12
...[a]ny attack, actual or imminent, or series of attacks by an enemy or a
foreign nation upon the United States causing, or which may cause,
substantial damage or injury to civilian property or persons in the United
States in any manner by sabotage or by the use of bombs, shellfire, or
nuclear, radiological, chemical, bacteriological, or biological means or
other weapons or processes."
DEA § 9103(2). As the New York Supreme Court held, the DEA "is not limited to a
nuclear attack or a particular enemy." Daly v. Port Authority of New York and New
Jersey, 793 N.Y.S.2d 712, 716 (Sup. Ct. N.Y. County 2005). So long as the action taken
by the governmental or volunteer agency is one related to "civil defense" in anticipation
of an "attack," liability for damage to property will not attach. DEA § 9193.
Here, it is clear that the City created its OEM command center in
anticipation of an "attack" as defined by the statute. Although Mayor Giuliani may not
have been aware of any particular imminent threat when he promulgated Executive Order
30, he nevertheless concluded, reasonably and with responsible foresight, that a terrorist
attack of some sort in New York was foreseeable. The experiences of the 1993 World
Trade Center bombing, the attempted bombing of the Atlantic Avenue subway station in
Brooklyn, and other attacks in dense urban locations, such as the sarin attack in the
Tokyo subways, impressed on the Mayor the need for a first-rate civil defense plan and a
safe and accessible command center from which to coordinate a response, with
independent sources of power to ensure reliable communications among City agencies
and personnel and with the outside world the crucial aspect of such a command center.
Indeed, the lack of an independent source of power was one problem with the original
command center at One Police Plaza, for a power outage could make it impossible for
Director Jerome Hauer and his team to use the phones during an emergency. (Hauer
