Accidents happen. This is us true with respect to homeland security as it is in the rest of life. The December 2005 shooting of an airline passenger with bipolar disorder by federal air marshals should dispel any residual doubt on this point. With the luxury of hindsight, it would have been easy to criticize the marshals' decision to fire on a civilian. Fortunately, it seems that the response to this tragic incident was correct; the man appeared to present a genuine threat. The marshals were properly congratulated for their response.
Military leaders must take this lesson to heart. If the military stays involved in homeland security, it is likely only a question of time before someone in uniform accidentally kills a civilian. How military leaders respond to that incident will have a significant impact on the future effectiveness of homeland security efforts.
Since September 2001, military personnel have played an unprecedented rule in domestic security. Armed military personnel are now routinely in contact with civilians, in a variety of contexts. Hundreds of National Guardsmen have served in New York's subways and other transportation hubs. Pilots carrying live ordnance defend restricted airspace. Coast Guardsmen patrol harbors and guard bridges.
These efforts require a delicate balance. In many homeland security scenarios, potential threats are indistinguishable from the general civilian population. Err on the side of aggressiveness and you may hurt or kill innocent people. Err on the side of caution and you watch passively as the threat carries out its mission. In fact, some of the homeland security personnel "guarding" America are doing so with unloaded weapons, precisely because leaders are more terrified of the possibility of an accidental shooting than a terrorist attack.
Because this balance is so delicate, it must be sharply defined by political and military leaders. Trigger-pullers must understand instantly whether they are in a shoot or no-shoot scenario. To provide truly effective security, military personnel must not hesitate to use lethal force when appropriate. The decision to use lethal force must often be made before it is possible to confirm whether the threat is genuine.
When a serviceman uses lethal force, the only relevant question is this: was the decision to employ lethal force objectively reasonable? It does not matter if hindsight shows that the "threat" was in fact no threat at all. Unfortunately, politicians, the media, and senior leaders are all too willing to second-guess the decision. Police officers, who are most experienced in such matters, understand this point well. As former Seattle police chief Norm Stamper explains in his book, Breaking Rank: A Top Cop's Expose of the Dark Side of American Policing:
[Most police chiefs] regularly and systematically penalize police officers based not on the cops' intentions, or their state of mind, or even their actions, but on the impact-the unhappy or tragic or politically embarrassing effect of their actions . . . .
It is not difficult to imagine a scenario in which a justified use of force by homeland security personnel would produce "unhappy or tragic or politically embarrassing effects." Two to three aircraft a day cross into the restricted airspace around Washington, D.C. In June 2004, one of those aircraft penetrated far enough to prompt evacuation of the Capitol and the Supreme Court. The plane, which had a faulty transponder, was carrying the governor of Kentucky.
How would Congress and the media have reacted if the Air Force had killed a state governor? It's fairly easy to guess-there would have been outrage and a demand that someone be punished. It is understandable that the Air Force erred on the side of caution-but on the other hand, what if that plane actually had been loaded with explosives?
We must prepare now for the possibility of mistaken use of lethal force, and hard political decisions must he made. Is protecting the Capitol worth the risk of shooting down a plane full of innocents (or at least full of politicians)? If not, rules of engagement must he drafted accordingly, and those rules must be enforced.
On the other hand, if the answer is "yes," a reasonable decision to employ lethal force must never lead to discipline, or even criticism. Otherwise, the military services will err consistently on the side of caution, and "homeland security" will he an illusion.
Captain Hayes commanded a National Guard unit performing homeland security duties in the Washington, D.C. area. In civilian life, he is a lawyer in Montgomery, Alabama.