JURIST Guest Columnist William Banks of Syracuse University College of Law says that President Bush's proposal after Hurricane Katrina to change the federal Posse Comitatus law to allow a greater military role in the event of natural disasters may not be a good idea from a cultural or military perspective, and may not even be legally necessary...
I hope that cooler heads prevail, for three reasons. First, the DOD does not want the job. Adding emergency response and police work to the military's responsibilities would undermine the combat training instilled in recruits, while the emergency response tasks would require new training and equipment. In addition, force configuration and levels would be affected at a time when the military is stressed by its overseas commitments.
Second, putting the military in charge in a domestic natural disaster cuts against our cultural grain. The United States has been proudly unique in entrusting law enforcement to civilian forces, managed and controlled by civilians. Our federal system has helped cement control over and accountability for law enforcement activities and decisions at the lowest levels of government, closest to the operations being conducted. Our revolutionary and constitutional heritage, fed by experiences in England and of the English military in the colonies, led to the creation of civilian and military spheres in government, and to the unequivocal subordination of the military to civilian authority.
Although laws and traditions have made military presence in the homeland exceptional, the domestic use of troops has been a feature of government since President Washington called out the militia to put down the Whiskey Rebellion in 1794. Since then, federal troops have been occasionally activated to help keep the peace, aid local governments in natural disasters, and enforce federal and state laws. The Constitution contemplates that Congress may call for a military response to extraordinary events in the states (invasion, domestic violence, insurrection), and the President could deploy federal troops to defend the homeland in the event of terrorist attack or similar threat to national security.
In the years just before and after the Civil War, federal troops were sometimes deployed as part of civilian posses to enforce the Fugitive Slave Law before the war, and to enforce Reconstruction laws and to assist federal marshals at the polls in the 1876 presidential election. When it appeared that the eventual victor, Rutherford B. Hayes, won by one electoral vote over Democrat Samuel Tilden, disputes arose over votes in South Carolina, Louisiana, and Florida, where it was alleged that the military presence intimidated voters into voting for the Republican candidates. When counting showed that Tilden had won the election in the popular vote, a political deal was made where Southern Democrats agreed to deliver electoral votes sufficient to hand the presidency to Hayes in return for a promise that federal troops would leave the southern states. Less than two years later, the Posse Comitatus Act was enacted. The PCA makes criminal military participation in executing the laws unless expressly authorized by the Constitution or by Congress.
Third, the current structure for disaster response amply provides for a military role, in subordination to civilian authorities. Although the PCA supplies a general statutory prohibition against domestic use of troops to enforce the law, the constitutional authority of the President and a number of statutory exceptions undercut or counter-balance the rule. The minuet between President Bush and Governor Blanco that was played out as Katrina made landfall was framed in part by laws that give the President the authority, either on the request of a Governor or on his own initiative, to deploy federal troops to provide emergency response and to put down civil disorder, such as looting.
Following the tradition embedded in the PCA, DOD provides support to civil authorities, in coordination with the Department of Homeland Security (the overseer of FEMA), and only when local, state, and other federal resources are "overwhelmed." In addition, the National Response Plan (NRP) provides for a "proactive federal response to catastrophic events" in anticipation of an event "that almost immediately exceeds resources normally available to State and local authorities." If such a federal response is believed warranted by the Secretary of DHS, immediate deployments of federal assets may begin while standard procedures for notification and coordination with States and local governments are completed as time permits. Although Katrina surely qualified as such an event, DHS Secretary Michael Chertoff did not declare Katrina an incident of national significance until the evening after the storm made landfall, too late for a proactive federal response.
The supposed restrictions of the PCA are a red herring in the post-Katrina discussion. The law itself simply states a presumption against military involvement in law enforcement, not a rule. The actual rules provide sufficient authority for any catastrophic contingency, from hurricanes to terrorist attacks with weapons of mass destruction. That is not to say that the availability of troops will abate such a crisis. Moreover, the PCA presumption applies to enforcing the laws, not to providing relief personnel and supplies, equipment, or even medical triage. The NRP and its annexes and incident management system incorporate DOD participation in support of civilian authorities, and equivalent DOD planning documents and doctrine articulate in a fair amount of detail just what DOD can do and how they would do it.
DOD did not perform well during Katrina. Part of the problem was the delay in the President's declaration of a federal emergency and in Secretary Chertoff's declaration of an incident of national significance, both of which had to trigger the military actions. Beyond the politics or leadership failures, however, the storm itself slowed the deployments, and after the storm struck, military bases, roads, and ports were damaged and further slowed their progress.
What should be done to avert another Katrina-like response to a natural disaster? The plans contemplate a "proactive" federal response, led by military assets. However, the decisions that must be made by civilians who may be compromised by countervailing pressures in our federal system cut against a timely DOD deployment. Due to DOD's traditional view that disaster relief is a secondary role, their leadership is more prone to being reactive than proactive. Instead of requiring affirmative decisions by federal officials or a State governor that their assets are "overwhelmed" before requesting DOD assistance, some trusted group of persons outside the immediate crisis could be given the authority to trigger the proactive response and enhanced military participation.
FEMA messed up. Let's figure out why. Maybe it was a leadership problem. Perhaps burying FEMA inside DHS has imposed costs on effectiveness that could not be seen until a crisis like Katrina. The NRP and its procedures and annexes are sound in concept, if not in execution, including the components that call for DOD support. FEMA and DOD have worked effectively together in the past; they should be made to do so again.
Finally, the central impediment to efficient emergency response in the event of natural disaster is our federal system. Mayors and Governors are first line and foundational players in disaster decision making, even where local and State resources cannot mount an effective response. The mechanisms for the President to assert federal control are spelled out roughly, in the Constitution and in some federal laws and planning documents. Those written guides cannot, however, overcome the inevitable need for coordination and political agreement by leaders who each have a large stake in the decisions to be made.
William Banks is Director, Institute for National Security and Counter Terrorism, and Laura J. & L. Douglas Meredith Professor at Syracuse University