Chapter 2 The Role of the Military and National Guard in Disaster Response

• Library: Homeland Security and Emergency Management: A Legal Guide for State and Local Governments (ABA) (2018 Ed.)

CHAPTER 2 The Role of the Military and National Guard in Disaster Response Michael Greenberger and Katarzyna Fertala¹

The deployment of federal military troops domestically is among the most controversial issues in disaster and emergency response, and confusion about the President's ability to send active troops delayed federal response after Hurricane Katrina, to catastrophic results. Despite the ongoing controversy about the role of the military in domestic disaster response, the complete breakdown of law and order during a catastrophic emergency was and is sufficient to authorize the President to unilaterally deploy federal troops under the Posse Comitatus Act and the Constitution.

The images of a major American city descending into lawlessness and chaos more characteristic of a war-torn third world country has become burned into the American consciousness in the wake of Hurricane Katrina. Even a decade later, we continue to debate what went wrong, who was to blame, and how to prevent such a tragedy from recurring. The delayed federal response, in particular the failure to quickly send active duty troops and other military assets to Louisiana, has been central to much of the criticism of the response effort. Although bureaucratic and operational ineptitude at the state and federal levels certainly bear their share of the blame for this delay, the primary cause was the President's perceived lack of statutory or constitutional authority to assume command of response efforts by the National Guard or to override Governor Blanco's refusal to allow a unified command structure for active duty federal forces and the National Guard forces under an Army General.²

This perception arose from a narrow interpretation of both the Posse Comitatus Act (PCA),³ which bars the use of federal troops for domestic law enforcement⁴ under most circumstances, and the constitutional principles of federalism and limited government authority. The disastrous consequences of such an interpretation drove Congress to enact the Warner Amendment (subsequently repealed) to the Insurrection Act, which granted the President explicit authority to deploy federal troops without the consent of the affected state to respond to natural disasters and other major domestic emergencies.⁵ Indeed, even before Hurricane Katrina, experts recognized the need for greater military assistance during disaster response efforts. On October 1, 2002, the President established the U.S. Northern Command (USNORTHCOM) "to provide command and control of Department of Defense homeland defense efforts and to coordinate defense support of civil authorities."⁶ Despite the ongoing controversy about the role of the military in domestic disaster response that led to the repeal of the Warner Amendment,⁷ diverse leaders and experts have continued to emphasize the military's critical and indispensable role in responding to catastrophic events.⁸ The Department of Defense itself has acted to enhance the military's response capabilities, assigning an active duty unit as an on-call federal response force for domestic disasters for the first time in the nation's history.⁹ More recently, the National Defense Authorization Act of 2012¹⁰ authorized access to Reserve forces for involuntary activation to provide assistance in the event of a major disaster or emergency, where legal limits had previously prohibited quick deployment of Reserve troops during emergencies.¹¹

Despite the controversy and confusion about the Posse Comitatus Act's restriction on the use of military forces domestically, the Warner Amendment was not necessary to provide the federal government sufficient authority to unilaterally respond to a natural disaster such as Hurricane Katrina. As will be shown in this chapter, the complete breakdown of law and order during a catastrophic emergency was and is sufficient to authorize the President to unilaterally deploy federal troops under the Posse Comitatus Act and the Constitution.

OVERVIEW OF THE POSSE COMITATUS ACT

The PCA prohibits the use of federal troops for law enforcement purposes "except in cases and under circumstances expressly authorized by Congress."¹² The act has been in force since 1878, when it was enacted as part of a backlash against the imposition of federal martial law in the former Confederate States during Reconstruction.¹³ Congress was concerned that the deployment of the military in the South was being used more as a political weapon than as a means of defending the country and maintaining order.¹⁴ As the statutory language shows, however, Congress also recognized that there would be times when domestic military deployment would be necessary and constitutionally permissible.

The PCA applies directly only to active duty federal troops in the Army and Air Force. However, the Department of Defense issued a directive making its restriction on domestic law enforcement activities applicable to the Navy and Marine Corps.¹⁵ The Coast Guard, which is under the control of the Department of Homeland Security and not the Department of Defense, is not covered by the PCA.¹⁶

The status of the National Guard is more complicated because National Guard personnel are simultaneously members of their state militias and the federal Army Reserve.¹⁷ When a National Guard unit is under the command of its state's governor, the PCA does not apply to its actions and it may perform civilian law enforcement functions to the extent permitted by its state's laws. For instance, during the civil unrest in Baltimore following the death of Freddie Gray in April 2015, Maryland Governor Larry Hogan declared a state of emergency and activated the National Guard.¹⁸ In this capacity, having been activated by the governor, the Maryland National Guard could enforce law and order alongside city and state law enforcement officers. However, when the President calls the Guard into federal service, it is part of the active federal military.

Active federal military forces may, without constraint by the PCA, perform a variety of disaster assistance tasks, including delivering supplies and search and rescue operations.¹⁹ They may also assist civilian law enforcement agencies by, for example, providing training or equipment.²⁰ During Hurricane Katrina, the Department of Defense provided active duty federal forces for these purposes, but their deployment to Louisiana was delayed, both because of bureaucratic roadblocks and because of the aforementioned concerns and conflicts about federal command of the overall response effort by federal troops and National Guard forces under state command.²¹ The Bush administration attempted to prevent the latter problem by either having the federal military assume command of all Department of Defense and National Guard personnel or having General Honore, the commander of the Department's Joint Task Force Katrina, assume command of the unified forces after being sworn in as a member of the Louisiana National Guard.²² Governor Blanco rejected both proposals. Federal troops may not, however, participate directly in law enforcement operations, such as riot control or search and seizures, unless authorized by a statutory or constitutional exception to the PCA.²³

STATUTORY EXCEPTIONS TO THE POSSE COMITATUS ACT

There are numerous statutory exceptions to the PCA,²⁴ some—like section 1416(a) of the National Defense Authorization Act for Fiscal Year 1997²⁵—are narrowly drawn to address specific types of crises, and others—like the Insurrection Act²⁶—grant broader authority for the federal military to intervene during times of domestic turmoil. Despite the concerns that hindered federal response efforts during Hurricane Katrina, the federal government recognized in the 2008 National Response Framework (NRF) that the statutory and constitutional exceptions provide adequate authority for a unilateral deployment of federal troops during a disaster of national consequence that overwhelmed state and local response capabilities.²⁷ Nevertheless, this official recognition in the NRF has been undermined by widespread uncertainty about the PCA. Some of this arises because of lay observers' focus on the general prohibition on the use of the military without investigating possible exceptions. Some of it arises from confusion about when and to what extent certain exceptions apply.²⁸

The two principal statutory exceptions that apply across a broad range of catastrophes are the Insurrection Act and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act).²⁹ These statutes are discussed in detail in the following sections. In addition, there are numerous other statutes providing exceptions for certain activities or under certain circumstances, ranging from a statute exempting the Department of Defense's Inspector General from the PCA³⁰ to the Comprehensive Environmental Response, Compensation, and Liability Act.³¹ The principal exceptions are discussed briefly in the following sections.

Insurrection Act

Almost continuously since 1792, the President has possessed the statutory authority to deploy military personnel to suppress insurrections and rebellions.³² The current Insurrection Act was enacted in 1807 and has remained in effect, with very little alteration, for more than 200 years.³³ In its current form, the Insurrection Act permits the deployment of federal military forces to suppress insurrections and domestic violence and to enforce federal law in three circumstances:

> The first provision of the act permits federal military intervention to suppress an insurrection in a state upon the request of that state's governor or legislature.³⁴ President George H.W. Bush used his authority under this provision to deploy troops, at the request of the California governor, to suppress domestic violence in response to the 1992 Los Angeles riots.³⁵
> The second provision of the act permits the President, on his own initiative, to suppress rebellion or enforce federal laws if

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