Homeland Security Unplugged?

From the producers of Big Brother, comes a new "unscripted" television series called Homeland Security USA, which begins its 13-week run on the ABC network on January 6 at 8 p.m. eastern time. This latest addition to the reality genre, according to news reports, "tracks the efforts of the federal workers responsible for safeguarding the nation's airports, borders, waters and any place else threats arise." Here's a promo from YouTube:

UPDATE: New York Post TV critic Linda Stasi gives the show a less than ringing endorsement here.

Holder's Controversial Pardon Recommendations

Following up on an earlier post, The Hartford Courant weighs in on the AG nomination.

Martial Law for Game-Changing Strategic Shocks?

One of the government's prime constitutional responsibilities is to insure domestic tranquility. Against this backdrop, New York Post financial columnist John Crudele is concerned that martial law might be invoked in the event of a further domestic economic meltdown or other forms of "strategic shock." The 52-page monograph he's referring to, which apparently was a lump of coal in his Christmas stocking, was released by the U.S. Army War College's Strategic Studies institute, and can be downloaded here. The report warns military decisionmakers (presumably USNORTHCOM) to prepare for the inevitability of future disruptive, unconventional shocks, i.e., the so-called Known Unknowns. In pertinent part, the author says that...

Widespread civil violence inside the United States would force the defense establishment to reorient priorities in extremis to defend basic domestic order and human security. Deliberate employment of weapons of mass destruction or other catastrophic capabilities, unforeseen economic collapse, loss of functioning political and legal order, purposeful domestic resistance or insurgency, pervasive public health emergencies, and catastrophic natural and human disasters are all paths to disruptive domestic shock...A whole host of long-standing defense conventions would be severely tested. Under these conditions and at their most violent extreme, civilian authorities, on advice of the defense establishment, would need to rapidly determine the parameters defining the legitimate use of military force inside the United States.

The military has increasing played a major role in disaster relief, but the kind of doomsday scenario outlined in the monograph raises a host of legal issues, under the Posse Comitatus Act and other laws.

DHS Presents 5-Year Threat Analysis

The Associated Press claims to have gotten its hands on a 38-page internal "Homeland Security Threat Assessment" covering the next five years. According to an AP article published on Christmas Day, the report's findings suggest that the "terrorism threat to the United States will be driven by instability in the Middle East and Africa, persistent challenges to border security and increasing Internet savvy" by terrorist groups. DHS considers a WMD attack to be the gravest threat, and "intelligence officials also predict that in the next five years, terrorists will try to conduct a destructive biological attack," according to the AP article. The document also forecasts a greater likelihood of cyber attacks over the next five years "as hacking tools become more sophisticated and available."

Fort Dix Plotters Found Guilty

This week, a federal jury in Camden, New Jersey found five men planning to mount a terrorist attack against soldiers at the Fort Dix military base guilty of conspiracy, but not guilty of attempted murder. The men, Muslim immigrants who lived in the Philadelphia/South Jersey area, face an April 2009 sentencing where they could get life. Recall that the plot was uncovered by a Circuit City employee who notified authorities about some suspicious video footage. Subsequently, "the FBI asked two informants — both foreign-born men who entered the U.S. illegally and had criminal records — to befriend the suspects. Both informants were paid and were offered help obtaining legal resident status. During the eight-week trial, the government relied heavily on information gathered by the informants, who secretly recorded hundreds of conversations." The jury rendered its verdict on December 22 after about a week of deliberations.

Meet the New Boss...

Despite being a border-state governor, Janet Napolitano (the Democrat tapped to head the Dept. of Homeland Security) has given a lot of lip service to border security, but not much more, other than vetoing numerous border-enforcement measures coming out of her state legislature. Of course, there has also been a generous amount of lip service on this subject from Republicans at the state and federal levels, too. Yet The New York Times editorial board sees it another way:

If Gov. Janet Napolitano of Arizona is confirmed as homeland security secretary, she will leave behind a state in full Republican control, with immigration zealots embedded in both house of the Legislature, and not enough moderates to go around. This is the down side of President-elect Barack Obama's decision to bring Ms. Napolitano to Washington...Ms. Napolitano's successor as governor would be the secretary of state, Jan Brewer, a Republican who is expected to be far more willing to sign whatever tough immigration measures get to her desk.

Of course, it could also be argued that the Times editorial board is embedded with open-border zealots who opposed even the most reasonable legislation to protect America's borders. A federal agency chief is to a large degree more like a mouthpiece or figurehead for polices crafted by the White House, with the actual work carried out by the behind-the-scenes staff, including the career civil service employees. But be that as it may, given the recent horrific events in Mumbai, let's hope the incoming administration is serious about border security. Homeland security and border security, two sides of the same coin, aren't they? The general election campaign offered the American people virtually no discussion of immigration, legal or illegal--one of many missed opportunities. During the primary season, Obama came out in favor of drivers' licenses for illegal aliens, however, so draw your own conclusions.

Separately, incumbent DHS Secretary Michael Chertoff announced on December 17 that the government has completed 500 miles of the long-delayed fencing along the Southwest border, and that the administration expects to have at least 600 miles completed by Obama's January 20th inauguration.

In the meantime, Attorney General designee Eric Holder may run into some difficulties in the confirmation process over his involvement with eleventh-hour Clinton administration pardons while then serving as deputy attorney general. Questions have been raised over his role in the controversial pardons of fugitive financier Marc Rich and well as 16 FALN terrorists. It's also interesting how the candidate of "change" has tapped so many Clinton retreads for his Cabinet.

Reality TV?

Hill Street Blues on steroids. That's how we would describe The Shield, which recently ended its seven season, 88 episode run. Shot documentary style with mostly hand-held cameras, The Shield definitely pushed the envelope for basic cable in its gritty and sometimes gruesome content. It provided more compelling television content than the Sopranos in its latter stages, even though The Shield aired on the FX network and never achieved the audience of the HBO series.

If you're unfamiliar with The Shield, it followed the activities in and around an inner-city police station house known as "the Barn," situated in the fictional Farmington district of Los Angeles. The creator of The Shield apparently got his inspiration from the Rampart Division police scandal in LA.

The show was exciting and intense. But keep in mind that the viewer has to suspend disbelief, because the whirlwind of events in the Barn during one eight-hour shift might take months or years to resolve, even if they ever occurred in the real world.

The excellent ensemble cast was led by a bulked-up Michael Chiklis who portrayed the rogue detective and master manipulator Vic Mackey, the head of the corrupt but effective anti-gang "Strike Team." Mackey was the ultimate take-no-prisoners, anti-hero who managed to scheme and navigate the gauntlet of the streets, the law enforcement bureaucracy, and his complicated family life, and who among other things killed a fellow officer who was going to blow the whistle on the Strike Team's crooked dealings. This act, occurring in the very first episode, and the ensuing cover up, in part drove the show and the relationships of the original Strike Team members and their adversaries on both sides of the law for its entire run. As the Wikipedia summary puts it, the Mackey character "steals from drug dealers, beats and tortures suspects, and has committed murder more than once." To say that the show posed legal, ethical and moral issues is putting it mildly.

Unlike the gripping intensity of most episodes, the series finale seemed a little flat (as these finales often are), leaving a few loose ends in the various plot threads. Moreover, despite Internet speculation, the expected bloodbath never materialized, leaving most of the characters intact--raising the possibility that The Shield could be brought back as either a theatrical or TV movie. In fact, there has even been some talk of a spin-off featuring Det. Dutch Wagenbach, the barn's somewhat awkward but earnest criminal profiler and "Everyman," as convincingly portrayed by Jay Karnes.

Over the run of the show, the Strike Team found itself the subject of numerous ongoing internal investigations (no surprise there). Although the team managed to wriggle off the hook time and again, the handwriting was on the wall that Mackey was going to be thrown off the force. In the final season, Mackey wormed his way into a job with Immigration and Customs Enforcement (ICE) by orchestrating the bust of a major Mexican drug cartel. As part of this arrangement, ICE also gave him full immunity for all of his past acts, albeit without knowing the full ramifications of said deal. After signing the apparently binding deal, he put all his transgressions (a long litany) on tape in the ICE offices, including the murder of the fellow officer.

While acknowledging that it's just an over-the-top (but very watchable) TV show, this turn of events raised a number of questions. First, we wondered whether in general, such a blanket immunity deal was plausible or even feasible in the real world? And would a murder confession vitiate any immunity agreement? Do the feds have the authority to "shield" Mackey or his cohorts from state crimes? Could Mackey's recorded statements be used as evidence against the other surviving member of the original Strike Team, Vic's loyal foot-soldier and usually stoic "partner in crime," Det. Ronnie Gardocki (David Rees Snell), who was busted by the LAPD in the final minutes of the series finale.

We asked several expert criminal law bloggers what they thought about how this immunity arrangement might or might not affect the prosecution of either of the two Strike Team detectives.

Kent Scheidegger of the Crime and Consequences blog told us that "An immunity agreement with a federal agency cannot confer 'transactional immunity'--a complete exemption from prosecution--for a state crime. There may be limitations on use of the person's statement, both directly and derivatively, but if the state authorities can produce evidence from demonstrably independent source, they can go ahead."

Attorney Michael Kraut who writes the Los Angeles Criminal Defense Attorney blog responded that "The short answer is ICE is a federal agency and they my not grant state immunity, only immunity for federal crimes. Murder is a state crime unless the victim is a federal agent."

LA attorney Dmitry Gorin suggested that the authorities "would almost never do this" but noted that one officer in the Ramparts scandal "got a deal to implicate his former partners with understanding that he would not be prosecuted for the crimes he confessed to." This officer was prosecuted on other charges, however, but received a lesser sentence.

And Joel Jacobsen of the Judging Crimes blog noted that "in general terms what you describe isn't rare. As for the partner getting blindsided that the other criminal made a deal with authorities first--that happens ALL the time. You don't want to be the last one standing when the music stops. Prosecutors try to make deals with the less-culpable criminals in order to nail the more-culpable, but it's sometimes hard to figure out in advance who's who. Vic's statements could be used against his ex-partner/fall guy only if Vic himself testifies in court. That's the holding of 2004's Crawford v. Washington. No, a murder wouldn't vitiate the immunity agreement, if it's really written as broadly as you suggest. Judges would enforce the deal as written. (That's why immunity agreements aren't, or shouldn't be, written so broadly.) The feds couldn't shield Vic from state prosecution. They don't have that power. Without researching the matter, I think it's doubtful that he could prevent state prosecutors from using the immunized statements as evidence against him, but it's not out of the question."

In any event, The Shield DVDs are highly recommended, especially for the show's rich characters and dialogue, with the advisory that the content is for adults only.