Emergency Preparedness and Continuity of Operations (COOP) Planning in the Federal Judiciary

Emergency Preparedness and Continuity of Operations (COOP) Planning in the Federal Judiciary

Order Code RL31978

CRS Report for Congress
Received through the CRS Web

Emergency Preparedness and
Continuity of Operations (COOP)
Planning in the Federal Judiciary

Updated September 8, 2005

R. Eric Petersen
Analyst in American National Government
Government and Finance Division

________________________________________________________________________________________________________________________________________________________
Congressional Research Service ˜ The Library of Congress

Emergency Preparedness and Continuity of Operations
(COOP) Planning in the Federal Judiciary

Summary

Following the current disruption of operations in several courts in Alabama,
Louisiana, and Mississippi due to Hurricane Katrina, the September 2001 terrorist
attacks, subsequent anthrax incidents that briefly affected the Supreme Court, and
occasional warnings of potential natural and man-made incursions that could interrupt
court operations, judicial branch policymakers and administrators have given renewed
attention to crisis response, emergency planning, and continuity of operations (COOP)
issues. In the federal judiciary, COOP planning is an extension of court emergency
preparedness plans designed to safeguard lives and property during emergencies.

The federal judiciary is highly decentralized, both geographically and
administratively. Consequently, emergency and COOP planning is carried out locally,
according to guidelines issued by the Administrative Office of the United States Courts
(AOUSC). Each federal court, aside from the Supreme Court, which has dedicated
facilities and security procedures that are not considered in this report, is responsible for
planning for its continued operation in the event of a disaster or other potential
operational interruption.

Prior to September 2001, the federal judiciary had engaged in efforts to improve
security in court facilities. After the attacks, AOUSC recommended the designation of a
senior court executive in every court to coordinate and be responsible for developing
appropriate procedures for emergency preparedness, and COOP. AOUSC also
recommended that the courts coordinate their planning activities with the Federal
Emergency Management Agency (FEMA) and local federal executive agencies.

This report discusses actions taken by AOUSC following the September 11
attacks, and describes expectations for emergency preparedness and COOP plans in the
judiciary. Other sections address issues and policy questions Congress might consider,
including matters of the status of judicial emergency and COOP preparedness, and
funding for future policy and oversight questions regarding judicial contingency
planning.

This report is one of several CRS products related to government emergency
preparedness and contingency planning, and will be updated as events warrant. CRS
Report RS22244, Legislative Initiatives to Temporarily Relocate Federal Courts
Interrupted by Natural or Man-made Disasters, 109th Congress discusses legislative
activity to assure continued operation of federal courts following a range of significant
operational interruptions. Issues related to executive branch COOP activities are
discussed in CRS Report RL32752, Continuity of Operations (COOP) in the Executive
Branch: Issues in the 109th Congress, and CRS Report RL31857, Executive Branch
Continuity of Operations (COOP): An Overview. COOP planning in Congress is
addressed in CRS Report RL31594, Congressional Continuity of Operations (COOP):
An Overview of Concepts and Challenges.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislative
Proposals,
109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Actions by the Administrative Office of the U.S. Courts . . . . . . . . . . . . . . . 3

Occupant Emergency Program Plans . . . . . . . . . . . . . . . . . . . . . . . . .4

Continuity of Operations Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Role of the Courts in an Emergency . . . . . . . . . . . . . . . . . . . . . . . . . 9

Issue Immediacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Budgetary Constraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Policy and Oversight Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Related CRS Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …..11

Continuity of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..11

Emergency Preparedness and Continuity of
Operations (COOP) Planning in the Federal
Judiciary

Introduction

Following the current disruption of operations in several courts in Alabama,
Louisiana, and Mississippi due to Hurricane Katrina, the September 2001 terrorist
attacks, subsequent anthrax incidents that briefly affected the Supreme Court, and
occasional warnings of potential natural and man-made incursions that could interrupt
court operations, judicial branch policymakers and administrators have given renewed
attention to crisis response, emergency planning, and continuity of operations (COOP)
issues. COOP planning in the federal judiciary is an extension of court security and
emergency preparedness plans designed to safeguard lives and property during
emergencies.1

While much of the current focus on contingency planning grows out of the
aftermath of the autumn 2001 attacks, continuity of operations planning is an ongoing
effort that predates the attacks, and grows out of efforts to prepare courts to withstand
disasters and other unforeseen occurrences.2 At the federal level, judicial COOP
planning is related to efforts established during the Cold War to preserve the
continuity of government (COG) in the event of a nuclear attack on the United States.3
Cold War era COG planning reportedly focused on preserving the senior leadership of
each branch of government, including the Chief Justice of the United States and
Associate Justices of the Supreme Court. These plans reportedly included locating
and evacuating these individuals to secure, alternative operational facilities outside of
the District of Columbia in the event of a nuclear attack.4 Similarly, it is
________________________________________________________________________

1 “Emergency Preparedness in the Judiciary,” The Third Branch, vol. 33 no. 11, Nov. 2001,
available at [http://www.uscourts.gov/ttb/nov01ttb/emergency.html], visited Sept. 8, 2005.

2 See National Association for Court Management, Disaster Recovery Planning for Courts: a
Guide to Business Continuity Planning (Williamsburg: National Association for Court
Management, 2000), pp.1-45.

3 For a more comprehensive analysis of COG, see CRS Report RS21089, Continuity of
Government: Current Federal Arrangements and the Future, by Harold C. Relyea.

4 See Edward Zuckerman, The Day After World War III (New York: Viking, 1984), pp. 44-66,
211-238; Ted Gup, “The Doomsday Plan,” Time, Aug. 10, 1992, pp. 32-39; and Bruce G. Blair,
John E. Pike and Stephen I. Schwartz, “Emergency Command Posts and the Continuity of
Government,” in Stephen I. Schwartz, Atomic Audit: The Costs and Consequences of U.S.
Nuclear Weapons Since 1940 (Washington: Brookings Institution Press, 1998), pp. 210-214.
Similar contingency plans were reportedly developed for Congress and the executive branch
officials in the line of presidential succession. See ibid.; Ted Gup, “The Last Resort,”
(continued...)

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reported that contingency plans are currently in place to assure the protection of the
Justices of the Supreme Court, but the details of these plans are not public information.
On an operational level, the Court reportedly maintains emergency preparedness
contingency plans to safeguard its facilities and personnel. Supreme Court contingency
planning and emergency procedures are not considered in this report, due to their
sensitive, non-public nature.

Beyond the Supreme Court, the federal judiciary is highly decentralized, both
geographically and administratively. The courts are dependent on executive branch
agencies for the provision of office and courtroom space, and physical security. The
Public Buildings Service of the General Services Administration (GSA) provides bulding
accommodations to the courts, and is responsible for the development and
implementation of occupant emergency plans for those facilities. Security is provided by
the United States Marshals Service (USMS), which protects judicial officers and
employees, as well as attorneys and jurors.5 The Federal Protective Service (FPS), an
entity within the Department of Homeland Security, also provides physical security in
some buildings that house court facilities.6 Consequently, judicial emergency and COOP
planning is carried out at the local level, according to guidelines issued by the
Administrative Office of the United States Courts (AOUSC). Each federal court, in
consultation with the appropriate executive branch agencies, is responsible for planning
for its continued operation in the event of a disaster or other interruption.

The next section of this report discusses legislative initiatives in the 109th Congress that
could enable courts to sit outside their circuits and districts if suitable facilities are
unavailable due to a disaster. Subsequent sections describe actions taken by AOUSC
following the September 11 attacks, and describes expectations for occupant emergency
programs (OEP) and COOP plans in the judiciary. The final two sections address issues
and policy questions Congress might consider, including matters of the status of judicial
emergency and COOP preparedness, and future policy and oversight questions regarding
judicial contingency planning.

________________________________________________________________________

4 (...continued)
Washington Post Magazine, May 31, 1992, pp. 11, 13-15, 24-27; Kenneth J. Cooper, “Hill
Leaders ‘Regret’ Reports on Bomb Shelter Site,” WashingtonPost, May 30, 1992, p. A1.

For more information on presidential succession, see CRS Report RL31761, Presidential
and Vice Presidential Succession: Overview and Current Legislation, by Thomas H. Neale.

5
This information was obtained at the USMS website, available at
[http://www.usmarshals.gov/duties/courts.htm], visited Sept. 8, 2005.

6 Until the creation of the Department of Homeland Security, FPS was unit of GSA.

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Legislative Proposals, 109th Congress

Following the current disruption of operations in several courts in Gulf Coast
states due to Hurricane Katrina,7 one of the issues raised is whether Congress might
consider legislation authorizing courts affected by natural and man-made disasters to
meet outside the geographic boundaries of their circuits or districts. In emergency
conditions created due to a natural or man-made disaster, a federal court facility in an
adjoining district or circuit might be more readily and safely available to court personnel,
litigants, jurors, and the public than a facility within the district. The Judicial Conference
of the United States, which makes policy for the federal courts, asked Congress in June
2005 to pass emergency legislation to allow courts to shift court proceedings temporarily
into adjacent judicial districts when emergency circumstances require it and again in
September following Hurricane Katrina. The proposed legislation is similar to language
contained in section 15 of H.R. 1751, the Secure Access to Justice and Court Protection
Act of 2005. H.R. 3650, introduced on September 6, 2005, would allow U.S. courts to
conduct business during emergency conditions.8

Actions by the Administrative Office of the U.S. Courts

Prior to September 2001, the federal judiciary engaged in routine efforts to improve
physical security in court facilities. Under guidance by AOUSC, it was recommended
that each judicial district convene a security committee that would be responsible for
developing district-wide plans and procedures in conjunction with USMS. Additionally,
AOUSC recommended that each court facility should maintain an occupant emergency
plan that outlines procedures to be followed “in the event of a natural disaster or security
problem.”9 The extent to which these recommendations were implemented in judicial
districts varied, and specific details regarding security changes, are not publicly available.

Following the attacks, AOUSC took several steps to prepare the courts to respond to
potential interruptions. AOUSC created an Office of Emergency Preparedness to assist
courts in the development of their own crisis response and COOP plans. Also, the office
supplied courts with guidelines for handling mail to minimize potential exposure to
anthrax. Acting on policies adopted by the Judicial Conference, AOUSC staff made
arrangements for a contractor to test courthouses for potentially dangerous biological and
chemical hazards.10

________________________________________________________________________

7 Federal courthouses in New Orleans, Louisiana; Mobile, Alabama; and Gulfport, Mississippi
were rendered inoperable due to the effects of the storm.

8 See CRS Report RS22244, Legislative Initiatives to Temporarily Relocate Federal Courts
Interrupted by Natural or Man-made Disasters, 109th Congress, by R. Eric Petersen for details of
the progress of H.R. 1751 and H.R. 3650.

9 “Judiciary Looks To Security Following Attacks,”The Third Branch, vol. 33 no. 10, Oct. 2001,
available at [http://www.uscourts.gov/ttb/oct01ttb/october01.html#secure], visited Sept. 8, 2005.

10 Administrative Office of the U.S. Courts, Activities of the Administrative Office of the
(continued...)

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In an October 2001 memorandum, Leonidas Ralph Mecham, director of AOUSC,
strongly recommended the designation of a senior court executive in each court to
coordinate and be responsible for developing appropriate procedures for emergency
preparedness, including COOP. The memorandum recommended that the courts
coordinate their planning activities with the Federal Emergency Management Agency
(FEMA)11 and local federal executive boards, associations, and councils.12 Contacts with
local police, fire and public health officials also were suggested.13 The memorandum
recommended that courts ensure that an occupant emergency plan be established by the
relevant authority, and that a judicial COOP plan be put in place for each facility
occupied by a judicial branch unit.

Occupant
Emergency Program Plans. The Mecham memorandum
described the occupant emergency plan (OEP) as an emergency response program that
“establishes procedures for safeguarding lives and property during emergencies in
particular facilities.” Because the federal judiciary frequently is a tenant in the GSA-
owned or leased buildings it occupies, including federal courthouses, OEP planning is
typically instituted under the auspices of GSA. Referring to the Federal Property
Management Regulations (FPMR) issued by GSA, the memorandum indicated that an
OEP might address two main issues involving the development of procedures to protect
life and property, and the formation of a local occupant emergency organization (OEO)
designated to undertake certain emergency response duties in the event of an incident.
Among the responsibilities of GSA is the identification of a “designated official”
responsible for the OEO and OEP in GSA-owned or leased facilities. The Mecham
memorandum notes that in court facilities, that officially is usually the chief judge on
site.14
________________________________________________________________________
10 (...continued)
U.S. Courts: Annual Report of the Director Leonidas Ralph Mecham, 2001 (Washington, 2002),
available at [http://www.uscourts.gov/dir-rpt/report2001.pdf], visited Sept. 8, 2005.

11 In the executive branch FEMA is responsible for formulating guidance and establishing
common standards for executive branch agencies to use in developing viable, executable COOP
plans; facilitating interagency coordination; and overseeing and assessing the status of COOP
capabilities in executive branch agencies. Executive branch COOP activities are discussed in
CRS Report RL32752, Continuity of Operations (COOP) in the Executive Branch: Issues in the
109th Congress, by R. Eric Petersen, and CRS Report RL31857, Executive Branch Continuity of
Operations (COOP): An Overview, by R. Eric Petersen.

12 Leonidas Ralph Mecham, Director, AOUSC, “Emergency Preparedness in the Judiciary
(URGENT INFORMATION),” Memorandum to all Chief Judges, United States Courts,”
(hereafter Mecham preparedness memorandum), Oct. 17, 2001, pp. 1-3. According to the
memorandum, the federal executive boards are composed of field office agency heads of
executive branch agencies, and military commanders in 28 cities that are major centers of federal
activity. Federal executive associations and councils are organizations of local principal officers
in other locales.

13 See “Emergency Preparedness in the Judiciary,” The Third Branch, available at
[http://www.uscourts.gov/ttb/nov01ttb/emergency.html], visited Sept. 8, 2005.

14 FPMR are codified in Title 41, Code of Federal Regulations. Since the Mecham
memorandum was released, GSA has revised FPMR to reflect changes in organizational structure
resulting from the creation of the Department of Homeland Security and the
(continued...)

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Continuity of Operations Plans. COOP planning refers to the internal effort
of an organization, such as a branch of government, court, or office, to assure that the
capability exists to continue essential operations in response to a comprehensive array of
potential operational interruptions. While much of the renewed impetus for COOP
planning focuses on responding to potential attacks, the highly decentralized nature of the
federal courts suggests that all but the most widespread interruptions are unlikely to
disable the entire judiciary. Nevertheless, localized operational interruptions that could
necessitate the activation of a COOP in the judiciary might include routine building
renovation or maintenance; mechanical failure of heating or other building systems; fire;
and inclement weather or other acts of nature. Other events that may interrupt federal
judiciary activity include failure of information technology (IT) and telecommunications
installations due to malfunction or cyber attack.15 The Mecham memorandum established
three purposes for judicial branch COOP planning. These were designed to ensure

• safety and well-being of employees, visitors, and the public;

• essential functions and activities are conducted without unacceptable
interruption;
and
• normal operations are resumed as quickly, safely, and efficiently as
possible.

The memorandum also specified several topics that might be included in
contingency planning:

• plan responsibility and scope;

• emergency telephone numbers;

• building and occupant information;

• procedures for periods when facilities are closed;

• communications;

• mail delivery;

________________________________________________________________________

14 (...continued)
transfer of FPS to the new department. Emergency preparedness officials at AOUSC report that
further guidance from GSA and FPS is pending. For a broader discussion of preparedness issues
related to evacuation and other emergency planning in all three branches of the federal
government, see CRS Report RL31739, Federal Agency Emergency Preparedness and Dismissal
of Employees, by L. Elaine Halchin.
15 A cyber attack is an incursion on a range of IT facilities, and can range from simply penetrating
a system and examining it for the challenge, thrill, or interest, to entering a system for revenge, to
steal information, extort money, cause deliberate localized harm to computers, or damage to a
much larger infrastructure, such as telecommunications facilities. See CRS Report RL31787,
Information Warfare and Cyberwar: Capabilities and Related Policy Issues, by Clay Wilson.

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• the establishment and staffing of a command center team of employees and
appropriate staff from other agencies, such as, in the case of the courts, USMS,
FPS, and GSA, that would have the responsibility for implementing emergency
response procedures or tasks; and

• responses to specific types of emergencies, including fire, hazardous materials,
threats, attacks and natural disasters.

In June 2002, AOUSC awarded a contract to Booz, Allen, Hamilton to develop
model COOP plans for the federal judiciary. Beginning in the Second Circuit Court of
Appeals and the Southern District of New York, the contractors gathered information
through interviews and questionnaires to develop a series of templates that the courts
could use to develop their COOP plans. The Second Circuit and the District Court for the
Southern District of New York were chosen because of their experiences following
September 11, 2001, when they successfully reestablished normal court functions in the
aftermath of attacks on the World Trade center.16 Three model plans, covering appeals,
district, and bankruptcy courts, were developed to assist court administrators in their
COOP planning. These plans were distributed to circuit and district courts in November
2002. Each sample plan identified 10 essential matters to be considered in developing an
effective judicial COOP plan. These matters include the following:

• identification of all essential activities and functions;

• identification and protection of vital records, systems, and equipment;

• determination of succession and delegations of authority;

• identification and preparation of alternate work sites;

• identification and training of a team of employees to perform essential activities
in an emergency;

• development of a system of warning to alert employees, visitors, and the public of
potential threats and what to do in an emergency;

• development of a system for identifying the location and status of employees
following an emergency;

• development of ways to communicate with employees, visitors, and the public
after an emergency;

______________________________________________________________________________

16 “Court Continuity of Operations Plans Get Assist,” The Third Branch, vol. 34 no. 6, July 2002,
available at [http://www.uscourts.gov/ttb/july02ttb/essentials.html], visited Sept. 8, 2005.

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• development of a system for restoring normal functions as soon as practicable;
and

•
establishment of regular COOP training and exercise.17

Following the distribution of the model plans to all court units, representatives
from all the circuit courts of appeals and of representatives of several court advisory
groups received training to develop individual court COOP plans The two-day training
workshop introduced court staff to the nature, function, and details of COOPs, discussed
the specific model COOP for courts of appeals, and offered strategies to customize the
model plan and implement it in individual courts. As plans are developed and deployed,
some circuits have chosen to appoint emergency preparedness coordinators to oversee
COOP planning efforts. Others have incorporated the planning into other routine
administrative activities The extent to which COOP plans are being implemented in
judicial circuits and districts varies, and specific details regarding COOP operational
details, including spending, planning, and training are not publicly available.18

In September 2002, The Judicial Conference of the United States approved the
concept of an off-site court operations support center, and authorized the release to
Congress of a report entitled, “Court Operations Support Center and Continuity of
Operations Housing Plan,” based on a study conducted by an outside expert retained by
the courts. The study reportedly addresses the feasibility, requirements, costs, and
benefits of establishing an off-site facility. At the same meeting, the Judicial Conference
approved funding for the FY2003 start-up costs for the center.19

In the FY2003 consolidated appropriations conference report, conferees
recommended that the judiciary consider establishing a court operations support center
located outside of Washington, DC, based on the findings of the report. This leased
facility, to be located at least 20 miles outside of Washington, DC, would help ensure
continuity of operations in the event that administrative and automation support functions
are shut down as a result of the closure of the Thurgood Marshall Federal Judiciary
Building (TMFJB) located near Capitol Hill. According to the conference report, the
study recommends that this facility be within a reasonable travel range of the TMFJB so
that it can be utilized by essential AOUSC and court staff in the event that their facilities
located in Washington, DC, are shut down. The conferees expected the costs of this
facility to be absorbed within existing available resources as proposed by the judiciary.
The conferees encouraged the judiciary to
________________________________________________________________________

17 Ibid.

18 This information was developed from discussions with the staff of the Office of Emergency
Preparedness of the AOUSC, May-June, 2003.

19 U.S. Judicial Conference, Report of the Proceedings of the Judicial Conference of the United
States, Sept. 24, 2002, at [http://www.uscourts.gov/judconf/sept02proc.pdf], visited Sept. 8, 2005.

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find alternative uses for the facility during nonemergency periods,20 but noted that the
primary design goal of the facility should be continuity of operations.21

In testimony regarding its FY2004 budget request, AOUSC pledged to work quickly to
establish the facility and keep the committee apprised of its progress. 22 Following
committee guidance, AOUSC discussed design parameters of a Court Operations Support
Center (COSC) with an outside consultant. According to testimony regarding its FY2005
budget request, the COSC was to serve as a comprehensive backup facility that could
support critical court operations in the event that an operational interruption precludes
access to TMFJB. In addition to the data center, the COSC was expected to house an
emergency communications center, and telework opportunities for AOUSC staff year-
round. Once operational, the COSC was expected to provide

• integrity and access to Judiciary-wide data processing systems, computer based
systems, intra/Internet access and information technology infrastructure;

• payroll and benefits processing for judges and judiciary staff, and

• central financial operations, bill payment, panel attorney reimbursement, and
support for judicial officer retirement trust funds.

A location site for the COSC was selected in the suburbs of Washington, DC. According
to congressional testimony, construction within the leased space was to have begun in
March 2004, and was scheduled to be completed in May 2004. The facility was expected
to be fully operational by late summer.23

______________________________________________________________________________________

20 According to the conference report, alternative uses for the proposed facilities included
transferring portions of the courts’ payroll processing, financial disbursing, and information
technology support the new facility as well as developing telework opportunities.

21 U.S. Congress, Conference Committees, Making Further Continuing Appropriations For the
Fiscal Year 2003, and For Other Purposes, conference report to accompany H.J.Res. 2, 108th
Cong., 1st sess., H.Rept. 108-10 (Washington: GPO, 2003), pp.736-737; also available at
[http://www.congress.gov/cgi-lis/cpquery/R?cp108:FLD010:@1(hr010):], visited Sept. 8, 2005.

22 Unpublished statement of Leonidas Ralph Mecham, Director of the Administrative Office of
the United States Courts, House Committee on Appropriations, Subcommittee on Commerce,
Justice, and State, the Judiciary and Related Agencies, 108th Cong., 1st sess., Mar. 27, 2003, pp.16-
17.

23 Statement of Leonidas Ralph Mecham, Director of the Administrative Office of the United
States Courts, House Committee on Appropriations, Subcommittee on Commerce, Justice, and
State, the Judiciary and Related Agencies, 108th Cong., 2nd sess., Mar. 11, 2004; retrieved through
CQ.com, available at [http://www.cq.com/display.do?dockey=/cqonline/
prod/data/docs/html/testimony/108/testimony108-000001051634.html@testimony&meta
pub=CQ-TESTIMONY&seqNum=2&searchIndex=2], visited Sept. 8, 2005.

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Other COOP-related activities carried out in FY2003 and FY2004 included the
development of federal court COOP plans designed to continue delivery of critical court
services in the event of natural or manmade disasters and civic emergencies. With
guidance from AOUSC several courts have begun testing and validating local COOP
plans, and have been provided with enhanced emergency communications systems and
tools. In addition, an instructional CD-ROM is being developed to guide court security
planning and testing.24

In
the
2004 Year-End Report on the Federal Judiciary, Chief Justice William
Rehnquist reported that emergency preparedness and continuity of operations remained
high priorities for the AOUSC, and that “significant progress was made in 2004 in
making courts safer and in ensuring their continued and effective operation in the event
of a crisis.”25

Issues

Policy questions and issues will likely arise as Congress examines the status of
COOP planning in the federal courts and the implications of that planning for overall
judiciary emergency preparedness. Some of the issues regarding judicial COOP planning
include the following.

Role of the Courts in an Emergency. The Constitution mandates the
Supreme Court of the United States and prescribes the statutory establishment of inferior
federal courts. It is, however, silent regarding the continued functioning of the federal
judiciary during or after an incapacitating operational interruption. If a localized
interruption occurs, courts in the affected area could move judges and other court
personnel to judicial facilities in unaffected areas, or reassign cases to other districts or
circuits.26 In more wide-ranging situations where federal courts could not function due to
an extended interruption, the President could temporarily declare martial law and vest
trial court authority in military tribunals convened by commanding officers in the field
dispatched to enforce federal law.27 Congress might explore through oversight what
legislative and administrative mechanisms might be available in situations of extended
interruption to provide for the administration of a civilian judiciary.

________________________________________________________________________

24 Ibid; William H. Rehnquist, “2003 Year-end Report on the Federal Judiciary,” The Third
Branch, vol. 36, no. 1, Jan. 2004, at [http://www.uscourts.gov/ttb/jan04ttb/iv/index.html], visited
Sept. 8, 2005.

25 William H. Rehnquist, “Year-End Report on the Federal Judiciary,” The Third Branch, vol. 37,
no. 1, Jan. 2005, at [http://www.uscourts.gov/ttb/jan05ttb/2004/index.html], visited Sept. 8, 2005.

26 While the Supreme Court building was closed due to anthrax contamination and remediation,
the Court heard arguments in another location — the ceremonial courtroom in the District of
Columbia E. Barrett Prettyman Federal Courthouse. See “Disruptions Taken In Stride as Business
of Government Continues,” The Third Branch, vol. 33 no. 11, Nov. 2001, available at
[http://www.uscourts.gov/ttb/nov01ttb/disruptions.html], visited Sept. 8, 2005.

27 10 U.S.C. 332. See CRS Report RS21089, Continuity of Government: Current Federal
Arrangements and the Future, by Harold C. Relyea.

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Issue
Immediacy.
As the memory of dramatic interruptions such as the
September 11 attacks and anthrax incidents fades, attention to administrative operations
like COOP planning may receive lower priority attention in the federal judiciary.
Emergency preparedness observers note that the success of contingency planning is
dependent on current planning and regular drills, simulations, or other testing.

Budgetary
Constraints.
The current budgetary environment is characterized
by limited resources, coupled with increased demand for a variety of homeland security
protective measures, including judicial branch emergency preparedness and COOP
planning. A possible consequence of the acquisition of technology, infrastructure, and
supplies, such as those that might go into AOUSC’s operations support center, is the
likelihood that such an allocation might reduce resources available for routine court
operations.

Policy and Oversight Questions

Judicial branch OEP and COOP planning raise several questions related to the
oversight of underlying policy matters. Some of these questions include the following:

• How are judicial COOP plans maintained? Where are they physically located, and
what provisions are in place for accessing plans in the event of an interruption?

• What is the general level of preparedness in the judiciary to carry out COOP
plans?

• What is the capacity for GSA to support the establishment and deployment of
OEP plans in court facilities?

• What plans do courts have in place to ensure that they can continue to carry out
their constitutional and statutory duties in the event of an incident that could
potentially disrupt those operations for undetermined periods of time? Which
circuits or districts have established effective COOP programs? To what extent
have those plans been implemented or exercised and practiced?

• How have various plans been upgraded in the aftermath of the autumn 2001
attacks? Have those plans been evaluated, and by what organizations?

• Because COOP plans are typically customized to preserve an organization’s
unique operational needs, how can effective emergency planning in the courts be
evaluated? What standards are to be imposed?

• What are the costs of relocating courts to alternate facilities or other court houses?

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• What procedures are in place to maintain electronic data held by the courts? How
can these resources be accessed if court facilities are unavailable?

• What provisions are in place for alternate computing facilities, including offsite
storage for each court facility?

• What has been the effect of OEP and COOP planning on day-to-day personnel,
office, and technological management?

• What are the implications of COOP planning in relation to record keeping and
archiving of paper-based and electronic information?

• Have FEMA and GSA been effective in supporting the judiciary as it develops
COOP plans? What are the consequences of incorporating FEMA into the
Department of Homeland Security for government-wide COOP management and
administration?

Related CRS Products

Continuity of Operations

CRS Report RS22244. Legislative Initiatives to Temporarily Relocate Federal Courts

Interrupted by Natural or Man-made Disasters, 109th Congress, by R. Eric
Petersen.

CRS Report RL32752. Continuity of Operations (COOP) in the Executive Branch: Issues

in the 109th Congress, by R. Eric Petersen.

CRS Report RL31857. Executive Branch Continuity of Operations (COOP): An
Overview, by R. Eric Petersen.

CRS Report RL31594. Congressional Continuity of Operations (COOP): An Overview of

Concepts and Challenges, by R. Eric Petersen and Jeffrey W. Seifert.