can't
really begin the process of discussing a private-public
partnership in information-sharing.
So I begin with what is terrorism. I think terrorism is
obviously an attack against innocent civilians for the purpose
of advancing a cause. There are a variety of causes out there.
But when we talk, then, about counterterrorism, we need to
understand that there are inherent limits on what
counterterrorism is and what counterterrorism can do, meaning
that when we talk about effectiveness in counterterrorism, the
inherent understanding is that there are limits on power.
How, then, does that play into what we are talking about
here, information-sharing? Information-sharing must play itself
out on two different levels simultaneously, not in a linear
fashion. First, as you referred to in your opening statement,
there must be information-sharing between local, State and
Federal Government. Without that up and down, bottom-up and
top-down, without that, it is going to be absolutely impossible
for the first preventers to be involved and to understand what
is happening.
In addition to that, there must also be information-sharing
between the public sector and the private sector. That
obviously raises important constitutional legal questions in
terms of how we are going to have a partnership between the
two. But if we don't begin the process of having online, active
information-sharing between the public and the private sector,
I suggest that it will be all but impossible to truly develop a
homeland security strategy.
If we don't have a homeland security strategy, then all we
are really doing is having a tactical response to an attack,
rather than having a strategic preventive policy in place
beforehand.
I would suggest, then, Madam Chairwoman, there are three
things that we need to talk about. No. 1 is clearly defined
roles between the Government and the private sector. No. 2, in
order to establish this coordinated preventive and response
plan, we are going to have to articulate and institutionalize
the information-sharing. No. 3, in order to most effectively
implement that, I think it is going to be incumbent upon the
Congress, maybe starting with this subcommittee, to develop
simulation exercises that are scenario-based in which both the
private sector and public sector can work together for the
following purposes: No. 1, to develop a plan in advance of;
and, No. 2, to develop a plan that would enable a response in
the aftermath of.
If we are going to talk about resilience, we also have to
then define what is resilience and what are our reasonable
expectations. Given the fact that I think it is going to be
impossible to prevent all acts of terrorism, the question is,
what are we going to try to do? What we are going to try to do,
Madam Chairwoman, is to have a plan that enables us to minimize
the loss, minimize the cost in the aftermath of the attack.
Which also means that we have to be very honest with the
American people, in terms of what are the reasonable
expectations.
Resilience, then, is a plan that must be implemented with
reasonable expectations, also given the fact that there are
limited resources. Ultimately, then, I would say, with respect
to my opening statement, that it is going to require
cooperation and coordination in information-sharing between the
internal sectors and external sectors.
I would just say, in conclusion, that the work that I have
done with my students at the University of Utah, what we have
really tried to do is to articulate the limits of power and how
that then plays into the development of an effective resilience
plan.
Thank you.
[The statement of Mr. Guiora follows:]
Prepared Statement of Amos N. Guiora*
---------------------------------------------------------------------------
* Professor of Law, S.J. Quinney College of Law, University of
Utah. Publications include Global Perspectives on Counter-terrorism,
casebook (Aspen); Constitutional Limits on Coercive Interrogation
(OUP); Understanding Counterterrorism (Aspen, Fall 2008); and, general
editor, Annual Review--Top Ten Global Security Law Review Articles,
Vol. I (Oxford University Press, 2008). I would like to thank Tara
Harrison, Pete Lattin, Rachel Otto, Rich Roberts, Evan Tea, Artemis
Vamianakis, and Tasha Williams.
---------------------------------------------------------------------------
May 15, 2008
i. introduction
To ensure a resilient homeland in a post-9/11 society, the United
States must have a homeland security strategy that (1) understands the
threat, (2) effectively counters the threat while preserving American
values, (3) establishes a system of accountability, and (4) creates
public-private and Federal-State partnerships facilitating intelligence
sharing and the continuity of society in the aftermath of an attack.
It is necessary to work with clear definitions of the terms and
concepts that frame this strategy. As I have previously articulated,
``one of the greatest hindrances to a cogent discussion of terrorism
and counterterrorism has been that the terms lack clear, universal
definitions.''\1\ For this reason, I will provide clear, concrete
definitions of all key terms relevant to articulating strategy
necessary for a resilient homeland.
---------------------------------------------------------------------------
\1\ Amos N. Guiora, Global Perspectives on Counterterrorism (Aspen
Publishers 2007) [hereinafter Guiora, Global Perspectives].
---------------------------------------------------------------------------
ii. understanding the threat
A. Terrorism: Recommended Definition \2\
---------------------------------------------------------------------------
\2\ Id. at 5.
---------------------------------------------------------------------------
I define terrorism as: ``Terrorism: Acts of politically based
violence aimed at innocent civilians \3\ with the intent to cause
physical harm, including death, and/or conducting psychological warfare
against a population aimed at intimidating it from conducting its daily
life in a normal fashion.''
---------------------------------------------------------------------------
\3\ [Sic].
---------------------------------------------------------------------------
I have chosen the definition above because it captures the core
elements of terrorism in clear and concise language. In reviewing
scholarship and terrorists' writings, the overwhelming impression is
that causing harm (physical or psychological) to the innocent civilian
population is the central characteristic of terrorist action. The
available literature articulates that harming civilians is the most
effective manner--from the terrorist mindset--to effectuate their
goals.
While causing death or injury to the innocent civilian population
is the ``means to the end,'' I also suggest that intimidation of the
population is of equal importance from the terrorist perspective. The
emphasis--whether resulting in death, injury, property damage, or
intimidation--is the attack, in whichever form, on the innocent
civilian population. Accordingly, government must develop
counterterrorism policies that protect the innocent civilian
population.
In addition, the importance of impacting ``daily life'' cannot--and
should not--be underestimated. Terrorism is a daily grind; it must be
understood in the context of daily attacks rather than one-time,
dramatic-effect attacks (such as 9/11). Smaller, more frequent attacks,
while perhaps less ``dramatic,'' have a much greater long-term effect
on an innocent civilian population than does a one-time major event
whose undeniable short-term effect may not linger.
iii. effectively countering the threat while preserving american values
A. Counterterrorism: Recommended Definition
I define counterterrorism as: ``Counterterrorism: The term must be
viewed with two prongs (separate, yet of equal importance): the actions
of a state, proactive or reactive, intended to kill or injure
terrorists and/or to cause serious significant damage to the
terrorist's infrastructure \4\ and re-financing (financing) of socio-
economic depressed regions of the world and educating communities
regarding democracy and its values''.
---------------------------------------------------------------------------
\4\ Guiora, Global Perspectives, supra note 1, at 139.
---------------------------------------------------------------------------
Counterterrorism ``is a never-ending war of attrition conducted in
baby steps comprised of some victories [and] some defeats.'' Defining
counterterrorism is inextricably linked to the definitions and limits
of terrorism. Counterterrorism must also be considered in the context
of domestic balancing, international law, judicial activism,
intelligence gathering, and interrogation of detainees.
Furthermore, any useful definition of counterterrorism requires a
recognition of critical attributes of operational counterterrorism--
``actionable intelligence, operational capability, and an understanding
that swift victory is, at best, a fiction.''\5\ Counterterrorism in
civil democratic societies must also be ``conducted according to the
rule of law and morality in armed conflict.''\6\
---------------------------------------------------------------------------
\5\ Id.
\6\ Id. at 140.
---------------------------------------------------------------------------
I propose that ``operational counterterrorism is effective if the
terrorist infrastructure suffers serious damage, thereby preventing a
particular, planned attack from going forth and postponing or impacting
plans for future attacks.''\7\ It is important to note, that ``the
damage is not permanent; terrorism cannot be defeated. However, the
tactical impact of the measures above should not be minimized . . .
[B]y attacking the terrorist--rather than the state sponsor--the
effectiveness model described above is not strategic and therefore
inherently limited.''\8\
---------------------------------------------------------------------------
\7\ Id.
\8\ Id.
---------------------------------------------------------------------------
B. Homeland Security: Recommended Definition
I define Homeland Security as: ``Homeland Security: A group of
preventative measures undertaken by a state in an attempt to reduce the
probability that a terrorist attack will occur. This strategy will be
fluid, constantly reassessing the balance between rights of the
individual and rights of the state. A realistic strategy must
prioritize threats according to their probability and imminence.''
Priorities must be established according to the limits, both
ideologically and fiscally, that the American people will support. In
examining government policy in the aftermath of 9/11 the lack of a
concentrated and realistic focus is dramatically apparent. In seeking
to address ``all'' possible threats, the policy was, in actuality, not
a policy.
Numerous State, Federal and municipal agencies must work together
to ensure public safety in the United States. These include law
enforcement agencies, the military and intelligence gathering and
analysis realms, public health, and emergency response sectors, which
coordinate activities with the community's utilities, infrastructure,
transportation, police and fire personnel. Job security, education, and
community values in the aftermath of an attack are critical components
of homeland security.
Executive branch documents name two particular areas the United
States must be protected against in the context of homeland security:
first, al-Qaeda, its affiliates (international and domestic), and those
inspired by them; and catastrophic events, including natural disasters
and man-made accidents.\9\ Scholars have suggested three priorities
with respect to homeland security: border security, critical
infrastructure protection, and intelligence analysis.\10\
---------------------------------------------------------------------------
\9\ Id. at 21.
\10\ Paul Light & James Lindsay, Council on Foreign Relations,
Views of Homeland Security (2002); http://www.cfr.org/publication/6395/
views_of_homeland_security.html.
---------------------------------------------------------------------------
C. Effectiveness: Recommended Definition
I define effectiveness as: ``Effective counterterrorism causes the
terrorist infrastructure to suffer serious damage--including damage to
finances, intelligence, resources, or personnel--thereby preventing a
particular, planned attack from going forth and/or postponing or
impacting plans for future attacks while minimizing collateral damage,
exercising fiscal responsibility, and preserving civil liberties.''
This definition incorporates the following premises: (1) terrorism
is not ``100 percent preventable''; (2) counterterrorism must have a
short-term (tactical) as well as a long-term (strategic) component; and
(3) counterterrorism must be conducted while balancing competing
interests of human life, financial cost, and civil liberty.
1. Terrorism Is Not 100 Percent Preventable.
Security analysts are wont to frame recommended counterterrorism
measures in an effectiveness paradigm that demands ``fool proof''
safeguards. However, it must be clearly stated that terrorism is not
100 percent preventable. A successful terrorist attack does not mean
existing counterterrorism measures are ineffective. The inverse is also
true: the absence of terrorist attacks does not necessarily indicate
existing counterterrorism measures are effective.
2. Counterterrorism Must Have a Short-Term as Well as a
Long-Term Perspective.
If a counterterrorism strategy only targets short-term threats, it
will likely overlook other (long-term) real threats. It is important to
note that terrorist organizations define effectiveness through the
prism of ``long-term'' strategic considerations.\11\ To understand the
terrorist mind-set, it is necessary to appreciate the determination,
resilience, and single-mindedness with which terrorists work.
Terrorists are willing to engage in a ``war of attrition'' with
enormous personal hardship for the individual and his immediate family
to achieve specific goals. Counterterrorism, both strategically and
tactically, must be premised on this reality. Engaging in a never-
ending cycle of violence is one means by which terrorist organizations
signal to various audiences (the general public, followers, and the
relevant government) their commitment to the cause.
---------------------------------------------------------------------------
\11\ Guiora, Global Perspectives, supra note 1, at 14.
---------------------------------------------------------------------------
3. Counterterrorism Must Be Conducted in Balance With
Competing Interests of Human Life, Financial Cost,
and Civil Liberty.
``Finding a balance between national security and the rights of
individuals is the most significant issue faced by liberal democratic
nations developing a counterterrorism strategy. Without a balance
between these two tensions, democratic societies lose the very ethos
for which they fight. As Benjamin Franklin once said, `those who would
give up essential liberty, to purchase a little temporary safety,
deserve neither liberty nor safety.'\12\ Indeed, it is imperative for
democracies to avoid infringing on political freedoms and civil
liberties. Yet, a government's ultimate responsibility is protecting
its citizens. This struggle to balance competing interests may be the
most fundamental dilemma confronting democracies today.''\13\
---------------------------------------------------------------------------
\12\ Benjamin Franklin, Pennsylvania Assembly: Reply to the
Governor, Nov. 11, 1755. The Papers of Benjamin Franklin, Leonard W.
Labaree ed., vol. 6, p. 242 (1963).
\13\ Guiora, Global Perspectives, supra note 1, at 19.
---------------------------------------------------------------------------
iv. accountability
A. Recommended Definition
I define accountability as: ``Accountability: Articulating in a
transparent manner the effectiveness or ineffectiveness of a particular
counterterrorism measure or strategy to one's superiors who have the
power to rectify or discontinue measures.''
The 9/11 Commission Report emphasizes in detail the need for
standards of accountability in developing and implementing
counterterrorism measures. The 9/11 Commission correctly stated that
``effective public policies . . . need concrete objectives.''\14\ That
is, in the struggle against terrorism, ``agencies need to be able to
measure success.''\15\
---------------------------------------------------------------------------
\14\ ``What to Do? A Global Strategy?'', The 9/11 Commission Report
(364).
\15\ Id.
---------------------------------------------------------------------------
Without standards for accountability, Congress unwittingly creates
an unfettered executive. ``An unfettered executive, unrestrained by
courts and legislatures, is detrimental to liberal democracies
attempting to balance national security and individual rights.''\16\
Furthermore, when neither the legislature nor the judiciary rein the
executive in, the former is bound to make mistakes whereby more-
effective alternative means are often overlooked. Particularly in the
murkiness and uncertainty of drawn-out amorphous operational
counterterrorism, the executive must know there are clear guidelines
determining accountability. Counterterrorism requires both strict
separation of powers and checks and balances.
---------------------------------------------------------------------------
\16\ Guiora, Global Perspectives, supra note 1, at 75.
---------------------------------------------------------------------------
v. resiliency
A. Recommended Definition
I define resiliency as: ``Resiliency: the capacity to prepare for,
withstand, and endure terrorist attacks in order to assure
continuity.''
B. Establishing Partnerships
Post-9/11 and in the wake of Hurricane Katrina, one of the most
important lessons learned by the United States was the dire
consequences of the break-down in communications between governmental
agencies amongst themselves and with the private sector. Ineffective
communication directly led to hesitation, confusion, lost time, and
ultimately lost property and lives. Effective cooperation and
coordination between governmental agencies within, and among, the
Federal, State, and local governments is essential to achieving a
successful homeland security strategy. However, in order to realize
resiliency, it is paramount that there is clear cooperation and
coordination between the public sector and the private sector.
The importance of the public-private initiative is outlined in the
Department of Homeland Security's recent National Response Framework
(``NRF''), which defines the roles and responsibilities of the
government (Federal, State, local, and tribal) and the private sector
(private business and/or NGO). As articulated in the NRF, ``Government
agencies are responsible for protecting the lives and property of their
citizens and promoting their well-being. However, the government does
not, and cannot, work alone. In many facets of an incident, the
government works with the private-sector groups as partners in
emergency management.''\17\
---------------------------------------------------------------------------
\17\ National Response Framework (hereinafter ``NRF''), Department
of Homeland Security, (January 2008) at 18, available at http://
www.fema.gov/pdf/emergency/nrf/nrf-core.pdf.
---------------------------------------------------------------------------
The NRF outlines five critical roles played by the private sector
during both disasters and terror attacks. First, privately owned
critical infrastructures such as transportation, private utilities,
financial institutions, and hospitals play a significant role in
economic recovery from disaster and terror incidents.\18\ Second,
``owners and operators of certain regulated facilities or hazardous
operation may be legally responsible for preparing for and preventing
incidents from occurring and responding to an incident once it
occurs.''\19\ Third, private business ``provide response resources
during an incident--including specialized teams, essential service
providers, equipment, and advanced technologies.''\20\ Fourth, private
entities ``may serve as partners in local and State emergency
preparedness and response organizations and activities.''\21\ Fifth,
private entities play an important role ``as the key element of the
national economy, private-sector resilience and continuity of
operations planning, as well as recovery and restoration from an actual
incident, represent essential homeland security activities.''\22\
---------------------------------------------------------------------------
\18\ Id.
\19\ Id. at 19 (this legal responsibility is exemplified by the
owners and operators of nuclear power plants obligated under Federal
regulations to maintain emergency plans and conduct training for a
response to such an incident).
\20\ Id.
\21\ Id.
\22\ Id.
---------------------------------------------------------------------------
A necessary component to establishing a resilient homeland,
therefore, is a viable public-private sector partnership that is based
on: (1) Defined roles and responsibilities; (2) articulating a
coordinated prevention-response plan; and, (3) repeated training or
simulation exercises using the prevention-response plan against
realistic disaster/terror scenarios.
1. Defined Roles and Responsibilities
In forging lasting partnerships between the public and private
sectors, the private sector (private business and/or NGO) must define
its role and responsibilities relative to the public sector on all
government levels (local, State, and Federal). Agencies such as the New
York Red Cross must work alongside FEMA and the NYPD in an effort to
respond to a disaster or another terrorist attack. These partnerships
must be created using individual liaisons to private and public
entities predicated on clearly defined roles and responsibilities and
open and frequent communication.
2. Articulating a Plan
The private sector must work closely with the public sector to
articulate, develop and implement a disaster/terror prevention
prevention/response plan. Such a plan must implement the clearly
defined roles and responsibilities outlined above. Additionally, a
proposed plan need take into account multiple scenarios addressing
prevention and response thereby ensuring that different entities are
seeking to achieve similar goals. The plan will ensure that different
organizations see the ``big picture'' and know their particular
responsibilities within the larger framework.
3. Training and Simulation
Fundamental to creating and maintaining the public-private sector
initiative is consistent training and simulation exercises. Members of
the private and public sector should conduct scenario-based, simulation
exercises (together and separately) with respect to the proposed plan.
These exercises must include realistic disaster scenarios subject to
real-life time constraints testing the effectiveness with which both
the private and public sectors respond to complicated and complex
attacks and disasters. Such training and simulation will ensure that
the public and private sectors understand--both theoretically and
practically--the vital necessity of cooperation and coordination. Such
scenario-based simulation exercises--in highlighting existing
institutionalized and systemic weaknesses--most effectively facilitate
the development of an effective homeland security strategy.
C. Goals for Partnerships
Public-private partnerships, if properly developed and implemented,
are the key to economic recovery. Such a partnership--in the aftermath
of a disaster or attack--facilitates the resilience of critical
infrastructure including transportation, utilities, financial
institutions, and hospital care. By strategically strengthening
security, sharing intelligence, and creating plans for post-attack
procedures (including evacuation plans, transportation plans,
identifying places of refuge, and providing basic supplies to aid
first-responders) such partnerships become the key to a secure and
resilient homeland.
1. Prevention & Resiliency Through Intelligence Sharing
The Department of Homeland Security (DHS) has provided excellent
guidance regarding how to frame intelligence sharing between the public
and private sectors. The importance of information before, during and
after a disaster or attack is vital to resilience. Information sharing
is, perhaps, the single most important aspect of successful resilience.
Information sharing requires government agencies (Federal, State and
local) to share information both amongst themselves and with the
private sector. Furthermore, it requires that the private sector--
subject to existing legal and constitutional limits--share information
with the public sector. Successful information sharing requires
cooperation and coordination both internally (within sectors) and cross
sectors (between public-private entities).
The process must be institutionalized, requiring a fundamental re-
articulation of homeland security strategy. While various public sector
agencies are historically hesitant (predicated on policy, culture and
legal restraints) to share information with other agencies--much less
the private sector--the lessons of 9/11 and Katrina speak for
themselves. Resilience in the aftermath of either disaster or attack
requires Federal, State and local government agencies to understand
that information sharing is vital to the Nation's homeland security.
That information sharing process must include the private sector.
Otherwise, the mistakes of yesterday will inevitably re-occur.
To that end, DHS recommends that public and private agencies:\23\
---------------------------------------------------------------------------
\23\ Engaging the Private Sector to Promote Homeland Security: Law
Enforcement-Private Security Partnerships: New Realities Law
Enforcement in the Post-9/11 Era, U.S. Department of Justice Bureau of
Justice Assistance, September 2005, at vi, available at http://
www.ncjrs.gov/pdffiles1/bja/210678.pdf.
---------------------------------------------------------------------------
Prepare memorandums of understanding and formal coordination
agreements describing mechanisms for exchanging information
regarding vulnerabilities and risks;
Use community policing initiatives, strategies, and tactics
to identify suspicious activities related to terrorism;
Establish a regional prevention information command center;
and
Coordinate the flow of information regarding infrastructure.
In addition, the National Infrastructure Advisory Council published
a report on private and public sector intelligence coordination and
made the following recommendations:\24\
---------------------------------------------------------------------------
\24\ National Infrastructure Advisory Council Public Private Sector
Intelligence Coordination Final Report and Recommendations by the
Council, July 11, 2006, available at http://www.dhs.gov/xlibrary/
assets/niac/niac_icwgreport_july06.pdf.
---------------------------------------------------------------------------
1. Senior Executive Information Sharing.--Develop a
voluntary executive-level information sharing process between
critical infrastructure CEOs and senior intelligence officers.
Begin with a pilot program of volunteer chief executives of one
sector, with the goal of expanding to all sectors.
2. Best Practices for the Private Sector.--The U.S. Attorney
General should publish a best practices guide for private
sector employers to avoid being in conflict with the law. This
guide should clarify legal issues surrounding the apparent
conflict between privacy laws and counter terrorism laws
involving employees. Moreover, it should clarify the limits of
private sector cooperation with the IC.
3. Existing Mechanisms.--Leverage existing information-
sharing mechanisms as clearinghouses for information to and
from critical infrastructure owners and operators. This takes
advantage of the realities that exist sector by sector.
4. National-Level Fusion Capability.--Establish or modify
existing government entities to enable national- and State-
level intelligence and information fusion capability focused on
Critical Infrastructure Protection (CIP).
5. Staffing.--Create additional--Sector Specialist positions
at the executive and operational levels as applicable in the
IC. These specialists should be civil servants who have the
ability to develop a deep understanding of their private sector
partners.
6. Training.--Develop an ongoing training and career
development program for sector specialists within intelligence
agencies.
7. RFI Process.--Develop a formal, and objectively
manageable, homeland security intelligence and information
requirements process, including requests for information
(RFIs). This should include specific, bi-directional processes
tailored sector by sector.
8. Standardize SBU Markings and Restrictions.--The Federal
Government should rationalize and standardize the use of SBU
markings, especially ``For Official Use Only.''
2. Providing Critical Infrastructure--Continuity Planning
In order to play their essential role of re-establishing critical
infrastructure after an attack, private entities must have continuity
plans. These plans must take into account the known threats,\25\ which
are only ``known'' through intelligence sharing between the public and
private sectors, as discussed above. These plans must also take into
account the components essential to re-establishing the service that
the particular entity provides. These plans must provide details
regarding how the particular entity will promptly resume service, which
may differ depending on the form of attack. In addition, the plan must
articulate how the entity will communicate with the public sector after
an attack and what, if any, assistance the entity will surely or likely
need from the public sector in order to promptly re-establish service.
---------------------------------------------------------------------------
\25\ See Appendix A for a classification of ``known'' risks. For
this discussion, all risks, including the imminent, foreseeable, long-
range, and uncertain are considered ``known'' threats.
---------------------------------------------------------------------------
The United Kingdom has enacted legislation requiring contingency
plans. That legislation, the Civil Contingencies Act, requires certain
private entities to ``maintain plans to ensure that they can continue
to exercise their functions in the event of an emergency so far as is
reasonably practicable.''\26\ Specifically, entities are required to
makes arrangements to warn and inform the public, handle emergencies,
and make provisions to ensure that the entity's ordinary functions can
be continued to the extent necessary.\27\ To ensure effectiveness, the
legislation also requires entities enact training programs for those
directly involved in the execution of the continuity plan.\28\ To
assist the entities, the legislation requires local authorities to
provide advice and assistance to businesses and voluntary organizations
in relation to business continuity.\29\
---------------------------------------------------------------------------
\26\ UK Resilience: Business Continuity, May 7, 2008, available at
http://www.ukresilience.info/preparedness/businesscontinuity.aspx (last
visited May 10, 2008).
\27\ Id.
\28\ Id.
\29\ Id.
---------------------------------------------------------------------------
New York City has taken a first step at creating similar
legislation. New York City's Local Law 26 (2004) amended the existing
administrative code in relation to building safety in the city.\30\ In
particular, this new law requires owners of big buildings, in
coordination with the FDNY, to prepare detailed plans, train staff
members and conduct full evacuation drills of the entire building every
3 years.\31\ While evacuation plans are an essential first component of
a contingency plan, they are not enough to establish even the hope for
a resilient homeland.
---------------------------------------------------------------------------
\30\ See Jim Dwyer. Evacuation Plans Due for High Rises in New York
City, New York Times (August 5, 2004), available at http://
query.nytimes.com/gst/
fullpage.html?res=9B03E2DA153CF936A3575BC0A9629C8B63 (last visited
April 11, 2008).
\31\ Id.
---------------------------------------------------------------------------
The following is a list of suggested measures that would most
effectively facilitate resilience in the aftermath of a disaster or
attack:
Educate the private sector regarding the importance of
continuity plans;
Educate the public about the importance of continuity plans
for the private sector;
Offer expertise in the form of training to enable private
entities to create continuity plans;
Require oversight in exchange for the expertise;
Pass legislation that puts the private sector on notice
regarding the importance of continuity plans;
Encourage States to pass legislation mandating continuity
plans, to the extent a State has such power;
Offer financial incentives, possibly tax incentives, to
entities that establish continuity plans and continue updating
those plans.
vi. conclusion
Not only the public sector, but also the private must contemplate
resiliency must before a terrorist attack occurs. Sophisticated
planning--based on scenario-based simulation exercises--will
significantly contribute to creating a resilient homeland. The first
step to making the homeland resilient to a terrorist attack requires
defining terrorism, counterterrorism, effective counterterrorism and
accountability.
Terrorism poses a threat that cannot be eliminated. Nor can the
government truthfully claim that it will prevent all terrorist attacks.
While measures can be implemented to prevent attacks civil, democratic
societies must recognize that at some terrorist attacks will succeed.
In an effort to minimize both the chances of a particular attack and
the consequences of a successful attack it is necessary to create
public-private sector partnerships. Such partnerships must be based
upon communication, mutual (subject to legal and constitutional limits)
information sharing and defined roles. Such partnerships will
facilitate the development of continuity plans seeking to ensure the
restoration of infrastructure vital to the Nation. Resilience depends
on such cooperation; information sharing between and among the public
and private sectors is the essence of that relationship.
Ms. Harman. Thank you very much, Mr. Guiora.
Mr. Eddy.
STATEMENT OF R.P. EDDY, EXECUTIVE DIRECTOR, CENTER FOR POLICING
TERRORISM, THE MANHATTAN INSTITUTE FOR POLICY RESEARCH
Mr. Eddy. Madam Chair, members of the committee, thank you
very much for the opportunity to be speaking here.
I fully agree with some of the statements made by the Chair
that we learned many of the wrong lessons after 9/11. That
morning, we all looked to the skies for the Air Force F-16s; we
looked to Washington to protect us. The main thrust of Federal
efforts since then certainly has been deployed overseas,
funding the Intelligence Community and working with the FBI.
But State and local police, when considered, were considered as
first responders. They were funded to be, in effect, the clean-
up crew to help remediate our communities after the terrorists
launched a successful attack.
This focus in funding on Federal forces and not local
police, on international intelligence and not internal
awareness, is wise only if our enemies are outside our borders
and we can stop them before they get in. But the reality is
much more complicated and much more dangerous, as this
committee is well aware. Our next 9/11 is as likely to be from
terrorists inside our borders as it is from terrorists outside
our borders.
Terrorism everywhere is increasingly homegrown. This
committee has done much good work on that. Nearly every major
attack since 9/11 around the world had a very strong homegrown
component. There have been, as you know, well over 12 U.S.
locales in which terrorist activities have been disrupted in
the last 5 years.
In each of these incidents, the perpetrators were not
infiltrators. They were residents, they were citizens, they
were the neighbors next door. They had all the necessary IDs
and all the excuses. They didn't have to blend in; they already
were in.
Soon after 9/11, the NYPD realized they had to tackle
prevention on their own. They asked me and the Manhattan
Institute to build them a think tank to support them as they
ramped up their counterterrorism operations. NYPD wasn't
getting the Federal support necessary to detect and defeat
terrorism then, and most police forces are not getting the
information now.
Since our start with the NYPD, the CPT, the Center for
Policing Terrorism, Manhattan Institute, has expanded to become
involved with other agencies, such as the LAPD and the New
Jersey State Police. Our focus is to advocate to and enable
core police departments to become first preventers and to adapt
the practice of intelligence-led policing.
I humbly suggest three categories of solution to the topic
of today's hearing, in which you can build resiliency and
improve our overall counterterrorism posture, while also
strengthening capacity of State and local police against all
hazards, the entire range of challenges that they face.
First, support national counterterrorism academies. The CPT
is proud to have partnered with LAPD, LA Sheriff's Department
and others to launch the National Counterterrorism Academy just
a few months ago. We already have more than 60 students from
over 27 public agencies and private-sector companies throughout
California and Nevada.
The topics of instruction include precisely what I have
described before--homegrown radicalization, method of
interdicting terrorist finance, case studies of significant
attacks--all of these taught by world-class instructors. Over
the next year, the academy will expand its offerings, will seek
additional funding to grow a bricks-and-mortar location, a
virtual online academy, a digital library, and mobile training
teams. Under LAPD's guidance and Chief Bratton's leadership, a
small staff of professionals will develop the curricula, manage
operations, and outsource the instruction to the best and the
brightest.
To fully fund 3 years of this academy, teaching hundreds of
police and private leaders in the ``train the trainers'' model,
injecting intelligence-led policing and first preventers
practices into hundreds of departments will cost less than $4
million. DHS should fund NCTA and its East Coast counterpart in
2009.
I skipped that part; I am sorry. We are building a sister
academy in New Jersey, and we are going to build a regional
structure in between.
No. 2 suggestion is to support intelligence-led policing in
the Foreign Liaison Officer Program. Looking at the
intelligence picture throughout the homegrown threat, we need
to shift our paradigm from believing that we have to simply
solve for how to get intelligence and training from DHS or from
the Federal family to State and locals, and instead we have to
recognize that most of the intelligence relevant to State and
locals is simply not being collected federally. There are not
huge buckets of magic information and intelligence sitting in
Federal SCIFs that will solve all the problems of big cities.
In fact, there are three things we have to understand about
this: First, a vast array of useful intelligence for
counterterrorism and other crimes is already in our
communities. Generally, homegrown terrorists live in the
communities where they plot and are in the communities in which
they are going to launch their attacks. Even most foreign-born
plots have a very strong local dimension. Recall that two of
the 9/11 hijackers were pulled over and released before the
hijackings for speeding.
No. 2, police are simply the best entity suited to collect
this intelligence. Our hugely decentralized police force, over
17,000 police departments, ensures that police come from the
communities, they have community access, and generally the
community trusts them. Local entities also have broader legal
allowances to investigate crimes and assess the risks in their
communities. Then, of course, there are the numbers. We know
there are 730,000 police in this Nation but perhaps less than
2,500 FBI agents focusing on domestic counterterrorism. No
Federal entity has the exposure, the tools and the breadth to
collect local information.
Third, while police are best suited to collect this
critical intelligence to prevent terrorism, they simply are not
collecting it. That is to say, much of what we tend to think
about intelligence-sharing, which is that we have to grease the
skids downhill from the Federal Government to locals, isn't
entirely correct. We also have to figure out how to enable the
locals to collect on their own and how that information can
work laterally.
Intelligence-led policing is exactly that. At the strategic
level, DHS should teach intelligence-led policing and push that
out at the user level. They can do that through the fusion
centers.
Just as James Q. Wilson and George----
Ms. Harman. Could you summarize, please, Mr. Eddy?
Mr. Eddy. I will.
My final summary, I guess, based on resiliency--a resilient
homeland is based on numerous layers of prevention and
response, but it is important to realize we cannot begin to
consider true resiliency until we know that the 730,000 local
police are recruited to the cause.
I also suggest that the Federal Government consider
implementing the LA Police Department's Archangel program
across the Nation to allow to you have a much more
comprehensive and clear ability to assess vulnerabilities
across the country in a clear fashion.
Thank you very much.
[The statement of Mr. Eddy follows:]
Prepared Statement of R.P. Eddy
May 15, 2008
Chairman, members of the committee, my sincere thanks for inviting
me to speak with you today.
Our Federal Government learned some of the wrong lessons from 9/11.
That morning we all looked to the skies for the Air Force F-16's
and we looked to Washington to protect us. The main thrust of Federal
effort since then answered that call: troops were deployed overseas,
funding for the CIA and NSA was greatly increased, and the FBI has
begun to focus more on counterterrorism. But State and local police,
when considered, were considered only as the ``first responders'' of
terrorism. They were funded to be--in effect--the clean-up crew to
remediate our communities after the terrorists launched a successful
attack.
This focus and funding--on Federal forces and not local police, on
international intelligence and not internal awareness--is wise only if
our enemies are outside our borders and we can stop them before they
get in. But our reality is much more complicated, and much more
dangerous. Our next 9/11 is as likely to be from terrorists already
within our borders as is it to be from terrorists overseas who plot to
penetrate our Nation.
Terrorism everywhere is increasingly homegrown. The trend line is
unmistakable: it runs from the 2002 Bali nightclub bombings, to the
2003 attacks in Casablanca and Istanbul, through the 2005 subway
bombings in London and to the foiled plans to bomb jumbo-jets flying
from London to the United States in 2006. But we need not look only
overseas for examples of the local threat. Consider this partial list
of U.S. locales in which terrorist activities have been disrupted in
the last 5 years: Lackawanna, NY; Bly, OR; Lodi, CA; Torrance, CA;
Iredell County, NC; Miami, FL; Toledo, OH; and Syracuse, NY. In each of
these incidents, and in dozens of other smaller ones, the perpetrators
were not infiltrators. They were residents, citizens, neighbors-next-
door. They had all the necessary IDs and excuses. They didn't have to
blend in; they were in.
Of course we do still face a threat from international terrorists
seeking to hit us at home, a la 9/11. In these instances as well, State
and local law enforcement are the critical line of defense. Recall that
two of the 9/11 hijackers were pulled over by local police on routine
traffic stops and released. These terrorists lived in our towns, ate at
our restaurants, and studied at our schools for many months. It is much
more likely that the Nation's 730,000 local police officers--with years
on the beat and connections with all aspects of the community--and not
the perhaps 2,500 FBI agents dedicated to domestic counterterrorism, or
other Federal forces, will have the situational awareness to identify
and locate terrorists already in our midst.
Soon after 9/11, the NYPD realized they had to tackle prevention on
their own. They asked me and the Manhattan Institute to build them a
small think-tank to support them as they ramped up their
counterterrorism capabilities. NYPD wasn't getting the Federal support
necessary to detect and defeat terrorists then, and most police forces
still aren't now.
Since our start with NYPD, The Center for Policing Terrorism at the
Manhattan Institute for Policy Research (CPT) has expanded to become
involved with other agencies such as the Los Angeles Police Department
and the New Jersey State Police. CPT's focus is to advocate to and
enable core police departments to become ``first preventers'' and to
adopt the practice of ``intelligence led policing.''
CPT is supported entirely by private philanthropy. Our donors, who
span the political spectrum, have enabled CPT to fill gaps in public
funding, gaps that I believe should not exist.
I hope to bring to you today an invested understanding of what
needs to be done to prevent terrorism in our Nation. By invested I
mean: my donors, my colleagues, and I have put our money where our
collective mouth is. I am not an academic promoting theories or a
contractor looking for support. I have the honor of representing a
small group of dedicated citizens who have sought Federal leadership
and Federal funding, and when we found both lacking we went and created
the solutions on our own, with our own dollars.
I humbly suggest three categories of solution--all with minimal
budget impact--in which Congress can build resiliency and improve our
overall counterterrorism posture, while also strengthening the capacity
of our State and local police against the entire range of hazards.
1. support national counterterrorism academies
CPT is proud to have partnered with LAPD to begin building the
National Counter-Terrorism Academy (NCTA), funded by the Ahmanson
Foundation and the State of California. NCTA already has 60 students
from more than 27 public agencies and private sector companies
throughout the States of California and Nevada. Topics of instruction
include homegrown radicalization, methods for interdicting terrorism
finance and case studies of significant terrorism plots presented by
the investigators themselves.\1\
---------------------------------------------------------------------------
\1\ Manhattan Institute, Manhattan Institute and LAPD Unveil
Counter-Terrorism Academy for State and Local Cops, Press Release,
March 10, 2008.
---------------------------------------------------------------------------
Over the next year, the Academy will expand its course offerings,
seek additional funding and grow to eventually include four components:
a bricks-and-mortar location in Los Angeles; a virtual, or online,
academy; a digital library; and mobile academic teams. Under the LAPD's
guidance and Chief Bratton's leadership, a small staff of professionals
will develop curricula, manage operations and outsource the instruction
to the best and brightest.
The Academy will augment and serve as a focal point for existing
Federal training programs and strengthen the intellectual body of
homeland security knowledge by adding the critical perspective of local
agencies. The training will be tailored to the needs of the up-and-
coming leaders in State and local agencies and their counterparts in
the public safety and private security fields.
NCTA does not compete with existing institutions like FLETC. Rather
it offers a first-rate, dedicated option for police leaders to become
evangelists and trainers of first prevention and intelligence-led
policing doctrine.
In just a few months of operation, NCTA has already proven to be
such a success that we are eager to expand the model across the Nation.
CPT is already underway in discussions to partner with the New Jersey
State Police to build a sister academy on the East Coast. We are happy
to note that the Bureau of Justice Assistance was heavily represented
in these discussions. This academy will scale from the LA academy and
draw on the same virtual library, training teams, and other key assets
of the NCTA.
Though the NCTA academy is teaching nearly 30 public agencies the
skills they need to prevent and respond to terrorism, as well as many
other hazards, proposals for modest levels of Federal funding have not
been accepted. To fully fund 3 full years of NCTA operation, teaching
hundreds of police and private leaders in a train-the-trainers model,
injecting intelligence-led policing and first preventers practices into
hundreds of departments, and establishing the premier online library of
written materials and videotaped lectures available to police across
the nations will cost less than $4,000,000.
DHS should fund NCTA and its East Coast counterpart in 2009.
2. support intelligence-led policing and foreign liaison officers
Looking at the intelligence picture through the reality of the
homegrown threat, we need to shift our paradigm from believing we have
to solve for simply how to get intel and training from DHS (or other
Federal entities) to State and locals, and instead recognize most of
the intelligence relevant to State and locals simply is not being
collected federally. There are not huge buckets full of magic
intelligence sitting in Federal SCIFS that will solve all the puzzles
of big city police.
It has become a well-worn criticism that there is very little
tasking in Federal collection toward things useful to State and locals,
and that the sharing of what does exist is pitiful. While Federal
organization, tasking and sharing certainly needs to be fixed, we also
must learn three simple things:
1. A vast array of useful intelligence for CT and many other
crimes is in our communities. Generally homegrown threats will
only be detected in the communities where they are plotted and
to be launched, but even most foreign-borne plots will demand
that terrorists spend real time attempting to integrate into
the fabric of our communities. This is intelligence that will
come from close connections with the communities and the
establishment of situational awareness in the way only our
hometown police can do.
2. Police are simply the best entity suited to collect this
intelligence. Our hugely decentralize police system (the United
States has over 17,000 police departments) ensures police come
from the communities, they have the community access and
generally the community trust to find this information. Local
entities also generally have broader legal allowances to
investigate crimes and assess risk in their communities. Then
there are the numbers: there are, of course, 730,000 police in
this nation but perhaps less than 2,500 FBI agents focusing on
domestic counterterrorism.\2\ No Federal entity has the
exposure, the insight, the tools, let alone the breadth to
collect local threat information.
---------------------------------------------------------------------------
\2\ Federal Law Enforcement Statistics, U.S. Department of Justice,
Office of Justice Programs Bureau of Justice Statistics. Available at
http://www.ojp.usdoj.gov/bjs/lawenf.htm [accessed 5/9/2008].
---------------------------------------------------------------------------
3. But, while Police are best suited to collect this
critical intelligence, most simply are not collecting.
That is to say, we miss much of the need (versus the homegrown
terror threat at least) when we think we simply need to grease the
skids of information downhill. It is as critical for DHS to help police
collect the intelligence that exists in their communities as it is for
DHS to share intelligence with police.
After the success of community-led policing and COMPSTAT, the next
major innovation in policing is upon us. Intelligence-led policing is
the ultimate addition of strategy to counterterrorism and fighting
crime. It is conceptually simple: police departments should create
intelligence opportunities and use the outcomes to direct their limited
resources. A tiny number of U.S. police departments have intelligence
capacities; the vast majority does not. Though we need to be mindful of
the past abuses by some police departments in the 1960's, today's
police departments are vastly different organizations, and intelligence
gathering must be integrated into police work, and not just for
counterterrorism.
ILP can be applied to virtually every public safety challenge
police face. Having a firm understanding of a challenge, in real time,
improves decisionmaking and produces better results. Resiliency begins
with the way we think about problems and deal with mental adversity.
Enhancing local intelligence capabilities will allow us to achieve
exactly that.
Fusion centers hold tremendous promise. Though they exist in every
State, many lack real strategy on how to share intelligence across, up
and down. Fusion centers also offer a perfect vessel to push the
necessity and tactics of Intelligence-led policing to their client
police departments, but again many are not resourced to do so.
At the strategic level DHS should begin to preach the value of
intelligence-led policing, and at the user level, institute a pilot
plan via the fusion centers to teach intelligence-led policing to local
police departments.
Intelligence-led policing and First Preventers doctrine transforms
police departments into proactive counterterrorism agencies. Not only
will they continue to thwart dozens of terrorist incidents, this
posture will deter untold potential homegrown terrorists as it will
create a hostile environment for violent extremists. Much as the Broken
Windows theory created by George Kelling and James Q. Wilson and
implemented by Chief Bratton revolutionized crime fighting, so too will
these tools revolutionize the Nation's fight against terrorists.
Although controversial for the FBI and State, police should take
intelligence collection to the international level. NYPD's
international liaison program is a well-known success. The NYPD
officers stationed with foreign counterparts in major overseas
metropolitan police departments have built NYPD's knowledge networks
and best practices \3\ immensely. These relationships inform NYPD's
thinking not only on counterterrorism, but also on fighting crime and
other hazards.
---------------------------------------------------------------------------
\3\ Kelling, George L., and Bratton, William J. Policing Terrorism.
Civic Bulletin, No. 43, September 2006, page 6.
---------------------------------------------------------------------------
We were very pleased to see this committee propose the concept of a
Foreign Liaison Officers Against Terrorism (FLOAT) Program as part of
the LEAPS legislation. Since 2003, we have proposed a program much like
FLOAT, in which 5-10 major city police departments would each assign
one officer overseas to liaison relationships with foreign police
departments. Ideally each city would send an experienced officer to an
area they know well. LA could send an officer of Indonesian heritage to
Jakarta, Miami could send a Colombian-American to Bogota, Detroit could
send an Arab-American to Cairo, etc. These officers would embed with
the local police to collect information on counterterrorism.
The regular reporting from the liaison officers would then be
pooled to the intelligence apparatus of all participating police
departments, and others.
I won't get into a detailed defense here of why police need their
own international liaison relationships, but suffice it to say, the
current reporting back from FBI and State generally does not make it to
police. When it does, it is obvious these departments are curious about
very different lessons and learnings than the locals. Instead of being
seen as adversarial, Federal agencies should see the police liaison
presence as a complement to Federal activities which can also provide
real-time threat reporting to their local agencies.\4\
---------------------------------------------------------------------------
\4\ LEAP Proposal, page 10.
---------------------------------------------------------------------------
As this initiative has not made progress at the Federal level, CPT
leadership is endeavoring to launch a FLOAT program funded by the local
police and donor dollars. Presuming the police departments will
continue to pay the salary and benefits of the officers, we estimate
the cost for housing and travel and other incidentals to be less than
$100,000 per year per officer. We will also arrange to create and house
the fusion hub that will task, collect and distribute the liaison
reports. NCTA, discussed above, is an obvious home to serve as the hub
to disseminate FLOAT reports throughout the police community.
Again, there is an obvious Federal role here and we urge the
committee to fund international police liaisons.
3. support strategic resource allocation
Local police agencies are the most knowledgeable resource when it
comes to their own critical assets. While many States and localities
have done impressive work understanding and cataloguing critical assets
and key resources in their jurisdictions, there is a stark lack of
uniformity in terms, methodologies and fundamental approaches. We
believe that this ultimately hinders the ability of national level
decisionmakers to make risk-based resource allocation decisions, since
there is not a baseline for comparing assets across jurisdictions.
We believe that a common approach for evaluating critical
infrastructure should be mandated on State and local agencies. There is
good news here. The LAPD, in partnership with DHS has developed
Operation Archangel, a robust methodology and information technology
system for evaluating and protecting critical infrastructure. Archangel
was created to utilize cooperation and coordination across departments
as well as public and private sectors to facilitate the strategic
application and management of information and resources to prevent,
deter, mitigate, and respond to an attack.\5\ It is well thought-out
and vetted and could be easily and cheaply incorporated around the
country.
---------------------------------------------------------------------------
\5\ Los Angeles Police Department, Operation Archangel. http://
www.lapdonline.org/emergency_services_division/content_basic_view/33044
[accessed 4/7/2008].
---------------------------------------------------------------------------
Resiliency Comes From First Preventers and Intelligence-led Policing
The focus of your hearing today, a resilient homeland--cities and
towns that can return to stability after a disaster--relies on numerous
layers of prevention and response preparation. But it is important to
realize that we cannot begin to consider true resiliency until we know
the 730,000 local police are recruited to the cause.
When CPT goes to police leadership across the nations to help them
build prevention capacities, we find many police departments to be
nearly tabula rasa when it comes to counterterrorism. This is not to
say they are not eager to be involved with CT, rather most police
departments--particularly in major cities--are already very
overburdened and under-resourced. If they don't see a clear and present
terrorism danger to their city, it is hard to convince elected
officials or their staff to shift their limited resources from fighting
crime to counterterrorism.
But we have had success and can be successful elsewhere for two
reasons:
1. Police leaders quickly realize that the ``First Preventers''
curricula and intelligence-led policing helps police and their
local partners not just with CT, but against ``all hazards,''
and
2. These concepts resonate with the highly successful proactive
policing models such as COMPSTAT of the 1990's.
Most agree the Londoners were resilient to the 7/7 subway bombings
because of the long English history with terrorism and even cultural
memories of WWII. We should not presume to think we can change American
mindsets, but a process of empowerment and knowledge-sharing is, of
course, key to reducing panic in the event of an attack.
Local police departments are not just the crux of public safety in
over 17,000 communities, but they are also the public servants most
integrated with the populace. By offering police insights and the
ability to proactively understand and pre-empt terrorism, we are in
fact injecting this confidence into our communities.
I would counsel that while we work hard to adopt the goals of
resiliency into nearly everything related to counterterrorism, we also
realize that sometimes resiliency will not be an option. Some attack
scenarios, including some we judge as highly likely in the medium term,
are so horrific that the only real strategic alternative is prevention.
I close by noting that I propose these initiatives not as a
theoretician, but as a representative of a group of citizens that have
since soon after 9/11 found aspects of Federal leadership in domestic
counterterrorism lacking so have been funding and enacting, on our own,
solutions to support our best hope for a secure homeland: our local
police.
Appendix.--Los Angeles Police Department News Release
lapd starts its national counter-terrorism academy
March 10, 2008, Los Angeles, California.
Mayor Antonio Villaraigosa and Police Chief William Bratton jointly
announced the model for what is expected become a National Counter-
Terrorism Academy (NCTA) for State and local law enforcement--the first
of its kind in the country created by local law enforcement and its
private partners.
``Police officers are out in the communities every day, gathering
critical information and fighting crime. With the proper training, we
can apply the skills we already have to the fight against terrorism as
well,'' said Chief Bratton. ``This academy will offer standardized,
counter-terrorism training that teaches us how to apply the crime-
fighting and information-gathering strengths we already have to the
issue of terrorism.''
The pilot program for the Academy, which starts today and runs
through July 30, will bring world-class counter-terrorism training to
nearly 70 students from more than 27 public agencies and private sector
companies throughout the State of California and Nevada. Topics of
instruction include homegrown radicalization, methods for interdicting
terrorism finance and case studies of significant terrorism plots
presented by the investigators themselves.
The pilot program is a public-private partnership between the LAPD
and the Center for Policing Terrorism at the Manhattan Institute, a
think tank with a long history of confronting the most challenging
public policy issues.
``The Manhattan Institute welcomes the opportunity to contribute to
a curriculum that will expose law enforcement and other public safety
professionals to imaginative thinking about the links between common
crime and political violence, and to do so without losing sight of
constitutional rights and civil liberties,'' said Howard Husock, the
institute's vice president for policy research.
The pilot program was funded primarily by the Ahmanson Foundation.
The State of California has provided additional funding for the further
development of the academy.
Over the next year, the Academy will expand its course offerings,
seek additional funding and grow to eventually include four components:
a bricks-and-mortar location in Los Angeles; a virtual, or online,
academy; a digital library; and mobile academic teams. Under the LAPD's
guidance and Chief Bratton's leadership, a small staff of professionals
will develop curricula, manage operations and outsource the instruction
to the best and brightest.
The Academy will augment and serve as a focal point for existing
Federal training programs and strengthen the intellectual body of
homeland security knowledge by adding the critical perspective of local
agencies. The training will be tailored to the needs of the up and
coming leaders in State and local agencies and their counterparts in
the public safety and private security fields.
Background
In the wake of 9/11, America's roughly 700,000 State, local and
tribal law enforcers stand to play a critical role in homeland security
as ``First Preventers'' of terrorism and other crimes. Despite this
potential, there is no training academy where officers can receive
basic homeland security education based on a standardized curriculum
specifically tailored to their needs.
The Los Angeles Police Department, under the leadership of Chief
Bratton, proposes the creation of a national academy in Los Angeles
that will fill that void while serving as a vehicle to promote and
teach the philosophy of Intelligence-Led Policing--a policing model in
which operations are guided by intelligence gathering and analysis
rather than the other way around.
If you have any questions, please contact Media Relations Section.
Ms. Harman. Thank you very much.
I think all of the testimony was right on point and
excellent.
We have a large member turnout, so I am going to be sure
that my own questions are limited strictly, including the
answers, to 5 minutes.
I have two questions. I will ask them both at once and ask
you all to comment, or whoever would like to.
First, Mr. Guiora was trying to define the term
``resilience,'' and he included things, at least the way I
wrote them down, like preparation, participation, managing
expectations.
I want to ask--because, in your case specifically, you
spent many years at the IDF in Israel--whether there isn't also
a cultural or experiential dimension to this. Israelis have
been the test bed for terrorism for 60 years or maybe,
depending on which bible you read, 60 millennia.
But, at any rate, after terrorist attacks, within a matter
of hours, the attack site is cleaned up, the yellow police tape
is gone, and people go back to business. That is a hugely
impressive act. It doesn't happen in America. So I just want to
ask if there is another dimension to this.
My second question is to pick up on what Dr. Flynn said
about overclassification. I wonder--and the reason I am asking
this is because our subcommittee is readying legislation on
this subject. But I wonder if overclassification is one of the
main stumbling blocks to sharing information?
So let me ask you to respond in any order, and I am
watching the clock.
Mr. Guiora. I will begin with the question about the
Israeli response to acts of terrorism.
You are absolutely right. We have been, in a sense, if you
will, conditioned on how to respond. The Israeli version of the
Department of Homeland Security, the Home Front Command, there
is a response, there is a prepared, institutionalized response,
which the public is a critical aspect of that. That is correct.
That being said, I think in terms of the subcommittee and
the Homeland Security Committee, there is no reason that this
process of institutionalizing a response can't begin here in
the United States.
I would say that 9/11 is a very unusual kind of terror
attack. It is not the daily fabric of terrorism. I think that
in order to have a more effective public response, what we have
to do is to begin, maybe through you, to educate the people on
how to respond in the case of an act of terrorism, which goes
exactly what to resiliency is.
I think the most important aspect of all this is to
institutionalize both the preparation and the response, rather
than to have it at a tactical level and thereby to develop a
more strategic response. That, I think, in terms of, God
forbid, there be another terrorist attack in the United States,
that would lead to more effective prevention, and maybe more
importantly, a more effective response too.
But it is all about institutionalizing and educating the
public.
Ms. Harman. Thank you.
Dr. Flynn.
Mr. Flynn. Well, one key component of resilience you
captured very well, Chairwoman Harman, in your opening
statement, which was about making terror less terrifying.
Really, at its heart, fear, which is of course the main
ingredient of terror, is really two things. It is, first, an
awareness of threat of vulnerability. So what a terrorist does,
if they take us by surprise, is they take things we would think
are benign and we didn't pay much attention to and suddenly see
them as vulnerable or see them as they pose a threat.
The second component, the most critical one, is a sense of
powerlessness with dealing with that threat of vulnerability. I
would argue, therefore, the Nation is more at risk today than
we were on September 11 for being terrified, because we get a
lot from Washington about our sense of threat and
vulnerability, and because we have failed to give the American
people and the people they turn to first, the first responders
and first preventers, the tools they need to manage and respond
and recover from these.
Now, we say a child is fearless when they don't know
putting a hand on the stove is going to hurt. But what we do is
we give them information, and ultimately that vulnerability is
there, but we work our way through it.
In the same way, while getting information is so important
to the American people, is it bounds the fear and it gives us
confidence to bounce back, which is very much a part of the
American tradition. It is in our DNA to be resilient as a
people.
Specifically, on the classification issue, there is just no
question that the system is broken, fundamentally broken. The
clearance process is completely overwhelmed. Because things get
routinely overclassified, they can't get to the people who need
it. There are horror stories of locals who present information
to the Federal Government, who classifies it, and then they are
told they can't share it with their own chiefs, never mind
anybody else, because those locals don't have the clearances to
share it. As soon as you are in the process, you are in a
morass that makes information-sharing impossible.
We are not dealing with Soviet espionage here. We are
dealing in a case where, as the DNI has said, we need to be
more geared toward the need-to-share than the need-to-know. The
rules, the entire structure, is still built on the need-to-
know. Until that changes, which is just the work that this
subcommittee needs to do and the administration should have
done, we are basically digging ourselves into a deeper hole.
Ms. Harman. Thank you.
Mr. Eddy, I couldn't get to you under my strict rules, but
I am sure you will have an opportunity to address these
questions and others as others ask you questions.
The ranking member is now recognized for 5 minutes.
Let me add that I will recognize people who came before the
gavel in the order that you would expect. Those who came
afterwards will be recognized in the order that they arrived.
Mr. Reichert.
Mr. Reichert. I thank you, Madam Chair.
I want to first, again, thank you for being here.
Remembering that this week is National Police Week, and today
we are watching thousands of our local police officers visiting
Washington, DC, to remember their brothers and sisters who have
fallen in defending freedom here in the United States of
America.
I spent 33 years in law enforcement before I came here. I
liken your description of cultural change to a change from the
1970s patrol mentality that we had when I was in a patrol car--
with dark brown hair, by the way, a long time ago--where today
we have community policing. A philosophical cultural change had
to take place to include the community. It was a very difficult
thing to do.
So I want to touch on the cultural issues that the Chair
has touched on, more in the way of how you overcome those. I
think there are two ways. No. 1 certainly is the personal
relationship, and then, No. 2, there has to be a commitment.
Sometimes a commitment is attached to money.
So I hear a lot from my sheriff's friends, my police chief
friends across the Nation regarding recent efforts to cut some
of the monies going to local law enforcement in their efforts
to be a part of the fusion center. FTEs, for example, are a
very important asset to any police department, but the smaller
you get, the more important that asset becomes. But it doesn't
mean that you are not involved in the homeland security effort,
one way or another.
I have heard the horror stories, too. I am aware of the
barriers and those things that prevent us from sharing
information. I am excited to hear that you have all recognized
the barriers.
What do we do about the cultural change at a national
level? Then, also, your opinions on, if we are to spend more
money, which I believe we must, in aiding our local officials,
what do you spend it on?
Mr. Eddy. I appreciate that very thoughtful question. Let
me give you my brief thoughts on it and see if there is some
time for my fellow panelists here.
I would suggest that, first of all, the police are the most
present and woven aspect of government in our local
communities, so they can be the beginning of resiliency. Having
them be trained and aware will allow to you have a more
resilient and robust community. Community policing obviously
helps with that.
The next evolution since community policing, of course, has
been COMPSTAT and, we think, intelligence-led policing. That is
where the Federal Government can be of huge asset to the local
police. The need for FTEs, the need for analysts, the need for
folks who learn intelligence and that can inject that into
policing not only will make police better for counterterrorism,
it will make them better against all hazards. The proof is
irrefutable, and the cost is minimal.
So it is a way to increase highly leveraged dollars,
increased police efficiency, by getting in and helping them
with intelligence programs. These fusion centers are a great
way to get there, is a quick answer.
Mr. Guiora. I think that what is going to be very critical,
in terms of responding to your question, is to institutionalize
changing the emphasis of how the police are going about their
work, I think from a law enforcement paradigm to a
counterterrorism paradigm. Particularly, if we think about
homegrown terrorism, that raises, obviously, again, important
constitutional legal questions.
But I think that in my meetings with police around the
country, it is clear that this change in focus is going to be
critical, which ties in directly, going back to your question,
Madam Chairwoman, about how we go about educating the public.
Because I think the police and the public are going to have to
work very closely together in changing a cultural focus and
institutionalizing that. That will, I think, also require
reallocation of resources.
I think in terms of how we go forward, we are going to have
to be very honest with the public that terrorism is out there;
it is a constant threat. No, we cannot prevent every act of
terrorism. It is impossible to do that. What are the limits in
terms of how we go about preventing acts of terrorism,
protecting ourselves? But it really is going to require also
institutionalizing the educational process with respect to the
public.
Mr. Flynn. The only thing I would add, perhaps, just
reinforce, in the experience as a retired Coast Guard officer,
cops talk to cops; they don't talk to bureaucracies.
So the things that are most important are finding ways in
which we enhance those relationships by creating the kind of
training academy that R.P. Eddy was talking about, broaden
those out, and finding mechanisms, fusion centers and so forth,
where people do come together. But the education can really be
the multiplier in creating those settings.
I just had the opportunity to go to the National Fire
Academy. They had their 20th anniversary. Every year they have
a reunion of all the graduates of that institution, over 200
fire chiefs were there. That relationship, you could tell, is
as thick as blood. It is across the country, and they come
voluntarily on their own dime to those reunions.
So those things are not hugely expensive, but facilitating
it--but, most important, I think, is a sense of it is not a
caste system, where the Feds and the national security
apparatus, that is real place where we put our money and
resources, and the locals, well, get to this when you get to
it. We are structured, basically, where most locals are sending
one or two officers, perhaps, off to a joint terrorism task
force, checking that box, and going about the daily policing.
We are not figuring out how we integrate the counterterrorism
mission into the course of normal police work, and recognizing
that is where ultimately we are going to get our biggest bang
for the buck.
Ms. Harman. Thank you very much.
Mr. Dicks is recognized for 5 minutes.
Mr. Dicks. Let me follow up on that. What is the best way
to do that? How do we work with the local police in order to do
that?
I mean, I remember the story we had out in Los Angeles
where there was a group people that had come out of the prison
system, and they got arrested on I think it was a crime, a
robbery of some sort. Then they found out, when they went to
their homes to arrest them, they found out that--they had been
sensitized to look for this other kind of information. They
found this stuff that looked like, you know, something that a
terrorist might by doing, and, therefore, they discovered that
this was, in fact, a terrorist ring.
So, I mean, who should do this? Should the Department of
Homeland Security work with the police departments or through
the fusion centers? How do you start the educational process?
I like your academy idea. I think that is a good one.
Mr. Eddy. I will answer that briefly, Congressman Dicks.
Right now, as far as I can tell, working with a number of
police departments, they are entirely puzzled as to the answer
to that question. They don't know to whom they should turn to
try and get information. Whereas 2, 3, 4 years ago, the Federal
Government apparently couldn't really care less about working
with the police, now it appears there is some sort of rush to
be the one who does this.
So what is clear and necessary is that this Congress figure
out what those lines of authority are. I think the President
recently waived something so that DHS lost part of their role
to the DCI to be an intelligence fusion capacity for State and
locals. I could certainly be confused about that. But I think
that----
Mr. Dicks. Say that again. What happened?
Mr. Eddy. My understanding is that, via presidential
waiver, the DCI, within the DCI, I think within the NCTC, they
are now taking on part of the role to share information with
State and locals, a role that presumably could have been better
filled at some point by DHS or by FBI. Although, I would say
that whoever will share that information and whoever will take
the initiative should be the ones to do it.
Most critical to realize, though, is it is not just about
getting the information pushed down to the State and locals. It
is about enabling the State and locals to collect it on their
own, in a constitutional manner. Right now they don't have the
capacity to do so, because they don't have the time or the
skills or the money to do it.
So I would suggest the NCTCA academy that we proposed and
we have already launched in L.A. become a Federal model. It is
a fantastic, high-leverage way to teach police how to get
involved with intelligence and intelligence-led policing. I
would suggest the foreign liaison----
Mr. Dicks. So they go to the academy and they come back and
then they educate the rest of the police force.
Mr. Eddy. Exactly. They go once every 2 weeks for 2 hours
to get trained by world-class professionals to begin thinking
about first preventers.
That only works if you have an intelligence capacity
bringing analysis in. So you have to have analysts in the
Department or in the fusion center looking at international
attacks, looking at domestic threats, and bringing that
intelligence in and saying, listen--the Lodi case, to which you
referred, is a perfect example of what I am describing. Those
police were sensitized via our program and the work by John
Miller and Chief Bratton to look for things that are suspicious
and ask the next question, and that ended what could have been
a horrific series of attacks. We need more success stories like
that.
Mr. Flynn. If I might add just one very brief illustration
of doing this right but the barriers that you run into--the
NYPD, shortly after the 7/7 attack in London in 2005, that they
had a foreign liaison law enforcement official there, but they
came back with photos of the Leeds apartment, which was a long
ways from London, where the suicide packs were made up. They
took two trailers, and they recreated that apartment with
everything basically as it was in that apartment. They ran
virtually every NYPD patrolman through those trailers and said,
``If you see this when you are out in the domestic, if you see
this when you are dealing with a burglary, it is not a meth lab
or kitchen chemistry. This is what is going on here.''
Now, that could be made available to folks at Newark, which
is just across the river, or elsewhere, but there are no
training resources or other things for that occur. NYPD doesn't
have a budget to train the rest of the law enforcement.
So there are a lot of self-help ways where this can happen
as a cross-fertilization, but this has not been seen as a
priority to support at the national level, at the Federal
level.
Mr. Guiora. If I could just add one comment to that, I
think, Congressman Dicks, to answer your question, it is going
to require articulating, not rearticulating, but articulating
the counterterrorism paradigm in terms of homegrown terrorism.
I don't think we have really begun doing that. It makes people
very uncomfortable. I think it is going to require doing that.
I think in terms of the police, State and then moving up to
the Federal Government, up and down in terms of this
interaction, it is going to require, for instance, as I said
earlier, having scenario-based simulation exercises where the
local police are working with State government and Federal
Government, in trying to get to the essence of your question--
--
Mr. Dicks. Well, I have 14 seconds left. To me, that is the
way to do this, is to bring the Federal people and the State
people together and do case studies or scenarios and move from
that. I would hope these fusion centers that we have created
would also play a role in this.
Mr. Guiora. I have 2 seconds. I think it is also going to
require thinking long and hard about various constitutional
questions, in terms of the limits of various jurisdictional
issues. But I think the time, clearly, is now to address those
issues and not to wait until tomorrow.
Mr. Eddy. It is easier to do those with State and locals
than with Federals.
Ms. Harman. Thank you very much.
Mr. Dent is now recognized for 5 minutes.
Mr. Dent. Thank you, Madam Chair.
Good morning.
Mr. Eddy, you mentioned in your testimony, and then I guess
Dr. Flynn touched on it just a few moments ago, but you
mentioned it, the concept of a foreign liaison program for
State and local law enforcement, and partially because foreign
reporting is apparently not getting to the State and local
levels.
Should the Federal Government, in your view, be footing the
bill for State and local officials to bypass Federal
intelligence agencies, or should there just be more of an
effort to make sure that this information is shared better?
I would like to hear what you have to say, as well as Dr.
Flynn, on that point.
Mr. Eddy. I appreciate that question, Congressman.
I helped build the NYPD foreign liaison program, which has
been massively successful. Dr. Flynn was describing earlier the
7/7 trailers. Those were only buildable because we had police
officers in London looking at this site and learning about it.
The thing that we have to understand is different bosses,
different agendas mean you ask different questions and you look
for different answers. So if you have an FBI legal attache
overseas and he arrives at the site of an attack, versus an
NYPD police officer at the site of an attack, they are looking
for very different things, and they are doing different things,
and they are probably doing them well. The FBI officer is
looking for issues that are necessary for his line of
authority. The NYPD officer is looking for issues about subway
security; he is looking at issues about the way the security
was set up, how far the garbage cans were from their front
door. The list goes on and on and on.
The ability to have overseas intelligence--I mean, you
know, it is so axiomatic to say we live in a global world, the
terrorist threat is everywhere and anywhere at the same time.
You have to be aware of what is going on around us. If you
don't have that intelligence collected from a police point of
view, it doesn't matter if you share or don't.
So, right now, I don't believe that it is even collected
the way that it needs to be collected for State and locals. So
the idea of bypassing the FBI or bypassing State is not the way
I look at it. I look at it as complementing the collection and
bringing more resources into the United States. That is
something that the foreign liaisons can do.
The proposal in the LEAB legislation, to me, seems very
smart. So my center, my leadership and donors, we are going to
take this on on our own, because the Federal Government hasn't
put money into it. I helped build it for NYPD. We are going to
build it for a number of other police departments. LAPD is
interested; Miami and Chicago also are.
So we are going to have these departments each assign one
police officer that they will pay for their salary, and then
local donors will pay for their travel and their housing. We
will send them overseas, and they will do this collection and
this integration with the local police. Then, of course, that
will be pooled amongst all the Police Executive Research Forum
communities to bring that intelligence in. So it is not a
bypassing; it is critical piece of intelligence that needs to
be collected.
Mr. Dent. Dr. Flynn.
Mr. Flynn. I really would reinforce that. What we are
really talking about is building essentially different lines of
capabilities, using different assets we have as a Nation, which
is extraordinary professional local police who can interact
with their counterparts oversees.
I recently, just a few months ago, had a chance to give a
talk to New Jersey's law enforcement community. I was getting a
ride by one of the State police detectives, and I was asking
him about the relationship with the FBI, which historically is
a bit of a challenge in most communities. He said, ``Yeah,
everything is fine. In fact, we have a new guy here in Newark.
And I was kind of interested, I went with him to a meeting we
had to go to. And we were running a bit late, and he kept
circling around the building we had to go to. And I said,
`Look, there is a parking space right here; why don't you park
there?' And it turned out the agent didn't know how to parallel
park.''
That just highlights one issue, which is that locals don't
tend to stand out when they do their local policing in a way
that somebody from outside coming in does. It is a culture, it
is a whole--so we have that strength that we want to take
advantage of. That has counterparts overseas. How people talk
and interact is different at that level.
The bottom line is this, the new battlespace is the civil
economic space. Who is going to be there? Then how do we get
information to those players? We should be working overtime as
a Nation finding the resources to basically capitalize on
relationships that exist and being able to build up that
expertise.
Mr. Dent. I guess, to follow up--I appreciate your answers.
They are well thought-out. But do you think we should be
assigning more State and local police officials then to help
Federal intelligence officials prepare product, intelligence
product? Is that what we need to be doing more of?
Mr. Flynn. Absolutely. There is little question that they
see, often, things that the Federal law enforcement people
don't. Particularly when we talk about things like critical
infrastructure and so forth where there is often not a lot of
resident expertise at the Federal law enforcement level, where
you go to a community where someone has been in port for a long
time--you have L.A. police, marine police forces who have been
operating in the port for 30 years. They are going to know a
heck of a lot more than a new FBI mission that brings them into
the port.
So capitalizing on that is so important. They help to tell
you what is real and what is not, and finding a liaison and
making sure we have that capability. Again, we are not trying
to replace things. We are really trying to make sure that we
get better collaboration than we have had before.
Mr. Guiora. Can I just add one comment on that, Congressman
Dent?
Mr. Dent. Sure.
Mr. Guiora. I think what really needs to happen is we need
to articulate what is it we are trying to do. So if you move
the policeman and you have them working closer with Federal
officials, the question is, for what purpose? Is there, again,
a large, overriding, strategic thought behind it, or are you
just responding or thinking tactically rather than
strategically?
Because, without thinking about the strategic question, all
you are going to be doing is moving people from here to here
without some sophisticated thought process behind it.
Ms. Harman. Thank you very much.
I would just point out for the record that this
subcommittee has worked for almost 2 years to force, and now by
force of law, the inclusion of State and local law enforcement
in the preparation of intelligence products by the NCTC. They
are now, as an organization, called the ITAG.
We have had a number of hearings about this. I think all of
us continue to believe not only that they are valuable, but
that they should be doing more and more so that these products
are much more useful by the people who are actually going to
find and prevent the next terror attack.
Mr. Perlmutter is recognized for 5 minutes.
Mr. Perlmutter. Thanks, Madam Chair.
First of all, I got here late, but just in the discussion I
have learned a lot. One of the things I hadn't really
summarized it, in the need-to-know versus need-to-share. The
need-to-share is preventative, you know, prevention kind of
approach, as opposed to need-to-know, where you want to capture
somebody. So that helped me, kind of, you know, understand this
whole categorization, classification a lot better.
My question comes more of a constitutional question. On
bouncing back, which several of you talked about the
resilience, one of the reasons that I think we don't bounce
back as quickly as we might is because there are circumstances,
the attack, whatever, is played and played and played and
played again, to the point that--and I will just take one of my
kids. Sort of, 9/11 traumatized the heck out of her, and lots
of other people obviously. Here I am in Denver, Colorado,
watching it again and again and again. I think the first
amendment, you know, clearly limits the ability--allows the
media to play it as many times as they want.
But, you know, you guys looking at this issue of bouncing
back and the public bouncing back, what do we do about that?
Mr. Guiora. I think, in terms of the first amendment,
obviously, freedom of speech amendment, the media rights are
clearly articulated. I would take that to a different paradigm,
though, Congressman Perlmutter. What needs to be made clear to
the public is that terrorism is going to occur and it is a
reality.
Going back to your original question, in Israel my 11-year-
old will tell you it is a matter of time until there is another
terrorist bombing, just like there was yesterday. That is the
reality.
I think once the public understands and once leadership
articulates to the public that this is our new reality, this
post-9/11 world, it is what it is, it will help us in a much
more effective manner to create and articulate a new paradigm
in terms of going forward.
The media is going to play the role of watchdog; that is
inevitable. TV will have the pictures over and over again. Your
child, hopefully, won't have to be traumatized again. But in
the context of articulating up and down to the public that this
is the new reality, it will make it much more feasible or
realistic to respond to acts of terrorism. If we think that we
are going to defeat terrorism, if we think that we are going to
prevent acts of terrorism, then when it happens, we are going
to say, ``Oh, it can't be.'' But it is the reality, and it
really does require rearticulating how we educate the public.
Mr. Flynn. I would just reinforce this notion about the
education of the public, that it is not just, ``Here is a
threat, here is a threat, here is a threat and vulnerability,''
but, ``Here are tangible things that you can do to make
yourself safer and better prepared.''
It is important, also, though, to understand resilience as
a concept, which is drawn heavily from the folks who did
earthquake issues, is built in up front. We are seeing this
tragedy in China right now, and of course virtually all the
buildings that have come down were ones that weren't resilient
enough to withstand a foreseeable event and the result is
massive loss of life and destruction of property. You build
resilience up front by, in that case, designing buildings well
enough to withstand the expected level of forces.
I think the real point here is that terrorism is a fact of
life, as natural disasters are. We need to acknowledge that,
but not just say that is out there in the ether. You give
people things to do. You give them information which will make
them better prepared and able to ride these things. When they
do, inevitably they are less terrified.
It is difficult for me as a retired Coast Guard officer; I
came in at age 17. We have an unofficial motto in the Coast
Guard: You have to go out, but you don't have to come back. The
whole notion is you do whatever it takes to rescue somebody by
going into harm's way. But when you develop the skills for
doing that here, I found my crew always were empowered. They
grew up in the process of giving them the skills to deal with
the terror that Mother Nature could put on us here. So part of
it is just dealing with that reality, and we need to do it.
On the media issue very specifically, it has just got to
cut both ways. We know, in the Second World War, the media both
entertained and informed. But we have to find ways to create
incentives and engagement with the media as an industry, just
like other private-sector entities with critical
infrastructure, to address this issue. There are messages that
hurt, messages that cause fear, and there are messages that can
be quite helpful.
I have made just very basic recommendations to the media
about making sure you have a ready list of people who really
know what they are talking about, so when things go on, you can
get their faces in front of the cameras instead of a talking
head or the guy who wrote a spy thriller last week who is
coming in now because the producer knows him.
There are mechanical things that we can ask the industry to
do, but we haven't engaged them in a constructive way. I found
media executives, when I had a chance to talk with them, they
are responsive to this. But, again, the Government has never
made the outreach, largely by saying, ``We are holding our
cards close to the chest. We are taking care of terrorism. You
go about your lives. You go to the mall.'' All this is really
heightening anxiety, almost guaranteeing more trauma than we
need to have from what our eventuality is.
Mr. Perlmutter. Thank you.
Ms. Harman. Thank you.
Mr. Shays is now recognized for 5 minutes.
Mr. Shays. Thank you, Madam Chairman, for holding this
hearing. I would like to get into two areas.
One, I would like your comment on whether you think the
media, the so-called ``terrorist experts'' on TV, are
contributing to helping people understand the threat and
dealing with the threat, or are they insignificant, or are they
moving the public in the wrong direction.
I would like all three of you to answer.
Mr. Eddy. If I can take a shot at that, and that builds
nicely on the previous question.
I think a lesson that we learned in New York and that we
are trying to teach in Los Angeles is that the media exposure
after an attack or before attack can largely be shaped by the
engagement you had beforehand, just as Dr. Flynn was saying.
So part of what we encouraged NYPD to do, for example, is
bring the media in early, before anything happens, and give
them a tour. You end up getting a positive press story out of
that, about, ``Look how strong and resilient the police
department is,'' and that is positive----
Mr. Shays. Well, you guys are the experts. I am talking
about the talking-head types that show up on the talking-head
programs.
Mr. Eddy. Sure. Well, I think we were, kind of, talking
about this earlier amongst ourselves. It is, sort of--they are
very--well, most of----
Mr. Shays. I need a short answer.
Mr. Eddy. Not positive, don't have a very positive impact,
and tend to play to the producers, who want you to stoke fear,
because that sells TV minutes and commercials.
Mr. Shays. Thank you.
Mr. Guiora. I think a true expert can be very effective in
terms of explaining what the threat is and what is going to be
the appropriate response and what is the realistic response. A
non-expert talking head who is going to be playing to various
audiences I think, Congressman Shays, is going to be very
ineffective. A real expert who can speak clearly, concisely and
precisely is going to be very effective in terms of explaining
to the public how do we go forward and what is next.
Mr. Flynn. Fundamentally, it is usually how the interviews
are structured, classically ``what happened'' instead of ``what
do we do about it.'' So to the extent of what do people know
and what should people be doing.
So the fact that, basically, the media stories often stop
with just reporting what happened and the terrorist experts are
explaining that without giving information, that can just sort
of feed the sense that this is an omnipotent threat which is
unbounded and which there is nothing we can do. People feel
powerless as a result.
Mr. Shays. Well, it strikes me that, therefore, what you
are telling me is that the experts in law enforcement and so on
should not give up the time to leave this large void to be
filled by people who aren't going to make a contribution.
Let me talk about overclassification. I chaired the
National Security Subcommittee of the Oversight Committee, of
Government Reform, and am now its ranking member. We had a
number of hearings. The defense witness said that 50 percent
was overclassified, and the nongovernment folks said up to 90
percent was overclassified.
That strikes me as perhaps accurate, somewhere in between
those two, but has, I think, horrific implications. I would be
interested to know your reactions. You touched on it a little
bit. But give me an example of where overclassification can
hurt and what you think about the issue in general.
I will start with you, Dr. Flynn.
Mr. Flynn. Probably the place where it hurts the most is
dealing with the private sector in safeguarding critical
infrastructure. What you have, of course, are the people who
design and operate that infrastructure, know its real
vulnerabilities and know its real strengths. Most of the people
who are actually assessing it are in a classified world and
making best guesses, and most of those educated, best guesses
are usually very uneducated.
So you can't have this conversation. If you think about
what happened in 2003 in the Northeast when the grid went down,
as a result, as we found out quickly, not by acts of terror but
trees overgrowing and triggering a series of events that shut
that grid down, it was easy for us to learn how to mitigate
that in the future and respond better because we had everybody
in the room--Canadians, State hearings and so forth.
I can imagine the scenario where the information started
that we had pulled out maps or charts from Afghanistan that
somebody was targeting towers, and then that was shared only
with chief security officers, well, what would the industry do
about that? The problem wasn't the towers. The problem was how
the grid was integrated.
So that is really the key, is where it is going to get
fixed.
Mr. Shays. Thank you.
Mr. Guiora. To your question, last week I met with some
agents from the FBI, and I told them that the only way we can
begin discussing resilience is by having public-private
information-sharing. They turned more white than the color of
your shirt and more red than the color of the University of
Utah.
I said the only way that we can begin addressing the issue
is by information-sharing, which goes exactly to the issue of
minimizing classification, because otherwise----
Mr. Shays. Why did they turn white or red or whatever
color?
Mr. Guiora. Because I think they found the idea of having
to share information with the private sector to be problematic
on a practical level, on a policy level and on a constitutional
level, which goes back to the issue of we can't go forward
without information-sharing.
Mr. Shays. Mr. Eddy, you have 10 seconds.
Mr. Eddy. I think one of the quick solutions would be to
try and figure out who the U.S. military reservists are within
police departments and see if you can access a clearance that
way, so you have one channel then, at least, where someone is
cleared.
I don't find overclassification to be as much of a threat
as most people do, because I think the ultimate threat
information can move its way down to the police department if
it needs to. I think intelligence, actually, is more important
lateral and local. That is real the intel is going to come
from, and at that point doesn't need to be classified.
Mr. Shays. Thank you.
Ms. Harman. Thank you, Mr. Shays.
Thank you to our members and to our witnesses for a really
extraordinarily good hour-plus of conversation about these
issues.
Let me just say to Mr. Eddy, in closing remarks, that we
think--and we are, again, readying this bill--that protecting
sources and methods is the right justification for classifying
information. Protecting turf and protecting oneself from
political embarrassment are not good reasons. So our focus is
going to be on how to make the system work as it should work.
I do think, consistent with what Dr. Flynn has said, that
that will enable us to move more information more quickly to
people who need it. But you are also right that a lot of what
has to change is that police departments and sheriff's
departments have to be educated to do what they can do better
than anyone else.
So I think this hearing confirms something this
subcommittee believes on a bipartisan basis, which is that we
need to be advocates at that level, and we need to be sure that
the people at that level get what they need from this level,
not the other way around. Because they are the people who will
be the true first preventers and who will connect the dots, as
Mr. Dicks was talking about, and figure out that a series of
gas station robberies wasn't a series of gas station robberies,
it was an effort to collect money to fund a terror cell that
was going to attack Jewish sites and military recruiting
centers in the Los Angeles area, as an example.
So I thank you for your testimony. This is what we work on
in this subcommittee, and hopefully we are adding value. For
sure, you are.
The hearing stands adjourned.
[Whereupon, at 11:10 a.m., the subcommittee was adjourned.]