Legal Aspects of WMD Events Vers 3

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Published on February 28, 2008

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Slide1:  October 3, 2002 Michael J. Bowers Legal Aspects of WMD Events:  Legal Aspects of WMD Events Background Jurisdiction Martial Law Mutual Aid Agreements Quarantine Evacuation Official Liability Slide7:  “The purpose of terrorism is to terrorize.” Mao Tse Tung Weapons of Mass Destruction WMD Threat:  WMD Threat Terrorist Goals disrupt society produce mass panic and terror get publicity Terrorism Exists Because . . .:  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 . . . WMD Threat:  WMD Threat Easy to obtain Cost-effective cost per casualty Nuclear $2 million Chemical $2 thousand Biological $2 WMD Threat Unique Features:  WMD Threat Unique Features Fear Lack of Training Lack of Equipment Potential for Mass Casualties Psychological Casualties Crime Scene/Evidence Collection Slide13:  U.S. Militant Islamic Groups Terrorism - Definitions:  Terrorism - Definitions “The unlawful use of force or violence committed by a group or individual against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” Federal Bureau of Investigation Terrorism - Definitions:  Terrorism - 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. Terrorism - Definitions:  Terrorism - Definitions “State terrorism” is terrorism conducted by a government against its own citizens within its own borders. Terrorism - Definitions:  Terrorism - Definitions “International terrorism” is often referred to as state-sponsored terrorism. International terrorism is transnational terrorism that is conducted by individuals or groups that are controlled by a sovereign state. Terrorism - Definitions:  Terrorism - Definitions “Domestic terrorism” is terrorism that is directed against the citizens, government, or other institutions, of one nation by terrorists or terrorist groups that inhabit that same nation. WMD Threat:  WMD Threat Chemical Biological Nuclear Conventional Weapons (explosives) Slide20:  SMALL POX - 40,000,000 ANTHRAX - 10,000,000 TULAREMIA PNEUMONIC PLAGUE 1,000,000 CHEMICAL ORGANOPHOSPHATE 10,000 Illustrative Population at Risk TERRORIST THREATS:  TERRORIST THREATS Conventional weapons Unconventional weapons CONVENTIONAL WEAPONS:  CONVENTIONAL WEAPONS Bombs Guns Chemical Agents:  Chemical Agents Nerve sarin, tabun, soman Pulmonary (choking) phosgene, chlorine Vesicants (blister) lewisite, phosgene oxime Blood agents hydrogen cyanide, cyanogen chloride Biological Agents:  Biological Agents Bacteria anthrax, E. coli, salmonella, plague, Q-fever, tularemia Viruses smallpox, influenza, hantavirus Toxins botulinum, ricin, staph, enterotoxin B Biological - Key Points:  Biological - Key Points Hospital as “First Responder” Surveillance - Recognize Event Isolation/Quarantine - Decision Relationship with Public Health Mortuary Services Slide26:  …The guy next door? Nuclear/Radiological Threats:  Nuclear/Radiological Threats Radiation sources in hospitals Transportation accidents Nuclear power plant accident Radiological device Conventional Weapons Explosives:  Conventional Weapons Explosives World Trade Center - 1993 Oklahoma City Bombing - 1995 Embassy Bombings (Africa) - 1998 World Trade Center - Sep 11, 2001 Pentagon - Sep 11, 2001 Slide29:  *Dead - < 2,819 First Responders: 343 (FDNY/NJFD) 62 (NYPD/PAPD ) 4 (EMS) * As of 08/29/02 TRENDS IN TERRORISM:  TRENDS IN TERRORISM Groups involved with unconventional weapons tend to be: Single-issue groups Abortion Animal rights Religious Extremists Nationalist / separatist groups Apocalyptic groups TRENDS IN TERRORISM:  TRENDS IN TERRORISM Targets today are: General population (indiscriminate attacks) Symbolic buildings or organizations NEW TRENDS IN TERRORISM:  NEW TRENDS IN TERRORISM TRENDS IN TERRORISM:  TRENDS IN TERRORISM Overall, terrorist groups will become: less state-sponsored more transnational less accountable more interested in mass casualties The United States government estimates individual states’ unconventional weapons capabilities as follows::  The United States government estimates individual states’ unconventional weapons capabilities as follows: Slide35:  Libya Iran, Iraq, Libya, N. Korea China, Cuba, Egypt, Iran, Iraq, Israel, Libya, Myanmar, N. Korea, Pakistan, Syria, Taiwan, Yemen, former Yugoslavia China, Egypt, Iran, Iraq, Israel, N. Korea, Russia, S. Korea, Syria, Taiwan, Vietnam Israel Libya? India, Russia, US China, France, Russia, UK, US, India, Pakistan Chemical Weapons Biological Weapons Nuclear Weapons Declared Current Possessors Suspected Possessors Suspected of Attempting Acquisition Slide36:  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 Suicidal cults Aum Bin Laden Lunatic fringe Right-wing militias Interested in Using CBRN Capable of Obtaining CBRN Interested in Mass Casualty International Group Capabilities - (Events) suggest that the technical barriers to mass casualty terrorism are eroding.” Jonathan Tucker Monterey Institute:  - (Events) suggest that the technical barriers to mass casualty terrorism are eroding.” Jonathan Tucker Monterey Institute Slide38:  1. Abu Nidal Organization (ANO) 2. Abu Sayyaf Group 3. Al-Aqsa Martyrs Brigade 4. Armed Islamic Group 5. 'Asbat al-Ansar 6. Aum Shinrikyo 7. Basque Fatherland and Liberty (ETA) 8. Gama'a al-Islamiyya (Islamic Group) 9. Hamas (Islamic Resistance Movement) 10. Harakat ul-Mujahidin (HUM) 11. Hizballah (Party of God) 12. Islamic Movement of Uzbekistan (IMU) 13. Jaish-e-Mohammed (JEM) (Army of Mohammed) 14 . Al-Jihad (Egyptian Islamic Jihad) 15. Kahane Chai (Kach) 16. Kurdistan Workers' Party (PKK) 17. Lashkar-e-Tayyiba (LT) (Army of the Righteous) 18. Liberation Tigers of Tamil Eelam (LTTE) 19. Mujahedin-e Khalq Organization (MEK) 20. National Liberation Army (ELN) 21. Palestinian Islamic Jihad (PIJ) 22. Palestine Liberation Front (PLF) 23. Popular Front for the Liberation of Palestine (PFLP) 24. PFLP-General Command (PFLP-GC) 25. Al-Qaida 26. Real IRA 27. Revolutionary Armed Forces of Colombia (FARC) 28. Revolutionary Nuclei (formerly ELA) 29. Revolutionary Organization 17 November 30. Revolutionary People's Liberation Army/Front (DHKP/C) 31. Salafist Group for Call and Combat (GSPC) 32. Shining Path (Sendero Luminoso, SL) 33. United Self-Defense Forces of Colombia (AUC) 34. Jemaah Islamiyah World Terrorist Organizations Slide39:  U.S. Militant Islamic Groups The Federal Response Plan/ The Federal Terrorism Conplan:  The Federal Response Plan/ The Federal Terrorism Conplan An Overview FEMA MISSION:  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 MISSION STAFFORD ACT:  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 ACT WHEN IS THE FRP IMPLEMENTED?:  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? Slide46:  A National team would augment Regional resources during response phase of a catastrophic disaster. CATASTROPHIC DISASTER RESPONSE United States Government’s Role in Support of Catastrophic Events :  United States Government’s Role in Support of Catastrophic Events The US Government is there when needed!:  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 Domestic Emergency Continuum:  Most Likely Least Likely Greatest Least Probability HAZMAT -- MAJOR FLOODING LOCAL & STATE FEDERAL HURRICANE -- IND CBNRE Protests -- Severe Storms -- Civil Disturbance -- Impact Domestic Emergency Continuum WHAT HELP IS AVAILABLE?:  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? EMERGENCY SUPPORT FUNCTIONS (ESF’s):  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) Slide52:  THE 12 ESFs Transportation Department of Transportation Communications National Communications System Public Works and Engineering Department of Defense/U.S. Army Corps of Engineers Firefighting Department of Agriculture/Forest Service Information and Planning Federal Emergency Management Agency Mass Care American 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 Slide53:  Following a declaration, the President may direct any Federal agency to use its authorities and resources in support of State and local assistance efforts This authority has also been delegated to the FEMA Director; the Associate Director, Response and Recovery; the FEMA Regional Directors; and the Federal Coordinating Officer They may activate some or all of the structures of the FRP to meet the needs of the situation FRP ACTIVATION Slide54:  FEMA Regions 2 1 USPACOM USSOUTHCOM (US Northern Command) Area Office - Hawaii Area Office - P.R. Slide56:  FEMA President Tiered Disaster/Emergency Response DCO NUNN LUGAR DOMENICI OVERVIEW:  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 POLICIES & AUTHORITIES:  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 PDDs # 39 & 62:  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 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. 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. Responsibilities:  Responsibilities Crisis Mgm’t - FBI Consequence Mgm’t - FEMA WMD VS. DISASTER RESPONSE:  WMD VS. DISASTER RESPONSE Similarities: Mass casualties Damage to buildings Evacuation Mass sheltering Effect the economy Public reaction WMD VS. DISASTER RESPONSE:  Differences: Deliberate act Crime scene May not be recognizable as terrorist act Mass contamination Public reaction - fear WMD VS. DISASTER RESPONSE Slide65:  FBI LEAD On Scene Cdr. (OSC) Federal, State, Local / Private Sectors Federal, State, Local / Private Sectors CRISIS CONSEQUENCE Law Enforcement Starts Here FEMA LEAD (Focus on Effects) Consequence Starts Here Management SHARPENING THE RESPONSE TO WMD Management Coordinating the Interface The Federal Terrorism Plan 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 The Federal Response - To A Terrorist Incident (Federal Terrorism Plan):  The Federal Response - To A Terrorist Incident (Federal Terrorism Plan) The President Attorney General FBI Director SIOC OSC Command Post/JOC ROC ERT State EOC Local EOC UC* FEMA Director Scene *Unified Command Coordination Relationships The Federal Response - To A Terrorist Incident (Federal Terrorism Plan):  The Federal Response - To A Terrorist Incident (Federal Terrorism Plan) OSC Command Post/JOC/JIC FCO SCO State & Local Agencies Federal Agencies (FEMA) FBI WHERE ARE WE NOW?:  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) Jurisdictions:  Jurisdictions Considerations and Implications Jurisdiction, Federal:  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 Jurisdiction, States:  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 Jurisdiction, Local:  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 Jurisdiction, General:  Jurisdiction, General WMD events have federal, state and local jurisdictional implications USC Title 10 Insurrection Mobilization USC Title 42 Quarantine Interstate Commerce “Home Rule” Jurisdiction, General:  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 Martial Law:  Martial Law The Posse Comitatus Act (PCA) (18 USC 1385):  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 Martial Law:  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. Martial Law, Cont.:  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) Martial Law, Cont.:  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). Mutual Aid Agreements:  Mutual Aid Agreements Mutual Aid Agreements:  Mutual Aid Agreements Local Mutual Aid Agreements Emergency Management Assistance Compacts (EMAC) Interstate Civil Defense and Disaster Compacts Mutual Aid Agreements:  Mutual Aid Agreements Local Mutual Aid Agreements: City/Country All-hazards Law Enforcement Medical Mutual Aid Agreements:  Mutual Aid Agreements Emergency 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 the Governors, and is well coordinated with the Federal Response Plan. …Interstate and intrastate mutual aid assistance must be recognized and 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 Mutual Aid Agreements:  Mutual Aid Agreements Interstate Civil Defense and Disaster Compacts NY/NJ Civil Assistance Compact - 1954 Western Governor’s Compact Quarantine:  Quarantine Quarantine:  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” Quarantine, cont.:  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 Quarantine, cont.:  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 Quarantine, cont.:  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? Quarantine, cont.:  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? Quarantine, cont.:  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. “ Quarantine, cont.:  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." Quarantine, cont.:  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. Quarantine, cont.:  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. Evacuation:  Evacuation Evacuation:  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 Evacuation, cont.:  Evacuation, cont. Issues: Lack of police experience More recent similar events Hurricane evacuations Tornado aftermath Mandatory/Non-mandatory Evacuation, cont.:  Evacuation, cont. Use of force “Rules of Engagement” Forcible Removal Use of “deadly force” Confiscation of property etc. Evacuation, cont.:  Evacuation, cont. Safety of responders Exposure to contagious/infectious disease Self-defense (force protection) Workman’s compensation Tort liability Under Mutual aid agreements Evacuation, cont.:  Evacuation, cont. Liability for personal property Security of premises Liability for losses/damage LIABILITY:  LIABILITY Official Liability, State Law:  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 ….” Official Liability, State Law:  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.” Official Liability, State Law:  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.” Official Liability, State Law:  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. Official Liability, Missouri:  Official Liability, Missouri Official Immunity - Public employees not personally liable for negligent acts related to discretionary duties performed within scope of authority Official Liability, Missouri:  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) Official Liability, Missouri:  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 Official Liability, Missouri:  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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