ESSAY | Critical Infrastructure: Risks and Challenges Posed by This Constitutional Reform

El Líbero, Friday, July 15, 2022

Approving a project that gives political authorities free rein to deploy the Armed Forces for 60 days without needing to seek permission from Congress is a very risky gamble.

After a political deliberation that took several years, and following a long slumber that ended due to the insecurity experienced in Chile, in the northern macrozone, and the insurgency in the southern macrozone, the government, composed of individuals who previously denied the salt and water to the previous administration, achieved the approval of the constitutional reform that empowers the President of the Republic to order the Armed Forces to safeguard the critical infrastructure of the country, in response to alerts from the intelligence system regarding potential threats.

Reviewing the discussion and participation instances of various actors in committees from both chambers, the positions of the Defense Ministers who served during the processing of this constitutional reform stand out. 

Indeed, the arguments presented in committees by representatives of the Executive in favor of this reform pointed out that “the available workforce in the barracks” could assist in relieving Carabineros from the duties of safeguarding critical infrastructure, thereby freeing up approximately 3% of the effective police force to address public order control needs.

They aimed to provide guarantees that the Armed Forces would respect human rights. They indicated that, while it is true that the participation of the Armed Forces would free up “workforce for Carabineros,” it is also true that the purpose of the constitutional reform was to ensure the protection of infrastructure and that the Armed Forces had versatile capabilities to fulfill that function.

Well, despite the fragility of the arguments from the Ministry of Defense, the reform was approved, and it is now a reality and it is necessary to assess the challenge of leadership and management that the Ministry of Defense assumes in this new situation. 

The constitutional reform, which apparently aims to protect us from internal enemies, since its objective is not clearly detailed anywhere, grants the President of the Republic 60 days, extendable for another 60, to order the participation of the Armed Forces for the protection of the country’s critical infrastructure.

The Armed Forces of Chile do not operate independently and have binding planning processes. This means that the civil political leadership of the Armed Forces must produce the primary planning that constitutes the political guidance and direction for the Armed Forces. This primary planning, the responsibility of the Undersecretary of Defense, must expand its scope beyond what is established in Supreme Decree No. 113 of the Ministry of Defense from 2014, now to encompass internal security that may threaten the critical infrastructure of the republic.

The Armed Forces, through the Chief of the Joint Staff, obeying the order that constitutes the primary planning, produce the secondary planning that is the solution to the military problem assigned to the Armed Forces by the political leadership.

This planning process is binding because the primary and secondary planning constitute the political and strategic foundations for the development of the Armed Forces’ capabilities, which must be financed through legislative processes in Congress.

The development of strategic capabilities that the Armed Forces currently possess does not include the tasks of safeguarding critical infrastructure in times of peace and normalcy, given that this presidential authority did not exist. It is now up to the Ministry of Defense to determine the needs to fulfill the civil political orders given to the uniformed personnel.

Let’s consider an example. The staffing levels of the Armed Forces financed under subtitle 21 of the budget law are established by law and must be paid for by the Budget Directorate of the Ministry of Finance. Imagine that the Santiago Metro is designated as critical infrastructure to protect. The Santiago Metro covers 140 kilometers of tracks formed by 6 lines, in 23 municipalities. It has 136 stations and serves an average of just over 2 million people daily.

Setting aside the protection of the tracks and the power plants that enable the Metro’s operation, let’s think only about the 136 stations with a flow of more than 2 million people daily… At a minimum, there should be a presence of a non-commissioned officer with two pairs of sentinels on 4-hour shifts stationed at fixed points with relief, which implies 5 people per 3 daily shifts, totaling 15 personnel per station.

In the absence of a state of emergency, a shift every three days should be considered, which implies 45 people to cover the minimum security of a Metro station. Since we are talking about 136 stations, just for that safeguarding action, 6,120 people are required across 23 municipalities, along with the necessary logistics for relief. Where will that personnel come from? What specialized functions will be left unfulfilled for 60 days, extendable for another 60? How much does it cost the country to have highly skilled technicians performing fixed sentinel duties? If the Armed Forces will be severely restricted in using their weaponry, wouldn’t it be more convenient to seek alternative solutions to fulfill that function?

Before proceeding further, it is important to mention that the Armed Forces currently do not have the necessary personnel to train for fundamental tasks while also fulfilling states of emergency and this new reality generated by the protection of critical infrastructure.

Ask how the Army is doing regarding the staffing of conscripts (not very suitable for these functions), professional soldiers, non-commissioned officers, and officers. I mention this because they, along with the Marine Infantry and Aviation Infantry, bear the brunt of the problem. Inquire whether adequate budgets are allocated to perform these functions, and if not, what is being neglected to be able to go out and protect what is critical, property of Chileans who do not want to safeguard what Chile needs to function.

Now let’s examine the command and control problem. In the absence of a constitutional state of emergency that empowers the President to delegate his authority to a chief of national defense, who, by virtue of that delegation, reports directly and exclusively to the president, we have a significant legal void. Who assumes responsibility for planning and executing protection measures? What authority will they possess?

That chief of defense has an explicit prohibition against interfering with human rights, the constitutional rights of citizens, and also against intervening in public order control.

There are three authorities in each municipality: the elected Regional Governor, the appointed Presidential Delegate, and the Mayor. It is unclear what responsibility each has in the protection of critical infrastructure, what coordination or authority relationship they have with a chief of defense without constitutional exception. Under these conditions, the safeguarding problem has no solution.

The command and rules of engagement are the next problem to solve. What capabilities do the Armed Forces provide that the police do not possess? The answer is simple: overwhelming force and lethality. However, in the discussion of the reform, it was mentioned that the most relevant capacity was “available workforce in the barracks.”

Here we are facing a serious error that could cost us dearly as a society. The Armed Forces operate differently than the police. The Armed Forces are assigned tasks or missions that must be fulfilled in their entirety. If the mission is to conquer, they conquer; if it is to protect, they protect, and the evaluation of the completed task is that the protected asset continues to function without being affected.

The design of the rules of engagement must account for this reality. The Armed Forces must be given appropriate rules of engagement for fulfilling their mission. They are not for the personal defense of their personnel, which is guaranteed by the principle of legitimate defense. This will be a greater challenge for the political leadership of the Armed Forces, as civil command over the Armed Forces is at stake by assuming not only political responsibilities but also the criminal and civil liabilities that arise from their orders.

The third argument is the determination of when a strategic capability is achieved and can be relied upon, especially in the joint domain. For this to occur, personnel, material, doctrine, and training must be brought together, at a minimum.

It is not only about the capabilities that each defense institution provides, but also the ability to train command posts and joint forces that must be deployed to protect critical infrastructure, anywhere in the country and with minimal notice. We are necessarily talking about rapid deployment forces. To train those capabilities, it seems essential to modify Law 20.424 so that the Chief of the Joint Staff is assigned the force planned for these activities not only in the states of emergency indicated by law but much earlier.

If it is to be required that the force be trained to act in normal conditions, that chief of defense must have command in times of normalcy, and now the challenge for the political leadership of defense is to generate the appropriate legal changes and allocate the necessary resources.

Finally, to conclude this part, the most important factor. This entire process of protecting critical infrastructure is triggered by the intelligence assessment that the country is facing a serious threat to critical infrastructure emanating from the intelligence system.

For the Armed Forces to carry out their duties, both the risk and threat assessments and the political guidelines that the law requires the Undersecretary of Defense to produce must be aligned with the Undersecretary of Internal Security and properly informed by the national intelligence system.

There is immense work to be done. The leadership of the President of the Republic and his Ministers of the Interior, Public Security, and Defense will be intensely tested to propose a national security architecture that includes the intelligence system and is of a permanent nature. Without that civil architecture, which assumes political and legal responsibility for the intelligence information and alerts issued, no uniformed personnel should be sent into the streets, as they would lack the political and legal guarantees to fulfill the function assigned to them.

The Armed Forces of Chile are obedient and do not deliberate. The current Minister of Defense exercises the political leadership of national defense. Political leadership involves not only giving orders, but also ensuring that the men and women of the national defense institutions, young people from all over the country, from all ethnicities and religions, can serve the Fatherland under the best possible conditions, but above all, if they find themselves in the position of fulfilling their oath of service to the point of giving their lives, that commitment has meaning, is valued, and serves a purpose worth pursuing.

Deploying the Armed Forces on the streets in normal conditions is a complex, specialized, very costly, and, above all, immensely risky gamble. The challenge is set for the civil political command of the Armed Forces.

To conclude, approving a project that gives political authorities free rein to deploy the Armed Forces for 60 days without needing to seek permission from Congress is a very risky gamble. There are very wise reasons that go beyond the efficiency and effectiveness of being able to deploy them with greater freedom.

The Constitution, among other things, seeks to protect us from the excesses to which the executive authority may fall, excesses that can occur if the definitions of what is critical are not clearly agreed upon, as well as if it is not clearly defined what constitutes a “serious risk” to critical infrastructure, who determines it, and what political authorities will order the Armed Forces to do.

For this reason, the main aspects related to the Armed Forces must always be clearly stated in a Constitution, as well as the exceptions and constitutional guarantees. If this is not done, we are one step away from becoming Venezuela, Cuba, China, Iran, or North Korea, countries where political authority has absolute and total control over the military apparatus, which is ultimately the strongest power that always exists in a country, as it is designed to deter external attacks, defend sovereignty, defeat enemies, and uphold national interest wherever it may be located.

Richard Kouyoumdjian
Vice President AthenaLab

Source: El Líbero