Cyber Success Demands DHS and Pentagon Get Along

By Kevin Coleman — DefenseTech Cyber Warfare Correspondent

Military and security experts agree that cyber attacks provide a means for potential adversaries with limited resources and capabilities to overcome the significant U.S. conventional military advantages. It is this concept that has security professionals sounding the alarm about our exposure. The rapidly evolving threat of cyber attacks on the United States pose significant technical questions that must be addressed, but the problem-set does not stop there. Cyber threats also present privacy, civil liberties, legal, policy, and strategic operational issues that are in many cases unique and quite challenging. 

One point to address this growing threat is the Department of Homeland Security (DHS). The Department of Homeland Security’s state-of-the-art National Cyber Security and Communications Integration Center is the focal point of their efforts. Recently, DHS and the Department of Defense (DoD) signed an agreement under which the two agencies will work together to deal with the growing number of cyber security issues. At the same time DHS signed a second, similar agreement with the National Security Agency (NSA) to work together in an effort to strengthen the nation’s defenses against cyber attacks.

Historically speaking, collaboration has not been a strong point between government entities. Will the criticality of defending the cyber infrastructure of the United States allow these three organizations to work together seamlessly or will existing doctrine, conflicts, politics and egos get in the way? That is the big question.

  • Byron Skinner

    Good Morning Folks,

    The big question might be egos, but the really big question does there agreements pass muster with the US Code?

    DHS and NSA perhaps, pending any existing agreements of cooperation between the NSA and the CIA, 1948 National Security Act, which would on the surface prohibit the DHS and the NSA from exchanging any information. But any agreement(s) between DHS and DoD is clearly in violation of several parts of Federal Law, you can start with the 1876 Posse Comitatus Act.


    Byron Skinner

    • blight

      How does DoD passing intel to DHS violate Posse Comitatus?

      Also, there is an exemption in Posse Comitatus for nuclear materials 18 U.S.C. 831. If there is a legal revision, it will be easily removed.

      Snippet of the section of 18 USC 831:

      (e)(1) The Attorney General may also request assistance from the
      Secretary of Defense under this subsection in the enforcement of
      this section. Notwithstanding section 1385 of this title, the
      Secretary of Defense may, in accordance with other applicable law,
      provide such assistance to the Attorney General if -

      (A) an emergency situation exists (as jointly determined by the
      Attorney General and the Secretary of Defense in their
      discretion); and

      (B) the provision of such assistance will not adversely affect
      the military preparedness of the United States (as determined by
      the Secretary of Defense in such Secretary’s discretion).
      (2) As used in this subsection, the term “emergency situation”
      means a circumstance -

      (A) that poses a serious threat to the interests of the United
      States; and

      (B) in which -

      (i) enforcement of the law would be seriously impaired if the

      assistance were not provided; and

      (ii) civilian law enforcement personnel are not capable of

      enforcing the law.

  • Will

    Per Wiki, 10 USC 1385 limits the use of the Army & the Air Force while 10 USC 375 limits the use of the Navy & the USMC as well. NSA is separate from all the armed services & it’s members are civilians, not uniformed.
    Moving on from these legal considerations, I have to wonder why DHS needs a separate agreement with NSA when it is part of DOD.

  • A. Nonymous

    Wow, Byron, I didn’t realize that, in addition to all or your other areas of expertise, you were also an expert in constitutional law. You truly are a renaissance man.


  • Byron Skinner

    Good Morning Folks,

    To Bright. The operative phrase in Sec. 18 of US Code is “Attorney General” who would be operating under the direction of the President. The President, acting as Commander and Chief or Congress for that matter can authorize the use o the military to intervene in a domestic emergency. Re. Hurricane Kartina and the Civil Rights enforcement and Civil disorder problems of the 1950’s and 1960’s.

    The exemption for Nuclear Materials goes back to the 1940’s when a civilian nuclear power industry was being developed and the Government decided that all nuclear material be it weapons grade, medical, commercial, research, or civilian power reactor fuel be under the control of a Civilian Department of the Federal Government from the mining to disposal of used nuclear materials. Since the old AEC had Federal (non military), civilian as well as military ties this issue need a legal umbrella.

    Since nearly all of what the NSA does is classified and it relationships, budget sharing and information sharing agreements with other Governmental Agencies as well as defense is unknown, a specific exemption would be expected. If you recall the NSA under its charter is prohibited in listening in on transmissions that are between parties on American soil. Before all of you get excited, yes I know there are now legal exceptions to what the charter says.

    To Will. I would think that to make the relationship between the DHS and the NSA/DoD some form of a public law would be necessary. This is a relationship that is begging for suits in US courts.

    To A. Nonymos. I would reserve my statements, not my background of which you know little or nothing but to what I’m saying.


    Byron Skinner