Wednesday, September 28

O Crystal Ball tell me when one governor's emergency is another governor's disaster

Before getting to the topic of this post, I want to pass along a letter I received from a reader in Alaska in response to yesterday's Don't Tread on Me post:

"The 72 hours cities are supposed to be able to hold out on their own is 72 hours until help starts arriving. As many people clobbered by Katrina can testify, just because the help is arriving and helping someone, does not mean it is helping you. I'd strongly recommend personal supplies for at least a week. Minimum."

Last night Margaret Warner at PBS NewsHour examined what she termed, "the call by some members of Congress for a review of the use of active military in domestic disasters."

Her guests were Lawrence Korb, former Assistant Secretary of Defense for Manpower and Personnel during the Reagan administration, now a senior fellow at the Center for American Progress, a progressive think tank; and Gene Healy, an attorney and a senior editor at the Cato Institute, a libertarian think tank.

Specifically, they discussed whether the US military be given a more prominent role in responding to natural disasters, whether the military should be used on American soil only as a last resort, the role of FEMA/Homeland Security, and which governing official has the authority to call for help from federalized troops.

(The last issue was touched on by Michael Brown in his testimony yesterday before the Katrina congressional hearing, which Democrat representatives are boycotting; they're calling for an independent commission.)

Gene Healy in particular repeated concerns expressed by Dan at Riehl World View, which I mentioned in yesterday's post. The NewsHour discussion is interesting if you're closely following the issues. Yet perhaps the most interesting thing about the discussion is that never actually addressed the question President Bush raised, even though his question was prominently featured in the introduction to the discussion.

Before moving to Bush's question, here's part of the panel discussion where it picks up on the issue about authority:

"WARNER: [...] on whose say-so should federal troops go in? And the question is: Do you wait for the governor to ask for the help, or should the circumstances be widened under which a president could just, on his own or her own authority say, we're activating American active duty forces?

KORB: Well, I think it's the president's judgment. He has to decide whether in fact the state is up to the job. Now obviously it works better if the state asks them to send the troops in, then you don't have any constitutional issues, but the fact of the matter is the president has to make that judgment.

If, in fact, the state is not up to the job or if the National Guard troops are deployed overseas, for example, as they're being used now, I think this is important for the Pentagon to be planning ahead of time so that when the president makes the decision, they know what to do.

I agree we ought to use National Guard when we can. But remember National Guard troops are trained in the same way active forces are. They're used very much. So the idea that they're under state control doesn't change the way that they've been trained.

WARNER: Is it constitutional, I mean, just under our current system, for a president to usurp the governor's powers in this regard?

HEALY: Well, under -- the Constitution seems to prefer in Article 4 Section 4 that there is a request from the state government -- the Insurrection Act does have a provision that allows even over the objection of the state governor that allows the president to send in active duty military. The president --

WARNER: A certain class of citizens isn't being protected?

HEALY: Well, it's actually when the law -- federal law cannot be enforced. This is what Eisenhower used in Little Rock. I don't think it's something we want to -- the way the law draws a line now is the president should think twice before he does this.

He still has the power in an extraordinary circumstance, but I think there are legitimate reasons that we would want the president to think twice before going in militarily over the objection of the sitting state governor. I think federalism matters here.

WARNER: The final question that came up at this hearing. If homeland security and FEMA were on top of their game in terms of coordination, would we even be having this conversation? Or would it obviate the need for having the military take charge?

LAWRENCE KORB: Well, someday they may be but it's clear to me they're not now. I mean, four years after Sept. 11, the Department of Homeland Security was supposed to be planning for 15 different scenarios. And it's clear to me that they can't handle it. Maybe at some point they might. But I think we don't have time to wait because you could have not only just another natural disaster, another terrorist attack and I would prefer that when the president makes this judgment -- however the circumstances may be -- that it goes quickly and we save more lives.

WARNER: [Gene] What's your view on that?

HEALY: I'm just concerned, you know, after we've seen another instance of colossal government failure on the state, local and federal level and too often the rush to judgment is, well, how can we centralize more power and, you know, use the military to carry out some of these goals?

I'd rather see some examination of what went wrong here and how they can use -- state, local and federal officials can use their considerable powers to deal with disaster relief without having a militarized, you know, federal war on hurricanes which seems to be what a lot of the talk in Washington is centering around."

The last comment got a titter from Warner and her other guest, but whatever "Washington" is making of the issues coming out of the Katrina response, President Bush is asking a highly focused question:
"Is there a circumstance in which the Department of Defense becomes the lead agency? Clearly, in the case of a terrorist attack, that would be the case. But is there a natural disaster which... of a certain size that would then enable the Defense Department to become the lead agency in coordinating and leading the response effort? That's going to be a very important consideration for Congress to think about."
Just so there was no misunderstanding about what Bush meant, Donald Rumsfeld chimed in:
"The reality was that the first responders at the state and local level were, in large measure, victims themselves, and, as such, somewhat overwhelmed by the catastrophic nature of the Hurricane Katrina and the floods that followed. So we had a situation that was distinctively different than the normal situation, which works pretty well for a normal natural disaster or even a normal manmade disaster. And the president's point was that there are some things that are of sufficient magnitude that they require something to substitute for the overwhelmed first responders at the state and local level. And that is the issue that he's thinking about."
That's clear. It's just that Bush's question seems to be getting lost in the shuffle of other questions and considerations. He's looking for an idiot-proof list of conditions. This is the same thing Pundita is looking for -- and I think anyone with sense wants to see. This is because one governor's emergency is another governor's disaster.

Ditto for how different US presidents and mayors would see crisis situations. So how can the military get a clear idea that they're going to be called up for a particular situation, if they have to guess how a particular governor might be thinking?

How can the military do really good planning, if they don't have certain knowledge of the exact conditions under which a presidential order will automatically go into effect?

This is not rocket science; we've passed the point where a particular individual's reading of the Insurrection Act is the only guideline for when the president can override the opinion of a governor.

In a real crisis, there's no time to consult with constitutional lawyers and the Congress because seconds count. The president needs a list of simple questions for a governor. For example, "Have you evacuated the entire city?"

If the answer is "No," glance at the Idiot-Proof List, then put the governor's call on hold and speed-dial the Pentagon.

The Pentagon has also their Idiot-Proof list: If "No" do X, Y, Z.

None of this calls for ruminations on the nature of democracy and limitations of government. I'm really talking about performance-related issues, issues of competence and being able to do your job well under the most severe situations. You cannot expect people to do a good job, if you hand them a crystal ball and say, "Use this to figure out what I mean."

I also think that's the issue informing Bush's question.

Here's the link to the PBS panel discussion.

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