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Jewish World Review Sept. 28, 2005 / 24 Elul, 5765 Make it possible to call the cavalry By Jonathan Gurwitz
http://www.JewishWorldReview.com |
There is no mystery in the fact that the U.S. military, among all of the government institutions that responded to Hurricane Katrina, performed the most capably.
The military, unlike most bureaucracies, is among America's most meritocratic institutions. Embellish a résumé and run some horse shows and you might be qualified to command the nation's largest disaster relief agency. In the military, it doesn't begin to qualify you to command a platoon.
The Katrina disaster is forcing Americans to rethink homeland security and the military's role in it. Washington will naturally focus on the alphabetic jumble of agencies in the Department of Homeland Security. Having gone through a monumental redrawing of bureaucratic lines, the impulse to erase some of those lines and redraw them will be great. In some cases, such as FEMA, it may even be warranted.
But Congress and the White House should consider addressing a more fundamental flaw that Katrina revealed in homeland security planning. That flaw involves federal law.
The Posse Comitatus Act of 1878 generally forbids the federal government from using the active-duty military for law enforcement. As Reconstruction drew to a close, Southern Democrats and their sympathizers saw it as a redress to the expansive federal powers instituted by Abraham Lincoln and his successors during and after the Civil War.
In the two modern exceptions to this rule —the riots that accompanied the 1968 Democratic National Convention in Chicago and in Los Angeles in 1992 following the Rodney King verdict —federal troops supported local law enforcement at the request of local officials.
The Posse Comitatus Act does not prohibit federal troops from participating in humanitarian relief efforts. And the National Guard, operating under the authority of governors, can enforce law and order. But Katrina was a legal and constitutional tempest. Chaos and looting made it impossible for the active-duty military to provide humanitarian relief in lawless areas without also performing police functions. Louisiana Gov. Kathleen Blanco was either unable or unwilling to exercise her National Guard authority or make a formal request to President Bush for federal assistance.
New Orleans Mayor Ray Nagin, meanwhile, was sounding the SOS and pleading for federal help. And Defense Department and Justice Department lawyers were advising President Bush not to breach the Posse Comitatus Act with the politically —if not legally —risky move of invoking the Insurrection Act.
And so New Orleans and its unevacuated residents were for three days effectively abandoned.
In the post-9-11 era, urban disasters that dwarf New Orleans are imaginable in which local and state authorities are incapacitated. The Defense Department has, in fact, developed a "Strategy for Homeland Defense and Civil Support" to deal with such disasters.
In effect, the Pentagon has planned for the active-duty military to act as first responders in times of national crisis. But all the planning in the world is meaningless without the laws to implement it.
At the core of any debate about loosening the restraints of the Posse Comitatus Act lie fundamental issues of federalism. About this sensitive subject, civil libertarians sound legitimate concerns about governmental power and conspiracy theorists hear the whirling blades of black helicopters. Yet surely Katrina has demonstrated that this is a subject the country needs to address.
America's finest institution, and the best fighting force in the world, was prepared to respond when Katrina struck the Gulf Coast. Politics and legal arguments held it back.
Bush and Congress may deem it necessary to shuffle a few bureaucratic deck chairs to save lives in some future disaster. Their efforts might better be devoted to defining a clear set of guidelines under which local leaders can call on the Pentagon for help and the White House can quickly send in the military when overwhelmed officials are unable to make that call.
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JWR contributor Jonathan Gurwitz, a columnist for the San Antonio Express-News, is a co-founder and twice served as Director General of the Future Leaders of the Alliance program at NATO Headquarters in Brussels, Belgium. In 1986 he was placed on the Foreign Service Register of the U.S. State Department.Comment by clicking here.
© 2005, Jonathan Gurwitz |
Arnold Ahlert | |||||||||||
