Integration of Law Enforcement and Military Resources with the Emergency Response to a Terrorist Incident

In a terrorist incident, medical and rescue personnel will respond to locate, extricate, treat, and transport patients. Simultaneously, law enforcement resources will respond to investigate, interview, and collect evidence. Medical operations can interfere with the investigation and successful prosecution of terrorist activity. Movement through the scene can disrupt or destroy evidence. At the same time, by limiting access to the scene, law enforcement can impact the ability of medical responders to effectively treat patients and move them from the scene. Secondary or delayed attacks as part of a terrorism event in particular can create more casualties from the responders themselves, further complicating and delaying treatment to all patients. Yet, rapid response and extrication from the point of injury is critical to treating victims and preventing further injuries.

Integrating the law enforcement response with the medical response requires cooperation at all levels of the operation: tactically, where individual personnel must work side by side; operationally, where a unified command must smoothly coordinate resources at the incident site; and strategically, where resource and response decisions must be made. Emergency medical technicians (EMTs), nurses, and physicians need to be aware of evidence preservation and crime scene management. Mass fatality management must also coincide with evidence processing.

In a large-scale incident, regardless of its type, military resources may also respond to the scene. The military has unique assets that can respond to terrorist incidents, including personnel trained for decontamination, mitigation, and detection of weapons of mass destruction (WMD). They can serve to augment the medical, rescue, and law enforcement capabilities of the civilian community. However, both the military responder and their civilian requester must understand the processes that allow the use of military resources and the rules under which they function.

The potential conflicts between medical responders and law enforcement officials must be addressed prior to the actual incident. The relation between military assets and the civilian government must be established. By recognizing the distinct roles that each agency plays in responding to a terrorist incident, the responder can better address his or her mission and the incident commander can better utilize resources. ^,

In the wake of 9/11 and subsequent attacks, there has been ongoing change in the legal and administrative framework that organizes the U.S. federal and state response to terrorist incidents. To better understand these changes, it is helpful to look at the trends in the response to terrorism as a crime and terrorism as a mass casualty event over the last few decades.

Historical perspective

Law Enforcement

Since the 1980s, the terms consequence management and crisis management have been used when differentiating between the roles of rescuers and the roles of investigators. The Federal Emergency Management Agency (FEMA) defines consequence management as the actions taken to protect public health and safety, restore essential government services, and provide relief to governments, businesses, and persons affected by the consequences of terrorism. Crisis management, in contrast, is the measures taken to identify, acquire, and plan the use of resources to anticipate, prevent, and resolve a threat or act of terrorism.

Consequence management is maintained at the lowest level of government possible. If the consequences of a terrorist incident can be met with resources from the local level, there should be minimal involvement of state or federal resources. If local government is not able to adequately manage the consequences of the incident, it will turn to the state government for assistance. Similarly, if the state cannot meet the needs of the incident, it will turn to the federal government. At the federal level, consequence management has been the responsibility of the agency providing civil defense; since the 1970s this has been FEMA.

In contrast, crisis management has always been a function of the federal government. The concept of terrorism as a criminal act evolved from the realm of sabotage and espionage where an individual, working as an agent of an enemy state, performs an action that is injurious to the government or its people. Acts of terrorism, by extension, are acts committed by transnational or nonstate organizations and individuals. As a result, these crimes are prosecuted in the federal courts under U.S. Code. The Department of Justice was appointed the lead federal agency for crisis management in the 1980s. The Federal Bureau of Investigation (FBI) was then delegated the responsibility for crisis management.

The difficulty with having two different response operations to the same incident is that each entity, rescue and investigation, has a different set of objectives. Neither feels the other has a complete view of the incident. Conflict in managing the incident is an inevitable consequence of these unshared objectives.

The Stafford Act was passed in 1974 and amended in 1988 to delineate the federal response to a disaster. The act was not made with a specific reference to terrorism. It did, however, state that nothing within the act was to construe an investigatory role for any federal agency other than the FBI.

In 1985 George H.W. Bush, acting in his capacity as vice president, led the Task Force on Combatting Terrorism, which made many recommendations for further actions, including clarification of lead agencies and available resources for various aspects of combating terrorism, both foreign and domestic. The following three decades have displayed an ongoing refinement of government structure in response to terrorism. The first large-scale act of modern terrorism on U.S. territory occurred in 1993, and it is an example of an event during which there was minimal conflict between the crisis and consequence management entities. The World Trade Center was the site of a vehicle-borne improvised explosive device detonation that resulted in six deaths and more than 1000 injuries. An area 150 feet wide and 5 stories deep was destroyed. The cause of the explosion was initially identified as a transformer explosion with a resultant fire. Because of this, command and control was largely initially performed by the fire department of the city of New York (FDNY). Fire ground operations were handled with resources from the FDNY only, with mutual aid being required for the emergency medical services (EMS) response. Only later, after the discovery of a car bomb as the source, did the site evolve into a crime scene. The area was then processed by four FBI evidence technicians and four Bureau of Alcohol, Tobacco, and Firearms evidence technicians working with a local New York Police Department chemist. After-action reports indicated a minimum number of conflicts between federal and local law enforcement officials. These reports attribute this to an already established Joint Terrorism Task Force (JTTF), which had been in existence in New York City since the 1980s.

JTTFs have been established in 103 cities, including an office in each of the 56 major metropolitan areas that have FBI field offices. Seventy-one of these offices opened after 9/11. Each is made up of FBI special agents and local law enforcement officers functioning as Special Deputy U.S. Marshals. They share in the responsibility of gathering intelligence, investigating, and prosecuting terrorist-related crimes. Funding of JTTFs is largely through the FBI, although the local governments continue to pay the salaries of their officers.

Two months after the Oklahoma City Bombing in 1995, President Clinton signed Presidential Decision Directive 39 (PDD-39). PDD-39, still mostly a classified document, established guidelines for federal command and control in the event of a terrorist incident. Although local agencies were mainly responsible for search and rescue, FEMA deployed multiple urban search and rescue teams. Furthermore the incident was recognized nearly immediately as a criminal action. Specifically, the directive designates the Department of Justice as the lead federal agency for operational response and crisis management, and the attorney general delegated this role to the FBI. It designates FEMA as the lead federal agency for consequence management. Furthermore, it specifies that crisis management will take precedence over consequence management: the FBI would remain in charge of the scene until the attorney general had turned the scene over to FEMA.

Presidential Decision Directive 62 (PDD-62) directs the federal agencies in their preresponse planning to counterterrorism and consequence management. It established a national level coordinator for security, critical infrastructure protection, and counterterrorism. It provided guidance to the Department of Justice, Department of Health and Human Services, and Department of Defense (DoD) in preparing the Metropolitan Medical Strike Team (now Metropolitan Medical Response System) in the first 120 cities that established them.

The Concept of Operations Plan (CONPLAN) for terrorism, signed in 2000, reaffirmed the role of the Department of Justice as the lead federal agency in the response to terrorism. As such, the FBI remained the on-scene commander until the attorney general relinquished control to FEMA. The FBI would establish a Joint Operations Command (JOC) that would serve as a focus for crisis management in the unified response. It was intended to complement and work with the local agencies’ Incident Command System (ICS).

On September 11, 2001, the World Trade Center was attacked for a second time. It was a much larger and clearly more destructive attack; the response was large and difficult to manage. Again, the JTTF was crucial in providing a guiding framework for the crisis management response. There was a coordinated response to evidence processing that seemed to have had minimal effect on the rescue efforts. The most serious concern with the response to 9/11 was not a conflict between law enforcement and rescue, but the lack of coordinated communications that may have led to unnecessary morbidity and mortality. The police commander ordered the evacuation of his personnel from the building after receiving information pointing to the potential for collapse, but this was not relayed to the firefighters, contributing to the loss of 343 firefighters’ lives in the eventual collapse. The success of the management of the response to the 9/11 Pentagon attack can largely be attributed to the ability of the first responders, the Arlington Fire Department, to assert themselves as the incident commanders. Until the initial rescue and recovery operations were completed, the command remained with one agency as the lead, while other agencies actively contributed to the management of the incident.

The Initial National Response Plan (INRP) was enacted in September 2003, while a final National Response Plan (NRP) was being developed. After it was signed, the NRP became the guiding document for federal response to terrorism, supplanting the Federal Response Plan, the INRP, and the CONPLAN. It delineated the role of the Department of Homeland Security in the response to terrorism. It also proposed moving toward a unified command, with a designated principal federal official (PFO) as the overall senior federal official at the scene.

The NRP was enacted in 2004; it underwent subsequent revisions in 2006, incorporating lessons from the Hurricane Katrina response. It evolved into the National Response Framework (NRF) in 2008, with its current version released in May 2013. The change from the NRP to the NRF reflected feedback from local emergency management entities that the NRP was not a detailed response plan, nor did it stress the importance of local resources. The NRF stresses an all-hazards approach and provides guidance for local to large-scale terrorist events.

Military

The military has been involved in support to civilian disasters since the inception of the union. The use of the military for non–law enforcement response is legal and well established in both statute and case law. The military has performed ad hoc relief missions to natural disasters both as an immediate response to emergencies in adjacent civilian communities (as in the San Francisco earthquake of 1906) or in sustained efforts as approved by Congress. It was not until the Federal Civil Defense Act of 1950 that Congress codified the military’s standing role in civilian disasters. This military role was later expanded in the Stafford Act of 1974, and it has been supported in periodic amendments and revisions.

However, there is often concern about the use of military in support of civilian law enforcement. Originally, the states were concerned about the federal government maintaining a standing army. In the Reconstruction Era after the Civil War, the Union Army was used to maintain order in the Southern states. Southern states’ reaction to the continued presence of martial law during this time was to limit the future use of the army in civilian law enforcement. Feeling that the army’s enforcement of polling laws led to the party’s loss of the presidency, a Democratic Congress passed the Posse Comitatus Act in 1878. A posse comitatus (Latin for “power of the county”) historically is a collection of able-bodied citizens working under the county sheriff to enforce the laws. Currently, under Title 18, Section 1385 of the U.S. Code, the U.S. Army and U.S. Air Force are prohibited from serving as a posse or other form of law enforcement. By DoD policy, this has been extended to the U.S. Navy and the U.S. Marine Corps.

Since the passing of the Posse Comitatus Act, the military has continued to respond to natural disasters to support civilian communities in non–law enforcement roles. Importantly, the Posse Comitatus Act does not completely eliminate the use of the military as an aid to law enforcement: it does allow for the suppression of riots and controlling of crowds. The last large-scale use of this provision of the U.S. Code, Title 10, Chapter 15 , Section 332, was in 1992, when President George H.W. Bush responded to the Los Angeles riots by deploying U.S. Army and Marine troops and “federalized” (used as part of the U.S. Army) California National Guardsmen. Furthermore, it is important to note that the Coast Guard is excluded from the Posse Comitatus Act. The Coast Guard, part of the Department of Homeland Security, is the United States’ leading maritime law enforcement agency. Its duties include drug enforcement, immigration control, and port security.

The Stafford Act identifies the DoD as a resource that may be requested by the state governor from the president through a state disaster declaration. In an incident in which a disaster declaration is expected, the president can direct the secretary of defense to provide military resources to the response for a period of up to 10 days. Once a declaration has been made, the resources are available through the established Joint Field Office (JFO). Expenses that the DoD incurs in either of these response modes are reimbursable.

Additionally, under the concept of immediate response, a local military commander can use assets available to him or her to provide aid to an adjacent civilian community. Traditionally, the period of time in which an immediate response can be performed is generally considered the first 3 days of a disaster. After that period, it is expected that requests for assistance will come through the channels established for crisis or consequence management (e.g., a state governor will request assistance from the president, then the president tasks the military with providing support). Under the concept of immediate response, the local commander can provide support to law enforcement when there is the possibility of loss of life or wanton property destruction, or to restore the functions of government.

Although the military is a very large entity, they do not automatically take command in the rare instance when they respond to a civilian jurisdiction. The 9/11 Pentagon response is one such example of incident command remaining with a local fire department. The Fort Hood shooting event in 2009, although not legally categorized as an act of terrorism, highlighted the importance of immediate response memorandums of agreement between local EMS and military personnel that allowed transport and distribution of patients to both local hospitals and to the on-base military hospital.

Current practice

Law Enforcement

In the moments immediately following a domestic terrorist attack, it may not be clear that a terrorist event has taken place. Local law enforcement will likely respond to the scene as they would to any other major crime scene. A command post will be established early in the incident according to the National Incident Management System (NIMS). This command post will be scaled to the size of the incident and be expanded as needed. As part of law enforcement’s response, efforts will be made to limit the contamination of evidence by keeping the number of responders entering the scene to a minimum. An internal and external perimeter will be established as soon as practical. Also, it is expected that rescuers will need to enter the scene of a terrorist attack, and the chaotic movement of patients and rescuers carries an inherent risk of contamination of an active crime scene. To minimize the risk of adulteration of evidence at the scene, multiple courses are available to teach the EMS and firefighter to recognize a criminal or terrorist incident, minimize scene contamination, and to relate crime scene information to law enforcement officials. As the incident develops, additional resources may be mobilized at the local, state, and federal level. Depending on the type of incident, other local law enforcement assets (e.g., Special Weapons and Tactics [SWAT], canine [K-9], Explosive Ordnance Disposal [EOD], and hazardous materials [HazMat] units) may require entry into the scene as well, and this requires coordination if evidence is to be preserved.

At the federal level, the lead authority for the investigation of domestic terrorist events is the FBI. When notified of a possible terrorist incident, the FBI will send agents from its local field office to the scene separately or as part of an existing local JTTF. The Special Agent in Charge (SAC) for the FBI will be the primary investigator to determine if the incident is related to terrorism. Initially, an FBI command post will be established to coordinate efforts with the local first responders’ command post. Ideally, this will evolve into a unified command structure supported by the Department of Homeland Security’s JFO and by local, state, and regional emergency operations centers. The Department of Homeland Security (DHS) will establish a JFO within 4 to 12 hours of determining that a terrorist incident has occurred. The JFO functions in essence as an area command as established in the ICS, or similar to a regional emergency operations center ( Fig. 86-1 ). It functions as the Unified Coordination Group (UCG) which incorporates a coordination group, operations group, administration and finance group, logistics group, and a planning management group paralleling the ICS used at the local level.