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Introduction: A Short History of Homeland Security and

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Title: Introduction: A Short History of Homeland Security and


1
Introduction A Short History of Homeland
Security and Emergency Management Law
  • William C. Nicholson, Esq.
  • Department of Criminal Justice
  • North Carolina Central University

2
Opening Question
  • Why does the history of emergency management law
    matter?

3
Roots of Emergency Management
  • Ancient roots
  • Cave paintings
  • Biblical disasters
  • In U.S., first effort fire hazards still most
    common kind of disasters
  • Volunteer fire brigades
  • Now more full-time, professional firefighters

4
Roots of Emergency Management
  • Definition Emergency management is the
    discipline dealing with risk and risk avoidance.
  • Risk involves
  • Many issues
  • Many players
  • Integral to all lives
  • Need to use every day

5
Roots of Emergency Management
  • Essential role of government
  • Perhaps most essential?
  • Public health and safety public risks
  • States responsible
  • Federal role secondary
  • History of constant increase in federal role

6
Early Legal History
  • 1803 Congressional Act assistance for NH town
    after huge fire
  • 1930s Reconstruction Finance Corporation, Bureau
    of Public roads
  • Disaster loans
  • Public facilities only
  • Flood Control Act of 1934
  • Army Corps of Engineers authority for flood
    control projects
  • Man controls nature

7
World War II and Cold War
  • World War II
  • Air raid wardens
  • Enforce blackouts
  • Cold War 1950s
  • Retired military
  • Few natural disasters
  • Hurricanes dealt with one by one

8
Emergency Management Law in the 1950s
  • Federal Civil Defense Administration assists
    states and locals
  • Office of Defense Mobilization located in DoD
  • Included Emergency Preparedness function
  • Merger in 1958 into Office of Civil and Defense
    Mobilization

9
Emergency Management Law in the 1960s
  • More natural disasters
  • Earthquakes, hurricanes
  • 1961 Office of Emergency Preparedness in White
    House
  • Civil Defense still in Pentagon
  • 1964 Alaska earthquake 9.2
  • 1965 Hurricane Betsy huge damage
  • No flood insurance for homeowners

10
Emergency Management Law in the 1960s
  • National Flood Insurance Act of 1968
  • National Flood Insurance Program
  • Introduced Community Based Mitigation
  • Community agrees to forbid building in
    floodplains
  • Feds make low-cost flood insurance available

11
Emergency Management Law in the 1970s
  • Flood Insurance Act of 1972
  • Required flood insurance for loans backed by
    federal mortgages
  • Need for national focus on EM
  • Many agencies responsible
  • Dept. of Commerce
  • General Services Administration
  • Treasury Dept.
  • Nuclear Regulatory Commission
  • Housing and Urban Development

12
Emergency Management Law in the 1970s
  • Disaster Relief Act of 1974 - HUD most authority
  • NFIP
  • Federal Disaster Assistance Administration
  • Still over 100 federal agencies involved in
    disasters
  • Similar scattering of authority in states
  • States push for single agency
  • Governor Carter elected President in 1976

13
Establishment of Federal Emergency Management
Agency
  • President Carter in 1978 sent Congress
    Reorganization Plan Number 3 stating intent to
    create FEMA
  • FEMA officially established in 1979 by Executive
    Order 12127
  • EO 12148 mandated moving agencies, programs, and
    personnel into FEMA
  • Why by Executive Order not by Congressional
    enactment?
  • Downsides of Executive Order approach
  • Many programs, operations, policies, people
    needed integrating into FEMA
  • 23 Congressional Committees oversight

14
Four Phases of Emergency Management
  • Effort to unite natural hazards preparedness and
    civil defense
  • Led to INTEGRATED EMERGENCY MANAGEMENT SYSTEM
  • Comprehensive emergency management
  • Addresses all hazards
  • Four phases
  • Mitigation
  • Preparedness
  • Response
  • Recovery

15
Emergency Management Law in the 1980s
  • Civil defense again high priority
  • Cold war heated up under President Reagan
  • Challenges
  • FEMA lead for Continuity of Government
  • Love Canal, Times Beach pollution
  • Cuban refugee crisis
  • Corruption charges
  • Funding to fallout shelters not natural disasters

16
Coping with Disaster Emergency Management Law in
the 1980s
  • 1988 Robert T. Stafford Disaster and Emergency
    Assistance Act
  • Codified federal agency duties in disasters
  • Still main source of guidance
  • 1988 Exxon Valdez Oil Spill
  • Led to Oil Pollution Act of 1990
  • HAZMAT plan

17
FEMAs Decline 1989 -1992
  • Responses criticized
  • Hurricane Hugo hit southeast US
  • Loma Prieta earthquake in CA
  • Slow FEMA response contrast with rapid CA state
    response
  • FEMA thinking nuclear war, CA preparing for
    earthquake
  • 1992 Hurricanes Andrew and Iniki
  • Result many calls to abolish FEMA

18
FEMA During1990s - 2001
  • Many huge natural disasters
  • Midwest floods 1993 - 9 states
  • Northridge CA earthquake 1994
  • Tornados, ice storms, hurricanes, floods,
    wildfires, drought
  • Major terrorist attacks
  • 1993 first World Trade Center attack
  • 1995 Murrah Building bombing in Oklahoma City

19
Clinton Legal Response to Terrorism in 1990s
  • 1995 Presidential Decision Directive (PDD) 39
  • FBI crisis management
  • FEMA - consequence management
  • 1998 PDD 62 more systematic approach to fighting
    terrorism
  • 1998 PDD 63 critical infrastructure protection
  • 1998 PDD 67 Ensuring Constitutional Government
    and Continuity of Government Operations (COOP)

20
FEMA Mitigation Steps
  • FEMA launches Project Impact Building Disaster
    Resistant Communities mitigation program
  • Incorporate risk avoidance into every day
    community decisions
  • Build grassroots support for EM
  • Hazard Mitigation Act of 2000
  • States to create Hazard Mitigation plans
  • Promote sustainable economic development
  • Project Impact eliminated in 2001

21
September 11, 2001 Attacks Change Legal Priorities
  • Old reality Survivable skyjackings
  • Old reality Many domestic terrorists
  • First World Trade Center bombing and Murrah
    Building attack begin to change perspective
  • After September 11 attacks, immediate legal
    action
  • USA PATRIOT Act
  • Homeland Security Act of 2002

22
Homeland Security and Emergency Management Law
After 9-11
  • Uniting and Strengthening America By Providing
    Appropriate Tools Required To Intercept and
    Obstruct Terrorism Act (USA PATRIOT Act) of 2001
  • Department of Justices wish list
  • Redefines terrorism
  • Broader meaning for terrorist organization
  • Association triggers immigration bans
  • Title III International Money Laundering
    Abatement and Anti-Terrorism Financing Act of
    2001
  • Goal cut off terrorist financial support

23
Homeland Security and Emergency Management Law
After 9-11
  • Aviation and Transportation Security (ATS) Act of
    2002
  • Federalizes screeners
  • Establishes TSA (later moved to DHS)
  • Homeland Security Act of 2002 (HS Act)
  • Creates Department of Homeland Security (DHS)
  • 180,000 Federal workers from 22 agencies
  • DHS mission to stop terrorism
  • Mandates National Incident Management System
    (NIMS)

24
Homeland Security and Emergency Management Law
After 9-11
  • Public Health Security and Bioterrorism
    Preparedness and Response Act of 2002
  • Improves ability to prevent, prepare for, and
    respond to bioterrorism public health
    emergencies
  • National preparedness plan by HHS
  • National Emergencies Act of 2003
  • Establishes procedures for Presidential
    declaration and termination
  • Declaration is prerequisite to exercising special
    or extraordinary powers in Act

25
Homeland Security and Emergency Management Law
After 9-11
  • Defense Against Weapons of Mass Destruction Act
    of 2003
  • Improve ability to prevent and respond to
    terrorist incidents with WMD
  • DOD to provide expert advice on WMD
  • Emergencies Involving Chemical or Biological
    Weapons 2003
  • Emergencies Involving Nuclear Materials 2002

26
Homeland Security and Emergency Management Law
After 9-11
  • Homeland Security Act of 2002
  • Terrorism focus
  • Natural hazards deemphasized
  • Structural complement to USA PATRIOT Act

27
Homeland Security and Emergency Management Law
After 9-11
  • Homeland Security Act of 2002
  • Law enforcement has leadership role in DHS
  • HS Act of 2002 SEC. 101. EXECUTIVE DEPARTMENT
    MISSION.
  • (b) Mission. (1) The primary mission of the
    Department is to--
  • (A) prevent terrorist attacks within the United
    States
  • (B) reduce the vulnerability of the United
    States to terrorism and
  • (C) minimize the damage, and assist in the
    recovery, from terrorist attacks that do occur
    within the United States.

28
Homeland Security and Emergency Management Law
After 9-11
  • Homeland Security Act of 2002
  • HS Act 507 ROLE OF FEDERAL EMERGENCY MANAGEMENT
    AGENCY
  • (a) IN GENERAL.FEMA functions include
  • (1) Robert T. Stafford Disaster Relief and
    Emergency Assistance Act
  • (2) Carrying out its mission to reduce the loss
    of life and property and protect the Nation from
    all hazards by leading and supporting the Nation
    in a comprehensive, risk-based emergency
    management program

29
Homeland Security and Emergency Management Law
After 9-11
  • Executive Order (EO) 13224 Sept. 23, 2001
  • Defined terrorism
  • Blocked Property and Prohibited Transactions
  • EO 13228 Oct. 8, 2001
  • Established Office of Homeland Security
  • Homeland Security Council
  • Coordinated federal activities
  • EO 13231 Oct. 16, 2001
  • Critical Infrastructure Protection in the
    Information Age
  • Supersedes PDD 63

30
Major Executive Actions Since September 11, 2001
  • Homeland Security Presidential Directive (HSPD)
    1 Establishing the Homeland Security Council
    (2001)
  • Coordinated federal activities
  • HSPD 2 Combating Terrorism Through Immigration
    Policies (2001)
  • Foreign Terrorist Tracking Task Force
  • Locate, detain, prosecute, or deport terrorist
    aliens already present

31
Homeland Security and Emergency Management Law
After 9-11
  • HSPD 3 Homeland Security Advisory System (2002)
    color coded warnings
  • HSPD 4 National Strategy to Combat Weapons of
    Mass Destruction (2002)
  • Counterproliferation to Combat WMD Use,
  • Strengthened Nonproliferation to Combat WMD
    Proliferation, and
  • Consequence Management to Respond to Use

32
Homeland Security and Emergency Management Law
After 9-11
  • HSPD 5 Management of Domestic Incidents (2003)
  • Federal agencies to take specific steps for
    planning and incident management
  • Single, comprehensive approach to domestic
    incident management
  • Repeals PDD 39
  • DHS to create, enforce emergency responder
    standards
  • No compliance means loss of preparedness funding
  • Mandates creation of National Response Plan (NRP)
    and National Incident Management System (NIMS)

33
Homeland Security and Emergency Management Law
After 9-11
  • HSPD 6 Integration and Use of Screening
    Information (2003)
  • Terrorist Screening Center (TSC) consolidate
    terrorist watchlists
  • provide operational support
  • HSPD 7 Critical Infrastructure Identification,
    Prioritization, and Protection (2003)
  • Identify and prioritize United States critical
    infrastructure and key resources
  • Provide protection for them from terrorists

34
Homeland Security and Emergency Management Law
After 9-11
  • HSPD 8 National Preparedness (2003)
  • National domestic all-hazards preparedness goal
  • Defines first responder to include emergency
    managers
  • Access to federal preparedness grants and
    information
  • Rapidly set equipment, training, and exercise
    standards
  • Annual status report of national preparedness

35
Homeland Security and Emergency Management Law
After 9-11
  • HSPD 9 Defense of United States Agriculture and
    Food (2004)
  • Food safety
  • Identify and prioritize sector-critical
    infrastructure and key resources
  • Develop early warning
  • Mitigate vulnerabilities

36
Homeland Security and Emergency Management Law
After 9-11
  • HSPD 10 Biodefense for 21st Century (2004)
  • Comprehensive framework
  • Federal agency roles and responsibilities
  • HSPD 11 Comprehensive Terrorist-Related
    Screening Procedures (2004)
  • Detect, identify, track, and interdict people,
    cargo, conveyances
  • HSPD 12 Policy for a Common Identification
    Standard for Federal Employees and Contractors
    (2004)
  • Government-wide standard for federal
    identification of employees and contractors

37
Homeland Security and Emergency Management Law
After 9-11
  • National Strategy for Homeland Security (2002)
  • Direction to federal government
  • Established strategic objectives
  • Critical mission areas intelligence and warning,
    border and transportation security, domestic
    counterterrorism, protecting critical
    infrastructure, defending against catastrophic
    terrorism, emergency preparedness and response

38
HSPD 5 Management of Domestic Incidents (2003)
  • HSPD 5 creates penalties for non-compliant state
    and local emergency responders/managers
  • Grants, contracts, or other activities
  • NIMS and NRP significant compliance requirements
  • State and local plans reflect federal structures
  • Facilitates use of federal resources

39
National Response Plan (NRP)
  • NRP contents
  • Base plan
  • Appendices
  • Emergency Support Functions (ESFs)
  • Support Annexes
  • Incident Annexes

40
Post-Katrina Plan Review
  • National Plan Review - June 16, 2006
  • Looked at state, local emergency plans
  • OK for typical garden variety emergencies
  • Not for catastrophic events

41
National Incident Management System (NIMS)
  • NIMS Chapter III Preparedness cycle that
    includes
  • planning
  • training
  • equipping
  • exercising
  • evaluating and
  • taking action to correct or mitigate
  • Groups must be multijurisdictional in nature

42
Critical Infrastructure
  • National Strategy for the Physical Protection of
    Critical Infrastructure and Key Assets (2003)
  • Identify and assure protection of assets
  • Specific initiatives - collaborative environment
    for federal, state, and local governments and
    private sector
  • Private sector must take a key part

43
FEMA Personnel IssuesRevolving Door
  • Unprecedented turnover at DHS
  • FEMA particularly hard hit
  • FEMA morale low
  • Could see others leaving, cashing in
  • Result many old time FEMITES left
  • Attitude Todays FEMA employee is tomorrows
    contractor

44
Homeland Security and Emergency Management Law
After 9-11
  • 2006 Appropriations Act
  • Secretary Chertoffs second stage review
  • Enacted October 18, 2005 (AFTER Hurricane Katrina
    struck)
  • Broke preparedness away from FEMA into new
    Preparedness Directorate
  • FEMAs low point?

45
Homeland Security and Emergency Management Law
After 9-11
  • Warnings of dangers in abandoning traditional
    all hazards approach
  • Focus on terrorism
  • Worries of sub-par response to major natural
    disaster
  • State and local emergency managers express concern

46
Hurricane Katrina and FEMA
  • Hurricane Katrina strikes
  • Response at all levels criticized
  • Calls to revive FEMA
  • Emphasize natural hazards
  • 1980s all over again?

47
Hurricane Katrina and FEMA Legal Responses
  • Congressional hearings on emergency management
    failures during Hurricane Katrina
  • Suggestions that military should be in charge of
    disaster response
  • Bills in Congress to restore FEMA
  • Biggest Issue Inside DHS or independent?

48
Hurricane Katrina and FEMA Legal Responses
  • Congress sees benefits in emergency management
    all hazards approach
  • H.R.5441 2007 Appropriations Act resulted
  • Title V of the Homeland Security Act of 2002 (6
    U.S.C. 311 et seq.) amended
  • HR 5441 Title VI Post-Katrina Emergency
    Management Reform Act of 2006'
  • Direct result of lessons learned through
    Hurricane Katrina

49
Post-Katrina Emergency Management Reform Act
  • 503 b 1 FEMA PRIMARY MISSION- The primary mission
    of the Agency is to reduce the loss of life and
    property and protect the Nation from all hazards,
    including natural disasters, acts of terrorism,
    and other man-made disasters, by leading and
    supporting the Nation in a risk-based,
    comprehensive emergency management system of
    preparedness, protection, response, recovery, and
    mitigation.
  • Note that natural disasters now listed first

50
Post-Katrina Emergency Management Reform Act
  • Sec. 502 FEMA Administrator head of US Emergency
    Management Authority
  • Must have demonstrated 5 years leadership
    experience (was emergency management and homeland
    security)
  • Presidential Signing Statement challenges
    qualification requirements

51
Post-Katrina Emergency Management Reform Act
  • Administrator is principal advisor to President,
    Homeland Security Council, and DHS Secretary for
    all emergency management issues in United States
  • After informing DHS Secretary, Administrator may
    make recommendations to Congress
  • President may designate FEMA Administrator
    Cabinet status during natural disasters, acts of
    terrorism, or other man-made disasters

52
EM Reform Act FEMA Responsibilities
  • Supervise grant programs
  • Supervision of National Response Plan NIMS
    Center
  • Supervision of credentialing with EMAC
  • Supervise plans for
  • continuity of operations
  • continuity of government and
  • continuity of plans

53
EM Reform Act FEMA Responsibilities
  • Ensure acquisition of operable and interoperable
    communications capabilities
  • Run National Response Coordination Center

54
Post-Katrina Emergency Management Reform Act
  • Sec. 505 FEMA Gains Directorate of Preparedness
    ODP now under FEMA
  • Sec.506 FEMA maintained as distinct entity in DHS
  • DHS Secretary may not reduce the authorities,
    responsibilities, or functions of FEMA or its
    capability
  • Sec. 517 New Office for the Prevention of
    Terrorism not under FEMA

55
Personnel IssuesAddressing the Revolving Door
  • HR 5441 Title VI Post-Katrina Emergency
    Management Reform Act of 2006 Subtitle B
    Personnel Provisions
  • Address unprecedented turnover at FEMA Subpart I
    of part III of Title 5 USC amended
  • Sec. 10102 Mandates Strategic Human Capital Plan
  • Workforce Gap Analysis
  • Plan of Action address skills, competencies gaps
  • Discussion of needs, capabilities
  • 5 yearly updates

56
Personnel IssuesAddressing the Revolving Door
  • Sec. 10103 Career Paths - Identify
  • education, training, experience, and assignments
    necessary for career progression
  • Sec. 10104 Recruitment Bonuses 25
  • Sec. 10105 Retention Bonuses 25
  • Sec. 10106 Vacancy Rate Report
  • Sec. 622 Employee Rotation Program
  • Sec. 623 Homeland Security Education Program
    Establishes graduate-level Homeland Security
    Education Program in National Capital Region
  • HUGE effort to address long-standing problems

57
Continuing Issues - DHS Future Pressures Due to
Law
  • DHS is huge grant making, contract making agency
  • Little regulatory authority except in law
    enforcement arena
  • In latter over 60 of agency can retire in 20 as
    opposed to normal 30 years as civil servants
  • This results from fact that they carry both guns
    and badges
  • Need for many additional employees, particularly
    law enforcement
  • 28 CFR Part 65 et al. specifies who is in law
    enforcement community and that emergency law
    enforcement assistance must come from DOJ

58
Continuing Issues - 9/11 Commission
Recommendations
  • Implementing the 9/11 Commission Recommendations
    Act of 2007 (H.R.1)
  • Title I--Risk-Based Allocation Of Homeland
    Security Grants
  • Title II--Ensuring Communications
    Interoperability For First Responders
  • Title III--Strengthening Use Of A Unified
    Incident Command During Emergencies
  • Sec. 301. National Exercise Program Design.
  • Sec. 302. National Exercise Program Model
    Exercises.
  • Sec. 303. Responsibilities Of Regional
    Administrators Of The Federal Emergency
    Management Agency.
  • Title IV--Strengthening Aviation Security
  • Title V--Strengthening The Security Of Cargo
    Containers

59
Continuing Issues - 9/11 Commission
Recommendations
  • Implementing the 9/11 Commission Recommendations
    Act of 2007 (H.R.1)
  • Title VI--Strengthening Efforts To Prevent
    Terrorist Travel
  • Subtitle A--Human Smuggling And Trafficking
    Center Improvements
  • Subtitle B--International Collaboration To
    Prevent Terrorist Travel
  • Subtitle C--Biometric Border Entry And Exit
    System
  • Title VII--Improving Intelligence And Information
    Sharing With Local Law Enforcement And First
    Responders
  • Subtitle A--Fusion And Law Enforcement Education
    And Teaming (Fleet) Grant Program
  • Subtitle B--Border Intelligence Fusion Center
    Program
  • Subtitle C--Homeland Security Information Sharing
    Enhancement
  • Subtitle D--Homeland Security Information Sharing
    Partnerships
  • Subtitle E--Homeland Security Intelligence
    Offices Reorganization

60
Continuing Issues - 9/11 Commission
Recommendations
  • Implementing the 9/11 Commission Recommendations
    Act of 2007 (H.R.1)
  • Title VIII--Protecting Privacy And Civil
    Liberties While Effectively Fighting Terrorism
  • Subtitle A--Privacy And Civil Liberties Oversight
    Boards
  • Subtitle B--Enhancement Of Privacy Officer
    Authorities
  • Title IX--Improving Critical Infrastructure
    Security
  • Title X--Transportation Security Planning And
    Information Sharing
  • Title XI--Private Sector Preparedness

61
Continuing Issues - 9/11 Commission
Recommendations
  • Implementing the 9/11 Commission Recommendations
    Act of 2007 (H.R.1)
  • Title XII--Preventing Weapons Of Mass Destruction
    Proliferation And Terrorism
  • Subtitle A--Repeal And Modification Of
    Limitations On Assistance For Prevention Of Wmd
    Proliferation And Terrorism
  • Subtitle B--Proliferation Security Initiative
  • Subtitle C--Assistance To Accelerate Programs To
    Prevent Weapons Of Mass Destruction Proliferation
    And Terrorism
  • Subtitle D--Office Of The United States
    Coordinator For The Prevention Of Weapons Of Mass
    Destruction Proliferation And Terrorism
  • Subtitle E--Commission On The Prevention Of
    Weapons Of Mass Destruction Proliferation And
    Terrorism
  • Title XIII--Nuclear Black Market
    Counter-Terrorism Act

62
Future Developments for Homeland Security and
Emergency Management Law
  • We will explore these and many more relevant
    issues in this class.
  • Questions or comments?
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