Foundations of Homeland Security and Emergency Management

Martin J. Alperen, JD, MA, is an experienced litigation attorney in private practice and a Homeland Security Laws consultant. He is admitted to practice law in California, Colorado, Massachusetts, New York, and the United States Virgin Islands. Martin has a Master’s Degree in Homeland Security from the Naval Postgraduate School’s Center for Homeland Defense and Security and helps businesses and state/local governments navigate homeland security laws and use them to become better prepared. Martin has professional first responder experience as a police officer, an EMT, and a search and rescue team member.

About the Contributors xxiv

Preface xxvi

Acknowledgments xxvii

1 Introduction—Overview—Background 1

Chapter Summary 1

9/11 1

What Is Homeland Security and How Do We Know When We Have It? 1

Individual Responsibility and Faith Based Assistance 3

What Does HSEM Look Like from the Outside? 3

What Does HSEM Look Like from the Inside? 4

Everyone Is a Component. Everything Is Important 4

What Is Homeland Security Law? 4

The Development of Homeland Security Law 6

A Few Definitions of Terrorism 6

Purpose of This Text 8

About This Text 8

Contributing Authors 8

Disclaimer 8

Notes 9

2 Ethical, Legal, and Social Issues in Homeland Security—What They Are and How to Address Them 13
Alexander Siedschlag

Overview 13

The Origins and Essence of ELSI 13

ELSI Components Defined 14

Security Culture as a Framework for Assessing and Addressing ELSI 15

Main ELSI Domains 16

The Relevance of ELSI 17

Homeland Security Legislation and the Intent of the Constitution 19

Domestic Surveillance and Homeland Security Technology such as Uncrewed Aerial Systems 23

ELSI Across the Homeland Security Cycle 25

ELSI in Public Health Preparedness and Pandemic Response 31

How to Address ELSI in Everyday Homeland Security 33

Questions 35

Additional Resources 35

Notes 36

3 The Homeland Security Legal Architecture Before 9/11 46
Amy C. Gaudion

The Legal Architecture 46

The Early Homeland Security Legal Authorities 48

Looking Ahead + Connecting Back: Evaluating the Post-9/11 Legal Authorities 55

Notes 56

4 Strategic Environment 60

Definition: What Is Strategic Environment? 60

Chapter Summary 60

Sources 60

Space 60

Alternative Scenarios for 2040 64

Space 67

U.S Space Command. USSPACECOM 70

Notes 71

5 Extremism, Terrorism, and Domestic Threat 73
Tobias T. Gibson and William L. Martin

Resurgence of American Secessionist Movements 74

Rightwing Extremist Terrorism 74

Modern Threats in Rightwing Domestic Terrorism 75

Far-Right Extremist Groups 76

Social Media 76

Going Forward 77

Rife for Targeting 77

Leftist Extremism in the United States 78

Conclusion 78

Inserts 79

National Strategy for Countering Domestic Terrorism (June, 2021; Biden Administration National Security Council) 83

Notes 85

6 Collision in Space: Governance and National Security 91
Benjamin Ogden

Chapter Summary 91

The Strategic Value of Space 91

The New Strategic Space Environment 92

The Outer Space Treaty and National Security 93

Other Mechanisms for Space Governance 99

Conclusion 100

Notes 100

7 Master of Puppets Drones and Homeland Security in the United States and Japan 105
Daniel G. Sofio and David A. Parker

Introduction 105

Drones Behaving Badly 107

Supply Chain Risks 111

Introduction to the U.S. Drone Governance Framework 113

Introduction to Japan’s Drone Governance Framework 117

Conclusion 120

Notes 121

8 The Department of Homeland Security 130

Sources 130

Title I—Department of Homeland Security 131

Title II—Information Analysis and Infrastructure Protection 132

Title III—Science and Technology in Support of Homeland Security 132

Title IV—Directorate of Border and Transportation Security 135

Title V—Emergency Preparedness and Response 135

USA Patriot Improvement and Reauthorization Act of 2005 135

DHS Strategic Plan 2020–2024 137

Organizational Structure 138

Notes 139

9 FEMA—The Federal Emergency Management Agency 141

Sources 141

Executive Order 12148—Federal Emergency Management, July 20, 1979 141

Homeland Security Act of 2002 142

Hurricane Katrina 142

Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina 142

Summary of PKEMRA 146

Post-Katrina Emergency Management Reform Act of 2006 146

Pets Evacuation and Transportation Standards Act of 2006 155

FEMA Office of Disability Integration and Coordination 155

Notes 155

10 Emergency Management and Homeland Security in Puerto Rico—A Brief Case Study 157
Daniel E. Rivera

Introduction 157

Hurricane María 158

The FEMA Process 159

Individual Assistance 159

Public Assistance 163

Management Costs 164

Conclusion 167

Homegrown and Restless—Puerto Rican Identity in the 21st Century 168

The 21st Century 170

2016–2023 171

Conclusion 174

Notes 174

11 Pandemic Law (2002–2022) 177

Strategic Environment 177

Pandemic Laws 177

Homeland Security Act, November 25, 2002 178

National Strategy for the Physical Protection of Critical Infrastructures and Key Assets, February 2003 178

Regulations to Control Communicable Diseases, 42 USC 264, 265 178

Executive Order 12452 December 22, 1983, Revised List of Quarantinable Communicable Diseases 179

Executive Order 13295 Of April 4, 2003, Revised List of Quarantinable Communicable Diseases 179

Executive Order 14047 of September 17, 2021, Adding Measles to the List of Quarantinable Communicable Diseases 179

HSPD 10, Biodefense for the 21st Century. (April 28, 2004) 180

Project BioShield Act of 2004. (July 21, 2004) 180

Post Katrina Emergency Management Reform Act, October 4, 2006 180

Pandemic and All Hazards Preparedness Act, December 19, 2006 180

HSPD 18, Medical Countermeasures against Weapons of Mass Destruction, January 2007 181

Implementing Recommendations of the 9/11 Commission Act of (August) 2007 181

HSPD 21. Public Health and Medical Preparedness. October 18, 2007 181

DOD Instruction Number 6420.01, March 20, 2009, Re-established the National Center for Medical Intelligence 181

National Strategy for Countering Biological Threats November 23, 2009 181

United Nations Website 182

Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 183

The 2015 Public Health Emergency Medical Countermeasures Enterprise Strategy and Implementation Plan 183

Executive Order 13747, November 4, 2016, Advancing the Global Health Security Agenda To Achieve a World Safe and Secure From Infectious Disease Threats 183

National Health Security Strategy and Implementation Plan 2019–2022 184

National Biodefense Strategy from 2018 184

American Pandemic Preparedness Plan: Transforming Our Capabilities (AP3), September 2021 186

Moving Forward 187

Notes 188

12 Intelligence Gathering 191

Chapter Summary 191

Definitions 191

Intelligence Community (IC) 191

Sources 191

Project on National Security Reform “Forging a New Shield,” November 2008 192

National Intelligence Strategy of the United States of America, 2019 193

The National Security Act of 1947 193

Title I—Coordination for National Security 193

Executive Order 13228 of October 8, 2001, Establishing the Office of Homeland Security and the Homeland Security Council 194

Title III of the Omnibus Crime Control and Safe Streets Act, Wiretapping and Electronic Surveillance, June 19, 1968 194

Foreign Intelligence Surveillance Act, October 25, 1978 196

50 U.S. Code § 1801—Definitions 197

Title II—Enhanced Surveillance Procedures 199

Title IX—Improved Intelligence 201

Title I—Reform of the Intelligence Community 201

Title II—Federal Bureau of Investigation 208

USA PATRIOT Improvement and Reauthorization Act of 2005 208

Title VI—Congressional Oversight of Intelligence 211

Executive Order 13462, February 29, 2008, President’s Intelligence Advisory Board and Intelligence Oversight Board 212

FISA Amendments Act of 2008 213

Title I—Foreign Intelligence Surveillance 213

Title II—Protections for Electronic Communication Service Providers 214

USA Freedom Act, Public Law 114-23, June 2, 2015 215

Title I—FISA Business Records Reforms 215

CRS Report: Reauthorization of Title VII of the Foreign Intelligence Surveillance Act, March 17, 2023 216

Notes 216

13 Border Security 218

Sources 218

Patriot Act, 2001 218

Homeland Security Act of 2002 219

Intelligence Reform and Terrorism Prevention Act of 2004, Advanced Technology Northern Border Security Pilot Program 220

Appropriations, Public Law 109–295, Title V, October 4, 2006 221

Arctic Region Policy, NSPD-66/HSPD-25, January 9, 2009 221

National Southwest Border Counternarcotics Strategy, June 2009 223

National Southwest Border Counternarcotics Strategy, 2011 225

Border Tunnel Prevention Act of 2012 225

Ultralight Aircraft Smuggling Prevention Act of 2012 226

The 2012–2016 Border Patrol Strategic Plan 227

National Southwest Border Counternarcotics Strategy, 2013 227

Border Patrol Strategy 2022–2026, June 7, 2022 229

Notes 231

14 Critical Infrastructure Protection 232

Background and Chapter Summary 232

Sources 233

Executive Order 13010—Critical Infrastructure Protection, 1996 233

Executive Order 13231—Critical Infrastructure Protection In The Information Age, October 18, 2001 233

Patriot Act, October 26, 2001 234

National Strategy for the Physical Protection of Critical Infrastructures and Key Assets, February 2002 234

The New Front Lines 234

Statement of National Policy 235

Guiding Principles 235

Protecting Key Assets 235

National Strategy for Homeland Security, July 2002 235

Homeland Security Act, November 25, 2002 235

HSPD 7. Critical Infrastructure, December 17, 2003 236

9/11 Commission Implementation Act of 2004 238

Post Katrina Emergency Management Reform Act 238

HSPD 19. Combating Terrorist Use of Explosives in The United States, February 2007 239

Improving Critical Infrastructure Security, Title X, Implementing Recommendations of The 9/11 Commission Act, August 3, 2007 240

National Strategy for Homeland Security, October 2007 240

National Infrastructure Protection Plan (NIPP), 2009 240

PPD-21. Critical Infrastructure Security and Resilience, February 12, 2013 241

National Infrastructure Protection Plan (NIPP) 2013: Partnering for Critical Infrastructure Security and Resilience 242

FACT SHEET: Biden Administration Announces Further Actions to Protect U.S. Critical Infrastructure. JULY 28, 2021 243

Cybersecurity and Infrastructure Security Agency 243

Notes 243

15 Agriculture and Food 246

Sources 246

National Agricultural Biosecurity Center at Kansas State University 246

Public Health Security and Bioterrorism Preparedness and Response Act of 2002 246

Title IV—Drinking Water Security and Safety 247

National Strategy for the Physical Protection of Critical Infrastructures and Key Assets, February 2003 247

HSPD 9. Defense of United States Agriculture and Food, January 30, 2004 248

Research and Development 249

FDA Food Safety Modernization Act, January 2011 249

Title I—Improving Capacity To Prevent Food Safety Problems 250

A Homeland Security Strategy for Countering Biological Threats and Hazards 251

Overview 251

A Homeland Security Strategy for Managing Biological Risk 252

Report to Congress on the National Agriculture and Food Defense Strategy (NAFDS) April 2015 252

Food and Agriculture Sector-Specific Plan, 2015 252

Sector Overview 253

Response Federal Interagency Operational Plan, August 2016 253

2019 Report to Congress, The Food Emergency Response Network (FERN) 253

Notes 253

16 Transportation Security 255

Sources (Not in Chronological Order) 255

Aviation Security 255

The Aviation and Transportation Security Act, November 19, 2001 255

Intelligence Reform and Terrorism Prevention Act, Title IV, Aviation Security, December 17, 2004 261

Maritime Transportation Security 262

United Nations Convention on the Law of the Sea, 1982, Pirates. Part VII, High Seas 262

Title I—Maritime Transportation Security 262

HSPD 13. Maritime Security Policy, December 21, 2004 263

Reducing Crime and Terrorism at America’s Seaports Act of 2005 264

Rail Transportation 265

Intermodal (Supply Chains) 266

Appendix D: 2020 Intermodal Transportation Security Plan 267

Notes 267

17 Weapons of Mass Destruction 269

Sources 269

HSPD-4 National Strategy to Combat Weapons of Mass Destruction, December 2002 269

Pillars of Our National Strategy 269

Nonproliferation 270

Intelligence Reform and Terrorism Prevention Act of 2004 271

HSPD 14/NSPD 43, Domestic Nuclear Detection, April 15, 2005 271

Executive Order 13382, Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters, July 1, 2005 272

Security and Accountability For Every Port Act of 2006—Domestic Nuclear Detection Office 272

Implementing Recommendations of The 9/11 Commission Act, August 3, 2007. National Biosurveillance Integration Center 272

HSPD 17/NSPD 48, Nuclear Materials Information Center 273

A National Strategy for CBRNE Standards, May 2011 274

Title VIII—Safety of Maritime Navigation and Nuclear Terrorism Conventions Implementation 274

The DHS Countering Weapons of Mass Destruction Office (CWMD) 274

The United Nations Office for Disarmament Affairs 274

NSM 19 to Counter WMD, Terrorism, and Advance Nuclear and Radioactive Material Security, March 2, 2023 274

Notes 275

18 National Continuity Plan 278

Sources 278

25th Amendment to the U.S. Constitution, Ratified 1967 278

HSPD 20/NSPD 51. National Continuity Policy, May 4, 2007 278

Homeland Security Presidential Directive 20, National Security Presidential Directive 51, Annex A 280

Presidential Succession List 281

Executive Order: National Defense Resources Preparedness, March 2012 281

Executive Order: Assignment Of National Security And Emergency Preparedness Communications Functions, July 6, 2012 282

FEMA Office of National Continuity Programs (ONCP) 282

FEMA Continuity Resource Toolkit 282

Mount Weather Emergency Operations Center 282

Notes 283

19 Real ID Act 284

Sources 284

Intelligence Reform and Terrorism Prevention Act of 2004 284

Real ID Act, 2005 285

Implementing Recommendations of the 9/11 Commission Act of 2007 287

Extension of REAL ID Full Enforcement Deadline, December 5, 2022 287

Notes 287

20 NIMS and NRF 288

Chapter Summary 288

Sources 288

HSPD 5. February 28, 2003 288

Intelligence Reform and Terrorism Prevention Act of 2004 289

National Incident Management System, Third Edition, October 2017 289

National Response Framework Fourth Edition, October 2019 290

History of NIMS 291

Notes 291

21 Preparedness 293

Chapter Summary 293

Sources 293

Executive Order 13234 of November 9, 2001, Presidential Task Force on Citizen Preparedness in the War on Terrorism 293

Homeland Security Advisory System 294

Homeland Security Act of 2002 294

Executive Order 13347 of July 22, 2004, Individuals with Disabilities in Emergency Preparedness 295

9/11 Commission Implementation Act of 2004 295

Public Alert and Warning System, Executive Order 13407 of June 26, 2006 297

Post Katrina Emergency Management Reform Act, October 4, 2006 297

Title XVIII—Emergency Communications 297

Title III—Ensuring Communications Interoperability for First Responders 299

National Strategy for Homeland Security, October 5, 2007 299

National Terrorism Advisory System (NTAS) 2011 300

2014 Quadrennial Homeland Security Review, June 18, 2014 300

National Preparedness And The Whole Community Approach 300

Executive Order on America’s Supply Chains, February 24, 2021 301

Response and Recovery Federal Interagency Operational Plan, March 2023 301

Wireless Emergency Alerts System 302

Notes 303

22 Resiliency and a Culture of Preparedness 304

Chapter Summary 304

Sources 304

National Strategy for Homeland Security, October 5, 2007 304

HSPD 21. Public Health and Medical Preparedness, October 18, 2007 305

National Defense Strategy, 2008 305

Top Ten Challenges Facing The Next Secretary of Homeland Security, September 11, 2008 305

PPD 8. National Preparedness, March 30, 2011 306

National Preparedness Guidelines 306

The National Preparedness Goal, September 2011 307

National Preparedness Goal, Second Edition, September 2015 307

CDC Global Health Strategy 2019–2021 307

Dept. of Homeland Security Strategic Plan: Fiscal Years 2020–2024 308

CDC Global Health Equity Strategy 2022–2027 308

FEMA National Preparedness Report 2022 308

Increase Equity in Individual and Community Preparedness 308

Notes 309

23 Authority to Use Military Force 310

Sources (Not in Chronological Order) 310

U.S. Constitution, Article I Section 8, Congressional Power 310

U.S. Constitution, Article II Section 2, Presidential Power 311

What Is “Posse Comitatus?” 311

Posse Comitatus Act: Use of Army and Air Force as posse comitatus 311

Insurrection Act 311

U.S. Constitution, Amendment XIV, 1868 311

Joint Publication 3–28: Defense Support of Civil Authorities, 2018 312

Department Of Defense Instruction 3025.21, 2019 312

Military Support For Civilian Law Enforcement, also known as DSCA (Defense Support for Civilian Authorities) (10 Usc 271) 312

War Powers Resolution of 1973 314

Authorization for Military Action Against Iraq Resolution, January 14, 1991 315

PDD-39, U.S. Policy on Counterrorism, June 21, 1995 315

United States Government Interagency Domestic Terrorism Concept of Operations Plan, January 2001 316

Authorization For Use Of Military Force, September 18, 2001 317

Authorization for Use of Military Force Against Iraq Resolution, October 16, 2002 317

United States Northern Command 318

Northcom’s CBRNE Consequence Management Response Force 318

Strategy for Homeland Defense and Defense Support of Civil Authorities, Department of Defense, February 2013 319

Executive Order — Federal Support for Local Law Enforcement Equipment Acquisition, January 16, 2015 320

Recommendations Pursuant to EXECUTIVE ORDER 13688 Federal Support for Local Law Enforcement Equipment Acquisition. May 2015 320

National Response Framework Fourth Edition, October 2019 321

Response and Recovery Federal Interagency Operational Plan, March, 2023 322

Notes 322

24 Cyber 324

Sources 324

National Strategy to Secure Cyberspace, 2003 324

U.S. Department of Homeland Security Cybersecurity Strategy, May 15, 2018 324

National Cyber Strategy Of The United States Of America, September 2018 324

Executive Order on Improving the Nation’s Cybersecurity, May 12, 2021 325

Annual Threat Assessment of the U.S. Intelligence Community, February 7, 2022 325

Cross-Sector Cybersecurity Performance Goals 2022 326

Cybersecurity and Infrastructure Security Agency (CISA) 327

U.S. Cyber Command 327

Notes 328

25 Three National Strategies 330

National Strategy for Countering Domestic Terrorism June 2021 330

Department of Defense, National Defense Strategy 2022 330

National Cybersecurity Strategy, United States, White House Office, March 02, 2023 332

Emerging Trends 332

Malicious Actors 332

Rebalance the Responsibility to Defend Cyberspace 332

Realign Incentives to Favor Long-Term Investments 333

Notes 333

Index 334