Bob Ross was part of the initial cadre of homeland security strategists who was producing superb analyses and commentaries on the subject long before 9/11. More than a decade later, he continues to add valuable insights to the debate. The opinions expressed are his alone and do not necessarily represent those of any specific organization.

Randy Larsen

Authority and Strategy – The Legal Foundation for Successful Emergency Response

by Bob Ross

On June 3rd, Col. Larsen posted a blog titled “Who Will Be the Thad Allen for a Bio Response?” Part of what he was really asking is “Do we have anyone who is prepared with the knowledge and leadership skills necessary to lead a national response to a major biological attack?” That got me to thinking about what it takes, beyond just knowledge and leadership skills, to lead a successful response to a large scale emergency. The list is long but two things leap to the front – authority to act, both in preparedness and in response, and a well thought out strategy to guide those actions.

In the interest of full disclosure, I must acknowledge that I worked for Admiral Allen and have the highest possible regard for his intelligence and his leadership and communications skills. The man is, quite simply, a national treasure. However, his ability to step in and bring order to difficult situations is not just the result of his considerable innate personal qualities. Rather, Admiral Allen also has to be understood as the product of a system and a culture designed to create capabilities for dealing with problems. The culture in his case is that of the Coast Guard. The system, however, is even bigger.

Noted constitution legal scholar, national security strategist and historian Phillip Bobbitt has stated that “Law is strategy and strategy is law.” By this he means that when a polity decides to acknowledge a problem and deal with it, one of the first things it must do is to provide a basis of legitimacy which authorizes taking action and provides a broad strategy for that course of action. In fact, in the US Congress, legitimacy, authority to act and broad strategic guidance to the Executive Branch for dealing with an identified problem are provided through laws called ‘enabling legislation’ and ‘authorizations.’

In the aftermath of the EXXON VALDEZ, Congress passed the Oil Pollution Act of 1990 (OPA ’90) which required, in addition to a number of spill prevention measures and a compensation mechanism for damages, the creation of oil spill response plans and capabilities. Thus, the law provided a strong statutory basis for dealing with oil spills, at least as they were envisioned at the time. The strategy embodied in OPA ’90 was very successful for the oil tanker scenario at which it was aimed, but it was not fully adequate for the Deepwater Horizon spill which presented problems orders of magnitude far greater than that envisioned when OPA ’90 was drafted. In addition to whatever failures of implementation took place under the Minerals Management Service, the law and the strategy imbedded in the law were simply inadequate to the problem. In a recent interview, Admiral Allen commented on the shortcomings of OPA ‘90 in the face of a Deepwater Horizon-like scenario and how public policy changes might be necessary to craft an acceptable strategy for dealing with such extreme events. Link

Admiral Allen’s earlier foray into the national spotlight occurred when he was tapped to take over the failed federal response to Hurricane Katrina. In that instance, the failures were the result of human shortcomings in both preparation and execution and in the precepts underlying the response strategy embedded in the Stafford Act (i.e., state and local lead with the federal role limited to assisting, and then only when asked). As with the Deepwater Horizon, neither the strategy nor the capabilities to implement it had been developed with an incident of that magnitude in mind. As Bobbitt might put it, both the law and the strategy were inadequate.

In the case of a really big biological event, the questions have to be asked: “Do we have a strategy?” and “Do we have a statutory basis for crafting a coordinated national response to an incident that respects none of our jurisdictional or organizational boundaries?” If the answer to the second question is “No,” and it is, then the answer to the first must also be “No.”

In fact, our situation is even worse than it would be if all we lacked was a strategy. In keeping with the long standing division of responsibilities between the federal and state governments, public health issues have been pretty much the exclusive province of state and local governments, each of which has been pretty much free to determine its own legal authorities, organizational structure and capability mix. That arrangement is almost certainly best when dealing with normal public health issues, but the suitability of our current mix of organizations and authorities for events which span state boundaries must be questioned. Just as public policy changes, of the type described by Admiral Allen in his interview, may be necessary for responding to truly catastrophic oil spills, so too, public policy changes are almost certainly necessary if we are to be ready for a major biological event.

This brings us full circle to Col. Larsen’s original question: “Who Will Be the Thad Allen for a Bio Response? It may be impolite to answer a question with more questions but in this case it is necessary: “What is the national strategy for responding to a major biological attack?” and “Where are the enabling legislation and advance preparations necessary for responding to such an event?” In the absence of a strategy, implemented through appropriate enabling legislation and advance preparation, even Thad Allen would be hard pressed to do much. Emergencies are always “Come as you are” events. If you come unprepared, you are pretty much guaranteed to fail.