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October 29, 2007

Law and Terrorism: Legal Issues Arising From The Oklahoma City Tragedy

Written by  John Copenhaver, JD, CDRP
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In the aftermath of a tragedy as senseless and horrifying as the bombing in Oklahoma City, any discussion of legal issues tends to be viewed negatively: who, after all, will ever forget the images of grief and devastation beamed all over the world, and how could such destruction ever be viewed analytically within the context of a factual legal approach? While such an approach may seem heartless, it is a sad reality of American life that the legal proceedings arising out of this monstrous act will go on far beyond the physical repair and restoration efforts currently being undertaken. Consequently, I will examine several of the considerations likely to be litigated over the coming months with the hope that the legal "lessons learned" from the bombing of the Alfred P. Murrah Federal Building can be of some benefit to others in the future.

Framing the Issues

In the aftermath of a disaster, legal issues typically revolve around the question of harm or damage. What damage was done? Who was framed? From a lawyer's perspective, answers to these questions are at least important as the issue of causation (who or what caused the event(s) that resulted in the damage done). Looking at the Oklahoma City situation, it is immediately obvious that many of the occupants of the building at the time of the blast suffered harm - either injury or death. Many people near the blast zone also were injured, and these fatalities and injuries clearly constitute an affected class of persons that have a potential cause of action. However, the concept of "injury" goes far beyond these obvious instances to include many others. Families that lost a "bread winner," businesses that lost use of their facilities and critical activities that were either disrupted or terminated tell the financial toll of this horror, not to mention the utterly indescribable impact of losing loved ones. Numerous other instances of harm suffered as a result of the Oklahoma City bombing will surface, often weeks or even months after the event; in all, the list of victims will continue to grow long after the names of the dead and physically injured have been disclosed. Thus, one of the first major issues to be addressed will be a complete accounting of those individuals and businesses having suffered harm of some kind resulting from the bomb blast.

The second issue will entail qualification of the damage done by the explosion and the ensuing events. Once harm caused by the truck bomb has been established, the legal questions become "what kind(s) of harm" and "how much harm." These questions shape the legal right of the damaged parties to compensation for those damages. On the question of "what kinds of harm", many effects of the bombing are obvious: destroyed or damaged property, medical expenses associated with treating injured victims, the huge cost of cleanup and restoration, and the expenses associated with insurance claims resulting from the blast. Not quite so obvious, however, are many other consequences of this atrocious act: injuries that will leave some victims either partially or completely disabled for life and will require medical attention for indefinite periods, financial damage to local business that will drive some of them into bankruptcy and leave may others struggling to maintain solvency and the terrible emotional and financial traumas suffered by families having lost a loved one to the explosion (in some instances the one person who was the sole means of support for the family).

Qualification of losses suffered will be undertaken in many different ways. For businesses, damage will be calculated in financial impacts: the price of repairing, restoring, or replacing damaged property; revenue streams which were either reduced or eliminated because of the effects of the blast on critical business functions; increased business expenses resulting from coping with the aftermath of the explosion; possibly even losses of market share or competitive positioning caused by the bomb.

Some of this loss will undoubtedly be covered by various forms of insurance, although it is possible that insurance companies may assert defenses against a number of claims (one already being discussed is the "act of war" exclusion, which exonerates insurers from payment of claims resulting from damage caused by the actions of powers hostile to the United States government; while this defense sounds tenuous at best, it may well bring on clarification of the "hostile powers" basis for the exclusion).

Other losses will be borne solely by the businesses themselves. It will undoubtedly be of value to the contingency planning industry to gather information on the levels of planning on the part of affected businesses that existed at the time of the bomb blast, and the ultimate effectiveness of this planning; however, it is likely that these "lessons learned" will always be overshadowed by the terrible personal toll of the explosion, a toll which is more difficult to calculate.

This damage will be reckoned in what seem to be cold-blooded ways; pain and suffering expressed in dollar amounts, the monetary value of lost years of wage-earning potential, and the ultimate distillation of human misery into dollar damages, a process that has caused many to question the humanity of the legal system (not to mention of lawyers). In the final analysis, calculation of the true toll of this tragedy will be accomplished over time and through many means; the final result will be a frightening testimony to man's inhumanity to man.

Who is Responsible?

The issue of causation - who/what played roles in causing this terrible blast - will be hotly contested in courts over the coming months (possible even years), especially since this issue will dictate an answer to another critical question - who pays the damages?

Clearly the person or persons involved in the construction, delivery and detonation of the truck bomb are responsible, however, it is highly unlikely that these twisted individuals will have the financial resources to cover more than a small fraction of the ultimate cost of the bombing. Thus the lawyers will search for responsibility on the part of other parties having "deep pockets" (legalese for the financial capability to pay large damage awards or settlements). Who might some of these "other parties" be, and what kinds of connections to the blast could they have?

For answers to these questions, it will be necessary to reconstruct the entire chain of events leading up to the bombing. Such a reconstruction is not currently available; nevertheless, it is still possible to speculate on possible avenues that legal researchers will take.

For instance, where did the bombers obtain the materials for the bomb, and did the makers and distributors of those materials violate any responsibility to keep such potentially hazardous products from being used as they were used in Oklahoma City? Also, where did the bombers obtain the know-how to construct such a bomb? In moving the bomb to its target, were the bombers able to rent a vehicle because of an actionable lapse in judgement or security procedures on the part of the rental company?

From a different angle, was anyone other than the criminally responsible parties in possession of information that, had it been given to appropriate parties, might have prevented the bombing itself? Again from a somewhat different angle, could the damages resulting from the explosion have been reduced had certain steps been taken that any reasonable person would have taken, but which were in fact not taken? All of these questions and many, many more will be asked as extremely complex issues of accountability are addressed. Only one thing in this process is certain - the final resolution of the legal issues arising from this terrible tragedy will take years to achieve.

Conclusions

It is an ironic reality that tragedies such as the explosion in Oklahoma City underscore the inherent value of our industry, and that such events often serve to provide us with the most valuable "lessons learned."

Certain effects of the bombing are occurring today as ripples from the blast spread outward: increased security at high-risk facilities (federal buildings and other high visibility establishments), scrutiny of the availability of bomb components and bomb-building expertise, and higher levels of surveillance of individuals and groups that represent substantial threats of violence.

Let us hope that, in the wake of such a clear and terrible demonstration that catastrophes can occur at any time and in any place, we as contingency planners can play an increasingly important role in helping to reduce the awful consequences of disaster.


John Copenhaver, JD, CDRP is the Director of Business Continuity Services for BellSouth Businesss Systems. He is also a member of the Disaster Recovery Journal's Editorial Advisory Board.

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