American democracy is rooted in the precepts of federalism—a system of government in which our state governments share power with federal institutions. The Tenth Amendment reserves to the states and to the people all power not specifically delegated to the federal government. Our structure of overlapping federal, state, and local governance… provides unique opportunities and challenges. To meet the terrorist threat, we must increase collaboration and coordination.… Each level of government must coordinate with the other levels to minimize redundancies in homeland security actions and ensure integration of efforts.
NATIONAL STRATEGY FOR HOMELAND SECURITY 2002
On September 14, 2005, before Katrina’s floodwaters had receded, Virginia senator John Warner, chairman of the Armed Services Committee and one of the longest-serving members of Congress, sent a letter to Donald Rumsfeld proposing “a thorough review of the entire legal framework governing a President’s power to use the regular armed forces to restore public order in… situations involving a large-scale, protracted emergency.…”
The president, Warner wrote, “should not have to worry about misperceptions by the public based upon outdated wording that does not accurately describe what the armed forces may be doing in a particular emergency,” referring to the Insurrection and Posse Comitatus Acts. “The only entity in the United States that has the personnel, the equipment, the training, and the logistical capacity to lend support to the National Guard and other State entities in an emergency of this scale is the Department of Defense.”1
Asked about the letter, Pentagon spokesman Lawrence Di Rita responded that Posse Comitatus indeed was a “very archaic law” and that it consequently limited the Pentagon’s ability to defend against twenty-first-century threats.2
The next night, in front of a meticulously prepared and lighted backdrop of St. Louis Cathedral on Jackson Square in New Orleans—a stage that Mayor Ray Nagin called “better than Cinderella’s castle at Disney World” for the work the White House advance team did to fabricate it amidst a blackout 3—President Bush declared: “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.”4
Less than a week later, Rumsfeld, the supposed dissenter in the Katrina coup, wrote to Dick Myers, chairman of the Joint Staff—one of thousands of notes that Pentagon wags labeled “snowflakes” that the secretary showered upon his subordinates. “The only USG [US government] entity currently capable of dealing with many of the key elements of a truly ‘catastrophic event’ is DOD,” Rumsfeld mused, citing “planning, crisis management, prompt deployment of large numbers and appropriate disaster equipment, as opposed to post-crisis domestic reconstruction,”5 practically plagiarizing Senator Warner while parroting the commander in chief. With FEMA on the ropes and the nation clearly looking to the military, Rumsfeld was a sheer opportunist and contrarian. Plus if there was a budget battle to be won in a power shift, the secretary couldn’t resist.
Between the lines, the true authors of Warner’s amendment 6—the very same executive agents who called the people of New Orleans insurgents—had their own parallel plan for unity of command just in case some girl again stood in the way, upending the existing decades-old system of response, built on the precepts of federalism. The White House “lessons learned” report for Hurricane Katrina finally said federalism “has been based on a model whereby local and State governments wait to reach their limits and exhaust their resources before requesting Federal assistance.… In other words, the system was biased toward requests and the concept of ‘pull’ rather than toward anticipatory actions and the proactive ‘push’ of Federal resources.”7
The White House report, which its authors proudly said was written based upon “the facts” and without any tampering or watering-down reviews by any outsiders,8 asserted that catastrophic events and the likelihood of “mass casualty terrorism” demanded that the federal government “actively prepare,” that homeland security more emulate the six-decade-old national security system, that it recognize the demand for a chain of command and unity from the president down to the commander in the field.9 “While we remain faithful to basic constitutional doctrine and time tested principles,” it said, “we must likewise accept that events such as Hurricane Katrina and the terrorist attacks of September 11, 2001, require us to tailor the application of these principles to the threats we confront in the 21st Century.”10
From the very beginning, Rumsfeld thought the Department of Homeland Security a nuisance and a bad idea.11 Now he opined that it would be a waste of taxpayer money to create yet another new institution to deal with a catastrophe on a Katrina scale. So why not, he wondered, create some new class of problem—a “catastrophic event,” be it natural or terrorist—and then designate the Defense Department as the lead agency for such an event? If such an event occurred, rather than waiting for civil government to “pull” items from the military by requesting them, the military would “push” capabilities as it saw needs emerge.12
Rumsfeld was following a snowball down the hill. Yet almost every detail that he cited in his memo to justify a change in policy and law was wrong: he conflated federal troops and the National Guard as being one when bragging about the size of the Pentagon’s response to Katrina; then he complained about restrictions on use of “the military” after he had just talked about how historic the deployment was. Rumsfeld then repeated the official deceit that the Defense Department “does not organize, train, or equip” for the domestic mission; and most important, he ignored the toughest question of all: whether boots on the ground—not rescuers, engineers, or logisticians, but infantry as embodied in the 82nd Airborne Division, were even really ever needed during Katrina, the very kind of contrarian probe that the defense secretary was otherwise famous for.
At a routine Senate hearing on June 12, 2006, the Warner-Bush-Rumsfeld automatic-trigger avalanche gathered mass. Senator Saxby Chambliss of Georgia introduced Section 1076 to the upcoming defense authorization bill: “to clarify the role and use of the Armed Forces for domestic use during natural disasters or other events.” Congress, he proposed, should “update” the Insurrection Act to make explicit the president’s authority to use the armed forces to restore order and enforce federal law in cases where public order has broken down in situations like Katrina. Senator Warner spoke up in support: “The bill includes a provision that would update the provision in Title 10 known as the Insurrection Act to clarify the President’s authority to use the Armed Forces to restore order and enforce Federal laws in cases where, as a result of a terrorist attack, epidemic, or natural disaster, public order has broken down beyond the ability of local law enforcement or State Guard, or a combination thereof, to effectively bring about law and order.”13
Several governors questioned the need for a change that would have the effect, among several things, of taking the National Guard away from them.14 Grumbling continued for months, but the amendment got tucked away in the $500-billion defense bill and passed on September 30, 2006.15 Section 1076 amended the Insurrection Act of 1807 (renamed the Enforcement of the Laws to Restore Public Order statute)16 to explicitly allow the president to use federal troops not just in the event of the four conditions contained in the act—“insurrection, domestic violence, unlawful combination, or conspiracy”—but now also to: “restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that… domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order…”
Senator Patrick Leahy of Vermont led the opposition, stating, “We certainly do not need to make it easier for Presidents to declare martial law. Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy. It creates needless tension among the various levels of government—one can easily envision governors and mayors in charge of an emergency having to constantly look over their shoulders while someone who has never visited their communities gives the orders.”
The implications were enormous, he added, explaining that “using the military for law enforcement goes against one of the founding tenets of our democracy.” He also complained that the amendment was slipped in with little chance of comment, and with no associated hearings.17
Dissent was not restricted to liberal senators. Lindsey Graham, Republican of South Carolina and also a lawyer in the Air Force Reserve, opined on Fox News that he was “not comfortable with suspending local laws and state laws and allowing American military people to come into any community, arrest people and seize property, unless there is a very good reason.” The law of the land established prohibitions against the federal military “coming in and taking over a local community or a state and becoming law enforcement officers,” he said. Graham acknowledged that it might be worthwhile to look more closely at existing laws to make sure the military “can provide assistance” when needed, “but we should not allow the federal government, willy-nilly, to take over state and local functions in terms of law enforcement.”18
The National Governors Association—all fifty governors, Democrat and Republican alike—also expressed concerns about the expansion of federal authority, as did the Council of State Governments and the Adjutants General Association, representing the heads of the all the National Guards. They were joined by the National Guard Association of the United States, representing the rank and file; the National Sheriffs’ Association; and the national Fraternal Order of Police, all demanding that Congress repeal the change in statute.19
Warner-Bush-Rumsfeld had argued in response that what happened in New Orleans hadn’t qualified as an insurrection and that the language was therefore obsolete; they were doing nothing but updating and clarifying authorities the president already had.20 But Section 1076 looked suspiciously like insurance for a future political fight when another governor declined federalization. The new wording gave the president authority to decide when an emergency was outside the capability of a state to maintain public order, and Congress was now implicitly encouraging him to federalize the National Guard at his sole discretion. The “other conditions” phrase in the new law even compelled the New York Times to argue in an editorial that presidential power was being dangerously expanded,21 but except for that, the counterattack against Section 1076 was mostly an inside-Washington affair.
When the Democrats took control of the Senate after the 2006 election and Leahy became chair of the Judiciary Committee, he moved to muster the support needed to repeal the provision. Senator Warner weakly surrendered, saying that he was “receptive to the Senate reviewing this important matter.”22 The National Defense Authorization Act for Fiscal Year 2008, passed in January 2008, returned the Insurrection Act to its previous title and language. The episode was all but forgotten, the XYZ origins of the pull to push and the truth about Katrina never understood, though its stain propelled countless commissions and studies, working groups, “a 180-day plan,” a “New FEMA,” “One DHS,”23 new laws relating to federal government military and civil authorities, new National Preparedness Guidelines and a new National Response Framework (eventually replacing the National Response Plan).24
After much debate, Congress passed the Post-Katrina Emergency Management Reform Act (PKEMRA), directing that most preparedness programs and functions that had been transferred to homeland security headquarters just four years earlier be put back into FEMA, and that the FEMA administrator, elevated in stature and mandated for the future to be a professional and not a political hack, would “integrate FEMA’s emergency preparedness, protection, response, recovery, and mitigation responsibilities to confront effectively the challenges of a natural disaster, act of terrorism, or other man-made disaster.” PKEMRA also expanded FEMA’s mission to integrate preparedness with protection, response, recovery, and mitigation—Washington changes that would precipitate a whole new round of directives and plans and exercises but that were otherwise inexplicable to normal humans. Regional offices would be given greater responsibility, and each would have a Federal Preparedness Coordinator.25 FEMA also got new “push” authorities to enable the agency to do things such as move personnel and equipment before a disaster rather than having to wait for a state request or a federal proclamation.26 And in April 2007, FEMA established a National Preparedness Directorate. By the fifth anniversary of the storm FEMA had increased its permanent full-time employees from 1,700 to 4,457, an increase of approximately 75 percent.27
The National Response Framework issued in January 2008 officially turned one mission, now really three—terrorism, natural disaster preparedness, and dealing with “other emergencies”—into eight. “Man-made crisis” was added to emergency planning to clarify matters; so was ensuring the overall “economic security” of the nation—without defining what that meant—as well as preserving civil rights and civil liberties and aiding in the fight against illegal drug trafficking, that is, if doing so could be connected to terrorism.28 The goal of unity of command that the Bush administration fought for in Katrina was replaced by a kinder, gentler unity of effort. “Even when a community is overwhelmed by an incident,” the Framework stated, “there is still a core, sovereign responsibility to be exercised at this local level, with unique response obligations to coordinate with State, Federal, and private-sector support teams.” Under the Framework, federal, state, local, tribal, private-sector, and nongovernmental organizations were encouraged to work together both prior to and during a domestic emergency to create “a unified single response.”29
Not only did the new Framework rule the day, but the national lesson was that you couldn’t expect a political leader, not at FEMA or at the Department of Homeland Security or even at the White House, to understand a Plan, to pull together all of what was really needed, to be in charge when being in charge was demanded. Nothing was actually resolved: the governors, now particularly alert to the aroma of federal takeover, insisted that they would take command of all military forces (state and federal) under some kind of dual command arrangement, but those who had spent decades with the confines of the national security community knew that such arrangements were contrary to the whole point. And by now, most of the public had accepted their logic.