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<title>Dealing with the Terrorism Crisis: Potential Contributions from the Conflict Resolution &amp; Peacemaking Fields</title>
<link>./?r=p/1265058552</link>
<description><![CDATA[AS EVENTS STEMMING from the September 11th attacks clearly demonstrate, intractable conflicts can be extremely painful, costly, and dangerous. While a relatively small group of people may have been responsible for the immediate tragedy of September 11, the danger of continued, wide-ranging, and highly destructive intractable conflict looms large.

In response, the United States is currently engaged in a "War on Terrorism." The goal of this war is said to be the elimination of terror as a viable option for obtaining a group's interests or needs. Many people in the United States and around the world support this military approach, believing it is the best, or even the only possible way to respond to September 11. Terrorists — and the states that support them — need to understand that their approach is not acceptable or effective. If they are allowed to "get away with it," many experts assert, more attacks will likely follow.

Others fear the "war on terrorism" will drive the escalation spiral even higher. It is asserted by many in the dispute resolution field and elsewhere that the U.S. war will create more enemies of America, more hate, more fear, and more violence and terrorism.

To what degree is each view correct? What are the alternatives? Was there an effective non-violent response to the September 11 attack? Is there still a non-violent option (now that the "war" is underway)? Is it possible to pursue war and peace at the same time? How can we bring the current "war" to an end? What is (or should be) our ultimate goal in this struggle?

For the last six weeks we have been talking and corresponding with many of our conflict resolution and peace-building colleagues about these questions. Most have opinions and suggested answers. In some areas there is consensus. In others, great difference. But clearly, the conflict resolution field knows a lot about intractable conflicts and what is likely to work, and not work, in this crisis situation.

Compiling our knowledge is far beyond the scope of one paper; in fact, that is what the Intractable Conflict Knowledge Base Project (ICKB) is all about. (Funded by the Hewlett Foundation, ICKB is a new, two-year project which will assemble, on the World Wide Web, a comprehensive and extensively crossed indexed inventory of available strategies for dealing with intractable conflict.) This essay represents an initial effort, by the project's directors, to identify topics which should be included in the knowledge base, because of their applicability to the terrorism crisis and the broader problem of intractable conflict. We hope readers will look at our list, add to it, suggest changes, and start thinking about the materials we need to collect and distribute to bring outsiders "up to speed" on what we, as a field, know about these topics.

PART I: UNDERSTANDING THE NATURE OF INTRACTABLE CONFLICTS

While we can debate what we mean by "intractable" for hours or days, we do know that some conflicts are clearly vastly more difficult to resolve than others. We also have considerable information about why this is true. Among this knowledge is an understanding of:

    * The Causes of Intractability
      Several theories exist about what causes some conflicts to be resolvable, while other conflicts apparently are not. We need to identify each of those theories and develop materials that people can use to understand the problems that need to be overcome before the terrorism crisis can be resolved successfully. These theories will apply to other intractable conflicts as well.
          Material on this topic from CRInfo

    * Framing
      The way conflicts are defined or framed contributes greatly to the way in which they are approached. To some extent, framing is a self-fulfilling prophesy — if a conflict is framed as intractable, it will become so. But framing is also a much more complex process than that. In the context of September 11, it was significant that the U.S. framed this conflict as a "war," as opposed to a "criminal act." It also matters whether the attack is framed as "terrorism," or as others have seen it, as "freedom fighting." The field has a great deal of useful information about framing and reframing-how it is done, why it is important, and how destructive frames can be transformed (sometimes) into more constructive frames.
          Material on this topic from CRInfo

    * Conflict Assessment
      Intractable conflicts are often extremely complex. They involve many parties and issues, and usually have long histories of multiple disputes and overlapping problems. As one investigates the September 11 attacks, for example, it quickly becomes evident that the issues involve all of the religious, political, economic, and social differences between the United States and Al Qaeda, the Taliban, and to some extent the broader Islamic world. The Israeli-Palestinian conflict is part of the story, as are intergroup relations within the United States. By presenting a variety of conflict assessment tools, and applying to the "terrorism crisis" (as well as other intractable conflicts) people should be able to gain a further understanding of the complexity of this problem and why simple "solutions" won't work.
          Material on this topic from CRInfo

    * Conflict Stages
      Conflicts tend to move through stages, each with their own special problems and opportunities. Some interventions are most appropriate and effective during early conflict definition and escalation stages, while others are more appropriate during later stages of stalemate or de-escalation. An understanding of typical stages and "what works best/when" is important for effective conflict de-escalation and transformation.
          Material on this topic from CRInfo

    * Conflict Dynamics
      Many of us have been studying particular conflict dynamics for years. An improved understanding of dynamics such as issue emergence, transformation, proliferation, polarization, stereotyping, and runaway escalation can leave disputants, bystanders and third parties in a better position to anticipate and avoid potential problems, while also identifying and pursuing opportunities to reverse destructive dynamics.
          Material on this topic from CRInfo

    * Future Imaging
      One of the major barriers to effective conflict resolution is the fact that parties to intractable conflict seldom have a realistic image of what peace would look like or how it would be structured. The assumption is simply that the "bad guys" will disappear, or somehow stop being "bad." But successful peacebuilding requires a much clearer and more realistic image of what end results are both achievable and desirable.

      It is much easier to get the parties to abandon destructive and counter-productive conflict processes if they have a clear and realistic image of a more desirable future that they would like to pursue. Visualization processes and related interventions can facilitate development of such images.
          Material on this topic from CRInfo

    * Coalition Building
      In military confrontations, such as the one we are now facing, there is a tendency to conclude that the only conflict which matters is the one that divides the parties to the core confrontation. However, there is a lot of "in-group" conflict resolution that is required before the core conflict can be addressed successfully. We know a great deal about the consensus-building and negotiation processes that are necessary to building effective coalitions.
          Material on this topic from CRInfo

UNDERSTANDING THE DANGERS OF INTRACTABLE CONFLICT

Force-based approaches to intractable conflict can be extremely costly-often with costs far exceeding the parties' expectations. Our field has developed a variety of strategies for helping the parties better assess the likely costs and risks associated with alternative approaches.

    * Costing: Helping the Parties Better Predict the Costs of Force-Based Strategies
      Traditional force-based strategies based upon legal, political, economic, police, or military power are frequently expected to be relatively easy and effective solutions to difficult problems. We assume that we can just "sue them," or "bomb them," and "they" will submit. While victories are sometimes achieved quickly, more often the result is a long, costly, and inconclusive struggle. Costing strategies can counteract unfounded optimism by helping the parties better understand all of the things which "could go wrong."

    * Understanding Escalation
      Escalation, polarization, and related processes can transform relatively minor disagreements and provocations into intense and tragic confrontations in which the parties conclude that they must devote all available resources to the destruction of their enemies. Our field can help the parties better understand the dangers of escalation, as well as the many techniques for de-escalating conflicts once escalation has occurred.
          Material on this topic from CRInfo

PROMOTING COMMUNICATION AND UNDERSTANDING
Strategies for dealing with intractable conflict are limited by the accuracy of the parties' images of the situation and, especially, their understanding of the interests and positions of other parties. Proven strategies for promoting communication and understanding constitute one of the principal accomplishments of the conflict resolution field. Among the processes which can profitably be applied to the terrorism crisis are the following:

    * Conflict Communication Techniques
      Our field has developed a number of strategies for improving communication between people in conflict. Third parties can help disputants listen to and hear each other more effectively, and they can teach strategies (such as active listing, and "I" vs. "you" messages) which parties can use themselves to defuse hostility. While some of these techniques are culture-specific, others are more broadly applicable. Some are designed to be used in written communications as well. While these techniques may be of limited utility in the context of ongoing combat, they are essential to cease-fire negotiations, coalition building, and post-crisis healing processes.
          Material on this topic from CRInfo

    * Cross-Cultural Communication Strategies
      While effective communication in conflict situations is always difficult, these problems are dramatically compounded in situations that require the parties to cross cultural and language barriers. Our field is developing a reasonably strong knowledge base on cross-cultural communication strategies that will be essential for reaching understanding in the current crisis as well as other cross-cultural conflicts.
          Material on this topic from CRInfo

    * Fact-Finding Strategies
      Intertwined with the many conflict issues currently under dispute are a series of factual questions dividing coalition partners and others involved in the conflict. In these cases substantial benefits can be achieved by taking advantage of available techniques for resolving factual disputes through mutually acceptable fact-finding processes.
          Material on this topic from CRInfo

DEALING WITH ESCALATION AND RELATED PROBLEMS
It is not enough to understand the dangers of escalation dynamics; one must also understand ways of surmounting those dangers. This is an area where the field has done a great deal of work which is relevant to the current situation. For example, the following escalation control measures may be applicable to the core conflict or conflicts which are likely to arise within the anti-terrorism coalition.

    * Responding to the Challenges of Anger and Fear
      It is common for confrontations over intractable issues to provoke intense emotions of anger and fear which, in turn, often lead the parties to adopt strategies which they would be likely to regret should they have an opportunity to reflect upon their actions at a less emotional time. To limit this problem, the field has developed a number of anger and fear management tools which may be beneficially adapted for use in the current crisis.
          Material on this topic from CRInfo

    * Cease-Fires and Cooling Off
      In situations where escalation threatens to cause the parties to completely lose control of the conflict, cease-fires, cooling-off periods, and related techniques can make a significant contribution. Even if such de-escalation measures cannot be taken in the primary conflict, they may be applicable to associated conflicts (such as the Israeli-Palestinian conflict or the Pakistan-India conflict).
          Material on this topic from CRInfo

    * Scapegoating
      Conflicts are often severely complicated by the tendency of communities (and their leaders) to avoid taking responsibility for their own difficulties by unfairly blaming problems and hardships on some other "scapegoat" group. Over time this tactic tends to exacerbate tensions between groups in ways which dramatically increase the chances of destructive confrontations. Techniques which help the parties understand and counteract this effect could play an important role in the current crisis.
          Material on this topic from CRInfo

    * Crisis Management
      Especially dangerous are crisis situations in which events progress so quickly that the parties are forced to act on the basis of incomplete and inaccurate information. To reduce the danger inherent in such situations, it is important to implement techniques designed to help the parties gather and evaluate information more quickly. In many, though not all, situations it may also be possible to slow down events sufficiently to give the parties a chance to think through the implications of their actions while also building support for more constructive alternatives.
          Material on this topic from CRInfo

    * Peacekeeping/Separation of Forces
      In many violent conflicts, the parties can benefit from the use of trusted, third-party peacekeepers who make it more difficult for the parties to commit acts of violence and aggression against each other. These techniques may well be applicable to the numerous "flashpoints" which threaten to enlarge the current crisis. Options range from unarmed neutral observers who agree to broadly and publicly report any unacceptable behavior to the larger community, through armed peacekeepers who act to physically separate the parties and prevent acts of violence.
          Material on this topic from CRInfo

    * Strategies for Dealing with Extremists
      Extremists, especially violent extremists, have long been feared within the conflict resolution community because of their enormous "deal breaking" and violence promotion potential. Since the terrorism crisis, especially, is being driven by the behavior of violent extremists, it is imperative that steps be taken to make the field's insights into this problem available. We also probably need to do more work in this area to develop better ways of either getting the extremists involved in more constructive problem solving efforts, or reducing their effectiveness at breaking deals and peaceful approaches to intractable conflict.
          Material on this topic from CRInfo

    * Tension Reduction
      The destructiveness of the escalation spiral is largely attributable to a step-by-step process of provocation and counter-provocation. Tension reduction techniques developed by the field (such as GRIT) attempt to reverse this process through a step-by-step series of confidence-building measures designed to produce a counterbalancing process of reciprocal tension reduction. Such techniques are likely to play an important role in any successful effort to reduce the intensity of the many intractable conflicts associated with the terrorism crisis.
          Material on this topic from CRInfo

PROVIDING CONSTRUCTIVE EMPOWERMENT OPTIONS
Intractable conflicts often arise from the frustrations experienced by disempowered groups, who see their efforts to peacefully combat injustice as being overwhelmed by opposition from more powerful, but illegitimate opponents. Key to limiting the dangers associated with such frustrations are a range of constructive empowerment tools designed to promote nonviolent advocacy.

    * Nonviolent Direct Action
      Nonviolent strategies, such as those cataloged by Gene Sharp and made famous by Gandhi, King, and others offer a route to social justice which is often more promising than the violent confrontation techniques which seem to underlie so many tragic confrontations. This suggests that the field can make an important contribution by helping to publicize and demonstrate the effectiveness of these strategies.
          Material on this topic from CRInfo

    * Skill-Building for Disadvantaged Groups
      In cases where disempowered groups decide to participate in agreement-based, dispute resolution efforts, it is often helpful if intermediaries implement techniques designed to "level the playing field" by showing the parties how they can most effectively take advantage of these opportunities. Dissemination of knowledge about such techniques is likely to increase confidence in peaceful, alternative processes among the disempowered.
          Material on this topic from CRInfo

    * Giving People Voice
      Much of the plight of the disempowered is often attributable to the fact that few people outside of their immediate community are aware of the terrible injustices which they are seeking to address. Key to alleviating this problem are interventions designed to "give voice" to these groups by showing them better ways of publicizing their case and seeking support from the larger community.
          Material on this topic from CRInfo

    * Collective Security/Arms Control Agreements
      Efforts to more constructively address intractable conflicts depend, first of all, upon an ability to replace violent confrontation strategies with more constructive alternatives. Collective security, arms control, and (at the local level) community policing arrangements can promote trust and support for institutions which collectively oppose any person or group which initiates violent strategies as a means of advancing their interests. Crucial to the success of anti-terrorism efforts is an understanding of successful ways of structuring and promoting such institutions and agreements.
          Material on this topic from CRInfo

    * Democratic Processes
      For communities trying to recover from rule by violent, illegitimate governments, it is essential that they find ways of successfully incorporating democratic principles of nonviolent conflict resolution into their governance structure. In this sense, the field's programs for helping emerging democracies design new, peaceful dispute handling systems are likely to be especially valuable.
          Material on this topic from CRInfo

TAKING ADVANTAGE OF OPPORTUNITIES FOR AGREEMENT
By definition, it is extremely difficult (perhaps impossible) to negotiate a universally-accepted resolution of the many issues which underlie and surround most intractable conflicts. Nevertheless, there are numerous opportunities for negotiating useful agreements within the context of these conflicts. Of special importance in the context of the terrorism crisis is the negotiation of sensible agreements among the national and international coalition of people working to oppose terrorism. Such agreements will also play up crucial part in efforts to end hostilities and rebuild Afghanistan and other affected communities. Topics on which we can contribute include:

    * Identifying and Promoting "Ripeness"
      Although intractable conflicts generally cannot be completely resolved, aspects of those conflicts and/or particular disputes within the larger conflict context can become "ripe" for resolution when the parties conclude that a negotiated agreement is likely to yield a better outcome than continued confrontation. Sometimes such ripeness occurs naturally, as the sides "tire out," at other times it can be stimulated by third party efforts.
          Material on this topic from CRInfo

    * Track One Negotiation
      While efforts to promote more constructive approaches to intractable conflicts must ultimately involve all levels of society, those in leadership roles are often in a position to initiate and take advantage of breakthrough opportunities. The conflict resolution field has much to contribute in determining when track one negotiations make the most sense, who should be involved, and how they should be structured.
          Material on this topic from CRInfo

    * Negotiation/Mediation
      The parties' ability to take advantage of the available opportunities for agreement often requires sophisticated negotiation skills and often the ability to take advantage of assistance from third party intermediaries. As such, state-of-the-art, interest-based bargaining techniques can often play a critical role by helping the parties identify ways of handling key issues which are likely to have the broadest possible appeal.
          Material on this topic from CRInfo

    * Peace Plans
      The negotiation of workable agreements within the context of intractable conflict often requires the setting up of complex institutional structures capable of implementing and enforcing carefully worded agreements. A key component of the field's knowledge base, therefore, is the systematic collection of these "peace plans" and the compilation of the complex reasoning which goes into determining which strategies are most likely to work in specific situations.
          Material on this topic from CRInfo

    * Track Two Dialogue and Problem-Solving Processes
      National leaders and formal representatives of contending parties are commonly constrained by a broad range of political factors which make it difficult for them to take advantage of more innovative approaches to their conflicts. Track two approaches are often useful in such situations. These include needs-based problem solving efforts, which usually involve influential, but middle-level leaders, and dialogue processes that bring people together to get to know and understand each other better, even when they are not yet ready to try to negotiate a formal peace agreement.
          Material on this topic from CRInfo

    * Mobilizing Assistance from Informal Third Parties (Third-Siders)
      While the focus of attention often tends to be national leaders, official representatives, and formal mediators, it is also important that the knowledge base recognize the many contributions that can be made by people in a much broader range of intermediary roles such as those who Bill Ury highlights as "third-siders," and the Institute for Multitrack Diplomacy identifies as tracks 2-9.
          Material on this topic from CRInfo

    * Agreement Verification and Enforcement Mechanisms
      One of the biggest obstacles to agreement, especially among parties with a long and distrustful conflict history, is the fear that they will someehow be "double-crossed." In these cases, effective agreement enforcement and verification mechanisms are likely to play an essential role in making agreement possible. Our project can compile information about how such verification and enforcement mechanisms have worked in other situations.
          Material on this topic from CRInfo

GRASSROOTS TRANSFORMATION OF THE UNDERLYING CONFLICT
In addition to improving peacemaking processes, successful treatment of intractable conflicts also requires an ability to fairly address underlying substantive issues and charges of injustice. It is success in this area which can ultimately make it possible to transform relationships in ways which allow genuine progress to be made toward resolving the underlying conflict.

    * Grassroots Peacebuilding Efforts
      Although leaders can negotiate peace plans, they cannot succeed unless grassroots citizens support them. A driving force behind much intractable conflict is grassroots hostility, often supported by unrealistic stereotypes and scapegoating (but also justifiable fear and violence) which divide everyday citizens from one another. Important, therefore, to the overall body of conflict knowledge are the broad array of people-to-people programs designed to replace destructive stereotypes with genuine understanding and personal contacts and friendship. A systematic inventory of what has worked when and where is particularly important, as is information about who is doing what, with respect to particular conflicts.
          Material on this topic from CRInfo

    * Strategies for Identifying and Fulfilling Unmet Human Needs
      At the core of intractable conflicts one frequently finds desperate people struggling to meet their most fundamental human needs. An understanding of the role that such needs play is essential to understanding intractable conflict. Of equal importance is an understanding of realistic and workable strategies for meeting those needs.
          Material on this topic from CRInfobr>
    * Confronting Moral Issues Relating to Justice, Legitimacy, and Human Rights
      The most stable form of social change is moral argument, through which people decide to modify their behavior because they have been persuaded that it is the "right thing to do." This suggests that strategies of moral argument and persuasion, leading to philosophical transformation, are as important a part of the conflict knowledge base as force-based processes which tend to foster backlash and continuing confrontation.
          Material on this topic from CRInfo

    * Truth, Reconciliation, and Restorative Justice Programs
      The history of intractable conflict is often punctuated by ghastly stories of almost unthinkable acts of inhumanity and violence. Even in cases where violence has been avoided, personal insults and attacks usually leave deep scars on the parties. While the history of these tragic events cannot and should not be forgotten, it is also critical that the parties find workable mechanisms of moving beyond them and building a more compassionate and mutually respectful future. It is toward this end that programs of restorative justice and truth and reconciliation are directed.
          Material on this topic from CRInfo

EDUCATION AND TRAINING
When people are faced with problems they do not know how to handle — as often occurs in the context of difficult and intractable conflicts — they are likely to seek new ideas about how to confront those problems. This creates an opportunity for training and education that might not ordinarily be present.

    * Training and Education as Intervention
      Training and education efforts often represent the best type of intervention. Rather than leaving the parties dependent upon outsiders for key conflict handling skills, these "capacity building" programs show the parties how they enhance their ability to deal with their own conflict problems.
          Material on this topic from CRInfo

    * Elicitive Training
      Within the culture and institutions of communities involved in intractable conflict, there are certain to be traditional mechanisms and institutional structures which can be mobilized to promote more constructive approaches to the problem. Elicitive training programs are designed to help the parties recognize and make use of these pre-existing but perhaps unrecognized skills.
          Material on this topic from CRInfo

    * Cross-Cultural Training Strategies
      There is much to be gained from cross-cultural training programs in which experts on conflict resolution from one culture share their ideas with people from another. Key to the success of these efforts, however, has been the ability of trainers to recognize cultural differences in conflict learning processes and modify their programs accordingly.
          Material on this topic from CRInfo

EVALUATION
While the many strategies for dealing with intractable conflict embodied in the previous sections enjoy wide acceptance and support, they have, in many cases, never really been subjected to rigorous academic testing and evaluation. A key element of the knowledge base project should, therefore, be the identification of evaluation research that has been done, and the identification of areas that still are in need of such evaluation.

<< Guy Burgess, Ph.D. and Heidi Burgess, Ph.D. are co-directors of the Intractable Conflict Knowledge Base Project.

Article copyright © Guy Burgess, Ph.D., Heidi Burgess, Ph.D., The Conflict Resolution Information Source; all rights reserved]]></description>
<pubDate>Mon, 01 Feb 2010 23:09:12 GMT</pubDate>
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<title>BYPASSING THE SECURITY COUNCIL: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime</title>
<link>./?r=p/1265058425</link>
<description><![CDATA[The world needs a Security Council powerful enough and sufficiently unified to authorize strong countermeasures against aggressors or genocidal regimes and yet not be a mere multilateral rubber stamp for unilateral decision making. It must steadfastly uphold its mandate pursuant to Article 41 to authorize force only as a last resort.

INTRODUCTION

In January and February 1998, various United States officials, including the President, asserted that unless Iraq permitted unconditional access to international weapons inspections, it would face a military attack. The attack was not to be, in Secretary of State Madeleine Albright's words, "a pinprick," but a "significant" military campaign.[1] U.S. officials, citing United Nations Security Council resolutions, insisted that the United States had the authority for the contemplated attack. Representatives of other permanent members of the Security Council believed otherwise; that no resolution of the Council authorized U.S. armed action without its approval.[2] In late February, UN Secretary-General Kofi Annan traveled to Baghdad and returned with a memorandum of understanding regarding inspections signed by himself and the Iraqi Deputy Prime Minister. On March 2, 1998, the Security Council, in Resolution 1154, unanimously endorsed this memorandum of understanding.[3]

In the March 2 meeting, no country asserted that Resolution 1154 authorized the unilateral use of force, and a majority stated that additional Council authorization would be necessary before force could be used.[4] Only after that meeting did U.S. officials claim otherwise; Ambassador Bill Richardson said the UN vote was a "green light" to attack Iraq if President Clinton should decide that Iraq was not living up to the agreement.[5] This assertion in the face of the Security Council's pointed refusal to grant such authority views the Council as a source of the authority to use force, but not as an instrument for limiting its use. With at least one notable exception,[6] however, the United States did not claim to be entitled to use force without the Council's authorization to compel Iraqi compliance with the UN inspection obligations. Rather, U.S. and British officials argued that Resolution 678 of 1990, which empowered the United States and other states to use force against Iraq, still governed and continued to provide authority to punish Iraq for cease-fire violations.[7] This position assumed that Resolution 678's authorization to use force remained valid, albeit temporarily suspended — a loaded weapon in the hands of any member nation to use whenever it determined Iraq to be in material breach of the cease-fire. The refusal of the United States to accept limitations on its power by the Security Council thus depended on creatively interpreting the Council's resolutions to accord authority, despite the contrary positions of a majority of its members.

The U.S. and British claim highlights an important problem regarding the Security Council's method of authorizing individual member states or regional organizations to use force on behalf of the United Nations. This "contracting out" mode leaves individual states with wide discretion to use ambiguous, open-textured resolutions to exercise control over the initiation, conduct and termination of hostilities. Such states may seek to apply resolutions by the Security Council in conflict with its aims and objectives or the view of many of its members, as occurred in the 1998 Iraqi inspection crisis. This crisis thus raises questions regarding (1) whether the Security Council has authorized the use of force; (2) how the scope and extent of an authorization are determined; and (3) whether the authorization has terminated.

We argue that two fundamental values underpinning the United Nations Charter — that peaceful means be used to resolve disputes and that force be used in the interest and under the control of the international community and not individual countries — require that the Security Council retain strict control over the initiation, duration and objectives of the use of force in international relations. To ensure that UN-authorized uses of force comport with those two intertwined values, this article argues for three rules derived from Article 2(4) of the Charter: (1) explicit and not implicit Security Council authorization is necessary before a nation may use force that does not derive from the right to self-defense under Article 51; (2) authorizations should clearly articulate and limit the objectives for which force may be employed, and ambiguous authorizations should be narrowly construed; and (3) the authorization to use force should cease with the establishment of a permanent cease-fire unless explicitly extended by the Security Council.

The questions raised by the Iraqi inspection crisis of 1998 are likely to arise in the future.[8] The claim of the U.S. Government to an ongoing UN authorization to use force against Iraq to enforce the cease-fire agreement has resurfaced often over the past seven years and is unlikely to be withdrawn. Moreover, the tendency to bypass the requirement for explicit Security Council authorization, in favor of more ambiguous sources of international authority, will probably escalate in coming years. The recent controversy over NATO's threat to intervene militarily in Kosovo raises similar issues as to the requirement for explicit authorization.[9]

I. The General Principles Underlying UN Authorizations of Force

The UN Charter established an international organization in which states, pursuant to Article 43, would make armed forces available to the Security Council to counteract threats to the peace. This has not occurred. In its stead, the Security Council has authorized member states to use force, in essence franchising UN members to act in the Organization's behalf. The Security Council has authorized member states to use force in Korea in 1950, against Iraq in 1990, and in Somalia, Haiti, Rwanda and Bosnia in the early 1990s.

Smaller, nonaligned states, as well as some scholars, have voiced concern over the legitimacy of Security Council authorizations to individual states to use force. They argue that the resulting situation allows the powerful states to control decisions whether to employ force, how to use it, and when to terminate hostilities. These determinations are made without accountability and control by the Security Council.[10] Despite these concerns, the authorization method is likely to dominate UN practice for the foreseeable future. While we believe that the long-term interest of world peace and security supports revitalizing Article 43, the United States, among others, appears unwilling to submit command and control over its forces to anything more than perfunctory UN supervision. In this context, the United Nations becomes only an authorizing body, ceding control of the actual military operations to individual states.

Problems with the authorization method surface in several related areas. First, states might use force on the basis of actions by the Security Council that could impliedly be interpreted to authorize force, but where its intent to do so was unclear. For example, in 1991 the United Kingdom, the United States and France used force to provide humanitarian aid to the Kurds and to establish safe havens and no-fly zones in northern Iraq partly on the basis of ambiguous authority in Resolution 688. That resolution made no mention of military force, nor was it intended to authorize such force. The Economic Community of West African States (ECOWAS) intervened militarily in Liberia in 1990 without any explicit authorization by the Security Council, although the Council later did issue statements and a resolution approving ECOWAS's actions.

Second, states acting under the authorization of the Council might interpret their mandate to be broader than it had intended. The potential for conflict is most pronounced where the Council has delegated wide authority to a coalition of states to address a major problem, such as the Iraqi invasion of Kuwait. For example, Resolution 678, while motivated by the goal of expelling Iraq from Kuwait, also contains broad language authorizing force "to restore international peace and security in the area." That language could mean virtually anything, depending on how one defines "peace and security" and "area."[11] During the Persian Gulf war, a dispute arose as to whether the elimination of Iraq's war-making power, a goal asserted by some of the leaders of the coalition states, was authorized by Resolution 678.[12] The dispute over interpretation of Resolution 678 has continued to fester. In the February 1998 crisis, the United States and the United Kingdom interpreted the broad language "to restore international peace and security" as authorizing the use of force to ensure that Iraq destroyed its biological and chemical weapons — a condition not imposed upon Iraq until after the gulf war was over. Similar questions and disputes over Security Council authorizations to use force arose during the Korean War and the Bosnian and Somalian conflicts.

Furthermore, when the authorizations are not temporally limited, questions arise about their termination. As the Iraqi inspection crisis illustrates, the states acting under Security Council authorization might want to continue to employ force after the basic goal of the mission has been achieved. Conflicts often continue to simmer after hostilities have ended. A key question is whether a permanent cease-fire or other definitive end to hostilities terminates Security Council authorizations to use force.

To resolve these issues, two interrelated principles underlying the Charter should be considered. The first is that force be used in the interest of the international community, not individual states. That community interest is furthered by the centrality accorded to the Security Council's control over the offensive use of force. This centrality is compromised by sundering the authorization process from the enforcement mechanism, by which enforcement is delegated to individual states or a coalition of states. Such separation results in a strong potential for powerful states to use UN authorizations to serve their own national interests rather than the interests of the international community as defined by the United Nations. The decentralization and delegation of the actual use of force is likely to predominate for many years, necessitating stricter Security Council control over such authorizations.

To uphold the principles of the Charter, the Security Council must retain clear control over authorizations to use force (with the exception of force pursuant to Article 51), even if political and military considerations require that it delegate military command to individual nations. The difficulties of controlling the scope and extent of the use of force when its employment is delegated to individual states require, at a minimum, strict control by the Council over the initiation and termination of hostilities. Such control is achieved by the application of normative rules stipulating clear Council approval of non-Article 51 uses of force and termination of that authorization when a permanent cease-fire or other definitive end to the hostilities is realized.

Controlling the military tactics and objectives of the contractee nations will obviously be a difficult task for the Security Council as long as the contracting-out model prevails. Authorization to engage in a large-scale, long-term military operation will often be viewed as requiring that contractees be granted broad discretion so that they can effectively operate and cope with unpredictable military situations. Yet even in this situation, which the Security Council obviously cannot micromanage, it ought to limit the mandate to ensure that the contractee states employ force to secure the UN objectives and not their own. Moreover, overly broad and ambiguous authorizations should be interpreted narrowly to ensure that the Council retains appropriate control over the military operation it spawns.[13] As part III below demonstrates, such a rule would not unduly interfere with the military requirements of the contracting-out model.

Security Council control over authorization of the use of force is required not merely to ensure that states resort to force for international rather than national ends. It is also required to fulfill a second constitutive principle of the United Nations, stated in the Charter's stirring preamble: "to save succeeding generations from the scourge of war." A preeminent purpose of the Charter, set forth in Article 1, is "to bring about by peaceful means...settlement of international disputes...which might lead to a breach of the peace." While Article 1 also articulates as a purpose of the United Nations "to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression," it is nonetheless true "that the United Nations was founded to be attentive first and foremost to peaceful settlement of international disputes and to rely on the military instrument of policy only as an extreme last resort."[14]

The Charter presumption that peaceful means will be used to settle international disputes is a substantive principle that confers responsibility on the Security Council not only to control uses of force, but also to use force solely as a last resort and to minimize its extent. The general Charter principle that strongly promotes the peaceful resolution of disputes entails the following: (1) that implicit authorizations of force be disfavored; (2) that explicit authorizations be interpreted narrowly to prevent contractee states from formulating the objectives so as to exceed the Council's clear intentions; and (3) that authorizations terminate when the goals of the operation are met and a permanent cease-fire established.

The Charter requirement of explicit authorization by the Security Council for the use of force is supported by Articles 33 and 42. The provision in Article 42 that the Council may authorize force only after determining that non-lethal sanctions under Article 41 would be or are inadequate suggests that open-ended or vague delegations of authority are inappropriate. Certainly, a rule that the Council must determine that nonmilitary measures are inadequate would also mean that it must clearly determine that military measures are necessary. Both rules flow from the principle underlying Article 42: that armed force should be used only as a last resort.[15] Embedded in the substantive principle that force be used only as a last resort is a procedural requirement that the deliberative body authorizing force do so clearly and specifically. The obligation under Article 33 that the parties to any dispute must first seek a resolution by peaceful means further supports the Article 41 principle. Requiring clear Security Council authorization acts as a brake on the use of force by the international community: it is a procedural condition designed to fulfill the Charter's substantive goal of ensuring that force be employed only when absolutely necessary.

The requirement of explicit authorization can be met by language evincing a clear intent on the part of the Security Council. Diplomatic considerations may require that the text of a resolution not use the term "force" explicitly. In 1990 the United States apparently wanted an explicit reference to the use of military force against Iraq, but owing to Soviet objections the Council substituted the language "all necessary means."[16] In that case, however, it was clear that the Council's intent was to authorize the use of force. While the Council's language may occasionally bow to diplomatic necessity, a core requirement of the Charter would be transformed if individual nations were permitted to use force when the Council's language and intent are both ambiguous.

Second, although the Charter clearly empowers the Security Council to employ force to combat threats to or breaches of the peace, Council authorizations of force must be interpreted in light of the Charter's goal of minimizing violence in the international community. It should not be presumed that the Security Council has authorized the greatest amount of violence that might be inferred from a broad authorization. The opposite presumption should apply: while force can be used to carry out the specific objectives in the authorizing resolution, ambiguous or broad language in the resolution that might be read to encompass force for objectives not clearly intended by the Council should be interpreted narrowly. For example, Resolution 678 clearly authorized force to oust Iraq from Kuwait, but the broad provision on restoring international peace and security ought to be read in the context of that purpose. It should not be interpreted to authorize an escalation of the fighting that would remove the Government of Iraq or enforce weapons inspections.

Finally, the Charter's preference for settling disputes by peaceful means and the Article 2(4) prohibition on the use of nondefensive force require that a UN authorization of force terminate when a permanent cease-fire is negotiated. Armed responses to breaches of cease-fire agreements cannot be made by individual states; a new Security Council authorization must be adopted.

These principles ought to be in the interest of the permanent members of the Security Council, as well as the smaller states that constitute a majority of the United Nations. If contractee states refuse to accept clear limitations on the scope and duration of their delegated authority, construe unclear Security Council language to imply authority to use force where no such authority was intended, or stretch the terms of their contracted authority beyond what most Council members support, the result may be increased reluctance to contract out the use of force. The consequence of such a conflict in the current geopolitical circumstances would be to undermine the Security Council's role in multilateral collective security and probably increase the unilateral uses of force by militarily powerful nations.

II. The Requirement of Clear Security Council Authorization of Force

Disputes have arisen over whether a state or group of states claiming to be acting pursuant to implied or ambiguous Security Council authorization are acting lawfully. Both the Iraqi inspection dispute of early 1998 and the looming Kosovo crisis later that year raised questions whether Security Council ambiguity, acquiescence, approving statements or even silence suffices to provide authorization for the use of force. As a textual matter, the Charter requires the Security Council to approve affirmatively of non-defensive uses of force. Acquiescence does not suffice. To infer Council authorization either from silence, or from the obscure interstices of Council resolutions, undermines this Charter mandate.

Nonetheless, governments and scholars have argued with regard to various international incidents involving the use of force that it was lawfully employed pursuant to implied authorization by the Security Council. These claims of implied authorizations have been disputed within the international community. However, such claims may well multiply in the future as interventionist pressures increase and the Council resists acting directly. The post-Cold War environment militates against forceful unilateral intervention, increasing pressure on states to find at least some form of multilateral authority to justify their forceful action.

Claims of Implied Authorizations of Force

The general political pressure to find implied authorization in Security Council acquiescence or ambivalence rests on construing the purpose of the United Nations to maintain international peace and security as requiring forceful action to remove threats to the peace. Rogue states that flout Council resolutions or otherwise threaten the peace, or states that commit gross human rights violations against their citizens, ought to be penalized. Thus, in the absence of effective UN sanctions, world order requires that individual states or regional organizations provide an effective remedy. As one commentator notes, "Article 2(4) was never an independent ethical imperative of pacifism" but can be understood only in the context of an organization premised on the "indispensability of the use of force to maintain community order."[17]

The inability of the Security Council to authorize force when some believe it to be clearly needed propels the search for implied authorizations. Some argue that diplomatic and political reality may preclude the Council from publicly authorizing actions that its members privately desire or at least would accept.[18] When a group of states act to enforce a Security Council resolution that the Council itself is unwilling to enforce — as was arguably the case in the recent Iraqi inspection crisis — the argument can be made that those states are not acting unilaterally, but on behalf of a clearly articulated community mandate.

Political necessity finds a home in legal realist theory. That theory eschews or tempers formal textual rules, in favor of the law's operational code, which can be derived only from a contextual and empirical analysis of how elites actually behave. From this perspective, arguments that an implied Security Council authorization exists and is sufficient, reflect the elite's willingness to tolerate certain forceful action by individual states, even if such behavior conflicts with the formal rules embodied in the UN Charter.

An examination of six international incidents[19] in which implied authorization has been suggested cautions against this approach because of the difficulty of determining when an action has been impliedly authorized, the uncertainty in the law and the potential for abuse.

   1. In 1961 India seized Goa from Portugal, arguing, inter alia, that it was enforcing UN resolutions against colonialism. Professor Quincy Wright rejected this reasoning, which he considered to be a claim based upon an implied authorization.[20] While a majority of the Security Council opposed India's claim,[21] many newly independent states in Africa, as well as the Soviet Union, believed that colonization was such an evil that the use of force against it should be tolerated. This political view led to the United Nations' de facto acquiescence in India's takeover of Goa, which might be perceived as an implicit, after-the-fact authorization. Such an implied authorization loosens the restraints on the use of force; it encourages states to use force when they believe their actions will be tolerated for political reasons by a majority of states.

   2. In 1962 the United States, admitting that it was not explicit, argued that it had implied Security Council authorization to interdict Soviet ships en route to Cuba.[22] The key factors supporting this alleged implied authorization were that the Council, by general consent, had not voted on the Soviet resolution disapproving the U.S. action and had encouraged a negotiated settlement.[23]

      The U.S. case for implied authorization seems strained. In fact, the Council had also refrained from acting on a U.S. draft resolution that would have expressed approval of the U.S. action.[24] Moreover, if failure to adopt a resolution condemning the use of force is dispositive, what if the Council votes to condemn by a wide margin, but the resolution is vetoed by a permanent member? At a minimum, the analysis calls for a deeper understanding of why the resolution was not enacted. But such an analysis will often be impossible, since we can never know dispositively what motivated each Security Council member.[25]

   3. Professor Anthony D'Amato's claim that the Israeli 1981 air strike against the Osiraq nuclear reactor was an example of implicit Security Council approval of an armed action takes the 1962 U.S. argument to its extreme.[26] In this case, the Security Council was not silent but "[s]trongly condemn[ed]" the air strike.[27] Yet for D'Amato the condemnation was pro forma because it contained no sanctions against Israel. D'Amato relies on this failure to claim that "it is often politically expedient for the community to condemn a forceful initiative in explicit terms, yet to approve of it in fact by stopping short of reprisals against the initiator."[28]

      D'Amato's argument that symbolic condemnation illustrates that the international community politically tolerates the act may express a certain reality in international affairs.[29] But to take the additional step and argue that explicit disapproval constitutes implied consent renders the concept of authorization indeterminate and highly speculative. Are human rights resolutions that denounce abuses but impose no sanctions merely expressions of implied approval of those abuses? Who determines whether a particular Security Council action or series of actions is strong enough to constitute genuine disapproval?

   4. The one time that the Security Council may very well have implicitly authorized a use of force was in Liberia in 1990, although it was after the fact. In August 1990, armed forces from five member states of ECOWAS intervened in Liberia to attempt to stop a civil war. ECOWAS had no explicit Security Council authorization to do so, although subsequent Council actions tacitly accepted and expressed praise for the intervention.[30] This appears to be the only case in which the Security Council's implicit approval was uncontested. The Liberian example, however, still presents the danger that it will encourage regional organizations to use force first in the hope of inducing later Security Council approval.

   5. The 1991 effort by the United States, the United Kingdom and France to provide safe havens to the Kurdish refugees in northern Iraq and to enforce no-fly zones in both northern and southern Iraq has been justified on the ground that these actions were implicitly authorized by UN resolutions.[31] Those legal claims were disputed by Secretary-General Javier Pérez de Cuéllar, who concluded that a foreign military presence on Iraqi territory required either the express authorization of the Security Council or Iraqi consent. While many UN members acquiesced in the safe-haven operation, some raised concerns about the absence of explicit Council endorsement; furthermore, both Soviet and Chinese officials opposed deploying either UN forces or foreign states' military forces to protect Iraqi civilians without their government's consent.[32] Baghdad ultimately agreed to the deployment of five hundred armed UN guards on Iraqi territory to protect UN humanitarian workers.

      The establishment of the no-fly zones in northern and southern Iraq was based on similar theories of implied authorization and acquiescence. In August 1992, the proposed southern no-fly zone was "widely criticized" in the United Nations as going beyond any legal mandate and the Non-Aligned Group said that any move to attack Iraqi planes would not receive Security Council backing.[33] After the last of the January 1993 raids on Baghdad, the UN Legal Department endorsed a chorus of criticism of the raids, stating that "the Security Council made no provision for enforcing the bans on Iraqi warplanes."[34] When, in September 1996, the United States conducted military strikes to enforce an extended southern no-fly zone, it earned only lukewarm support from its allies and criticism from Russia and most of the members of the Security Council.[35]

   6. Finally, the present U.S. claim to the forcible enforcement of the inspection regime also relies on implied authorization. Undersecretary of State and former UN Ambassador Thomas Pickering adopted the U.S. position taken in 1962 regarding Cuba by arguing that Resolution 1154 does not preclude the unilateral use of force. Pickering argues that a key factor in interpreting that resolution is that the United States was able to persuade other Security Council members not to include language explicitly requiring it to return to the Council to obtain authorization for force.[36] But the failure to adopt a resolution opposing U.S. action cannot be deemed dispositive when any such resolution would have been fruitless in the face of the U.S. and UK veto power. Still, the Council did the next best thing: it adopted a resolution that did not provide the United States with the authority it sought and the members stated their understanding that the resolution was intended to preclude any such authority.

In sum, this admittedly brief survey of state and Security Council practice on implied authorization arguments suggests three propositions: (1) that while there have been occasional attempts to justify uses of force under the theory of implied authorizations, those incidents do not amount to a "systematic, unbroken practice" — to use Justice Frankfurter's phrase from the Youngstown Sheet and Tube case[37] — that warrants a "gloss" on the Charter's requirement of explicit Security Council approval; (2) that most of these claims of implied authorization have been strongly contested; and, most important, (3) that the difficulty of determining whether an authorization has been implied and the resulting uncertainty for world order counsel caution in adopting any such reading of Security Council actions. There are others who might view the incidents we have discussed through a different prism. However, the difficulty of divining and attributing motivations to state actors and of interpreting unrecorded or informal Security Council discussions suggests that a world order that permits implied Council authorizations to use force would depend not on the clearly held expectations of states but, rather, on the nuanced interpretation of ambiguous state actions. That seems to be a dubious way to implement a basic international norm.

Explicit Security Council Authorization and Peace and World Order

The UN Charter requirement that non-defensive uses of force be explicitly authorized by the Security Council comports with both the purposes of the Charter and the needs of a peaceful and stable world public order. The maintenance of collective security was and remains an important goal of the Charter. However, another key purpose, perhaps even the overriding one, was to develop an international system that, while not pacifist, strongly favors resolution of disputes by peaceful means. That presumption of peaceful means requires that ambiguity be interpreted against warfare, a mandate that supports a rule that Security Council authorizations to use force must be clear and unambiguous. Article 42 reflects the presumption of peaceful means by specifying that the Council may decide to authorize the use of force only after determining that other measures are insufficient.

Implied Security Council authorization to use force is often inferred from the Council's condemnation of a nation's action as a threat to the peace.[38] But making that inference is unwarranted; it contradicts the Charter's requirement that the Security Council must determine both that a threat to the peace exists and that peaceful means cannot resolve the situation. In many cases, as in the Iraqi and Kosovo crises of 1998, the Council will have declared a threat to the peace but will not have affirmed the need for military action. In those situations, the requirement of explicit Security Council approval of uses of force reflects the substantive value that force not be used too hastily to resolve international disputes. The more nations understand that the authority to use force can be difficult to obtain, the greater their efforts will be to find peaceful, creative negotiated solutions to problems.

A world order that would allow nations to use force unilaterally under the guise of creative or disputed interpretations of vague language in Security Council resolutions or by the Council's failure to act would undermine Article 2(4). Powerful member states could use that theory to justify the use of force in their own national interest. The potential havoc wreaked by such a legal regime counsels restraint — restraint to be found in the legal requirement that Security Council delegations of authority to use force be both clear and narrowly construed.

If the Security Council is dysfunctional or paralyzed by the exercise of the veto, as arguably occurred during the Cold War, the case for implied authorization might be stronger. However, Council practice since the Cold War simply does not support any great need for a flexible reinterpretation of the Charter to support the actual behavior of states. Five times in the past eight years the Security Council has clearly authorized the use of force to address threats to world peace.[39]

At times, such an authorization is hard to obtain, but that is the way things ought to work. That China, India, Russia and occasionally France balk at what they consider an inappropriate use of force is not cause for concern; rather, it should lead observers to conclude that the Council retains some vitality as a restraint on war making. It was established to be not merely a forceful initiator of collective enforcement measures, but also a restraining influence on the unwarranted or hasty rush to forcible solutions. While the situation may have changed from that prevailing in the early 1990s and authorization may be harder to obtain, that fact does not warrant bypassing the Security Council. Indeed, the recent controversies regarding Iraq afford hope that the Council will play its contemplated role of authorizing force only as a last resort. World order requires a Security Council that can find the proper balance between authorizing the collective use of force when there is both a compelling need and no peaceful alternative, and not succumbing to economic and political pressure by powerful nations[40] seeking a multilateral cover for what is in essence the unilateral use of force.

In the long-term interest of world order, it is imperative that the Security Council be actively engaged in determining whether force ought to be employed by the international community.[41] A rule that allows acquiescence to constitute authorization and that substitutes ambiguity for clear intent would encourage the Security Council to avoid deciding when the use of force is necessary and appropriate. Acquiescence begets more acquiescence, and once a custom of allowing nations to take forceful action under claims based on ambiguous authority is established, it will develop a momentum of its own. For example, the failure to provide explicit legal authority for the ECOWAS intervention suggests that the Security Council, which seemed unanimously to approve of the action, nevertheless chose to avoid its responsibility to authorize it explicitly. Allowing cases like the ECOWAS intervention to legitimate implied authorization will merely encourage the Security Council to avoid taking stands on difficult issues of when to use force.[42]

In addition to promoting the peaceful resolution of disputes and the Security Council's assumption of responsibility, requiring a clear Council authorization is necessary to ensure that the world community affirmatively supports the use of force and does not merely acquiesce in the actions of a powerful state. Allowing ambiguity in the authorization of force enables powerful states to pick and choose which Council resolutions to enforce and more generally to act unilaterally under the guise of multilateral authority. Ambiguity is often the handmaiden of great-power assertiveness. James Madison's insight that government cannot be based on the proposition that men are angels may be appropriately applied to the behavior of states. It is certainly rare for a nation to be motivated not primarily by its own national interest, but in the community's interest. The history of humanitarian intervention is replete with invocations of humanitarian goals by strong powers or multilateral coalitions to justify their own geopolitical interests.[43]

Of course, situations will arise in which most UN members will want the United States or some other state to be able to use force, and China or some other state or bloc of states may be unalterably opposed. But in the extreme case of an ongoing genocide for which the Security Council will not authorize force, perhaps the formal law ought to be violated to achieve the higher goal of saving thousands or millions of lives. In these circumstances, the acting state would have to weigh the risk of universal condemnation and sanctions. Thus, it would have to make a convincing case that the military action is not based on a mere pretext and will be effective and proportionate. Silence by the Security Council might then reflect a community consensus that the legal requirement for its authorization ought to give way to the moral imperative. That extreme case is unusual, however, and certainly does not resemble the recent Iraqi inspection crisis. While the accusation that Iraq is still seeking to develop weapons of mass destruction alleges a serious threat to the peace, no one claims either that Iraq is currently employing such weapons to kill thousands of people, or that it has the capability, opportunity or intention of imminently doing so.[44] Only claims of this magnitude might fit the extreme cases that would possibly justify using force in violation of international law. In dealing with those cases, it is preferable to recognize that on the rare occasions when a nation is solely motivated by humane considerations, it must violate the law to save humanity, than to use those cases to dilute the prohibition on the unilateral use of force as a whole.

The observations of Thomas Franck and Nigel Rodley as to the desirability of creating exceptions to the prohibition on unilateral humanitarian intervention apply with equal force to interventions that rely on implied or ambiguous Security Council authorization:

    In exceptional circumstances...a large power may indeed go selflessly to the rescue of a foreign people facing oppression. But surely no general law is needed to cover such actions...[I]n human experience it has proven wiser to outlaw absolutely conduct which, in practical experience, is almost invariably harmful, rather than to try to provide general exceptions for rare cases. Cannibalism, given its history and man's propensities, is simply outlawed, while provision is made to mitigate the effect of this law on men adrift in a lifeboat. The hortatory, norm-building effect of a total ban is greater than that of a qualified prohibition, especially at that stage of its legal life when the norm is still struggling for general recognition. This is a question of balance. So long as the preponderant predictable applications of a proposed exception to the prohibition on unilateral force are socially undesirable — and the historical record so indicates — the exception should not be made.[45]

Some scholars and officials argue that UN diplomacy is at times aided by a unilateral threat by powerful states to use force and cite the U.S. threat against Iraq as having been necessary to end the 1998 inspection crisis.[46] But even if the U.S. threat did play a role,[47] that merely suggests that illegal action can at times have useful consequences, at least in the short run. The rule of law requires that we sometimes sacrifice using force to punish people or regimes that are evil so as to secure a more peaceful domestic and world order.

International law, the United Nations and multilateralism require that a nation must accept the limits imposed by law as well as the power endowed by it. That the world community and the Security Council are occasionally more reluctant to use force than our policy makers would like is a restraint imposed by the international legal system. Unless we are prepared to concede that all nations have a right to use force to enforce Security Council resolutions — a result that the United States would not favor — we ought to accept the Charter's legal regime with the clear recognition that it sometimes requires us to forgo policy options we may prefer. Multilateralism obliges nation-states to define their national interest in a manner that does not conflict with the international community's view of its interest. Multilateralism is thus tied to respect for international law. Multilateralism is not a tactic; it is an end that furthers respect for international law.[48]

III. Drafting and Interpreting Authorizations to Use Force

The basic principle that the use of force in international relations other than in the exercise of self-defense requires an express authorization by the UN Security Council leaves open the question of how explicit authorizations should be drafted and interpreted. The requirement of explicit authorization implies the corollary that implementation of express authorizations that contain ambiguous language should be confined to objectives that were clearly intended by the Security Council.

The Persian Gulf war and the difficulties attendant on the lengthy process of ensuring Iraqi compliance with the cease-fire agreement highlight the tension between the Security Council's explicit issuance of a broad mandate to states to use force to achieve the Organization's objectives and the pressure those states exerted to interpret that mandate in their own national interests. In November 1990, when Resolution 678 authorized member states to use force to oust Iraq from Kuwait, few, if any, of the Council members could have contemplated that the resolution would authorize the bombing of Iraq to secure compliance with an inspection regime — a requirement imposed only after the war's end and the restoration of Kuwaiti sovereignty. Thus, the recent Iraqi inspection crisis raises an important question regarding Security Council authorizations to use force: how should such resolutions be framed and interpreted so as to achieve the collective-security purposes of the United Nations while limiting the scope and extent of the violence authorized?

Korea and the Gulf War Authorizations

The United Nations experience during the Korean War illustrates the difficulties that arise from broad authorizing language. Resolution 83 of June 27, 1950, authorized "members of the United Nations to furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area."[49] The Security Council's discussion yields little evidence regarding the meaning of "restore international peace and security in the area."[50] Several days after the resolution was adopted, Secretary of State Acheson stated that U.S. actions taken "pursuant to the Security Council resolution" were "solely for the purpose of restoring the Republic of Korea to its status prior to the invasion from the north and of reestablishing the peace broken by that invasion."[51] However, by the end of September 1950, as a result of the successful allied landing in Inchon, which routed the North Koreans, the United States and its allies faced the question whether to pursue the retreating North Koreans into the North and seek their total destruction. That issue had a legal component: was such action authorized by Resolution 83 or did it require new UN authorization?

Initially, President Truman apparently believed that crossing the parallel required a UN decision. However, shortly thereafter, the Department of State asserted that Resolution 83 provided the requisite authority to pursue the retreating North Koreans.[52] The U.S. ambassador to the United Nations argued that "[f]aithful adherence to the United Nations objective of restoring international peace and security in the area counsels the taking of appropriate steps to eliminate the power and ability of the North Korean aggressor to launch future attacks."[53] The Indian Government and several other states believed that further specific authorization was legally necessary, although the majority of UN members did not oppose the U.S. position.[54] Nonetheless, the United States did submit the issue to the General Assembly, which approved the crossing of the 38th parallel on October 7, 1950, after South Korean forces under General MacArthur's command were already in North Korean territory.[55]

The legal significance of the U.S. decision to seek additional UN authorization is unclear. The U.S. position was that such authorization was unnecessary because military operations required broad and flexible legal authority to deal with changing situations, authority that had been granted by Resolution 83. As a textual matter, the U.S. argument was strong, particularly because the North Koreans had not indicated any desire for a cease-fire and had suggested that they might strike to the south again.[56] Nevertheless, the fact that for policy reasons the United States sought and obtained new authorization is some evidence of state practice that contractee states do seek further authorization when the objectives of the action change.[57]

The Korean example illustrates that where contractee states seek to escalate warfare in a manner that projects a major change in the political or military objectives that the Security Council intended to authorize — in Korea from repelling the North Korean attack on the South to unifying the country — they should seek new authorization and not rely on ambiguous language in the original resolution. Maintaining the control of the Council over the warfare it authorizes requires that, although operational command may be delegated to states, major policy changes in objectives, or major military actions that seriously threaten to widen the war, must be authorized by the United Nations. A change in objectives poses grave risks of widening the war, a risk that eventuated in Korea. Because of those risks, Security Council resolutions must be interpreted to authorize what was clearly intended, not what can conceivably be justified. The Korean case demonstrates that when broad political agreement exists, the necessary authorization can be obtained fairly quickly without compromising the military situation.

Moreover, when the authorized states seek to widen a war to achieve new political and military objectives, the Charter's presumption in favor of peaceful resolution of disputes requires the Council seriously to consider whether a negotiated settlement can be reached. Since the invocation of new objectives often means that the original objectives have by and large been accomplished — as happened in Korea — a request for new authorization would force the United Nations to thoroughly assess the prospects for a peaceful settlement. Unfortunately, the pressure to pursue the military option to total victory propelled Washington to ignore and frustrate the efforts of Secretary-General Trygve Lie and others to achieve a settlement in October 1950, efforts that might have prevented the loss of hundreds of thousands of lives.[58]

As was the case in Korea, the gulf war mandate of Resolution 678 authorized states to use all necessary means to "restore international peace and security in the area." From a purely textual perspective, that authorization seems to have few, if any, limits. "Area" is undefined and could mean Iraq or the entire Middle East.[59] "Restoring international peace and security" could mean occupying Iraq, removing Saddam Hussein from power, or bombing Iraq's military/industrial capacity.[60] Officially, the United States never made those broad claims during the war. Indeed, shortly after it ended, U.S. officials testified that Resolution 678 had not granted open-ended authority to occupy Iraq, and that the military incursions into Iraq during the war were authorized only because they were "pursuant to the liberation of Kuwait, which was called for in the UN resolution."[61] Moreover, in response to accusations that the coalition's bombing campaign stretched the boundaries of the Security Council's authorization, many states, including those fighting in the gulf war, declared that their sole purpose was to liberate Kuwait.[62] Thus, if Resolution 678 is still extant, it should be interpreted narrowly and consistently with its object and purpose. The clear intent of the Security Council in 1990 was to provide authority to oust Iraq from Kuwait, not to grant a blanket license for any member state to attack Iraq to enforce inspections mandated after the war.[63]

Limiting the legitimate objectives of UN-authorized uses of force does not unduly affect military efficacy, since it does not restrict the military means or tactics that can be employed but, rather, the political goals for which force can be utilized. Authorized states would retain the discretion to determine the military means needed to achieve the goals clearly articulated by the Security Council. They would not, however, be empowered by ambiguous language to escalate the fighting to achieve objectives not clearly mandated. To adopt the contrary position would essentially be to eviscerate Security Council control over authorized uses of force.

Subsequent to the war, the United States and the United Kingdom interpreted Resolution 678 as authorizing force to achieve compliance with the cease-fire. While incorrect but textually plausible, this interpretation illustrates the problems raised by authorizations that do not specify precise objectives.[64] In our view, the essentially boilerplate language "to restore international peace and security" added no clear meaning or objectives to either the 1950 Korean or the 1990 Persian Gulf authorization. It was unnecessary and invited difficulties. The legitimate objectives of both wars did not require such open-ended language. They ought to have been limited to the recreation of the status quo ante.

Post–Persian Gulf War Authorizations

Many states were concerned about the minimal role that the Security Council played during the gulf war and the perceived lack of accountability to the Organization of the states that took action pursuant to the authorization. This concern led to attempts by members of the Council to rectify these problems in the authorizations to use force adopted after the gulf war. Some of these authorizations in Bosnia, Somalia, Haiti and Rwanda imposed more extensive consulting requirements. Other provisions focused on providing a unified command and control under UN auspices, or at least on authorizing the Secretary-General to exercise more command over military operations.[65] In Bosnia, a dispute between the United States and the Secretary-General arose as to whether air strikes against Bosnian Serb targets had to be authorized by the Secretary-General and approved by the UN commander.[66] When most of its NATO allies supported the Secretary-General, the United States backed down and recognized UN authority. The Somalia authorizations accorded substantial authority to the Secretary-General as well.[67]

The authorizations since the gulf war have also focused on limiting the mandate granted by the Security Council. In both the Bosnia and the Somalia operations, the Security Council, instead of broadly mandating the use of force as in Resolutions 678 and 83, ratcheted up the level and more precisely delineated the purposes of force to be employed. In Bosnia, the Council enacted specific resolutions, first to authorize force to secure the delivery of humanitarian supplies, next to enforce the no-fly zone, and then to protect the safe havens.[68] In Somalia, the initial Resolution 794 authorized "the Secretary-General and Member States...to use all necessary means to establish...a secure environment for humanitarian relief operations."[69] That generally worded authorization was interpreted broadly by the Secretary-General, who supported the general disarming of the Somalia factions, and more narrowly by the United States. Security Council Resolution 814, adopted on March 26, 1993, over four months later, explicitly authorized the expansion of the mandate of UNOSOM, the UN force in Somalia.[70] After the attacks against the UN troops by the forces of General Aidid, the Security Council explicitly authorized his arrest in Resolution 837. The Council and participating states did not rely on the arguably broad language of Resolution 794, but specifically authorized each escalation of force.

In addition, the Security Council has placed temporal limits on authorizations. France's authorization to intervene in Rwanda was limited to two months.[71] Resolution 940, which permitted member states to use all necessary means to facilitate the military leadership's departure from Haiti, also contained a more general grant of authority "to establish and maintain a secure and stable environment that will permit implementation of the Governors Island Agreement."[72] The broad mandate under this resolution could arguably have been interpreted to be virtually unlimited. To counteract this problem, Resolution 940 required that the Security Council, not the participating states, should determine when a stable and secure environment had been established and the multinational forces' functions terminated.[73] A termination provision was also included in Resolution 1031, which authorized NATO to use force to implement the Dayton Accords with respect to Bosnia. In that resolution the Council terminated all its prior authorizations in that regard and decided, "with a view to terminating the authorization granted" to the NATO force, to review it within one year to determine whether it should be continued.[74] In Somalia, the original authorization in Resolution 794 contained no time limit, but each subsequent resolution authorized UNOSOM II to use force for a limited period of time (usually about six months).[75] That authorization was periodically renewed until finally terminated on March 31, 1995.[76]

This admittedly brief survey suggests that substantive and temporal limitations on Security Council authorizations are possible; that relatively narrow authorizations are workable; and that contractee states can be required to seek new authorizations to undertake expanded uses of force. On the basis of experience in the Korean War, the Persian Gulf war and these later incidents, we suggest several guidelines regarding the promulgation and interpretation of resolutions authorizing the use of force.

First, resolutions should set forth clear, explicit and limited objectives. They should eschew clauses that would appear to grant nations a blank check to employ force to achieve potentially limitless objectives. In most cases, we believe it possible to achieve reasonable clarity of objectives and avoid indeterminate language such as "restore international peace and security." In some cases, it may prove necessary to use language such as "secure a stable environment." If, however, the objectives cannot be defined clearly, the Council ought to examine whether authorizing the use of force is advisable and evaluate other mechanisms that would enable it to maintain some control over the operation.

Second, resolutions should be temporally limited, either by a renewable set time period or by a provision requiring the Security Council to determine whether the objective has been achieved. To avoid the possibility of a veto that would permit the authorization to remain in force, the Council might provide that it must approve such determinations by majority vote or supermajority, or require an affirmative vote in order to continue the authorization.[77]

Finally, authorizing resolutions should be interpreted narrowly both to minimize violence and to ensure that the Security Council supports the particular use of force. This guideline is consistent with the provisions on the use of force in the Charter, as well as its object and purpose. A liberal interpretation of such authorizations would not be consistent with the Charter.

Several objections could be made to the foregoing analysis. First, such limitations could be viewed as counterproductive, encouraging noncompliance by the nation being penalized by the Council. For example, the limits contained in post-Persian Gulf war authorizations were criticized by some as being too weak and ineffective. While imposing temporal and substantive limitations on the use of force could possibly hinder UN military operations, the alternative of granting contractee states virtually limitless discretion is more dangerous in that it provides no international check on potentially devastating military escalations.[78]

Second, it could be argued that these recent efforts by the Security Council to control the scope and extent of the uses of force add little to our understanding. In contrast to the Korean and gulf wars, they involved relatively small-scale operations in which the major powers were reluctant to employ force. Thus, in the Bosnia crisis, the Western states and Russia were cautious or opposed to the assertive use of force,[79] and often rejected draft resolutions proposed by the nonaligned members of the Security Council seeking broad authorizations.[80] Similarly, in Somalia the United States initially, and at various points thereafter, sought to narrow the objective for which force would be used, while the Secretary-General pushed to widen the mandate. In these situations, the major powers often willingly accepted temporal and substantive controls on the use of force, restrictions that would have been rejected in a major war in which a permanent member had substantial interests.

We would hope that the post-gulf war practices of calibrating and limiting objectives and imposing temporal limits and Security Council control would be transferable to a major conflict. Unfortunately, past experience and present reality do not make us sanguine about those prospects. More realistically, the momentum toward war, the assertion of national interest and the perceived necessity for military flexibility and power to counteract aggression might once again, as in the Korean and gulf wars, overwhelm other Charter values: Council control, minimizing authorized violence and pursuing peaceful settlement. For these reasons, the Security Council should place strong emphasis on maintaining control over the initial decision to authorize the use of force and insist that nations not resort to non-defensive uses absent a clear Council mandate.

IV. Cease-Fire Agreements and Security Council Authorizations of Force

The prior two sections dealt with the initiation and contracting out of the use of force: this section concerns problems that occur in terminating contracted-out authorizations. As the Iraqi inspection crisis illustrates, states have claimed the authority to use force subsequent to a permanent cease-fire ending hostilities.

The basic Charter principles that we have outlined — peaceful resolution of disputes and Security Council control over the use of force — require that, even where there is no termination provision in the authorization to use force, that authority expires with a permanent cease-fire unless explicitly continued. Such authorization cannot be revived by the contractees unilaterally; it is for the Security Council to consider whether a breach of that cease-fire justifies a reauthorization of force.

The Effect of the UN Charter

Pre-Charter law permitted a party to a cease-fire to treat its serious violation as a material breach, entitling it to resume fighting.[81] The United States and the United Kingdom rely on this law to argue that Iraqi violations of the inspection regime established during the cease-fire revived the Resolution 678 authorization to use force. This view ignores the prohibition on the use of force under Article 2(4), which, properly understood, "changes a basic legal tenet of the traditional armistice."[82] Post-Charter law holds that UN-imposed cease-fires reaffirm the basic obligation of states to refrain from using force. Therefore, a violation of the cease-fire, even a material breach, is not a ground for the other party to revive hostilities, at least short of an armed attack giving rise to an Article 51 right of self-defense.[83] As one scholar writes, "Although terms of the armistice agreements dealing with important but collateral issues such as verification regimes or implementation mechanisms may fail, the overriding obligation not to resort to force as a means of dispute settlement is deemed severable and continues to be binding."[84]

Strong policy interests make it advisable that Security Council authorizations to use force be terminated by the establishment of a cease-fire unless explicitly and unambiguously continued by the Council itself. The overall objectives of the Charter and the changes it has wrought in the law on the use of force mandate that disputes be settled by peaceful means, if at all possible. This suggests that the end of hostilities, however that is accomplished, reestablishes the Article 2(4) obligations on all states not to use force, including in implementing cease-fire provisions, and not to do so without a new Council authorization. For example, no one would seriously claim that member states of the UN command would have the authority to bomb North Korea pursuant to the 1950 authorization to use force if in 1999 North Korea flagrantly violated the 1953 armistice.

Moreover, that rule is especially necessary when the Security Council control consists of authorizing member states to use force, a more decentralized approach than envisioned by the Charter's framers. To permit authorizations to continue after a permanent cease-fire ends hostilities would allow individual states to use force indefinitely, a result that would undermine the Council's control[85] — particularly when the authorized states include a permanent member that could veto any Council resolution terminating the authorization. Every authorization to use force thus far has been at the behest of a permanent member of the Security Council. This trend is likely to continue. In such situations the potential use by that permanent member of what has been termed a "reverse veto" to block the Council from terminating an authorization that no longer enjoys the support of the international community undermines the Council's legitimacy and Charter-mandated control over the use of force.[86]

Indeed, the gulf war and its aftermath illustrate the problematic use of the veto threat to reverse the Charter's objective of peaceful settlement. In response to the peace initiatives pursued by the Soviet Union and other nations in the days before the coalition's ground attack, both the United States and the United Kingdom reportedly threatened to veto any resolution that would terminate the UN sanctions and the Resolution 678 authorization of force in return for an Iraqi pullout from Kuwait.[87] More recently, the possibility of a U.S. and UK veto undoubtedly lurked in the background in preventing the Security Council from explicitly stating that the Resolution 678 authorization had terminated and that a new resolution must be adopted before any member state could use force to enforce UN inspections in Iraq. Consequently, the better interpretation of the legal situation regarding the further use of force by member states after a permanent cease-fire has been reached is that a new Council authorization must be obtained. That view is consistent with the law and objectives of the Charter.

Certainly, the use of the veto threat to prevent the repeal of an authorization that the majority of the Council wants terminated could be addressed in other ways. As already discussed in part III, the initial authorization can set a time limit for the use of force or provide for its own termination by majority or supermajority vote of the Council;[88] or it can be narrowly drawn to ensure that force is used only for limited purposes. At times, however, the Council will not be able to so limit the contractee's mandate because of strong contrary pressure from powerful states or the nature of the operation. Therefore, at a minimum, to ensure that Security Council authorizations do not continue in perpetuity, the approach we have argued is correct since it flows from Article 2(4) of the Charter — authorization to use force should cease with the establishment of a permanent cease-fire unless it is explicitly continued by the Security Council.[89]

Allowing authorizations to use force to continue indefinitely would further alienate the smaller UN members, would decrease the legitimacy of such mandates, and could result in more resistance to them. It could be argued that the converse rule would perversely result in the continuation of hostilities by states so authorized, to avoid the extinguishment of their authorization by way of a cease-fire. But hostilities end and cease-fires are signed when the military and political situations converge in that direction, and states would be unlikely to avoid ending hostilities for fear that their UN authorization would lapse.

Practice Prior to the Gulf War

UN practice prior to the gulf war supports this approach to cease-fire law under the Charter. The various Middle East conflicts between Israel and Arab governments led to strong assertions by the Security Council and UN officials that violations of cease-fires or armistices do not legally justify forceful countermeasures by individual states. When the Security Council, on July 15, 1948, imposed a cease-fire on the belligerents, the UN mediator, Count Bernadotte, sent instructions interpreting the Council's resolution to mean that "(1) No party may unilaterally put an end to the truce. (2) No party may take the law into its own hands and decree that it is relieved of its obligations under the resolution of the Security Council because in its opinion the other party has violated the truce."[90] Nonetheless, the Israelis and Arabs continued to violate the cease-fire on the basis of alleged violations by the other party. The Security Council then adopted a resolution reiterating that "[n]o party is permitted to violate the truce on the ground that it is undertaking reprisals or retaliations against the other party."[91]

In 1956, as the Middle East situation deteriorated, the Security Council asked Secretary-General Dag Hammarskjöld to review enforcement of and compliance with the armistice agreement. Both Israel and Egypt desired the armistice to allow — in conformity with pre-Charter customary international law — each party the right to take reprisals in response to the other's violations. The Secretary-General rejected that view, arguing "that [Israeli-Egyptian] compliance [with the armistice] should be unconditional, subject only to resort to the Security Council if attacked and the inherent right to self-defense." Even the right of self-defense was narrowly circumscribed: "only the Security Council could decide that a case of non-compliance was a justification for self-defense [under] Article 51." For Hammarskjöld, the key principle was the binding nature of the cease-fire, irrespective of infringements of other articles of the armistice, a principle that resulted from the basic obligations of all UN members not to use force.[92]

It might be argued that UN-negotiated or -imposed cease-fires ending hostilities between individual states are different from a UN cease-fire terminating hostilities between UN-authorized forces and an aggressor state. While there is an obvious factual difference when the United Nations is a party to the conflict, both situations present similar theoretical problems and scholars have not treated them differently.

Most cases of hostilities between nations will involve claims by at least one nation of authorization under Article 51 of the Charter to use force in self-defense. Nonetheless, a UN-imposed or -brokered cease-fire will extinguish that nation's claim of right under Article 51, even if the cease-fire does not fully vindicate its claims. Similarly, nations acting pursuant to a Chapter VII authorization have a valid right to use force, but that right is also extinguished after hostilities end and a permanent cease-fire is promulgated. In both situations the Charter's command that peaceful means be used to settle disputes requires that nations not use force after the imposition of a cease-fire unless either a new aggression occurs, reactivating Article 51, or authorization is given by the Security Council. For example, if Kuwait, with the assistance of the United States and Saudi Arabia, had operated exclusively under Article 51 and successfully reversed its conquest by Iraq, a UN-brokered cease-fire would have extinguished any right of those states to resume fighting in the event of an Iraqi violation of the cease-fire agreement (unless Iraq reinvaded Kuwait, retriggering Article 51). The legal situation should not be different because Resolution 678, and not solely Article 51, authorized the coalition's efforts.

It could still be argued that force used under Security Council authorization ought to be different from wars between individual nations because UN authorizations might be broader than the Article 51 exception and might therefore survive a cease-fire. For example, Resolution 678 and Korean War Resolution 83 both contain broad language authorizing force, not merely to defend Kuwait and South Korea, but "to restore international peace and security in the area." However, the experience under the Korean armistice strongly suggests that Council authorizations to use force end with a cease-fire or armistice. That armistice ended hostilities but did not explicitly extinguish or continue the Resolution 83 authorization to use force.[93] In the negotiations leading to the armistice, the South Korean Government took the position that violations of the armistice by North Korea or failure to achieve Korean unification at the political conference proposed in the armistice should automatically lead to a resumption of hostilities.[94] The United States and the UN coalition rejected that position, although the sixteen UN members with armed forces in Korea stated their commitment to defend South Korea if attacked by the North.[95]

In 1955 and again in 1956, South Korea argued at the United Nations that North Korean and Chinese violations warranted termination of the armistice and the resumption of hostilities, a position that no other country adopted.[96] In 1957 the Unified Command announced that Communist violations of the armistice provision prohibiting the introduction of combat equipment and weapons relieved the Unified Command of its obligation to comply with that provision, but that it would continue to observe the cease-fire and implement all of the other armistice provisions.[97] The Unified Command's position was thus consistent with Hammarskjöld's position in 1956 and Bernadotte's view in 1948.

In 1967 the United States brought the Security Council's attention to serious violations of the armistice, including armed attacks resulting in almost five hundred UN and South Korean casualties. The United States claimed the right to take "appropriate measures in self-defense" to protect "civilians and military personnel" but studiously avoided making any claim or threat to take forceful countermeasures against North Korea.[98] One military analyst of the armistice concludes that in only one incident during the whole period between 1953 and 1967 did the UN forces engage in what might be construed as a reprisal for armed attacks against South Korea,[99] and even that incident could come within the law of hot pursuit.

The Iraqi Cease-Fire and the General Rule on Cease-Fires

The permanent cease-fire that ended the 1991 Persian Gulf war supports, although not completely without doubt, the general rule that Security Council authorizations of force expire with a cease-fire. Resolution 687 is a detailed resolution that sets the terms for a formal cease-fire; it includes provisions on, inter alia, settling the boundary dispute between Iraq and Kuwait; establishing a demilitarized zone; eliminating Iraq's chemical, biological and nuclear weapons capability; continuing economic sanctions; and setting up a compensation fund. The terms of the resolution do not state that force can be employed unilaterally by UN member states to enforce its mandates. Its paragraph 1, however, does affirm that all thirteen prior Security Council resolutions, to the extent not modified by 687, survived the cease-fire, and Secretary-General Boutros Boutros-Ghali believed that Resolution 678 "remained in force" even after the cease-fire.[100] Despite the general terms of paragraph 1, the history and text of the cease-fire resolutions clearly show that the Resolution 678 authorization to use force expired with the conclusion of the permanent cease-fire.

After the suspension of hostilities, a provisional cease-fire, Resolution 686, was adopted. The distinction between a temporary cease-fire that does not terminate an authorization and a permanent one that does is illustrated by these Iraqi resolutions. Resolution 686 explicitly refers to paragraph 2 of Resolution 678, the "all necessary means" authorization, and "recognizes" that it "remain[s] valid" "during the period required for Iraq to comply with" the terms of the provisional cease-fire. Thus, the unilateral use of force provision of Resolution 678 would remain "valid" only temporarily, pending Iraqi compliance with the provisional cease-fire.[101] Moreover, the Security Council rejected a U.S. effort to authorize force if Iraq failed to comply with all the provisions of the cease-fire.[102]

Resolution 687, in contrast to Resolution 686, did not explicitly state that Resolution 678 would remain valid until Iraq complied with its detailed terms.[103] The crux of Resolution 687 was the transformation of the temporary cessation of hostilities into a permanent cease-fire upon Iraq's acceptance of, not compliance with, its terms.[104] Of all the detailed provisions in the cease-fire, only paragraph 4 guaranteeing the inviolability of the Iraq-Kuwait border contains language authorizing the use of force, and then only by the Security Council and not by individual states.[105] That the Council decided to guarantee Kuwait's boundary by force if necessary — a guarantee that is central to both Article 2(4) of the Charter and the 1991 Persian Gulf war — excludes an interpretation of Resolution 687 as continuing the Resolution 678 authorization so as to allow individual nations to use force to rectify other, presumably less central violations. It would be illogical for Resolution 687 to require Security Council action to authorize force against threatened boundary violations, yet dispense with such action if Iraq violated another provision of the resolution.[106]

Moreover, paragraph 34 of Resolution 687 states the Council's decision "to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area." That provision makes clear that the Council, not individual states, determines not only whether Iraq has violated Resolution 687 but also whether to take "further steps" for its implementation. The express vesting of this authorization in the Security Council is inconsistent with the view that Resolution 678 continues to allow individual states to decide for themselves whether to use force to implement the cease-fire resolution.

Despite the language and history of Resolution 687, U.S. and UK officials have asserted since 1991 that the Resolution 678 authorization to use force remains in effect, and on several occasions they have deployed forces against Iraq.[107] They argue that the traditional material breach doctrine is applicable to UN cease-fires and that an Iraqi breach of the cease-fire therefore reactivates Resolution 678. However, even if the resolution survived the cease-fire and can be reignited under traditional armistice law to address material breaches, the question remains: who decides when a material breach reactivates the authorization to use force — the Security Council or the United States and its coalition partners? The practice since the cease-fire confirms what is central to Resolution 687: that this authority is held by the Security Council alone. Since the Council made the cease-fire with Iraq, it is the party to determine whether Iraq is in breach. Thus, for Council-imposed cease-fires, retaining the material breach doctrine turns out to lead to the same consequences as the Charter rule propounded above: only the Council can decide to resume hostilities.

The question of who determines whether Iraq has materially breached the cease-fire[108] underscores the basic problem with the contracting-out model of UN enforcement: Is this a UN operation for which the threshold decision to employ force is determined by the Security Council? Or once force has been authorized, are all decisions delegated to individual states for the duration of the dispute? Professor Ruth Wedgwood and U.S. officials argue that the "cease-fire on the ground was in fact a decision of coalition forces," not the Council, and that, presumably, any of those forces can therefore declare Iraq in material breach and use force to secure compliance.[109] That coalition forces declared a cessation of hostilities on the ground is not inconsistent with the fact that the formal, legally binding cease-fire was established by the Security Council, not by the United States or any other state. It was declared pursuant to an elaborate Council resolution setting forth its terms and conditions. The Iraqi notification of acceptance, after which the "formal cease-fire is effective," was delivered not to the United States or its coalition partners, but to the Security Council and the Secretary-General. Furthermore, the cease-fire resolution explicitly states that the Council (not individual countries) will "take such further steps as may be required" for its implementation.

The practice since 1991 lends support to the position that a finding by the Security Council of a material breach is necessary before force can be employed. In January 1993, the United States, the United Kingdom and France launched air strikes against Iraq in response to various Iraqi violations of the cease-fire agreement.[110] Those strikes were undertaken only after the Council found the Iraqi actions to "constitute an unacceptable and material breach of the relevant provisions of resolution 687."[111] While the air strikes do suggest that the Security Council was willing at that time to countenance a use of force pursuant to Resolution 678, they also reaffirm what is central to our discussion: that it is for the Council and not individual states to declare Iraq in "material breach" of the cease-fire and thus to authorize force.[112]

Since June 1996, numerous unsuccessful attempts have been made to persuade the Security Council to determine that Iraq is in material breach of the cease-fire agreement.[113] These attempts reflect the UK view that such a Council finding is necessary to authorize military action,[114] a view informed by the traditional law of cease-fires, the UN Charter, Resolution 687 and past practice.

Finally, the winter 1998 practice with respect to the Iraqi inspection regime confirms the general proposition that authorizations by the Council to use force either terminate with a permanent cease-fire or at least require it to declare a material breach and reauthorize force. After Kofi Annan returned from Baghdad in February 1998 with the agreement with Iraq's President Saddam Hussein, the United States and the United Kingdom lobbied for a Council resolution that would have automatically authorized force if Iraq violated the Annan agreement. Resolution 1154 not only rejected such automaticity,[115] but clarified the view of a majority of the Council that its explicit authorization was required to renew the use of force.[116] As the Russian delegate noted, "No one can ignore the resolution adopted today and attempt to act by bypassing the Security Council." Similarly, France stated that the resolution was designed "to underscore the prerogatives of the Security Council in a way that excludes any question of automaticity...It is the Security Council that must evaluate the behavior of a country, if necessary to determine any possible violations, and to take the appropriate decisions."[117] While U.S. officials still argue that the failure of its members to introduce language explicitly requiring member states to return to the Council leaves individual nations free to employ force if Iraq violates the resolution, the Council's repeated rebuffs to the U.S. and UK effort to obtain authority to use force constitute if not explicit, at least implicit, disapproval of the U.S. claim.

Conclusion

The crisis in the fall of 1998 regarding the threat of the United States and NATO to use force against Yugoslavia unless it withdrew its security units and army from Kosovo demonstrates that the problems discussed in this article are likely to recur. The United States, again, was asserting that it and its allies have the authority to use force based upon claimed implicit Security Council authorization: Resolution 1199, while it condemned Yugoslavia's actions in Kosovo, did not explicitly authorize the use of force.[118] As in the Iraqi inspection crisis the previous spring, the United States conflated a Security Council condemnation of a nation's actions with an authorization to use force. That conflation ignored the Charter's requirement that the Council must not only condemn a nation's actions as a threat to the peace, but also decide that force should be employed to counteract the threat.

The grave dangers attendant on a regime of law permitting individual nations or even regional organizations to use nondefensive force without explicit Security Council authorization led all the NATO allies to reject the U.S. position in June 1998.[119] Although NATO has since moved closer to using force without clear Council approval, a number of European nations still appear uneasy about doing so.[120]

When force should be employed to counteract a particular threat to the peace can be difficult to discern, particularly in a world that abounds in dangerous and malevolent actors. Often a real or imagined evil will exert a tremendous centrifugal pull on most of us to support forceful action. Nonetheless, the perils associated with warfare — that great powers can use humanitarian concerns to mask geopolitical interest;[121] that major air strikes such as those threatened against Iraq and Serbia in 1998 have serious consequences in lives lost, destruction caused and the resulting destabilization; that warfare is of limited utility as a means of solving complex, long-standing, underlying problems; that a world order that allows individual or coalitions of nations to deploy offensive military might for what they deem are worthy causes amounts to anarchy — these perils require that force be used only as a last resort as determined by a world body. That principle, inscribed in the UN Charter, stipulates that the Security Council must explicitly approve non-Article 51 uses of force.

During the Cold War, many claimed that the Security Council could not fulfill its first and primary responsibility of ensuring international security. The end of the Cold War and the reversal of Iraq's invasion of Kuwait in 1991 were viewed as reviving the Council's role in collective security. The early 1990s brought fears from some quarters that the United Nations was acquiescing too readily in U.S. uses of force. At times, these fears led to criticisms of explicit UN authorizations of force as illegitimate, unwise, or merely constituting a multilateral veneer for unilateral action. At other times, critics claimed that forceful action was being taken in the name of the United Nations that had not really been authorized by the Security Council.

While it is too early to provide any definitive answer, it may well be that the recent events portend a restoration of the Council's proper role. The world needs a Security Council powerful enough and sufficiently unified to authorize strong countermeasures against aggressors or genocidal regimes and yet not be a mere multilateral rubber stamp for unilateral decision making. It must steadfastly uphold its mandate pursuant to Article 41 to authorize force only as a last resort.

Postscript

On December 16, 1998, the United States and the United Kingdom launched four days of air strikes against Iraq, claiming that Iraq had failed to cooperate fully with the UN weapon inspectors. The United States and Great Britain acted without obtaining the Security Council's authorization to use force and, thus, as this article has argued, in violation of the Charter.[122] The United States and Great Britain argued, as they had in February, that they had legal authority to use force to respond to Iraqi cease-fire violations. Other nations again disagreed.[123]

The December 1998 bombing of Iraq suggests that our hopeful prediction of a strengthened role for the Security Council in controlling the use of force must be tempered by the painful reality of superpower unilateralism. The symbolism of the bombs falling on Iraq while the Council debated its response to a report from a UN special commission about Iraqi compliance with UN resolutions starkly illustrates the refusal of the United States to accept limits on its power. The U.S. position is that it will enforce Security Council resolutions by force, whether or not the Council sees fit to do so. In the short run, the Council was rendered impotent. For the long term, the consequences are potentially serious. The Security Council will be reluctant to authorize and contract out force it cannot control; powerful nations will act on their own.

<< Jules Lobel is a Professor of Law at the University of Pittsburgh Law School; Michael Ratner is an Attorney for The Center for Constitutional Rights. The authors would like to thank Lisa Price, Todd Piczak and Neeli Shreiber for their valuable research assistance, and Jane Stromseth for her invaluable comments on earlier drafts of this article.

Article copyright © Jules Lobel and Michael Ratner; American Society of International Law; all rights reserved]]></description>
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<title> THE CHALLENGES OF POLITICAL RECONSTRUCTION IN IRAQ</title>
<link>./?r=p/1265058332</link>
<description><![CDATA[Producing a stable, post-war Iraq may well prove more challenging than eliminating the regime. Such an endeavor will require a long-term and large-scale U.S. commitment. Neverless, rehabilitating Iraq as a responsible member of the international community should remain the paramount goal of any operation to unseat Saddam Hussein.

THE STRATEGIC PAYOFF from a successful invasion of Iraq is compelling and easily seen. The attendant risks are, however, less easily measured. Much would depend on the commitment of the U.S. administration to rebuild Iraq physically and reconstruct the Iraqi body politic, essentially from scratch.

Thus far, the administration of U.S. President George W. Bush has approached "nation building" with great reluctance, preferring instead to reduce the U.S. profile in places like Afghanistan and the Balkans as quickly as possible. Producing a stable, post-war Iraq may well prove more challenging than eliminating the regime. Such an endeavor will require a long-term and large-scale U.S. commitment.

Nevertheless, rehabilitating Iraq as a responsible member of the international community should remain the paramount goal of any operation to unseat Saddam Hussein. To do this, the United States and its allies would have to accomplish four broad tasks. Occupation forces would have to secure Iraq and guarantee the country's territorial integrity. The Iraqi military would have to be disarmed and a new army created in its place. The Iraqi economy would have to be resuscitated. Finally, the new political system would have to be developed and institutionalized. All of these tasks will prove challenging. But of the four, the job of political reconstruction looms as the most difficult.

The Bush administration has consistently argued that a democratic Iraq would be a powerful example upon which to base political progress in the rest of the region. The problem is that Washington has continually reified the idea of Iraqi democracy without providing any concrete ideas about the mechanisms by which this might be accomplished. Some analysts regard as fanciful the belief that Washington can simply install a government in Baghdad that is friendly, pluralistic and pro-Western. There is no meaningful democratic tradition in Iraq, and the simple and quick imposition of a democracy from the top down is unlikely to succeed. Moreover, Washington will have to confront a central tension: A government that is sympathetic to American interests will not necessarily reflect the interests and desires of the Iraqi people. Conversely, a government that is representative of the Iraqi people may not pursue policies that are attractive to Washington.

Likewise, critics suggest that an American invasion would do little to inspire democratic change elsewhere in the Middle East. [1] In the near term, it is likely that an invasion would retard political openness throughout the region as governments respond to the dissatisfaction of their citizenry with increased repression. [2] Autocratic regimes that did not support the U.S. action could find their position strengthened by a rise in Arab nationalism propelled by anti-Americanism. Regimes that did support the invasion may be rewarded by an exemption from political liberalization. [3] In many of these states criticism of Israel and support for the Palestinian cause remain the only sanctioned outlets for popular angst. Thus, an invasion could indirectly fuel the Arab-Israeli conflict, which would in turn lead to an increasingly heavy-handed Israeli approach to security issues in the occupied territories. Under such circumstances, it is difficult to imagine how democratic change might flourish.

Advocates of regime change nevertheless insist that an end game should include Iraqi democracy, even if it does not necessarily correspond to western forms. Though the possibility seems remote, there are some reasons to be encouraged. Iraq's population has all the makings of a modern middle class. They are relatively well educated, urbanized, and have a long secular tradition. By the standards of the region, there may be few better candidates for democracy, even if it is imposed from the outside. Building democratic institutions in Iraq would, as one scholar argues, place American power for the first time on the side of political reform rather than political reaction and the autocratic status quo in the region. [4]

But the task of political reconstruction in the wake of Saddam's downfall will be daunting. Internal feuding and competition mark the opposition-in-exile, and few of its constituent groups command any significant influence inside Iraq. Years of totalitarian abuse have decimated Iraqi civil society, and the Ba'ath party has long since destroyed any independent institutions that might have guided a peaceful transition to a more democratic form of government. [5] This ensures that political reconstruction will have to be accomplished from the ground up. Violence has traditionally played a prominent role in Iraqi political culture, and competition among rival groups for influence in the new government could be fierce. The Kurds, the Shi'a, and the Sunni elite will all likely view the creation of a new system as a zero-sum game and be inclined to see the recognition of the interests of others as a diminution of their own. Additionally, the tribal rivalries encouraged by Saddam over the years are unlikely to disappear, and the settling of old scores and jealousies will probably accompany any opening of the political system.

Establishing the broad outlines of a successor government prior to an invasion might mitigate some of these problems. The absence of meaningful leadership outside Iraq and Saddam's almost total repression of opposition inside the country makes the specifics of a successor regime difficult to anticipate. Those personalities and groups that rise to the fore will probably bare little resemblance to the opposition groups currently arrayed against the regime. However, Washington should work with the opposition to shape a vision of a post Saddam Iraq that extends beyond finding the next "Iraqi general with a following." A demonstrated commitment by Washington to the future of an Iraq where the interests and rights of all the major groups are recognized and the country's territorial integrity is guaranteed would be a powerful inducement for the Iraqi people. [6] It would also be an important first step toward enlisting the close cooperation of Iraq's neighbors.

Indeed, the absence of such cooperation would serve to reinforce many of the aforementioned problems. The threat that Iraq might break apart in the aftermath of political upheaval has probably been overstated. [7] But Iraq's neighbors will be tempted to interfere on behalf of those groups and factions they identify with in an effort to protect their interests and check the ambitions of rival powers. A weak sense of nationhood will exacerbate the situation, and the temptation for various factions to seek sponsorship, if only to act as a "spoiler," would be great. Under such circumstances, the United States could be drawn into proxy conflicts that could threaten efforts at reconstruction. [8]

In any case, the United States will have to commit itself to the kind of complex peacekeeping and stability missions that the American military has traditionally been reluctant to undertake. In addition to peacekeeping, troops would probably be required to police major cities, the Iranian boarder, and oil fields and instillations. One estimate suggests that a force of 75,000 would be required initially to stabilize the country, with 5,000 troops remaining in Iraq for the next five years. [9]

In fact, these numbers could be low. At least on analyst has judged that such a commitment could impact the U.S. military's workload in such a way as to necessitate a temporary increase in end strength. [10] An occupation force will have to disarm the Iraqi military, police the country's boarders, oil fields and instillations, and maintain order in the cities.

A prolonged American military occupation of an Arab state in the heart of the Middle East is fraught with risks. The indefinite presence of American troops on Arab soil will undoubtedly inflame the passions of Arab/Muslim populations already at odds with the United States. After all, the benign presence of 5,000 U.S. troops on Saudi soil was one of Osama bin Laden's primary grievances. The connotations for the stability of regional allies could be serious. Burden sharing by Arab or Turkish partners might help to legitimize the occupation, but it might also invite meddling. [11]

As in Afghanistan, a new Iraqi security force will have to be trained, but this must be accomplished with extreme care. Any new army that is based on the existing foundations of the Iraqi state will necessarily favor the tribal elite that comprises the nucleus of Saddam's police state. [12] While it is probably not a realistic option to exclude all of these personalities entirely, their participation must be selective. Whoever controls the military will have an advantage in the competition for the resources of state that will undoubtedly arise. All of these individuals have been influenced by the same authoritarian mentality as Saddam, and many subscribe to a similarly virulent strain of Iraqi nationalism. Though Iraq's neighbors other than Iran would likely favor continued Sunni domination of the military, an Iraqi army that falls back on the old affiliations and patronage of the "Tikriti mafia" is an eventuality that must be closely guarded against. The mechanism by which effective civilian control of the military is established will likely have to include close U.S. supervision for the indefinite future.

While the United States will have to commit troops to an occupation/peacekeeping force in Iraq, the country should be administered internationally. It appears that Washington has wisely abandoned plans to install a U.S. military governorship in the style of Gen. Douglas MacArthur's administration of Japan. [13] Military rule, even in the interim, would only reinforce what will already be a prevalent perception among Arabs and Muslims that regime change is meant only to inaugurate a new age of American imperialism in the Middle East. The international administration of Iraq would mitigate this perception and help to legitimize both the occupation and reconstruction efforts. The United Nations and other nongovernmental organizations have the requisite experience to oversee and coordinate the reconstruction of Iraq. What they will require beyond that is an unwavering financial and manpower commitment from the United States for years to come.

None of the above is meant to insinuate that an invasion of Iraq is necessary or inevitable. But the challenges that would follow regime change in Iraq are numerous and formidable. Should the advocates of regime change eventually get their way, they will find that overthrowing Saddam is an easier task than building a democracy in Iraq. It is an endeavor that will be, by necessity, arduous, costly, and long-term.


[1] See Marina Ottaway, Thomas Carothers, Amy Hawthorne, Daniel Brumberg, Democratic Change in the Middle East, Carnegie Endowment for International Peace Policy Brief, October 20, 2002.

[2] Shibley Telhami, A Hidden Cost Of War On Iraq, New York Times, October 7, 2002.

[3] Democratic Change in the Middle East, p. 2.

[4] See Fouad Ajami, Iraq and the Arabs' Future, Foreign Affairs, January/February 2003.

[5] James W. Moore, Apres Saddam, Le Déluge? Speculating On Post-Saddam Iraq, Middle East Policy, Volume VI, Number 3, February, 1999, p. 33.

[6] Roger D. Carstens, An End Game For Iraq, Washington Times July 11, 2002, p. 21.

[7] Mark Strauss, Attacking Iraq, Foreign Policy, March/April, 2002, p. 15.

[8] Iraq after Saddam: The Quagmire of Political Reconstruction, International Institute for Strategic Studies, Strategic Comments, Volume 8, Issue 4, May 2002.

[9] James Dao, Experts Put Large Price Tag on Rebuilding Iraq, New York Times, August 2, 2002.

[10] Mike O'Hanlon, U.S. Policy Towards Iraq, Hearing of the House Armed Services Committee, Washington, D.C., October 2, 2002. O'Hanlon speculates that, over time, the United States may have to increase end strength from 1.4 million to 1.5 million in order to maintain commitments including an occupation of Iraq.

[11] Philip H. Gordon, Martin Indyk, and Michael O'Hanlon, Getting Serious About Iraq, Survival, Volume 44, No. 3, Autumn 2002, p. 20. The authors suggest that the Iraqi population may be more inclined to accept the presence of U.S. peacekeepers than those with vested interests from neighboring countries.

[12] Iraq after Saddam: The Quagmire of Political Reconstruction, International Institute for Strategic Studies, Strategic Comments, Volume 8, Issue 4, May 2002.

[13] Robin Wright and Doyle McManus, Military Rule Not Likely In Postwar Iraq, Los Angeles Times, December 8, 2002, p. 1.]]></description>
<pubDate>Mon, 01 Feb 2010 23:05:32 GMT</pubDate>
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<item>
<title>LESS TALK, MORE WALK: Strengthening Homeland Security Now</title>
<link>./?r=p/1265058127</link>
<description><![CDATA[The following Executive Summary is an excerpted document from CDI's Terrorism Project. For the full document, please visit Center for Defense Information, a non-partisan, non-profit organization committed to independent research on the social, economic, environmental, political and military components of global security. The views expressed in this publication are those of the author.

Acknowledgements: The author would like to thank CDI Vice President Theresa Hitchens for initiating this project, and for her guidance, insights and many helpful suggestions. Thanks also to Martin Calhoun for his editing.
Clearly, in a world where the number of threats is almost unlimited, prioritization is vital. One cannot defend perfectly against every possible threat, but it is feasible to strengthen existing defenses and create new ones, thereby making the most deadly type of attacks less likely. Though much more needs to be done, improved homeland security is possible.

IT IS NOW A TRUISM to say that Sept. 11, 2001, changed everything. But this is not true when it comes to efforts to prevent terrorism and attacks against the U.S. homeland. Since 1960, there has been a proliferation of U.S. counterterrorist measures. Dealing with the burgeoning number of counterterrorist agencies and bureaucracies created over the past decades is only part of the challenge to improving homeland security.

Additionally, much of the planning, with a few significant exceptions, has been on paper without commensurate funding or realistic training to back it up. Some of the programs were developed without recognizing existing state and regional coordinating mechanisms for emergency preparedness. Moreover, some of these programs overlapped because several federal agencies had similar efforts that were not well coordinated with each other.

Long before Sept. 11, the U.S. government was preparing for the worstcase scenarios. For example, on June 5, 2000, the National Commission on Terrorism, a congressionally mandated bipartisan body, issued its report. Similarly, the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction, also known as the Gilmore Commission after its chairman James Gilmore, the former governor of Virginia, which was charged with assessing the capabilities for responding to terrorist incidents in the U.S. homeland involving weapons of mass destruction (WMD), has issued several reports.

Part of the problem in preparing for and implementing effective homeland security was that government officials were reluctant to create a sense of crisis. So the wisdom of many who had anticipated the brutal truth that a terrorist attack against the United States was likely — like the U.S. Commission on National Security/21st Century, known as the Hart-Rudman Commission after its co-chairs, former Sens. Gary Hart and Warren Rudman, which recommended that the president propose and Congress should agree to create a new Department of Homeland Security — was ignored.

On June 6, 2002, President George W. Bush announced that he would move to establish a Department of Homeland Security, following his creation of a Cabinet-level Office of Homeland Security (OHS). However, at this time it remains unclear how the new department will function or even how it will be structured, since Congress has yet to sort out and approve the details.

BUREAUCRATIC WONDERLAND
There are a dizzying array of governmental departments and agencies involved in planning for homeland security. Previously, these included the National Security Council (NSC), State Department and the FBI, to name a few of the most prominent. 
Table 1. Appropriations for Combating Terrorism and Protecting Critical Infrasctructure Since 1998 and the Funding Requested for 2002 Before Sept. 11, 2001 <i>(in millions of dollars)</i></div><img src="http://web.archive.org/web/20040511155410/http://e11th-hour.org/Common/CLEAR.GIF" border="0" height="6" width="1"><br>
<table border="1" cellpadding="3" cellspacing="0">
<tbody><tr bgcolor="#999966" valign="bottom"><td><div class="tblcontsml"><b>Department or Agency</b></div></td><td align="right"><div class="tblcontsml"><b>1998</b></div></td><td align="right"><div class="tblcontsml"><b>1999</b></div></td><td align="right"><div class="tblcontsml"><b>2000</b></div></td><td align="center"><div class="tblcontsml"><b>Original<br>Funding<br>for 2001</b></div></td><td align="center"><div class="tblcontsml"><b>President's<br>Request<br>for 2002</b></div></td></tr>
<tr valign="bottom"><td><div class="tblcontsml">DoD and Intelligence Agencies</div></td><td align="right"><div class="tblcontsml">4,919</div></td><td align="right"><div class="tblcontsml">5,485</div></td><td align="right"><div class="tblcontsml">6,757</div></td><td align="right"><div class="tblcontsml">7,267</div></td><td align="right"><div class="tblcontsml">8,252<sup>A</sup></div></td></tr>

<tr valign="top"><td><div class="tblcontsml">State</div></td><td align="right"><div class="tblcontsml">202</div></td><td align="right"><div class="tblcontsml">1,654</div></td><td align="right"><div class="tblcontsml">792</div></td><td align="right"><div class="tblcontsml">1,311</div></td><td align="right"><div class="tblcontsml">1,549</div></td></tr>
<tr valign="top"><td><div class="tblcontsml">Justice</div></td><td align="right"><div class="tblcontsml">630</div></td><td align="right"><div class="tblcontsml">716</div></td><td align="right"><div class="tblcontsml">765</div></td><td align="right"><div class="tblcontsml">939</div></td><td align="right"><div class="tblcontsml">1,038</div></td></tr>
<tr valign="top"><td><div class="tblcontsml">Energy</div></td><td align="right"><div class="tblcontsml">505</div></td><td align="right"><div class="tblcontsml">619</div></td><td align="right"><div class="tblcontsml">724</div></td><td align="right"><div class="tblcontsml">754</div></td><td align="right"><div class="tblcontsml">834</div></td></tr>

<tr valign="top"><td><div class="tblcontsml">Treasury</div></td><td align="right"><div class="tblcontsml">401</div></td><td align="right"><div class="tblcontsml">423</div></td><td align="right"><div class="tblcontsml">406</div></td><td align="right"><div class="tblcontsml">475</div></td><td align="right"><div class="tblcontsml">474</div></td></tr>
<tr valign="top"><td><div class="tblcontsml">Health &amp; Human Services</div></td><td align="right"><div class="tblcontsml">53</div></td><td align="right"><div class="tblcontsml">218</div></td><td align="right"><div class="tblcontsml">325</div></td><td align="right"><div class="tblcontsml">387</div></td><td align="right"><div class="tblcontsml">446</div></td></tr>
<tr valign="top"><td><div class="tblcontsml">Transportation</div></td><td align="right"><div class="tblcontsml">192</div></td><td align="right"><div class="tblcontsml">296</div></td><td align="right"><div class="tblcontsml">313</div></td><td align="right"><div class="tblcontsml">366</div></td><td align="right"><div class="tblcontsml">401</div></td></tr>

<tr valign="top"><td><div class="tblcontsml">All Others</div></td><td align="right"><div class="tblcontsml">295</div></td><td align="right"><div class="tblcontsml">385</div></td><td align="right"><div class="tblcontsml">372</div></td><td align="right"><div class="tblcontsml">537</div></td><td align="right"><div class="tblcontsml">573</div></td></tr>
<tr valign="top"><td><div class="tblcontsml"><b>Total Budget Authority</b></div></td><td align="right"><div class="tblcontsml"><b>7,197</b></div></td><td align="right"><div class="tblcontsml"><b>9,794</b></div></td><td align="right"><div class="tblcontsml"><b>10,454</b></div></td><td align="right"><div class="tblcontsml"><b>12,036</b></div></td><td align="right"><div class="tblcontsml"><b>13,566</b></div></td></tr></tbody></table><br><div class="footer">SOURCE: Congressional Budget Office based on Office of Management and Budget, <i>Annual Report to Congress on Combating Terrorism</i> (July 2001).
NOTE: The totals shown here are larger than those presented by the Congressional Research Service and other organizations because CBO has included funds for protecting critical infrastructure.

A This figure for the Department of Defense (DoD) and intelligence agencies is different from the one in the Office of Management and Budget's report because CBO has included an adjustment made in the president's FY 02 amended budget request.

Table 2. Comparison of Funding for Combating Terrorism and Protecting Critical Infrastructure Before and After Sept. 11, 2001 <i>(in millions of dollars)</i></div><img src="http://web.archive.org/web/20040511155410/http://e11th-hour.org/Common/CLEAR.GIF" border="0" height="6" width="1"><br>
<table border="1" cellpadding="2" cellspacing="0">
<tbody><tr><td></td><td colspan="3" align="center" bgcolor="#999966"><div class="tblcontsml"><b>2001</b></div></td><td colspan="3" align="center" bgcolor="#999966"><div class="tblcontsml"><b>2002</b></div></td></tr>

<tr bgcolor="#999966" valign="bottom"><td><div class="tblcontsml"><b>Department<br>or Agency</b></div></td><td align="center"><div class="tblcontsml"><b>Original<br>Funding</b></div></td><td align="center"><div class="tblcontsml"><b>Funding<br>w/Supple-<br>mental</b></div></td><td align="center"><div class="tblcontsml"><b>Change</b></div></td><td align="center"><div class="tblcontsml"><b>President's<br>Request</b></div></td><td align="center"><div class="tblcontsml"><b>Estimated<br>Funding<sup>A</sup></b></div></td><td align="center"><div class="tblcontsml"><b>Change</b></div></td></tr>
<tr valign="bottom"><td><div class="tblcontsml">DoD and Intelligence Agencies</div></td><td align="right"><div class="tblcontsml">7,267</div></td><td align="right"><div class="tblcontsml">10,833</div></td><td align="right"><div class="tblcontsml">3,566</div></td><td align="right"><div class="tblcontsml">8,252<sup>B</sup></div></td><td align="right"><div class="tblcontsml">9,314</div></td><td align="right"><div class="tblcontsml">1,062</div></td></tr>

<tr valign="bottom"><td><font size="1">Health &amp; Human Services</font></td><td align="right"><div class="tblcontsml">387</div></td><td align="right"><div class="tblcontsml">405</div></td><td align="right"><div class="tblcontsml">18</div></td><td align="right"><div class="tblcontsml">446</div></td><td align="right"><div class="tblcontsml">3,067</div></td><td align="right"><div class="tblcontsml">2,621</div></td></tr>
<tr valign="bottom"><td><font size="1">Justice</font></td><td align="right"><div class="tblcontsml">939</div></td><td align="right"><div class="tblcontsml">1,020</div></td><td align="right"><div class="tblcontsml">81</div></td><td align="right"><div class="tblcontsml">1,038</div></td><td align="right"><div class="tblcontsml">2,633</div></td><td align="right"><div class="tblcontsml">1,595</div></td></tr>

<tr valign="bottom"><td><font size="1">State</font></td><td align="right"><div class="tblcontsml">1,311</div></td><td align="right"><div class="tblcontsml">1,467</div></td><td align="right"><div class="tblcontsml">156</div></td><td align="right"><div class="tblcontsml">1,549</div></td><td align="right"><div class="tblcontsml">1,549</div></td><td align="right"><div class="tblcontsml">0</div></td></tr>
<tr valign="bottom"><td><font size="1">Transportation</font></td><td align="right"><div class="tblcontsml">366</div></td><td align="right"><div class="tblcontsml">916</div></td><td align="right"><div class="tblcontsml">550</div></td><td align="right"><div class="tblcontsml">401</div></td><td align="right"><div class="tblcontsml">1,360</div></td><td align="right"><div class="tblcontsml">959</div></td></tr>
<tr valign="bottom"><td><font size="1">Energy</font></td><td align="right"><div class="tblcontsml">754</div></td><td align="right"><div class="tblcontsml">759</div></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">834</div></td><td align="right"><div class="tblcontsml">1,065</div></td><td align="right"><div class="tblcontsml">231</div></td></tr>

<tr valign="bottom"><td><font size="1">Treasury</font></td><td align="right"><div class="tblcontsml">475</div></td><td align="right"><div class="tblcontsml">554</div></td><td align="right"><div class="tblcontsml">79</div></td><td align="right"><div class="tblcontsml">474</div></td><td align="right"><div class="tblcontsml">711</div></td><td align="right"><div class="tblcontsml">237</div></td></tr>
<tr valign="bottom"><td><font size="1">Agriculture</font></td><td align="right"><div class="tblcontsml">60</div></td><td align="right"><div class="tblcontsml">60</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">50</div></td><td align="right"><div class="tblcontsml">341</div></td><td align="right"><div class="tblcontsml">291</div></td></tr>
<tr valign="bottom"><td><font size="1">FEMA</font></td><td align="right"><div class="tblcontsml">35</div></td><td align="right"><div class="tblcontsml">35</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">3</div></td><td align="right"><div class="tblcontsml">281</div></td><td align="right"><div class="tblcontsml">245</div></td></tr>

<tr valign="bottom"><td><font size="1">Postal Service</font></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">175</div></td><td align="right"><div class="tblcontsml">175</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">250</div></td><td align="right"><div class="tblcontsml">250</div></td></tr>
<tr valign="bottom"><td><font size="1">Legislative Branch</font></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">376</div></td><td align="right"><div class="tblcontsml">376</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">232</div></td><td align="right"><div class="tblcontsml">232</div></td></tr>
<tr valign="bottom"><td><font size="1">NASA</font></td><td align="right"><div class="tblcontsml">117</div></td><td align="right"><div class="tblcontsml">117</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">117</div></td><td align="right"><div class="tblcontsml">226</div></td><td align="right"><div class="tblcontsml">109</div></td></tr>

<tr valign="bottom"><td><font size="1">General Services Administration</font></td><td align="right"><div class="tblcontsml">114</div></td><td align="right"><div class="tblcontsml">123</div></td><td align="right"><div class="tblcontsml">9</div></td><td align="right"><div class="tblcontsml">117</div></td><td align="right"><div class="tblcontsml">210</div></td><td align="right"><div class="tblcontsml">94</div></td></tr>
<tr valign="bottom"><td><font size="1">District of Columbia</font></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">6</div></td><td align="right"><div class="tblcontsml">6</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">200</div></td><td align="right"><div class="tblcontsml">200</div></td></tr>
<tr valign="bottom"><td><font size="1">Interior</font></td><td align="right"><div class="tblcontsml">10</div></td><td align="right"><div class="tblcontsml">13</div></td><td align="right"><div class="tblcontsml">3</div></td><td align="right"><div class="tblcontsml">10</div></td><td align="right"><div class="tblcontsml">128</div></td><td align="right"><div class="tblcontsml">118</div></td></tr>

<tr valign="bottom"><td><font size="1">Judiciary</font></td><td align="right"><div class="tblcontsml">10</div></td><td align="right"><div class="tblcontsml">31</div></td><td align="right"><div class="tblcontsml">21</div></td><td align="right"><div class="tblcontsml">10</div></td><td align="right"><div class="tblcontsml">105</div></td><td align="right"><div class="tblcontsml">95</div></td></tr>
<tr valign="bottom"><td><font size="1">Social Security Administration</font></td><td align="right"><div class="tblcontsml">71</div></td><td align="right"><div class="tblcontsml">71</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">101</div></td><td align="right"><div class="tblcontsml">105</div></td><td align="right"><div class="tblcontsml">4</div></td></tr>
<tr valign="bottom"><td><font size="1">Environmental Protection Agency</font></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">93</div></td><td align="right"><div class="tblcontsml">88</div></td></tr>

<tr valign="bottom"><td><font size="1">Commerce</font></td><td align="right"><div class="tblcontsml">47</div></td><td align="right"><div class="tblcontsml">47</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">55</div></td><td align="right"><div class="tblcontsml">71</div></td><td align="right"><div class="tblcontsml">16</div></td></tr>
<tr valign="bottom"><td><font size="1">Exec. Office of the President</font></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">82</div></td><td align="right"><div class="tblcontsml">82</div></td><td align="right"><div class="tblcontsml">2</div></td><td align="right"><div class="tblcontsml">50</div></td><td align="right"><div class="tblcontsml">48</div></td></tr>
<tr valign="bottom"><td><font size="1">Veterans Affairs</font></td><td align="right"><div class="tblcontsml">22</div></td><td align="right"><div class="tblcontsml">22</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">22</div></td><td align="right"><div class="tblcontsml">24</div></td><td align="right"><div class="tblcontsml">2</div></td></tr>

<tr valign="bottom"><td><font size="1">Labor</font></td><td align="right"><div class="tblcontsml">15</div></td><td align="right"><div class="tblcontsml">15</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">23</div></td><td align="right"><div class="tblcontsml">23</div></td><td align="right"><div class="tblcontsml">0</div></td></tr>
<tr valign="bottom"><td><font size="1">International Assistance</font></td><td align="right"><div class="tblcontsml">13</div></td><td align="right"><div class="tblcontsml">18</div></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">12</div></td><td align="right"><div class="tblcontsml">12</div></td><td align="right"><div class="tblcontsml">0</div></td></tr>
<tr valign="bottom"><td><font size="1">Education</font></td><td align="right"><div class="tblcontsml">12</div></td><td align="right"><div class="tblcontsml">12</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">9</div></td><td align="right"><div class="tblcontsml">9</div></td><td align="right"><div class="tblcontsml">0</div></td></tr>

<tr valign="bottom"><td><font size="1">Office of Personnel Management</font></td><td align="right"><div class="tblcontsml">1</div></td><td align="right"><div class="tblcontsml">1</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">0</div></td></tr>
<tr valign="bottom"><td><font size="1">Other Independent Agencies</font></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">0</div></td><td align="right"><div class="tblcontsml">5</div></td><td align="right"><div class="tblcontsml">185</div></td><td align="right"><div class="tblcontsml">180</div></td></tr>
<tr valign="bottom"><td><font size="1"><b>Total Budget Authority</b></font></td><td align="right"><div class="tblcontsml"><b>12,036</b></div></td><td align="right"><div class="tblcontsml"><b>17,166</b></div></td><td align="right"><div class="tblcontsml"><b>5,130</b></div></td><td align="right"><div class="tblcontsml"><b>13,566</b></div></td><td align="right"><div class="tblcontsml"><b>22,242</b></div></td><td align="right"><div class="tblcontsml"><b>8,676</b></div></td></tr></tbody></table><br><div class="footer">SOURCE: Congressional Budget Office based on Office of Management and Budget, <i>Annual Report to Congress on Combating Terrorism</i> (July 2001).

    NOTES: These figures include funds associated with combating terrorism and protecting critical infrastructure according to the Office of Management and Budget's classifications in its July 2001 report. They exclude an estimated $1.25 billion authorized by P.L. 107-71 for aviation security, which is to be offset by fees. Of the roughly $8.7 billion in added funds for 2002, about $8 billion was from emergency supplemental legislation (P.L. 107-117), and about $700 million was added in the 13 regular appropriation acts, according to CBO's estimates.

    A Figures in this column reflect CBO's estimate of homeland security funding for each agency. Actual spending will not be known until agencies make their budget allocations and report to OMB.

    B This figure for DoD and intelligence agencies is different from the one in OMB's report because CBO has included an adjustment made in the president's FY 02 amended budget request.

The 1995 Presidential Decision Directives (PDD) 39 and PDD 62, and the 1998 PDD 63 reaffirmed these roles.

In February 2001, Bush signed National Security Presidential Directive No. 1, which fine-tuned the existing NSC structure.

On Oct. 8, 2001, Bush signed an executive order establishing the OHS to lead, oversee, and coordinate a comprehensive national strategy to protect the nation against terrorism. Former Pennsylvania Gov. Tom Ridge chairs the OHS.

The executive order relies on coordination, but never mentions control. The new organization's mandate is carefully circumscribed to involve only coordination, leaving unaltered the existing authorities of the operating departments and agencies. In the meantime, many questions remain to be answered. For example, will Ridge have direct control over the counterterrorism budgets in other agencies, which could be key to shaping the anti-terror bureaucracy?

How effective will the newly created OHS be? That depends. Ridge has the job of coordinating many different agencies, but he does not direct any of them. Months after taking the job, he faces doubts about his abilities and authority. Keen rivalries still exist between the various agencies, and even at the best of times, coordination is an inherently difficult job. And this is not the best of times.

Although the Bush administration subsequently announced it would establish a Department of Homeland Security (see below), it appears that the OSH will continue to exist. On July 17, 2002, Bush presented the new Homeland Security Strategy to Congress.

Still, devising a strategy is easy compared to implementing it. A national strategy for homeland security will engage players who have not been part of the traditional U.S. national security apparatus — such as the Department of Health and Human Services (HHS) and the Department of Agriculture.

There should be no mistake about the magnitude of the task now facing America. The defense of the U.S. homeland can be improved but it will not be easy. And there will never be a 100 percent foolproof defense, if for no other reason than the sheer abundance of targets available to potential attackers. When the objective is to kill large numbers of people in spectacular fashion and cause panic and disruption, the United States constitutes a "target-rich environment" and is extremely vulnerable to terrorist attacks. Drugs and illegal immigrants move across U.S. borders with ease; guns and stolen cars move out. Dangerous activities occur in modern society every day. Aircraft take off and land. Hazardous materials — flammable, explosive, or poisonous — move by truck, train and ship.

VULNERABILITIES AND THREATS
What are the challenges confronting those charged with strengthening the defense of the U.S. homeland?

Borders
To say that U.S. borders are open is an understatement. According to the Census Bureau, there were close to 9 million people living illegally in America in 2000. Terrorists can slip across remote places on the U.S.-Canadian border. As of February 2002, just 345 Border Patrol agents have permanent assignments to watch the 3,987-mile line dividing Canada and the United States.

Bringing illegal immigrants across the border is big business. Drug smugglers have devised elaborate means, including tunnels, to penetrate the border.

Aviation
With 9 million commercial flights each year carrying about 600 million people, and countless targets on the ground, the consequences of another aviation-centered attack could easily match those of Sept. 11.

Aviation security problems are longstanding. Today, only a small percentage of passenger luggage on domestic flights is screened for explosives. In addition, the industry must now guard against suicidal hijackers.

Nor is commercial aviation the only concern. The stealing of a Cessna 172 by a 15-year-old student pilot in Florida and his subsequent suicidal crash into a downtown Tampa skyscraper illustrated the threat posed by small planes and the general aviation system. It showed that short of grounding most private planes, the government's air defense system is unable to prevent another suicide flight. The Federal Aviation Administration (FAA) is incapable of monitoring the more than 500,000 private pilots flying more than 200,000 airplanes from 18,000 airports all over the country, much less stopping these small planes from making attacks.1

Mass Transit
Mass transit systems clearly are potential targets. Members of Japan's Aum Shinrikyo cult proved it in 1995 when they released nerve gas into Tokyo's subway system, killing 12 and injuring 5,500.

Much of the heavy freight in the United States, including large quantities of hazardous materials, is transported by rail. In addition to being critical components of the nation's transportation system, trains can become targets for terrorists. Rails often pass close to metropolitan centers and also travel through rural areas. This can represent problems in terms of massive releases of chemicals being transported as cargo, which can burn or explode, or may themselves be toxic.

Maritime Security
Seaports are the conduits through which 95 percent of U.S. imports and exports — excluding trade with Canada and Mexico — flow. "Maritime security" covers a variety of different, distinct industries and elements, including inland waterways, port facilities, marine terminals, non-maritime facilities located on navigable waters, bridges, cruise ships, tankers of various types, and the liner industry.

Most ports are near population centers and are packed with bridges, power plants, and combustible and hazardous materials. Thus ports represent significant points of vulnerability.

In terms of possible targets and means, the scenarios are near infinite. Terrorists may sabotage or attack installations like the natural gas tanks along Boston Harbor, the petrochemical complexes of Houston, or the vast collection of oil tanks at the terminus of the Trans-Alaska Pipeline in Valdez, Alaska.2

About 6 million containers arrive in the United States each year by ship, but only a fraction of those containers get inspected. U.S. Customs searches approximately 2 percent of them.

Currently, the United States has no credible way to reliably detect and intercept illegal and dangerous people and goods that infiltrate our maritime and surface transportation networks.

Nuclear
Information about basic weapon designs is commonly available. Given reports of lax nuclear material controls in Russia and other parts of the world, it is only prudent to assume some sort of nuclear device could be made by a would be terrorist.

Although concern about nuclear terrorism is not new, the proliferation of nuclear materials and knowledge since the end of the Cold War has made at least the likelihood of a nuclear incident more feasible. Worldwide stockpiles of fissile material — the essential ingredients of nuclear weapons — are estimated to include some 450 tons of military and civilian separated plutonium, and more than 1,700 tons of highly enriched uranium.

The Department of Defense (DoD) defines an improvised radiological device as "any device, including any weapon or equipment, other than a nuclear explosive device, specifically designed to employ radioactive material by disseminating it to cause destruction, damage, or injury by means of the radiation produced by the decay of such material."3 Although use of such a device would probably kill few people, it would spread panic and produce severe economic damage, if only because of the difficulty of cleanup. This is because techniques for dealing with radioactive contamination rely largely on demolition and removal.

Nuclear Power Plants
None of the nation's 104 nuclear power plants, which provide 20 percent of the nation's electricity, were built to withstand direct, full-speed impact by today's commercial jetliners. Nor were any of the 16 decommissioned plants that store spent fuel. Might the accidental or intentional crash of an aircraft into a nuclear power plant — whether one built to withstand such a disaster or not — precipitate a radiation release? The U.S. Nuclear Regulatory Commission (NRC) now admits that the agency "could not exclude the possibility" of a radiation release "that could impact public safety." The agency formulates policies and regulations governing nuclear reactor and materials safety, issues orders to licensees, and adjudicates legal matters brought before it.

Although the possibility of a terrorist attack on civilian nuclear reactors is not new, plans to defend them seems woefully inadequate. Aside from physical design, security procedures at nuclear facilities also are in dire need of improvement.

Nuclear Labs
Security problems at government weapons sites are also rampant. In a drill at Los Alamos National Laboratory in 1997, the "terrorists" used a garden cart to steal enough weapons-grade uranium for numerous nuclear weapons. In a test at the Rocky Flats nuclear production facility in Denver, Navy SEALs successfully "stole" enough material to make several nuclear weapons. The Energy Department lacks the necessary funds to adequately protect the nation's nuclear weapons research facilities.

Nuclear Waste
Terrorists could also target the storage facilities for spent nuclear fuel, which is kept in special pools onsite at both power and production plants. There are about 40,000 tons of spent fuel, including hundreds of tons of plutonium, stored at operating and shutdown plants around the country, usually in concrete- reinforced cooling pools that were supposed to be temporary but now hold more radioactive material than the reactors themselves.

Despite legislation requiring it to do so, the Department of Energy has not uniformly secured the nation's nuclear waste, which could be used by terrorists to build radiological weapons. According to the department, it already is running 12 years behind schedule.

Chemical and Biological Agents
Chemical Attacks
The chemical threat can be divided into two categories: regular chemical weapons and toxic industrial chemicals.

In regard to the former, the good news is that it is easier said than done. Nerve agents are difficult to produce and require a synthesis of multiple precursor chemicals. The production and transfer of chemical weapon precursor chemicals is internationally monitored under the Chemical Weapons Convention and the informal international export regime of the Australia Group, providing some degree of control over their distribution.

Chemical Plants
Pathogens may have to be "weaponized" to turn them into agents of mass destruction, but industrial chemicals already are. Some of the chemicals produced or stored in the country have the potential to match or exceed the 1984 disaster in Bhopal, India, in which a methyl isocyanate gas leak at a Union Carbide Corp. pesticide plant killed at least 2,000 people and injured 100,000. Approximately half of them suffered permanent disabilities.

Since Mohamed Atta, the ringleader of the Sept. 11, 2001, attacks, had inquired about the chemicals at a plant in Tennessee he had flown over, security agencies must assume that such facilities are being considered as potential targets.

There are many potential targets and reasons for concern, even if terrorists do not attack them. There are about 850,000 facilities in the United States that work with hazardous or extremely hazardous substances. Many of these sites are located in urban areas, and transport of hazardous substances is a routine matter. Every year, more than 60,500 accidents and incidents occur at these facilities or during the transport of these chemicals. In the past decade, about 95 percent of the counties in this nation have experienced this type of emergency. Accordingly, it stands to reason that U.S. rescue crews and hospitals need to be well prepared to contend with chemical casualties.

Biological Attack
Biological terrorism is not a "lights and sirens" kind of attack. Unless the release is announced or a fortuitous discovery occurs early, there will be no discrete event to signal that an attack has happened, and no site that can be cordoned off while authorities take care of the casualties, search for clues, and eventually clean up and repair the damage.

Because of the ability of microorganisms to multiply rapidly within the host, small quantities of a biological agent, if widely disseminated through the air, could inflict casualties over a very large area. Weight-for-weight, biological and toxin weapons agents are hundreds to thousands of times more potent than the most lethal chemical warfare agents, making them true WMD, or more properly put, weapons of mass casualty, with a potential for death and injury that can exceed that of nuclear weapons.

Biological and toxin weapons also pose, potentially, greater dangers than either chemical or nuclear weapons, because these agents are so lethal on a pound-for-pound basis that their production requires a much smaller and cheaper industrial infrastructure.

Biological and toxin weapons are much harder to control than nuclear or chemical weapons because they are readily found in nature. Any nation, group or person that wants to acquire such weapons can find the pathogen or source of most of the toxins and diseases that could be used as weapons against humans, animals and agricultural crops.

Agroterrorism
Unfortunately, use of microorganisms against people is not the only biological threat that must be considered. Biological warfare against crops and animals is another. The evidence suggests that an agricultural bioterrorist attack would have very serious consequences. And the threat is hardly theoretical; it has happened before in U.S. history.

The destruction or contamination of crops and/or livestock not only would deal a direct, severe financial blow to growers and breeders, but also would hurt shippers, stockyards, slaughterhouses, distributors and many others. An attack of this kind would also impact consumers, threatening not only their pocketbooks but also their confidence in the safety of the food supply.

Ballistic Missiles
Countries of proliferation concern vary widely in their ability to produce missiles, extend their capabilities, or design new types. While several developing nations essentially have no indigenous capability, others match that of the United States in the mid-to-late 1960s.

Only China and Russia are able to attack the United States with nuclear warheads on long-range, land-based intercontinental missiles. This has not changed since Russia and China deployed their first ICBMs (intercontinental ballistic missiles) in 1959 and 1981, respectively.

A key point that is overlooked in the WMD and missile threat debate is that missiles are not the most likely means of attack. In fact, a past National Intelligence Estimate found that "U.S. territory is more likely to be attacked with WMD using nonmissile means."

Cruise Missiles
Cruise missiles are an obvious system for conducting precision strikes. They can fly at low altitudes to stay below radar and, in some cases, hide behind terrain features. Cruise missiles are smaller and therefore much less visible to radar than aircraft or ballistic missiles.

Newer missiles are incorporating stealth features to make them even less visible to radars and infrared detectors. Multiple missiles could attack instantaneously from different directions and they can fly circuitous routes to get to different targets.

It is unclear how rapidly cruise missiles will spread from state to substate actors, i.e., terrorist groups. To date, no terrorist group has used a cruise missile, but they may obtain one from a state sponsor, or even build one on their own. As the relevant technology is widely available, it is possible that shortor even long-range missiles could spread to new actors.

Water Supplies
Two types of water system sabotage, vandalism and terrorism, need to be considered. Vandalism interrupts the supply of water and reduces its quantity. Terrorism contaminates the water and reduces its quality.

Supply interruptions deny the population drinking water or firefighting protection, and include the destruction of, or interference with, reservoir dams, water towers or storage facilities, pumping stations, intakes, valves, treatment plants, the distribution system or fire hydrants. Supply interruptions can be caused by any number of acts, including physical destruction, interruption of the supervisory control and data acquisition system, or acts that could reduce the water pressure in a system. Supply interruptions can also occur as an indirect result of contamination. As drinking water is essential to human life, denying it for any period could cause panic and disrupt society.

Much public concern is focused on the safety of water reservoirs and treatment plants. In terms of vulnerabilities, however, the real danger may be the pipes that carry the water, not facilities that store or purify it.

By contrast, across the country, water utility officials are taking steps to prevent terrorists from reversing the flow of water into a home or business — which can be accomplished with a vacuum cleaner or a bicycle pump — and using the resulting "backflow" to push poisons into a local water-distribution system. Such an attack would use utility pipes for the opposite of their intended purpose: instead of carrying water out of a tap, the pipes would spread toxins to nearby homes or businesses.

WHAT IS BEING DONE

    * On Oct. 8, 2001, Bush signed the executive order establishing the OHS to lead, oversee and coordinate a comprehensive national strategy to protect the nation against terrorism. A Homeland Security Council similar in structure and function to the existing NSC was established as well. The strategy was released July 17, 2002, and is being evaluated by Congress.

    * On June 6, 2002, Bush announced he would establish a Department of Homeland Security. Though it is still unclear as to how it will work, since Congress has yet to sort out and approve the details, its structure would have four main divisions: Border and Transportation Security; Emergency Preparedness and Response; Chemical, Biological, Radiological and Nuclear Countermeasures; and Information Analysis and Infrastructure Protection.4

    * The Pentagon has established a new unified command, called the Northern Command (NORTHCOM), for homeland defense. On April 17, 2002, the command was assigned the mission of defending the United States and supporting the full range of military assistance to civil authorities. NORTHCOM began operations on Oct. 1, 2002. However, questions such as what the relationship is between NORTHCOM, the OHS, the Homeland Security Council and the new Department of Homeland Security, remain unanswered.

    * In the wake of the Aum Shinrikyo Tokyo nerve gas subway attack in 1995, several U.S. initiatives were undertaken. The Marine Corps created a new Chemical and Biological Incident Response Force, and the Office of Emergency Preparedness within the HHS developed the Metropolitan Medical Response System. Starting in 1998, the DoD created Rapid Assessment and Initial Detection Teams (later renamed Weapons of Mass Destruction Civil Support Teams). Congress created a new domestic preparedness program whose aim is to train first responders in 157 cities.

    * Major responsibility for consequence management of a terrorist attack in the United States now rests with the Federal Emergency Management Agency (FEMA). FEMA created the Office of National Preparedness to coordinate all federal programs dealing with WMD consequence management.

    * A new effort is the Bush administration's Customs-Trade Partnership Against Terrorism. U.S. companies that agree to impose tougher antiterrorist safeguards will be rewarded with faster processing times at U.S. borders. The companies, deemed low-risk shippers, agreed to install point-of-origin-to-point-of-delivery security in return for expedited border handling of their imports and exports by the Customs Service.

    * In 2001, Congress created a new Transportation Security Administration (TSA) within the Department of Transportation. The TSA is responsible for creating a new federal airport security force, an expanded Federal Air Marshal program, deployment and creation of new screening technologies, administrative and support staff, and high-tech researchers, as well as a host of other new improvements in aviation and transportation security.

    * Coast Guard Port Security Units are patrolling "keep-out" zones around Navy warships and key facilities, including nuclear power plants. The Coast Guard also has changed the 24-hour Notice of Arrival requirement for ships entering U.S. ports to 96 hours before arrival at the first U.S. port. The notice requires a list of the crew and a cargo manifest from every incoming ship so that the Coast Guard can bounce that list off many law enforcement databases.

    * To deal with container shipping, the Customs Service has proposed a “Container Security Initiative” that would establish security criteria for identifying high-risk containers, use technology to prescreen those containers, and develop and use smart and secure containers. The initiative would expedite the processing of containers prescreened at mega-ports overseas that participate in the initiative.

    * The United States is seeking approval from the International Maritime Organization (IMO) for the Customs-Trade Partnership Against Terrorism, which would give U.S. inspectors authority to inspect cargo containers at their points of origin in foreign countries.

    * The NRC issued a mandatory security upgrade order announcing new security measures to shield the nation's 104 nuclear power plants from terrorist attack.

    * The FAA, in partnership with private technology companies, is developing an air security screening system designed to use data-mining and predictive software to profile passenger activity and intuit obscure clues about potential threats even before the scheduled day of flight.

    * The federal Nuclear Emergency Search Team, one of the Energy Department's seven major radiological emergency response units, has been ordered to launch periodic searches for a "dirty bomb" in Washington and other large U.S. cities.

    * The NRC has created a new Office of Nuclear Security and Incident Response that will work with the OHS to protect U.S. nuclear power plants from terrorist attack.

    * The HHS has contracted with British-based Acambis PLC for 209 million doses of smallpox vaccine by the end of 2002. This will supplement the 15 million doses of vaccine currently available in the stockpile. It is also possible that the stockpile can be increased through dilution. In addition, Aventis Pasteur, a French vaccine maker has agreed to make available to the United States more than 75 million doses of vaccine made in its factories more than 40 years ago. According to HHS, America will have at least 286 million doses of vaccine by year's end. The figure could be as high as 711 million doses, depending on how well the Aventis vaccine can be diluted. Depending on the estimates, these quantities should be sufficient to vaccinate most Americans.

    * The U.S. Centers for Disease Control and Prevention (CDC) will distribute $918 million to state health departments for bioterrorism preparedness.

    * The Plum Island Animal Disease Center in New York is being upgraded by the Agriculture Department, in accordance with a Clinton administration initiative, into the sort of heavily protected laboratory at which the most dangerous animal diseases are studied.

    * The Food and Drug Administration (FDA) is improving capabilities to identify and characterize food borne pathogens, and is identifying biological agents using animal studies and microbiological surveillance.

WHAT SHOULD BE DONE?
Domestic Response Recommendations

    * Develop future years plans and coordinated program budgets. Each federal department and agency with a homeland security mission should develop five-year plans and long-term research, development, testing and evaluation plans.

    * Congress should establish a homeland security working group. This group should be chaired and vice-chaired by members of the majority and minority parties, respectively, and include senior staff from the various authorizing and appropriations committees with jurisdiction over federal agencies concerned with terrorism, crisis, consequence management and homeland defense. By means of a monthly report, the working group would keep the authorizing and appropriations committees apprised of ongoing legislative initiatives and funding issues in Congress.

    * The Justice Department should fully fund the National Defense Preparedness Office clearinghouse for information on planning and policy regarding WMD preparedness.

    * The Justice Department should fund its Center for Domestic Preparedness at Anniston, Ala., to allow it to achieve full capacity of 10,000 trainees a year. Also, HHS should continue to fund the U.S. Public Health Service's Noble Training Facility at the same location.

    * The Justice Department should coordinate with the U.S. Army Chemical School at Fort Leonard Wood, Mo., to share training techniques and lessons learned on dealing with chemical and biological devices and defense operations.

    * The Justice Department should increase training and exercising of state and local emergency responders. The department should expand Nunn- Lugar-Domenici training, which was established by the Defense Against Weapons of Mass Destruction Act of 1996. It is known as the Nunn- Lugar-Domenici program after its Senate sponsors, which stipulated the training of first responders to deal with WMD terrorist incidents.

      It began in fiscal year 1997 (FY 97) to train first responders — fire, police and emergency medical technicians — in 120 of the largest cities (later increased to 157 cities and counties in the country), and to exercise for additional state and local jurisdictions, broaden the range of participants (i.e., public health, environmental health and human services personnel), and provide funding for the purchase of equipment — all with an eye toward standardizing training and equipment for interoperability across jurisdictions. The program should also develop measures for judging the effectiveness of the training.

    * Each state should harmonize state and local emergency preparedness plans and equipment. Harmonization raises the preparedness levels of laggard state and local jurisdictions, facilitates interoperability, and then promotes greater economies of scale with respect to purchasing personal protective equipment.

    * The future Department of Homeland Security should integrate emergency responders into federal planning for domestic response preparedness. Emergency responders must have an effective seat at the intergovernmental table to ensure seamless coordination between emergency responders and late-arriving federal assets.

    * The Justice Department should identify and remedy legal ambiguities or inadequate authority. An interagency task force, with state and local representation, should immediately begin efforts to identify legal issues raised by a WMD threat or attack and work to resolve those issues, whether through proposing new laws or simply clarifying the application of existing laws and authorities.

Communications Recommendations

    * The Federal Communications Commission (FCC) should establish regulations governing the upgrade of public safety voice and data communications networks to ensure regional compatibility and interoperability.

    * Congress should fund a nationwide system of regional voices and data communications systems for state and local government use.

    * The FCC should disseminate information concerning recent orders that set aside portions of the electromagnetic spectrum for public-safety use.

    * The FCC Homeland Security Policy Council should develop a system to prioritize cellular traffic.

    * The OHS needs to promote the sharing of homeland security information — including classified information — between federal intelligence, law enforcement agencies, and state and local entities.

Border Recommendations

    * The government should codify the border security arrangement the United States has made with Canada and Mexico into formal treaties allowing enforcement activities across international borders.

    * The Immigration and Naturalization Service (INS) should tie applications for student visas and green cards to Interpol and other law enforcement databases.

    * The INS should expel students attending U.S. colleges and universities on student visas from the United States within 180 days if they are not actively enrolled in courses.

    * The INS should automate immigration databases to include biometric identification and maintain information as to the whereabouts and activities of foreign nationals in the United States.

Aviation Recommendations

    * The FAA should link airline ticketing systems and databases to law enforcement information systems to prevent wanted and suspect individuals from obtaining tickets for airline flights.

    * Similarly, the FAA should link federal watch lists to airline ticketing systems and these systems should be updated to flag any record containing obvious warning signs, including cash transactions, absence of luggage, unusual passports or visas, recorded reports of odd behavior, and past histories of security issues.

    * Congress should require the FAA to revise its plan to deploy computerized tomograph X-ray screening devices in airports because of their limitations. Instead, the FAA should install combinations of computerized tomograph X-ray, baggage X-ray, and explosive trace detection machines to achieve 100 percent screening of checked baggage with acceptable throughput to meet airline scheduling needs.

    * The FAA should require bag matching on all legs of all flights.

    * The TSA, the FAA, and the airlines should develop and implement a "trusted flyer" program for frequent flyers that incorporates background checks, fingerprinting, and biometric identification to allow more limited screening of these persons at airport check-in and check points.

    * The appropriate agencies should revise computerized passenger profiling systems to include ethnic and national-origin factors with respect to passengers from countries known to support terrorism.

Mass Transit Recommendations

    * • The Transportation Department should develop a regulatory system that can reliably identify legitimate transportation activity by truck and rail to allow closer inspection and regulation of activity deemed otherwise by exception.

    * The Transportation Department should require satellite tracking of hazardous materials shipments by carriers.

    * The Transportation Department should require all truck and rail shippers to submit route plans, driver links with personal identification numbers and cargo identification, and configure these systems to report by exception those loads that deviate significantly from their route plan. Deviations should be immediately reported to the appropriate law enforcement agency.

    * The Transportation Department should first require such identification and tracking regulations for shipments of hazardous materials; second, on shipments of non-hazardous materials; and third, on commercial rental fleets.

    * The Transportation Department should identify and monitor key bridges, tunnels and transit infrastructures in terms of hazardous materials traffic on or through them. Hazardous materials should not be allowed in, on, or near these structures.

    * The Transportation Department should re-evaluate passenger rail security taking into account current and future threats.

Maritime Security Recommendations



    * The Coast Guard and Transportation Department should immediately assess the equipment and staffing needed to protect U.S. harbors and the shipping vessels using them.

    * • The Coast Guard should monitor activities in major seaports, particularly those handling hazardous cargos and military vessels in a manner similar to that described above for the trucking industry.

    * The U.S. delegate to the IMO should encourage it to push up the date for implementation of its forthcoming new security regulations.

    * The Transportation Department should work with the IMO to require full transparency of identity, ownership and financial responsibilities of all ship owners.

Nuclear Recommendations



    * In the long term, as recommended by the International Atomic Energy Agency, Congress should require the incorporation of built-in measures and external controls in future nuclear reactors, thus making diversion of nuclear materials more difficult.

    * Congress should reverse the past policy of the NRC, which has been systematically backing away from rigorous enforcement of nuclear power plant design requirements, to take into account the new sophisticated terrorist threat and ensure that these requirements, known as the Design Basis Threat, are fully implemented for all nuclear reactors.

    * Because private industry cannot be relied on to make the necessary investments, the new Department of Homeland Security should enforce all security measures at all nuclear power plants, as is being done for security at airports.

    * The United States should reaffirm the importance of the 1972 nuclear Non-Proliferation Treaty. As part of this reaffirmation, the United States needs to reduce reliance on nuclear deterrence in its security policies and make dramatic cuts in the number of its nuclear weapons. Continued reliance on a nuclear threat and large nuclear arsenals undermines U.S. efforts to stem weapons proliferation.

    * The United States should work closely with the International Atomic Energy Agency and other nations to increase physical safeguards of nuclear plants and materials around the world.

    * The United States should forge a global coalition to secure WMD stockpiles and their essential ingredients everywhere; appoint one U.S. and one Russian official to lead their respective efforts to secure nuclear weapons and materials; strengthen security upgrades for warheads and materials in Russia; launch an effort to eliminate or secure stockpiles of weapons-usable nuclear material worldwide; create a stringent global nuclear security standard; accelerate the blend-down of highly enriched uranium; and create new revenue streams for nuclear security.5

    * The U.S. government, working though the Department of Energy and DoD, should undertake an internal evaluation of its bilateral Materials Protection, Control, and Accounting program in Russia and consider ways to accelerate progress in safeguarding nuclear weapons and special nuclear materials, especially to counter potential insider threats.

    * Future U.S. proliferation resistance measures should include: nuclear energy systems designed to use fuel where weapon-grade material cannot be easily removed, such as a pebble-bed reactor; systems that do not use highly enriched uranium; systems that produce the lowest possible amounts of plutonium-239; combinations of nuclear energy systems in which spent fuel from one can be used as fuel for another; and improved enrichment and reprocessing abilities to prevent stockpiling of weapon-grade material.

    * The Department of Homeland Security should ensure that U.S. states with a population within the emergency planning zone of commercial nuclear power plants include sufficient stocks of potassium iodide as a protective measure for the general public in the event of a severe plant incident.

    * Research, funding and deployment of sensors designed to detect radioactive materials need acceleration.

    * The NRC and states with agreements with that agency should tighten regulations for obtaining and possessing radiological sources that could be used in terrorist attacks including requirements for securing and tracking these sources. Additionally, licensees possessing large sources should be encouraged to substitute non-radioactive sources when economically feasible.

Chemical Attacks Recommendations



    * The United States should work to ensure that the Organization for the Prohibition of Chemical Weapons, the organization monitoring compliance with the Chemical Weapons Convention, has the money and political support to do its job.

    * The Environmental Protection Agency (EPA) should require industry to reduce or eliminate the possibility of a chemical release by choosing inherently safer materials and technologies.

    * The EPA should require industry to conduct background checks of key employees.

    * The Transportation Department should enhance physical security of barge terminals, rail, and truck facilities and their staging areas that handle chemicals.

    * The Transportation Department should prohibit rail cars with toxic cargo from parking by residential areas.

    * The HHS should develop incentives for hospitals to be ambulance-receiving hospitals, to stockpile nerve-agent antidotes and selected antitoxins and put them in the hands of first responders, to purchase appropriate personal protective equipment and expandable decontamination facilities and train emergency department personnel in their use.

    * The HHS should survey major metropolitan hospitals regarding supplies of antidotes, drugs, ventilators, personal protective equipment, decontamination capacity, mass-casualty planning and training, isolation rooms for infectious disease, and familiarity of staff with the effects and treatment of chemical weapons.

Biological Weapons Recommendations



    * The Bush administration should take steps to enhance the public health infrastructure to include improved access to information technologies and the Internet, as well as additional staffing.

    * The HHS, along with the CDC and the state departments of health, should establish and maintain a national epidemiological tracking system that employs both nontraditional and syndromatic surveillance technology. The system should include data from emergency department visits, 911 centers and health clinics, and should track the sale of antibiotics and other relevant medications.

    * FEMA and CDC should develop a national response capacity for rapid assessment of a bioterrorist emergency occurring anywhere in the United States. These agencies should develop a Biological Emergency Support Team that can rapidly assess and set priorities following a bioterrorist event. This will ensure that FEMA can rapidly galvanize other federal departments around a common assessment and set out response priorities during a national emergency. Furthermore, this arrangement links state and local infectious disease control agencies through CDC to the disaster management skills of FEMA.

    * The Bush administration should move to expand CDC's national bioterrorism laboratory response network and laboratory standardization efforts. This multidepartment initiative should act as a nationwide coordinated laboratory network for bioterrorism, and should include the DoD, FBI, HHS, and the departments of Energy and Agriculture.

    * The federal government should increase funding for CDC's Bioterrorism Preparedness and Response Program, including the hiring of new lab analysts.

    * FEMA should expand the provisions on bioterrorism in the Terrorism Annex of the Federal Response Plan.

    * The HHS should strengthen and make more widely available epidemiological training programs, with curricula appropriate for public health and law enforcement professionals.

    * The HHS should purchase, deploy and maintain baseline stocks of pharmaceuticals, vaccines and antidotes in the 30 largest cities in the United States, and in strategic locations in all 50 states.

    * The FBI should require registration of university labs and research facilities working with known or suspected chemical or biological agents.

    * The HHS should establish a National Vaccine Authority to oversee research, development and distribution of vaccines that are too risky or too unprofitable for industry to make. A central component would be a government-owned, contractor-operated vaccine-manufacturing plant.

    * The DoD and HHS should sponsor an integrated plan for biomedical research. Civilian and military research efforts should dovetail, and applied research should not be forsaken in favor of long-term bench research projects.

    * Congress should fill in the gaps in current law with respect to criminalization of possession of biological pathogens and improvement of security at U.S. labs. Such measures could include:

         1. Requiring individuals to report their possession of biological agents to the designated agency, with failure to report resulting in a criminal or civil penalty.

         2. Prohibiting the transfer of biological agents to a person who is not registered.

         3. Requiring certain security clearance to work with certain agents.

    * The U.S. government should prevent proliferation of former Soviet biological weapon capabilities by increasing funding for the State Department's science centers (International Science and Technology Center, and the Science and Technology Center in Ukraine) and the Redirection of Biotechnical Scientists Program; the Department of Energy Initiatives for Proliferation Prevention Program; and the DoD Biological Weapons Proliferation Prevention Program.

Agroterrorism Recommendations

    * The U.S. Department of Agriculture should establish a veterinary "push-pack" where key pharmaceuticals necessary to react to a variety of livestock and plant diseases are pre-positioned in strategic locations, similar to that established by the CDC for human diseases.

    * The Agriculture Department should set up a biosecurity training program to counter the threat of diseases and pests at the farm level.

    * The Agriculture Department should devote more resources to disease detection, surveillance and diagnostic technologies including creating linked animal-human disease databases, developing more rapid diagnostic tests, increasing capacities at the Plum Island laboratory, and establishing a contingency network of veterinarians that could respond to emergencies.

    * The Agriculture Department should establish a program of security assessment and detection for food-processing facilities. • The Agriculture Department, FDA and CDC should link their disease monitoring databases and jointly develop surveillance systems that use this combined data to improve early warning systems.

Biological Arms Control Recommendations
The Biological and Toxin Weapons Convention (BWC), which bans the development, production, stockpiling, and biological and toxin weapons transfer, has been hobbled since it took effect in 1975 by a lack of formal measures to monitor and enforce compliance. The United States should rethink its rejection to the BWC's verification protocol and undertake the following measures:

    * The United States should pass integrated legislation that addresses national implementation of the BWC. This is in accordance with Article IV of the BWC which requires that "each State Party shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere."

    * The United States should support the establishment of a BWC oversight committee and secretariat to promote adherence to the BWC and to aid implementation of politically binding confidence-building measures for information exchange. Moreover, it should develop a legal framework to ensure that breeches of the BWC by individuals or groups are treated as an international crime.

    * Continue the biological weapons verification protocol negotiations, utilizing the existing draft as the basis for talks.

Ballistic Missiles Recommendations

    * The Pentagon's Missile Defense Agency should reorient the missile defense development program to focus its near-term efforts on short-range theater missile defense systems.

    * Congress should eliminate space-based missile defense funding, and prohibit the development of nuclear-tipped interceptors. Congress also should cut Missile Defense Agency funding by approximately 50 percent, from nearly $8 billion in the FY 03 request to $4 billion, and shift those funds into Cooperative Threat Reduction programs.

    * Congress should redirect the funds aimed at the planned missile defense test bed and interceptor deployment facilities in Fort Greely, Alaska, to intelligence efforts to find, monitor, and potentially target with conventional weapons both ICBM launch facilities and WMD facilities of concern.

Cruise Missiles Recommendations
The U.S. government should move, both unilaterally and with partner nations, to strengthen the Missile Technology Control Regime (MTCR), an existing voluntary multilateral arrangement, by:

# Creating a uniform set of ground rules for determining the range and payload of cruise missiles and unmanned aerial vehicles;

# Implementing tighter controls on stealthy cruise missiles;

# Examining and implementing tighter controls on countermeasure technologies specially designed to enhance cruise missile penetration; and

# Broadening current MTCR parameters governing controls on jet engines. Water Supplies Recommendations
The Information Analysis and Infrastructure Protection division of the new Department of Homeland Security should require all facilities to comply with the following standards:

    * All facilities (treatment plants, reservoirs, reservoir dams, water storage facilities and towers, pumping stations, water intake facilities, chlorine booster stations, and meter and valve boxes) should be fenced, well lighted, and monitored by surveillance cameras and motion detectors. All gates should be locked and barricades set up to stop trucks from running through them. Landscaped berms should surround reservoirs and storage facilities, with an approach slope greater than what a truck could negotiate.

    * To prevent hacking, supervisory control and data acquisition systems should not be connected to the Internet. Remaining cyber-security should be enhanced, and passwords should be changed regularly.

    * Fire hydrants and other entry points to the distribution system should be tamperproof. Surveillance cameras should be located onsite at key points, such as chlorine storage facilities, chlorine injection areas, filter beds, hazardous chemical and fuel storage areas, and finished water storage areas.

    * Redundancy should be built into all systems.

    * All sites should have a backup power source or a generator available.

    * Good communication and coordination among neighboring water utilities is needed. Valve cross-connections should be established. If one facility goes down the other could be used as a backup.

    * All reservoir and tank-access panels and vents should be tamperproof.

    * The public should be sensitized to watching for and reporting suspicious vehicles and people near water facilities, especially in remote locations.

    * There should be good communication and coordination with local police and fire departments. Police units should make mandatory stops at water facilities (treatment plants, reservoirs, reservoir dams, water storage facilities and towers, pumping stations, water intake facilities, and meter and valve boxes) during their beats at random intervals.

    * Finished water reservoirs should be covered.

    * There should be one-way valves installed at strategic points in the distribution system to prevent backflow.

    * Additional testing and monitoring of chemical agents delivered to the plant should be conducted to make sure that the contents are as indicated on the label.

    * Filtration and disinfection should be enhanced as much as possible to remove bacterial agents. Reducing turbidity levels will increase the removal of microbial and chemical agents.

    * Continuous monitoring for various contaminants in the influent and in the distribution system should be conducted for various agents. Israel has developed sensitive real-time water quality monitoring devices to test for various chemical and biological agents.

    * The chlorine delivery schedule should be known, and there should be a clear line of communication with the supplier to discuss changes in the schedule. Chlorine containers should be stored in secure, clean, ventilated, fire-resistant, sheltered areas away from other chemicals. Chlorine storage facilities should be inspected regularly. Police and fire departments should be aware of the location of chlorine storage so that they can respond appropriately in an emergency.

    * Alarm levels that trigger an investigative or emergency response should be established for all monitored parameters.

    * Pressure changes within the distribution system should be monitored for abnormalities. Also, agencies should monitor water quality for significant changes at raw water intakes, distribution system entry points, finished water storage reservoirs and key monitoring locations within the distribution system.

    * Conduct an inventory of wastewater and storm-water infrastructure, evaluating their position relative to sensitive locations, to see if it represents a security risk.

    * Tamperproof manholes and sensors should be installed in sewer and storm-sewer lines in sensitive areas.

Conclusions
Clearly, in a world where the number of threats is almost unlimited, prioritization is vital. One cannot defend perfectly against every possible threat, but it is feasible to strengthen existing defenses and create new ones, thereby making the most deadly type of attacks less likely. Though much more needs to be done, improved homeland security is possible.

Given that a determined attacker will be able to penetrate homeland defenses to some degree, it is clear that consequence management programs must be strengthened. However, preventive activities tend to lower the overall level of risk, even without advance knowledge of what the targets are, and should rank high on any policymaker's list of priorities. Thus, efforts to extend the nation's safety perimeter outward by improved border controls and cooperative agreements with other nations on land- and sea-based trade deserve support and funding.

Similarly, the United States should take advantage of its considerable competitive advantages in information technology by linking together its numerous public and private databases for data-mining and analysis.

In terms of specific vulnerabilities to concentrate on, those representing the greatest threats in terms of potential casualties, economic losses and the U.S. way of life are mass transit, maritime security, radiological threats, bioterrorism, and attacks against chemical plants. Policymakers and Congress should put measures to prevent such attacks at the top of their agenda with regards to new security measures and spending.

[1] Eunice Moscoso, "Small Planes Posing Big Terrorism Threat: Security Lax at Thousands of Airfields," The Atlanta Journal Constitution, June 2, 2002, p. B8; and Greg Schneider, "Private Plane Charters: One Way Around Air Security," The Washington Post, June 2, 2002, p. 1.

[2] In regard to the vulnerability of the pipeline and terminus facility see "FBI Practices Protection of Oil Pipeline," Fairbanks Daily News-Miner, June 6, 2002.

[3] James L. Ford, Radiological Dispersal Devices: Assessing the Transnational Threat, Strategic Forum No. 136, March 1998, Institute for National Strategic Studies, National Defense University.

Almost any radioactive material can be used to construct a radiological dispersal device, including fission products, spent fuel from nuclear reactors, and relatively low-level materials, such as medical, industrial and research waste. Weapons-grade materials (highly enriched uranium or plutonium) are not needed, although they could be used. A radiological dispersal device is designed to scatter radioactive debris over a wide area, thereby contaminating it and possibly causing casualties through radiation sickness, as well as denying its use to military forces or others for some period of time. The radiological dispersal device threat is threefold: the blast and fragmentation effects from the conventional explosive, the radiation exposure from the radioactive material used, and the fear and panic that its use would spread among the target group or population.

[4] See White House News Release, "President to Propose Department of Homeland Security," June 6, 2002. For detail, see Department of Homeland Security portal page.

[5] For detail on these recommendations see Securing Nuclear Weapons and Materials.

<< David Isenberg is an independent consultant on defense and security affairs. From 1998 to 2001, he was an analyst at DynMeridian where he worked on biological weapons arms control issues. From 1989 to 1998, he was a senior research analyst at the Center for Defense Information where he researched U.S.-Third World security issues, i.e., international arms trade, Persian Gulf, regional and low-intensity conflicts, power projection capabilities, military anti-drug efforts and covert operations. He has worked as a research associate at the Project on Military Procurement and as a research fellow at Business Executives for National Security. He served in the U.S. Navy from 1973 to 1977. He is an adjunct scholar at the CATO Institute, associate fellow at the Matthew B. Ridgway Center for International Security Studies at the University of Pittsburgh, research director of Military Insights, advisor on international security issues to The World (one-hour daily international news radio journal produced by BBC World Service, Public Radio International and WGBH Boston) and a member of the Council for Emerging National Security Affairs.

He has published more than 100 articles, papers, studies, television scripts, book reviews, and op-eds on defense, military, arms control, and international security issues, and testified before Congress and at professional military schools. He received his B.A. in International Studies from the University of Oregon and M.A. in International Affairs from American University.

Article copyright © David Isenberg; Center for Defense Information; all rights reserved]]></description>
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