Thursday, July 1, 2004
Confronting the Inevitable
Law enforcement agencies at local and federal levels are debating when and how to employ weapons from above to foil a terrorist attack. The answers are far from simple.
By James T. McKenna
Each week it seems that police departments in the United States are confronted with the prospect of new terrorist threats, with growing requirements to defend their jurisdictions from those threats.
Consider the last several months as an example.
In that time, the operator of a nuclear power plant in Vermont confirmed that radioactive rods of spent fuel are missing from the facility. This news came as a team at Harvard joined the list of researchers and experts warning that terrorists could fashion a crude “dirty” bomb from radioactive materials and commercially available components.
Officials in New Jersey said they are investigating suspicious activity along commuter train lines that lie at the heart of the key passenger and freight rail link for the Northeast. The activity included more than a half dozen instances of suspected systematic surveillance of those lines and came just two months after al Qaeda operatives killed hundreds by setting off bombs on commuter trains in Spain. In the wake of that news, U.S. officials ordered new precautions against such attacks on trains here.
As the wild fire season begins in western North America, officials there wonder with the report of each new fire whether terrorists are at work, using nature to destroy property and divert emergency resources.
A host of experts continues to warn that critical infrastructure such as power lines, water supplies and communications links—much of it under local jurisdiction—is vulnerable to attack.
Federal prosecutors have answered critics of the extended detention without charges of a U.S. citizen and suspected terrorist by alleging that the man plotted with other al Qaeda operatives to blow up apartment buildings by sealing them after puncturing their gas supply lines.
On a broader scale, top federal officials said they believe al Qaeda has nearly completed plans for new terror attacks in the United States. Attorney General John Ashcroft told the public “credible intelligence, from multiple sources, indicates that al Qaeda plans to attempt an attack on the United States in the next few months.” As a result, Ashcroft said, federal officials were seeking “unprecedented cooperation” from state and local law enforcement agencies.
Such requests are unsettling for officials at those state and local agencies. Most face flat or shrinking budgets, with little evidence yet of the millions in federal funding promised as aid in the domestic war on terrorism. Most also are short on officers to put in the field, in part because of those tight budgets and in part because many officers are deployed to Iraq and Afghanistan as activated members of U.S. National Guard and military reserve units. Many local and state officials also complain that they do not get the intelligence data they need to manage the threats facing them efficiently.
Pressed with such conflicting challenges—urgent new mission requirements, tight budgets, inadequate outside support—law enforcement agencies are searching for new tools and techniques to meet them. That search has led several to investigate the value of training and authorizing their aviation units to disrupt suspected terrorist attacks by firing on the suspects from above.
“To the extent that we’re dealing with different times, we do have to look at alternative means that we would consider to be the last resort,” said Capt. James Di Giovanna, commander of the Aero Bureau for the Los Angeles County Sheriff’s Department. “We have to look for other ways to neutralize or mitigate threats.”
That’s a delicate matter. Police departments throughout the United States have faced harsh criticism for years about their policies and practices of using deadly force against suspects. Widely publicized stories of innocent civilians riddled with police bullets and suspect deaths tinged with racisms have prompted many departments to adopt stringent rules for when an officer in the field is justified in using deadly force. Officers in some cases complain they’ve been abandoned by superiors after a shooting. This has left many paranoid about the liability and prosecution they may face if they draw and fire their weapon.
In that environment, firing on suspects from a helicopter seemed out of the question.
That began to change in the late 1990s. The U.S. Coast Guard, faced with tight budgets and a steady flow of drugs smuggled into the U.S. Southeast on small, fast boats, sought an effective countermeasure. A small team of volunteers in a seven-month period developed the operating tactics and procedures to enable the crew of a Coast Guard helicopter to stop smugglers by firing into their boat’s engines, disabling it. That approach proved successful and developed into the Helicopter Interdiction Tactical Squadron (See Douglas W. Nelms’ feature on HITRON on page 20.). Today, HITRON’s eight AgustaWestland MH-68A Stingray helicopters are flying counterdrug and homeland security missions daily, according to officials involved with the operations. HITRON is the only publicly identified federal agency authorized to use fire power from the air on missions in defense of the U.S. homeland.
HITRON’s operations have served as a laboratory at which other agencies can assess how airborne use-of-force tactics might be applied in their own operations. “For most civilian police departments, there is a high likelihood that they’ll be a first responder on the scene of suspected terrorist attack,” said Cmdr. Rich Jackson.
Police departments that have conferred with the Coast Guard and its HITRON unit include the L.A. County Sheriff’s Dept. and the cities of Los Angeles and New York, which are widely considered to be the leaders in developing civilian airborne use-of-force tactics. The federal Immigration and Customs Enforcement bureau in the Department of Homeland Security is investigating the matter, as are the FBI and the U.S. Park Police unit responsible for protecting sites in and around Washington, D.C. Other federal and local agencies are looking into airborne use-of-force applications quietly, officials familiar with those efforts said. Leaders at those agencies see the need to develop such tactics, these officials said, but fear being told not to pursue that work by higher-ups if their efforts gain a high public profile.
Considered by some the “guru” of airborne use of force, the Coast Guard’s Jackson (who was scheduled to retire at the end of June) said airborne use of force is a complex matter for any agency to undertake, let alone a civilian one answering directly to elected officials, the local populace and an aggressive and defensive civil rights community.
In the international arena in which HITRON first operated, rules are fairly specific about the conditions under which deadly force can be used from an aircraft.
The suspect target must be identified to as great a degree as possible—by establishing its operator, type and registration, for instance.
It must be clear the target is a rogue element. For a surface vessel, that might mean sailing under no flag of registry. For an aircraft, it might mean failure to file or follow a flight plan or respond to air traffic control. Post-September 11th, units focus on another characteristic of a “rogue”—that it threatens to violate security zones established by government agencies. The target must refuse to comply with orders to stop or change course. It also must be undeterred by one or more bursts of warning fire.
At that point, force can be authorized if a threat to life is imminent and there is no reasonable alternative to its use to avert that threat. The imminence of that threat is determined by a number of different factors. These include the location, speed and track of a vessel, vehicle or aircraft, as well as the proximity of the target to an identified security area.
A commander not directly involved in the heat of the chase typically also must authorize the use of force.
Generally, it is only acceptable to put the lives of people on the target at risk if it is impossible by any other means to preserve the lives of those the target appears to threaten.
Even when detailed and stringent procedures adhering to these rules are in place, terrible accidents can occur. In April 2001, for instance, Peruvian air force aircraft working in league with U.S. counterdrug, surveillance and intelligence teams shot down a civilian aircraft suspected of being a drug-runner. The aircraft, in fact, carried innocent civilians, including a family of missionaries, and had filed and was following a flight plan.
For all these reasons, the Coast Guard is cautious about HITRON’s operations. They would take exception to the term “deadly force” in this article, for the unit is authorized primarily to use force only against vessels, not the people on them. On occasion, the Robar .50-cal. weapon used on the MH-68A Stingrays is referred to as a sniper rifle. HITRON officials are insistent that that term is inaccurate and doesn’t apply to their operations.
Still, a gunshot is a gunshot and any one is potentially deadly. That’s just one of the constraints under which civilian police agencies must work in considering adoption of HITRON-like tactics. “We always have to be concerned with where each and every bullet goes,” Di Giovanna said. “Just because we’re in a different platform [that is, a helicopter] doesn’t change the rules. We have to be prudent in that regard.”
Some police aviators argued that they should be freed of such restraints and allowed to use force to counter threats to public safety, such as disabling cars used by criminals in high-speed chases. Di Giovanna dismisses that. He sees airborne use of force being authorized and used only in the most extreme conditions.
“We’re talking about using deadly force and putting our own people at risk,” he said. “We’re not going to use this for routine criminal incidents.”
But establishing the conditions under which airborne use of force is warranted by civilian departments is a real challenge. HITRON, in its counterdrug missions, confronts boats operating in open water, with few innocent bystanders nearby, and outside of clearly delineated norms of operation. Civilian aircrews might be confronted by one car operating normally among a hundred others, or a person or group of people among a crowd of thousands.
“How do you tell from the air if that guy in the boat on a reservoir is a terrorist threatening the water supply,” Jackson asked, “or Uncle Fred out for a quiet day of fishing?”
HITRON leaders are confronting that question now. The HITRON’s role in homeland defense is expanding. At the end of 2003, its Stingrays and crews were deployed to Anchorage, Alaska and New York City for counter-terror patrols. The unit also is taking a new mission as armed escorts for the Coast Guard’s new Security Response Teams. These teams are set up to deploy boarding teams of 40 or so sea marshals on Sikorsky HH-60 Jayhawk helicopters to intercept, control and inspect suspect vessels at sea, before they can threaten ports and populated areas. The teams also could be deployed at the site of potential security threats at points along the U.S. seaboard. The Stingrays would escort the Jayhawks and fly cover for the deployed teams. This new mission could mean an expansion of the Stingray fleet.
Is it inevitable that police adopt airborne use of force? Jackson thinks so. If they do not establish the need for such tactics with their civilian overseers, build them into procedures and get crews trained in a standardized manner, “it’s going to be hard to sell it when the need becomes clear.”
Di Giovanna said he harbors a different hope about whether it is inevitable that civilian agencies use airborne force.
“Frankly, I hope not,” Di Giovanna said. “I hope we don’t have to live in a society that has to use a civilian helicopter to fire at a suspect on the ground to keep us safe.”