SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 92
September 26, 2005

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:

The 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:

See also "The Use of Federal Troops for Disaster Assistance: Legal Issues," CRS, September 16, 2005:


RESTORING 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:


CHALLENGE 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:

See also "3rd Circuit Finds No 'Fraud on the Courts' in 50-Year-Old Case" by Shannon P. Duffy, The Legal Intelligencer, September 26:

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:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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