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Legal Aspects of WMD Events. October 3, 2002 Michael J. Bowers. Legal Aspects of WMD Events. Background Jurisdiction Martial Law Mutual Aid Agreements Quarantine Evacuation Official Liability. The Threat!. Weapons of Mass Destruction. “The purpose of terrorism is to terrorize.”. - PowerPoint PPT Presentation
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October 3, 2002October 3, 2002Michael J. BowersMichael J. Bowers
R.A.M. & Associates LLC
Legal Aspects of WMD Events
• Background
• Jurisdiction
• Martial Law
• Mutual Aid Agreements
• Quarantine
• Evacuation
• Official Liability
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““The purpose of terrorism is to The purpose of terrorism is to terrorize.”terrorize.”
““The purpose of terrorism is to The purpose of terrorism is to terrorize.”terrorize.”
Mao Tse TungMao Tse TungMao Tse TungMao Tse Tung
Weapons of Mass Destruction
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WMD ThreatWMD Threat
• Terrorist GoalsTerrorist Goals– disrupt societydisrupt society
– produce mass panic and terrorproduce mass panic and terror
– get publicityget publicity
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• It is cheap• It is mobile• It is low tech• It is deniable• It is more effective than the
political process• It is less drastic than total
warfare• and IT WORKS!
Terrorism Exists Because . . .Terrorism Exists Because . . .Terrorism Exists Because . . .Terrorism Exists Because . . .
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WMD ThreatWMD Threat
• Easy to obtainEasy to obtain
• Cost-effectiveCost-effective– cost per casualtycost per casualty
• Nuclear $2 millionNuclear $2 million• Chemical $2 thousandChemical $2 thousand• Biological $2Biological $2
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WMD ThreatWMD ThreatUnique FeaturesUnique Features
• FearFear
• Lack of TrainingLack of Training
• Lack of EquipmentLack of Equipment
• Potential for Mass CasualtiesPotential for Mass Casualties
• Psychological CasualtiesPsychological Casualties
• Crime Scene/Evidence CollectionCrime Scene/Evidence Collection
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Aum ShinrikyoJapan
Aryan MovementUSA
HamasPalestinian
Militia Movement
USA
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U.S. Militant Islamic Groups
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Terrorism - DefinitionsTerrorism - Definitions
““The unlawful use of force or violence The unlawful use of force or violence
committed by a group or individual against committed by a group or individual against
persons or property to intimidate or coerce persons or property to intimidate or coerce
a government, the civilian population, or a government, the civilian population, or
any segment thereof, in furtherance of any segment thereof, in furtherance of
political or social objectives.”political or social objectives.”
““The unlawful use of force or violence The unlawful use of force or violence
committed by a group or individual against committed by a group or individual against
persons or property to intimidate or coerce persons or property to intimidate or coerce
a government, the civilian population, or a government, the civilian population, or
any segment thereof, in furtherance of any segment thereof, in furtherance of
political or social objectives.”political or social objectives.”
Federal Bureau of InvestigationFederal Bureau of InvestigationFederal Bureau of InvestigationFederal Bureau of Investigation
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Terrorism - DefinitionsTerrorism - Definitions
“Transnational” terrorism is terrorism that
transcends national boundaries. Transnational
terrorism occurs when the target group and the
victims (both individually and/or institutionally),
the perpetrators, the terrorist action, the
mechanics of resolution, and other ramifications
transcend national boundaries.
“Transnational” terrorism is terrorism that
transcends national boundaries. Transnational
terrorism occurs when the target group and the
victims (both individually and/or institutionally),
the perpetrators, the terrorist action, the
mechanics of resolution, and other ramifications
transcend national boundaries.
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Terrorism - Definitions
““State terrorism”State terrorism” is terrorism conducted is terrorism conducted
by a government against its own citizens by a government against its own citizens
within its own borders.within its own borders.
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Terrorism - DefinitionsTerrorism - Definitions
““International terrorism”International terrorism” is often referred to is often referred to
as state-sponsored terrorism. International as state-sponsored terrorism. International
terrorism is transnational terrorism that is terrorism is transnational terrorism that is
conducted by individuals or groups that conducted by individuals or groups that
are are controlledcontrolled by a sovereign state. by a sovereign state.
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Terrorism - Definitions
““Domestic terrorism”Domestic terrorism” is terrorism that is is terrorism that is directed against the citizens, government, directed against the citizens, government, or other institutions, of one nation by or other institutions, of one nation by terrorists or terrorist groups that inhabit terrorists or terrorist groups that inhabit that same nation.that same nation.
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WMD ThreatWMD Threat
• ChemicalChemical
• BiologicalBiological
• NuclearNuclear
• Conventional Weapons (explosives)Conventional Weapons (explosives)
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SMALL POX - 40,000,000
ANTHRAX - 10,000,000
TULAREMIAPNEUMONIC PLAGUE
1,000,000
CHEMICALORGANOPHOSPHATE
10,000
Illustrative Population at Risk
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TERRORISTTERRORIST THREATSTHREATS
• Conventional weapons
Unconventional weapons
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CONVENTIONAL CONVENTIONAL WEAPONSWEAPONS
• Bombs
• Guns
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Chemical AgentsChemical Agents
• NerveNerve– sarin, tabun, somansarin, tabun, soman
• Pulmonary Pulmonary (choking)(choking)– phosgene, chlorinephosgene, chlorine
• Vesicants Vesicants (blister)(blister)– lewisite, phosgene oximelewisite, phosgene oxime
• Blood agentsBlood agents– hydrogen cyanide, cyanogen chloridehydrogen cyanide, cyanogen chloride
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Biological AgentsBiological Agents
• BacteriaBacteria– anthrax, E. coli, salmonella, plague, Q-anthrax, E. coli, salmonella, plague, Q-
fever, tularemiafever, tularemia
• VirusesViruses– smallpox, influenza, hantavirussmallpox, influenza, hantavirus
• ToxinsToxins– botulinum, ricin, staph, enterotoxin Bbotulinum, ricin, staph, enterotoxin B
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Biological - Key PointsBiological - Key Points
• Hospital as “First Responder”Hospital as “First Responder”
• Surveillance - Recognize EventSurveillance - Recognize Event
• Isolation/Quarantine - Isolation/Quarantine - DecisionDecision
• Relationship with Public HealthRelationship with Public Health
• Mortuary ServicesMortuary Services
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…The guy next door?
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Nuclear/Radiological ThreatsNuclear/Radiological Threats
• Radiation sources in hospitalsRadiation sources in hospitals
• Transportation accidentsTransportation accidents
• Nuclear power plant accidentNuclear power plant accident
• Radiological deviceRadiological device
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Conventional WeaponsConventional WeaponsExplosivesExplosives
• World Trade Center - 1993 World Trade Center - 1993
• Oklahoma City Bombing - 1995Oklahoma City Bombing - 1995
• Embassy Bombings (Africa) - 1998Embassy Bombings (Africa) - 1998
• World Trade Center - Sep 11, 2001World Trade Center - Sep 11, 2001
• Pentagon - Sep 11, 2001Pentagon - Sep 11, 2001
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• *Dead - < 2,819
•First Responders:First Responders:
• 343 (FDNY/NJFD)
• 62 (NYPD/PAPD )
• 4 (EMS)
* As of 08/29/02
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TRENDS IN TERRORISMTRENDS IN TERRORISM Groups involved with unconventional weapons tend to be:
– Single-issue groups• Abortion
• Animal rights
• Religious Extremists
– Nationalist / separatist groups
– Apocalyptic groups
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TRENDS IN TERRORISMTRENDS IN TERRORISM
Targets today are:
– General population
(indiscriminate attacks)
– Symbolic buildings or
organizations
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NEW TRENDS IN NEW TRENDS IN TERRORISMTERRORISM
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TRENDS IN TERRORISMTRENDS IN TERRORISM
Overall, terrorist groups will become:
– less state-sponsored
– more transnational
– less accountable
– more interested in mass casualties
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The United States The United States
government estimates government estimates
individual states’ individual states’
unconventional weapons unconventional weapons
capabilities as follows:capabilities as follows:
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LibyaLibyaIran, Iraq, Libya, Iran, Iraq, Libya, N. KoreaN. Korea
China, Cuba, Egypt, China, Cuba, Egypt, Iran, Iraq, Israel, Iran, Iraq, Israel, Libya, Myanmar, N. Libya, Myanmar, N. Korea, Pakistan, Korea, Pakistan, Syria, Taiwan, Syria, Taiwan, Yemen, former Yemen, former YugoslaviaYugoslavia
China, Egypt, Iran, China, Egypt, Iran, Iraq, Israel, N. Iraq, Israel, N. Korea, Russia, S. Korea, Russia, S. Korea, Syria, Korea, Syria, Taiwan, VietnamTaiwan, Vietnam
IsraelIsrael
Libya?Libya?
India, Russia, USIndia, Russia, US
China, France, China, France, Russia, UK, US, Russia, UK, US, India, PakistanIndia, Pakistan
Chemical Chemical WeaponsWeapons
Biological Biological WeaponsWeapons
Nuclear Nuclear WeaponsWeapons
Declared Current PossessorsDeclared Current Possessors
Suspected PossessorsSuspected Possessors
Suspected of Attempting AcquisitionSuspected of Attempting Acquisition
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•Former Soviet military •Russian mob•Drug cartels•Private companies•PLO•IRA
•Hezbollah•Chechen rebels•Algerian Islamic rebels•Kurdish guerillas•Timothy McVeigh•Rwandan militias•Sendero Luminoso
•Ramzi Yousef
•Bosnian Serbs
•SuicidalSuicidal cultscults
•AumAum•Bin Bin
LadenLaden
•Lunatic fringeLunatic fringe•Right-wing Right-wing militiasmilitiasInterested in
Using CBRN
Capable of Obtaining CBRN Interested in Mass Casualty
International Group International Group CapabilitiesCapabilities
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- (Events) suggest that the - (Events) suggest that the technical barriers to mass technical barriers to mass
casualty terrorism are casualty terrorism are eroding.”eroding.”
Jonathan TuckerJonathan TuckerMonterey InstituteMonterey Institute
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1. Abu Nidal Organization (ANO)1. Abu Nidal Organization (ANO)2. Abu Sayyaf Group2. Abu Sayyaf Group3. Al-Aqsa Martyrs Brigade3. Al-Aqsa Martyrs Brigade4. Armed Islamic Group4. Armed Islamic Group5. 'Asbat al-Ansar5. 'Asbat al-Ansar6. Aum Shinrikyo6. Aum Shinrikyo7. Basque Fatherland and Liberty (ETA)7. Basque Fatherland and Liberty (ETA)8. Gama'a al-Islamiyya (Islamic Group)8. Gama'a al-Islamiyya (Islamic Group)9. Hamas (Islamic Resistance Movement)9. Hamas (Islamic Resistance Movement)10. Harakat ul-Mujahidin (HUM)10. Harakat ul-Mujahidin (HUM)11. Hizballah (Party of God)11. Hizballah (Party of God)12. Islamic Movement of Uzbekistan (IMU)12. Islamic Movement of Uzbekistan (IMU)13. Jaish-e-Mohammed (JEM) (Army of 13. Jaish-e-Mohammed (JEM) (Army of Mohammed)Mohammed)14 . Al-Jihad (Egyptian Islamic Jihad) 14 . Al-Jihad (Egyptian Islamic Jihad) 15. Kahane Chai (Kach)15. Kahane Chai (Kach)16. Kurdistan Workers' Party (PKK)16. Kurdistan Workers' Party (PKK)17. Lashkar-e-Tayyiba (LT) (Army of the 17. Lashkar-e-Tayyiba (LT) (Army of the Righteous)Righteous)
18. Liberation Tigers of Tamil Eelam (LTTE)18. Liberation Tigers of Tamil Eelam (LTTE)19. Mujahedin-e Khalq Organization (MEK)19. Mujahedin-e Khalq Organization (MEK)20. National Liberation Army (ELN)20. National Liberation Army (ELN)21. Palestinian Islamic Jihad (PIJ)21. Palestinian Islamic Jihad (PIJ)22. Palestine Liberation Front (PLF)22. Palestine Liberation Front (PLF)23. Popular Front for the Liberation of Palestine23. Popular Front for the Liberation of Palestine (PFLP)(PFLP)24. PFLP-General Command (PFLP-GC)24. PFLP-General Command (PFLP-GC)25. Al-Qaida25. Al-Qaida26. Real IRA26. Real IRA27. Revolutionary Armed Forces of Colombia27. Revolutionary Armed Forces of Colombia
(FARC)(FARC)28. Revolutionary Nuclei (formerly ELA)28. Revolutionary Nuclei (formerly ELA)29. Revolutionary Organization 17 November29. Revolutionary Organization 17 November30. Revolutionary People's Liberation 30. Revolutionary People's Liberation
Army/Front (DHKP/C)Army/Front (DHKP/C)31. Salafist Group for Call and Combat (GSPC)31. Salafist Group for Call and Combat (GSPC)32. Shining Path (Sendero Luminoso, SL)32. Shining Path (Sendero Luminoso, SL)33. United Self-Defense Forces of Colombia 33. United Self-Defense Forces of Colombia
(AUC)(AUC)34. Jemaah Islamiyah34. Jemaah Islamiyah
World Terrorist Organizations
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U.S. Militant Islamic Groups
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The Federal Response Plan/
The Federal Terrorism
Conplan
The Federal Response Plan/
The Federal Terrorism
ConplanAn Overview
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• Reduce the loss of life and property in disasters
• Protect our Nation’s critical infrastructure from all hazards
• Lead and support a comprehensive emergency management program of mitigation, preparedness, response and recovery
FEMA MISSIONFEMA MISSION
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• Applies to natural disasters and other emergencies
• Supplements resources of State and local governments and disaster relief organizations
• Requires a Presidential declaration of a major disaster or emergency
• Basis for federal funding for disasters and emergencies
STAFFORD ACTSTAFFORD ACT
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• In response to an actual event requiring Federal assistance under a Presidential declaration of a major disaster or emergency
• In anticipation of a significant event likely to result in a need for Federal assistance
WHEN IS THE FRP IMPLEMENTED?
WHEN IS THE FRP IMPLEMENTED?
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A National team would augment Regional resources during response A National team would augment Regional resources during response phase of a catastrophic disaster.phase of a catastrophic disaster.
CATASTROPHIC DISASTER RESPONSE
CATASTROPHIC DISASTER RESPONSE
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United States Government’s Role in
Support of Catastrophic Events
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The US Government is there when needed!
• United States Government responders will be in a “in support of” role when providing consequence management support to local and state governments. This element is key when providing Federal assistance to civil authority.
• Federal assets remain under Federal control
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Most Likely Most Likely Least LikelyLeast Likely
GreatestGreatest
LeastLeast
ProbabilityProbability
HAZMAT --
MAJOR FLOODING
LOCAL & STATE LOCAL & STATE FEDERALFEDERAL
HURRICANE
-- IND
CBNRECBNRE
Protests --
Severe Storms --
Civil Disturbance --
ImpactImpact
Domestic Emergency Continuum
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• Initial response resources, including food, water, and emergency generators
• Emergency services to clear debris, open critical transportation routes, restore public utilities, and provide mass sheltering and feeding
• Specialized teams for rapid damage assessment, emergency communications, medical assistance and support, urban search and rescue, emergency power restoration and incident management
WHAT HELP IS AVAILABLE?WHAT HELP IS AVAILABLE?
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• The FRP employs a functional approach that groups under 12 ESFs the types of direct Federal assistance that a State is most likely to need
• Each ESF is headed by a primary agency designated on the basis of its authorities, resources, and capability in that functional area
• Federal response assistance is provided using some or all ESFs as necessary
• Federal ESF representatives coordinate with their counterpart State agencies
EMERGENCY SUPPORT FUNCTIONS (ESF’s)
EMERGENCY SUPPORT FUNCTIONS (ESF’s)
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THE 12 ESFsTHE 12 ESFs
Transportation
Department of Transportation
CommunicationsNational Communications System
Public Works and EngineeringDepartment of Defense/U.S. Army Corps of Engineers
FirefightingDepartment of Agriculture/Forest Service
Information and PlanningFederal Emergency Management Agency
Mass CareAmerican Red Cross
Resource Support
General Services Administration
Health and Medical Services
Department of Health and Human Services
Urban Search and Rescue
Federal Emergency Management Agency
Hazardous Materials
Environmental Protection Agency
Food
Department of Agriculture/Food and Nutrition Service
Energy
Department of Energy
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Following a declaration, the President may direct any Following a declaration, the President may direct any
Federal agency to use its authorities and resources in Federal agency to use its authorities and resources in
support of State and local assistance effortssupport of State and local assistance efforts
This authority has also been delegated to the FEMA This authority has also been delegated to the FEMA
Director; the Associate Director, Response and Director; the Associate Director, Response and
Recovery; the FEMA Regional Directors; and the Recovery; the FEMA Regional Directors; and the
Federal Coordinating OfficerFederal Coordinating Officer
They may activate some or all of the structures of the They may activate some or all of the structures of the
FRP to meet the needs of the situationFRP to meet the needs of the situation
FRP ACTIVATIONFRP ACTIVATION
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FEMA RegionsFEMA Regions
99
1010
88
66
77
55 22
33
44
11
USPACOM
USSOUTHCOM
(US Northern Command)
Area Office - Hawaii
Area Office -
P.R.
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Local ResponseIncident Commander
FEMA
President
State Emergency
Management
State Response
Local Emergency
Management
Federal Response
DISASTERDISASTERSITESITE
Tiered Disaster/Emergency Response
DCO
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NLD Defense Against Weapons of Mass Destruction Act of 1996 directed DOD as lead to:
• Train first responders
• Establish a chemical/biological hot line
• Loan equipment
• Use National Guard as State/local asset for response.
NUNN LUGAR DOMENICI OVERVIEW
NUNN LUGAR DOMENICI OVERVIEW
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POLICIES & AUTHORITIES
• Presidential Decision Directive (PDD) #39, U.S. Policy on Counterterrorism, June 21, 1995
• PDD #62, Protection Against Unconventional Threats to Homeland and Americans Overseas, May 22, 1998
• PDD #63, Protecting American’s Critical Infrastructure, May 22, 1998
• Robert T. Stafford Disaster Relief and Emergency Assistance Act, PL-93-288
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PDDs # 39 & 62
• Set National policy against terrorism
• Require that Federal agencies cooperate to detect, prevent, defeat, and manage consequences of WMD incidents
• Support the Federal Response Plan (FRP) Terrorism Incident Annex
• Support Federal Terrorism Plan
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CRISIS MANAGEMENT(Lead Federal Agency - FBI)
CRISIS MANAGEMENT(Lead Federal Agency - FBI)
Measures to identify, acquire, and plan
the resources needed to:
• Anticipate
• Prevent
• Resolve
a threat or act of terrorism.
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CONSEQUENCE MANAGEMENT
Lead Federal Agency - FEMA)
CONSEQUENCE MANAGEMENT
Lead Federal Agency - FEMA)
Measures to:
• Protect public health and safety
• Restore essential government services
• Provide emergency relief to governments, businesses, and individuals affected by the consequences of terrorism.
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Responsibilities
Crisis Mgm’t - FBI
Consequence
Mgm’t -
FEMA
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WMD VS. DISASTER RESPONSE
WMD VS. DISASTER RESPONSE
Similarities:
• Mass casualties
• Damage to buildings
• Evacuation
• Mass sheltering
• Effect the economy
• Public reaction
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Differences:
• Deliberate act
• Crime scene
• May not be recognizable
as terrorist act
• Mass contamination
• Public reaction - fear
WMD VS. DISASTER RESPONSE
WMD VS. DISASTER RESPONSE
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FBI LEADOn Scene Cdr. (OSC)
Federal,State,Local /Private Sectors
Federal, State, Local /Private Sectors
CRISIS CONSEQUENCE
Law EnforcementStarts Here
FEMA LEAD(Focus on Effects)
ConsequenceStarts Here
Management
SHARPENING THE RESPONSE TO WMDSHARPENING THE RESPONSE TO WMD
Management
Coordinating the Interface
The Federal Terrorism PlanThe Federal Terrorism Plan
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THE FEDERAL TEAM (BIG 6)THE FEDERAL TEAM (BIG 6)
• Department of Justice
– Federal Bureau of Investigation
• Federal Emergency Management Agency
• Department of Defense
• Department of Energy
• Department of Health and Human Services
• Environmental Protection Agency
• Other supporting agencies
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The Federal Response - To A Terrorist Incident (Federal Terrorism Plan)
The President
NSC Groups
Attorney GeneralFBI Director
SIOC
OSC Command Post/JOC
CDRGEST
ROC ERT
State EOC
Local EOC
UC*
FEMA Director
Scene
*Unified Command
Coordination Relationships
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The Federal Response - To A Terrorist Incident (Federal Terrorism Plan)
OSC Command Post/JOC/JIC
FCO SCO
DOE
EPA/USCG
HHS
DoD
State & Local Agencies
Federal Agencies
(FEMA)
FBI
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WHERE ARE WE NOW?• NLD transfer from
DOD to DOJ (ODP)
• DOD and DOJ equipment grant programs
• FEMA grants for planning and training
• Office of Homeland Security
• Office of National Programs (ONP) - FEMA
• Homeland Security Agency (Pending)
• Hospital administration (JCAHO 1.4, 2.4)
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JurisdictionsJurisdictions
Considerations and Considerations and ImplicationsImplications
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Jurisdiction, Federal• Presidential Decision Directive 39 (PDD-39):
– Threat or use of WMD considered an act of terrorism– FBI as lead federal agency to coordinate all aspects of the Federal
response to WMD incident
• Other federal agencies with significant responsibilities:– Department of Defense (DoD)– Department of Energy (DoE)– Federal Emergency Management Agency (FEMA)– Public Health Service (USPHS)– Environmental Protection Agency (EPA)
• Posse Comitatus Act (PCA) prohibits use of military in civilian law enforcement
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Jurisdiction, States
• Primarily responsible for exercise of both law enforcement and public health powers
• Activation of National Guard into state service or federal service can be assumed– Use of National Guard in state service does not
violate PCA
• Particularly in biological or chemical attack, state agencies will likely identify WMD event and be burdened early
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Jurisdiction, Local
• Results of WMD event will overwhelm local resources– Number of casualties– Nature of casualties (victims of bio/chem
agent requires decontamination and extraordinary care)
• Local authorities will have best access to early useful information
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Jurisdiction, General
• WMD events have federal, state and local jurisdictional implications• USC Title 10
• Insurrection• Mobilization
• USC Title 42• Quarantine• Interstate Commerce
• “Home Rule”
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Jurisdiction, General
• Consideration involves:• Area immediately impacted by WMD event• Areas remote to site of WMD event
Example: May (should) Governor of Florida activate National Guard in event of mass anthrax attack in state of Minnesota?
•Can this be federally mandated?•Can this be federally prohibited?
• Existing federal statutes that govern bio-terrorism incidents?
Considerations
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Martial LawMartial Law
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The Posse Comitatus Act (PCA)(18 USC 1385)
• Prohibits U.S. military personnel from performing law enforcement functions such as:
• search and seizure
• surveillance and pursuit
• being informants, undercover agents or investigators
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Martial Law
• PCA effectively precludes federal martial law
• State Martial Law, examples:
– Missouri
– Georgia
• Usage is extremely rare. Since civil war only time statute has been invoked in court cases in either state involved claims by members of National Guard to workers’ compensation benefits while on state active duty.
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Martial Law, Cont.• “The Governor may, when in his opinion the
circumstances so warrant, call out the organized militia or any portion thereof to execute the laws, suppress actual, and prevent threatened, insurrection and repel invasion. The governor, if in his judgment the maintenance of law and order will thereby be promoted, may by proclamation declare martial law throughout the state or any part thereof.” Missouri R.S. Mo. §41.480(1)
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Martial Law, Cont.• “The Governor shall have the power, in case of invasion, disaster,
insurrection, riot, breach of the peace, combination to oppose the enforcement of the law by force or violence, or imminent danger thereof, to order all or any part of the organized militia into the active service of the state…” Georgia O.C.G.A. § 38-2-6(a).
• “Whenever any judge of a superior, city, or state court, sheriff or mayor of a municipality shall apprehend the outbreak of insurrection, riot, breach of the peace, combination to oppose the enforcement of the law by force or violence within the jurisdiction of which said officer is the conservator of the peace, it shall be [their duty], when it appears that the unlawful combination or disaster has progressed beyond the control of the civil authorities to notify the Governor; and the Governor may then, in his discretion” order the organized militia into the service of the State. Georgia O.C.G.A. § 38-2-6(b).
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Mutual Aid AgreementsMutual Aid Agreements
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Mutual Aid Agreements
•Local Mutual Aid Agreements
•Emergency Management Assistance Compacts
(EMAC)
•Interstate Civil Defense and Disaster Compacts
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Mutual Aid Agreements
•Local Mutual Aid Agreements:
• City/Country All-hazards
• Law Enforcement
• Medical
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Mutual Aid AgreementsEmergency Management Assistance Compacts (EMAC)
“The Emergency Management Assistance Compact (EMAC) has has been adopted by 41 states and 2 territories with additional states
planning to join. EMAC is an interstate mutual aid agreement ratified by Congress, passed by state Legislatures and signed into law by theGovernors, and is well coordinated with the Federal Response Plan.
…Interstate and intrastate mutual aid assistance must be recognizedand supported by the federal government as an expedient,
cost-effective approach to disaster response and recovery…”White Paper on Domestic Preparedness -
National Emergency Managers Association- October 1, 2001
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Mutual Aid Agreements
Interstate Civil Defense and Disaster Compacts
•NY/NJ Civil Assistance Compact - 1954
•Western Governor’s Compact
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QuarantineQuarantine
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Quarantine
• “Compulsory physical separation, including
restriction of movement, of populations or
groups of healthy people who have been
exposed to contagious disease, or efforts to
segregate these persons within specified
geographic areas”
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Quarantine, cont.
•Distinct from “isolation” – separation and
confinement of individuals known or
suspected (via signs, symptoms or
laboratory criteria) to be infected with a
contagious disease to prevent them from
transmitting disease to others
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Quarantine, cont.
• Response to biological attack
• Outside the experience of police authorities
• Federal quarantine authority cannot be used in a situation that is confined to a single state
• Some states and localities do not have statutory quarantine authority
• Level of force acceptable to enforce quarantine
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Quarantine, cont.
• Response to Biological Attack
•Most commonly discussed “first option”,
followed by “vaccination rings”
•When is quarantine most commonly used
today?
•Do federal, state or local plans exist for
quarantine?
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Quarantine, cont.
•Outside the experience of police authorities
•When was the last act of quarantine in the United
States?
•What common events today most closely resemble
“quarantine law enforcement operations”?
•What differences would exist or be implied?
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Quarantine, cont.•Federal quarantine authority cannot be used in a situation that is confined to a single state
•USC Title 42 - Interstate Commerce
“...the Surgeon General under 42 USC 266 only has the authority to
exercise quarantine powers if there is a declaration of war, the National
Advisory Health Council (NAHC) recommends it, and there is an
executive order specifying the communicable disease. “
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Quarantine, cont.USC Title 42 - Interstate Commerce - cont.Section 106(a), 42 USC 9606a ...control population movement.
"In addition to any other action taken by a State or local government,
when the President determines that there may be an imminent and
substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a
hazardous substance..., he may require the Attorney General of the
U.S. to secure such relief as may be necessary to abate such danger
or threat, and the district court of the U.S. in the district in which the
threat occurs shall have jurisdiction to grant such relief as the public
interest and the equities of the case may require. The President may
also, after notice to the affected State, take other action under this
section, including, but not limited to, issuing such orders as may be
necessary to protect public health and welfare and the
environment."
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•Some states and localities do not have statutory quarantine authority
•“Model State Emergency Health Powers Act - Oct, 2001”• Center for Disease Control (Georgetown & Johns Hopkins Universities)
• NGA
• National Conference of State Legislatures
• Association of State and Territorial Health Officials
• National Association of City and County Health Officers
• National Association of Attorneys General
Quarantine, cont.
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•Level of force acceptable to enforce quarantine
•“Rules of Engagement”
•Ingress/egress•Use of “deadly force”•Newer non-lethal “weapons” being developed and
might be considered (example: non-lethal acoustic
weapons for area denial, establishing cordons, crowd
direction)
Quarantine, cont.
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EvacuationEvacuation
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Evacuation• Evacuation in a chemical attack is
theoretical equivalent to quarantine in a biological attack
• Similar issues to quarantine– Lack of police experience– Use of force– Safety of responders– Liability for personal property
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Evacuation, cont.
Issues:
•Lack of police experience
•More recent similar events
•Hurricane evacuations
•Tornado aftermath
•Mandatory/Non-mandatory
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Evacuation, cont.
•Use of force
•“Rules of Engagement”
•Forcible Removal
•Use of “deadly force”
•Confiscation of property
•etc.
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Evacuation, cont.
•Safety of responders
•Exposure to contagious/infectious disease
•Self-defense (force protection)
•Workman’s compensation
•Tort liability
•Under Mutual aid agreements
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Evacuation, cont.
•Liability for personal property
•Security of premises
•Liability for losses/damage
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LIABILITYLIABILITY
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Official Liability, State Law
•Old System – Sovereign Immunity
“Exposure of municipalities and public
officials to lawsuits has evolved over time
from almost complete protection under
the doctrine of sovereign immunity to ….”
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Official Liability, State Law
•Current System – Liability for Wrongful Acts
and Omissions
“With specific immunities, exceptions, and limits
– municipalities and public officials are subject
to liability for their wrongful acts and omissions
in the same way that people and private
corporations are liable.”
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Official Liability, State Law
•Wrongful Acts and Omissions
“Municipalities are generally responsible for
the wrongful acts and omissions of their
agents, employees, and elected and
appointed officials when those people are
acting within the scope of their authority.”
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Official Liability, State Law
Public officials can be sued personally for their
activities on behalf of the municipality. Generally,
public officials are indemnified for their official
activities by state law. The municipality is
required to defend and pay any claims brought
against the public official, unless the public
official commits an act that is outside the scope
of official responsibilities or where the activities
are committed intentionally, with knowledge of
wrongdoing.
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Official Liability, Missouri
• Official Immunity - Public employees not personally
liable for negligent acts related to discretionary duties
performed within scope of authority
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Official Liability, Missouri
• Public employees are liable for negligently
performing ministerial acts. Ministerial acts
are acts that individual performs without
exercising opinion or judgment (see Green vs
Clayton [TAB A] and Sherer Law Review - TAB B)
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Official Liability, Missouri
• Public employees personally responsible
for actions which are not within the scope of
their official responsibilities and where
employee’s activities are committed
intentionally, with knowledge of wrongdoing
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Official Liability, Missouri
•Specific statutory exemption for state
employees acting in their official
capacity in connection with hazardous
waste cleanup activities (see R.S. Mo. §
260-500) and activities connected to
emergency response commission and
committees (see R.S. Mo. § 260-600).
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