What a disaster, the constitutional reform for the protection of critical infrastructure

The purpose of this reform was to fill an existing gap, where states of emergency are essentially reactive, meaning their implementation is to mitigate events that have already occurred. The constitutional reform aimed to provide the Executive with a tool that would allow it to increase the security levels of critical infrastructure in the face of a strategic alert or alarm situation generated by the national intelligence system. The idea is not bad. It would also have allowed for the necessary modifications to the intelligence (civil) system, so that it could be what it needs to be and do what it needs to do.

When it seemed that, for the good of the country and its future, we were finally entering the debate that we so desperately needed on national security and defense, we ended up in a spectacle of disorganization, sloppiness, ideology, and youthful egos. The first thing to highlight is that no one, absolutely no one in the Armed Forces has any interest in participating in constitutional states of emergency, much less in tasks related to the protection of critical infrastructure.The Armed Forces have observed from the outside, in their capacity as subordinates and non-deliberative entities, how discussions are held to further expand their areas of mission and have only provided technical support to their chain of command when consulted. Now, the Armed Forces continue to fulfill their functions, hoping that political leadership will reach an agreement with Congress and clearly specify what they will order.

The discussion that took place over the last two weeks is a discussion of civil society that has developed in Congress, the place where the major issues of the country should be deliberated, and through the media that have welcomed the specialized debate. From the transcription of the interventions of various actors in committees and parliamentarians in the chamber, it is clear that we need more and better debate on national security and defense, with greater technical and specialized input. Furthermore, several media outlets led by El Mostrador have provided a platform to make these issues public.

What happened in these two weeks?

In 2019, Senators Aravena and Pugh initiated a legislative process to produce a constitutional reform that would incorporate an intermediate state of constitutional exception called “alert.” The purpose of this reform was to fill an existing gap, where states of emergency are essentially reactive, meaning their implementation is to mitigate events that have already occurred. The constitutional reform aimed to provide the Executive with a tool that would allow it to increase the security levels of critical infrastructure in the face of a strategic alert or alarm situation generated by the national intelligence system. The idea is not bad. It would also have allowed for the necessary modifications to the intelligence (civil) system, so that it could be what it needs to be and do what it needs to do.

During the legislative process, the original proposal was completely distorted and changed from an intermediate state of alert to a presidential authority (different articles of the constitution). The concept of alert provided by the intelligence system was eliminated, and all mention of command, control, and coordination of the Armed Forces acting in a state of normality within the national territory was removed, under a discretionary authority of the President of the Republic, without political checks, for 60 days.

When the final product was in sight, the Armed Forces, knowing that the devil is in the details, consulted their opinion with civil authorities and expressed, through the appropriate command channels, their serious concerns about implementing a measure of this nature. The major issues were as follows: What is the command, control, and coordination structure for military operations of this type? Who provides the necessary intelligence to produce military planning? Under what legal regime will military personnel operate, and what safeguards do they have when ordered to fulfill a mandate to protect critical infrastructure, with weapons, in times of normality? What rules of engagement (ROE) will be applicable, not for personal defense, which is absolutely clear, but the ROE for the obligation to fulfill a mandate to defend critical infrastructure? The result of this exchange of specialized information was surprising.

In less than 48 hours after the parliamentary processing of the constitutional reform was completed, the Minister of the Interior presented a “substitutive veto” from the President of the Republic that completely modified the wording of the reform. The substitutive veto was approved in less than 24 hours of processing in the Senate of the Republic and was rejected the next day by the Chamber of Deputies. According to legislative regulations, under these circumstances, the constitutional reform fell through.

The new wording of the substitutive veto at least addresses the main gaps that the initially approved text had, clearly defining that the Armed Forces will be under the command of a military officer and that there will be a regulation that addresses the significant details raised by the Armed Forces to implement this type of military operations.

Some reflections and conclusions from this process

First, it is absolutely clear and common sense that, in the 21st century, the concept of national security is a continuous whole that does not differentiate the origin of an aggression but rather its effects. The political responsibility to provide the public good of security to the Republic and its inhabitants lies with the executive branch which must prevent, reduce, mitigate, or reverse the effects of an aggression, using all the instruments of national power available to the state, including the military instrument. Estonia was not interested in knowing the physical location of the hackers who paralyzed the entire public system. It did not matter whether it was an external or internal aggression; what was relevant was the effect. It had to use all the instruments of its national power to counteract the aggression. In 2014, Russia annexed Crimea in a maneuver condemned by the entire democratic world. The “little green men” operating within Ukraine, without uniform insignia, merely waving a cause, ended up causing the loss of Ukrainian sovereignty and territorial dismemberment, disguised as a democratic referendum and self-determination of peoples. It is time for us to start debating how we coordinate all the multi-agency capabilities of the state, all its capacities, and all its power when it comes to national security.

The second reflection is on the national intelligence system. This must be a national priority. It is not possible for us to remain trapped in sterile discussions and not take action to design and build an intelligence system that serves and is useful to decision-making and planning processes. The hybrid we have today has proven not to work. The executive has the word and the urgency, and I hope we do not find ourselves in urgent need of quality intelligence before we materialize the reforms in this area.

The third reflection is that we must initiate the debate on the permanent institutional framework for national security. The executive branch needs, to coordinate all agencies and all state capabilities, a permanent and specialized institution that advises, coordinates, integrates the various ministries, and articulates the national security of the republic, while also becoming the main civil advisor to the President of the Republic on these specialized matters. The shortcomings in the current structure are evident in the southern macrozone. There have been attempts to create “special delegates,” “campaign ministers,” and none of these figures are useful, as they are ad hoc appointments that are not contemplated in our legal framework, lacking specified authority and operational or administrative responsibility.

The fourth reflection concerns the civil leadership of defense and the Armed Forces. When it was thought that civil leadership of the Armed Forces was finally being demonstrated where it needed to be, we fell into the same errors of the past. The inability to look beyond the contingency in a small, short political fight. It is time to start acting with more seriousness and professionalism. For too long, the debate has been confined to matters that are not relevant to national security and are merely cosmetic. Now was the time for the leadership of the Ministry of Defense and especially the Undersecretariat of Defense to demonstrate their capacity in a challenge of leadership and direction. The Undersecretariat of Defense was to produce the Risk and Threat Assessment within the country to safeguard critical infrastructure. It was to generate, in conjunction with the Ministry of the Interior and Public Security, the regulation that provided for the constitutional amendment. It was to generate the primary planning for the protection of critical infrastructure, containing the political guidelines that would direct the military response to the problem posed, including the rules of engagement for fulfilling the mandate to protect and safeguard, not the lives of military personnel, but the infrastructure that constitutes the mandate.

All of this fell apart due to the improvisation and sloppiness of linking a constitutional reform with a contingency procedure, such as requesting the extension of a constitutional state of emergency.

Finally, we continue to wait for us to finally start debating the important issues of national security and defense. Civil society is called to lead this process through its elected parliamentarians, a democratic government, and academics and specialized study centers. We are aware that the Armed Forces do not like to be involved in states of emergency, electoral acts, much less the protection of critical infrastructure, but they are obedient and will fulfill the tasks assigned to them. Now it is the turn of civil political leadership to demonstrate that they are capable of directing, coordinating, and articulating the production of the public good integral national security of the republic.

Richard Kouyoumdjian
Vice President AthenaLab

Source: El Mostrador