SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 92
September 26, 2005
** WAS KATRINA A CATASTROPHIC EVENT?
** RESTORING CRITICAL INFRASTRUCTURE AFTER KATRINA
** CHALLENGE TO 1953 STATE SECRETS CASE BLOCKED
WAS KATRINA A CATASTROPHIC EVENT?
On August 30, Secretary of Homeland Security Michael Chertoff
designated Hurricane Katrina "an incident of national
significance," and thereby activated the National Response Plan
(NRP).
But did the Secretary also designate the Hurricane as a
"catastrophic event," a special sub-category of emergency
situations that entails the expedited deployment of emergency
response capabilities?
The answer to this question is mysteriously hard to find.
Catastrophic events permit "an accelerated, proactive national
response" and may include "mobilizing and deploying assets before
they are requested via normal NRP protocols," according to the
Catastrophic Incident Annex to the National Response Plan.
"A catastrophic event is any natural or manmade incident, including
terrorism, that results in extraordinary levels of mass
casualties, damage, or disruption severely affecting the
population, infrastructure, environment, economy, national morale,
and/or government functions."
"All catastrophic events are Incidents of National Significance."
However, not all Incidents of National Significance are
"catastrophic events."
So did the Secretary designate Katrina a catastrophic event, or not?
DHS won't say.
"When asked if Chertoff exercised his catastrophic incident
authority in response to Hurricane Katrina, DHS spokesman Russ
Knocke said it was too early to make a determination," wrote Chris
Strohm in Government Executive Daily Briefing on September 8 in
perhaps the only news story to address the issue. See:
http://www.govexec.com/dailyfed/0905/090805c1.htmThe answer to this question would help clarify whether the faulty
government response to Katrina was a failure of planning or of
personnel, or some combination of the two.
Meanwhile, President Bush appeared to suggest that his Department
of Homeland Security was incapable of coping with a catastrophic
natural disaster and that increased military authority was needed.
"Is there a circumstance in which the Department of Defense becomes
the lead agency [for emergency response]?" the President asked at
a September 25 press briefing. "Clearly, in the case of a
terrorist attack, that would be the case, but is there a natural
disaster which -- of a certain size that would then enable the
Defense Department to become the lead agency in coordinating and
leading the response effort. That's going to be a very important
consideration for Congress to think about."
Some related issues are discussed by the Congressional Research
Service in "Hurricane Katrina: DOD Disaster Response," September
19, 2005:
http://www.fas.org/sgp/crs/natsec/RL33095.pdfSee also "The Use of Federal Troops for Disaster Assistance: Legal
Issues," CRS, September 16, 2005:
http://www.fas.org/sgp/crs/natsec/RS22266.pdfRESTORING CRITICAL INFRASTRUCTURE AFTER KATRINA
A Department of Homeland Security memo presents guidelines to
assist in restoring critical infrastructure systems that were
damaged or destroyed by Hurricane Katrina, and to help secure such
systems against attack.
"The loss of major critical infrastructures and associated control
systems in the Gulf Coast Region has created cascading impacts
across multiple critical infrastructure sectors," the memo states.
"During the aftermath of this natural disaster, threat agents with
malicious intent may attempt to exploit new vulnerabilities or
take advantage of existing vulnerabilities as significant focus
and resources are directed to those in need. It is important for
the control systems community to be cognizant of threats that may
attempt to take advantage of personnel and systems likely to be
more vulnerable to both physical and cyber attacks as a result of
Hurricane Katrina."
See "Hurricane Katrina Control System Assistance," DHS United
States Computer Emergency Readiness Team -- Control Systems
Security Center, September 16, 2005:
http://www.fas.org/irp/agency/dhs/katrina-csa.pdfCHALLENGE TO 1953 STATE SECRETS CASE BLOCKED
A federal appeals court last week upheld the dismissal of a lawsuit
alleging that the government fraudulently invoked the state
secrets privilege in a case that went to the Supreme Court fifty
years ago.
The landmark 1953 Supreme Court ruling in Reynolds v. United States
ratified the state secrets privilege as a way for the government
to prevent discovery by a plaintiff in litigation.
A half century after that case was decided, the surviving
plaintiffs and their families obtained the now declassified
records that had been withheld from them under the state secrets
privilege. To their surprise, they saw nothing sensitive in the
records to justify the use of the privilege, and they returned to
court alleging fraud.
But the appeals court wasn't buying it.
"The concept of fraud upon the court challenges the very principle
upon which our judicial system is based: the finality of a
judgment," the ruling stated.
A layman might have supposed that "the very principle upon which
our judicial system is based" is justice, or fairness to the
parties, or an accurate record. But a layman would be wrong.
"The presumption against the reopening of a case that has gone
through the appellate process all the way to the United States
Supreme Court and reached final judgment must be not just a high
hurdle to climb but a steep cliff-face to scale," the ruling
declared, foreshadowing its rejection of the plaintiffs' claims.
A copy of the September 22 ruling is here:
http://www.fas.org/sgp/jud/herring0905.pdfSee also "3rd Circuit Finds No 'Fraud on the Courts' in 50-Year-Old
Case" by Shannon P. Duffy, The Legal Intelligencer, September 26:
http://www.law.com/The application of the state secrets privilege to block a patent
infringement case involving an underwater fiber optic coupler was
neatly reported in "Secrecy Power Sinks Patent Case" by Kevin
Poulsen in Wired News, September 20:
http://www.wired.com/news/technology/0,1282,68894,00.html_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.