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CIA, Homeland Security, DoD, the law of war, and cyber war!

by Lynn Lenart, Law Librarian on February 5, 2010

in Government, Legal Resources, Lynn Lenart, National Security Law

The CIA, Homeland Security and the Defense Dept. were busy this week responding to investigations of 2009’s terrorist incidents, answering Congressional questions, and voicing concerns about the adequacy of the defense budget.  Find out when we can expect terrorist attacks and what is cyber war?  Also read the reports below on related topics that were issued from three of my favorite government agencies, Government Accountability Office, Congressional Research Service and the Congressional Budget Office.

CIA Before the Senate Intelligence Committee  – Terrorist Attacks within Six Months!

CIA Director Leon Panetta testified before the Senate Intelligence Committee on Tuesday (Feb. 2). The hearing was to examine current and projected threats to the U.S.  No hearing transcripts are available yet but the video can be found here.

Here is what Panetta had to say- “Al-Qaeda can be expected to attempt an attack on the United States in the next three to six months.  The terrorist organization is deploying operatives to the United States to carry out new attacks from inside the country, including "clean" recruits with a negligible trail of terrorist contacts.“  Summarized in a news story here.

Cyber War

Dennis Blair, Director of National Intelligence, at the same hearing presented the Annual Threat Assessment of the U.S. Intelligence Community report.  The report focuses on the evolving threat of cyber attacks.  Cyber attacks (sometimes called cyber war) “are occurring on an unprecedented scale with extraordinary sophistication.”  “This cyber domain is exponentially expanding our ability to create and share knowledge, but it is also enabling those who would steal, corrupt, harm or destroy the public and private assets vital to our national interests. The recent intrusions reported by Google are a stark reminder of the importance of these cyber assets, and a wake-up call to those who have not taken this problem seriously.”

See Google’s own blog about China’s use of cyber attacks on Google’s gmail accounts of Chinese human rights activists. 

See Time.com’s coverage on cyberwar here,  New York Times series on the topic here,  and Frontline’s multimedia page (slightly old but good for past incidents) here.

In response, on Feb. 4th the House passed the Cybersecurity Enhancement Act (H.R. 4061) which provides nearly $1 billion dollars for federal cybersecurity under the 2010 budget.  More here.

More here:

President Obama Directs the National Security and Homeland Security Advisors to Conduct Immediate Cyber Security Review Posted on February 09, 2009.

Remarks by the President on Securing Our Nation's Cyber Infrastructure  Posted on May 29, 2009.

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Homeland Security,  but with Criticism from GAO and Congressional Research Search

The Department of Homeland Security delivered to Congress the Quadrennial Homeland Security Review (QHSR) Report, A Strategic Framework for a Secure Homeland, on February 1, 2010. The report outlines the strategic framework to guide the activities of participants in homeland security toward a common end.  The report lays out the roles and responsibilities of the various government agencies and the missions and goals for Homeland Security.

“The purpose of the first-ever Quadrennial Homeland Security Review (QHSR) is to outline the strategic framework to guide the activities of participants in homeland security toward a common end. A safe and secure homeland must mean more than preventing terrorist attacks from being carried out. It must also ensure that the liberties of all Americans are assured, privacy is protected, and the means by which we interchange with the world – through travel, lawful immigration, trade, commerce, and exchange- are secured." (Source: page vii.)

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GAO Report:  Homeland Security: Better Use of Terrorist Watchlist Information and Improvements in Deployment of Passenger Screening Checkpoint Technologies Could Further Strengthen Security.

The title is quite a mouthful, but it is GAO’s study following the December 25, 2009 bombing attempted of flight 253.  The U.S. Government Accountability Office (GAO) released the 26 page report on Jan. 27 here.     The GAO pointed out flaws in the current system and referenced another report they released in October 2007.  The adjustments suggested in the 2007 report were never made. 

“In October 2007, we released a report on the results of our review—conducted at your request—of how the watchlist is created and maintained, and how federal, state, and local security partners use the list to screen individuals for potential threats to the homeland.   As a result of that review, we identified potential vulnerabilities, including ones created because agencies were not screening against all records in the watchlist. We made a number of recommendations aimed at addressing these potential vulnerabilities and helping to enhance the effectiveness of the watchlist process, which the agencies have not yet fully addressed.” (Emphasis added.)

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Congressional Research Service Report on National Counterterrorism Center- Responsibilities and potential Congressional Concerns

Two recent incidents- the Fort Hood Army Base attack on Nov. 5, 2009 and the bomb attempt of flight 253 on Dec. 25, 2009 led to an increase concern about the U.S. domestic counterterrorism capabilities.  “Attention has focused on the NCTC which is responsible for ensuring both the sharing of information and for all-source analysis of terrorist issues.”

This 13 page report lays out areas of potential Congressional concerns about the NCTC and lists the human errors associated with these two incidents.  Also  – “Although no system is infallible and the possibility of human errors has to be assumed, recent attacks appear to demonstrate specific failures by the Intelligence Community to “connect the dots,” to bring together disparate pieces of information to provide clear warning of an impending attack. In regard to the December attack, President Obama stated that, “this was not a failure to collect intelligence; it was a failure to integrate and understand the intelligence that we already had.” (see page 1)

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Defense Dept. 2011 Budget Proposal, and 2010 War Funding Supplemental Request – Update

From beSpacific blog:

News release: "President Barack Obama sent to Congress a proposed defense budget of $708 billion for fiscal 2011. The budget request for the Department of Defense (DoD) includes $549 billion in discretionary budget authority to fund base defense programs and $159 billion to support overseas contingency operations (OCO), primarily in Afghanistan and Iraq. This proposal continues the reform agenda established in last year's DoD budget request and builds on the initiatives identified by the 2010 Quadrennial Defense Review (QDR) and 2010 Ballistic Missile Defense Review (BMDR). The QDR examines DoD strategies and priorities. It assesses the threats and challenges that the nation faces and re-balances DoD’s strategies, capabilities, and forces to ensure the U.S. military has the flexibility to address today’s conflicts and tomorrow’s threats. The BMDR evaluates the ballistic missile threat to the U.S. and its allies and articulates policy. It determines the appropriate role of ballistic missile defense in the country’s national security and military strategies."

"Key highlights of the proposed DoD budget are here and here. For more information and to view the entire fiscal 2011 budget proposal, go here and download the "FY 2011 Budget Request Overview Book."

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Congressional Budget Office analyzes the DoD Budget

The DoD gets support from the Congressional Budget Office (CBO).  CBO's Analysis of Scenarios for Funding the Wars in Afghanistan and Iraq, Letter from the executive director of the CBO to John M. Spratt Jr., Chairman of the House Committee on the Budget, January 21, 2010.  The first paragraph says it all.

 "As you requested, the Congressional Budget Office (CBO) has analyzed both the funding needed to support an additional 30,000 troops in Afghanistan and the reduction in costs resulting from the ongoing withdrawal of U.S. forces from Iraq. The Department of Defense Appropriations Act, 2010 (Public Law 111-118, 111 H.R. 3326 ) provides $130 billion for war-related operations in 2010. Based on recent trends in spending on overseas operations, the Department of Defense (DoD) would probably require further appropriations in 2010 to support an additional 30,000 troops in Afghanistan as well as other war-related operations."

If the 2010 Defense budget is not enough, is the 2011 budget adequate?

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Is there a law of war?  Yes, and it is issued by the Dept. of Defense!

The Law of War Deskbook, was recently issued by the Judge Advocate General’s Legal Center and School, U.S. Army.  The expected audience is the beginning and intermediate level practitioner, but you can read it yourself.  The PDF copy is here and is 248 pages long.  Using the Adobe Reader search tool is one way to quickly find topics in the book.

From the preface:  “Together with the Operational Law Handbook and Law of War Documentary Supplement, these three volumes represent the range of international and operational law subjects taught to military judge advocates. These outlines, while extensive, make no pretence of comprehensively covering this complex area of law.”

“This Deskbook is not a substitute for official publications. Similarly, it should not be considered to espouse an “official” position of the U.S. Army, Department of Defense, or U.S. Government. While every effort has been made to ensure that the material contained herein is current and correct, it should be remembered that these are merely a collection of teaching outlines, collected, bound, and distributed as a matter of instructional convenience, intended only to introduce students to the law and point them to primary sources of that law.” 

Topics covered:  legal basis for use of force, wounded and sick in the field, prisoners of war, occupation and post-conflict governance, means and method of warfare, human rights, war crimes and command responsibility.

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