Chapter Appendix A - Recommendations
Section Public Safety and Security
Critical Challenge: Public Safety and Security
Lesson Learned: The Department of Justice, in coordination with the Department of Homeland Security, should examine Federal responsibilities for support to State and local law enforcement and criminal justice systems during emergencies and then build operational plans, procedures, and policies to ensure an effective Federal law enforcement response.
49. DHS should, in coordination with DOJ, revise the National Response Plan to provide more effective coordination of the law enforcement response to a disaster by clarifying and expanding the role and mission of the Public Safety and Security support function and the Senior Federal Law Enforcement Officer. The revised NRP should:
a. Designate DOJ as the primary agency responsible for the ESF-13 Public Safety and Security function. The NRP designates DHS and DOJ to serve jointly as primary agencies for the ESF-13 function. This diffusion of responsibility creates unnecessary confusion at the scene of the crisis and violates the principle of unity of command. We recognize that DHS has significant law enforcement assets, both in Washington DC and in field offices throughout the country. However, the Attorney General is, by law, the President’s primary law enforcement officer. DOJ’s long experience and recognized public law enforcement responsibility for prosecuting Federal crimes, in addition to its existing ties with the State and local law enforcement communities, make it best positioned to assume the lead role, though it still must continue to work in partnership with DHS. Through its United States Attorneys Offices in all 50 states and through the FBI’s 100 Joint Terrorism Task Forces, DOJ has the capability to leverage these important relationships with State and local law enforcement. We also consider DOJ to have greater traditional law enforcement experience, whereas DHS’s law enforcement programs are more specialized, focusing on areas such as border control, aviation security, and protective services. In addition, giving DOJ responsibility for leading the Public Safety and Security support function will let DHS focus on its overall coordination of emergency response mission.
b. Finalize the drafting of Public Safety and Security policies and procedures. The Public Safety and Security (ESF-13) Annex of the NRP required primary and support agencies to define their functions and develop policies and procedures by April 2005, four months after the NRP was issued. While drafts exist, this effort needs immediate completion to provide clarity to the organization and functions of the Public Safety and Security support function.
c. Specify that the Attorney General will, in consultation with the Secretary of Homeland Security, designate the SFLEO. When the Secretary of Homeland Security declares an Incident of National Significance (INS), the Attorney General should promptly designate the SFLEO; during a non-INS event, the Attorney General may appoint an SFLEO if needed. Also, the NRP should give the Attorney General the authority to designate a Deputy SFLEO from a department other than that of the SFLEO. In recognition of the Secretary of Homeland Security’s role in coordinating the Federal response under HSPD-5, the Attorney General should consult with the Secretary prior to designating the SFLEO.
d. Include a new position designated as the “Senior Civilian Representative of the Attorney General” (SCRAG). As with the SFLEO, the Attorney General should immediately appoint the SCRAG to serve as the Attorney General’s representative for issues requiring senior-level involvement of a DOJ official. Whereas the SFLEO is responsible for managing the operational aspects of the Federal law enforcement response, the SCRAG will assist as needed in resolving any significant law enforcement policy issues that might arise with State or local officials, or between Federal official.
e. Require the establishment of a law enforcement coordination center within the Joint Field Office (JFO) to coordinate the Federal, State, and local law enforcement response during all types of emergencies. While the NRP includes such an entity for a terrorist-related incident or a National Special Security Event, it does not clearly set forth how Federal law enforcement coordinates with its State and local counterparts during other incidents.
50. DOJ should lead the development of the capability to surge Federal law enforcement resources in the immediate aftermath of a disaster. As outlined by the NRP, law enforcement personnel should be drawn from the following sources, in this order: 1) Civilian law enforcement and National Guard from affected State; 2) Civilian law enforcement and National Guard from other States; and 3) Civilian law enforcement from Federal agencies. To maximize the availability of law enforcement assets from each of these categories, the following should be done:
a. DOJ should establish a program to review State and local plans for continuity of operations for law enforcement and the criminal justice system during a crisis.
b. DOJ should develop a program to increase States’ awareness of the procedures for requesting Federal law enforcement assistance under the Emergency Federal Law Enforcement Assistance Act.
c. DOJ should lead an interagency effort to catalogue the Federal law enforcement assets within the Executive Branch. This effort will serve as the basis for developing a database of assets available for use during an INS, in order to ensure appropriate use of all available Federal law enforcement assets.
d. DOJ and DHS should each develop, in coordination with the other, the capability to rapidly deploy a contingent of Federal law enforcement officers to prevent and respond to civil disorder. Consistent with the principle that law enforcement is the responsibility of local and State governments, this force should deploy only in the event that State authorities request Federal assistance pursuant to the Emergency Federal Law Enforcement Assistance Act, or as otherwise directed by the President. However, the NRP should make clear that where, as in this case, the need for additional law enforcement resources is manifest and obvious, it should be the Attorney General’s responsibility, after notifying the Secretary of Homeland Security, to make an offer of Federal law enforcement support to the affected Governor.
51. DOJ should develop procedures for streamlined deputization of qualified Federal law enforcement officers. This effort should address circumstances where Federal law enforcement personnel require Federal deputization to enforce Federal laws outside their jurisdiction, or State deputization to enforce State laws. DOJ should work together with the States’ Attorneys General to develop agreements whereby a State requesting Federal law enforcement assistance agrees in advance to grant limited State law enforcement authority to Federal agents for the duration of the emergency.
52. DOJ should, in coordination with DHS, further incorporate force protection into Federal response planning, to prevent disruption of Federal agencies' operations and to protect Federal personnel and property. While the Public Safety and Security annex of the NRP designates force protection as an ESF-13 responsibility, further response planning is required on this issue in light of the problems encountered during Hurricane Katrina.
53. DOJ should, in coordination with the Administrative Office of the U.S. Courts, develop a program to ensure the continuity of the Federal criminal justice system and to provide assistance to States in developing complementary plans. While the operation and continuity of the court system falls under the purview of the Judicial Branch, the Department of Justice should ensure that adequate plans exist to ensure the continuity of its critical prosecutorial functions. Components of DOJ such as the U.S. Marshals Service and the Bureau of Prisons are critical to the operations of the Federal court system and must be incorporated into the contingency planning.
54. DOJ should develop plans to improve the accountability for persons under supervision by the Federal criminal justice system, and to provide assistance to States in developing complementary plans.
55. DOJ, in coordination with DHS, should establish a program to provide oversight and technical assistance for States’ emergency plans for evacuating prisoners in the event of a disaster. Although evacuation of State and local prisoners is primarily a State and local responsibility, prisoners are protected by Federal civil rights laws and thus the Federal government has an interest in ensuring that such evacuations are appropriately planned and implemented.
56. DHS and DOJ should coordinate their respective grant and assistance funding programs to States and local governments to establish uniform standards and conditions of awards in furtherance of the above recommendations. If both departments should determine a need for legislation to remedy the disparate standards or criteria for different grant sources, OMB should consult with the departments to draft proposed legislation.