Bordering on Crisis

Overcoming Multiagency Crisis Coordination Challenges

BRIAN WILSON AND NORA JOHNSON

Crisis lawyering, like whole-of-government collaboration, is best described through example.

Governments are frequently organized into agencies that have unique ex­pertise to assess challenges and respond. These agencies may operate under separate chains of command, with separate authorities, budgets, and pri­orities. Threats, however, typically do not correspond with agency bound­aries—or national borders—and thus governments are confronted with ensuring that information is shared and that responses are integrated among departments tasked with fundamentally different missions. Lawyers are in­volved in every aspect of the collaboration challenge, from information ac­quisition and information sharing to decisions and response activities.

An impressive level of attention has recently centered on coordination. In 2017, the United Nations Security Council adopted Resolution 2341, high­lighting that collaboration is not a single-nation issue.² This measure called “upon Member States to explore ways to exchange relevant information and to cooperate actively in the prevention, protection, mitigation, prepared­ness, investigation, response to or recovery from terrorist attacks planned or committed against critical infrastructure.”³ Academia is also focusing on whole-of-government frameworks and crisis management, including the Simons Center for Interagency Cooperation;⁴ William & Mary's Whole of Government Center of Excellence;⁵ the College of Emergency Preparedness, Homeland Security and Cybersecurity, University of Albany, State University of New York;⁶ and the Swedish National Defence College's National Center for Crisis Management, Research and Training.⁷ Moreover, several states have developed frameworks to address maritime crisis response integration.

Overcoming investigative, crisis-response, and information-sharing chal­lenges are certainly not new considerations, though contemporary threats are more complex. This complexity requires the early involvement of law­yers, who must be prepared to take on a variety of roles, codevelop solutions, and demonstrate collaborative leadership. Historical responses to events dis­cussed in this chapter, the experience of the authors coordinating national level threat responses that required multiagency cooperation, as well as find­ings from a survey developed by the authors and administered to over 500 government officials from over 100 countries were distilled to develop the “Rules for Crisis Lawyering in a Multi-Agency Environment” presented at the end of this chapter.

A crisis may involve hundreds—potentially thousands—of decisions, some of which require immediate action. A key element of interagency alignment involves lawyers who are increasingly being called upon to advise in multiagency planning and crisis management.⁸

Emphasis on coordination,⁹ information sharing, and crisis response is a positive governance development. This collaborative pivot, however, has not resulted in a universally accepted definition of whole-of-government coor­dination or even a general consensus on the terminology to be used. Fortu­nately, differences in lexicon have not impeded collaboration, as varied terms reflect varied national priorities and varied organizational structures. Thus, while different terms (and definitions) for national-level coordination exist— whole-of-government, interagency, interministerial, and multiagency, among others—a common element is that the construct synchronizes the actions of multiple agencies within a government.

The authors define the “interagency concept” as a construct that alters the governance status quo by providing a documented collaborative framework, formally identifying agencies involved in response activities, removing situa­tional ambiguity, and overcoming information-sharing barriers to make a na­tion safer.

The emergence of whole-of-government maritime response frameworks, which generally began in 2005, expanded in the ensuing years to address in­tegration challenges amid tremendous complexity. Some national-level pro­cesses operate under the principle of command and control with one person in charge, while others function under unity of effort, with required collabo­ration (though no ability to order another agency to take action); some direct information sharing across the government; and some focus on planning as well as response activities, with others focused on safety events while others primarily address security threats. Regardless of the model or focus, the de­velopment of interagency frameworks represents, in a way, “bold, persistent experimentation.”¹⁰ Countries that have adopted horizontal response frame­works (or offices) in a maritime context include:

— Australia: Maritime Border Command

— Brunei: National Maritime Coordination Centre

— Canada: Maritime Event Response Protocol

— Georgia: Joint Maritime Operations Center

— Indonesia: BAKAMLA

— Japan: Crisis Management Center

— Philippines: National Coast Watch Center

— Senegal: High Authority in Charge of Coordinating Maritime Safety, Mari­

time Security, and Marine Environnemental Pollution

— Thailand: Maritime Enforcement Coordinating Centre

— United States: Maritime Operational Threat Response Plan (MOTR) and the Global MOTR Coordination Center

— United Kingdom: National Maritime Information Centre

Though each process has different substantive elements, it is instructive to examine specific constructs to identify key principles and competencies of crisis lawyering. In the United States, the Maritime Operational Threat Response Plan was approved by the president in 2006 to align the interagency response to maritime threats.

In Canada, the Maritime Event Response Protocol (MERP) addresses both safety events and security threats. The MERP process brings together multiple agencies/entities to support an integrated Canadian approach to maritime challenges, as often no single federal department or agency has complete response responsibility. Moreover, Canada's multiagency approach reflects the government of Canada's approach to emergency management: whole-of- government, collaborative, and all hazards. MERP has effectively integrated multiple agencies in response activities and has similarly integrated agencies for pre-event planning.¹¹

And, the United Kingdom's National Maritime Information Centre (NMIC) supports “cross-government efforts to monitor, evaluate and address threats to [UK] shipping worldwide, with special focus on activity in the UK Exclusive Economic Zone."1²

Attorneys were essential in the development of collaborative information­sharing constructs and have remained integral contributors to their effective implementation as well as their enduring use. The authors were the primary drafters of the first international collaborative process to bridge whole-of- government maritime threat response processes: the Canadian-US MERP/ MOTR Strategic Protocol, approved in 2012. This pioneering construct was developed to complement national-level action by enhancing binational com­munication and better positioning each nation to identify the full scope of threats, take appropriate response action, and minimize risk.

A noteworthy example of collaboration under MERP-MOTR involved the response to multiple vessels en route to Canada and the United States car­rying possibly contaminated containers following a series of explosions that occurred at the Port of Tianjin, China, in 2015. The blast reportedly killed 173 and injured nearly 800 people, causing damage in excess of $1 billion?³ More than 700 tons of sodium cyanide exploded, a substance so potent, “when dis­solved or burned, it releases the highly poisonous gas hydrogen cyanide.”¹¹ And “exposure to sodium cyanide—a white crystalline or granular power with a variety of industrial uses—can be ‘rapidly fatal,' according the U.S. Centers for Disease Control and Prevention.”¹¹

Moreover, “The China Earthquake Networks Centre said the initial explo­sion... had a power equivalent of three tonnes of TNT detonating, while the second was the equivalent of 21 tonnes."i⁶ Area residents stated the blast “felt like an atomic bomb had hit."i⁷ With land-based rescue under way, questions surfaced regarding whether containers and ships berthed in, or near, the Port of Tianjin—the tenth-largest container facility in the world—at the time of the blast were transporting dangerous toxins?i⁸ The MERP/MOTR Strate­gic Protocol provided the platform to bilaterally examine urgent safety and health issues involving multiple agencies.

Sharing information across the border to determine the risk of contamina­tion and response considerations represented MERP-MOTR priorities. More than 100 US and Canadian government officials (from approximately fifteen agencies/departments)—a remarkable array of expertise—simultaneously participated in Strategic Protocol coordination activities to assess the impact of, and response to, the Tianjin explosions on cargo subsequently loaded onto hundreds of ships.

Agency counselors, importantly, first had access to small group meet­ings that didn't necessarily include legal issues and were thus able to identify operative statutes, statutory obstacles, and possible courses of action.

The response to the Tianjin explosions also highlighted the value of, and need for, broader multilateral collaboration in circumstances that have the potential to cross geographic borders. Were toxic chemicals on, or in, con­tainers and did they represent a threat? Government officials around the globe were assessing how to best approach this potential safety and security challenge, each with access to different information and using different risk methodologies. In a tightly coupled network like maritime shipping, taking a collective approach and sharing information can improve awareness, reduce duplication of testing, and decrease delays that could be associated to an inde­pendent approach requiring examination in multiple ports of call in various countries. The MERP/MOTR Strategic Protocol demonstrated the value of a framework—an agreement—before a crisis to support a networked response, ensure points of contact, and provide an ability to share legal, policy, and regulatory information. Notably, lawyers were involved in all discussions, evaluating the situation and developing courses of action.

The success of MERP-MOTR sparked the development of a subsequent multinational agreement (the “Strategic Arrangement”), also co-drafted by the authors, which included Australia, Canada, New Zealand, the United Kingdom, and the United States. Signed in 2016, the Strategic Arrangement supports the exchange of maritime safety and security information by con­necting centers and national-level offices charged with whole-of-government responsibilities. The Strategic Arrangement created a networked approach to information sharing, collaboration, and maritime response actions. Law­yers were pivotal to the development of policy instruments/agreements that facilitated collaboration. By identifying and developing courses of action to share information and take action, attorneys clarified legal issues stemming from policy disagreements, encouraged discussions, and maintained focus on achieving the desired outcome.

To better assess requirements for developing and sustaining interagency crisis-management frameworks, the authors created a survey that included twenty statements rated by Likert scale responses ranging from strongly dis­agree, disagree, neither disagree nor agree, agree, and strongly agree. The survey sought to identify challenges to multiagency collaboration; sharing informa­tion; whether sufficient guidance and training exists; and, ultimately, to provide recommendations. In approximately two years, more than 500 government of­ficials from 100 countries participated in the survey. The survey results comple­ment lessons learned from crisis response activities discussed below.

In 2010, a derelict cargo ship, SUN SEA, with 492 Sri Lankan migrants arrived in Canadian waters, off the coast of British Columbia, after miracu­lously completing its transit from the Gulf of Thailand through the Indian and Pacific Oceans. Prior to arriving in Canada, the journey sparked media interest and inquiries to a United States Coast Guard (USCG) office in Hawaii regarding the scope of US search and rescue (SAR) obligations. Based exclu­sively on what was known at this point of the transit, the situation might not have been considered a crisis. Considerations for the USCG included whether to consult a staff attorney for what might be viewed as basic SAR questions or to elevate the inquiry for higher-level action.

The SUN SEA transit fortunately did not require assistance at sea, and while it concluded in Canada, a crisis was just beginning that would involve mul­tiple organizations and nations to resolve. Questions about nonrefoulement, protection of personal information, prosecution of smugglers, environmental protection, and mooring/disposition of the vessel concluded with changes to Canadian law. Collaborative issues identified in the response also sparked the development of a binational, information-sharing protocol. In advance of SUNSEAs arrival, there was concern that passengers were infected with contagions or gravely sick. The preliminary focus on health was dramatically expanded when Public Safety Minister Vic Towes announced the Canadian government believed SUN SEA also included “suspected human smugglers and terrorists.”¹⁹ Safety considerations remained, prompting the Canadian medical community, which subsequently published a report, to note early challenges included uncertainty over SUNSEAs arrival date and location.²⁰ A lack of information to a known challenge triggered a “multi-faceted response [involving] novel partnerships and plans.”2i Solely focused on the medical considerations within Canada, the report further noted the “dynamic nature of [the] event,” a “pre-event duty to maintain secrecy versus [a] duty to no­tify,” the necessity of response “innovation,” and the “importance of planning and plan sharing.”22 The presentation candidly noted that lessons learned in­cluded the “need for more timely information”; the challenges of “involving multiple internal and external stakeholders”; and managing “on site security” and “media scrutiny.’^³

The SUN SEA affair required an approach that integrated security, law en­forcement, health, regulatory, search and rescue, immigration, and diplomatic organizations. While several nations would have a role in this event, national­level coordination issues associated with events surrounding SUN SEA are emblematic of contemporary crisis lawyering: synchronizing the efforts of a dizzying array of government agencies, nations, and the private sector along with, at times, sensitive information that cannot be widely disseminated. The SUN SEA affair highlights the value—frequently the necessity—of a docu­mented process to plan, share, and protect information across the whole of government with other nations, as well as to coordinate actions to develop so­lutions, integrate the private sector, address privacy requirements, and involve lawyers. Response communities are generally organized based on their distinct authorities and responsibilities. That makes sense for most events, as the mis­sion for a search and rescue will involve considerations that are substantively different from a contagion, fuel spill, or criminal investigation. However, crisis responses generally don't fit within the parameters of a single community.

To better assess collaboration challenges, such as those that arose during the SUN SEA affair, government officials from over 100 countries were asked their opinion regarding the following statement: “The response to a signifi­cant security threat or event generally involves more than one agency or de­partment.” In this case, 98 percent agreed or strongly agreed. The exceedingly high positive response rate confirms that the contemporary response envi­ronment is multiagency, and for crisis lawyering this result also confirms an effective counselor must have awareness of partner agency authorities and ca­pabilities. The crisis lawyer must readily establish what information is known among multiple organizations and what needs to be known (and who will be responsible) at the outset of a crisis; legal points of contact for participating agencies; the decision-making process; privacy requirements; what may be shared with other agencies; private-sector involvement; multinational, infor­mation-sharing practices; and policy, regulatory, and legal considerations. A crisis lawyer can support a multiagency response through the development of inclusive decision-making and information-exchange processes that respect departmental authorities and each agency's unique organizational culture. Undertaking such collaborative efforts requires an attorney to possess com­petencies along with legal knowledge; it requires skills, knowledge, and abili­ties related to trust building, role clarification, and solution development.²⁴ Building trust and a collaborative environment is not easily attainable?⁵ De­spite direction from a head of state to collaborate, personnel may have myopic agency interests or cultures that disfavor sharing information. Role clarifica- tion2⁶ can be an effective tool for the crisis lawyer to overcome parochialism that often exists during multiagency crisis responses, particularly in situations where jurisdictions, authorities, and capabilities overlap. A crisis lawyer is well placed to build, support, and document a common understanding of or­ganizational mandates, jurisdictions, and accountabilities to support effective multiagency decision-making. This requires an ability to listen to others to understand and clarify overlapping or conflicting mandates, roles, authorities, or jurisdictions. Crisis management practitioners and counselors who know their role and the role of those in other organizations can use this knowledge to appropriately establish interagency response goals and settle impasses.

The response to the blast at the Port of Tianjin China and the SUN SEA affair also affirms that crisis situations often require collaborative planning, problem-solving, and decision-making to achieve the best outcomes possible. Information supports effective decision-making. Yet, of the 500-plus govern­ment official survey participants, 63 percent agreed or strongly agreed that information sharing is limited over concern of how other government agen­cies will protect or safeguard data. This survey result once again highlights the importance of developing trust between organizations and the need for documented information-sharing mechanisms. Participation by lawyers in the development of data collection and information-sharing mechanisms is therefore critical. Such instruments enable organizations to better under­stand, in advance of a crisis, what information can be shared with whom, whether restrictions exist that govern its use, and any protections that must be legally maintained. At the same time, effective response action demands that crisis lawyers, whenever possible, adopt a “need to share,” rather than a “need to know” approach to information sharing.

Addressing a potential biological threat aboard the CSAV RIO PUEBLO, described below, was unfortunately chaotic, perhaps inevitably, because orga­nizations were not conditioned—or even authorized—to share information, and no formal crisis-coordination process existed to support the exchange of information and align strategic courses of action. The first report was un­substantiated, but extraordinary: a vessel approaching the United States was carrying one million lemons spiked with a radiological substance.²⁷ The ship's destination was the Port of New York/Newark, in close proximity to the larg­est concentration of people in the United States. The cargo was slated for de­livery in New York and throughout the country, with the potential to cause devastating damage across thousands of miles.

All options involved some level of operational and legal risk: Permit the RIO PUEBLO into port, permanently deny entry, or conduct offshore (or in port) inspections? The threat was not yet confirmed, and the commercial ship was carrying other perishable cargo that, in addition to the fruit, was worth millions. Key details about the lemons were not initially known, as the first report of possible illicit activity was an anonymous email message.²⁸ In the first hours following receipt of the (anonymous) report that some cargo was contaminated with a biological substance, assumptions were made—the exis­tence of a national security threat. This assumption regrettably remained un­changed. New information was discounted, and initial decisions as well as courses of action were left static.

Approximately forty local, state, and national agencies that normally oper­ate under separate chains of command would participate in response activi- ties.2⁹ Integration would be essential, however, because the search for toxins included agencies duplicating tests along with fumigation.³⁰ “Reportedly, disagreements erupted once the first-round tests indicated there was no im­minent danger, with state and local officials insisting that the ship and its suspect containers be kept offshore until all risk of danger was eliminated and with US Customs officials arguing for towing the ship into port so that they could lay to rest the worst-case scenarios by using specialized equipment to detect any dispersal devices.”³¹ Six days of inspections by several agencies affirmed what was known following the first examination: no toxic chemicals were aboard CSAV RIO PUEBLO.ⁱ² One million lemons valued at $70,000 were nevertheless destroyed, and millions of dollars' worth of other cargo was delayed, the cost of which was not calculated. Enforcement activities were estimated to cost $1.3 million.³³

Officials involved in RIO PUEBLO were pressed to make decisions of higher precision with less information, under faster time constraints, in an environment of heightened public expectations and intense media (and social media) scrutiny. Diplomatic and legal considerations converged with safety and security. One newspaper framed the challenge as pitting “anti-terror tactics [with the] free flow of trade.”³¹ The RIO PUEBLO response led the World Shipping Council to call for the development of a pre-identified plan to deal with future similar contingencies. Other commentary—including criticism—soon followed. “The shipping industry, as well as some of the of­ficials involved, question why the Coast Guard kept the ship at sea for a week, delaying delivery of millions of dollars worth of other merchandise. In Argen­tina... government officials are indignant they were not informed about the alleged threat until media reports of a Coast Guard news conference on Aug. 6. Shouldn't they be notified at once, they ask, of allegations that biological weapons are being deployed from their nation's ports?”³⁵

Despite a botched response, “Lemongate,” as it has been derisively called, has had enduring resonance.³⁶ The RIO PUEBLO affair highlighted that advice pro­vided on unconfirmed, incomplete, or dated information is inherently flawed; and, separately, that the involvement of more agencies—more people—does not necessarily improve a response. A crisis lawyer can function most effectively with a documented process that has the full support of senior officials through­out an organization and with partner agencies. Support includes access to meet­ings and information, required participation in preliminary decision-making, and compulsory review (including, where appropriate, “legal clearance”) prior to significant decisions. Pre-identified points of contact, availability 24/7, clearly defined triggers for notification, information exchange coordination, checklists (including scripts that guide discussions and encourage engagement from all organizations with equities, consistent agendas, and issue-specific response legal considerations), and documenting actions are all critical.

The authors recognize that a crisis involves scores of decisions, many of which require immediate action. Moreover, decisions may at times be re­quired with incomplete information. That being said, awareness of the in­formation required for effective response activities, collectively evaluating it for reliability, and sharing it appropriately are critical functions of any crisis lawyer. Providing counsel in this environment requires candidly acknowledg­ing that one's own understanding of the issue may be incomplete and that information from additional sources may be necessary to assess the situation, accurately frame problems, identify interdependencies, and mitigate potential unintended consequences of decisions.

Responses to complex crises such as the RIO PUEBLO, however, often suf­fer from information-sharing barriers, both real and perceived. At times, a “hold close” approach is necessary to protect sensitive investigative informa­tion or intelligence. Yet, in the context of a national-level, multijurisdictional response such as RIO PUEBLO, which included the participation of more than three dozen organizations, focusing first on less sensitive information that could be shared may have increased understanding of interdependen­cies and reduced unintended (and adverse) impacts of the courses of action. A case in point is the M/V NORDIC. In 1991, the US Coast Guard sought to board a Honduran-flagged coastal freighter (M/V NORDIC) suspected of drug trafficking.³⁷ Though the USCG frequently conducts counterdrug oper­ations, this specific response was judicially called “grossly deficient”³⁸ largely based on information-sharing failures. An extraordinary judicial opinion found the response included “considerable [US Government] confusion, mis­communication, and misinformation, some of which appears to be deliberate, or at least, perverse after the fact attempts at cosmetic restoration.’^⁹

Bram Coumou, NORDICs master, piloted the vessel from Colombia to the Caribbean Sea. Before arriving at its destination in Haiti, Bram, an American citizen, notified the USCG he suspected that illicit drugs were on his ship.⁴⁰ Cargo was off-loaded from the NORDIC while docked at St. Marc, Haiti, in part with the cooperation and assistance of Coumou, the “only available crane operator.”⁴¹ After cocaine was discovered on NORDIC, the Haitian govern­ment requested that the United States waive jurisdiction over CoumouZ² A US government interagency response processi³ that facilitated discussions arrived at decisions based on inaccurate information. The US government agreed with Haiti exercising jurisdiction over Coumou. Despite providing the information of illicit drug trafficking and extensively cooperating in the search of NORDIC, Coumou spent six months in a Haitian jail before he was acquitted at a trial in Haiti.

The US federal court opinion held that the decision to waive jurisdiction over Coumou was based on “reports and related memoranda” deemed to be “grossly deficient and inaccurate.'”¹'¹ The ruling also stated: “The [Haitian prison] experience was a nightmare. During this time, he suffered from mal­nutrition, infections, and diseases, including bronchitis, pneumonia, kidney infection, chronic back pain, nerve disorder, fungal and eye infection, chronic diarrhea, dehydration, and marasmus, and he witnessed numerous atrocities, perpetrated both by Haitian officials and other prisoners, including beatings and torture, some of which ended in the death of the victim.”¹¹’

Bram Coumous civil proceeding asserted US government negligence, among other things, and requested damages for his arrest and confinement. The US Fifth Circuit Court of Appeals reversed the district judge's finding that the government was per se liable for personal injury and property dam­age, but it remanded the case “to determine whether the government's fail­ure to convey information to Haitian authorities constituted a breach of its duty of reasonable care."4⁶ The court further held: “Even if the government is immune from tort suits with respect to its policy decision to search the NORDIC in Haiti and then accede to the Haitian request to exercise Haitian jurisdiction, it still had a duty to exercise reasonable care in carrying out that policy.’^⁷ The response demonstrated that the existence of a response process does not guarantee an effective response, though the collaborative process used during the response to Coumou has since been refined by the United States and expanded to better support effective coordination and information exchange. The NORDIC affair also reinforces the need for the crisis lawyer to both have a questioning attitude and consider the entirety of the response spectrum (addressing “how does this event end”) when initially framing is­sues and providing advice on courses of action. Involvement at every stage of the response, ensuring clarity on your role in the decision-making process, validating assumptions repeatedly, and actively seeking accurate, timely, and repeatedly updated information are equally important.

The challenges with validating and sharing information are not isolated to the SUN SEA, RIO PUEBLO, and NORDIC responses. In 2008, news cover­age in Canada heralded sensational claims of piracy after the Royal Canadian Mounted Police boarded and seized a Sea Shepherd Conservation Society- controlled vessel adorned with skull and crossbones along with the names of vessels it had rammed or sunk. The Dutch-flagged research vessel, named after the Canadian author and eco-activist Farley Mowat, deployed to the Ca­nadian coast to obstruct lawfully authorized seal-hunt activity.⁴⁸ Over the ensuing weeks, the crew willfully ignored orders to depart Canadian waters, jockeying back and forth between Canada's territorial sea and the Exclusive Economic Zone, claiming that navigational freedoms allowed such action. The vessel would “graze” a Canadian Coast Guard ship twice and come peril­ously close—within nine meters—to boats and people on ice floes, prompting seasoned fishers to fear for their lives?⁹

During the kinetic-response phase, no single department in Canada pos­sessed sufficient authorities, mandates, resources, or information. Similar to the SUN SEA, this event occurred amid significant media interest and, at times, incomplete information. Planning, discussions, and legal consultations were occurring within safety, security, environmental, search and rescue, dip­lomatic, judicial, law enforcement, border, and military agencies—silos, to use an analogy—in support of their own internal mandates. These efforts led to the development of recommendations provided individually to senior agency officials. The complexity of the case, together with the sensitivity and social divisiveness of the issue, required whole-of-government integration.

The crisis received extensive media attention for weeks, with inaccurate assertions from the vessel's owner that the seizure of FARLEY MOWAT was an act of war.⁵⁰ In protest, the vessel's owner delivered to a courthouse 2,500 Canadian two-dollar coins to obtain the release of the master and first officer, stating “since they're going to board our vessel at gunpoint on the high seas and take all our property, they are pirates and we will give them a pirate ran- som."51 Media inquiries were constant, public responses from several minis­ters were necessary, and responding to calls from senior government officials for information became a predominant near-term action of those managing the crisis. The two arrested crewmembers were deported; following weeks of rhetoric in the press, the crisis appeared to have abated. Yet, the case would endure for another nine years.

Following the seizure of the FARLEY MOWAT in 2008, the vessel was later auctioned; however, after a failed bid, the Canadian government sold it for scrap in 2014 to help pay six years of docking fees. The new owner attempted to tow the vessel away for decommissioning. Unable to do so, he subsequently moved the vessel to a small community wharf, purportedly under the cover of darkness, abandoning it in a small community, taking up a quarter of the town's wharf space. In 2015, FARLEY MOWAT began to sink, adding $550,000 to gov­ernment costs, as the Canadian Coast Guard was forced to deploy oil booms, refloat the vessel, and repeatedly pump polluted water out of the vessel to keep it afloat. A year later, the FARLEY MOWAT caught fire. The new owner repeat­edly ignored court orders to move the vessel, resulting in imprisonment for contempt of court in 2016. Following a declaration that FARLEY MOWAT was “an imminent pollution threat to the environment,” it was finally towed away.⁵²

Inquiries that followed these events concluded that the response actions were reasonable and necessary as well as consistent with laws and regulations. Reme­diation, disposition, and vessel recovery costs related to the FARLEY MOWAT would ultimately exceed $1 million and consume judicial attention for more than a decade/³ The lessons learned from the response inspired the develop­ment of a whole-of-government framework—specifically the MERP, which re­mains operative today—to better coordinate and integrate multilevel response structures to respond to threats by establishing the prerequisite triggers and communication procedures for initiating Canada's Response Protocol, setting forth the collaborative planning process to establish situational awareness, share information, develop options and plans, and conduct after-action reviews/⁴

It is not realistic to expect information to be seamlessly exchanged or for collaboration to flawlessly occur when those involved in a crisis are meeting one another for the first time during the event/5 Rather, preparing whole-of- government crisis responders requires building familiarity with multiagency participants and established processes. Cultivating relationships and networks in advance of a crisis can help lawyers overcome collaboration challenges by providing more ready access to the information, expertise, and lobbying as­sistance from other organizations that is often required to build consensus around strategic courses of actions.

An integrated response to significant threats and events—particularly as examined in training and “live” as well as “tabletop” exercises—can assist a crisis lawyer. Such efforts can build confidence to work within a multiagency response environment, align expectations, and encourage the response to novel events that don't have preestablished plans. Frequent exercises (and training) also build proficiency in the use of documented collaborative pro­cess and trust. Yet, when survey participants were asked whether their or­ganization provided adequate training with regard to whole-of-government collaboration (e.g., when to share information, who is authorized to share information, what decisions may fall within a whole-of-government frame­work, etc.), only 39 percent of respondents agreed or strongly agreed.

This survey result highlights a crucial whole-of-government crisis gover­nance priority that is not currently being met: ensuring that officials, includ­ing crisis lawyers, are prepared, competent, and capable of operating within a multiagency environment. The authors recognize that responsibilities related to crisis management are frequently secondary tasks in relation to day-to- day assignments or are seen as separate functions done by others inside an organization. Regardless of misperceptions, a crisis often affects the entire organization. When emergency or crisis-management functions are not well understood or embraced, organizations suffer from so-called intervention bias, or the tendency to overreach and take on tasks for which an organization is ill equipped, and abdication bias, which unfortunately results in eschewing responsibility or blaming others.⁵⁶

Further challenges arise when personnel who are assigned to work in a multiagency environment do not possess the requisite training, experience, knowledge, or skills5^y and are thus unable to effectively support the whole- of-government response. Developing training requirements (including the completion of these requirements in annual reviews), periodic exercises, and drafting interagency competencies all represent best practices to improve a multiagency crisis response. Attorneys, as well as senior government officials, have a critical role in training by prioritizing participation in training pro­grams, exercises, and updating information-sharing processes as necessary.

In the context of training and exercises, a crisis lawyer can take on a role as an evaluator documenting and evaluating collective decisions and decision-making processes; evaluating the currency of joint plans and pro­cesses against changes in legislation, jurisprudence, good practice, policies, and relevant doctrine; and making recommendations to update plans and instruments to address risks, lessons learned, errors, and omissions. It is not uncommon for disagreements to surface regarding jurisdiction, authorities, roles, and responsibilities or information sharing during exercises. A crisis lawyer can work as a mediator or process facilitator to help resolve disagree­ments. Following exercises, a lawyer has an important role in supporting the development of after-action reports, updating doctrine, and revising training.

To support the development of whole-of-government national-level train­ing and exercises, the authors developed “Rules for Crisis Lawyering in a Multi-Agency Response Environment.” These rules were distilled from the firsthand experiences of the authors in drafting multilateral information shar­ing agreements, coordinating interagency responses, and analyzing findings from the survey of government officials. The rules seek to codify the authors' personal observations of requirements, processes, skills, knowledge, and attri­butes employed by effective lawyers operating in a multiagency crisis environ­ment. They are not intended to serve as a holistic crisis-response framework or to supplant existing competencies of an attorney. They may be used to sup­port professional development, training, and collaborative responses.

Rules for Crisis Lawyering in a Multi-Agency Response Environment

• Before a crisis, build, manage, and sustain credible, trust-based relation­ships with colleagues, senior ranking personnel, and other organizations. Know which organizations are—or should be—at the (decision-making) table and know who will be sitting in the chairs.

• Always have access to contact information for colleagues within your agency and in partner agencies (and ensure they will take your calls or respond to texts at any time of the day). As necessary, develop redundant communications systems and alternate IT/connectivity plans.

• Actively seek out newly reporting personnel in advance of a crisis to educate/ discuss/familiarize on the information-sharing and decision-making processes.

• Develop and document processes and checklists for the response to threats/events, seek to improve them daily, and validate them annually.

• Seek out opportunities to plan, train, exercise, and work together in advance of a crisis. A collective response to significant threats and events— particularly as examined in training and exercises—can assist a crisis lawyer regarding how to align expectations, how to effectively improvise when faced with novel events that don't have preestablished plans, how

to optimize application of disparate enabling authorities, how to work ef­fectively within multiagency response environments, and how to feel more confident in a time-compressed, information-scarce environment.

• Approach crisis response with the expectation a significant threat/disaster will involve more than a single agency and possibly implicate several nations.

• Advocate to involve lawyers on all issues and ensure clarity on their role in the decision-making process.

• Integrate public affairs/media response communities soonest.

• Engage all relevant organizations, and remember that more people doesn't always equal a more effective response: focus on the information exchange and decision-making process and not the number of people.

• At the outset of a crisis, discuss “how does this event end?” A questioning attitude will support accurate issue framing throughout the entirety of the response spectrum.

• Create a safe environment in which to express diverse opinions, actively elicit input from diverse organizations, and reconcile divergent priorities and opinions.

• Collaboratively define issues and codevelop solutions to support aligned outcomes: demonstrating an inclusive approach to developing courses of action and forging consensus among those with differing views will im­prove understanding of interdependency and nonlinearity and will enable adaption as conditions and information change.

• Avoid creating new policy during the crisis-response phase.

• Disseminate information expeditiously, often, and as widely as possible under a documented process. Develop processes to support gathering, exchange, and analysis of information so that it can be understood by nec­essary audiences and accessible in a timely fashion.

• Know in advance what information can be shared and with whom, the ex­istence of restrictions, and the protections that must be maintained. Apply discretion and judgment in dealing with sensitive issues and data.

• Know your role and the roles of others. Seek to understand the mandates, roles, authorities, jurisdictions of the various organizations that may be in­volved in the course of a response and the resources, knowledge, and skills they possess. Use of role clarification can overcome parochialism, solve impasses, and further develop trust between individuals and organizations, particularly in situations where jurisdictions, authorities, and capabilities may overlap.

• Speak as one voice during the response to significant events and threats and have a preidentified process for resolving disagreements.

• Demonstrate commitment, focus, and enthusiasm: self-management and professional conduct will support a collaborative practice model and assist in steering discussions/negotiations successfully through complex issues.

• Recognize contributions of all participants and reward those who have had an impact.

• Pay the price: effective crisis preparedness comes at a cost (time, resources, and training). Dedicated, neutral facilitators (who possess subject mat­ter expertise) improve the decision-making process. Train personnel on coordination (and information exchange) processes and conduct exercises frequently, ensuring such efforts are documented and prioritized.

Conclusion

The events we have examined in this chapter underscore the notion that an effective crisis response requires both a networked approach and an attor­ney at all phases. The focus is no longer on a single organization or solely client based but instead requires a whole-of-government approach to achieve shared outcomes. In contrast to the traditional role of counsel, crisis lawyer­ing promotes cohesion among participants while simultaneously protecting and supporting national positions. Results are not based singularly upon effectively pleading a case or identifying and interpreting judicial rulings/ statutes; results are achieved by using the law as an enabler to collaboratively address complex challenges.

The authors recognize that threats will evolve, and in this regard so too must organizations, collaborative processes, and the law. Response elements that will have enduring resonance, regardless of the threat, include the devel­opment of a documented whole-of-government process, transparency, train­ing, senior leader support, integration of lawyers, trust, and the expeditious exchange of information within a government and, as appropriate, among nations (and the private sector).

An assumption in this chapter is that crisis lawyers will have specialized, technical knowledge in the domain(s) within which they are practicing. Yet, the case studies we examined in this chapter, along with survey results, reinforce the notion that, in a multiagency environment, understanding collaboration—including its limitations and opportunities—is also a key competency. Awareness of when information will be shared (and protected), what agencies could be involved in a response, and, more broadly, how a na­tion speaks with one voice is essential.

Crisis lawyering is “more than simply a matter of agenda setting.”⁵⁸ In this chapter, we emphasized that the response to crises historically has involved uncertainty, urgency to act, as well as organizational risk and that it is now time to bring an additional consideration to the strategic response landscape: whole-of-government collaboration. A key element of interagency alignment involves lawyers who are increasingly being called on to advise in crisis situ­ations. Awareness of lessons learned, best practices, and development of spe­cialized competencies related to trust building, codevelopment of solutions and capabilities, role clarification, information sharing, and collaborative leadership is crucial for the crisis lawyer to effectively navigate the coordina­tion obstacles in this operating environment.

NOTES

Brian Wilson is the Deputy Director, Global Maritime Operational Threat Response Coordination Center, US Coast Guard/US Department of Homeland Security, and Nora Johnson is the Director of the Office of Incident Management at Transport Canada. The views expressed are those of the authors and do not reflect the official policy or position of the U.S. Navy, U.S. Coast Guard, U.S. Department of Homeland Security, Transport Canada, or the Government of Canada.

1 There is not a single, universally recognized definition of a crisis. See, e.g., Thomas A. Birkland, Lessons of Disaster, Policy Change After Catastrophic Events (2007). Birkland noted a description of a crisis as a “situation faced by an individual, group or organization which they are unable to cope with by the use of normal routine procedures and in which stress is created by sudden change.” Id., at 5.

S.C. Res. 2341(2017).

Id. at y 4.

The Arthur D. Simons Center for Interagency Cooperation conducts research, analysis, and publishes the InterAgency Journal; see Arthur D. Simons Center for Interagency Cooperation, http://thesimonscenter.org. William & Mary's program focuses on “complex national security and other public policy problems [to] support research into ‘whole of government' solutions to these problems”; see WM & Mary New Cntr. for Gov., www.wm.edu. SUNY Albany programs include an undergraduate major in Emergency Preparedness, Homeland Security, and Cybersecurity; see College of Emergency Preparedness, Homeland Security and Cybersecurity, SUNY Albany, www. albany.edu.

The Swedish Defence University's National Center for Crisis Management Research and Training (CRISMART), examines crisis management, preparedness, and response, focusing in part on the decision-making process; See Crisis Management Research and Training (CRISMART), ETH Zurich Ctr. For Security Stud., www.css.ethz.ch.

See, e.g., United States et al., Legal Support to Military Operations Joint Publication 1-04 (2016), www.jcs.mil: “Legal advisors actively participate in the entire planning process from joint intelligence preparation of the operational environ­ment development, to mission analysis, to course of action (COA) development and recommendation, through execution.” Id., at ix.

Similar to challenges with defining interagency collaboration, defining the word “coordination” is also elusive. “Coordination can have many different meanings. The term is rarely defined.” Arjen Boin et al., Managing Hurricane Katrina; Lessons From a Megacrisis 167 (2019).

Birkland, Lessons of Disaster, 15 (citing U.S. president Franklin Roosevelt's statement in the 1930s regarding what would be necessary to effec­tively respond to the Great Depression, an unprecedented economic crisis.) See generally Dr. Andrea Charron et. al., ‘Left of Bang’: NORADs Maritime Warning Mission and North American Domain Awareness 4-63 (2015), https://umanitoba.ca. United Kingdom, Maritime Annual Report, Dep't. of Transp. (2017-2018), https://assets.publishing.service.gov.uk.

Caroline Mortimer, Tianjin Explosion: Gigantic Crater Left by Chinese Factory Accident Revealed, Independent (2016), wwwindependent.co.uk.

China Explosions: What We Know About What Happened in Tianjin, BBC News, (Aug. 17, 2015), www.bbc.com, (hereinafter China Explosions).

Tom Phillips, Tianjin Blasts: Fears of Cyanide Pollution as Chinese Officials Lambasted, Guardian (Aug. 17, 2015), www.theguardian.com.

Mortimer, Tianjin Explosion.

Id.

Associated Press, Tianjin Explosion: China Blast Disrupts World’s 10th Largest Port, Indian Express (Aug. 14, 2015), https://indianexpress.com.

Tamsyn Burgmann, Terrorists or Civilians?MV Sun Sea passengers Face Scrutiny in Days Ahead, Winnipeg Free Press (Aug. 13, 2010). See also Sun Sea: Five Years Later, Can. Council for Refugees (Aug. 2015), https://ccrweb.ca/ sites.

Migrant Ships: A Multi-jurisdictional Approach to Planning & Response, Pub. Health Agency of Can.

Id.

Id.

Id.

Civil Defence Emergency Management Competency Framework Technical Standard for the CDM Sector (TS02/09), N.Z. Ministry of Civ. Defence & Emergency Mgmt. (May 2011), www.civildefence.govt.nz (hereinafter “Civil Defence Emergency Management Competency Framework”); The Canadian Inter-professional Health Collaborative: A National Inter-professional Competency Framework, Her Majesty the Queen in Right of Can. (2010), www. cihc.ca.

See, e.g., Boin et al., Managing Hurricane Katrina, 164-65 (showing a study of Hurricane Katrina noted the coordination challenge identified during the response to Hurricane Katrina: “A wide variety of citizens, officials, and organizations—many not hierarchically related to one another—must be enticed to work together under difficult conditions. The common goal is to make a number of critically important things happen: save lives, lessen suffering, deliver much-needed supplies, evacuate people, provide safety and security, and start the rebuilding.”) See also id., at 154-55 (“Officials at all levels seemed to be waiting for the disaster that fit their plans, rather than planning and building scalable capacities to meet [the crisis].”).

Civil Defence Emergency Management Competency Framework.

Paul Blustein & Brian Byrnes, Lemons Caught in a Homeland Security Squeeze, Wash. Post (Sept. 10, 2004).

Id.

A study of an unrelated event, Hurricane Katrina, noted the varying approaches to threat response included: “A bottom-up approach assumes that much of the required cooperation will just happen in the initial phase: people tend to work together in response to a disaster. This is called ‘emergency coordination' [and under this approach] there is no plan, no coordinator. It materializes seemingly without any steering, like an invisible hand.” Boin et al., Managing Hurricane Katrina, 80.

Blustein & Byrnes, Lemons.

Id.

The FBI’s Efforts to Protect the Nations Seaports, U.S. Dep’t of Just. Off. of the Inspector Gen. Audit Div. (Mar. 2006).

Blustein & Byrnes, Lemons.

Id. The author led the article by asking “who would accuse innocent fruit of harboring weapons of mass destruction”?

Id.

Id.

Id.

Coumou v. United States, 107 F.3d 290 (5th Cir. 1997) (“The government was required to take reasonable care to see that Haitian officials learned of Coumous cooperation. Its failure to transmit the information may have been the result of a breach of that duty.”).

Id. (citing to the district court finding).

Id.

Id.

Id.

Id., citing U.S. Presidential Directive-27 (PD-27), Procedures for Dealing with Non-military Incidents (Jan. 19, 1978). While PD-27 remains operative, U.S. interagency collaboration to maritime threats now occurs in in accordance with the MOTR Plan (2006).

107 F.3d at 294 (footnote omitted).

Id.

Id., at 296.

Id.

Mike Dembeck, Fearing ‘Pollution Threat,’ Ottawa Steps in to Remove Notorious MVFarley Mowat, Globe & Mail (June 16, 2017), www.theglobeandmail.com. Id.

Id.

Keith Doucette, Farley Mowat Bails Out Crew and Namesake Ship, Globe & Mail (Apr. 27, 2018), www.theglobeandmail.com. The toonie coins “had to be counted twice” reportedly after court officials “lost track... and had to start over.” Id. See also Author Farley Mowat Bails Out Anti-sealing Protestors, CBC News (Apr. 14, 2008), www.cbc.ca.

Dembeck, Fearing ‘Pollution Threat.’

See Shelburne Celebrates Removal of MV Farley Mowat, CBC News (July 27, 2017), www.cbc.ca4. See also Kathy Johnson, Federal Court Orders MV Farley Mowat Owner to Pay Big Bucks for Pollution Cleanup in Shelburne Harbor, Shelbourne County Coast Guard (Feb. 7, 2019), www.thecoastguard.ca.

See generally Charron et. al., ‘Left of Bang.’

Birkland, Lessons of Disaster, 5 (“The entire field of crisis management is devoted to the development of nonmormal procedures to nonroutine managerial problems”); see id. at 165-66 (“[T]here are very few novel problems and solutions”).

56 See Tim Johnson, Crisis Leadership: how to Lead in Times of Crisis, Threat and Uncertainty 91 (2017).

57 See generally Eide Aslak et. al., Key Challenges in Multi-Agency Collaboration During Large-Scale Emergency Management (Jan. 2014).

58 Birkland, Lessons of Disaster, 29. The quote is in the context of postdisaster policy learning, although it is relevant to crisis lawyers. Regarding policy change, Birkland further stated: “Whether [postdisaster policy learning] seeks something more tangible than greater attention is the question [and a broader goal is the desire] to link attention to actual policy change.” Id. at 11.

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