Response to 26 November 2002 Homeland Security Commentary
Thursday, November 28, 2002
by Kenneth Scot Stremsky
I liked Mr. Berg-Andersson's commentary on the Department of Homeland Security very much. I am very glad you think we should have just one National Security Council and that the Secretary of Homeland Security should be part of the National Security Council.
I want several National Guard Units to be part of the Department of Homeland Security.
I would also like us to have at least one more Army Academy similar to West Point, at least one more Naval Academy similar to Annapolis, and at least one more Air Force Academy similar to Colorado Springs. I would like them to train cadets, many regular soldiers, many National Guard members, many ROTC members, and many joint special operations teams that include Army, Navy, Air Force, and Marines personnel. I do realize the Marines are part of the Navy and that each branch has special operations personnel.
The Department of Homeland Security should have a Homeland Security Intelligence Agency that will have former and current members of the FBI, CIA, INS, and NSA. The Homeland Security Intelligence Agency should also have former military intelligence personnel, current military intelligence personnel, former special operations military personnel from the Army, Navy, and Air Force as well as some current special operations military personnel from the Army, Navy, and Air Force.
I hope that Congress will ask former Senator Gary Hart, former Senator Warren Rudman, retired Army Colonel David Hackworth who has the website http://www.hackworth.com and retired General H. Norman Schwarzkopf to advise Congress on improving Homeland Security and National Defense. Retired Army Colonel David Hackworth also has a Sunday column in which he discusses homeland security and national security.
The Department of Homeland Security should include a National Police Force that will have at least 100,000 officers.
The United States military should expand the size of its special forces.
Congress should create a United States of America Foreign Legion similar to the French Foreign Legion.
MILITARY TRAINERS DIVISION
Congress should create a Military trainers division because the United States of America should benefit more from the vast experience of its Veterans in a family friendly way.
The Military Trainers Division may increase the likelihood that our country will win future battles and decrease the probability that our soldiers will die in combat.
I think many soldiers die in combat and in training exercises because they were not trained as well as they should have been.
Members of the Military Trainers Division should be former members of the United States Military.
Members of the Military Trainers Division should be able to work part-time or full-time. A member of the Military Trainers Division could work less than 10 hours a week. A member of the Military Trainers Division could work one day in one month and not work again for several months.
Members of the Military Trainers Division could help train current soldiers, ROTC members, and junior ROTC members.
Members of the Military Trainers Division should not have to serve in combat.
Members of the Military Trainers Division should be allowed to serve in combat.
Members of the Military Trainers Division should not have to train people outside of the United States of America.
Members of the Military Trainers Division should be allowed to train people outside of the United States of America.
Formers special forces personnel and former non special forces personnel should be asked to apply.
Mr. Berg-Andersson responds:
I will here only address the first portion of Mr. Stremsky's 'vox Populi' and let his section on his proposal for a MILITARY TRAINERS DIVISION speak for itself.
I have no problem at all with Mr. Stremsky's concept of a Homeland Security Intelligence Agency, so long as- as he himself opines- it is kept within the new Department of Homeland Security (as I've stated in my Commentary to which his 'vox Populi' is a response, I am not all that much in favor of Federal agencies and administrations- such as the CIA [which I myself would place within the Department of State]- being outside the Cabinet structure and, thus, not accountable to the President through a United States Senate-confirmed Cabinet-level 'Secretary' acting in his/her capacity as the head of an Executive Department).
However, the Counterterrorism unit of the FBI would, in my opinion, still have to be moved from the FBI itself (and, thus, out of the Department of Justice) to become the core of just such a new Homeland Security Intelligence Agency as Mr. Stremsky proposes. The 'HSIA' so proposed (or, even absent the creation of such an HSIA, the simple moving of what is now the FBI's Counterterrorism unit into the new DoHS- which is my proposal) is a necessity precisely because such an entity is going to have to be, besides an information/data gathering and intelligence procuring resource, a protective agency- that is, one that seeks to, if at all possible, prevent the crimes that terrorist acts, of course, inherently are from occurring in the first place: and this is also part of the essential problem with leaving the Counterterrorism unit of the FBI outside the new DoHS-- for, as HSIA or no, this unit will have to- almost by definition- be quite proactive and I am not all that comfortable in leaving such a proactive entity within a department [Justice], the main function of which is the prosecution of Federal crimes which have already occurred!
As someone who is, generally speaking, a rather zealous guardian of my own Civil Rights and Civil Liberties, I am not at all comfortable with having a Justice Department- whose main focus must be, besides such criminal prosecutions, also doing so within the parameters of the notion that one is "innocent until proven guilty"- in addition engaged in the type of proactive preventative activity in which the Counterterrorism unit of the FBI within that department is already well engaged. Moving this unit into DoHS as the core of Mr. Stremsky's HSIA is, therefore, a very good idea. But moving this unit into DoHS would be a good idea in any event- even absent the adoption of Mr. Stremsky's fine proposal!
I do have a problem with Mr. Stremsky's proposal for a National Police Force, however. Besides potential Civil Rights and Civil Liberties issues (which I will not at all take the time to discuss right now), there is the knotty problem of the Federal System itself. The 10th Amendment to the U.S. Constitution reads as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.
This "Reserved Powers clause" of the Constitution basically means that unless that document (or, under the concept of Judicial Review, a final and definitive Federal court decision) says it is OK for the Federal Government to do something, it is left to the States or to the People (Politics at the State and local level being, in its essence, the interplay of State[/local] Power versus People's Rights) to do it, so long as the Federal Constitution itself doesn't prohibit it outright- thereby letting the State and its citizenry "duke it out" at the State and local level over the just and proper distribution of such "reserved powers" in any given State.
The most basic, where it is not also essential, "reserved power" left to the States by the 10th Amendment is the so-called "Police Power" and one of the most succinct judicial expressions of the meaning behind this power I have ever been able to find seems to have been that stated in the 19th Century case of Town of Macon v. Patty [57 Miss. 378], as follows:
The "police power" is incapable of exact definition and of a precise limitation. It seems to be a power to which are referred all governmental acts which are incapable of arrangement under any other distinct head, and which are justifiable as internal regulations, having in view facility of intercourse between citizen and citizen, the preservation of good order, good manners and morals, and the health of the public.
While it is true that the history of American Law in the 20th Century (and now into the early 21st)- particularly after the U.S. Supreme Court's famous "switch in time that saved the nine" in response to President Franklin Delano Roosevelt's infamous- and ultimately failed- "Court-packing scheme" of 1937 (in which the high Court began upholding New Deal legislation that institution had only been too eager to strike down as unconstitutional only a few years before)- is largely one where the Federal Government has been successfully- and more and more- encroaching upon the Police Power of the States (to the point where, as early as 1941, then-soon-to-be Chief Justice Harlan Fiske Stone could rather dismissively note that the 10th Amendment "states but a truism that all is retained which has not been surrendered" [United States v. Darby, 312 U.S. 100- at 124]), the fact remains that the United States of America is a Federal system of governance and that the States of this Union are not mere first-order administrative units (Major Civil Divisions) of the Nation in the same way as are the Counties (Parishes in Louisiana and [organized] Boroughs in Alaska) of the Nation's unitary States: that is, the States do not exist solely at the pleasure- and/or merely to better facilitate the operations- of the Federal Government!
Besides this constitutional issue involving the vertical "checks and balances" between the States and the Federal Government, there is the inherent and historical jealousy of the American People themselves for local control of organized police forces and other law enforcement authorities. In Australia, for example, the more important police functions that we here in the United States assume will nevertheless be handled by the local police forces of our cities and towns (or, in some areas of the country, the County sheriff) are actually carried out by the police forces of the States of that federal Commonwealth (local police agencies "down under" are left to deal with minor criminal violations: not having a dog on a leash, littering, traffic infractions and the like).
There is, in fact, nothing in our own Federal Constitution that would at all prevent any State of this Union from (whatever restrictions there might be in a given State Constitution put aside for the time being, if only for sake of this argument) abolishing all its local police departments on the County (or equivalent), Township (in those States where such exist) and Municipal level and replacing these with a districted/sub-districted/precinct State Police system on the Australian model: after all, most of the laws, rules and regulations enforced by our Nation's local police agencies are violations of State law, as opposed to local by-laws and municipal ordinances. But no American State has chosen to do so!
Instead, we have state police agencies that are relatively limited in scope and power: in some States, these departments are merely "highway patrols" (whatever the actual name of the agency in question might, in fact, be); in many other of our Nation's 50, these departments are fully-blown "state police"-- but, even here, their power to take over Police Power enforcement functions from local police departments is usually rather restricted. One state- Hawaii- doesn't even have such a statewide police agency per se (the Hawaii 5-0 of 1960s television legend being pure Hollywood fiction)-- although Hawaii, largely because of its unique geography as a chain of islands having become a sovereign State of this Union, has county-wide police agencies performing most police functions that would usually be left to police departments even below the county level in most of the territory of its sister States.
Given this trend toward local control over law enforcement, even though most of the work of such local law enforcement is the enforcement of State law- aside from the constitutional issues brought to bear on the question by the Reserved (and, by extension, Police) Powers clause that is the gist of the 10th Amendment- I don't see Mr. Stremsky's proposal for a National Police Force as a politically viable (and it is certainly not a constitutionally viable) option, at least for the time being and the foreseeable future. Such a National Police Force would, in my opinion and in any event, put us well on the road toward making the States of this Union the mere administrative subdivisions of a larger America (as we would- in such a scenario- have to more regularly call our country, since to then use the term "United States" would have become something of a mockery!)