November 1, 2005  

Disaster response

Weak reception for Bush’s proposal to broaden military’s role in domestic emergencies

After four days of submerged neighborhoods, floating bodies, armed looters, toxic flood waters and fetid emergency shelters, the big green Army trucks plowing axle-deep toward the New Orleans Superdome looked like the first thing to finally go right.

“The cavalry has arrived,” besieged locals rejoiced.

In the days leading up to the Aug. 29 arrival of Hurricane Katrina, city, state and federal emergency response officials failed almost every time to make the right decisions in response to the massive storm.

Finally, the military rolled in and took charge.

The scope of the disaster, the disastrous local response and the political pummeling that followed prompted President Bush to propose putting the U.S. military in charge of responding to all big domestic disasters.

“It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces,” Bush said in a Sept. 15 speech from a dry patch in a New Orleans park.

But it’s not a job the military wants.

And it’s a job many others — from members of Congress to governors to civil liberties watchdogs — are reluctant to hand to the Pentagon, particularly active-duty forces.

Defense Secretary Donald Rumsfeld didn’t directly contradict his boss, but when asked about the idea during a Sept. 20 Pentagon press conference, Rumsfeld offered a ringing endorsement of the status quo in which National Guard troops commanded by governors respond to emergencies.

“Of course the Guard, as opposed to the active force, tends to have a higher proportion of people who do things that are appropriate in a domestic setting,” Rumsfeld said. The National Guard has “civil affairs, military police, combat support, combat service support, various types of things like that — as opposed to the active force, which is heavier on artillery, tanks, shooters of various type, and who are less appropriate for the domestic activities.”

But as hurricane recovery progressed and a second hurricane threatened, Bush promoted his idea.

“Is there a natural disaster of a certain size that would enable the Defense Department to become the lead agency in coordinating and leading the response effort?” Bush wondered Sept. 25 as he visited Randolph Air Force Base in Texas to review Hurricane Rita response.

In Washington the next day, Bush called for “a robust discussion” of the idea in Congress because, he said, it “may require a change of law.”

Reaction to that suggestion was overwhelmingly negative.

House and Senate members expressed concern. A poll showed that governors were opposed. The American Civil Liberties Union called it “a very bad idea” with “unforeseen consequences for civil liberties.” Retired military officials generally dismissed it.

“The president is frustrated,” said Sen. John McCain, R-Ariz., when asked for his reaction to Bush’s proposal. “The only people who seemed able to react efficiently were the military.”

But McCain suggested change won’t be coming soon.

“It will require extensive hearings before we would agree to it,” he said. “One thing we know, the system needs to be fixed. Whether this is one of the fixes is the question.”

In a Sept. 29 letter to the president, Sens. Christopher Bond and Patrick Leahy argued against Bush’s proposal.

“We understand the desire to examine the role and responsibilities of the active military in these types of devastating situations,” they wrote. But “the current system that puts the active military in a supporting role is fundamentally sound.”

Bond, R-Mo., and Leahy, D-Vt., are co-chairmen of the Senate National Guard Caucus. Under current law, when disaster overwhelms such local first responders as police and fire departments, governors can call on the National Guard.

“That arrangement preserves local control and state authorities granted under the Constitution,” they wrote. And it “avoids the potentially dangerous use of the active military for law enforcement.”

Putting the active-duty military in charge of disaster response would almost certainly require changes to an 1878 law that limits the use of the U.S. military for domestic law enforcement purposes.

The Posse Comitatus Act was intended to halt abuses by Union Army forces occupying the former Confederate states after the Civil War.

As interpreted today by the Defense Department, the act prohibits military personnel from performing law enforcement duties such as making arrests and seizures, conducting searches and surveillance or stopping vehicles.

The Posse Comitatus Act does not ban the use of federal troops for law enforcement purposes, however. The Insurrection Act permits the president to use military troops to suppress a rebellion.

And presidents have occasionally tapped active-duty military troops for domestic law enforcement missions. In 1992, President George H.W. Bush ordered federal troops to Los Angeles to put down a riot. Before that, Presidents Kennedy and Eisenhower used federal troops in 1962 and 1957 to enforce desegregation laws.

More often, though, federal troops assist law enforcement personnel by providing transportation, communications and capabilities such as border surveillance, but not by making arrests.

Rumsfeld seems unenthusiastic about going beyond that.

During an Oct. 7 meeting with Rep. Ike Skelton, D-Mo., Rumsfeld said the Defense Department had not discussed changes to the Posse Comitatus Act and did not intend to make recommendations that would involve changing the act.

The meeting occurred after Skelton, the senior Democrat on the House Armed Services Committee, wrote to Bush on Sept. 21 asking him to spell out his plans for giving the military a broader role in disaster response.

Rumsfeld’s reticence is reflected by his deputy, Paul McHale, the assistant defense secretary for homeland defense.

In a Sept. 28 appearance before the House Appropriations subcommittee on defense, McHale said that in almost all instances the military should stick to a supporting role in disaster response and wait for a request for help from a governor.

But active-duty military troops might be needed to respond to a “cataclysmic” event, he said.

One such event was played out in a 2003 federal exercise, McHale said. In that scenario, an adversary exploded a nuclear weapon in the United States, killing the governor of the state where the attack occurred.

In that scenario, requiring a request from a governor “may be a less than useful way to engage federal, including military, capabilities,” McHale said.

Lawmakers remained leery.

Rep. John Murtha, D-Pa., said he gets “very nervous” about talk of the military responding to disasters without first being asked by state authorities. And Rep. Randy “Duke” Cunningham, R-Calif., said, “I don’t believe the military ought to take the lead role, but I think there are things we can do to enhance the military’s role.”

Many military scholars are equally unenthusiastic.

“It’s a bad idea,” said James Carafano, who spent 25 years in the Army, taught at West Point and the National Defense University and is a senior fellow at the Heritage Foundation.

“The military has a day job,” Carafano said. “If Hurricane Katrina had happened on the first day of the Iraq war, which would we want the secretary of defense to take care of first?”

And attractive as it seems now, putting the military in charge of disaster response ultimately may not work much better than leaving lead responsibility with the Federal Emergency Management Agency, he said.

“In a disaster, the military would be in charge of commanding troops, but also firemen, union workers, water system guys, electricians,” many of whom may be unable or unwilling to work the way the military does, Carafano said.

“Expecting the military to herd cats better than anybody else is unrealistic,” he said.

Others contend that military troops are simply not appropriate for domestic use.

“Soldiers are trained to be warriors, not peace officers,” said Gene Healy, a senior editor at the Cato Institute, which advocates limited government.

“Soldiers are trained to kill, whereas civilian peace officers are trained to respect constitutional rights and to use force only as a last resort,” Healy wrote in a policy paper on the increasing use of military troops in airports, at border crossings and for domestic operations.

“Putting full-time warriors into a civilian policing situation can result in serious collateral damage to American life and liberty,” he said. “It can also undermine military readiness, because when soldiers are forced into the role of police officers, their war-fighting skills degrade.”

Richard Kohn, a professor of peace, war and defense at the University of North Carolina, maintains that assigning the military to respond to disasters is both bad for the military and unnecessary.

To be effective as the leader of domestic disaster response, the military would have to plan and train for disasters with hundreds of federal and thousands of state and local agencies, Kohn said. The sheer effort would detract from the military’s ability to perform its primary mission, which is to fight and win the nation’s wars, he said.

But beyond that, “disaster response is a civil function. The active-duty military only comes in when there is a total breakdown of law and order, and that’s not typical in American history. That’s happened rarely,” Kohn said.

So far, the president’s plan remains vague.

Sen. John Warner, chairman of the Senate Armed Services Committee, said he asked the Defense Department for more details and has offered to hold hearings “once the president’s views are developed into a specific proposal.”

On the one hand, Warner, R-Va., seems receptive.

“There is no other organization in the country that has the enormous assets, particularly lift assets, and the trained manpower that can be brought to bear immediately as the military,” Warner told reporters on Capitol Hill on Sept. 29.

But he also is wary of federal encroachment into states’ prerogatives.

In a written statement, Warner said, “Expanding the military’s role in responding to large disasters merits close review for two reasons. First, it affects the power of states to respond to emergencies in their own localities, and, second, it would increase the power of the federal government.”

The closer Congress looks, the less attractive increasing the military’s domestic duties will look, predicts Carafano.

“There will be no appetite for this,” he said. “I don’t think it will go anywhere.”