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Josh Filler: Homeland Protection Blog
Homeland Protection Zone

by Josh Filler: Homeland security issues including prevention and protection

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March 22, 2010

It's becoming increasingly clear that Khalid Sheikh Mohammed (KSM) and his al-Qaeda cohorts will not be tried in New York City and may not be tried in a civilian court at all. This is welcome news to many of us, but clearly not to the Justice Department's leadership, which has been reportedly sidelined from the process of devising an alternative trial venue and forum. As we look back on the process that got us to this moment, there is a powerful lesson to be learned beyond the fact the decision on the merits was a bad one to begin with. That lesson being, federal officials should reach out and talk to state and local officials before the feds make monumental decisions that must be implemented largely by those state and local officials.

One of the most striking elements of the process that led to Attorney General Eric Holder announcing his decision to move KSM into the civilian justice system in New York was that his agency never consulted with city officials in New York, most notably the NYPD. This is truly unbelievable for the obvious reason that this was not going to be a typical trial or even a typical high profile trial for a mafia don or a drug kingpin. The trial of KSM in New York would require a security apparatus the likes of which this country had never seen before.

The NYPD's $200 million annual security bill for the trial is massive by any standard and who would not want to know that fact before making a decision on where to conduct the prosecution? Total costs have been estimated by the NYPD to be $1 billion for the life of the trial. Failure to talk to the NYPD meant the Justice Department had no idea what the security needs would be or how much direct security would cost or what the indirect costs in the form of economic impact on local businesses and the inconvenience to local residents would amount to either. These things were only "discovered" after the decision was made public and they played a big role in reversing the decision as the Justice Department had no basis to challenge the NYPD's numbers.

The Attorney General's talking to the U.S. Marshals, a Justice agency responsible for the security of federal courthouses was not sufficient. The Marshal Service's responsibility, while important, would not include the broader security that must be provided to the area surrounding the courthouse. Moreover, as the NYPD plan outlined, security for the KSM trial would be virtually city wide, encompassing counter measures for Mumbai style assault teams that would attempt to utilize the rivers to lone suicide bombers and more.

Real partnership requires coordination and collaboration. The increased security risk, as directly reflected by the $200 million in additional security the NYPD would need to provide, is something state and local officials have a right to weigh-in on. This is especially true when dealing with the unprecedented move of shipping a foreign war criminal captured overseas onto U.S. soil to stand trial in a civilian court. This does not mean state and local officials have a veto over such decisions, but rather, a voice in the process before the decision is made. While reaching out to city and state officials in New York early in the process risked having the decision to hold the trial in New York leak, would that have been any worse for Justice than where they find themselves now?

Despite trying to be good soldiers and support the decision at first, Mayor Bloomberg and Police Commissioner Kelly eventually came to the realization that holding the trial in New York City would be a nightmare. They as much as anyone helped turn this awful decision around by simply providing the Justice Department, and all of America, with the simple facts surrounding trial security that anyone would want to know and should have known before making a decision as consequential and complicated as trying KSM in lower Manhattan. Let's hope the ongoing process that may ultimately lead to an alternative trial is a more inclusive one, yielding a more reasonable result.

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March 01, 2010

Would be terrorist Najibullah Zazi has cut a deal with federal prosecutors. In his allocution last week in federal court, Zazi described his plan to carry out a "martyrdom operation" against the New York City subway system. While one can still question whether civilian plea bargaining with Zazi, a non U.S. citizen who originally traveled overseas to wage war against the U.S., is the best method for preventing future terrorist attacks; the CIA, FBI, NYPD and others deserve credit for disrupting this plot. The Zazi case teaches us once again that when it comes to protecting critical infrastructure, such as mass transit systems, intelligence is the key.

Mass transit remains among the most likely terrorist targets inside the U.S. generally and the New York City metro region in particular. Attacks in London, Madrid, Moscow, Mumbai and Tokyo, and previous plots against the New York City transit system and the New York/New Jersey Port Authority Trans-Hudson commuter train, provide stark evidence of this fact. In addition to the 2006 train bombings in Mumbai, the terrorist assault of 2008 in that city involved an attack on the transit passenger hall at Chhatrapati Shivaji Terminus killing fifty people.

By their very nature, mass transit systems are extremely vulnerable to attack, whether by suicide bombers, as was done in the first London bombing, or by timed improvised explosive devices in back-packs left on trains, as was done in Madrid, or by assault team, as was done in Mumbai in 2008. The reasons for this are obvious but very hard to overcome: in order to move the masses, mass transit systems must be open and free flowing to function. Due to this fact, the traditional "target hardening" of metal detectors, personnel/baggage screeners, gates, fences, cameras, sensors, bollards and other perimeter security measures are less effective or even applicable. Unlike with aviation, technology does not yet exist where we can timely baseline screen (forget secondary screening) all people and things that enter the transit system without causing the system to screech to a halt.

Even if we could baseline screen all passengers, there is little reason to believe it would be effective enough to warrant the impact on transit operations. The willingness of passengers to be inconvenienced due to screening in order to travel from New York to Los Angeles is one thing. Their willingness to go through the same screening to go from 86th Street to 59th Street on Manhattan's Upper East Side is quite another. This is not to suggest that certain "traditional" security measures should not be used. However, such measures, especially cameras and sensors, should be used as tools to collect intelligence, e.g., suspicious surveillance or probing activity, and not simply as a post event forensic tool to help determine who carried out the attack. As for passenger screening, it should be primarily intelligence driven as opposed to simply random.

Despite certain intelligence failures in the Zazi case related to understanding in real time his pre-operational logistics in the form of his taste for purchasing large quantities of nail polish remover, which contains acetone, a key ingredient for the explosive Triacetone Triperoxide, there was enough intelligence collected to thwart this plot. Going forward, Zazi teaches us there is a connection between nail polish remover and the security of America's mass transit systems. Collecting and then connecting the dots necessary to link nail polish remover to transit bombings is no easy task and requires an intelligence system capable of linking foreign travel to suspicious purchasing habits and everything else in between. However, there is no alternative if we hope to protect the virtually endless number of potential targets and especially those highly critical and vulnerable targets such as mass transit.

Had the day come for Najibullah Zazi to carry out his plot, it is very likely he would have succeeded. Perhaps he, and his co-conspirators, would have appeared as just another set of passengers with back-packs on New York's massive subway system. That is, until they and/or those back-packs unleashed a reign of explosive terror the likes of which we have not seen in the U.S. in eight years. Fortunately, we'll never know for sure, but it's a stark reminder that the key to protecting mass transit and other critical infrastructure at home is to collect actionable intelligence inside the homeland and around the world.

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February 22, 2010

Last week's shocking site of a commercial office building in Austin, Texas engulfed in flames and thick black smoke, after having a small plane intentionally slam into it, provided a chilling reminder of the 9/11 attacks. Given the similarities between 9/11 and what happened in Austin, this most recent incident has caused many to ask if the crash was an act of terrorism or a crime. The White House has taken a wait-and-see approach depending on the outcome of the investigation, while the chief of police in Austin has called it a crime and not an act of terrorism.

The debate over crime versus terrorism misses the larger point and distinguishing factor between September 11, 2001 and Austin, Texas, February 18, 2010. The attack in Austin that killed one, in addition to the attacker, appears to be an act of terrorism. However, unlike the 9/11 attacks, the incident in Austin was likely not an act of war or war crime signaling a strategic threat to U.S. security at home and abroad. While all terrorism is a crime, every crime is not act of terrorism, nor is every act of terrorism an act of war or war crime, just as every act of war is not an act of terrorism.

Federal law defines an act of war, in part, as "armed conflict between military forces of any origin" and the term "domestic terrorism" as activities that occur primarily inside the U.S. that involve "acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, appear to be intended to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction." Federal law goes on to define war crime as any number of acts committed during armed conflict including, murder, rape, mutilation, as well as, through incorporation of elements of the Hague Convention, "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended."

The 9/11 attack was clearly a war crime, which followed a declaration of war from al-Qaeda and resulted in the U.S. engaging al-Qaeda and its affiliates in a global armed conflict. The flying of commercial aircraft into buildings on 9/11 caused NATO to invoke Article 5 of the North Atlantic Treaty, which states that an attack against one is an attack against all. The former Soviet Union never achieved such an outcome in 50 years of the Cold War. The nature of al-Qaeda's attacks, by non-uniformed combatants against civilian and military targets, doesn't make our fight any less of a war, but instead demonstrates our enemy's consistent violation of the laws of war.

Joseph Stack, the man who is alleged to have flown his plane into the Austin building, and who burned his own home prior to doing so, appears motivated by several factors, including a deep hatred of the IRS. The Austin Statesman newspaper has posted what it believes to be Stack's suicide note from the internet in which he rails against the IRS, Catholic Church, major corporations, capitalism, bailouts, unions, the American people, and manages to praise communism in his closing. As for his intent, the following passage best summarizes it:

"I know there have been countless before me and there are sure to be as many after. But I also know that by not adding my body to the count, I insure nothing will change. I would only hope that by striking a nerve that stimulates the inevitable double standard, knee-jerk government reaction that results in more stupid draconian restrictions people wake up and begin to see the pompous political thugs and their mindless minions for what they are. Sadly, though I spent my entire life trying to believe it wasn't so, but violence not only is the answer, it is the only answer."

The above passage would seem to fit with a domestic criminal act "intended to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction" as set forth in the definition of domestic terrorism. The fact that Stack's attack is unlikely to actually affect the conduct of the government does not diminish his intent to do so. Of course, it's possible the internet posting is a fraud and Stack is simply a mentally deranged individual who flew his plane into a building.

At most, our reaction to the Austin event may involve greater scrutiny of general aviation and small aircraft in particular, which has long been the soft underbelly of aviation security. It will almost surely not involve the use of military force against any foreign entity or an invocation of the Insurrection Act here at home. Stack appears to be a true lone wolf terrorist. His conduct, while depraved, does not directly impact the national security of the United States.

Terrorism can come in many forms. What primarily separates general crime from terrorism is the intent of the actor. What often separates or in certain cases escalates an act of terrorism to a war crime is the nature of the attacker, and the target and impact of the attack, along with the response thereto. Unfortunately, there is no universally recognized set of definitions for most of these terms. Nonetheless, the attack in Austin was clearly a crime and probably an act of domestic terror as well. Unlike 9/11, that is as far as it likely goes.

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February 15, 2010

Recently, Dr. James Carafano of the Heritage Foundation wrote a piece entitled Lay off Napolitano and the Homeland Security Department, which includes a run down of which federal agencies dropped the ball in the Christmas Day flight 253 "panty bomber" case. In his analysis, Carafano concludes that "none of the responsibility for keeping the attempted killer [Umar Farouk Abdulmutallab] off the plane rests with the Department of Homeland Security." This is a remarkable statement primarily because it's true, which raises a serious question: How is it we have a Department of Homeland Security that is not actually responsible for much of our homeland security?

When DHS was created it was marketed as a consolidation of key counter-terrorism agencies and functions that had previously been spread incoherently throughout the government. However, in the end, while several agencies and functions did come into DHS, as outlined in Carafano's article, all too many did not. This includes issuing visas, (State Department), managing the No Fly List, (FBI), and serving as the hub for homeland security intelligence, (National Counter Terrorism Center). All of this has caused confusion from the start, which Congress and both the Bush and Obama Administration's have compounded by making the DHS Secretary the face of homeland security for appearances, but in function relegating DHS to junior partner in the conglomerate of federal counter-terrorism agencies.

Perhaps no case better exemplifies the disconnect between DHS and the larger homeland security mission than the decision to keep the FBI out of the new department. Even before the flight 253 attack, Fox News ran a story outlining the internal fighting between the FBI and DHS on matters involving information sharing with state and local law enforcement generally and the recent Naji Bullazazi case in particular.

Fear and Chaos

In 2002, when the creation of DHS was being debated, the issue of whether the FBI should be inside the new department garnered much attention. Some would argue the FBI fought as hard against becoming a part of DHS as it has in fighting al-Qaeda. All kidding aside, why did the FBI resist going into DHS back in 2002? Two reasons perhaps best summarize the answer: chaos and fear of the unknown.

To understand the FBI's fears of going into DHS one need only look to the U.S. Customs Service, or rather the former U.S. Customs Service. The Customs Service had been intact since 1789, but upon its entry into DHS the U.S. Customs Service as we knew it is gone, split into two parts with its investigators now working with former INS investigators at the new Immigration and Customs Enforcement and its inspectors working with the Border Patrol at the new Customs and Border Protection.

In addition to the FBI's fear of being disbanded, there was the inevitable chaos surrounding the establishment of DHS. In 2002, the Bureau was going through very painful reorganizations of its own and the weight of the two events, internal reorganization and external placement in a new department, may have proven too much for the FBI while it was being charged with preventing the next attack inside the homeland.

A Conflict of National Security Interest

Despite the FBI's fears, there is an inherent conflict in having the primary responsibility to prevent and protect against terrorism separate from the primary responsibility to investigate and counter terrorism. Indeed, the primary mission of the FBI is to "protect and defend the United States against terrorist and foreign intelligence threats." Under the Homeland Security Act of 2002, the primary mission of DHS is "to prevent terrorist attacks within the United States." However, the 2002 Act goes on to specify that, "primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over acts of terrorism." That clause, coupled with the FBI being kept out of DHS, has been a major factor in the division between DHS and the means to carry out its mission.

Protection versus Investigations

The U.S. Secret Service, a DHS component, actually presents a case study on the issue of separating investigations from security, as well as what the FBI's placement in DHS could have looked like. Under the Homeland Security Act, the Secret Service was placed into DHS with the caveat that it had to be "maintained as a distinct entity within the Department" meaning it could not be disbanded the way Customs was.

As a law enforcement agency, the Secret Service is unique in many ways, particularly in that the success of one its core missions, protecting the President, Vice President, etc. (protectees) is achieved if it prevents attacks against those protectees. The purpose of investigating all threats against the President is to prevent the threats from materializing into actual attacks. No investigation is judged a "success" if a President is assassinated and the assassin is subsequently arrested, prosecuted and convicted. Coincidentally, the FBI leads the investigation into such actual attacks.

In its 1964 report on the assassination of President Kennedy, the Warren Commission, in evaluating the different federal agencies and their respective roles and responsibilities in protecting the President, noted that removing the responsibility for investigating threats against the President from the Secret Service and placing that function in a different federal agency, notably the FBI, could undermine the Secret Service's fundamental role of protection:

It is suggested that an organization shorn of its power to investigate all the possibilities of danger to the President and becoming merely the recipient of information gathered by others would become limited solely to acts of physical alertness and personal courage incident to its responsibilities. So circumscribed, it could not maintain the esprit de corps or the necessary alertness for this unique and challenging responsibility.

Concerning the flight 253 attack, Secretary Napolitano recently told Congress that DHS is largely a "consumer" of intelligence when it comes to homeland security. This is correct and precisely the situation the Warren Commission warned against concerning the Secret Service. The decision keep the FBI out of DHS has effectively separated prevention from protection where the protectee is the United States itself.

No Silver Bullet

Placing the FBI in DHS would not miraculously remove all of the conflicts over jurisdiction, roles and responsibilities between the Bureau and the current DHS operational components. The FBI has had numerous such battles over the years with sister Justice Department agencies including the DEA and ATF. Battles over jurisdiction and turf are an art form in Washington, particularly within the intelligence and law enforcement communities, regardless of where they sit on an organization chart.

Nonetheless, if we truly wanted a single agency whose primary mission was the protection of the homeland from terrorism, placing the FBI in DHS would have made that aspiration closer to a reality. It also would have more closely aligned federal law enforcement organization with state and local law enforcement organization, which more often separates the prosecutors from the police and investigators.


Organizational charts do matter. Clear lines of authority and responsibility are foundational elements for the success of any entity. Since its inception, DHS has had to deal with federal agencies and authorities necessary to carry out the homeland security mission being kept outside the department. The flight 253 case is just another reminder of this fact.

While DHS does play an important role in the current homeland security structure, it is a far cry from how it was marketed during its founding, as well as how it's perceived by the public today. This adversely impacts both public confidence in the department and actual operations.

Whether federal agencies or functions are ever consolidated in the department charged with leading the unified national effort to secure the homeland is anyone's guess. In the meantime, the disconnect between the homeland security mission and the department established to lead it will continue.

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February 08, 2010

Six weeks after being interrogated for 50 minutes, would-be Northwest Flight 253 bomber, Umar Farouk Abdulmutallab, has once again started talking to the FBI. This is good news, sort of. While getting information from Abdulmutallab is far better than his silence, there are three reasons not to cheer too loudly.

First, the fact that Abdulmutallab is talking now is the best evidence we have that he did not tell us everything six weeks ago before he was read his Miranda rights. Hopefully, the next time we capture foreign al-Qaeda operatives sent to the U.S. to wage illegal war we will not repeat the mistake of bestowing the right to remain silent upon our enemy at capture. In fact, that time may be upon us as senior intelligence officials warned Congress last week that an attempted attack against the homeland over the next three to six months was "certain."

Second, whatever Abdulmutallab is telling the FBI may or may not be still valid. Information has a shelf life and Abdulmutallab's capture six weeks ago was known worldwide. Therefore, those who sent him to the U.S. knew immediately that he was compromised and could respond accordingly. That is why it was so important to interrogate Abdulmutallab immediately and at length with U.S. intelligence operatives steeped in the knowledge of al-Qaeda in the Arabian Peninsula and not for 50 minutes by a few local FBI agents who happened to be the first on scene.

Third, the fact that we all know he is speaking again means al-Qaeda knows he's speaking again, which could undermine the value of the very information he's providing. To the extent al-Qaeda had let its guard down even slightly it will be back on its heels now that they know Abdulmutallab is talking. What legitimate security reason was there for the White House to leak Abdulmutallab's cooperation and the method used to get him to do so (his father was apparently flown to the U.S. to talk some sense into his son)? It appears merely political in order to shoot back immediately at Administration critics on the handling of Abdulmutallab as a criminal instead of as a combatant.

President Obama has rightfully said we are "at war with al-Qaeda" and that he will do "whatever it takes to defeat them." What it takes is actionable intelligence. Bestowing the constitutional right to remain silent upon captured foreign enemy combatants is directly at odds with that fact and the President's declaration. This is not a debate over enhanced interrogation techniques such as water boarding or slapping, etc. It's simply about not unilaterally shutting down the interrogation techniques the President has approved, in order to win the war he so rightly said we are in.

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February 03, 2010

On Monday, the Obama Administration released its proposed 3.8 trillion FY 2011 budget of which roughly $4 billion is slated for state and local homeland security grants and programs. What is obvious from the start is how little the Administration proposes to cut from these state and local programs. Many expected deep cuts given the huge $1.6 trillion federal deficit projected for FY 2011. The Administration proposes to cut $164 million from last year's total of $4.165 billion leaving just over $4 billion for FY 2011.

Despite the limited overall cuts, there are several programs that are slated for termination including, Citizen Corps, Metropolitan Medical Response System, Interoperable Emergency Communications Grants and Real ID grants. However, virtually all of the activities funded by these grants are eligible under other grant programs that are set to receive an increase in funding such as the Urban Areas Security Initiative and State Homeland Security Program.

At $1.1 billion, the Urban Areas Security Initiative (UASI) is set to receive a $213 million plus-up from last year, but before anyone gets too exited read the fine print. $200 million of the new UASI funding is set for "security resulting from terror-related trials." That turns out to be roughly the same number the NYPD has said it will cost to secure one year of the Khalid Sheikh Mohammed trial in lower Manhattan. However, as of now, it seems highly unlikely such a trial will occur in New York City if it occurs in the U.S. at all. What happens to that $200 million if no trials or less costly trials occur will have to be worked out in the budget process. This is the first time in the UASI program's history that an earmark for special event security has been proposed as part of its budget.

While Operation Stonegarden, the program designed to fund state and local border security operations in coordination with the U.S. Border Patrol, is set to be zeroed out from its $60 million last year, in truth it is simply moved into the State Homeland Security Program (SHSP) at a rate of $50 million. The entire SHSP is set to receive just over $1 billion.

Emergency Management Performance Grants see an increase of $5 million over last year with a total request of $345 million, while the Emergency Operations Center program is set for zero funding in FY 2011. The Regional Catastrophic Preparedness Grant Program is proposed at $35 million, the same as last year, despite many predicting it would be zeroed out. The Port Security Grant Program and Transit Security Grant Program are each slated to receive $300 million with the Assistance to Firefighters Grant Program taking a $200 million haircut from last year at $610 million for FY 2011.

It should be noted that these numbers are simply the opening salvo in a long and sometimes twisted dance between the executive and legislative branches of government. The FY 2011 budget won't be passed before October 1, 2010 and a lot can change between now and then in an election year. If the past is any indication, Congress will likely restore some, if not all, of the programs the Administration slated for termination, e.g., Citizen Corps. However, given the fiscal crisis at the federal level, Congress might actually cut even deeper into these programs depending on the direction the political winds are blowing come budget voting time. Either way, the Administration's proposal is where we start.

Finally, the following is a link to the FY 2011 DHS Congressional Budget Justifications submitted by the Administration and released on Monday. A chart listing the state and local programs is on page 2,941.

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February 01, 2010

The crisis in Haiti has left many wondering who's in charge down there when it comes to responding to the earthquake that struck the island nation just under three weeks ago. It's a legitimate question given that the Haitian government and infrastructure collapsed as a result of the disaster. It also raises questions about how the United States would manage such a catastrophe. Who would be in charge?

The answer to the question of "who's in charge?" during a major disaster in the United States is no one person or agency is ever in charge of all aspects of responding to a catastrophe whether it be an attack similar to 9/11 or a natural disaster such as Hurricane Katrina. When the founding fathers signed the Declaration of Independence and later established the Constitution, one of their fundamental objectives was to ensure that no one person was ever "in charge" in the United States. The founders set up numerous roadblocks to central power by spreading power and authority within and across multiple levels of government and directly to the people. It is a masterpiece in limited government, but it also raises serious challenges when a major domestic crisis hits.

It is odd that we should expect a federal democracy to suddenly pivot into a quasi central dictatorship during major disaster operations. Attempts to centralize power often create more problems than they solve. The post Katrina expansion of the President's power to federalize the National Guard during a natural disaster or other emergency without the Governor's consent, outside those already covered under the Insurrection Act, was later repealed because that expansion actually blurred the lines of authority between the President and the Nation's Governors in terms of who would manage the Guard in such circumstances.

In truth, many confuse their desire for someone to be in charge with a need for someone to provide leadership. On September 11, 2001 Mayor Rudy Giuliani exhibited leadership and led the city's response, but was no more in charge of the National Guard troops any more than President Bush was in charge of the fire fighters at Ground Zero or New York Governor George Pataki was in charge of the FBI. On the grounds of the Pentagon that day, the incident commander was not the Secretary of Defense or a general or an admiral, but was instead the local Arlington County Fire Chief. However, this did not give the fire chief command authority over U.S. troops on the scene. The better question to ask is how do we integrate different agencies from multiple levels of government to effectively respond when a major crisis hits?

Both the National Incident Management System (NIMS) and National Response Framework (NRF) are the chief mechanisms by which the U.S. seeks to overcome its fragmented, federal system of government and evolve into a coordinated response to major disasters. Structures such as unified command and incident command help different agencies and levels of government achieve integration. However, they do not create a system of unitary command whereby a single chief executive wields command authority over all aspects of an incident and then delegates through directives, such as the National Command Authority for the purposes of war fighting. Mayors don't work for Governors and Governors don't work for the President, etc.

Answers to critical questions such as who is in charge of which branch of a given level of government, and which agency has the responsibility for a given objective and who is supporting that lead agency during a crisis, will vary depending on the nature of the incident and where it occurs. The principles and systems outlined in the NIMS and the NRF are designed to make the process of integrating the activities of those agencies a much smoother one, but it will rarely be seamless. Federalism is intentionally difficult and disasters are always chaotic. However, the more training and testing around these systems from tactical operators up to chief executives the better. In addition, within each level of government every effort should be made to clarify roles and the chain of command to ensure that responsibilities within and across agencies are crystal clear on the day of a disaster.

Intergovernmental roles and responsibilities are among the most misunderstood aspects of disaster management in particular and homeland security in general. To ask repeatedly "who's in charge?" is to fundamentally misunderstand our federal system. Rather than trying to find an omnipotent commander where there is none, it is more appropriate to provide leadership and reach a clear and valid understanding of roles, responsibilities and capabilities across levels of government to improve our nation's response when the next major disaster inevitably strikes.

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January 19, 2010

When a crisis arises, the public wants and expects to hear from its leaders. The timing, tone and information provided by a chief executive will have a dramatic impact on how the public perceives how the government (local, state and federal) is responding to a crisis. Indeed, effective communications is one of the most important responsibilities a chief executive has in managing a crisis. Recent events from the catastrophic earthquake in Haiti to the attempted terror bombing of Northwest Flight 253 to the Fort Hood attack have provided situations where executive communications have been essential and sometimes lacking.

The role of the chief executive, whether an elected or an appointed official, is not to turn into a public information officer. There are systems in place under the National Incident Management System (NIMS) and the incident command system (ICS) to handle that. In fact, executive communications must be integrated into that framework. However, just as a Mayor should not do the job of a press officer by trying to brief on the daily, intimate details of an incident, neither can a public information officer communicate in place of a Mayor, Governor or President of the United States.

The Northwest Flight 253 incident saw President Obama wait three days to speak and instead delegate the role of communicator-in-chief to the Secretary of Homeland Security and the White House Press Secretary both of whom used the now infamous phrase "the system worked" relative to security and response to the attempted bombing. This approach violated two fundamentals in executive communications in a crisis.

First, the country expects to hear from its President early in such a situation, especially one in his first year in office who is still establishing himself in the role of commander-in-chief. Three days is just too long in a 24 hour news cycle. Waiting that long to speak makes doing so look politically forced. Prolonging that moment won't down play the significance of the event, but could downgrade the view as to the effectiveness of the response. Subordinate officials should echo the President and provide greater details as they are known.

Second, be brutally honest. Say what you know, admit what you don't know and own up to errors. Attempting to spin in such circumstances will never work. Leaders must provide an overarching context in which the event has occurred with some details to assist in doing so. However, they must be mindful of too much detail as accuracy is essential and "facts" in the early stages of any event are fluid to say the least. President Obama's reference to flight 253 terror bomber Umar Farouk Abdulmutallab as an "isolated extremist" was factually inaccurate. The "system worked" phrase is one that will likely tail Secretary Napolitano for the rest of her career. Contrast that to when President Kennedy immediately took responsibility for the Bay of Pigs fiasco and his public opinion numbers actually went up! While such a candid approach may not always be enough in a crisis, it will always be a good place to start.

While the situation in Haiti is obviously a foreign event, the proximately of the incident to the U.S. and the deep poverty of that country has caused the U.S. to essentially treat Haiti as a 51st state in responding to the catastrophic earthquake that has devastated the island nation. In this case, President Obama responded quickly with a clear vision for how he wanted the United States to assist its neighbor in need.

In the U.S., if there is one thing that the 9/11 attacks and Hurricane Katrina have taught us is that if all politics is local, so are all incidents, including those that have a national impact. However, understanding how to effectively communicate in a crisis does not occur through osmosis upon being elected Mayor or Governor or appointed to high office. As with most things, training and testing is the best way to get prepared for such a role.

Rudy Giuliani prepared relentlessly for a potential terrorist strike or other disaster inside New York City. However, executives, especially elected chief executives, are still often the least likely to avail themselves of such training and testing due to time management and sometimes ego. This can be a huge challenge for professional emergency managers and public safety officials who have to work with a chief executive unprepared to communicate and lead.

DHS has fostered training and exercises for leaders at all levels of government through the Top Officials Exercise program (now the National Exercise Program), a congressionally mandated bi-annual counter-terrorism full scale exercise, and through Mobile Education Teams (METs), which provides education seminars for governors, mayors and other elected chief executives and their cabinets.

To truly get the attention of elected leaders, the American public must view crisis communications and incident management as a core responsibility for any elected chief executive in this country, similar to crime control, housing and education. States, such as California, have developed training programs for their local elected officials to better acquaint those leaders with their role in a crisis whether it be a terrorist attack or natural disaster.

Trying to lead and communicate in a crisis with no training or simulated experience is as dangerous as trying to fly a plane with no prior time in the cockpit or even the simulator. The consequences can be catastrophic. It is time to acknowledge this simple truth and better prepare our nation by ensuring that those we entrust to lead it are truly ready to do so when it matters most.

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January 07, 2010

The answer to that question depends on whether you believe Umar Farouk Abdulmutallab is a common criminal and Northwest Flight 253 is a crime scene, or you believe he is an unlawful enemy combatant and Flight 253 is a battlefield. Abdulmutallab didn't pick pocket another passenger or even hit a crew member on Flight 253 on Christmas Day 2009. That's what a criminal might do. Instead, Abdulmutallab smuggled a bomb onboard a jumbo jet in an attempt to blow it up with approximately 300 people on board while the plane was in its final decent over U.S. soil in order to try and kill even more innocent people on the ground. That's what enemy combatants fighting an illegal war attempt to do.

Despite this latest act of war committed in violation of the laws of war, Abdulmutallab will be treated by the Obama Administration as a common criminal and tried in federal court. This decision appears to be based on two factors: the attack occurred inside the U.S. and there is enough evidence to convict Abdulmutallab in federal court. Both miss the mark. The decision to classify members of al-Qaeda should not be governed by which forum provides an opportunity for a conviction, but rather, which system allows for the greatest ability to collect intelligence to defeat the enemy. The fact the attack occurred here, against civilians, is an aggravating factor not a mitigating one.

We have a military commissions system precisely because we are at war. The purpose of using that system is not punitive. It's centered on engaging al-Qaeda in a legal framework that allows us to gather intelligence in a time and manner consistent with war fighting as opposed to criminal justice. Our primary goal with Abdulmutallab must be to gather information on who he is associated with and what other plots might be out there. It is not to build a criminal case against him and yet by treating him as a criminal defendant we hinder our ability to achieve our goal by granting him the right to remain silent and the right to a speedy trial.

The Obama Administration uses military commissions and was right to work with Congress in 2009 to strengthen them. However, the standard employed by the Administration for determining who is held as an enemy combatant and tried before a military commission is incoherent - terrorists who attack the military overseas are treated as enemy combatants whereas those who attack civilians here at home are treated as common criminals. Thus, as the enemy gets closer to America's shores, he miraculously transforms from a combatant to a criminal, and we simultaneously self impose restrictions limiting our ability to defend ourselves, despite the danger actually increasing. However, the law does not command such an approach.

The Supreme Court, in Ex Parte Quirin, the case of the Word War II Nazi saboteurs, one of whom was an American citizen, allowed for the trial of all eight saboteurs to be held in a military commission for committing war crimes on U.S. soil. The saboteurs argued the Constitution required they be held as criminals and tried in civilian court for their offenses. In rejecting such assertions, the Court upheld the government's claim that operating on U.S. territory without a uniform with the intent to strike industrial targets was a violation of the laws of war, rendering the men unlawful combatants subject to trial by military commission. This war with radical Islamists has been called the "long war" and we need a rational and consistent policy for classifying our enemy of today, regardless of where we capture him.

Supporters of civilian trials for al-Qaeda terrorists will no doubt point to the cases of Zacarias Moussaoui, the so-called 9/11 20th highjacker, and Richard Reid, the so-called airplane shoe bomber, both of whom were foreign nationals sent to wage unlawful war against us and both of whom the Bush Administration detained as criminals and prosecuted in federal court. Those were early mistakes in this long war that we should learn from not emulate.

The Moussaoui case is instructive as to the perils of waiting too long to extract intelligence from captured al-Qaeda members. Despite the U.S. government having arrested Moussaoui on immigration charges in August 2001, the FBI was ultimately blocked from searching his lap top on the basis there was insufficient probable cause to do so. As the 9/11 Commission noted, the information Moussaoui possessed "might have brought investigators to the core of the 9/11 plot."

Does Abdulmutallab have similar timely information about another plot or on the location of those who sent him to America? Did he tell the FBI everything before he invoked his otherwise non-existent "right" to remain silent? It is not enough that Abdulmutallab might tell us all he knows months from now through plea negotiations. As for the Reid trial, a statement from the terrorist himself at his sentencing is highly enlightening: "I am at war with your country."

Umar Farouk Abdulmutallab is not an isolated extremist who just decided to try and blow up a jet one day. Abdulmutallab is part of a network at war with the United States that has consistently tried to attack us and our aviation system in particular. Our classifying the terrorist depending on the location of his target and the point of his capture is ad hoc, schizophrenic and dangerous. Treating him as a "common criminal" subject to bail hearings and the like will not degrade or diminish him. Rather, it will serve only to degrade our own capability to combat al-Qaeda and protect our homeland.

January 06, 2010

This issue of whether FEMA belongs inside the Department of Homeland Security is like a vampire or zombie that never seems to die. Each time you think you've resolved it; the creature leaps from the coffin causing havoc. The latest iteration of this monster has surfaced in the House of Representatives Transportation and Infrastructure Committee. That committee is once again talking about pulling FEMA out of DHS. As for my view on this issue, you can click this link to Government Executive Magazine for more details.

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