Katrina: Politics, the law and the federal military Posted by: McQ
on Friday, September 09, 2005
Bobby Jindal makes the "el supremo" argument below where he states that in the future, the fed should provide "a single strong leader" to take charge in all future disaster situations. Frankly, that's a dumb idea for a number of reasons.
As New Orleans descended into chaos last week and Louisiana's governor asked for 40,000 soldiers, President Bush's senior advisers debated whether the president should speed the arrival of active-duty troops by seizing control of the hurricane relief mission from the governor.
For reasons of practicality and politics, officials at the Justice Department and the Pentagon, and then at the White House, decided not to urge Mr. Bush to take command of the effort. Instead, the Washington officials decided to rely on the growing number of National Guard personnel flowing into Louisiana, who were under Gov. Kathleen Babineaux Blanco's control.
Point? Guard troops were more immediate, legally endowed with the power to engage in law enforcement, and were at the level of control more responsive to the crisis that would federal troops. Personally, on the pratical side, it makes sense.
And politically, had Mr. Bush attempted to declare the fed was taking control, it would have been fought tooth and nail by the state of Louisiana:
Aides to Ms. Blanco said she was prepared to accept the deployment of active-duty military officials in her state. But she and other state officials balked at giving up control of the Guard as Justice Department officials said would have been required by the Insurrection Act if those combat troops were to be sent in before order was restored.
In a separate discussion last weekend, the governor also rejected a more modest proposal for a hybrid command structure in which both the Guard and active-duty troops would be under the command of an active-duty, three-star general - but only after he had been sworn into the Louisiana National Guard.
Here we see the crux of the problem. If Louisiana refuses to give up control, then you have two entities struggling for control and a confused operation becomes even more confused. The proper thing to do was what was done, back off at the federal level. My guess is this is the discussion which took place on Air Force One and it was what required Blanco 24 hours to decide.
One of the biggest flaws uncovered in the federal plan, and apparently the state plan, is the failure to plan for loss of a majority of first responders at a local level.
The debate began after officials realized that Hurricane Katrina had exposed a critical flaw in the national disaster response plans created after the Sept. 11 attacks. According to the administration's senior domestic security officials, the plan failed to recognize that local police, fire and medical personnel might be incapacitated.
But that doesn't necessarily mean that it's up to the fed to respond. Had the state adequately planned for such a loss, and then quickly responded with National Guard troops, one could assume that much of the initial problem found in NO (and maybe elsewhere) with the disintigration of local control might have been mitigated. However, the state didn't do that. And frankly, that's where it should have been done (and should BE done) in all future plans. Each state should have a "go to hell" disaster plan that assumes the loss of all first responders in a disaster situation.
And there are the legal issues to consider:
While combat troops can conduct relief missions without the legal authority of the Insurrection Act, Pentagon and military officials say that no active-duty forces could have been sent into the chaos of New Orleans on Wednesday or Thursday without confronting law-and-order challenges.
That is a critical point, and I challenge anyone to tell me how a young trooper from the 82nd Airborne Division, sent into downtown New Orleans on that wednesday could have only limited himself to "humanitarian" duty and not been involved in "law and order" challenges.
He couldn't.
Now you may not like the fact that those are the considerations that kept federal forces out of there, but the fact is, they were. If we're a nation of laws, that's the law.
So, some ask, what about the "Insurrection Act"?
On the issue of whether the military could be deployed without the invitation of state officials, the Office of Legal Counsel, the unit within the Justice Department that provides legal advice to federal agencies, concluded that the federal government had authority to move in even over the objection of local officials.
This act was last invoked in 1992 for the Los Angeles riots, but at the request of Gov. Pete Wilson of California, and has not been invoked over a governor's objections since the civil rights era - and before that, to the time of the Civil War, administration officials said. Bush administration, Pentagon and senior military officials warned that such an extreme measure would have serious legal and political implications.
Note the key point in these two paragraphs: "at the request of Gov. Pete Wilson of California". There was no such request forthcoming from Gov. Blanco. She wanted troops, but she also wanted to maintain control of the effort.
Which brings us to the politics:
But just as important to the administration were worries about the message that would have been sent by a president ousting a Southern governor of another party from command of her National Guard, according to administration, Pentagon and Justice Department officials.
"Can you imagine how it would have been perceived if a president of the United States of one party had pre-emptively taken from the female governor of another party the command and control of her forces, unless the security situation made it completely clear that she was unable to effectively execute her command authority and that lawlessness was the inevitable result?" asked one senior administration official, who spoke anonymously because the talks were confidential.
Damned if you do, damned if you don't. But its clear, she wouldn't have gone quietly and that would have already exacerbated the problems in an already problematic relief effort.
The feds have indeed uncovered some flaws in their plans. As Chertoff said:
Officials from the Department of Homeland Security say the experience with Hurricane Katrina has demonstrated flaws in the nation's plans to handle disaster.
"This event has exposed, perhaps ultimately to our benefit, a deficiency in terms of replacing first responders who tragically may be the first casualties," Paul McHale, the assistant secretary of defense for domestic security, said.
Michael Chertoff, the secretary of homeland security, has suggested that active-duty troops be trained and equipped to intervene if front-line emergency personnel are stricken. But the Pentagon's leadership remains unconvinced that this plan is sound, suggesting instead that the national emergency response plans be revised to draw reinforcements initially from civilian police, firefighters, medical personnel and hazardous-waste experts in other states not affected by a disaster.
The federal government rewrote its national emergency response plan after the Sept. 11 attacks, but it relied on local officials to manage any crisis in its opening days. But Hurricane Katrina overwhelmed local "first responders," including civilian police and the National Guard.
I agree with the Pentagon's take on this. I also disagree with the contention that the National Guard was "overwhelmed". There is no evidence, at least that I've seen, that that is the case. But I have seen evidence that they while they were standing by in other states ready to go, the call didn't come from Louisiana, in some cases, until thursday. That isn't a federal problem. That is a state problem.
Lots of things starting to turn up now, which we can look at and discuss. It's obvious that there's a lot of revamping which needs to be done at the federal level to make the NRP a more credible and viable plan. It's also obvious that a deep look needs to be made at the legal issues this disaster has brought to the fore.
But the bottom line continues to be, is the best response the response at the lowest level possible, or do we buy into this notion that somehow a centralized effort (with its inevitable bureaucracy) is better?
I think the former is and always will be the best way to go. And I will continue to believe that any effort at a federal level must be in response too and in support of local and state efforts and requirements. To me, the big fix, in all of this, must be at those two levels as they bear the brunt of the initial effort.
Excellent analysis. A worthwhile exercise. Interestingly, this is the first MSM analysis I have seen trying to explain the legal difficulties the federal government encountered because of a pesky federal law enacted nearly 130 years ago.
I have seen trial lawyers freeze in the middle of a trial when confronted with an unplanned difficulty. I understand it also happens in battle. It happened to the Governor in this case. I don’t blame her. It was a tough call for which she had not been trained. But she made the call. To blame President Bush for the consequences of that call simply ignores the facts. Now that the facts are coming out, we’ll see how long the hysteria continues.
It has been the most depressing sight to me since the invasion and 9/11. The only light I have Seen is Gen. Honore. When presented with such a disaster, why would the leadership not bow in the interest of human lives- was it all ego?
The Myth of Posse Comitatus Actually, the Insurrection Act was unecessary. The Stafford Act (invoked by Blanco on Aug 26(?)) allows Fed Troops to engage in Law Enforcement Activities.
http://homelandsecurity.org/journal/articles/Trebilcock.htm Thus, the WH’s excuse doesn’t hold water. Bush screwed up.
Hey Sean, you might want to try reading your cite the next time before you leave it:
Is the Posse Comitatus Act totally without meaning today? No, it remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter.
And Katrina left a purely law enforcement matter in New Orleans.
n 1988, the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. ยงยง 5121-5206, was enacted to support State and local governments and their citizens when disasters overwhelm them. This law, as amended, establishes a process for requesting and obtaining a Presidential disaster declaration, defines the type and scope of assistance available from the Federal government, and sets the conditions for obtaining that assistance. The Federal Emergency Management Agency (FEMA), now part of the Emergency Preparedness and Response Directorate of the Department of Homeland Security, is tasked with coordinating the response.
Got it so far? The law does what? It "defines the type and scope of assistance available from the Federal government, and sets the conditions for obtaining that assistance."
OK?
And that assistance consists of what?
Not all programs, however, are activated for every disaster. The determination of which programs are activated is based on the needs found during damage assessment and any subsequent information that may be discovered.
FEMA/EPR disaster assistance falls into three general categories:
* Individual Assistance - aid to individuals and households; * Public Assistance - aid to public (and certain private non-profit) entities for certain emergency services and the repair or replacement of disaster-damaged public facilities; * Hazard Mitigation Assistance - funding for measures designed to reduce future losses to public and private property.
Some declarations will provide only individual assistance or only public assistance. Hazard mitigation opportunities are assessed in most situations.
Show me where, in that list of assistance, it says anything about "federal troops being authorized to engage in law enforcement".