Monday, September 19

When Posse Comitatus met Hurricane Katrina

"Dear Pundita,
Do you think that the Posse Comitatus Act and more broadly American federalism hampered evacuation and rescue efforts with regard to Katrina's strike on the Gulf coast?
Sandy in Glasgow"

Dear Sandy:
The topic you address is implicit in remarks uttered by President Bush during his address to the nation on Thursday:
The storm involved a massive flood, a major supply and security operation, and an evacuation order affecting more than a million people. [...] It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces -- the institution of our government most capable of massive logistical operations on a moment's notice.
Interestingly, the last sentence received only passing mention if that during media discussions, which focused on how to pay for the reconstruction Bush proposed.

I'd say it's not so much federalism as abuse of state power that played a significant role in the unnecessary disasters that accompanied Katrina's hit on the Gulf coast.

Even with the best response there would have been widespread devastation; Katrina was a vicious storm that struck four states hard. But the disasters on top of the devastation just won't stand.

Another sentence in Bush's speech that has gone virtually unremarked:

"Clearly, communities will need to move decisively to change zoning laws and building codes, in order to avoid a repeat of what we've seen."

That was as close as Bush came to reading the riot act to states but Pundita would not have wanted to be in the same room while he was expressing his frank opinion -- not without wearing industrial-strength earmuffs. The pre-Katrina situation with New Orleans housing was horrific, given the city's fragile position below sea level:
''There's a lot of older homes [that can't sustain winds higher than 85 mph], most of these homes are below sea level, most of these homes are termite-ridden,'' said Capt. Lou Robinson, a training instructor with the City of New Orleans Fire Department. ``The newer homes, construction-wise, they just meet minimum requirements. You know, just for cost-effectiveness, they scrimp. The roofs are manufactured with trusses or lightweight metal, but they just don't hold up under extreme conditions.'' [...]

The prevalent hurricane code in Louisiana has been what engineers consider the bare minimum --- that buildings be designed to withstand 100-mph winds.

In 2004, Louisiana approved a higher standard comparable to post-Andrew codes in Miami-Dade and Broward counties, the highest in Florida -- that buildings stand up to gusts of 146 mph.

But the legislature didn't require localities to adopt the new standard. New Orleans and Baton Rouge did, but many local communities have codes that haven't been updated in 10 or 15 years, LSU's Levitan said.

And, he added, the local building industry seems reluctant to adopt hurricane-resistant windows or shutters, which are now required for new construction in Broward and Miami-Dade. Levitan, for instance, is building a wood-framed home, but when his contractor told him he didn't need hurricane straps, he installed them himself.

In any case, New Orleans has seen little new development since adopting the new codes, meaning that most of its structures at best meet the inadequate old standard -- certainly no match for Katrina. And many of those are aging or have been damaged by a Formosan termite infestation.

Worst-case scenario? The city could lose half its homes, Robinson said. [...][1]
Things have come to the point where this nation cannot afford to put up with states that are run like a Third World government. With all the time in the world and the patience of Job, it should be possible to convince American voters that it's slow suicide to keep electing officials who act like 19th Century European colonizers. But right now America is staring down the barrel of the Three Strikes rule. The big worry is that the third strike will be pandemic.

Of course America is a federalist system and there's nothing wrong with the system in principle. However, Louisiana is an example of what happens when there is great abuse of the system. The bottom line is that you just don't stuff hundreds of thousands of people into substandard housing in hurricane alley in a region that's really not fit for human habitation. Not in the 21st Century. Not here in America. And not when a state expects the nation as a whole to help foot the bill for disaster relief and reconstruction.

With regard to the other part of your question: I would guess that if President Bush knew on the Friday before Katrina struck what he knows today about Governor Blanco, he might have gotten around the Posse Comitatus Act. It isn't that hard to do, according to Major Craig Trebilcock, a US military attorney (2):
[...]Through a gradual erosion of the act’s prohibitions over the past 20 years, posse comitatus today is more of a procedural formality than an actual impediment to the use of U.S. military forces in homeland defense.

The original 1878 Posse Comitatus Act was indeed passed with the intent of removing the Army from domestic law enforcement. Posse comitatus means “the power of the county,” reflecting the inherent power of the old West county sheriff to call upon a posse of able-bodied men to supplement law enforcement assets and thereby maintain the peace.

Following the Civil War, the Army had been used extensively throughout the South to maintain civil order, to enforce the policies of the Reconstruction era, and to ensure that any lingering sentiments of rebellion were crushed. However, in reaching those goals, the Army necessarily became involved in traditional police roles and in enforcing politically volatile Reconstruction-era policies. The stationing of federal troops at political events and polling places under the justification of maintaining domestic order became of increasing concern to Congress, which felt that the Army was becoming politicized and straying from its original national defense mission.

The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its role of defending the borders of the United States. [...]

The intent of the act is to prevent the military forces of the United States from becoming a national police force or guardia civil. Accordingly, the act prohibits the use of the military to “execute the laws.” [...]

While the act appears to prohibit active participation in law enforcement by the military, the reality in application has become quite different. The act is a statutory creation, not a constitutional prohibition. Accordingly, the act can and has been repeatedly circumvented by subsequent legislation. Since 1980, Congress and the president have significantly eroded the prohibitions of the act in order to meet a variety of law enforcement challenges. [...]

Congress has also approved the use of the military in civilian law enforcement through the Civil Disturbance Statutes: 10 U.S.C., sections 331–334. These provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property. [...]

Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor
[emphasis mine][3]. In such an instance, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant exception to the Posse Comitatus Act’s underlying principle that the military is not a domestic police force auxiliary.

An infrequently cited constitutional power of the president provides an even broader basis for the president to use military forces in the context of homeland defense. This is the president’s inherent right and duty to preserve federal functions. In the past this has been recognized to authorize the president to preserve the freedom of navigable waterways and to put down armed insurrection. However, with the expansion of federal authority during this century into many areas formerly reserved to the states (transportation, commerce, education, civil rights) there is likewise an argument that the president’s power to preserve these “federal” functions has expanded as well. The use of federal troops in the South during the 1960s to preserve access to educational institutions for blacks was an exercise of this constitutional presidential authority. [...]
However, this is an area of decision-making that can't be left to the last minute to wrangle over. As Bush indicated in his speech, to deal with the kind of devastation Katrina threatened takes federalized troop intervention at the soonest possible moment.

So it's time for the Congress to get down to brass tacks; spell out the exact conditions under which the commander-in-chief can supersede the constitutional authority of governors.

Dropping food, water and medical supplies into a zone already hit by a natural disaster is not a hard improvisational feat for the US military, as the quick response to the tsunami showed. But this is not the same as improvising the evacuation of a city and environs within three days.

The goal is not to force the military into improvisation. For that, a 'culture' has to be established whereby the citizens understand that they are ready to leave when the troops show up to escort them to shelter. And the military needs to do all the evacuation planning and drill well in advance of the evacuation operation.

Reminder to Americans: the role of the soldier is to kill people and break things. If they get really efficient at playing the role there is a conceivable dual use -- that of saving a large number of lives via managing evacuations, relief efforts and quarantines. However, one shouldn't expect Betty Crocker to show up at the door. Once the Department of Defense plays guardian angel, you do things the CENTCOM way.

John Batchelor recently remarked to his audience that Americans prize liberty above order. Yet we all saw that one doesn't have much liberty while stuck in an attic in a flooded house or pacing a roof for days in 90 degree heat. So I think there has to be a better balance achieved between what Americans prize and what we need.

1) Miami Herald

2) The Myth of Posse Comitatus

3) Stafford Act

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