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Initial Post at least 750 words and two replies of at least 250 words. For each thread, you must support your assertions with at least two scholarly citations in current APA format. Each reply must incorporate at least one scholarly citations in current APA format. Any sources cited must have been published within the last five years. Acceptable sources include Textbooks, the Bible, and peer reviewed literature.

Topic: Non-Governmental Organizations' Roles in Disaster Management

Based on your readings thus far from the text and your own research, explain the role non-governmental organizations (NGOs) play in disaster response. Evaluate the role faith based organizations play, or should play, in the overall disaster management process. Describe 1 faith based organization that plays a major role in disaster management.Journal of Homeland Security and Emergency Management Volume 5, Issue 1 2008 Article 35 The Constitutional Roots of All-Hazards Policy, Management, and Law Lloyd Burton∗ ∗ University of Colorado at Denver, lloyd.burton@cudenver.edu Copyright c 2008 The Berkeley Electronic Press. All rights reserved. The Constitutional Roots of All-Hazards Policy, Management, and Law∗ Lloyd Burton Abstract The field of all-hazards management is beset by a plethora of local, state, and federal statutes and regulations implemented by a wide array of civilian and military agencies at various levels of government. Both in practice and in academia, the emphasis is too often on the differences and tensions between emergency management and homeland security, between civilian and military management authority, and between federal and other levels of government. This article provides an analytic framework for discovering the common constitutional roots among them, by integrating phases in the disaster management cycle with core constitutional functions, to create a “legal GIS system.” This matrix can be a useful means for mapping sources of potential conflict and thus identifying areas in need of proactive, cooperatively oriented law reform. KEYWORDS: administrative interoperability, legal authorities, program fragmentation ∗ Lloyd Burton is a professor of law and public policy at the University of Colorado Denver’s School of Public Affairs, where he directs the program concentration in Emergency Management and Homeland Security. Thanks to colleagues in the small but growing community of all-hazards management law who offered constructive and altogether beneficial criticisms on earlier drafts of this work. Burton: The Constitutional Roots of All-Hazards Management 1 INTRODUCTION Near the Wasatch Mountains of southern Utah lies what many biologists consider to be the world's largest and oldest living thing. Covering over 100 hundred acres and weighing in excess of 6,000 tons, above ground this ancient organism appears to be a grove of some 47,000 individual aspen trees. Yet botanists from the University of Colorado have discovered that all of these trees are genetically identical, and that they all share one massive, 80,000 year-old living root system (Grant, 1993). As studied in academia and practiced in the field, all-hazards policy, management, and law bear some interesting similarities to this aspen grove. We have a plethora of local, state, and federal statutes and regulations implemented by a wide array of civilian and military agencies at various levels of government. Contemporary critics of this governmental tangle complain that individual agencies (or even sections within agencies) act as if they inhabited self-contained "silos", like trees in the forest appearing to stand alone. And from the Columbine High School shootings of 1999 to New York City in September of 2001 to Hurricane Katrina in 2005, we have seen again and again the tragic consequences that ensue when all-hazards management agencies' independent identity and selfcontained command structures compromise their ability to effectively coordinate their actions with each other. The academic and professional disaster management literature also places great emphasis on differences and conflicts among local, state, and federal statutes and regulations and the agencies that implement them. Court decisions reviewing this body of law and the actions of agencies implementing it express a similar diversity of views. But little attention has been devoted to how these laws and implementing agencies are alike in their functions. And almost no study has been devoted to the common constitutional roots from which all these diverse governmental activities have emerged. It seems that the traditional academic zest for parsing areas of study down to their increasingly narrow subspecialties is as evident in this field as in any other. The premise underlying preparation of this article is that this emphasis on differences and distinctions rather than on similarities in the law and policy of allhazards management is working to our detriment – both in academia and in practice in the field. To counterbalance this trend toward sub-specialization, we need an analytic framework for studying interagency and intergovernmental coordination of all-hazards management that fully accounts for the similarities in sources of legal authority that all these agencies share – their common constitutional root system. We need this reconceptualization so those of us who practice disaster management and who study it can begin to see more clearly how all these Published by The Berkeley Electronic Press, 2008 2 JHSEM: Vol. 5 [2008], No. 1, Article 35 seemingly disparate government agencies and activities actually share deeply rooted similarities in terms of sources of constitutional empowerment as well as constitutional limitations on the exercise of that power. The purpose of this article is to suggest just such a framework. It integrates some core constitutional functions with the all-phases, all-hazards model of disaster management, resulting in a matrix that can be considered a "legal GIS system". It then demonstrates the use of the system by applying it sequentially to cases involving the management of naturally, accidentally, and intentionally caused disasters (i.e., the all-phases, all-hazards approach). This framework may prove particularly useful for the in-service training of current disaster management professionals, and for the academic training of the next generation of their successors. It may also help stimulate some re-thinking of the field of all-hazards management law among faculty who teach in this area, and among policy makers and analysts who participate in creating the laws governing the field. If we can develop a common understanding of the shared origins of these legal authorities, we might be able to teach ourselves to do a better job mitigating the conflicts and enhancing the potential for cooperation in their continued implementation. MAPPING SOURCES OF MANAGEMENT FUNCTIONS AUTHORITY AND ALL-HAZARDS VARIABLES INFLUENCING GOVERNMENT AUTHORITY Several factors affect how much and what form of authority an institution at any level of government has in the realm of all-hazards management. The first is what function a government is being called upon to perform. In the 1970s, the National Governors’ Association adopted a common framework for describing these functions, in part to facilitate governments of neighboring states coming to each other’s aid in disaster situations. The four functions, sometimes referred to as phases in the all-hazards management approach, are mitigation, preparedness, response, and recovery. It is collectively described as the all-hazards approach based on the governors’ realization that regardless of the cause of a disaster situation (natural, accidental, or intentional), the similarities are greater than the differences regarding how governments go about lessening the likelihood of human harm from disasters, preparing for their eventuality, responding to their incidence, and recovering from their aftermath (Waugh, 2000, 48-50). Regardless of whether it is local, state, or the federal government, one generalization that can be drawn from this model of functions is that the public and the legislative branches tend to be more actively involved in decision making http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 3 regarding mitigation, preparedness, and recovery; while the executive branch assumes and asserts the greatest degree of discretionary authority during the disaster response phase, usually by prior statutory authorization. So one important factor in discerning which branch of government has the power to do what is by reference to which function in the all-hazards management cycle a government is performing. Regarding questions of federalism, a second variable influencing which governmental institutions have the most authority under what circumstances is the cause of the disaster. In the disaster management literature, causality is often categorized using terms like “natural” (hurricanes, earthquakes, floods), “technological” or “industrial” (e.g., oil spills and other industrial accidents), and “terrorist” (Waugh, 2000). But for the purposes of legal analysis, more precision is helpful in illustrating the role of causality in defining authority. In this article, the causes of disasters are characterized as “natural”, “accidental”, and “intentional”. And the category of intentionally caused disasters is further divided into “criminal” (e.g., arson, illegal hazardous waste dumping) and “political” (terrorist acts by domestic dissidents or international agents – the deliberate infliction of mass harm as an attack on the body politic itself). The reason for this emphasis on causality is that it has a great deal to do with what level of government and what agencies within that level of government will have lead authority in disaster response. Generally speaking, local and state governments take the lead in planning for and responding to natural and accidental disasters, while intentionally caused ones (especially those attributed to terrorist activity) result in the assertion of almost wholly preemptive federal authority. It is in these kinds of situations that the president has the sort of plenary authority over incident management that President Bush wanted but that his advisors told him he might not have (absent Governor Blanco’s assent) in the catastrophic natural disaster that was Hurricane Katrina. A third variable is the scale of the disaster. That is, the smaller in scope the incident, the more likely it is to be handled by local first responders (principally municipal police, emergency medical teams, county sheriff’s departments, and local fire districts). By contrast, the greater the scope and scale of the disaster, the more likely it will be to call on the resources of statewide organizations such as the highway patrol and National Guard; and – in the case of very large scale events such as Hurricanes Katrina and Rita in 2005 – the federal all-hazards management agencies and units of the national armed forces. CONSTITUTIONAL ORDERING AND ALL-HAZARDS MANAGEMENT One reason for communicative disconnect and resultant institutional culture clash between agencies responding to naturally and accidentally caused disasters on the Published by The Berkeley Electronic Press, 2008 4 JHSEM: Vol. 5 [2008], No. 1, Article 35 one hand and deliberately induced ones on the other is that up until now the emphasis has been on the differences in their sources of authority rather than their similarities. That problem is resolved in the analytic framework presented here in two ways: first by focusing on the common constitutional framework under which all use of governmental power in American society is legitimated, and second by characterizing federal anti-terrorism statutes (such as FISA, the USA PATRIOT Act, the Homeland Security Act, and the president's National Special Security Event designation authority) as intentional disaster mitigation measures. To do this, it is helpful to begin by reviewing the nature of the constitutional organization of government itself. There are several ways of understanding the underlying theories, structures, and functions of the federal and state constitutions of the United States. Among those scholars have suggested (e.g., Tribe, 1988; Shapiro and Tresolini, 1983), the most relevant one for the purposes of this analysis is that of a constitution as an instrument for the ordering of institutional relationships. This ordering has two complementary yet opposing aspects: the empowerment of governmental institutions, and the limitation of their powers relative to other institutions of government – best known as the related doctrines of separation of powers, and checks and balances. The United States Constitution achieves this ordering in three ways. First, in Articles I, II, and III, it established and empowered the three branches of the federal government, and set forth some guidelines delimiting the relationship between them (balance of powers, enumerated powers, separation of powers). Second, certain of its clauses (e.g., commerce, supremacy) as well as Amendments 10, 11, and 14 set forth guidelines for governing the relationship between federal and state governments (federalism). And third, the first ten amendments—the Bill of Rights— set forth guidelines for governing the relationship between the federal government and individuals subject to its jurisdiction. Most state constitutions contain similar provisions regarding empowerment and inter-branch relations, hierarchical jurisdictional relations, and civil rights and liberties. Through the due process and equal protection clauses of the Fourteenth Amendment, most of the Bill of Rights has also been made binding on the relationship between state and local governments and persons subject to their jurisdiction as well. Table 1 depicts a cross-impact matrix integrating the four functions in the all-hazards management cycle and these three basic forms of constitutional ordering. This integration generates a twelve-cell matrix within which the entire range of institutional relationships and authorities described above can be mapped. This mapping system can be used to perform three important functions. First, it can be employed as a framework for categorizing and cataloguing sources http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 5 of legal authority in all-hazards management. Second, it also provides an information-gathering checklist for doing case study research on legal aspects disaster management. Since both cooperative disaster management and institutional culture clash happen within the same framework of legal authorities, the matrix makes it possible to both identify a specific locus of either cooperation or conflict, and provide citing information for the statutes, regulations, and caselaw that are applicable to that particular arena for institutional interaction. Third, once the specifics of institutional interaction in a number of disaster management cases have been mapped, this same framework can be used as a proactive planning tool, for mitigating organizational culture clash and enhancing the potential for inter-institutional cooperative management in future disasters. The model can be applied to either the federal or a state constitution (since state constitutions also order hierarchical relationships between different levels of government). For brevity and simplicity’s sake, the examples below focus mostly on federal law and questions of federalism. The following three sections of this article will apply this framework sequentially to natural, accidental, and intentional disasters. The naturally caused disasters section focuses mostly on legal frameworks and actions relevant to Hurricane Katrina and similar events; the accidentally caused disasters section mostly on various aspects of hazardous waste management (including "Superfund") and the transport of hazardous materials; and the intentionally caused disasters section mostly on anti-terrorism measures, as well as the relationship between the U.S. Secret Service and local government in the protection of national political leaders. These examples are merely illustrative rather than exhaustive, and have been chosen in part because – as of this writing – they are all recognizable constituents of the current national policy agenda. In each section below, there is a brief demonstration of how the framework can be used to catalogue sources of legal authority (statutes, regulations, significant caselaw), and to describe past cases in which the potential for institutional culture clash was either exacerbated or mitigated. Finally, the concluding section of the article offers some recommendations for using this framework to mitigate organizational culture clash in the future disaster management incidents. MAPPING INSTITUTIONAL RELATIONSHIPS IN NATURAL DISASTERS. The cells in column A and column B, lines 1 and 2, all make reference to various sections of Public Law 93-288, the Robert Stafford Disaster Relief and Emergency Assistance Act (commonly known as the "Stafford Act"); and to various components of the National Incident Management System (NIMS). The latter was created in President Bush's Homeland Security Presidential Directive 5 Published by The Berkeley Electronic Press, 2008 6 JHSEM: Vol. 5 [2008], No. 1, Article 35 Table 1. SOURCES OF LEGAL AUTHORITY IN NATURAL HAZARDS MANAGEMENT Constitutional A. INTRAFunctions GOVERNMENTAL RELATIONSHIPS (e.g. Interagency, Inter -& IntraAll-Hazard branch) Cycle Phases i. Stafford Act1, Title II. 1. MITIGATION 2. PREPAREDNESS 3. RESPONSE 4. RECOVERY i. SA, T. III, VI. ii. NIMS, C. III.4 i. SA, T. IV, V. ii. NIMS, C. IV. i. SA, T. IV, V. B. INTERGOVERNMENTAL RELATIONSHIPS (eg., Federalism) C. GOVERNMENT -INDIVIDUAL RELATIONSHIPS (e.g., Bill of Rights) i. SA, T. II. ii. NIMS, C.I i. Lucas v. SCCC2 ii.TxLn. v. FEMA3 i. SA, T. II. ii. NIMS, C. I i. Insurrection Act6 ii. Poss. Com. Act7 i. U.S. v. N.O.9 ii. HI v. FEMA10 i. In Re Katrina5 i. McWaters. v. FEMA8 i.Drko v. U.S.11 (HSPD-5) in 2003 (Sylves, 2008). The citations in these cells provide a quick reference guide to how the Stafford Act and the NIMS are organized into various phases of the disaster management cycle (in the case of the Stafford Act, with specific regard to naturally caused disasters). The citations in cell B-3 are to the Insurrection Act and the Posse Comitatus Act. The applicability of both these statutes was called into question in the immediate aftermath of Hurricane Katrina. In the case of intentionally caused disasters, Congress has empowered the president to take whatever actions are necessary in order to restore “domestic tranquility”; and to use whatever forces are at his command, including the military. But in natural disaster situations, that authority is more limited. The principal limitation Congress has imposed on 1 42 USC § 4151; hereinafter, "SA". Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1992). 3 Texas Landowners Right Assoc. v. Harris, 453 F. Supp. 1025 (D.D.C. 1978). 4 Dept. of Homeland Security, National Incident Management System (2007). 5 In Re Katrina Canal Breaches Litigation, 2008 U.S. Dist. LEXIS 32555 (E.D. La. 2008). 6 10 U.S.C. § 331. 7 18 U.S.C. § 1385. 8 436 F. Supp. 2d 802 (E.D. La. 2006). 9 U.S. v. New Orleans, 2003 U.S. Dist. LEXIS 16765 (E.D. La.) 10 Hawaii v. FEMA, 294 F.3d 1152 (9th Cir. 2002). 11 Dureiko v. U.S., 209 F.3d 1345 (D.C. Cir. 2000). 2 http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 7 domestic military deployments in the absence of criminal or terrorist intent is the Posse Comitatus Act, which Congress enacted in 1878 to curtail the discretionary use of the military for domestic law enforcement in the Reconstruction-era South (Banks, 2004). This statute may have been adopted at least in part to counter another federal law of even more ancient vintage: the Insurrection Act. Some sections of this law date back to 1792, when Congress authorized President Washington to deploy the U.S. Army to quell the Whiskey Rebellion in rural Pennsylvania. It empowers the president to use military force as needed to put down large-scale violent attacks on civil authority; and was most recently used by the first President Bush to end a race riot in Los Angeles in 1992 (Banks, 2004). Neither the Posse Comitatus Act nor the Insurrection Act were invoked in the response to Hurricane Katrina, although both framed the arena within which the second President Bush and Louisana Governor Blanco met to negotiate operational control of the Katrina response and the use of federal (as distinguished from state national guard) military forces in the hurricane’s aftermath. President Bush, Louisiana Governor Blanco, and New Orleans Mayor Nagin aboard Air Force One at the New Orleans airport on September 2, in the storm’s immediate aftermath (Moller, 2005). The full scope of the disaster was just then coming into focus. Broadcast and print news media were filled with accounts of New Orleansarea and other frantic Gulf Coast residents either fleeing the region or trapped and helpless; of the FEMA director and U.S. Homeland Security secretary both publicly professing less knowledge of the growing catastrophe in New Orleans than was freely available in televised news reports; and of local and state first responders unable to communicate with each other and thus unable to get the necessary disaster relief personnel and supplies to those most in need (Gorman, 2005). The subject of this now-historic meeting on the tarmac at Louis Armstrong International Airport was what mix of federal and state/local resources should be deployed when and where, and who should control them. Specifically, the president reportedly offered to bring the full force of the U.S. military to bear on disaster relief, as a backup to FEMA. But this he would do only if Governor Kathleen Blanco voluntarily relinquished all command authority in the situation, including control over her National Guard. When she asked the president if the same requirement was being imposed on neighboring Mississippi Governor Haley Barbour as a condition for his state receiving federal military aid, she was told it was not (Millhollon, 2005). Governor Blanco told President Bush she wanted 24 hours to think about his offer and its conditions before making such a decision, or perhaps negotiating some compromise regarding control of the situation. Upon the president’s return to Washington later that day, however, his staff faxed to her office for her Published by The Berkeley Electronic Press, 2008 8 JHSEM: Vol. 5 [2008], No. 1, Article 35 signature a document embodying his original offer and its conditions, as the price of receiving federal military aid. The governor declined (Millhollon, 2005). The situation was eventually resolved by an influx of National Guard units from other states in the region, as well as a limited use of uniformed military forces to back up local law enforcement. But it did point up the need for a closer look at the question of how such situations should be handled in the future. Emerging from this experience, President Bush left no doubt as to what he thought should be done regarding this particular issue of federalism. At a speech two weeks later in New Orleans and at a press conference a few days after that, the president called on Congress to give him the authority to use the military for all forms of disaster response (including natural disasters, and including local law enforcement powers) anywhere in the country anytime he deemed it necessary. He also wanted the ability to use these powers whether the governors of the affected states asked for it and agreed to it or not (Sanger, 2005). At about the same time the president was advocating the preemptive assertion of federal authority in naturally caused disasters, Admiral Timothy Keating, then-commanding officer of the North American Command (a Defense Department agency responsible for coordinating DoD all-hazards management) likewise publicly advocated giving the U.S. military supreme incident command and control authority in all catastrophic disasters, including naturally caused ones (Sylves, 2008). In the autumn of 2006, one of the final legislative actions of the out-going Republican-led Congress was a little-notice rider to a defense appropriations bill giving the president just the authority he had requested (P.L. 109-364, § 1076). However, a strong negative reaction to this provision by state governors led to its repeal just over a year later (P. L. 110-181, 2008 National Defense Authorization Act, § 1068). Just as conflicts have arisen over the proper balance between federal and state or local government natural hazards management authority in the public policy arena, so too have they manifested in federal court. In a case generated by the recovery phase from Hurricane Betsy in 1965, the U.S. Army Corps of Engineers deposited toxic refuse in the City of New Orleans’ Agriculture Street landfill, which was then later declared a Superfund site under the Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA). Under the federal disaster management statute applicable at the time, the federal government was immune from suit for monetary damages associated for problems created by its recovery efforts; the Stafford Act as amended continues to assert such immunity from civil liability for federal agencies and employees engaged in disaster relief. But under CERCLA, the federal government does remain liable. Forty years after Hurricane Betsy and the deposit of its toxic detritus in a New Orleans landfill, this tension between the Stafford Act and http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 9 CERCLA was still the subject of litigation in New Orleans, concerning who should bear responsibility for what cleanup costs Another federalism issue illustrating the financial aspects of natural disaster recovery concerns reimbursement for rebuilding costs. After Hurricane Iliki devastated much of the Hawaiian island of Kauai in 1992, FEMA provided the state of Hawaii with emergency funding for the reconstruction of key public facilities such as schools and hospitals, then awaited reimbursement from the state’s private insurers. However, the insurance companies refused to reimburse the state for the full costs of reconstruction; and Hawaii decided to settle for the lesser amount rather than litigate for the remainder. FEMA thereupon sued Hawaii for the balance due. A federal appeals court eventually held that Hawaii was not liable to FEMA for more than the amount the state was able to collect from its insurers. The federal court decisions listed in column C of Table 1 exemplify some of the legal issues associated with relationships between agencies involved in disaster management and private citizens affected by their management decisions. In this sampling of cases, the issues fall into the two broad categories of constitutional rights and sovereign immunity. Regarding individual constitutional rights, a landmark decision in the realm of mitigating property damage in flood-prone areas was a 1978 federal district court ruling (sustained on appeal to the Supreme Court) upholding the federal flood insurance program. In Texas Landowners' Rights Association v. Harris, plaintiff landowners sued the federal agency administering the national flood insurance program, because the program required that flood-prone communities engage in flood plain land use management for the purpose of mitigating property damage, and denied federal financial assistance in property acquisition (e.g., FHA loans) for the purchase of property in flood-prone areas in which such land use planning did not exist. Since the denial of federally assured financing for property purchases in flood-prone communities not engaged in flood plain management had the effect of reducing property values in these communities, landowners sued the United States on the theory that their lost property value constituted a taking of their property by the federal government. In rejecting this argument, the court thereby upheld government authority to require community and individual disaster mitigation measures as a condition for federal financial assistance in property acquisition and restoration subsequent to a flood-related disaster. However, in 1992, U.S. Supreme Court was less supportive of the State of South Carolina's efforts to restrict residential land development in highly stormvulnerable stretches of its coastline. In Lucas v. South Carolina Coastal Commission, a slim majority on the high court found that since plaintiff Lucas had purchased his coastal property with the intent of residential development prior to Published by The Berkeley Electronic Press, 2008 10 JHSEM: Vol. 5 [2008], No. 1, Article 35 passage of state legislation empowering the Coastal Commission to restrict such development for the purpose of natural disaster mitigation, the state owed Lucas compensation for diminution in the value of his property occasioned by this regulation. Lucas has since come to be seen as something of an outlier in Supreme Court takings jurisprudence, in that in subsequent decisions the high court has reverted to its more traditional stance of generally supporting government efforts at disaster mitigation land use regulation, including protection against legal attacks by landowners who purchased their property before such regulation was imposed (e.g., the Tahoe Regional Planning Commission decision). However, Lucas does serve as a reminder to policy makers and land use planners that the difference between reasonable regulation and a compensable taking still ultimately rests in the eye of the judge beholding the government action being challenged. McWaters v. FEMA was a class action lawsuit brought by survivors of Hurricane Katrina against the Federal Emergency Management Agency for its handling of recovery efforts, with particular regard to its administration of the emergency housing assistance program as provided for in the Stafford Act. This case raised both constitutional and sovereign immunity issues, the treatment of which are intertwined in the court's decision. Individual constitutional rights are assured to persons subject to governmental jurisdiction in the United States by the Bill of Rights (first ten amendments) to the U.S. Constitution, and made applicable to local and state government (except where exempted by the tenth and eleventh amendments) by the due process and equal protection clauses of the fourteenth amendment. Since 1803, the U.S. Supreme Court has regularly ruled that whenever a congressional enactment, federal administrative action, or action by any subordinate level of government imposes an unwarranted restriction on the exercise of these rights, these actions will be found unconstitutional and thus unenforceable. By contrast, the doctrine of sovereign immunity is one that we inherited from the British common law tradition, as since modified and conditioned by acts of Congress and state legislatures. In essence, the doctrine states that no governmental entity may be sued except with the consent of the government. The reasoning underlying the doctrine is that if governmental institutions were completely vulnerable to civil suit, the tax monies collected to serve the public interest would instead be siphoned off to private plaintiffs by the courts. As the powers of government grew steadily throughout the late nineteenth and twentieth centuries, however, the sovereign immunity doctrine in its pure form eventually became politically unpalatable, and Congress began to make exceptions to it. It has waived sovereign immunity in cases where government action causes harm to persons (the Federal Tort Claims Act) or property (the http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 11 Tucker Act); and has also waived it when plaintiffs are seeking injunctive relief from government action rather than money damages (the Administrative Procedure Act). Conversely, there are also policy areas in which Congress has explicitly asserted the sovereign immunity doctrine, and one of these is the Stafford Act. The sovereign immunity provisions of the act are to some extent analogous to the "good Samaritan" laws enacted by many state legislatures. These statutes generally hold that when a passer-by renders emergency aid to a person in distress, the helper is immune from suit for any reasonable actions s/he takes in good faith that might have inadvertently resulted in further harm to the victim. So too, the Congress reasoned, should federal agencies engaged in disaster management be immune from suit by disaster victims who felt they had been harmed by federal efforts to help them. In McWaters, the plaintiffs charged that FEMA had been so inept in its administration of the Stafford Act's temporary housing assistance program as to constitute an illegal denial of benefits accruing to them under the act. But while the federal trial court judge agreed that FEMA's actions hardly exemplified bureaucratic efficiency or even competence, he nonetheless ruled that FEMA was immune from suit under the Stafford Act's sovereign immunity provisions – but with one important exception. FEMA had summarily terminated housing assistance benefits (rental payments to motels in which displaced Gulf Coast residents were staying) without affording them a pre-termination due process opportunity to challenge such termination. FEMA asserted that it was under no such procedural obligation, since recipients had no property interest in the housing assistance benefit. Au contraire, the court ruled. Though plaintiffs had no right to receive rental assistance past their eligibility deadline, they did have a congressionally created property interest in entitlement to participation in the housing assistance program within the confines of those deadlines. As a result of this property interest, plaintiffs were also entitled to pre-termination due process to ensure that FEMA was making its termination decisions fairly and accurately. And since these due process rights are grounded in the fifth amendment to the U.S. Constitution, they trump the Stafford Act's assertion of sovereign immunity for all response and recovery actions FEMA undertook post-Hurricane Katrina. The U.S. Army Corps of Engineers won a more complete sovereign immunity victory in a class action suit brought by a citizens' group against the Corps for having dumped post-Katrina flood debris in a city park and not later having removed it. The group brought its action under the federal Resource Conservation and Recovery Act (RCRA), which waives sovereign immunity in cases asserting federal noncompliance with the act. However, the district court ruled instead that the controlling statute should be the Flood Control Act, which Published by The Berkeley Electronic Press, 2008 12 JHSEM: Vol. 5 [2008], No. 1, Article 35 extends immunity to the Corps for all actions taken in the interests of flood control. The political and legal debate over sovereign immunity vs. civil liability for government actions in natural disaster management stretches considerably further back in our history than the Gulf Coast storm season of 2005. In the wake of Hurricane Andrew in 1992, FEMA contracted with severely damaged mobile home park owners in Florida to clear debris from their property in return for using it for temporary housing sites for hurricane-displaced homeless persons, making assurances that the property would be protected and restored. But the contractors hired by FEMA to do the debris removal work instead destroyed the landscaping and infrastructure at these parks, resulting in a damages action by park owners against FEMA. FEMA sought protection under the sovereign immunity provisions of the Stafford Act. However, in Dureiko v.U.S., the Court of Appeals for the District of Columbia ruled that the controlling law in this case should not be the Stafford Act, but rather those provisions of the Tucker Act holding that when the federal government through breach of contract deliberately damages private property, it should be held financially liable. LEGAL MAPPING EFFORTS. OF ACCIDENTAL DISASTER MANAGEMENT For demonstration purposes, this section focuses on a handful of federal statutes governing the management and transport of hazardous wastes. Two federal statutes directly involved in managing accidental disasters (most of which involve some combination of human error and mechanical failure at industrial sites) are the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA; better known as “Superfund”). First enacted by Congress in 1976, RCRA established the “cradle to grave” regime for tracking toxic and hazardous substances from their manufacture to their transport to their usage to their disposal. Its orientation is thus on the present and future management of such substances, and it devolves a very substantial amount of implementation and enforcement authority to state government. By contrast, CERCLA generally focuses on the past, in performing two related functions. One is assigning financial liability and specifying cleanup technologies and standards for the long-term remediation of environmental http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 13 Table 2. SOURCES OF LEGAL AUTHORITY IN ACCIDENTAL HAZARDS MANAGEMENT INTRAConstitutional A. Functions GOVERNMENTAL RELATIONSHIPS (e.g. Interagency, Inter -& Intrabranch) All-Hazard Cycle Phases i. CERCLA12 ii. RCRA13 1. MITIGATION iii. HSA14 iv. FRSA15 RCRA Subt. G 2. PREPAREDNESS i. RCRA Subt. G ii. CERCLA T. I 3. RESPONSE CERCLA T. I 4. RECOVERY B. INTERGOVERNMENTAL RELATIONSHIPS (eg., Federalism) C. GOVERNMENT -INDIVIDUAL RELATIONSHIPS (e.g., Bill of Rights) RCRA Subt. C, D In Re Jury16 EPCRA (CERCLA)17 Hcknsk Ost.18 CERCLA T. I i. U.S. Colorado20 ii. Baltimore CSX21 Grand v. Del. U.S. v. W.R. Grace19 v. Mehl v. CPR22 v. damage caused by the past uncontrolled release of toxic and hazardous. The other is providing for an immediate emergency response to such releases that pose an imminent threat to environmental and human health. In fact, one criticism of CERCLA as enacted in 1980 was that its exclusive emphasis was on the response and recovery phases of the accidental disaster cycle, with not enough on 12 42 U.S.C. § 6901 et seq. 42 U.S.C. § 9601 et seq. 14 Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (and as amended). 15 Federal Rail Safety Act of 1970 (as amended), 49 UCS 20201 et seq. 16 In Re Special Grand Jury, 450 F.3d 1159 (10th Cir. 2006). 17 42 U.S.C. § 11023. 18 Hackensack Riverkeepers v. Delaware Ostego Corp., 450 F. Supp. 2d 467 (E.D. 2006). 19 429 F.3d 1224 (10th Cir. 2005). 20 990 F.2d 1565 (10th Cir. 1993). 21 Baltimore v. CSX Transportation, 404 F. Supp. 2d 869 (D.Md. 2005). 22 Mehl v. Canadian Pacific Railway, 417 F. Supp. 2d 1104 (D.N.D. 2006). 13 Published by The Berkeley Electronic Press, 2008 14 JHSEM: Vol. 5 [2008], No. 1, Article 35 mitigation and preparedness. That changed in 1986, subsequent to the catastrophic, lethal release of toxic gas from a Union Carbide plant in Bhopal, India; and another accidental gaseous discharge from a plant owned by the same company in Industry, West Virginia. Later that same year Congress amended CERCLA by adding the Emergency Planning and Community Right to Know Act (EPCRA). Adopted largely against industry wishes (for fear of exposing trade secrets), this provision of the 1986 Superfund amendments explicitly emphasizes the mitigation and preparedness phases of the industrial disaster management cycle, by involving local government first responders and members of the public in assessing the degree of threat posed to their community by the existence of hazardous and toxic substances in their midst, and planning for the orderly evacuation of and other protection measures for community members in the event of an accidental industrial disaster. The mandatory disclosure of onsite toxic and hazardous materials and of their occasional release into the environment required by EPCRA has been widely credited with encouraging industries to find less dangerous means of manufacturing their products and doing a better job of managing dangerous materials essential to their objectives. But after the terrorist attacks on the United States in September of 2001, there was understandable concern that the public disclosure of so much information concerning potential industrial hazards might increase the likelihood of industrial sabotage. Often overlooked in writings about the 9/11 attacks is the fact that they were all acts of industrial sabotage – the use of industrial infrastructure intended for one purpose (air transport) to accomplish another (mass murder). Further, most industrial infrastructure in the United States remains highly vulnerable to such attacks, inasmuch as Congress has so far declined to mandate comprehensive federal industrial security standards and enforcement. What the local emergency planning committees established under the 1986 CERCLA amendments having been trying to do ever since the national tragedy of 9/11 is to strike a balance. That balance is between a community’s right and need to know the existing industrial infrastructural dangers in its midst and what might be done about them on the one hand; and its concomitant need to be protected from possible attacks on that infrastructure on the other (DurhamHammer, 2004). The local implementation of these right to know provisions as contrasted with the threat of industrial sabotage presents yet another example of the potential for either culture clash or cooperative management across agencies and governmental jurisdictions (which is why the citation to this provision in CERCLA is located at cells B-1 and B-2 of the matrix in Table 2). Insofar as the relationship between RCRA (mandating a substantial devolution of authority to state and local governments for the management of http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 15 active disposal sites) and CERCLA (imposing preemptive federal authority over toxic waste cleanup) is concerned, this is another relationship rife with the potential for either intergovernmental cooperation or for culture clash and legal conflict. One well-documented example of the latter is the suit and countersuit the state of Colorado and the United States Government launched against each other over remediation efforts at the Rocky Mountain Arsenal, a nerve gas and (later) pesticide production plant and disposal site just east of Denver, often characterized as having been one of the most dangerously polluted industrial sites on Earth. In its struggle over cleanup standards and the regulation of activities at the site, the state claimed partial jurisdiction under RCRA while the Army asserted preemptive control over the site under CERCLA. A federal appeals court eventually sided mostly with Colorado on this particular issue, granting it concurrent regulatory jurisdiction (Table 2, cell B-4). Another industrial accident response and recovery issue arising under CERCLA is whether a cleanup action should be properly characterized as an emergency response or recovery-phase remediation. Which phase of the emergency management cycle (response or recovery) the U. S. Government should be understood to be engaged in matters a great deal in CERCLA implementation, since recovery efforts entail a great deal more consultation and negotiation over cleanup methods and costs with parties responsible for the damage than does an initial emergency response. One important court decision addressing this issue is U.S. v. W.R. Grace, cited in cell C-3 of Table 2. It is located in cell C-3 instead of C-4, because the federal appellate court hearing the case upheld the government’s assertion that it was an emergency response rather than the responsible private party’s position that it was a remedial recovery action. Regarding the role of the public in trying to mitigate harm caused by inadequate RCRA and CERCLA implementation (Table 2, cell C-1), one novel case involves the efforts of a federal grand jury to make the public aware of a potentially disastrous public health threat at one of the nation's nuclear weapons manufacturing plants. Acting on confidential information conveyed by a whistleblower at the Rocky Flats Nuclear Weapons Plant (near Denver, Colorado), the U.S. Environmental Protection Agency and the Justice Department conducted an unannounced early morning raid at the facility (owned by the U.S. Department of Energy and operated by a private contractor), seizing hundreds of boxes of documents allegedly containing evidence of the commission of environmental crimes at the plant by the contractor, and covered up by officials at DoE. Although the plant was no longer manufacturing plutonium triggers for thermonuclear weapons, hundreds of pounds of this highly radioactive material were unaccounted for at the plant, which was now being decontaminated under provisions of CERCLA. Years before, there had been uncontrolled radioactive Published by The Berkeley Electronic Press, 2008 16 JHSEM: Vol. 5 [2008], No. 1, Article 35 releases from the plant that had killed neighboring livestock, and there was some evidence that radioactive contamination of the environment may have begun to occur once again. A grand jury empaneled by the U.S. Attorney for Colorado studied the evidence, and in 1992 filed a report recommending the indictment of the contractors and of the DoE officials alleged to have covered up the contractor's malfeasance. Instead, however, the Justice Department negotiated a plea agreement under which the contractor simply paid a fine and the Energy Department was largely exonerated. The jurors then requested that the federal trial court judge overseeing their proceedings allow them to make public the portions of their report concerning potential public health endangerment occasioned by alleged criminal wrongdoing at the Plant. The trial court judge refused, on the grounds that the jurors had no standing to bring this action on the public's behalf. But in In Re Special Grand Jury, the Tenth Circuit Court of Appeals reversed, and remanded the case back to the trial court for a determination of what information ought to be released in order to prevent the possibility of further wrongdoing associated with the cleanup of the plant. (It is also worth noting that this case can equally well be categorized into cell A-1, since it involved a dispute between government agencies [DoE, EPA, and DoJ] as well as between DoJ and the courts). Some aspects of RCRA do address the safe transport of toxic and hazardous substances, at least insofar as rail transport is concerned, an entirely different and overlapping regulatory regime is brought into play. The 1970 Federal Rail Safety Act grants the Federal Railroad Administration what the federal courts are generally seeing as almost wholly preemptive authority over matters related to railroad safety regulation. Additionally, since congressional repeal of the Interstate Commerce Act in 1995, railroads have been substantially successful in arguing that the congressional intent in this economic deregulation should be extended to operational deregulation as well. As of this writing, the regulatory gaps created by this situation with other federal and many state laws are a source of continuing concern for emergency managers at every level of government. For example, in the case of Baltimore v. CSX Transportation (Table 2, cell B-4), the City of Baltimore sued CSX Transportation after a freight train CSX operated derailed in the city's Howard Street tunnel, puncturing a tank car that resulted in the uncontrolled release of an extremely hazardous, highly flammable gas, that in turn ignited a dangerously toxic fire it took the city five days to extinguish. But the federal trial court turned aside the city's negligence claims against the railroad. It held that as long as the tank car in question had successfully passed its most recent safety inspection as required by the Federal Rail Safety Act, the railroad as well as a different firm that owned the tank car http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 17 were both immune from the common law-based negligence action the city had mounted. In Mehl v. Canadian Pacific Railway, a federal district court in North Dakota felt compelled to follow the same reasoning, in dismissing a class action lawsuit against CPR. In 2002, one of the railroad's freight trains derailed near Minot, North Dakota, releasing a large quantity of anhydrous ammonia into the air that subsequently sickened several Minot-area residents. Bound by precedent established earlier by higher federal courts, the judge in Mehl arrived at the same conclusion as did the court in Baltimore v. CSX a year earlier – that as long as the defective rails that caused the derailment at Minot had passed their most recent inspection, the Federal Rail Safety Act shielded railroads from suits by injured persons as well as by local governments seeking to reclaim funds expended on disaster response. But near the end of his opinion, the judge in Mehl expressed his frustration at being forced to hand down what seemed to him a manifestly unjust ruling: "the [FRSA] fails to provide any method to make injured parties whole and, in fact, closes every available door and remedy for injured parties. As a result, the judicial system is left with a law that is inherently unfair to innocent bystanders and property owners who may be injured by the negligent actions of railroad companies" (Mehl, 417 F. Supp 2d at 1120). Although the federal courts have almost uniformly denied relief to citizens and local governments alike seeking to recover costs for personal injuries and emergency response costs, these plaintiffs have been a little more successful in using other federal laws to overcome the preemption protections asserted by railroads under the Federal Rail Safety Act, at least insofar as the handling of hazardous wastes is concerned. In Hackensack Riverkeepers v. Delaware Ostego Corp. (Table 2, cell C-2), environmental groups sued railroads operating hazardous waste transfer facilities in their railyards to enjoin present and future contamination of the surrounding environment. The railroads claimed preemptive protection under the 1995 act disbanding the Interstate Commerce Commission and de-regulating the railroads. However, the court sided with environmental plaintiffs, in a finding that the railroads were operating uncontrolled open dumps, in violation of the Resource Conservation and Recovery Act. LEGAL FRAMEWORK FOR MANAGING INTENTIONAL DISASTERS. However else the law might categorize a criminal act such as arson or a terrorist attack on American industrial infrastructure (such as those occurring in September of 2001), they are also intentionally caused disasters. Using the framework Published by The Berkeley Electronic Press, 2008 18 JHSEM: Vol. 5 [2008], No. 1, Article 35 Table 3. SOURCES OF LEGAL AUTHORITY IN INTENTIONAL HAZARDS MANAGEMENT INTRAConstitutional A. Functions GOVERNMENTAL RELATIONSHIPS (e.g. Interagency, Inter -& Intrabranch) All-Hazard Cycle Phases AUFM,23 FISA,24 USAPatAct,25 1. MITIGATION HSA26 B. INTERGOVERNMENTAL RELATIONSHIPS (eg., Federalism) C. GOVERNMENT -INDIVIDUAL RELATIONSHIPS (e.g., Bill of Rights) CSX v. Williams27 i. Hamdi v. Rumsfeld28 ii. Blck. Tea v. Bstn.29 iii. AlHrmn v. Bush30 9/11 Comn. Act32 NIMS, C. III.31 NIMS, C. I NIMS, C. IV. NIMS, C. IV 9/11 Vctms. Act34 9/11 Act35 2. PREPAREDNESS 3. RESPONSE 4. RECOVERY Bnzmn. Whtmn.33 Vctm.Cmp. In Re WTC36 v. described in this article, this also means that steps taken by Congress (e.g., Foreign Intelligence Surveillance Act [FISA], Authorization for the Use of Military Force [AUFM], USA PATRIOT Act, Homeland Security Act [HSA]) and the Executive Branch can be seen as intentional disaster mitigation measures, 23 115 Stat. 224 (2001). 50 U.S.C. § 1801. 25 115 Stat. 272 (2001). 26 6 USC § 317. 27 406 F.3d 667 (D.C. Cir. 2005). 28 542 U.S. 507 (2004). 29 Bl(a)ck Tea Society v. City of Boston, 378 F.3d 8 (1st Cir. 2004). 30 Al Haramain Islamic Fdn. v. Bush, 507 F.3d 1190 (9th Cir. 2007). 31 Dept. of Homeland Security, National Incident Management System (2007). 32 Implementing Recommendations of the 9/11 Commission Act, Pub. L. 110-53 (2007). 33 Benzman et al v. Whitman, 2006 U.S. Dist. LEXIS 4005 (2006). 34 Procedural Fairness for September 11 Victims Act of 2007, Pub. L. 110-113 (2007). 35 September 11 Victim Compensation Fund of 2001, Pub. L. 107-42 (2001). 36 In Re World Trade Center Disaster Site Litigation, 2008 U.S. App. LEXIS 6222 (2008). 24 http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 19 which is why these congressional enactments are located at cell A-1 of Table 3. This is also why the same sections of the National Incident Management System found in Table 1 also appear in Table 3, since they apply to all disaster situations, regardless of cause (although they are most frequently used in naturally and intentionally caused hazards situations). In contemporary organizational jargon, the Preamble to the U.S. Constitution can be thought of as its authors' mission statement, since they knew they had to provide good reasons for allocating so much authority to a federal government that had theretofore been held only by the states. It consists of six spare yet potent phrases: "to form a more perfect Union, to establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .". Nowhere in the document do the framers give a hint as to whether these goals stand in a hierarchical or equilateral relationship, leaving most constitutional scholars to conclude that what the framers intended was for the federal government to simultaneously achieve all these goals all the time at some threshold level -- the exact level of each one contingent on historical circumstances. Thus, ever since ratification of the Constitution and adoption of its first ten amendments (the Bill of Rights), federal governmental institutions have been engaged in a balancing act, called upon to honor all six of these goals simultaneously at some threshold level. The framers surely understood that insuring domestic tranquility and providing for the common defense on the one hand while concomitantly assuring the blessings of liberty on the other would require a just such a balancing act, which is where institutions for the establishment of justice (principally the courts) come in. The mix of statutes, regulations, and court decisions in Table 3 all co-exist within this balancecompelling framework. The sources of law cited in Table 3 exemplify this balancing act. They all apply in one way or another to mitigating intentional disasters through military and domestic homeland security measures in relationship to the Bill of Rights. Of the several issues raised in the sources of law listed in Table 3, one concerns railroad safety regulation not from the perspective of industrial accident recovery (discussed above), but rather terrorist attack prevention, and in the context of intergovernmental relations. Following the terrorist attack on the Pentagon and the aborted attack on either the Capitol Building or the White House (Flight 93), the Washington, D. C. City Council realized that their city was a prime terrorist target – vulnerable to industrial sabotage on a variety of fronts. One such vulnerability was and is the nation's principal eastern seaboard north-south railroad route, which lies just over a mile from the nation's institutions of government. In an effort to prevent an attack on the city via sabotage of freight Published by The Berkeley Electronic Press, 2008 20 JHSEM: Vol. 5 [2008], No. 1, Article 35 trains hauling mass quantities of highly toxic liquids and gases, the city council adopted emergency legislation compelling the re-routing of trains hauling such materials around the nation's capitol along a more rural alternate line to the west. In response, the railroads challenge the D.C. ordinance in federal court, arguing that the local law was entirely preempted by the Federal Rail Safety Act. In CSX Transportation v. Williams (Table 3, cell B-1), the D.C. Circuit Court of Appeals agreed, and voided the local law. Many of sources of law in Table 3 relate to various aspects of the terrorist attacks of September 11, 2001. The Victims Compensation Act of 2001 (cell B4) was the first of several congressional enactments to aid in local rebuilding, in this case largely through the offering of compensation to survivors of the 9/11 attacks (thus, it could have appeared in column as well). However, the condition for the receipt of this aid was an agreement by survivors to not bring legal actions against federal, state, or local government entities for failure to prevent the attacks or to respond adequately. Many survivors chose not to enter into this agreement, and to bring suit instead. For the next several years, defendant governments were successful in erecting a series of procedural roadblocks against these suits – especially the denial of evidence requested by the plaintiffs. In 2007, Congress statutorily waived some of these procedural roadblocks, facilitating legal actions against federal agency defendants as well as other levels of government (cell A4). To assuage the panic and severe psychological trauma being suffered by residents of lower Manhattan, the day after the 9/11 attacks then-EPA Administrator Whitman began to assure residents that the millions of tons of dust still raining down on the neighborhood posed no unreasonable public health threat, and that they could initiate cleanup actions of their residents and places of business without fear. She repeated these assurances several times over the next few days, even as dust samples being analyzed by independent labs were indicating that cancer-causing asbestos in concentrations more than four times higher than the EPA's own standards pervaded the dust cloud settling over the city. Neighborhood residents later initiated a class-action lawsuit against EPA Administrator Whitman individually for knowingly misleading the public, and against the EPA for failing to adequately oversee the cleanup effort being carried out by the local EPA office and local government. In Benzman et al v. Whitman, the federal trial court dismissed the suit against the EPA, but allowed the suit against former EPA Administrator Whitman to proceed, in that preliminary evidence tended to show that she had indeed substantially misrepresented the gravity of the public health threat to which Manhattan residents were being exposed in the immediate aftermath of the World Trade Center's collapse. During the months' long recovery phase, paid and volunteer cleanup http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 21 workers were continuously exposed to airborne toxins as well, and began to suffer severe and continuing health effects as a result. However, their class action suit against all the governmental entities overseeing the cleanup and (in the plaintiffs' view) not adequately protecting their health was less successful (In Re WTC, cell C-4). In the aftermath of the terrorist attacks, Congress established a bi-partisan commission to study governmental deficiencies that failed to protect the nation from such an assault, and to examine both successes and failures during the response and recovery phases. Finally, in 2007 Congress passed follow-up legislation based on the commission's recommendations to better prepare for the next such attack, should the nation again be unsuccessful in preventing one (cell C-2). The remaining issues (in the cases listed in cell C-1) all concern tensions between the efforts of the executive branch of the federal government to prevent another terrorist attack, and judicial interpretations of the Bill of Rights. Hamdi v. Rumsfeld was the first case in which the Supreme Court took up the question of what ought to be the role of the judiciary in reviewing both civilian and military exercises of federal executive authority in times of heightened threats to national security; and also addressed the question of whether the due process clause of the Fifth Amendment should apply to persons seized and held by the federal government without charges and without benefit of legal counsel on a suspicion that such detainees were "enemy combatants". This is the decision in which retiring Justice O’Connor made her well-known observation that judicial deference to executive branch war powers was not a constitutional “blank check”. It was the Fourth Amendment (prohibiting governmental searches and seizures without a warrant) that provided the focal point for a case heard by the Ninth Circuit Court of Appeals on the question of the extent to which the National Security Agency could electronically eavesdrop without a warrant on persons in the United States communicating with others abroad. In Al Haramain Islamic Foundation v. Bush, an international charity which learned it had been the subject of such warrantless surveillance sued the Bush Administration to have the NSA program enjoined. The government defended itself in this suit – as well as all others challenging the constitutionality of the program – by invoking the state secrets privilege. This judicially created doctrine shields the federal government from being compelled in open court to disclose information that might jeopardize national security. The Supreme Court first acknowledged the privilege in U.S. v. Reynolds in 1953. In this case, the family members of crewmen killed in the crash of an Air Force bomber sued the Defense Department for wrongful death, based on information their now-dead family members had told them about the unsafe condition of their aircraft. But DoD successfully argued that the accident report Published by The Berkeley Electronic Press, 2008 22 JHSEM: Vol. 5 [2008], No. 1, Article 35 was classified, and that to disclose its contents would threaten national security. The Supreme Court sided with the government, without independently examining Air Force documents to confirm the existence of state secrets Nearly half a century later the accident report was declassified, revealing that the report contained not state secrets, but evidence that the aircraft was indeed unsafe, and that government lawyers had committed fraud on the court by asserting otherwise. So judges in cases raising the state secrets privilege defense have a variety of options before them. One is to defer absolutely to the government's argument, and dismiss the case forthwith (as did the Supreme Court in Reynolds). They can examine the disputed documents in camera (in private), to decide for themselves if the state secrets privilege should rightly apply. Having done so, they can then either defer to the government anyway or reject assertion of the privilege. In Al Haramain, the court viewed the documents in camera and agreed that the state secrets privilege had been properly invoked. But it also gave plaintiffs leave to go to trial on the question of whether the NSA's surveillance program violated the Fourth Amendment. One final issue exemplifying the balance between intentional disaster prevention and civil liberties protection in Table 3 concerns National Special Security Events. When the president grants this status to a public event (usually one at which level national and international political leaders will be present), the U.S. Secret Service assumes plenary authority over all aspects of security planning and ground operations during the event; subordinate levels of government must by law defer to Secret Service decision making in such circumstances. The 2004 national political conventions were such events. Since the conventions were taking place just three years after the 9/11 terrorist attacks, security planning was very tight. The City of Boston negotiated with representatives of groups planning to protest at the Democratic Convention for nearly a year, seeking to assure security at the convention on the one hand while still providing adequate opportunity for protesters to express dissenting political views to conventioneers on the other. But just one week before the convention, protesters learned that they would be confined to a "free speech zone" at a fencedin construction site partially obstructed by a rail-line trestle. They sued to enjoin enforcement of security plan. In Bl(a)ck Tea Society v. Boston, the federal courts readily conceded that the protesters First Amendment rights had been abrogated at the convention. But they also held that it was not the province of federal judges to substitute their own judgment on how to protect the lives of the nation's leaders and other attendees at NSSEs for that of the Secret Service – the agency Congress had entrusted with that responsibility. The court in this case did encourage municipal governments and the Secret Service to consult with and seek some common ground with politically dissenting groups at future such events. http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 23 However, in May of 2008 the American Civil Liberties Union filed suit against the City of Denver and the Secret Service for failing to follow this judicial advice, in planning for the 2008 Democratic National Convention. CONCLUSION Across the wide array of issues covered in Tables 1, 2, and 3, there are some similarities in the law of naturally, accidentally, and intentionally caused hazards management that are worth pondering. Tracing these issues to their common constitutional roots makes clear these similarities, and also reveals areas in which law reform seems to be needed. THE ROOTS, THE FOREST, AND THE TREES At the outset of this article is the common criticism of disaster management agencies as tending to inhabit their own command-and-control "silos", and needing to do a better job of coordinating their efforts. As the analysis in this article has shown, however, a more nuanced but perhaps more useful perspective is revealed. Agencies are created and the contours of their authority are defined by legislative enactments – at the federal level, by acts of Congress. And the Congress has organized itself into dozens of committees and subcommittees claiming some measure of legislative jurisdiction over all-hazards management. Legislative jurisdiction is every bit as fragmented, diffused, and jealously guarded in the halls of Congress as it is among agencies with disaster management responsibility in the field. Among the most glaring examples of this problem as illustrated in this article is that of railroad safety regulation. Responsibility for enforcement of the Federal Rail Safety Act lies with the Federal Railroad Administration, which is housed in the U.S. Department of Transportation. Yet although other legislation empowers federal agencies to regulate the hours a pilot can fly a commercial aircraft or a long-haul truck driver can spend behind the wheel, Congress did not empower the FRA or any other agency to regulate the hours a rail crew can operate a freight train. Three fourths of train accidents have been attributed to [often fatigued] operator error (Plant, 2008). Moreover, safety regulation of the sometimes ultra-hazardous payloads these trains haul is delegated to the underpowered, under-staffed FRA in the Department of Transportation rather than the Transportation Security Administration or any other entity in the Department of Homeland Security. The federal judge in the Mehl case forcefully asserted that the federal rail safety regulation system was broken, and needed fixing. Under the current fragmented and clearly deficient system, as long as rail freight equipment passes Published by The Berkeley Electronic Press, 2008 24 JHSEM: Vol. 5 [2008], No. 1, Article 35 infrequent and sometimes uneven inspections, local governments have no ability to recoup disaster response and recovery costs, and injured citizens likewise have no ability to financially recover from rail safety failures. If Congress wants a more unified and better coordinated federal all-hazards management system, perhaps it can begin by lessening attachment to its own free-standing silos and the turf surrounding them. Until it does do, the result will continue to be the legal disempowerment of governments and citizens harmed by inadequate regulation. FEDERALISM Reviewing the legal issues in column B of Tables 1, 2, and 3 reveals that although presented as legal relationships and conflicts, several of them actually concern fiscal relationships and the allocation of fiscal burden. For example, it has now become something of a truism that perhaps the greatest unfunded federal mandate of post-9/11 local and state governance is the National Incident Management System. Although the ultimate goal (effective intergovernmental coordination in all-hazards management) may be a laudable one, the means by which federal agencies are putting it into effect have shifted massive implementation costs onto levels of government hard-pressed to meet them (Sylves, 2008). Likewise, conflicts between local or state governments and federal agencies in natural disaster response and recovery has tended to center on allocation of costs. Another commonality in the realm of federalism, regardless of the cause of the hazard, is that of preemption. Especially since the terrorist attacks of September, 2001, Congress and the federal agencies have steadily asserted more authority over all-hazards management at every level of government than has ever before existed in the United States. This initial reaction is understandable, given the gravity of that assault on the nation's security that initiated this trend. But there is some evidence that Congress may have decided the pendulum has now swung too far, as evidenced by its 2008 rescission of preemptive presidential authority over natural disaster management. ALL-HAZARDS MANAGEMENT AND THE BILL OF RIGHTS Whether the issue is land use regulation, sovereign immunity, search and seizure, information security, or due process, one broad generalization that may be drawn from all these cases is that the courts seem to be a little more deferential to individual rights and liberties in the mitigation and preparation phases of disaster management, while more deferential to government agencies' actions during the response and recovery phases. But again, many of the policies and much of the caselaw reviewed here has been produced since September of 2001. Several scholars (e.g., Rubin et al, 2007; Sylves, 2008) have observed that http://www.bepress.com/jhsem/vol5/iss1/35 Burton: The Constitutional Roots of All-Hazards Management 25 as a nation and as a political culture we tend to be much more reactive than proactive in our orientation when it comes to disaster management. Our inconsistent and uneven quarantine laws are mostly products of the epidemics that immediately preceded them. The Homeland Security Act is a product of 9/11, and we're still waiting to see whether recent and proposed Department of Homeland Security internal reforms will make it capable of improving on its generally abysmal management of the Hurricane Katrina disaster. In general, our shakiest lawmaking and most regrettable court decisions (e.g., the Japanese internment cases) have occurred in national climates of reactive fear and anger, in the aftermath of major national catastrophes. Naturally, accidentally, and intentionally caused disasters will probably continue to be with us to one degree or another, and in one form or another, for the indefinite future. Unfortunately, we have a history of post-disaster policy making that sacrifices one of the six core values of the Constitution's preamble for the sake of another. It is possible that, in the context of this largely reactive policy legacy, the most forward-thinking document in the law of all-hazards management is the two centuries-old Constitution itself. Like the root system of Utah's aspen grove, it lies generally unacknowledged beneath the strata of statutes, regulations, and court decisions governing all-hazards management. But clearly seen and understood, it is capable of protecting us from our own reactive excesses. It can likewise remind us of the common source from which our seemingly separate efforts at protecting the public while ensuring its freedoms have grown. REFERENCES Banks, William, 2004. The Normalization of Homeland Security After September 11: the Role of the Military in Counterterrorism Preparedness and Response. Louisiana Law Review 64:735-778. Gorman, Siobhan and Tom Bowman, 2005. Disaster Workers Left Out In Silence; Better Communications Equipment Years Away, Baltimore Sun, September 19, p. 1A. Grant, Michael, 1993. The Trembling Giant, Discover Magazine, October 1, 1993 (retrieved 5/12,/08; http://discovermagazine.com/1993/oct/thetremblinggian285). Millhollon, Michelle, 2005. Blanco Says Feds. Pledged Buses, The [Baton Rouge] Advocate, September 18, p. 1A. Published by The Berkeley Electronic Press, 2008 26 JHSEM: Vol. 5 [2008], No. 1, Article 35 Moller, Jan, and Robert Scott, 2005. : Appeals For Troops Unheeded For Days, The [New Orleans] Times-Picayune, September 8, p. A1. Plant, Jeremy, 2008. Rail Safety: Targeting Oversight and Assessing Results, Public Administration Review 68(1): 137. Rubin, Claire, ed., 2007. Emergency Management: The American Experience, 1900-2005 (Fairfax, VA: Public Entity Risk Institute). Sanger, David, 2005. Bush Wants to Consider Broadening of Military's Powers During Natural Disasters, New York Times, September 27, p. A18. Shapiro, Martin and Rocco Tresolini, 1983. American Constitutional Law (NY: MacMillan, 6th ed.), p. 9. Stephens, Hampton, 2003. Supreme Court Filing Claims Air Force, Government Fraud in 1953 Case: Case Could Affect 'State Secrets' Privilege, Inside the Air Force, March 14, 2003. Sylves, Richard, 2008. Disaster Policy and Politics (Washington, D.C.: CQ Press). Tribe, Lawrence, 1988. American Constitutional Law (Mineola, NY: Foundation Press, 2nd ed.), p. 1-17. Waugh, William, 2000. Living With Hazards, Dealing With Disasters: An Introduction to Emergency Management. Armonk, NY: M.E. Sharpe. http://www.bepress.com/jhsem/vol5/iss1/35 National Preparedness Goal Second Edition September 2015 National Preparedness Goal Ta b l e o f C o n t e n t s Introduction ................................................................................................................... 1 Core Capabilities ........................................................................................................... 3 Overview ...................................................................................................................................3 Risk and the Core Capabilities ...............................................................................................4 Mission Area: Prevention ........................................................................................................5 Mission Area: Protection .........................................................................................................8 Mission Area: Mitigation ......................................................................................................10 Mission Area: Response ........................................................................................................12 Mission Area: Recovery ........................................................................................................17 Conclusion and Next Steps ........................................................................................ 21 Appendix A: Terms and Definitions......................................................................... A-1 i National Preparedness Goal This page intentionally left blank. ii National Preparedness Goal Introduction Preparedness is the shared responsibility of our entire nation. The whole community contributes, beginning with individuals and communities, the private and nonprofit sectors, faith-based organizations, and all governments (local, regional/metropolitan, state, tribal1, territorial, insular area2, and Federal). This second edition of the National Preparedness Goal reflects the insights and lessons learned from four years of real world events and implementation of the National Preparedness System.3 We describe our security and resilience posture through the core capabilities (see Table 1) that are necessary to deal with the risks we face. We use an integrated, layered, and all-of-Nation approach as our foundation for building and sustaining core capabilities and preparing to deliver them effectively. The National Preparedness Goal is: A secure and resilient Nation with the capabilities required across the whole community to prevent, protect against, mitigate, respond to, and recover from the threats and hazards that pose the greatest risk. Using the core capabilities, we achieve the National Preparedness Goal by: ? Preventing, avoiding, or stopping a threatened or an actual act of terrorism. ? Protecting our citizens, residents, visitors, assets, systems, and networks against the greatest threats and hazards in a manner that allows our interests, aspirations, and way of life to thrive. ? Mitigating the loss of life and property by lessening the impact of future disasters. ? Responding quickly to save lives, protect property and the environment, and meet basic human needs in the aftermath of an incident. ? Recovering through a focus on the timely restoration, strengthening, and revitalization of infrastructure, housing, and the economy, as well as the health, social, cultural, historic, and environmental fabric of communities affected by an incident. The core capabilities contained in the Goal are the distinct critical elements necessary for our success. They are highly interdependent and require us to use existing preparedness networks and activities, coordinate and unify efforts, improve training and exercise programs, promote innovation, leverage and enhance our science and technology capacity, and ensure that administrative, finance, and logistics systems are in place to support these capabilities. The core capabilities serve as both preparedness tools and a means of structured implementation. All manner of incidents across the whole community have proven the usefulness of the core capabilities and the coordinating structures that sustain and deliver them. These range from 1 The Federal Government recognizes that the tribal right of self-government flows from the inherent sovereignty of American Indian and Alaska Native Tribes as nations and that federally recognized tribes have a unique and direct relationship with the Federal Government. 2 Per the Stafford Act, insular areas include Guam, the Commonwealth of the Northern Mariana Islands, American Samoa, and the U.S. Virgin Islands. Other statutes or departments and agencies may define the term insular area differently. 3 The National Preparedness System outlines an organized process for the whole community to move forward with its preparedness activities and achieve the National Preparedness Goal. 1 National Preparedness Goal localized and regional incidents, larger events involving both Stafford Act4 disaster and emergency declarations, and operations conducted under other authorities (e.g., response to an emerging infectious disease outbreak). Individual and community preparedness is fundamental to our National success. Providing individuals and communities with information and resources will facilitate actions to adapt to and withstand an emergency or disaster. As we have seen in tragic incidents both at home and abroad, anyone can contribute to safeguarding the Nation from harm. Our national resilience can be improved, for example, by raising awareness of the techniques that can save lives through such basic actions as stopping life-threatening bleeding. By providing the necessary knowledge and skills, we seek to enable the whole community to contribute to and benefit from national preparedness. Whole community contributors include children5; older adults; individuals with disabilities and others with access and functional needs; those from religious, racial, and ethnically diverse backgrounds; people with limited English proficiency; and owners of animals including household pets and service animals. Their needs and contributions must be integrated into our efforts. Each community contributes to the Goal by individually preparing for the risks that are most relevant and urgent for them individually. By empowering individuals and communities with knowledge and skills they can contribute to achieving the National Preparedness Goal. We continue to make progress in building and sustaining our national preparedness. The Goal builds on these achievements, but our aspirations must be even higher to match the greatest risks facing our Nation. As we prepare for these challenges, our core capabilities will evolve to meet those challenges. 4 The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes the President to provide financial and other assistance to local, state, tribal, territorial, and insular area governments, as well as Federal agencies, to support Response and Recovery efforts in the wake of emergency or major disaster declarations. 5 Children require a unique set of considerations across the core capabilities contained within this document. Their needs must be taken into consideration as part of any integrated planning effort. 2 National Preparedness Goal Core Capabilities O ve r vi ew Core capabilities are essential for the execution of each of the five mission areas: Prevention, Protection, Mitigation, Response, and Recovery (see Table 1). The core capabilities are not exclusive to any single government or organization, but rather require the combined efforts of the whole community. Table 1: Core Capabilities by Mission Area6 Prevention Protection Mitigation Response Recovery Planning Public Information and Warning Operational Coordination Intelligence and Information Sharing Community Resilience Interdiction and Disruption Long-term Vulnerability Reduction Screening, Search, and Detection Forensics and Attribution Access Control and Identity Verification Cybersecurity Physical Protective Measures Risk Management for Protection Programs and Activities Supply Chain Integrity and Security Risk and Disaster Resilience Assessment Threats and Hazards Identification Infrastructure Systems Critical Transportation Economic Recovery Environmental Response/Health and Safety Health and Social Services Fatality Management Services Fire Management and Suppression Housing Natural and Cultural Resources Logistics and Supply Chain Management Mass Care Services Mass Search and Rescue Operations On-scene Security, Protection, and Law Enforcement Operational Communications Public Health, Healthcare, and Emergency Medical Services Situational Assessment 6 Planning, Public Information and Warning, and Operational Coordination are common to all mission areas. 3 National Preparedness Goal These five mission areas serve as an aid in organizing our national preparedness activities and enabling integration and coordination across core capabilities. The mission areas are interrelated and require collaboration in order to be effective. The National Planning Frameworks and Federal Interagency Operational Plans expand on these relationships, to include how the mission areas and core capabilities are used to achieve the goal of a secure and resilient nation. Three core capabilities: Planning, Public Information and Warning, and Operational Coordination span all five mission areas. They serve to unify the mission areas and, in many ways, are necessary for the success of the remaining core capabilities. Additionally, a number of core capabilities directly involve more than one mission area and are listed in each mission area as appropriate. The core capabilities, like the risks we face, are not static. They will be vetted and refined, taking into consideration the evolving risk and, changing resource requirements. Further, there is an expectation that each of the core capabilities will leverage advances in science and technology and be improved through post-event evaluation and assessment. R i s k an d t h e Co re C ap ab i l i t i e s Understanding the greatest risks to the Nation’s security and resilience is a critical step in identifying the core capabilities. All levels of government and the whole community should assess and present risk in a similar manner to provide a common understanding of the threats and hazards confronting our Nation. The information gathered during a risk assessment also enables a prioritization of preparedness efforts and an ability to identify our capability requirements across the whole community. The Strategic National Risk Assessment indicates that a wide range of threats and hazards continue to pose a significant risk to the Nation, affirming the need for an all-hazards, capabilitybased approach to preparedness planning. Key findings include: ? Natural hazards, including hurricanes, earthquakes, tornadoes, droughts, wildfires, winter storms, and floods, present a significant and varied risk across the country. Climate change has the potential to cause the consequence of weather-related hazards to become more severe. ? A virulent strain of pandemic influenza could kill hundreds of thousands of Americans, affect millions more, and result in economic loss. Additional human and animal infectious diseases, including those undiscovered, may present significant risks. ? Technological and accidental hazards, such as transportation system failures, dam failures, chemical spills or releases, have the potential to cause extensive fatalities and severe economic impacts. In addition, these hazards may increase due to aging infrastructure. ? Terrorist organizations or affiliates may seek to acquire, build, and use weapons of mass destruction (WMD). Conventional terrorist attacks, including those by “lone actors” employing physical threats such as explosives and armed attacks, present a continued risk to the Nation. ? Cyber-attacks can have catastrophic consequences, which in turn, can lead to other hazards, such as power grid failures or financial system failures. These cascading hazards increase the potential impact of cyber incidents. Cybersecurity threats exploit the increased complexity 4 National Preparedness Goal and connectivity of critical infrastructure systems, placing the Nation’s security, economy, and public safety and health at risk. ? Some incidents, such as explosives attacks or earthquakes, generally cause more localized impacts, while other incidents, such as human pandemics, may cause impacts that are dispersed throughout the Nation, thus creating different types of impacts for preparedness planners to consider. In addition to these findings, climate change has the potential to adversely impact a number of threats and hazards. Rising sea levels, increasingly powerful storms, and heavier downpours are already contributing to an increased risk of flooding. Droughts and wildfires are becoming more frequent and severe in some areas of the country. Cybersecurity poses its own unique challenges. In addition to the risk that cyber-threats pose to the nation, cybersecurity represents a core capability integral to preparedness efforts across the whole community. In order to meet the threat, preparedness planners must not only consider the unique core capability outlined in the Protection mission area, but must also consider integrating cyber preparedness throughout core capabilities in every mission area. These findings supported the update of the core capabilities. Additionally, the Response and Recovery mission areas go one step further by focusing on a set of core capabilities based on the impact of a series of cascading incidents. Such incidents would likely stress the abilities of our Nation. A developed set of planning factors, intended to mimic this cascading incident and identify the necessary core capabilities, draws upon three hazards identified by the Strategic National Risk Assessment (i.e., large-scale earthquake, major hurricane, WMD attack). The risks faced by a community can directly impact those responsible for delivering core capabilities. The whole community must maintain the ability to conduct mission essential functions during an actual hazard or incident to ensure delivery of core capabilities for all mission areas. The scope and magnitude of a catastrophic incident may result in a resource scarce environment. Because such incidents may affect an organization’s ability to provide assets, assistance, and services, continuity planning and operations are an inherent component of each core capability and the coordinating structures that provide them. Continuity operations increase resilience and the likelihood that organizations can perform essential functions and deliver core capabilities that support the mission areas. M i s si o n A r e a: P r ev en t i o n Prevention includes those capabilities necessary to avoid, prevent, or stop a threatened or actual act of terrorism. Unlike other mission areas, which are all-hazards by design, Prevention core capabilities are focused specifically on imminent terrorist threats, including on-going attacks or stopping imminent follow-on attacks. In addition, preventing an imminent terrorist threat will trigger a robust counterterrorism response wherein all instruments of national power may be used to resolve threats and save lives. Prevention also includes activities such as intelligence, law enforcement, and homeland defense as examples of activities conducted to address and resolve the threat. The terrorist threat is dynamic and complex, and combating it is not the sole responsibility of a single entity or community. Ensuring the security of the homeland requires terrorism prevention through extensive collaboration with government and nongovernmental entities, international 5 National Preparedness Goal partners, and the private sector. We will foster a rapid, coordinated, all-of-Nation, effective terrorism prevention effort that reflects the full range of capabilities critical to avoid, prevent, or stop a threatened or actual act of terrorism in the homeland. The Prevention mission area relies on ongoing support activities from across all mission areas that prepare the whole community to execute the core capabilities for preventing an imminent terrorist threat. These activities include information sharing efforts that directly support local communities in preventing terrorism and other activities that are precursors or indicators of terrorist activity and violent extremism. Table 2 defines and details the Prevention core capabilities and the preliminary targets associated with each. Table 2: Prevention Mission Area Core Capabilities and Preliminary Targets Prevention Mission Area Core Capabilities and Preliminary Targets Planning Conduct a systematic process engaging the whole community as appropriate in the development of executable strategic, operational, and/or tactical-level approaches to meet defined objectives. 1. Identify critical objectives during the planning process, provide a complete and integrated picture of the sequence and scope of the tasks to achieve the objectives, and ensure the objectives are implementable within the time frame contemplated within the plan using available resources for prevention-related plans. 2. Develop and execute appropriate courses of action in coordination with local, state, tribal, territorial, Federal, and private sector entities in order to prevent an imminent terrorist attack within the United States. Public Information and Warning Deliver coordinated, prompt, reliable, and actionable information to the whole community through the use of clear, consistent, accessible, and culturally and linguistically appropriate methods to effectively relay information regarding any threat or hazard, as well as the actions being taken and the assistance being made available, as appropriate. 1. Share prompt and actionable messages, to include National Terrorism Advisory System alerts, with the public and other stakeholders, as appropriate, to aid in the prevention of imminent or follow-on terrorist attacks, consistent with the timelines specified by existing processes and protocols. 2. Provide public awareness information to inform the general public on how to identify and provide terrorism-related information to the appropriate law enforcement authorities, thereby enabling the public to act as a force multiplier in the prevention of imminent or follow-on acts of terrorism. Operational Coordination Establish and maintain a unified and coordinated operational structure and process that appropriately integrates all critical stakeholders and supports the execution of core capabilities. 1. Execute operations with functional and integrated communications among appropriate entities to prevent initial or follow-on terrorist attacks within the United States in accordance with established protocols. 6 National Preparedness Goal Prevention Mission Area Core Capabilities and Preliminary Targets Forensics and Attribution Conduct forensic analysis and attribute terrorist acts (including the means and methods of terrorism) to their source, to include forensic analysis as well as attribution for an attack and for the preparation for an attack in an effort to prevent initial or follow-on acts and/or swiftly develop counter-options. 1. Prioritize physical evidence collection and analysis to assist in preventing initial or follow-on terrorist acts. 2. Prioritize chemical, biological, radiological, nuclear, and explosive (CBRNE) material (bulk and trace) collection and analysis to assist in preventing initial or follow-on terrorist acts. 3. Prioritize biometric collection and analysis to assist in preventing initial or follow-on terrorist acts. 4. Prioritize digital media, network exploitation, and cyber technical analysis to assist in preventing initial or follow-on terrorist acts. Intelligence and Information Sharing Provide timely, accurate, and actionable information resulting from the planning, direction, collection, exploitation, processing, analysis, production, dissemination, evaluation, and feedback of available information concerning physical and cyber threats to the United States, its people, property, or interests; the development, proliferation, or use of WMDs; or any other matter bearing on U.S. national or homeland security by local, state, tribal, territorial, Federal, and other stakeholders. Information sharing is the ability to exchange intelligence, information, data, or knowledge among government or private sector entities, as appropriate. 1. Anticipate and identify emerging and/or imminent threats through the intelligence cycle. 2. Share relevant, timely, and actionable information and analysis with local, state, tribal, territorial, Federal, private sector, and international partners and develop and disseminate appropriate classified/unclassified products. 3. Ensure local, state, tribal, territorial, Federal, and private sector partners possess or have access to a mechanism to submit terrorism-related information and/or suspicious activity reports to law enforcement. Interdiction and Disruption Delay, divert, intercept, halt, apprehend, or secure threats and/or hazards. 1. Maximize our ability to interdict specific conveyances, cargo, and persons associated with an imminent terrorist threat or act in the land, air, and maritime domains to prevent entry into the United States or to prevent an incident from occurring in the Nation. 2. Conduct operations to render safe and dispose of CBRNE hazards in multiple locations and in all environments, consistent with established protocols. 3. Prevent terrorism financial/material support from reaching its target, consistent with established protocols. 4. Prevent terrorist acquisition of and the transfer of CBRNE materials, precursors, and related technology, consistent with established protocols. 5. Conduct tactical counterterrorism operations in multiple locations and in all environments, consistent with established protocols. 7 National Preparedness Goal Prevention Mission Area Core Capabilities and Preliminary Targets Screening, Search, and Detection Identify, discover, or locate threats and/or hazards through active and passive surveillance and search procedures. This may include the use of systematic examinations and assessments, biosurveillance, sensor technologies, or physical investigation and intelligence. 1. Maximize the screening of targeted cargo, conveyances, mail, baggage, and people associated with an imminent terrorist threat or act using technical, non-technical, intrusive, or non-intrusive means. 2. Initiate operations immediately to locate persons and networks associated with an imminent terrorist threat or act. 3. Conduct CBRNE search/detection operations in multiple locations and in all environments, consistent with established protocols. M i s si o n A r e a: P ro t e ct i o n Protection includes the capabilities to safeguard the homeland against acts of terrorism and manmade or natural disasters. It focuses on actions to protect our people, our vital interests, and our way of life. Protection core capabilities are the product of diverse activities. These activities include defense against WMD threats; defense of agriculture and food; critical infrastructure protection7; protection of key leadership and events; border security; maritime security; transportation security; immigration security; and cybersecurity. Table 3 defines and details the Protection core capabilities and the preliminary targets associated with each. Table 3: Protection Mission Area Core Capabilities and Preliminary Targets Protection Mission Area Core Capabilities and Preliminary Targets Planning Conduct a systematic process engaging the whole community, as appropriate, in the development of executable strategic, operational, and/or tactical-level approaches to meet defined objectives. 1. Develop protection plans that identify critical objectives based on planning requirements, provide a complete and integrated picture of the sequence and scope of the tasks to achieve the planning objectives, and implement planning requirements within the time frame contemplated within the plan using available resources for protection-related plans. 2. Implement, exercise, and maintain plans to ensure continuity of operations. Public Information and Warning Deliver coordinated, prompt, reliable, and actionable information to the whole community through the use of clear, consistent, accessible, and culturally and linguistically appropriate methods to effectively relay information regarding any threat or hazard and, as appropriate, the actions being taken and the assistance being made available. 1. Use effective and accessible indication and warning systems to communicate significant hazar...