The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
ARTICLE IV, SECTION 4 OF THE CONSTITUTION
Everything about the first meeting of the Council of Governors on February 23, 2010, screamed American Coup: a bipartisan council of ten governors—honorary executive agents—gathering at the Pentagon, outnumbered ten to one by just the lawyers, for a meeting that the Obama White House described as organizing “synchronization and integration of State and Federal military activities in the United States.”1
Across the table from the ten was the national security management: Robert Gates; Janet Napolitano; General Gene Renuart, outgoing commander of NORTHCOM; General Craig R. McKinley, chief of the National Guard Bureau; FEMA administrator Craig Fugate; and Admiral Thad Allen, commandant of the Coast Guard and another man of Katrina fame who had taken over from the hapless Michael Brown just two weeks after landfall. In the back seats, along the walls, were military aides and assistants, more Defense Department and homeland security assistant and deputy assistant secretaries, and White House assistants to the president and assistants to assistants. And also present was John Brennan, assistant to the president for homeland security and counterterrorism, later to be appointed head of the CIA, no doubt checking his BlackBerry for the latest on the kill list, his bifurcated job the epitome of an XYZ lurking within and a country that doesn’t know what it already is.
The Council of Governors is Katrina’s parting gift, conceived to iron out amicable joint custody of the National Guard.2 Initially cochaired by Christine Gregoire of Washington and Jim Douglas of Vermont, the governors represented a broad spectrum, except perhaps that among the five Democrats and five Republicans, Louisiana was noticeably absent.3 Present, though, were the military- and Washington-friendly governors of Maryland and Virginia, both trained and experienced go-betweens for any of the geographically challenged who didn’t understand the extent of Washington’s shadow.
“We now have a formal body to represent the view of the governors so that we have a negotiation partner,” said Paul Stockton, Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs. “We have two chains of government; they both need to be respected,” he added. “Any actions to improve unity of effort must acknowledge, respect, and take advantage of these constitutional dual sovereignties and dual chains of commands. We are going to fail if we have a unity of effort approach where one side is poaching on the other’s turf.” His ultimate vision, Stockton said, was a regional approach to disaster response.4
A regional approach: logical and sensible given how disasters really unfold. Yet the demand of the Constitution is that when the federal government comes in on a domestic matter, federalism has to be preserved and local wishes cannot just be shoved aside. What is more, civilian control of the military has to be maintained.
In comments at a 2006 breakfast hosted by the American Bar Association, Republican Paul McHale, the knowledgeable Katrina veteran who had been Stockton’s predecessor, talked about civilian control. Reflecting on The Federalist Papers of Alexander Hamilton, McHale said that rather than fearing some kind of overt takeover, Hamilton was concerned about a dependency that could arise should civilian government look to the military to secure internal order. Hamilton feared that when government started deferring to the military, it would be embarking upon a path that would gradually lead to a total reliance at the price of civil liberties. It is for these reasons that the Founding Fathers created a system in which civilian authority is supreme and the military remains focused on its primary function: protecting the United States from external threat.5
“The Constitution of the United States was not written to support maximum effectiveness in military operations,” McHale went on in congressional testimony about lessons learned from Katrina. “The Constitution was written to establish a federal system of government,” he said, so that at the beginning of any domestic military mission, there will always be a separation between the governors, pursuant to their authorities and in control of their state National Guard forces, and the president, who commands federal forces. “We start any domestic mission with a breach in that principle of unity of command,” proclaimed McHale. In a crisis, the breach can be addressed through federalization of the Guard or invocation by the president of the Insurrection Act. There can be unity of effort, McHale said, but “that means that instead of a command relationship over all those forces, you respect the normal Constitutional paradigm and insist upon close coordination among those forces.” He added emphatically that stripping the Louisiana governor involuntarily of her command and control during Katrina was not the right course of action.6
As McHale hinted, and as the true history of Katrina shows, the whole reason for a Council of Governors arose from flawed premises: first, that a better external response to Katrina was actually possible; second, that somehow the mess created was caused by a flaw in the Constitution, the laws, or the chain of command; third, that the president’s hands were tied in either being able to call up the Guard or in employing federal troops if that was what he wanted; and fourth, that governors needed new arrangements to secure outside help, specifically federal help.7
Yet there they were meeting, committing to a Joint Action Plan on Developing Unity of Effort, to a model Memorandum of Understanding, with the Secretary of Defense agreeing before a crisis to an arrangement of dual command; and to a Pentagon proposal to expand existing authorities to mobilize federal reserves—not the National Guard, but the other military reserves—for domestic emergencies. The states in return would obtain a pledge from Washington that it would never again agitate for a takeover. Together, the council and the administration would create the least provocative arrangement to achieve unity, as former Secretary Gates soothingly called it: “living up to our mutual obligation to protect American lives in the face of catastrophes.”8
While the council deliberated, the army worked out a complex doctrine: in events short of an “extreme emergency,” the secretary of the army would bring a designated dual-status commander onto active duty, or a federal officer would accept a commission from a governor into the state National Guard. The dual-status commander would “hold a federal hat in one hand and a nonfederal hat in the other hand but can wear only one hat at a time.” There would still be two chains of command, with federal troops remaining under presidential control and, of course, never engaging in law enforcement.9 Should any conflicts over authority arise, the federal commander, either in charge of a Joint Task Force or working under the governor’s National Guard dual-status commander, would continue to execute his federal mission separate from the state mission.10
Those new Joint Task Forces in each of the fifty states, the Commonwealth of Puerto Rico, two US Territories, and the District of Columbia were actually step two in the transformation of the Guard’s role. Defense Department–sanctioned, Joint Task Force–ready headquarters in each state would “provide command and control for domestic operations.” Each JTF would predesignate “federally recognized” commanders and staff elements and work with NORTHCOM to facilitate unity.11
After 9/11, step one was when the Defense Department required that all fifty-four entities establish Joint Force Headquarters “to support the Federal missions,” going out of its way to reassure state-level officials that the Pentagon couldn’t order any governor to do anything as long as forces were under state control, except during exceptions.12 Of course, all fifty-four National Guard establishments complied and miraculously decided they needed a single federal-compliant and connected headquarters, portraying the 2003 move as a way to save money by eliminating separate army and Air National Guard headquarters and disbanding State Area Commands that reported solely to the governors.13
Step three was the creation of rapid-reaction forces in each state National Guard to provide a trained and ready “combat arms force” capable of quickly delivering company- and battalion-sized units (300 to 1,800 soldiers), a beefed-up Garden Plot capability, one better trained for regular domestic law enforcement missions. The National Governors Association said these reaction forces would help local and state law enforcement agencies by protecting key sites such as power plants and transportation hubs, establishing roadblocks, and securing weapons of mass destruction incident sites.14
Step four, and the true severing of the local bond, was the creation of ten National Guard homeland response forces, one for each of ten FEMA regions, designed explicitly for regional response. Ever since the Clinton administration, Congress, the federal government, and the states aspired to create some kind of robust domestic chemical, biological, radiological, and nuclear consequence management enterprise—initially intended to be civilian but eventually foisted off on the National Guard—but the force failed to materialize as planned, a casualty mostly of the Defense Department’s aversion to the domestic mission and a big, recalcitrant army that never wanted to commit active duty combat units for domestic cleanup. The National Guard had agitated for new WMD response capabilities before and after Katrina to boost its relevance portfolio,15 and now its efforts began to pay off. Partly as a result of the Guard’s enthusiasm during the Council of Governors, by 2009 it was decided that “homeland response forces” would largely supplant previously conceived-of formations, both for WMD and other missions, from disaster response to law enforcement.16
Regional response runs contrary to American doctrine and constitutional practice, though, precisely because National Guard officers are commissioned by the state, naturally and intentionally in a close relationship with the governor and with greater allegiance to local needs—as well as possessing the requisite local knowledge and aesthetic exemplified in the militia legacy. A concurrent system of dual command breaks that state bond. Each governor can appoint a Joint Task Force commander (certified to serve under federal guidelines), and on the surface, such a commander protects state prerogatives by being in total command of all of the individual domestic forces. In reality, though, the real need for greater state-federal cooperation and agreement is to fill interstate gaps, when National Guard, reserve, and active-duty troops are all operating across porous state borders.17
National Guard forces can cross state lines with gubernatorial approval (during Katrina, that is how they operated in 2005), but when Joint Task Forces operate outside their home state, they split off from being commanded by a governor and become one whole government adjunct, each state serving as subordinate units—their fifty-four separate post-9/11 command centers and homeland security departments and intelligence fusion centers melding into one domestic force more national than anything that previously existed. Multistate operations of the National Guard would be overseen and coordinated by the National Guard Bureau in Washington, improving Pentagon and NORTHCOM “access” to National Guard capabilities18 and providing for more rapid and effective responses across state lines. Federal troops would “consult, coordinate with, and respond to State authorities,” Washington said, but federal troops would remain operationally independent.19 In other words, the National Guard would become in actuality a federal force operating outside the legal and political constraints of federal forces, under a misleading name.
The change had been a long time coming. A year before the Council of Governors meeting on January 28, 2008, the National Guard Empowerment Act was signed, “the most significant and sweeping reforms in the administration and organization of the National Guard” in a hundred years.20 The head of the National Guard Bureau was elevated to being a “principal advisor” to the secretary of defense, the first step toward his joining the Joint Chiefs of Staff, an honor President Obama bestowed upon him in December 2011 and the first addition to the highest military decision-making body since the commandant of the marine corps was added in 1979.21
One might ask, first of all, what the National Guard Bureau is, let alone how it gained such status. (Most active-duty military officers asked that very question, including Chairman of the Joint Chiefs General Martin Dempsey.22) Not only was the bureau yet another Washington staff organization, but its director commanded nothing but his desk, as military people like to say.
“The Guard has grown to become a front-line, twenty-first-century force,” Vermont Senator Patrick Leahy applauded when Congress mandated inclusion of the bureau head as a member of the Joint Chiefs. “This will help clear away those cobwebs and give the Guard a voice in the Pentagon that befits the scale of its missions.”23 In fact, it meant nothing of the sort: the Guard and its congressional supporters had merely won a Washington lobbying battle that turned the Guard into a better homeland first responder, but one more and more under Washington’s direction and control.
In December 2011, all the governors further agreed to establish Contingency Dual-Status Command for emergency responses, the very dual command pushed (and rejected) by the Bush administration during Katrina.24 One commander (chosen and approved by the relevant governor and the president) would command operations and serve the state and federal chains of command. NORTHCOM would train and certify these potential dual-status Joint Task Force commanders. (The first batch of thirty-one National Guards officers was ready to go by mid-2011.25)
In the yearlong debate following the first Council of Governors meeting, a number of governors argued for guarantees that outside state and federal forces—National Guard, active-duty, and reserve—would indeed be commanded by the state under all circumstances. The best they could extract from Washington in the end was “tactical control” of federal troops and the provision of the two-hatted-never-at-the-same-time agreement.26 The agreement was reached in an amicable setting, but the new design, in the words of one military study, just brought “complexity and bureaucracy to the coordination process rather than reducing it.”27 Another study concluded that “while the effect of the dual status command unifies efforts between DOD forces [federal troops and the National Guard]… it does not ensure unified effort between military and civilian agencies.” That would require the Pentagon “to act as a lead federal agency”28—which, under the state of martial life, it does not and cannot, at least not overtly.
One might think that Governor Blanco—long since voted out of office—would be the hero and harbinger of what a model National Guard for the twenty-first century might look like, what with her resisting Washington’s coup and declining to turn over state control to the dual command of subordinated unity. Far from it. Instead, governors and National Guard heads clamored so desperately to be consulted and to be a part of the decision-making, to preserve their role as the first of first responders, and fought so hard for prestigious Washington-conferred titles and authorities, they ultimately weakened the states. The institutions Washington demanded, the command relationships, the necessary technical and procedural commonality, combined with the complex paper trail of “assistance” and mutual support, left the National Guards and state homeland security and intelligence establishments so crisscrossed across state borders and so enmeshed in Washington’s primacies that their very quality as local militia, citizen soldiers, and checks on federal domination was swallowed whole.
And then there are the exceptions, which the governors explicitly accepted as being just two: conditions of invasion or “attack”—homeland defense—and public unrest.29 But two was actually just the beginning. The Pentagon also demanded that it be in charge in any matters that had to do with its bases or its “interests,”30 and there were the additional exceptions of WMD and counterterrorism crisis management and government continuity, not to mention Title 10 missions themselves; Title 10 means “war,” that is, the Guard service in any foreign wars waged by the United States, even when the activity takes place from American soil. The National Guard, in its own domestic operations manual, admits perhaps the biggest exception of all: state leadership, it says, would be overridden if “the [active] military [responded] to an emergency involving the use of a weapon of mass destruction, or a terrorist attack, or threatened terrorist attack that results, or could result, in a significant loss of life or property if the President determines that the requirements for emergency response exceed the capabilities of the local, state, and federal agencies.”31 In other words, for every condition that precipitated negotiations, the outcome was an exception.
The governors certainly mediated a more pleasing outcome than overt federal takeover, and emerged with a more powerful voice by uniting as one, now able to fight more effectively for Defense Department money in Washington battles, not an inconsequential short-term victory. But they did so oblivious to the fact that they are slowly losing control over their own hallowed independent military formations while presiding over the erosion of elected civilian control of America, in blissful ignorance of the dynamics and ambitions that exist between the lines.