In the aftermath of Hurricane Katrina, the Federal Emergency Management Agency has received an exceptional amount of interest in its operational capabilities to respond to catastrophes. This has led to several significant changes in the way FEMA operates and a new emphasis on “leaning forward.” Implicit in this new emphasis on FEMA’s operational capabilities is its ability to execute its assigned missions under the National Response Framework and as authorized under the federal Stafford Act.

The Difference Between Bureaucratic and Operational Organizations

Bureaucracy carries three definitions in English:

1. a body of nonelective government officials or an administrative policy-making group
2. government characterized by specialization of functions, adherence to fixed rules, and a hierarchy of authority
3. a system of administration marked by officialism, red tape, and proliferation

Operational is defined as

1. relating to operation or to an operation
2. of, relating to, or based on operations
3. of, engaged in, or connected with execution of military or naval operations in campaign or battle or ready for or in condition to undertake a destined function

The primary definition for operation is the “performance of a practical work or of something involving the practical application of principles or processes.”¹

An example of a government organization or agency that can be categorized as primarily bureaucratic is the Internal Revenue Service (IRS). The primary responsibility of the IRS is to enforce the internal revenue laws of the United States under the authority of the Secretary of the Treasury. While functions within the IRS may be operational, its fundamental aspect is bureaucratic. Its raison d’être is purely created by a set of laws rather than by outside forces, and accordingly it can set its own pace of functions and goals. It is essentially immune to outside forces except for Congress and its own administrators. Even if the general public is considered an outside force, its will is reflected through changes implemented by Congress and the agency’s supervisors in the executive branch. The primary pressure points and measures of success for the IRS are internal to its own organization or to its administrators: the Executive Branch and Congress.

Two examples of operational government organizations are the Departments of State and Defense. While they must answer to their administrators and own internal functions, the ultimate pressure points for their functions are external to their organization and administrators. Their focus and goals are determined by the interaction with foreign governments, populations, and events of international importance. No set of purely internally focused and structured goals can ever be developed to adequately prepare for or respond to these outside forces. Accordingly, the departments must become nimble and adaptable organizations that create processes to respond to a variety of events rather than set plans followed step by step. FEMA’s stated mission is “to reduce the loss of life and property and protect the Nation from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation.” FEMA is clearly an operational organization. All of its clearly stated pressure points that measure the success or failure of the agency mission are external.

However, this is not to say that bureaucratic and operational organizations won’t have components within them that are different. For instance, the various grant programs within FEMA are essentially a bureaucratic element within an operational organization, but in their primary focus, bureaucratic and operational organizations are mutually exclusive. The determination of whether an agency is operational or bureaucratic ultimately is a function of whether the success of its mission is measured by internal or external pressure points.

The Role of Attorneys in an Operational Environment

For legal practitioners, the difference between operational and bureaucratic agencies manifests itself in determining where their ultimate source of success lies. In bureaucratic organizations, success is measured internally, which in many situations can occur in a court of law, which lies internal to the government as its third pillar. For instance, if the IRS prevails on a claim in court, its position is now stamped as legally justifiable and it can continue on the same path. Should the court rule against the legal positions of the IRS, the agency should have the concise feedback necessary to determine what changes it must make to carry out its mission. This results in less ambiguity for the courses of action and functions of bureaucratic agencies and allows them to create slower and more deliberative structures.

For operational organizations, success is measured externally: for instance, did a foreign country change its position or policies to those of the United States? The primary events that operational organizations are trying to shape are not controlled by the courts or by associated rules and statutes. The resulting ambiguity inherent in these external pressures creates the need for the more advanced planning and streamlined decision-making capabilities inherent to operational organizations.

For most practicing attorneys, deadlines are set by the courts and their related rules and statutes. The final product of their work is measured by the successful adjudication of their issues before a court of law or by settlement between their client and their adversarial party. In short, success in the courts provides a finality and certainty to decisions affecting their client’s issues. Attorneys working for an operational organization, on the other hand, face a dynamic environment where the success of their organization’s mission—not necessarily the attorney’s success in a court of law—is the ultimate arbiter of success.

Attorneys representing their clients in adversarial settings perform the actions of the actual “operator.” The attorney prepares documents for filing, handles negotiations and settlements, and performs the actual work before a sitting court, such as questioning witnesses. For all intents and purposes, once a decision is made to acquire the services of an attorney in an adversarial environment, the attorney operates all the levers while the client retains the final decision-making authority. In an operational organization, outside of representing their organization in litigation, attorneys rarely grasp the levers. It is the operators to whom they provide legal advice who actually perform the work and make the decisions to carry out their organization’s mission using their specific training, job skills, and authority. Giving attorneys in an operational organization the ability to decide a course of action in operational matters, instead of remaining in an advisory role, only serves to create a second layer of decision making in what can often be time-sensitive operations.

An analogy to the role of an attorney in an operational organization could be made to the speedometer on a vehicle. Information on the speed of the vehicle, coupled with knowledge of the speed limit, the consequences of exceeding that limit, and the immediate driving conditions, provides the driver with the information needed to determine the appropriate speed of travel. An attorney in an operational organization performs essentially the same tasks.

Operational attorneys provide operators with information on what the law is (the speed limit), the possible consequences of going beyond the commonly understood limits of the law (exceeding the speed limit), and additional background to the situation as necessary (the immediate driving conditions). But the attorneys do not have their foot on the accelerator or the brake; the operators do. Just as it would be nearly impossible to drive a vehicle safely without the speedometer, it would be foolhardy not to seek competent and timely legal advice in operational matters.

The legal environments of operating entities are strikingly different from the generally consistent and predictable environment of bureaucratic organizations. Because of the unpredictability and sometimes cruel finality of the challenges that face operational organizations, attorneys for operational organizations are not always able to indefinitely delay decisions or even sometimes to fully research and brief them as completely as they would like. The dynamic, time-sensitive parameters of operating in disaster operations and their aftermath and recovery, and the possibility of immense costs in both lives and property, create a condensed period of reflection and action for attorneys.

Operational and managerial staff in operational organizations have a myriad of issues to weigh, of which the law is but one factor, albeit an exceptionally important one. Practical, political, and technical limitations affecting particular courses of action all interact with legal considerations. Ultimately, none of these factors is dispositive in and of itself; rather, the ultimate interplay of all of these factors provides the course of action that maximizes the ability of an operational organization to carry out its mission. In the case of FEMA, that mission is to reduce the loss of life and property and to protect the Nation from all hazards. It is the managers and operators of an operational organization—not the attorney—who are best suited, and in fact are authorized, to make these multidisciplinary decisions.

Some of these limitations placed on attorneys in operational organizations can be remedied to an extent by creating both planning and review processes that anticipate issues before they arise and recognize successful, and unsuccessful, solutions from previous disasters. By instituting a complete planning and after-action review process, attorneys can create the time and space necessary to make the informed decision they are more comfortable making and avoid, to an extent, the compressed decision-making windows during disasters. However, for such a process to function, there must be an underlying written doctrine of legal procedures, organization, and solutions that can be added to and amended based upon what is learned during planning and after-action reviews. Planning and review processes should exist for a full spectrum of events from internal Office of Chief Counsel (OCC) processes and issues to DHS and national exercises and disasters.

Attorneys generally do not have a direct influence on events during actual operations in an operational environment. When facing a Category V hurricane, there is no court to file a temporary restraining order. It is only the managers, operators, and logisticians who can determine the successful response to such a situation. The attorney’s role should be one of advice and counsel to those meeting the brunt of such emergencies. To go any further requires the attorneys to acquire the role of operator, manager, or logistician for which they likely do not have the training or experience of their counterparts. Even the attorneys of two prominent operational entities, the Marine Corps and the Coast Guard, acknowledge this limitation. However, operators who fail to seek legal advice, or who do not place adequate value on the legal advice they receive, may find that they have traded short-term progress for long-term problems.

While Marine and Coast Guard attorneys receive the same initial training as their operational counterparts (in the Marine Corps, their training is exactly the same as for all other Marine officers for nearly their first 10 months of service), they do not fulfill the role of operators as attorneys. When Coast Guard and Marine attorneys do fulfill operational roles, they are specifically tasked to do so, and when executing those roles they are not acting as attorneys but rather as “line officers.”

The Defense Department Example

To meet the unique legal challenges presented by dynamic environments such as those faced by the military or emergency management organizations, a new paradigm of law has arisen. The Defense Department and its legal staff have termed this new way of identifying and confronting legal issues in this environment “operational law.” Operational law is defined for military attorneys in the 1997 edition of the Operational Law Handbook annually issued by faculty at the Judge Advocate School for the Army:²

That body of domestic, foreign, and international law that impacts specifically upon the activities of U.S. Forces across the entire operational spectrum.

Operational law is the essence of the military legal practice. It is a collection of diverse legal and military skills, focused on military operations. It includes military justice, administrative and civil law, legal assistance, claims, procurement law, environmental law, national security law, fiscal law, international law, host nations law, and the law of war. In short, operational law is a unique blend of every source of law that has application within the operational context. The practice of operational law requires competence in military skills, a clear understanding of the supported military unit and its mission. The tenets of the operational law practice mirror the tenets of Army operations: initiative, agility, depth, synchronization, and versatility.

This definition of operational law bears a remarkable symmetry to the work performed by FEMA attorneys, especially their field attorney cadre. If one were to use the template established by the Judge Advocate School for the Army to develop a definition of operational law based upon the operations of FEMA, it might look something like this:

That body of federal and state laws and regulations that impacts specifically the activities of FEMA across the entire spectrum of its activities.

Operational law is the essence of the legal practice of FEMA’s Office of Chief Counsel. It is a collection of diverse legal and administrative skills, focused on FEMA’s preparedness, response, recovery, and mitigation operations. It includes claims, procurement law, environmental law, fiscal law, FEMA-specific disaster law (the Stafford Act), disabilities and special-needs population law, and privacy act and Freedom of Information Act matters. In short, operational law is a unique blend of every source of law that has application within FEMA operations. The practice of operational law requires knowledge of FEMA programs and a clear understanding of FEMA and its mission. The tenets of the operational law practice mirror the tenets of FEMA operations: initiative, agility, depth, synchronization, and versatility while focusing on the operational core competencies of FEMA: incident management, operational planning, disaster logistics, emergency communications, service to disaster victims, continuity programs, public disaster communications, integrated preparedness, and hazard mitigation.

While outsiders might dismiss the roles of attorneys in the military as superfluous and ancillary to executing the Defense Department’s primary missions, just the opposite has occurred. Although attorneys do not “operate,” their advice has become more and more crucial to senior military commanders even while the attorneys remain, at least while filling an attorney billet, advisors only.

The example of how the Marine Corps uses its attorneys, or “judge advocates,” provides a specific example of the utility of attorneys providing legal advice in an operational law environment. Marine Corps attorneys are unique in that they—like all other Marine officers, whether pilots, logisticians, or engineers—are always expected to be prepared so serve as operators. For the Marine Corps, this means being prepared to perform as infantry officers. For instance, junior Marine attorneys are expected to learn and maintain the minimal skills to provide combat leadership at the platoon and company level. As attorneys are promoted, they are expected to continue to maintain a level of operational proficiency commensurate with their rank.³

While rarely do Marine attorneys fill frontline combat roles, they are taught the same operational concepts and techniques as their “operator” counterparts, giving them a unique perspective when advising their commands. However, even with this additional training, and occasionally the opportunity to actually work as “operators,” Marine attorneys ultimately limit their role to advice and counsel to their commanders, who must decide on a final course of action for operational matters.

The Current Role of FEMA’s Office of Chief Counsel

The mission statement for OCC says that its primary mission is to “provide timely professional legal services to the FEMA Administrator, agency managers and staff by identifying, addressing, and reducing obstacles to the achievement of DHS and FEMA goals.” At times, the provision of legal services to FEMA managers and staff by OCC has morphed into a decision-making capacity, blurring the roles of advisor and operator. In these situations, attorneys have now either implicitly, or through de facto decisions, been granted the ability to decide operational matters on how and what assistance may be delivered by FEMA and to what extent it can conduct operations both before and after a disaster. This change has now resulted in another layer of decision making between FEMA program managers and the ultimate output of their decisions at a disaster, squarely at odds with its stated mission of providing timely advice.

To carry out its mission, OCC needs to embrace the concepts of operational law and, most important, to fulfill the roles of operational attorneys. By working in an advisory role, OCC attorneys can focus on the legal aspects and ramifications of particular decisions and courses of action while allowing FEMA offices and staff to balance these legal considerations against other practical, political, and technical interests. This is not to say that an OCC attorney can never be tasked with decision-making authority on specific issues. However, in those situations, the attorney should be specifically tasked with that delegated authority.

For example, an attorney might be assigned decision-making authority with the creation of a new FEMA program subject to litigation or where legal interests appear to outweigh other practical, political, and technical considerations. This would be in line with the example set by the Marine Corps and Coast Guard when they specifically task their attorneys to work as line officers. It also serves to provide a clear delegation of authority to the attorney and can serve as the basis of solving issues using a task-organized decision-making process, which is essential to providing timely decisions in an operational environment. Task-organized decision-making processes provide for a single decision maker with advisory staff as opposed to having multiple staff members with decision-making authority, which can stifle the ability to make time-dependent decisions.

Another significant step that OCC can take is to embrace a standardized planning process for OCC internal operations and to assist and take part in FEMA, DHS, and national preparedness drills. By having a representative from OCC at both the planning and execution of major FEMA drills, OCC attorneys will be able to not only help craft real-world scenarios that carry difficult legal issues, but also to identify legal issues that may arrive in future emergencies. By identifying such legal issues before they occur, OCC can help craft predesignated responses or courses of action that satisfy legal requirements while accomplishing FEMA’s assigned missions. But for this to occur, OCC attorneys must be seamlessly integrated in the planning processes, the actual events, and the after-action reporting on such drills and events. Limiting OCC’s role to providing legal support to exercise participants is not enough.

To take advantage of the integration of OCC attorneys into FEMA planning processes, OCC must also create its own doctrinally driven processes. Specifically, OCC must create a comprehensive standard operating procedure that covers not only the day-to-day bureaucratic activities of OCC headquarters operations but the actions and activities of OCC personnel and OCC positions during large-scale emergencies that exceed the ability of ad hoc efforts. As the size of disasters increases, the response to those disasters changes from a focus on people to a focus on processes to meet large-scale decision-making necessities in real time. OCC must similarly be able to support the transition from a focus on individuals to process-driven decision-making capabilities.

By refocusing on its mission statement and working to provide legal advice, OCC can support the transformation of the new FEMA. By focusing on its core mission and allowing FEMA program mangers and staff to make informed decisions where there may be competing considerations, OCC can multiply the effectiveness of FEMA’s programs. Where issues have exceptional legal interests, or where individual attorneys may have skill sets that qualify them to accomplish particular tasks, they should be specifically delegated the authority to make those decisions. This specific delegation will make it clear that their role in these cases is not just to weigh the legal interests of such an issue, but to weigh all other competing considerations that will help shape the course of action taken to accomplish the assigned task.

The Operational-Based Organization of OCC

The following are the suggested changes to OCC to implement an operational philosophy.

1. Create a legal manual for OCC. The manual should also include sections on staffing, job descriptions, and correspondence standards, and through standard operating procedures it should capture any repetitive processes and recurring legal questions such as ethics and various questions related to Joint Field Offices that occur because of their temporary and repetitive nature.
2. Working with FEMA program staff, ensure that operational manuals incorporating standard operating procedures for repetitive processes such as FEMA group sites incorporate all past legal precedents. One example would be the various decisions made during the operation of group housing sites in Louisiana and the activity of volunteer groups in providing services at these sites and the use of common areas.
3. Fully integrate FEMA OCC personnel with the appropriate counterparts in each operational entity of FEMA. It is imperative that these elements have the trust and confidence of OCC. Only continuing contact can create this trust. It is essential that these attorneys either be directly placed in these work sections or visit them, and their meetings, every day if practicable. There is no substitute for working day in and day out, in person.
4. Create the position of FEMA OCC Operations Attorney. This position would focus on the current and future operations of OCC, including planning and the role of OCC in the operational exercises that FEMA directs or participates in. This position could also become the subject matter senior OCC attorney for FEMA disaster operations.

   The Operations Attorney would be responsible to

   • Ensure that all day-to-day operations of OCC are staffed and supported and provide support to the leadership for the OCC Field Attorney cadre as requested
   • Update the OCC continuity-of-operations plan
   • Maintain situational awareness of all exercises that FEMA conducts or participates in at the national and regional levels
   • Ensure that OCC has a role in crafting all FEMA exercises, or exercises in which FEMA participates, to incorporate legal issues into the exercises
   • Be responsible for providing legal support to all exercises conducted by FEMA or in which it participates
   • Provide legal support and advice to any after-action reporting from these exercises
   • Ensure that any practicable legal advice developed during or from these exercises is distributed within OCC, or in some cases throughout FEMA, and that this knowledge is captured in a doctrinal form that can be immediately and easily used for later reference
   • Be prepared to provide a point of contact with the appropriate attorneys in every operational federal entity that may operate under the authority of FEMA-led operations or in support of FEMA operations and have a general awareness of the operations and capabilities of each of these other agencies
   • Ensure that OCC is represented at all disaster and pre-disaster video teleconferences and daily FEMA headquarters operations briefings and is fully integrated with and maintains continuous visibility of National Response Coordination Center watch operations, which includes daily contact with the center
5. Require all attorneys assigned to the Program Law Division to receive the same initial training as their assigned operational counterparts and to, as practicable, attend any annual refresher training.
6. Require all OCC field attorneys to receive training at the Federal Coordinating Officer level on the operation of Joint Field Offices and Long Term Recovery Offices and to participate in the operational training available to the Program Law Division as possible.
7. Require all OCC staff to receive annual training from each major FEMA operational component on its capabilities, lessons learned, and anticipated future operations (this could be accomplished at the annual OCC retreat).
8. Study the effectiveness of assigning OCC headquarters attorneys to periodic field assignments.
9. Reach out to prominent legal groups and legal committees, such as the American Bar Association, on creating model legal ordinances and regulations for cities, counties, and municipalities for establishing the legal framework to minimize the legal friction that impedes the rebuilding of communities after catastrophes. For example, there are efforts in some communities to expedite local control over abandoned properties that have become caught up in the recent subprime mortgage downturn. These same methods could be studied to see whether they could be used to speed up the return of destroyed properties into local housing markets.
10. Create the position of Regional Attorney-Advisor in each FEMA Region. The purpose of this position is twofold: First, building on the previously outlined concepts, the Regional Attorney-Advisor will have the day-to-day credibility and ability to provide nearly real-time legal advice to forward-deployed FEMA elements. The Regional Attorney-Advisor could provide daily legal advice to the garrison work that marks operations during non-disaster periods and fill any gaps for legal support for disasters in the region before the arrival of FEMA field attorneys from the Disaster Assistance Employee cadre. Second, these attorneys could begin the outreach, joint planning, and education of state and local legal and law enforcement officials. Regional FEMA attorneys could develop the daily staff links within the attorney general offices of each state in their region and work to gain access to the network of county attorneys and state and local law enforcement. By prepping these officials before disasters and creating the personal credibility necessary for sustained joint operations in support of emergency management, it is likely that they could map and plan numerous legal issues before their arrival as part of a disaster. This will further free attorneys to deal directly with immediate disaster-related legal issues that could not be anticipated.

References

Click on an end note number to return to the article.

1. Merriam-Webster Online Dictionary.

2. The author recently corresponded with the Army Judge Advocate General’s Legal Center & School and learned that the 1997 definition of Operational Law is being updated, but the author believes that the 1997 definition continues to serve as a good representation of the focus and commonality between the operational law practiced in the military and emergency management communities.

3. As recently as 2005, the Chief of Staff for the 2nd Marine Division had a primary military occupational specialty as a judge advocate.