Homeland Security Watch

News and analysis of critical issues in homeland security

February 27, 2006

ABA report on legal authories for Katrina response

Filed under: Legal Issues,Preparedness and Response — by Christian Beckner on February 27, 2006

The American Bar Association released a report earlier in the month authored by their Hurricane Katrina Task Force which looked at legal authorities for disaster response. From the report:

The mission of the working group was to look at the over-arching question – were laws and regulations applicable to the response by state and federal officials sufficient to deal with this natural disaster? In assessing this, the working group addressed a number of issues and questions: Were decision makers at various levels of government cognizant of and able to use the authorities they had? If the laws were not adequate, how should gaps be filled and where should changes be made? If the authorities were sufficient, where should the emphasis be in the future to avoid the difficulties which occurred? Emergency authorities at both the federal and state level are often deliberately broad, so as to empower government and its officials to take needed actions. Thus, the fact that authorities lack specificity in some instances does not necessarily indicate an inadequacy of such authority; however, this common characteristic of emergency authorities places a higher burden on officials at all levels of government to ensure that these authorities can be implemented in the most effective way possible. Thus, the question becomes whether authorities were clarified in such a way as to be easily understood and implemented, not whether authority did exist.

And later, the report concludes:

At the federal level, the existing constitutional and statutes provide sufficient response authority. The Stafford Act and the Homeland Security Act of 2002 coupled with the National Incident Management System and the National Response Plan are adequate from an overall perspective. The issue for debate is whether the governmental statutory authorities at every level should be broad, with specificity left for plans, procedures and protocols – or whether the statutes and regulations are sufficiently specific to remove ambiguity and force responsibility and accountability. Not every situation can be anticipated by the enabling statutes, but officials must prepare for, and execute, executive authority and must be accountable for failure to do so.

These are some important issues to think about as Congress considers legislation to change the framework for disaster response this year.

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1 Comment »

320

Comment by William R. Cumming

February 28, 2006 @ 4:41 am

An interesting report from several perspectives. It dodges several major items. How does the sensitive issue of assisting deficient state and/or local response operations get done by the feds. No mayor or governor is ever going to be able to muster national resources for domestic crisis response and recovery. The reports section on logistics and resources by Mr. Zeichner should not be overlooked. Actually, many internal studies have demonstrated that the Stafford Act has critical deficiencies. It, first of all, should be made clearer on what non-financial immediate life saving assistance and other technical assistance can be provided. It must be clearer on cost-sharing and its waiver. One of the reasons the Clinton-Witt disaster response was so effective is that cost share was often waived so that lessened delays and arguments. This issue alone should be settled statutorily which was tried after Mt. Saint Helens but failed or at least not allowed to fester after two decades and impact response. Also the failure to resolve overlaps between the FCO concept of the Stafford Act and the PFO concept administrative concept of the NRP clearly impacted the response as documented by all the reports so far. Nonetheless the report is some contribution. It would have been more helpful if it had identified legal authorities utilized in the response other than the Stafford Act and its discussion of the Insurrection Act is not nearly as good as that of the various Gilmore reports(5)issued before and after 9/11. Congress does not seem to read or some of the issues of importance would cause them to lose more sleep. Again, a report stating that legal authority existed and was adequate is not helpful when critical examination demonstrates that improvements are necessary.

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