Chapter 16 Continuity of the Judiciary

• Library: Homeland Security and Emergency Management: A Legal Guide for State and Local Governments (ABA) (2018 Ed.)

CHAPTER 16 Continuity of the Judiciary George B. Huff Jr., Esquire

Justice delayed is justice denied; so: how long can you go without the rule of law?

In this post-9/11 century, every American appreciates that there is a continuing threat of a massive terrorist attack on our soil.¹ The 9/11 terrorist attacks against New York City and Washington, D.C., and the anthrax attacks in Washington, D.C., that quickly followed them, were wake-up calls that terrorists may seek again to target America's top government institutions and leaders.² No American will forget the 9/11 terrorist attacks, the 21st-century's Pearl Harbor, although no doubt some have forgotten that the 9/11 attacks closed down the United States Court of Appeals for the Second Circuit, and district and bankruptcy courts of the Southern District of New York. The 9/11 terrorist attacks not only altered America's way of life, but also forged new continuity strategies for the business of the federal judicial system and its ancillary organizations.

On the morning of 9/11, the Judicial Conference of the United States was convened in the U.S. Supreme Court building. After the second plane struck the south tower of the World Trade Center, Chief Justice William Rehnquist was escorted to a secure location, and the conference adjourned. Across First Street from the Court, the U.S. Capitol Building was evacuated. The judges of the Judicial Conference returned to the Thurgood Marshall Federal Judiciary Building next to Union Station, as smoke from fires in the Pentagon rolled across the Potomac River into the nation's capital.³ The Federal Aviation Administration's national operations manager made the decision to ground commercial flights across the nation, and redirected flights in the air to the nearest airports. The judges of the Judicial Conference and judicial staffs arranged for carpools and ground transportation to return to their homes and duty stations. Just days later, anthrax contamination within the U.S. Postal Service forced the closing of the U.S. Supreme Court building; for the first time since its opening in 1935, the Court heard arguments in another location.⁴

The events of September 2001 forced America into a period of uncertainty, yet there shines a renewed hope in the promise of a world based on governments that adhere to human rights and democratic values. The key findings of the 9/11 Commission confirmed that al Qaeda was intent not only on killing Americans in a horrific spectacle but also on attacking the very leaders and institutions of government that would be essential to responding to the attack.⁵ The 9/11 Commission Report (2004) addressed new roles and responsibilities for America's public sector institutions, and the Department of Homeland Security's mandate for working with America's private sector organizations to achieve a higher standard of care for organizational preparedness and resilience.⁶

As a separate, co-equal branch of federal government, the federal judiciary, or third branch, provides a forum for resolution of conflicts and disputes that is continuously served by America's practicing bar. America's judges and lawyers are subject to ethical canons, duties, and responsibilities for the judicial process, including explicit responsibilities for representing clients and safeguarding their property, as well as maintaining the integrity of the profession of law. It is fundamental to preservation of the rule of law that judges, lawyers, and bar associations strive to continue delivering prioritized legal products and services, including publishing judicial decisions in the aftermath of a disaster or disruptive event.⁷

In the federal judiciary, continuity of operations planning (COOP) as far back as the Cold War era has emphasized the need to preserve continuity in the event of a nuclear attack on the United States. Much focus then was placed on the preservation of the senior leadership of each branch of government, including the Chief Justice and Associate Justices of the U.S. Supreme Court. Included in these plans were evacuating and relocating high-level judicial officials to secure alternative operational facilities located away from Washington, D.C. Much has been changed to ensure that the third branch is quickly and legitimately maintained after a catastrophic attack, such as the 1995 terrorist attack on the Alfred P. Murrah Federal Building in Oklahoma City, prior to the inception of the post-9/11 COOP programs.

The Oklahoma City bombing killed 168 people and injured more than 680 others.⁸ In September 1995, the 7,000-pound explosive device that destroyed the Murrah Federal Building in Oklahoma City shattered 160 windows in the nearby U.S. Courthouse for the Western District of Oklahoma.⁹ In 25 percent of the federal courthouse, ceiling tiles and fixtures fell, damaging furniture and computer equipment. Utilities were disrupted and life safety systems rendered inoperative. One block south of the courthouse, separated by an alley, the Old U.S. Post Office Building that housed the bankruptcy court, federal defenders' office, and the post office, also sustained damage. The blast destroyed the windows in the unshielded tower floors five through nine that rise above the courthouse. As a symbol of America's authority in every state in the country, each federal public building and every U.S. courthouse represents a federal government institution that is a potential target for a terrorist attack.

Since the Oklahoma City and 9/11 attacks, there have been substantial changes in government policy to prevent another massive terrorist event from occurring, including creation of the Department of Homeland Security. Each federal court's COOP plan is site-based and specifically designed to minimize the human effects of a sudden disaster, such as a bombing or terrorist-like attack.

On September 8, 2005, the Congressional Research Service issued a report that addressed the renewed attention that judicial branch policy makers and administrators had given to crisis response, emergency planning, and COOP.¹⁰ Private-sector organizations have instituted emergency preparedness plans too. More recently, the American Bar Association¹¹ and larger law firms have adopted business continuity management system standards, such as the private sector preparedness standard recommended in the 9/11 Commission Report, and the newer private sector preparedness standards adopted by the Department of Homeland Security.¹²

In the context of the third branch, COOP planning is the internal effort of individual courts, offices, and ancillary organizations to ensure that the capability exists to continue prioritized judicial operations in response to an array of potential operational interruptions. The federal judiciary's policy was adopted from FEMA and provides that those courts with a viable COOP plan will perform their essential functions from alternate sites during any emergency or situation that may disrupt normal operations. Localized operational interruptions that could require activating a court's COOP plan may include routine building renovation or maintenance; mechanical failure of heating, water, or other building systems; fire; and severe weather or other acts of nature. Other disruptions that may interrupt a court's activity include failure of information technology (IT) and telecommunications installations due to power loss, malfunction, or cyberattack. The COOP plans of courts, court units, and ancillary organizations cover these potential disruptions to court operations.

ESSENTIAL ELEMENTS OF CONTINUITY OF OPERATIONS PLANS

FEMA's Office of National Continuity Programs is the proponent of Federal Continuity Directives that provide direction to the executive branch for developing continuity programs and plans.¹³ At the outset, FCD-1 requires a program management lifecycle for continuity programs and plans, a risk management process, a budget for planned actions, and the acquiring of resources in support of the continuity capability. FCD-2 sets forth the executive branch's risk management approach, including the business process analysis and business impact analysis that each organization must perform annually to identify and prioritize its critical functions. Collectively, the nation's risk management approach defines the criticality of the governmental functions of the heads of departments and agencies, as defined by statute, regulation, presidential directive, or other legal authority, and the functions of the legislative and judicial branches.

According to Federal Continuity Directives, at least ten continuity elements must be present in order to have a viable COOP plan.

Essential Functions

The identification and prioritization of essential functions is a prerequisite for continuity planning, because they establish the planning parameters that drive an organization's efforts in all other planning and preparedness areas.

Orders of Succession

Organizations are responsible for establishing, promulgating, and maintaining orders of succession to key positions. Such orders of succession are essential to ensure that the organization has clearly established and identified leadership and key personnel, if these leaders are incapacitated or otherwise unavailable.

Delegations of Authority

Delegation of authorities for making policy determinations and for taking necessary actions at all levels of an organization ensures a rapid and effective response to any emergency requiring the activation of a continuity plan. It is vital to clearly establish delegations of authority so that all organization personnel know who has legal authorization to make key decisions and take necessary actions during continuity activation and operations. Generally, a predetermined delegation of authority will take effect when normal channels of direction and control are disrupted that will lapse when those channels are re-established.

Continuity Facilities

The use of continuity...