Discussion Topic: National Security Authority and the U.S. Constitution

Background
The national security apparatus in the United States involves three main actors: the Department of Defense, the Department of Homeland Security, and the intelligence community.

Department of Defense
Most of us are generally familiar with the Department of Defense (DoD), or at least with basic functions and capabilities of the Army, Navy, Air Force, and Marine Corps. We understand that our national leaders use the military to employ force in furtherance of our national interests around the globe. We also understand that military forces can support humanitarian operations or disaster relief efforts at home and abroad. However, most Americans are not as familiar with the organizational structure through which through which the authority to employ military force flows.

This authority flows from the President through the Secretary of Defense to the military officer in command of a joint organization—that is, one comprised of forces from each of the military services. This structure reflects the understanding, articulated by President Eisenhower fifty years ago, that “separate ground, sea and air warfare is gone forever.” These joint organizations are called unified or combatant commands. There are two types of these commands: geographic and functional.

Geographic combatant commands have an assigned “Area of Responsibility” (AOR), as illustrated on the following map. The commander of a geographic combatant command is generally responsible for all military operations within the assigned AOR.

Functional combatant commands, on the other hand, have no geographic limitations. They control specialized units that usually support operations executed under the command authority of a geographic combatant commander. U.S. Transportation Command is an example of a functional combatant command. It is responsible for airlift, sealift, and other capabilities that provide our forces with the strategic mobility to reach any corner of the world. During a conflict, units from the U.S. Transportation Command could be directed to support one or more geographic combatant commanders and tasked with ferrying troops and supplies to and from the theaters of conflict.

The structure of the DoD is premised on the principle of “unity of command.” This is the idea that military forces work together to accomplish a common objective under a single responsible commander. It has been implemented at all levels throughout the military.

Notwithstanding this belief in unity of command generally, on September 11, 2001, there was no single military officer was ultimately responsible for defending the United States from an attack. Instead, this task was shared by several entities. The Commander of the North American Aerospace Defense Command was responsible for detecting and responding to attacks against North America by missiles or aircraft. The Commander of Joint Forces Command was responsible for executing plans focused on land and sea-borne operations. The responsibility for civil support functions and other efforts (such as providing disaster relief within the United States) resided elsewhere.

To remedy this situation, the U.S. Northern Command (USNORTHCOM) was created on October 1, 2002. It is responsible for providing command and control of DoD homeland defense efforts and coordinating military assistance to civil authorities. USNORTHCOM consolidates under a single combatant command existing missions that were previously executed by other DoD organizations. It plans, organizes and executes homeland defense and civil support missions, but has few permanently assigned forces. The command is assigned forces whenever necessary to execute missions, as ordered by the President and Secretary of Defense.

The establishment of a military command with the responsibility for conducting operations within the United States has caused concern about the implications for our individual liberties. Some have questioned whether this decision is a precursor to an overly intrusive role by the military in our domestic affairs. This group has urged a renewed commitment to the principles that have minimized military involvement in certain domestic matters. Prominent among these principles is the Posse Comitatus Act, which limits involvement of military forces in law enforcement matters to circumstances authorized by statute or the Constitution. Others have focused on the attributes of military organizations that permit them to respond well in a crisis situation and want lawmakers to repeal or amend laws that might limit the authority of USNORTHCOM to act in an emergency.

Department of Homeland Security
The Department of Homeland Security (DHS) was created in 2003 by merging 22 distinct agencies and organizations together under a new bureaucracy. DHS is the third largest federal government agency with a budget of more than $40 billion and 180,000 employees.

Parallels have been drawn between the creation of DHS and the creation of DoD fifty years earlier. Specifically, DHS has suffered the same kind of bureaucratic in-fighting that dominated DoD’s early years. There is a general consensus that DoD was not originally structured in a manner which fostered integrated operations and did not adopt such a structure until after the enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986—forty years after it was first established. While the DHS has successfully addressed some issues, it is unclear how long it may take the department to integrate its disparate components in a manner that facilitates unity of effort. Some fear that DHS will require a legislative overhaul similar to the one DoD required two decades ago.

Intelligence Community
Like DoD, the U.S. Intelligence Community (IC) was established by the National Security Act of 1947. However, unlike the DoD, the components of the IC do not reside within a single department of the Executive Branch. Instead, they are found in almost two dozen agencies spread across many departments and organizations. The Intelligence Community Primer included in the online resources below describes the IC as “a federation of executive branch agencies and organizations that work—both together and separately—to conduct intelligence activities necessary for the conduct of foreign relations and the protection of the national security of the United States. While the U.S. Intelligence Community is a large and complex organization, its primary mission is clear cut: to collect and convey essential information needed by the President and other members of the U.S. policymaking, law enforcement, and military communities for the performance of their duties and responsibilities.”

Prior to the recent creation of a Director of National Intelligence (DNI), the IC management structure fell under the multi-hatted Director of Central Intelligence (DCI). The DCI’s statutory responsibilities were purposely vague and its authority over the IC was limited. The National Commission on Terrorist Attacks Upon the United States determined that there was an urgent need to restructure the IC. According to the Commission, this need arose from the structural barriers that precluded joint intelligence work, the lack of common standards, an inability to effectively set priorities and allocate resources, and the fact that the DCI was simply spread too thin. However, the idea of a DNI had been considered previously but rejected. There were those who believed that the IC needed an infusion of more capable and imaginative analysts who could better “connect the dots” rather than another layer of bureaucracy.