Follow-up Review of the Critical Incident Response Plans of the United States Attorneys’ Offices
Evaluation and Inspections Report I-2007-001
Office of the Inspector General
Four districts were hit by Hurricane Katrina in 2005, the costliest and one of the deadliest hurricanes in the history of the United States. Katrina caused devastation along much of the Gulf Coast 100 miles from the storm’s center. The effects were catastrophic in New Orleans and in coastal Mississippi. In response to this hurricane, the Middle and Eastern Districts of Louisiana, Southern District of Alabama, and Southern District of Mississippi activated their CIRPs.
Middle District of Louisiana
Headquartered in Baton Rouge, the USAO for the Middle District of Louisiana had an approved CIRP and had exercised its CIRP once prior to Hurricane Katrina.
According to the U.S. Attorney for the district, the USAO’s immediate goal after Katrina was to get the criminal justice system functioning. The district’s CIRP stipulated that contact be established with the FBI and other federal agencies, and that teams were to be assigned to cover federal law enforcement agencies, the courts, and the FBI command center. For the USAO’s Criminal Division to function properly, it had to maintain communications with the U.S. Marshals Service. It also needed to process anyone who was arrested and protect arrestees’ constitutional rights to allow for successful future prosecution. In addition, based upon the potential for criminal activity, the USAO researched legal issues such as the Insurrection Act, determining whether Louisiana had a martial law statute (which it did not), and under what circumstances federal officers may enforce state laws. To this end, the USAO worked with the state Attorney General and the Louisiana National Guard General Counsel to authorize the National Guard to use force to enforce state laws.
The U.S. Attorney said that his district’s CIRP did not address a number of issues prior to Katrina that proved to be important. USAO staff conducted considerable research, while other personnel were actively involved in response efforts out of the office. Based upon the district’s experience, the U.S. Attorney said he now believes that other USAOs can benefit from what was learned. “A week after the storm, I knew a lot more than I knew before,” he said. The U.S. Attorney stated that USAOs need to be more familiar with certain response-related issues, and the USAO is working with the National Advocacy Center to provide all USAOs with materials on topics such as Emergency Support Function #13 (ESF-13),68 Title 10 versus Title 32 troops,69 the Insurrection Act, the Stafford Act, and regulations and policies regarding reimbursement for local and state agencies’ personnel.
The U.S. Attorney stated that the USAO had made several improvements to its CIRP based on the district’s Katrina experience. Because he and his staff concluded that they needed better and additional communications with state authorities, the USAO has acquired radios that interface with the state’s communication network. According to the U.S. Attorney, the satellite phones the USAO had at the time of the storm were not functional, and direct connect phones functioned much better. The U.S. Attorney added that in future critical incidents he would want multiple communications platforms because he could not be sure which system would work under various circumstances.
Due to problems locating USAO personnel in the immediate aftermath of the storm, the U.S. Attorney also noted that the USAO has now provided employees with EOUSA’s emergency contact information and web site address. Thus, any district employee can call in and let EOUSA know where the employee is located. Employees have submitted additional contact information to the USAO so they can be more readily located after a disaster.
The U.S. Attorney also said that the state has a tendency to immediately set up multiple command posts, which the USAO has to identify and with which the USAO must coordinate. During Katrina, the Sheriff and the State Police set up different command posts.70 It was not until the Law Enforcement Coordination Center was set up that response efforts became more coordinated. The U.S. Attorney stated that the Law Enforcement Command Center needed to be established faster. “It was pretty chaotic until we got that set up,” he said.
According to the U.S. Attorney, the value of the CIRP and the exercises was that they required the USAO’s staff to think about what they had to accomplish if a crisis occurred. He stated that an important emphasis in the plan was to keep in contact with the courts and judges. Because of the CIRP, the USAO had a plan in place for doing that. Further, because the USAO had exercised its CIRP, it had the advantage of “lessons learned” and the time to think about what needed to be in place during a critical incident and how to get things up and running quickly.
Eastern District of Louisiana
The USAO for the Eastern District of Louisiana is headquartered in New Orleans. It had an approved CIRP and had exercised that CIRP once prior to Hurricane Katrina.
According to the district’s CMC, due to the mandatory evacuation of New Orleans, the USAO’s initial priority after Katrina was to re-establish contact with the USAO’s staff. The EOUSA executive staff and the FBI helped to locate USAO staff that were unaccounted for in the days following the storm. This allowed the USAO to focus on other things such as looting, violence, and other the criminal activity after Katrina. The USAO worked very closely with the agencies temporarily located at the Joint Operations Center, which became the Law Enforcement Coordination Center.
The CMC said that his district’s CIRP did not specifically address a number of legal issues that arose that proved to be important. With reports of different police agencies seizing guns, the USAO reminded the agencies that “the Second Amendment had not been suspended.” Legal guidance was also required on different types of arrests and screening decisions on prosecutorial matters.
The USAO needed to coordinate with EOUSA and the Department’s Office of Legislative Affairs on conducting initial appearance pre-trial hearings out of the district. Federal legislation was passed allowing the Eastern District hearings to take place in the neighboring Middle District of Louisiana (Baton Rouge). The significance of the out-of-district hearings was that they were being used for the first time, and the authorization for them needed to be established. Also, 2 days after the storm, the USAO in the Eastern District successfully petitioned the courts to temporarily suspend the applicability of the speedy trial statute because the courts were likely to be closed for a significant period of time.
According to the CMC, having an approved CIRP and exercising the CIRP proved to have been very valuable in allowing an effective response, including timely decision making by managerial and supervisory staff. The CMC said the lessons learned from Katrina included a recognition that the CIRP needed to address more than just terrorist incidents. Previously, the USAO looked at its role during a critical incident as supportive of the FBI and Joint Terrorism Task Force and local law enforcement. To perform this function, the USAO’s teams were geared to respond to a criminal incident and assigned to focus on either warrants or appellate briefs. Now, teams are designed to work more broadly with state law enforcement, the Louisiana National Guard, and other federal agencies as events require. The CMC also stated that the USAO’s alternative work sites had been inappropriate because they were all within the city, and that they were designating different sites if needed for future incidents.
Southern District of Alabama
Headquartered in Mobile, the USAO for the Southern District of Alabama had an approved CIRP and exercised that CIRP once prior to Hurricane Katrina.
According to the CMC, the U.S. Attorney gave the staff a few days off to prepare for the storm before Katrina made landfall. The CMC stated that a formal group was not dedicated to remain in the city and said that there was no formal command post set up prior to the storm. The USAO, while it had a seat at the Emergency Management Agency for Mobile County, only coordinated with the agency by phone.
After the storm, the USAO’s office was flooded and closed for approximately a week, and the district court was non-operational as well. Because the USAO was not closed very long, the headquarters staff did not relocate to another location. When the USAO reopened, it made accommodations for an AUSA from Mississippi for a brief period.
When asked about the USAO’s activities immediately following the hurricane, the CMC stated that there was little need to provide counsel as there were few legal issues related directly to the storm itself. When asked about lessons learned, the CMC stated the USAO needed a more systematic procedure for communications. After the storm, the USAO established a central number for employees (or others) to call to get information such as when the office would reopen. The CMC also said that the USAO should have been better able to stay in touch with staff during the storm and its aftermath. Finally, the CMC indicated that the USAO needed to do more planning for an alternate work site, since the office is in an area that is prone to flooding.
The CMC told us that the CMC training and CIRP exercises helped in the USAO’s preparation for a critical incident. “More than anything else, they provided awareness of the issues we would be dealing with. These are the people [in other law enforcement and response agencies that] we are going to be working with, and people will have already thought through some of these [critical incident response] issues.” When asked if his experience with Katrina would make the USAO more or less likely to conduct additional CIRP exercises or other critical incident activities, the CMC responded that the USAO would be more likely to do so, if only to test the plan.
Southern District of Mississippi
The USAO for the Southern District of Mississippi has a main office in Jackson and branch offices in Gulfport and Hattiesburg. The USAO had an approved CIRP and had exercised that CIRP three times prior to Hurricane Katrina.
According to the CMC, who is also the USAO’s First Assistant U.S. Attorney, there was minimal storm damage to the Gulfport office because of the anti-terrorist precautions that had been implemented, including bulletproof glass that was boarded over hours before the storm made landfall. Also, concrete security barricades prevented much of the storm debris from hitting the building. The USAO’s offices were on the third floor, which was above the flood waters. Although the USAO had intact office space, little could be done because the power was out (80 percent of the state was without power immediately after the hurricane). The Gulfport office had no communications; although satellite phones were working, the USAO did not have one. Cell phone communications were eventually restored, but landlines were not functional until November 2005.
The USAO’s main goal in the aftermath of the storm was to sustain operations and work with the courts. According to the CMC, the Gulfport office’s work resumed as quickly as possible in staff members’ homes and at the Hattiesburg office (which generally is not staffed but has space available). The Jackson office, which took on the bulk of the workload following the storm, eventually housed a few New Orleans AUSAs. The U.S. Attorney usually worked out of the Jackson office, and the team in Jackson made sure that their presence was known. However, immediately after the storm, even the Jackson office was not operational.
The USAO worked with the state to authorize federal law enforcement officials to assist state authorities. “We wanted to make sure that federal [law enforcement] officers were deputized through the Governor’s emergency order,” the CMC said.71 According to the CMC, the process flowed very smoothly.
When asked about the problems that were encountered because of the storm, the CMC stated that there were issues with the Emergency Support Function personnel (ESF-13) that came from other jurisdictions and acted as liaisons with the Department of Homeland Security. 72 According to the CMC, the ESF-13 initially assigned quit 2 weeks after the hurricane, and additional ESFs that arrived from other places were not really up to speed on local matters.
When asked about additional lessons learned from dealing with Katrina, the CMC responded that the USAO would seek to house the jurisdiction’s critical incident response personnel at one unified incident command center in the future. Because the Emergency Operations Center (EOC) on the coast was not big enough to support all law enforcement groups, the FBI and state and local police were at different locations during and after Katrina. “We have a grant now to develop a new EOC where we can have everybody at the same place; we have had a meeting of key law enforcement to start the planning,” the CMC said.
The CMC also stated that the USAO has surveyed its personnel about their concerns and the staff discussed those issues. These topics included what needed to be done in the 72 hours preceding the expected landfall of a future storm, such as when they would begin shutting down the office and the network server; how they would secure information, communications, documents, and determine what would need to be moved. Other areas of improvement included providing the staff with a laminated wallet card displaying emergency contact information. Also, instructions on how to shut down the network server have been added to the CIRP to allow that key task to be completed even if the system administrator cannot make it to the office.
The CMC said that the USAO had already had a Continuity of Operations Plan in place but had modified it to include possible relocation to the Hattiesburg office. The Hattiesburg office is in the federal courthouse, and the USAO believes it would be a good alternative location for the Gulfport and Jackson staff. As part of ensuring that Hattiesburg would be an effective alternative, the USAO set up high-speed network access and made sure that the office has administrative and other supplies. The CMC told us that the office will be fully capable whenever the USAO needs to support staff there.
When asked about the usefulness of the CMC training and CIRP exercises, the CMC responded that they were a “huge” help. The CMC also said that his district’s entire post-September 11 terrorism effort has helped them develop an all-hazards approach, from providing computer backups to a security deposit box. The CMC also said that the target hardening (of the Gulfport office building) also had a direct impact on protecting the office’s resources.
Hurricane Rita was the fourth most intense Atlantic hurricane ever recorded and the most intense tropical cyclone ever observed in the Gulf of Mexico. Rita caused $10 billion in damage on the U.S. Gulf Coast as it made landfall on September 24, 2005, near the Texas-Louisiana border and continued on through parts of southeast Texas. The storm surge caused extensive damage along the Louisiana and extreme southeastern Texas coasts and completely destroyed some coastal communities. Due to this hurricane, the Western District of Louisiana and the Eastern District of Texas activated their CIRPs.
Western District of Louisiana
The USAO for the Western District of Louisiana’s offices are located in Shreveport and Lafayette (where the CMC is located). The USAO had an approved CIRP and had exercised that CIRP once prior to Hurricane Rita.
Prior to the storm, the CMC stated that office personnel discussed whether staff was to evacuate, but they did not. The Lake Charles location is not staffed by the USAO, but two judges work out of it. The USAO decided that the senior litigation staff would be available to coordinate and communicate with the FBI command post and the CMC would be the first person to represent the office. The USAO established a personnel rotation among four AUSAs plus the U.S. Attorney so that at least one representative from the USAO would be at the command center or in Lake Charles at all times.
The CMC stated that pre-storm discussions were held on a possible curfew, what arrests would likely be made and by whom (state versus federal), and what type of charges would need to be brought. According to the CMC, most of these charges were state offenses. Discussions also took place about where arrestees would be taken. When asked about the legal assistance provided immediately after the hurricane, the CMC stated that the USAO’s efforts consisted primarily of helping to coordinate activities between other agencies.
Following the storm, the FBI set up a mobile command center in Lake Charles; representatives from 15 agencies were present, including the USAO. The command center was law enforcement-oriented, while the state Office of Emergency Preparedness (OEP) had its own command center for emergency responders, energy companies, rescue and relief workers, and charitable relief organizations. The OEP’s command center was used for meetings during morning and evening shifts at which law enforcement groups from outlying areas would coordinate with the emergency responders and others. These groups met to establish operational relationships and avoid conflicts. The USAO attended those meetings.
According to the CMC, the Lake Charles personnel had no communications capabilities for 3 days following the storm. Once the Lake Charles-based personnel became available to resume their duties, they assumed the command post rotations. A couple more weeks passed before the Lake Charles courthouse reopened. In the interim, the USAO handled all office activities at its Lafayette location.
When asked about the benefits of the district’s prior CIRP activities, the CMC stated that they were helpful. “Just by putting the plan together, it forced all of us to think about it and address the issue [of critical incident response]. Then by selecting team members and doing exercises, it forced the team members to review the plan and to think about these things. It becomes second nature and these [decisions and activities] would be the type of things that may occur depending on the issue; it also forced some people to think about what our role would be depending on the incident.”
Eastern District of Texas
The USAO for the Eastern District of Texas has offices located in Beaumont, Lufkin, Tyler, Texarkana, Sherman, and Marshall. The USAO had an approved CIRP and had exercised that CIRP once prior to Hurricane Rita.
According to the CMC, as the hurricane approached, the County Judge in charge of emergency management requested the USAO take the lead in orchestrating evacuation efforts. As a result, several of the USAO’s staff were assigned to the county Emergency Operations Center during the pre-evacuation, evacuation, and recovery effort. The CMC said, “We have a very good working relationship with the local law enforcement officials. We worked hand in hand with the police and fire departments.” The U.S. Attorney conducted conference calls with Senators Cornyn and Hutchinson and White House staff to request emergency transportation.
The CMC said the district became involved in a myriad of activities before and after the storm that went beyond the scope of activity that a USAO would normally perform. He stated that the USAO provided support regarding the postal service (trying to get checks to people in the community), the theft of federal property, and several state-related matters. The office also worked with the National Guard, FEMA, and the Army Corps of Engineers. In order to carry out the district’s duties and responsibilities, the CMC said that the USAO needed generators to maintain power in its office and had to acquire them directly from the Army Corps of Engineers.
The CMC also stated that the USAO played a significant role in organizing the evacuation of citizens through the Jefferson County Regional Airport. The evacuation focused on homebound patients who were not able to evacuate themselves. The local municipalities did not have enough vehicles to evacuate everyone by ground transportation. In response, the USAO acquired idle school buses and had the seats removed. The buses were used to transport the homebound patients to the airport to be evacuated by military aircraft.
According to the CMC, the district adapted its use of the CIRP as it responded to this incident. Staff used the plan’s list of hotel phone numbers, put out media notices according to the plan’s guidance, and used the plan for ordering additional phone lines. Based on lessons learned, the USAO is now the emergency operations center for the next disaster. They have installed a wireless internet, back-up generators, and they now have extra phones on hand. The CMC added that when you are operating a command center you are also going to need computers and other items.
When asked if the CMC training and CIRP exercises helped in the USAO’s preparation and response to the hurricane, the CMC said, “Absolutely.” The CMC added that because continuity of operations is critical, “We had already come up with a Continuity of Operations Plan, which was developed in 2004. We had already decided who the employees were going to check in with. When you lose [track of] 50 employees, you need to know where they are; our employees know they need to check-in.” The CMC said they created and utilized a spreadsheet with all the information so the USAO would be able to quickly locate its personnel.
Hurricane Ivan was the strongest hurricane of the 2004 Atlantic hurricane season. Ivan made its U.S. landfall as a strong Category 3 storm and caused an estimated $13 billion worth of damage. Because of this hurricane, the Northern District of Florida activated its CIRP.
Northern District of Florida
The USAO for the Northern District of Florida consists of four divisions: Tallahassee (headquarters), Gainesville, Panama City, and Pensacola. The USAO’s CIRP was approved just prior to the arrival of the storm; thus, the USAO had not yet conducted a CIRP exercise.
The CMC stated that prior to the storm, the U.S. Attorney had the Pensacola staff shut down their systems and move their computers, personal items, and important documents to internal office areas. Office personnel were then permitted to take care of personal matters as Pensacola is only a quarter of a mile from the water and the staff knew the city would take “quite a beating.”
The first floor of the USAO’s building flooded and major interstate highways were closed due to bridge damage. According to the CMC, “You could not move; there was no assurance the roads would be passable.” The CMC also told us that there were no communications. While the office had a phone tree, no phones – cellular or landline – worked. The United States Marshals Service helped out by going to the homes of USAO personnel to verify that they were unharmed.
The CMC said that the state has an excellent emergency preparedness system based in Tallahassee, including secure phones and building plans and photographs of every office. However, the CMC said that there was no coordination and everyone did everything on their own because communication systems were inoperable.
The office was closed for 2 weeks because there was no electricity. The courts were also closed, and the local jail was severely damaged (1,300 inmates had been evacuated). According to the CMC, “It was not an issue of how do we get work done. It was how do we get [water] to drink.” The CMC also stated, “Local law enforcement were overwhelmed. Deputies from other counties were brought in to assist local, state, and federal law enforcement in preventing looting and anarchy.”
Based on their experience with Hurricane Ivan and the results of the subsequent CIRP exercise,73 the USAO moved its alternative office locations farther away [from their normal places of operations] because, he said, experience had shown that “in some areas, you just had to leave.”
When asked if the CMC training and CIRP exercises helped in the USAO’s response to a second storm – Katrina – that struck the area a year later, the CMC said yes.
According to the CMC National Coordinator, ESF-13 is part of the Department of Homeland Security’s National Response Plan. ESF-13, which addresses law enforcement, public safety, and security, details how the federal government uses its assets to assist in response efforts. ESF-13 would help state and local officials in obtaining federal law enforcement personnel to provide law enforcement services (non-investigative).
According to the CMC, the statutes governing the activation of National Guard units fall under Title 10 and Title 32 of the United States Code. Units activated for Title 32 missions come under the command of a state’s governor. Additionally, Section 502(f) of Title 32 allows the National Guard to be called up for federal service, while remaining under the control of the governor. Title 10 allows for a call to active duty for national service in missions funded by the federal government. Under Title 10, the units serve under the command of the National Command Authority (the President and Secretary of Defense) and receive all of the rights and benefits of active national service.
The state has not yet addressed the issue, according to the U.S. Attorney.
For federal officials to implement state law, each officer needed to be deputized.
According to Mississippi’s State Comprehensive Emergency Management Plan, “Emergency Support Function (ESF) #13, Public Safety and Security, integrates Mississippi public safety and security capabilities and resources to support the full range of incident management activities associated with potential or actual major incidents. The primary purpose of the ESF is to establish procedures for the command, control, and coordination of all state law enforcement personnel and equipment to support local law enforcement agencies.” (http://www.msema.org/cemp/esf13.html)
All three of the district’s branch offices had coordinated an exercise conducted in May 2005.
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