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Collection Function—Summary of Key Points

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Would not create a domestic intelligence function; that function is already
being performed by the FBI
Would transfer that function to an entity with a detection and prevention, not
law enforcement, focus and culture
Would execute FISA and other foreign terrorist legal authorities inside the
United States
Would only effect persons with connections to foreign terrorists or terrorist
entities, not purely domestic organizations or persons
Would have no responsibility for non-terrorism-related criminal activity
Would not have arrest powers or other “sanction” authority
Would be subject to requirements and restrictions in FISA (including
application to the Foreign Intelligence Surveillance Court) and in the AG
Guidelines
Would not require new or expanded authority
Would not have Title III wiretap authority
Would be monitored by a steering committee and staff verification function
(OIPR)
Would likely provide better civil rights and liberties protection
Would have direct and significant relationships with States, localities, and the
private sector

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The Importance of Threat and Vulnerability Assessments

The National Strategy for Homeland Security appropriately notes the requirement for both strategic and tactical analysis and vulnerability assessments, and designates various lead or co-lead agencies for those functions. The proposed DHS is only responsible for disseminating “real time actionable” information to others. It apparently has sole responsibility only for vulnerability assessments for critical infrastructure protection. There is no indication that strategic assessments of threats inside the U.S. will receive dissemination to state and local agencies.

Recommendation: That the President direct that the NCTC produce continuing, comprehensive “strategic” assessments of threats inside the United States, to be provided to policymakers at all levels, to help ensure appropriate planning and allocation of preparedness and response resources.

The Role of the Department of Homeland Security in Intelligence Functions

It appears that the new DHS will have no authority for intelligence collection, limited capability for intelligence analysis, and significant responsibility for threat warnings.

Recommendations: That the Congress and the President ensure that the DHS has the authority to levy direct intelligence requirements on the Intelligence Community for the collection or additional analysis of intelligence of potential threats inside the United States to aid in the execution of its specific responsibilities in the area of critical infrastructure protection vulnerability assessments.

That the Congress and the President ensure that the DHS has robust capability for combining threat information generated by the Intelligence Community and the NCTC with vulnerability information the Department generates in cooperation with the private sector to provide comprehensive and continuing assessments on potential risks to U.S. critical infrastructure.

These capabilities will be important not only for the DHS specified missions but also for the DHS role in the NCTC.

Managing Operations

The National Strategy for Homeland Security has eliminated the distinction between "crisis” and “consequence” management. This will help remove certain ambiguities in the responsibilities and authority for planning and response. The creation of an overarching National Incident Response Plan to replace the Federal Response Plan and numerous other federal plans can also clarify responsibilities. With the merger of USCS, USCG, and INS (and others) into the new DHS, that agency will have control over some but not all Federal law enforcement capability. The National Strategy provides that the Secretary of DHS will have the responsibility for “coordination and integration" of Federal, state, local, and private” activities for critical infrastructure protection (CIP). But it does not provide any vision about the extent to which DHS will be “in charge” of executing a response during or after an attack on some CIP sector; nor does it specify which federal agency is in charge for the federal sector for other types of attacks, especially a biological one.

Recommendations: That the President and the Congress clearly define the responsibilities of DHS and other federal entities before, during, and after an attack has occurred, especially any authority for directing the activities of other federal agencies.

That situation is especially problematic when it comes to a bioterrorism attack. No one in the federal structure can currently identify who is or after DHS is formed will be in charge in the event of a biological attack.

Recommendation: That the President specifically designate the DHS as the Lead Federal Agency for response to a bioterrorism attack, and specify its responsibilities and authority before, during, and after an attack; and designate the DHHS as the Principal Supporting Agency to DHS to provide

technical support and provide the interface with State and local public health entities and related private sector organizations.

Interagency Coordination

There are numerous federal interagency coordination structures and several combined federal/state/local structures. As examples of the later, the Joint Terrorism Tasks Forces (JTTF) (FBI) will remain with the FBI and a new National JTTF (FBI) will be formed. But ITTFs are organized differently in various jurisdictions. And according to the national strategy, the responsibilities (for intelligence/information sharing with state and local law enforcement) of the U.S. Attorney Antiterrorism Task Forces (ATTFs) will shift to the DHS. The proliferation of such mechanisms will likely cause unnecessary duplication of effort. More importantly, the National Strategy calls on the Governors of the several states “to establish a single Homeland Security Task Force...to serve as (the) primary coordinating body with the federal government.” But there is no similar single mechanism at the federal end.

Recommendation: That the Assistant to the President for Homeland Security review and recommend to the President, and that the President direct, a restructuring of interagency mechanisms to ensure better coordination within the federal government, and with states, localities, and the private sector, to avoid confusion and to reduce unnecessary expenditure of limited resources at all levels.

Legal Authorities

With the formation of the new DHS and other initiatives envisioned in the National Strategy, various statutory, regulatory, and other authorities (e.g., PDDs 37, 62, and 63) will be directly implicated. The Strategy appropriately calls for a review of legal authority for use of the military domestically. But there are other legal and regulatory issues that must be addressed, not the least of which are quarantine, isolation, mandatory vaccinations, and other prescriptive measures that may be called for in the event of a biological attack.

Recommendation: That the President direct the Attorney General to conduct a thorough review of applicable laws and regulations and recommend legislative changes before the opening of the next Congress.

The Congress

The Congress is still poorly organized to address issues involving homeland security in a cohesive way. The House recently took the bold, necessary, but unfortunately only

temporary step of creating a special committee just to consider the proposal to create the Department of Homeland Security. Structures of that nature are required on a longer-term basis. Jurisdiction for various aspects of this issue continues to be scattered over dozens of committees and subcommittees. We therefore restate our prior recommendation with a modification:

Recommendation: That each House of the Congress establish a separate
authorizing committee and related appropriation subcommittee with
jurisdiction over Federal programs and authority for Combating
Terrorism/Homeland Security.

Advisory Panel Members

The Honorable James S. Gilmore, III, Chair
32 L. Paul Bremer, Corporate Executive, and former Ambassador-at-Large for Counter-Terrorism,

U.S. Department of State
George Foresman, Assistant to the Governor for Commonwealth Preparedness, Commonwealth of Virginia

te Michael Freemen, Chief, Los Angeles County Fire Department

William Garrison (Major General, U.S. Army, Retired), Corporate Executive, and Former Commander, U.S. Army
Special Operations Command's Delta Force

Ellen M. Gordon, Administrator, Emergency Management Division, Department of Public Defense,
State of lowa, and Former President, National Emergency Management Association
James Greenleaf, Independent Consultant, and Former Associate Deputy for Administration, Federal
Bureau of Investigation

Dr. William Jenaway, Independent Consultant, and Chief of Fire and Rescue Services, King of Prussia, Pennsylvania

William Dallas Jones, Director, Office of Emergency Services, State of California
Paul M. Maniscalco, Past President, National Association of Emergency Medical Technicians, and Former Deputy
Chief/Paramedic, City of New York Fire Department, EMSC

John O. Marsh, Jr., Attorney at Law, former Secretary of the Army, and former Member of Congress
Kathleen O'Brien, University Executive, and former City Coordinator, City of Minneapolis, Minnesota

M. Patricia Quinlisk, M.D., Medical Director/State Epidemiologist, Department of Public Health, State of Iowa
Patrick Ralston, Executive Director, Indiana State Emergency Management Agency; Executive Director, Department of
Fire and Building Services; and Executive Director, Public Safety Training Institute, State of Indiana

William Reno (Lieutenant General, U.S. Army, Retired), former Senior Vice President of Operations,
American Red Cross

Joseph Samuels, Jr., Chief of Police, Richmond, California, and President, International Association of Chief of Police
Kenneth Shine, M.D., Policy Analyst and former President, Institute of Medicine, The National Academies
Alan D. Vickery, Deputy Chief, Special Operations, Seattle Fire Department

Hubert Williams, President, The Police Foundation

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John Hathaway, U.S. Department of Defense Representative
Michael A. Wermuth, RAND, Executive Project Director
Jennifer Brower, RAND, Co-Project Director

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