Assessing The Nation's Homeland Security Preparedness

Sunday, July 1, 2007 - 01:00

Editor: Please tell us about your background and professional experience.

Adelberg: I've been practicing law for thirty years. During that time I have worked as chief legal officer and executive vice president for a publicly traded electric utility company. I have also served as a partner for a large national law firm and spent several years working at the Federal Trade Commission. From 2005 to 2006, I served as Senior Counsel to the U.S. Senate Committee on Homeland Security. Currently I am Of Counsel at Day Pitney working on energy and utility law matters for our clients and head the firm's Homeland Security practice group.

Editor: Would you tell our readers about Day Pitney's Homeland Security Practice Group?

Adelberg: In addition to my background as Senior Counsel to the Senate Committee on Homeland Security and Governmental Affairs, the firm has a number of individuals whose practices deal with homeland security-related issues. We decided to create a Homeland Security Practice Group within the firm to meet the growing demand of our current and prospective clients for advice and assistance on the wide range of homeland security issues that arise in critical infrastructure protection, internal corporate investigations, finance law, cross-border transactions, dealing with the Department of Homeland Security, and other areas. We are also able to assist public and private entities navigate through the complex world of Homeland Security regulations.

Editor: Does your energy practice tie into the Homeland Security practice?

Adelberg: Absolutely. Energy is a huge component in Homeland Security for a number of reasons. The resurgence and growth in the nuclear energy field raises important security issues relating to the processing and handling of the fuel that is used in producing the power. We work with clients on issues surrounding the security of their plants. Beyond that, the energy business is part of the nation's critical infrastructure making it essential that we have plans in place to protect it during an emergency.

Editor: When implementing homeland security compliance programs, are there areas of concern that clients have raised?

Adelberg: It depends on the client. Most clients want to make sure that their programs are comprehensive. Before implementing a program, companies need to identify all the areas in which compliance is critical. Companies need guidance in cataloguing and ranking their areas of potential exposure in terms of risk.

A second area is ensuring adequate training throughout the company. This can be daunting when there is a large workforce. Putting together the teams and instructional materials needed and making sure you have reached all of your workforce takes a fair amount of planning and coordination. Having developed and run compliance programs when I was in-house counsel has given me a background which helps me educate companies on putting effective training programs in place.

Editor: Would you tell our readers about the Senate Committee on Homeland Security and Governmental Affairs for the Special Investigation of Hurricane Katrina and how you came to serve as Senior Counsel of that committee?

Adelberg: The Senate Committee on Homeland Security was charged with reviewing the government's response to Hurricane Katrina. Very shortly after the hurricane struck, Senator Collins, who chaired the committee, announced that she was opening a formal investigation into the response. She decided to bring in outside individuals with relevant experience because of the scope and time pressure of the investigation.

I got to know Senator Collins while I was a power company executive in Maine. My colleagues and I had to deal with a major natural disaster, a catastrophic ice storm in 1988 that took out service to about two-thirds of the population of the state and left the state without power. We had a very effective, well-managed response to that disaster and got high marks from the public. This experience led her to invite me to serve on the Committee.

Editor: To what extent was the need to prepare for catastrophic flooding of New Orleans foreseen, and what efforts were made to plan for it?

Adelberg: We found that the vulnerability of New Orleans to a catastrophic flood was known for a long time. The state had approached the federal government to get assistance in planning for a major disaster beginning in 1999. The federal government funded a major planning effort in 2004 to address the state's vulnerabilities. Unfortunately, Katrina struck before those efforts could be completed.

Editor: Did the public benefit from the planning that had taken place?

Adelberg: Yes. For example, it resulted in a system for evacuating people from the flood zone to staging areas and then to field hospitals, where thousands of people could be given medical attention. That whole system of medical triage and rapid treatment followed the plan's blueprint and as a result was handled fairly well.

Editor: What were the findings of the Committee with respect to the nation's preparedness to deal with another emergency?

Adelberg: The Report's title, "Hurricane Katrina: A Nation Still Unprepared," indicates the committee's sentiment that the nation is still unprepared. Hurricane Katrina struck a few years after 9/11 which was supposed to be the wake-up call to implement disaster-response mechanisms and to invest in modern systems for homeland security. Nevertheless, the response to Katrina demonstrated gaps in our response system.

Editor: Did the Committee examine the role of the private sector in responding to Katrina?

Adelberg: Yes. Corporations play a large role in both evacuating their own personnel and providing essential services during a disaster. We brought in leading executives from some large companies, and we found that the private-sector response was very well managed. Large companies like utility companies had good disaster-response plans already in place, and due to training, their employees understood how to implement them. As a result, these companies were able to restore their facilities with a high degree of efficiency. This was a bright spot and a lesson for the public sector as far as we were concerned.

Editor: Did the Committee express concerns about the Department of Homeland Security's diligence in developing a National Infrastructure Protection Program?

Adelberg: Yes, this is a very important point. Several years ago, the Department of Homeland Security was charged with creating a plan to protect the critical infrastructure, facilities, and assets of the country. When Katrina struck, the plan was still unfinished. We believe that completion of such a plan would have resulted in better coordination between the public and private sector, resulting in a more effective response overall.

Take as an example the widely reported problems with crime in the aftermath of Katrina. At that point, it didn't make sense to send utility employees out to restore the systems if the streets were not safe for them. Ultimately the utilities had to rely on private security because the federal government and National Guard did not have good plans in place to protect utility workers. A national infrastructure protection plan could have avoided these problems.

Editor: What issues did the committee address with its recommendations?

Adelberg: Coming up with recommendations was a challenge because in the absence of effective leadership, even the strongest emergency-response plan will fail since emergency response inherently has to be flexible. You have to create a system that is adaptible and you need leaders who can adapt the system to suit the particular disaster. That said, we found very serious structural problems in certain emergency-response agencies, particularly in federal organizations.

Take the simple example of the Federal Emergency Management Authority (FEMA). Prior to Katrina, many of FEMA's emergency-preparation functions had been transferred to the Department of Homeland Security, while the emergency-response functions remained with FEMA. Because these two functions are integrally related, they should be unified in one agency.

Additionally, we found serious problems relating to the chain of command and authority. It was clear to us that in a disaster like Katrina the White House has to be involved because it is the only authority that can marshal all of the resources of the federal government. As was well publicized, the director of FEMA sometimes reported to the Secretary of Homeland Security and other times reported directly to the White House. There was no clear command structure. We therefore recommended that in times of national emergency the head of FEMA should have a cabinet rank and thus direct access to the White House.

Editor: Have the proper steps been taken to begin implementing the recommendations?

Adelberg: Legislation was passed last fall incorporating many of the recommendations. There have been some positive signs and Secretary Chertoff has talked publicly in some detail about measures that he's taken to beef up the department's resources. Recently the government has put in place a global positioning tracking mechanism similar to those used by large delivery companies. These efforts and investments in necessary systems are very encouraging.

Editor: What steps should be taken to ensure that communications, road, power, and other critical systems will not fail when responding to a disaster?

Adelberg: This is part of the overall planning that has to be done. Interoperability - allowing all first responders to communicate with each other - has been an area of concern for years. At least one of the obstacles to interoperability has been political because Congress has been unable to decide which committee should have jurisdiction over the matter. My understanding is that progress has been made. To some extent, it has to do with investing in equipment, and I know the Department of Homeland Security has funded a lot of emergency-preparedness equipment acquisitions by state and local governments.

Editor: What role should corporate counsel play in preparing for a catastrophic event and in addressing it once it has occurred?

Adelberg: Corporate counsel needs to make sure that the company has a comprehensive plan to deal with risks. Its role is to review those plans and make sure that they are comprehensive and that they are being implemented. Many large companies now have separate departments with emergency-response duties, but still the counsel has a role in ensuring that the plans are reviewed at the highest level and that they're presented to the board of directors.

During an emergency corporate counsel can become involved in working with the federal, state, and local authorities to gather needed resources or hire private resources to meet the company's needs. Corporate counsel will always be involved in making judgments that balance the company's immediate needs against the need to protect the company from legal liability. In an emergency, you may have to make snap decisions that deviate from the way you'd normally conduct business. This can open the door to liability. There are no quick formulas to deal with these things, so corporate counsel must stay closely involved in this process and use their best judgment.

Editor: Is there anything that you would like to add?

Adelberg: The notion of homeland security law is a new idea so corporate counsel may not understand the scope of it. There are many firms like ours that bring together resources in this area and can address the needs of corporations. We're happy to develop or review a company's plans and training programs. The expertise is out there and I hope people will draw on it.

Please email the interviewee at awadelberg@daypitney.com with questions about this interview.