Thursday, April 29, 2010

The Disaster Law List

A disaster law list was developed several years ago by Professor Dan Farber, J.D. at Berkeley. The Berkeley law librarian Dean Rowan also was a key player and I believe administers the list. Over the past several years I have contributed various items I believe were of interest to the list. To join the list go to:

See also: announcement has been added in the "Disaster Law" site at bSpace (
Subject: Joining the Diaster_Law list

I also sent a fairly long note as to my philosophy for my participation on the list to both DANs.
I repeat that statement here. Some have found my contributions tedious and uninformative but some have praised my efforts. Perhaps the eye of the beholder. Whatever here was my statement as to why I participate in that list.
E-mail sent July 17, 2007
"Dean! I have looked over and thought about your thoughtful response on the endgame for the site for several days. First, accept my suggestions for just what they are since I really deep down do believe let a thousand flowers bloom when it comes to academic research. And let it be firmly stated, I am probably an academic wannabe but not really an academic. I was a reactionary for 34 years in EM and am hoping to contribute in some small measure to future generations knowing that the issues I worked in life will not disappear because "mother nature does NOT grant variances" and apparently the deranged or ideologues don't either.

First, I do like to stay behind the scenes largely due to my belief that there is always a faster gun out there. Basically I am chicken. But starting in the late 80's while still at FEMA I became one of the principal national security lawyers in FEMA (actually I had a clearance for 27 of 34 years including Army duty). I always felt that how the largest or certainly the oldest and richest democracies handled EM was a key in many cases to whether our democracy and others even survived. I still believe that. I also believe that EM is a civil function, and while 95% of the world lets the military do its response, it almost never does well mitigation, prevention, preparedness, or recovery. It clearly does provide a gloss of authoritarian control that might, and I really do mean "might" be helpful in some circumstances.

Second, the whole of EM is truly multidisciplinary which is why I am so interested in the lawyers understanding what the research and academic community is discovering or has discovered. You have to understand when I went to law school there was no National Security Law Course (I suggested the development of that curriculum to Peter Raven-Hansen and Stephen Dycus in the mid-to late 80's and their text is now in its third or fourth edition.) John Basset Moore at my law school U.VA saw it as an international issues (which in part it is) while my whole experience was that it had huge domestic impacts for our democracy. I did help Peter and Stephan with the first two editions of the book and interestingly they were very concerned I might be fired for helping them even informally. You can see the climate of fear is not new in Washington. I am or was a second generation civil servant and saw even as a child the devastation wrought on the bureaucracy and Washington by the McCarthy era.

Finally, I am dedicated fully to the principle that the law is the real difference in our society from many others and is definitely not a "Crystal never changing" or whatever the quote was. I kept posted in my office and made new young lawyers read Clarence Darrow's letter to a young law student suggestion that a more suitable profession than law be followed because the system was only designed to protect the corporate elite of American. Of course I have spent my life trying to personally refute that adage.

To the point, for your site, there are a number of other sites that do well what they do. Such as or the Secrecy Archive of the Federation of American Scientists. There is however much left to do. Long term I am trying to develop documents and materials on the just shy of one month of FEMA's 24 years as an independent agency. It had multiple cultures and I have jointly authored an exploration of one of them, the HAZMAT culture. I have yet to cover a number of others, including disaster policy and operations, national security concerns, civil defense, flood insurance and flood plain management (mitigation), and fire culture among others. it is my intention to work on analysis of this period for the rest of my life while helping others to the extent possible in the meantime.

I firmly believe that a legal but multidisciplinary site is really needed. While my focus is FEMA what needs to be understood is that the legal architecture and systems underpinning EM are not well understood. FEMA was chronically understaffed and under funded in its almost 24 years and I continue to document what I call the WAR ON FEMA once it became part of DHS. The staffing and funding was barely adequate for a collaborative and coordination agency and certainly not a fully operational agency that would be the federal 911. Yet oddly that may be what the public expects. There is a open and current threat which has been repeated over the years to give the EM mission to DOD. I was in many high level meetings between FEMA, DOD, and DOJ where FEMA was the shock absorber between those two agencies, and only by voting with a DOJ oriented to law and democracy did the "right" answer come forth. This then is the guidance that I would suggest for the web site. Promotion of law and democracy. No other site focuses on those issues and it is also a comparative law issue of interest to both other existing democracies and those countries that hope to become democracies. In many many meetings I would point out that the Constitution was not waivable in any circumstance and believe it or not many many prominent high ranking lawyers or at least those with legal training believed otherwise. I still remember a speech by then Deputy National Security Adviser Sandy Berger stating on the record that the administration could do whatever it wanted despite what the law or Constitution stated. Also Federal programs are not designed for efficiency and effectiveness they are political solutions and the days are long gone in Washington when someone or some group sat down to try and figure out what should be the nation's policy. Now it is issue focused and this is so that groups can choose sides. The political scientists have analyzed this phenomenon and it is briefly discussed in my articles.

Basically, my most important job in FEMA, even though I ran its litigation for most of decade, was to train its heirarchy and the heirarchy of other federal agencies in the basics of the Constitution and what authority they did have to help the people of the United States in an emergency. One of my favorite cases to cite was Little v. Bareme 1803.

I am implying and you can infer from this lengthy note that I think you have a wide open path to become a leading if not the leading web site on law, emergency management, homeland security and democracy. I have high hopes for that and encourage you to the maximum extent possible. The documents I have sent DAN probably confused him as to why I even sent them but my point has been to show that there is a system and history to much of what lead up to Katrina for example, but it is not available to lawyers and scholars now.

Again, the basics are definitely not settled. An example, is that once Presidential discretion has been exercised to declare a disaster or emergency under the Stafford Act is the rest of the operation totally discretionary or does equal protection of the laws and due process make the relief efforts more of an entitlement.

Another what is federal authority to bypass the states in disaster recovery or is the primary duty to restore a "republican form of government" in the states and go from there. I used to upset FEMA regional directors by telling them the priority should be to restore a governor and his/her operations even before restoring a non-operational administrative unit known as a FEMA region.

At any rate, regards and I really really appreciate your consideration of this comment in the "end game" for the site."