Too Strange to be Just Fiction: Legal Lessons from a Bioterrorist Simulation, the Case of TOPOFF 2

• Author: John D. Blum
• Position: John J. Waldron Research Professor of Health Law, Loyola University Chicago School of Law
• Pages: 905-917

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John J. Waldron Research Professor of Health Law, Loyola University Chicago School of Law.

In the post 9/11 world, a strange and troubling convergence of public health and terrorism has occurred. What was once fodder for science fiction novels, bioterrorism is now an increased area of concern around the globe. The threat of bioterrorism, real or perceived, can have a paralyzing impact on the daily life of any nation, and in a world on high alert the concern over biological mayhem is anything but remote. The challenges faced by government in addressing bioterrorism are both scientifically and operationally perplexing. On the one hand, there is a lack of consensus about the nature and viability of health threats posed by a seemingly ever-expanding array of disease agents. From an operational standpoint, major logistical challenges are raised in the attempt to coordinate appropriate responses to respective threats, forcing integration of civil defense and health agencies at all levels of government. The law that underpins our responses to bioterrorism represents a disparate collection of powers and principles that do not necessarily mesh together. Even in the context of public health, the relevant laws are a rather strange hodgepodge of local, state, and federal principles developed over a long period of time and typically lacking in cohesiveness. This paper will focus on law in the bioterrorism context, and that focus will center on the active and reactive roles that the law played in one bioterrorism exercise, TOPOFF 2. The discussion will be concentrated on the legal considerations raised in the Illinois portion of the TOPOFF 2 exercise, the largest simulated event of its kind to date. In addition to reviewing the TOPOFF 2 scenario and the relevant legal issues raised by the exercise, the paper will draw conclusions concerning the broader role of law in confronting bioterrorism threats.

The Exercise

On May 10, 2003, unknown biological agents were released at O'Hare Airport, United Center, and Union Station in Chicago, all major venues frequented by large numbers of people.¹ On May 12, Page 906 in Seattle, Washington, a "dirty bomb" was ignited causing concerns over radiation exposure in that region, and resulting in the Homeland Security Advisory System (HSAS) raising the threat level across the country to the highest rating, "red."² The Seattle event triggered local, county, and state responses in Illinois (as well as across the nation) as respective, responsible units of government, including the Illinois Department of Public Health (IDPH) and area hospitals, were placed on a heightened alert for a possible terrorist event.³ During the evening of Sunday, May 12, hospitals across Northeastern Illinois (in Cook, DuPage, Kane, and Lake Counties) began notifying IDPH of an unusual increase in emergency room visits by patients with symptoms of lower respiratory tract infections.⁴ By 7 a.m. on the following day, thirty-three hospitals had reported a total of seventy- six cases of undetermined respiratory tract infections in mostly young and middle aged adults who presented with fever, cough, shortness of breath, and chest pain.⁵ In response, the IDPH mobilized its rapid response teams and requested that the Centers for Disease Control (CDC) send epidemic intelligence officers to Illinois to assist local health departments.⁶ In addition, IDPH notified hospital emergency departments, hospital infection control practitioners, and infectious disease physicians of the occurrence of this infection, and invoked necessary powers to insure that area hospital emergency rooms remained open.⁷ By 8 a.m. on May 13, IDPH had developed a preliminary case definition for an infectious disease that was soon replaced by a plague case definition; simultaneously, IDPH received notification of fourteen dead due to the infection, with an estimated 269 others dying.⁸ At 4 p.m. the state lab confirmed a positive PRC for plague, and several minutes later, at 4:05 p.m., the Governor of Illinois declared a state of emergency and requested an expedited Presidential Disaster Declaration, followed by a request based on an IDPH recommendation that CDC release the Strategic National Page 907 Stockpile, a federal program which provides bulk medication packets for treatment and prophylactic purposes.⁹ By 8 p.m. on May 13, IDPH had reports that fifty-seven people had died from the plague and that another 403 individuals were dying.¹⁰

By 8 a.m. on May 14 the numbers had increased to 351 dead and 2,214 dying, with confirmation being received by IDPH from hospital labs that blood cultures were confirming the diagnosis of plague.¹¹ By mid-morning drugs were received from the CDC national stockpile; considerable activity on May 14 entailed the breakdown and distribution of the stockpile drugs, with a priority being that first responders receive necessary pharmaceuticals, and that five local distribution centers be supplied with drugs for the general public.¹² By the end of the day, 646 were dead and another 2,332 were dying.¹³ On May 15, law enforcement identified a bio- laboratory being operated by a terrorist cell in the Chicago area.¹⁴ On the same day, an air crash occurred at Chicago Midway airport, allegedly caused by terrorists, which further complicated the emergency response to the broad public health crisis.¹⁵ By the end of the plague outbreak on May 16, 2,287 individuals had died from the plague, with an estimated 4,433 others dying, dramatically taxing the resources of the sixty-four involved hospitals.¹⁶ In addition to the events noted, several key declarations were made that influenced this exercise.

Homeland Security Secretary Tom Ridge declared a "snow day" which permitted individuals in the affected areas to remain at home during the plague outbreak. President George W. Bush, under the auspices of the Stafford Act,¹⁷ issued a disaster declaration, which allowed for federal assistance, and the Secretary of Health and Human Services Tommy G. Thompson issued a public health emergency declaration under the United States Public Health Services Act,¹⁸ which also made it possible for Illinois to obtain other assistance.¹⁹

Fortunately TOPOFF 2 was not real, and was only an elaborate exercise in "how to attempt" to respond to two serious and successive Page 908 bioterrorism attacks in two major American cities, Seattle and Chicago respectively. The exercise, mandated by the Congress, was the largest, simulated, mock terrorism event to date, costing a total of sixteen million dollars and bringing together top government officials from twenty-five federal, state, and local agencies, as well as individuals representing key preparedness areas of the Canadian government.²⁰ The chief agency sponsors of TOPOFF 2 were the United States Department of Homeland Security/Office of Domestic Preparedness and the United States Department of State/Office of the Coordinator for Counterterrorism.²¹ While the largest, TOPOFF 2 was not the first simulated terrorism drill. TOPOFF 1, which preceded TOPOFF 2, occurred in May 2000, and involved an unannounced release of mustard gas in Portsmouth, New Hampshire, and the release of plague in Denver, Colorado, under the direction of the Federal Emergency Management Agency (FEMA) and the United States Department of Justice (DOJ).²² Unlike the initial exercise, TOPOFF 2 was not a surprise; instead it involved widespread, advanced planning and coordination, likely reflecting the fact that very basic, foundational work needs to be done in our emergency response systems before it can realistically handle a "real" event of the magnitude of the exercise. In the report on TOPOFF 1, a "no notice" event, it was concluded that the exercise was characterized by multiple direction and control nodes, numerous liaisons, and an increasing number of response teams that complicated coordination, communication, and unity of effort-;in essence, considerable disorganization.²³ While TOPOFF 2 was more complicated than its predecessor, the goals of the exercise were to develop the "building blocks" of national preparedness, and to develop and strengthen relationships of key actors at all levels of government.²⁴ In essence the exercise involved all of the major activities of public health related to emergency preparedness, including surveillance, epidemiological investigation and analysis, laboratory investigation and analysis, intervention, risk communication, planning, community-wide response, and perhaps unique to bioterrorism, the involvement of law enforcement.²⁵

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General Legal Considerations

From a legal standpoint, the TOPOFF 2 exercise served as a catalyst for legal officials in the IDPH to conduct an analysis of law related to public health emergencies, with a view toward understanding the scope of existing law, as well as the administrative and judicial mechanisms needed in order to apply this broad collection of law. The appreciation of relevant law is a complex matter in the context of a public health emergency as there are multiple agencies at all levels of the government that become involved. It is not only a matter of federalism in which the scope and coordination of powers between federal and state governments must be recognized, which includes interagency policies at the same governmental levels, but local government involvement (municipal and county) is also a matter that needs to be appreciated. In Illinois virtually all of the state's 100 counties have local public health departments with their own policies, and in some cases separate ordinances.

Under the auspices of the IDPH Chief Counsel, a detailed source book of law was compiled which contains a comprehensive portrait of all relevant local, state, and national laws that may be needed in...