NOTES

INTRODUCTION

1. In December 2001, when I wrote my first article about Cheney’s underground bunker near Camp David, the White House urged my editors at the Los Angeles Times not to mention specific locations, which they agreed not to do. Weeks later, the locations were revealed anyhow in the news media; See William M. Arkin, “In 21st Century War, 2 Cavemen Stand Out; Strategy: From his underground center, Cheney directs cavern search for Bin Laden,” Los Angeles Times, December 8, 2001.

2. Retired general Tommy Franks, in an interview in the December 2003 issue of Cigar Aficionado magazine (and released to the media on November 21, 2003), said that if the United States is hit with a WMD that inflicts large casualties, the Constitution will likely be discarded. Discussing the hypothetical dangers posed to the US in the wake of 9/11, Franks said that “the worst thing that could happen” is if terrorists acquire and then use a biological, chemical, or nuclear weapon that inflicts heavy casualties.

If that happens, Franks said, “… the Western world, the free world, loses what it cherishes most, and that is freedom and liberty we’ve seen for a couple of hundred years in this grand experiment that we call democracy.” Franks then offered “in a practical sense” what he thinks would happen in the aftermath of such an attack. “It means the potential of a weapon of mass destruction and a terrorist, massive, casualty-producing event somewhere in the Western world—it may be in the United States of America—that causes our population to question our own Constitution and to begin to militarize our country in order to avoid a repeat of another mass, casualty-producing event. Which in fact, then begins to unravel the fabric of our Constitution. Two steps, very, very important.”

3. See, e.g., the chart created in NORTHCOM PowerPoint Briefing, James Terbush, CAPT, USN, MC, MFSCAPT, MFS; Keys to Preparedness: Communication and Relationships, n.d. (2006), obtained by the author.

4. This view is also reflected in Barton Gellman, Angler: The Cheney Vice Presidency, pp. 131–158.

5. Haters with historic amnesia suggest a third possibility: that the plotter was Barack Hussein Obama himself, setting up America for acquiescence to the new Islamic caliphate and socialist dictatorship under the thumb of the international community.

CHAPTER ONE: BETWEEN THE LINES

1. The Program Coordination Division and its responsibility for PEADs are mentioned in one unclassified document: FEMA, Mission and Functions Manual, FEMA Manual 1010.1, February 1, 2001, p. 59.

2. A declassified 1988 Defense Department document explains standby legal authorities: “Existing legal authorities for mobilization actions can be categorized as being available in peacetime, available when the security of the Nation is at grave risk, or available after a Presidential or congressional declaration of national emergency. Standby legal authorities should be prepared and maintained as on-the-shelf legislation, during peacetime, for enactment as needed during a period of rising tensions, national emergency, or war.” See Department of Defense Master Mobilization Plan, DOD 3020.36-P, May 1988, p. 3.

3. Emergency Action Packages are defined in a declassified 1988 Defense Department document: “The Director for Emergency Planning (ODUSD(P)) is responsible for creating a variety of EAPs that come into play upon the declaration of a national emergency. A well-constructed EAP will include all documentation for requesting extraordinary powers in emergency circumstances. Agencies continually must monitor existing EAPs and suggest additions and deletions, as necessary.

“Each EAP contains specific instructions on how mobilization decisions are to be effected across these organizational lines. EAPs will ensure consistent mobilization planning across organizational lines. The EAPs will be updated periodically as determined by the proponent Agency, and will be tested for completeness and effectiveness in appropriate exercises.” See Department of Defense Master Mobilization Plan, DOD 3020.36-P, May 1988, p. 2; Appendix B, B-2.

See also DOD Instruction (DODI) 3020.38, Promulgation and Administration of OSD Crisis Action Packages (CAPs), December 13, 1990. “Another product of the effort is the list of major emergency actions that require decisions by the National Command Authorities as part of mobilization, as well as the policy, planning, and preparedness activities”; DOD Annual Report, FY 1982, p. 287.

4. Executive Order 10346: Preparation by Federal Agencies of Civil Defense Emergency Plans, April 17, 1952. “In 1952, FCDA [Federal Civil Defense Administration] was given a key role in assisting federal agencies with planning for service provision and continued functioning during emergencies (now referred to as “continuity of operations”). President Truman issued an executive order directing federal departments and agencies to consult with FCDA and to “prepare plans for providing [their] personnel, materials, facilities, and services… during… a civil defense emergency” and plans for maintaining continuity of government “during such a time.” See CRS, Federal Emergency Management and Homeland Security Organization: Historical Developments and Legislative Options, June 1, 2006.

5. The Preamble states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

6. When President Truman asked Congress to establish what he called a “national defense council” in 1945, the name was changed to the National Security Council.

7. President Truman assigned civil defense planning responsibilities to the National Security Resources Board in 1949 on the grounds that it was the agency already responsible for civilian mobilization and support of military forces. A Federal Civil Defense Administration would formulate national policy and guide local efforts. Executive Order 10186, December 1, 1950, created the Federal Civil Defense Administration (FCDA) within the Office for Emergency Management, Executive Office of the President. When President Truman signed the Federal Civil Defense Act of 1950 (Public Law 920, 81st Congress) on January 12, 1951, FCDA became an independent agency in the executive branch of the government.

The 1950 act stated that “it is the policy and intent of Congress to provide a system of civil defense for the protection of lives and property in the United States from attack”; protecting lives and property was declared a mission independent of military affairs.

The years 1957 and 1958 represented a turning point in understanding of, and argument concerning, the national purpose of civil defense. The Gaither Report (1957), the RAND Corporation’s Study of Non-Military Defense (1958), and the Rockefeller Brothers Fund study of International Security—The Military Aspect (1958) all saw civil defense as a critical need of the national military posture and strategy of deterrence.

Two reports published in 1958 became key to a battle between the Eisenhower administration and Congress over a proposed $32-billion program to support the building of fallout shelters: the Rockefeller Report, compiled by a board of experts and practitioners directed by Henry Kissinger, and the RAND Corporation report. Eisenhower never relented and even dissolved the FCDA, creating an Office of Civil and Defense Mobilization.

Executive Order 10952, signed by the new president on July 20, 1961, divided the Office of Civil Defense and Mobilization into two new organizations: the Office of Emergency Planning (OEP) and the Office of CivilDefense (OCD). OEP was part of the President’s Executive Office and tasked with advising and assisting the President in determining policy for all nonmilitary emergency preparedness, including civil defense. OCD was assigned to the Defense Department.

8. A later history of postwar civil defense would say: “Three sets of policy problems have dominated the organizational history of modern civil defense: (1) the place of civil defense in national security policy and machinery; (2) the division of responsibility for civil defense between the Federal Government and State and local governments; and (3) the nature of the special governmental powers, particularly for emergency, that civil defense requires.” See IDA, Federal Civil Defense Organization: The Rationale of Its Development, Study S-184, January 1965, p. 7.

9. IDA, Federal Civil Defense Organization: The Rationale of Its Development, Study S-184, January 1965, p. 40.

10. At the height of Cold War panic in the mid-1950s, when war with China over Formosa (now Taiwan) loomed, when fallout and radiation were made real, when intercontinental missiles were newly threatening American territory, Massachusetts governor Christian A. Herter asked the question on everyone’s mind, complaining that the federal government was keeping the states in the dark on how to protect their populations: “We have no idea whether or not raincoats are preferable to cloth coats, whether hands or faces should be kept covered, whether or not riding in an automobile with all windows closed provides a degree of protection, and whether or not radioactive particles permeate windows or the walls of buildings, or seep into cellars,” he said.

The federal government’s response was hardly reassuring: Civil Defense Administrator Val Peterson told the Senate Armed Services Subcommittee in March 1955 that all citizens should build some sort of underground shelter “right now” to prepare for a hydrogen bomb attack. When that happens, he said, “we had all better dig and pray. In fact, we had better be praying right now.” See Department of Transportation, Highway History, Civil Defense 1955.

11. IDA, Federal Civil Defense Organization: The Rationale of Its Development, Study S-184, January 1965, pp. ix, 1.

12. The Suspension Clause of the Constitution (Article I, Section 9, Clause 2) states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.” Although the Constitution does not specifically create the right to habeas corpus relief, federal statutes provide federal courts with the authority to grant habeas relief to state prisoners. Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the executive. The executive does not have the independent authority to suspend the writ.

Application for writ of habeas corpus cases generally involve not guilt or innocence per se, but rather the issue of whether a prisoner is restrained from personal liberty in violation of due process of law. Such due process is guaranteed under the Fourteenth Amendment. The function of the writ, if granted, is to release one from illegal imprisonment.

13. James C. Mercer, Federal Response to a Domestic Nuclear Attack, August 2009, p. 23.

14. The Treaty of Ghent, which ended the War of 1812, was signed on December 24, 1814.

15. National Park Service, Jean Lafitte National Historic Park and Preserve (Chalmette National Historical Park), Historical Handbook Number Twenty-Nine, 1958; U.S. Marshals Service, History—A Pirate, a Marshal, and the Battle of New Orleans, n.d.; http://www.usmarshals.gov/history/duplessis/index.html (accessed October 10, 2012).

16. Major Mynda G. Ohman, “Integrating Title 18 War Crimes into Title 10: A Proposal to Amend the Uniform Code of Military Justice,” master’s thesis, George Washington University School of Law, May 22, 2005, p. 16; Jim Bradshaw, “Andy Jackson, Opelousas solon differed on French patriotism,” Acadiana Diary, The Advertiser (Lafayette, Louisiana), January 10, 2001.

17. President Roosevelt promulgated his Executive Order 5 days after the bombing of Pearl Harbor and under the authority of the Act of April 20, 1918, 40 Stat. 633 (now 18 U.S.C. 2155), the World War I antisabotage act. The president relied on this act to permit him to put guards on private property, during wartime, when civilians were unable to guard the property themselves. Two years later, the Supreme Court validated FDR’s actions as constitutional; forty-four years later, President Reagan and Congress apologized and made reparations for the Japanese and others who were interned.

18. King Kamehameha V Judiciary History Center, “Hawaii Under Martial Law: 1941–1944,” n.d. (2012); http://jhchawaii.net/martial-law (accessed October 15, 2012); Personal Justice Denied, Report of the Commission on Wartime Relocation and Internment of Civilians, Part I: Nisei and Issei, Chapter 11: Hawaii, December 1982; http://www.nps.gov/history/history/online_books/personal_justice_denied/index.htm (accessed October 17, 2012).

19. The Use of Military Tribunals D.C. Circuit Judicial Conference, Remarks of the Chief Justice, June 14, 2002; http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_06-14-02.html; Remarks of Chief Justice William H. Rehnquist, 100th Anniversary Celebration of the Norfolk and Portsmouth Bar Association, Norfolk, Virginia, May 3, 2000.

20. Nagin signed the emergency order on August 27, 2005; see his story in C. Ray Nagin, Katrina’s Secrets: Storms after the Storms, pp. 44–45.

21. “Martial law has been declared in New Orleans as conditions continued to deteriorate” (CBS News, August 30, 2005) and WWLTV (Louisiana), August 31, 2005; both quoted in Supplementary Report of the Findings of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, Presented by the Select Committee on Behalf of Rep. Cynthia A. McKinney, Submitted February 6, 2006, p. 51.

22. A Failure of Initiative: The Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, February 2006, p. 377.

23. The White House, Office of the Press Secretary, Press Briefing by Scott McClellan, James S. Brady Briefing Room, September 1, 2005; http://georgewbush-whitehouse.archives.gov/news/releases/2005/09/20050901-2.html (accessed October 12, 2012). It is important to note that the transcript misspells “martial law,” spelling it “marshal law.”

Blanco also never declared martial law, despite widespread reporting that she did. The State of Louisiana, in fact, had no statute for martial law; on August 26, the governor declared a “state of emergency,” which is what state stature allowed for.

“However, each state has laws granting the governor exceptional executive powers. In Louisiana it is called a state of public health emergency, and when declared it permits the governor to suspend laws, order evacuations, and limit sale of items such as liquor and firearms.… Governor Blanco declared this state of emergency on 26 August 2005, to expire on 25 September 2005”; James L. Clark, “Practical aspects of federalizing disaster response,” Critical Care, 2006; 10(1): 107 [Published online December 14, 2005]; http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1550837/.

24. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 214; Allen G. Breed and David Espo, “Aid vs. Anarchy in New Orleans,” Philadelphia Inquirer, September 2, 2005, p. A18; “Troops Told ‘Shoot to Kill’ in New Orleans,” ABC News (Australian Broadcasting), September 2, 2005, quoted in Lisa Grow Sun, “Disaster Mythology and the Law,” Cornell Law Review, Vol. 96:1131; J. Emery Midyette Jr., Military Analyst, “Resource and Structure of States’ National Guard,” Hurricane Katrina special edition, Joint Center for Operational Analysis (JCOA) Bulletin, June 2006, p. 28; A Failure of Initiative, p. 170.

25. Russel Honoré, Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters (New York: Atria Books, 2009), pp. 126–127.

26. The NGB is responsible for “Coordinating, validating plans for, facilitating, overseeing and supporting multi-state National Guard execution of federally-requested/funded (Title 32) Homeland Security, Homeland Defense and Civil Support missions, as directed.” See NGB Memorandum 10-5/38-101 (Provisional), July 1, 2003, p. 5.

27. DOD News Transcript, Lieutenant General H. Steven Blum, chief, National Guard Bureau, Defense Department Briefing on Ongoing National Guard Response to Hurricane Katrina, September 3, 2005; www.defense.gov/transcripts/transcript.aspx?transcriptid=2084.

28. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 53.

29. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 46.

30. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 36. Clearly Blum was under enormous pressure from the White House as well. At 2 a.m. on the morning of Bush’s announcement, according to one account, Blum called [aide to the governor] Ryder and urged him to get the governor to sign the White House Memorandum and letter. “He accused me of being political and he accused me personally of being responsible for the deaths in New Orleans by not telling the governor to sign,” Ryder said; Christopher Cooper and Robert Block, Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 215. See also A Failure of Initiative, p. 222.

31. The White House, President George W. Bush, Remarks at the US Department of Energy, September 26, 2005; http://www.whitehouse.gov/news/releases/2005/09/20050926.html; The White House, President Discusses Hurricane Effects on Energy Supply, Department of Energy, September 26, 2005.

32. The White House, President Holds Press Conference, October 4, 2005.

The next day, asked to comment on posse comitatus, White House Press Secretary Scott McClellan said “when you’re talking about the response that’s needed for a storm of this magnitude and this scope, it’s certainly something that came into play during all of the discussions.…” The White House, Press Briefing by Scott McClellan; Claude Allen, Assistant to the President for Domestic Policy; and Al Hubbard, Assistant to the President for Economic Policy and Director, National Economic Council; September 16, 2005.

33. The White House, press briefing by Scott McClellan, September 26, 2006.

34. A Failure of Initiative, p. 15.

35. Ann Imse, “Proposal Would Use Military in Disasters,” Rocky Mountain News, October 26, 2005, p. 16A.

36. The final National Response Plan, December 2004, superseded the Federal Response Plan, the U.S. Government Domestic Terrorism Concept Plan (CONPLAN), and the Federal Radiological Emergency Response Plan (FRERP).

37. DHS, National Response Plan, December 2004, p. 43.

38. DHS, Catastrophic Incident Supplement to the National Response Plan, Draft, April 2005, pp. 5–6.

39. President Bush declared Louisiana a major disaster on Saturday, August 27, the day before he declared the same for the states of Alabama and Mississippi. Governor Blanco followed Friday’s state of emergency declaration with the first of many letters issued to President Bush and other federal officials. After the major disaster declaration, Governor Blanco wrote to President Bush, urging him to declare a federal state of emergency for the State of Louisiana under the Stafford Act, which then authorizes federal financial assistance to the state for the expenses it incurs. An emergency declaration is more limited in scope than a major disaster declaration; generally, federal assistance and funding for emergencies are provided to meet a specific need or to help prevent a major disaster from occurring. In 2004, a near-record disaster season, the president issued sixty-eight major disaster declarations and seven emergency declarations. See A Failure of Initiative, p. 63.

40. Hurricane Katrina: A Nation Still Unprepared, pp. 168, 483–484, 555–556; DHS IG, A Performance Review of FEMA’s Disaster Management Activities in Response to Hurricane Katrina, p. 24.

“With respect to Hurricane Katrina, when the Secretary of Homeland Security formally declared the event to be an INS on Tuesday, August 30, 2005, arguably an INS already existed, because two of the four HSPD-5 criteria noted above had already been satisfied”; The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 14.

“Given the well-known consequences of a major hurricane striking New Orleans, the Secretary should have designated an Incident of National Significance no later than Saturday, two days prior to landfall, when the National Weather Service predicted New Orleans would be struck by a Category 4 or 5 hurricane and President Bush declared a federal emergency”; A Failure of Initiative: The Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, February 2006, p. 2.

41. Hurricane Katrina: A Nation Still Unprepared, p. 168, says that Chertoff never declared Katrina a “catastrophic incident,” a more severe designation that would have made a difference, creating a “proactive national response to a catastrophic incident.

“In a catastrophic situation, however, the traditional mode of operation under the Stafford Act may not serve the Act’s purposes because state and local governments may become so overwhelmed that they can’t effectively make specific requests for assistance. In such circumstances, the federal government may have to act without a request from a state. The NRP explicitly provides for a proactive federal response in the Catastrophic Incident Annex (NRP-CIA). The NRP defines a catastrophic event as ‘any natural or manmade incident, including terrorism that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions.’ According to the NRP, only the secretary of homeland security or the secretary’s designee may initiate implementation of the NRP-CIA. The NRP-CIA recognizes that, in a catastrophe, “federal and/or national resources are required to augment overwhelmed state, local, and tribal response efforts” and therefore provides for the identification and rapid deployment of essential resources expected to be urgently needed to save lives and contain incidents. The NRP-CIA provides that standard procedures regarding requests for assistance ‘may be expedited or, under extreme circumstances, temporarily suspended’ in the aftermath of a catastrophe”; Hurricane Katrina: A Nation Still Unprepared, p. 212.

42. Chertoff himself did not understand the difference between the principal federal official as defined in the NRP and the federal coordinating officer as specified in the law; A Failure of Initiative, pp. 135–136.

Coast Guard Vice Admiral Thad Allen was appointed deputy PFO for Hurricane Katrina in New Orleans on September 5, essentially supplanting Brown; Michael Brown resigned as FEMA director on September 12. Almost two weeks after Chertoff selected Allen to replace Brown as PFO, the unprecedented decision was made to appoint Allen the FCO for Louisiana, Mississippi, and Alabama in addition to PFO. This step was necessary because DHS eventually recognized that Allen, as the PFO only, did not have the legal authority to commit the expenditure of federal funds or direct federal agencies under delegated authority from the president.

43. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 42. The JFO was established on September 12, 2005, and even then, it was not located with the State Emergency Operations Center in Baton Rouge.

44. “Over the past several months, we have become more than familiar with the disaster declaration process outlined in the Stafford Act. We understand the goals, structure and mechanisms of the National Response Plan. We’ve digested the alphabet soup of ‘coordinating elements’ established by the Plan”; A Failure of Initiative, p. x.

45. “The National Response Plan was used in response to Hurricane Katrina, but it fell far short of the seamless, coordinated effort that had been envisioned. Problems ranging from poor coordination of federal support to confusion about the roles and authorities of incident managers to inadequate information sharing among responders plagued the response to this catastrophic disaster”; DHS IG, FEMA’s Preparedness for the Next Catastrophic Disaster—An Update, p. 15.

46. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 94.

47. “That would have given more rapid opportunity for Federal forces to flow into the State to be able to assist us with the evacuation,” General Landreneau later testified; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 48; Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 173.

48. “Only once has martial law existed in U.S. history: following the attack on Pearl Harbor on 7 Dec. 1941, martial law went into effect for the Territory of Hawaii and lasted nearly three years”; Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, p. 143.

The fiction is repeated in Commanders Martha LaGuardia-Kotite and David L. Teska, US Coast Guard Reserve, “Team of Teams: All-Hazard Incident Response Operations Call for U.S. Military Emergency Preparedness Liaisons,” in Center for Army Lessons Learned, Support to Civil Authorities: Protecting the Homeland Newsletter, July 2010, p. 97.

49. Department of the Army, Field Manual 3-28, Civil Support Operations, August 20, 2010, p. 5-4.

50. In June 1954 Albert Patterson, the nominee in question, was killed on a street in Phenix City. Alabama governor Gordon Persons declared martial law in Phenix City and dispatched the Alabama National Guard to take over the city. The commander of the National Guard appointed a military mayor, and the troops took control of the county courthouse and city hall. The troops physically removed certain officials from the courthouse and city hall, seized gambling equipment, and revoked liquor licenses.

Deploying federal troops under the Insurrection Act, as was done openly in Los Angeles in 1992 or other cases during the 1960s, is not synonymous with and does not require martial law; in fact, the law and government regulations implementing it are clear that the role of the military in such cases is to support, not supplant, civil authority.

51. DOJ PowerPoint Briefing, Military Assistance to Civilian Law Enforcement, November 15, 2003, obtained by the author. One law review article makes the claim that martial law has been declared nine times since World War II; E. W. Killam, “Martial Law in Times of Civil Disorder,” Law and Order, vol. 37, issue 9 (September 1989), pp. 44–47.

52. “In the United States,” says West’s Encyclopedia of American Law (2005), “martial law has been instituted on the national level only once, during the Civil War, and on a regional level only once, during World War II.”

53. One study states: “There is no statutory or explicit constitutional authority for the invocation of martial law or the use of the military for civil governance, generally. The constitutional mandate of the President to ‘take Care that the Laws be faithfully executed’ and of the Congress to ‘call forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions’ have been cited as the authority for the use of martial law, and judicial decisions have indicated that martial law, properly limited in scope and time, is an appropriate tool for exigent circumstances.” SAIC (for DTRA), Preliminary Report on Literature Search for Legal Weapons of Mass Destruction Seminars, March 26, 2002, p. 8.

54. By the time of Lincoln’s inauguration (March 4, 1861), seven states announced their secession from the Union; the Confederate provisional government was established on February 4, 1861, and Jefferson Davis was elected and installed as president of the Confederacy on February 18, 1861. An army was being mobilized by the secessionists. On April 19, Lincoln issued a proclamation establishing a blockade on the ports of the secessionist states. By a proclamation of May 3, Lincoln ordered that the regular army be enlarged by 22,714 men, that navy personnel be increased by 18,000, and that 42,032 volunteers be sought for three-year terms of service, a direct challenge to Congress because Article I, Section 8 of the Constitution specifically endows Congress with the power “to raise and support armies.” Lincoln suspended the writ of habeas corpus in a special message to Congress on July 4, 1861. On September 24, 1862, he issued a proclamation declaring martial law and authorizing the use of military tribunals to try civilians who were believed to be “guilty of disloyal practice” or who “afford[ed] aid and comfort to Rebels.”

Congress subsequently legislatively authorized, and thereby approved, the president’s actions regarding increasing armed forces personnel and other emergency actions; CRS, Harold C. Relyea, Specialist in American National Government, Government and Finance Division, National Emergency Powers, Updated August 30, 2007.

The martial law declared by Lincoln during the Civil War spawned important legal challenges, one being Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 18 L. Ed. 281 (1866). Lamdin Milligan, a civilian resident of Indiana, was arrested on October 5, 1864, by federal military forces. He was charged with five offenses: conspiring against the United States, affording aid and comfort to rebels, inciting insurrection, engaging in disloyal practices, and violating the laws of war. Milligan was tried, found guilty, and sentenced to prison by a military court. Although the habeas corpus petition had been suspended, the Supreme Court accepted Milligan’s petition for a writ of habeas corpus. The Supreme Court held that neither the president nor Congress could give federal military forces the power to try a civilian who lived in a state that had federal courts. Milligan firmly established the right of the US Supreme Court to review the propriety of martial law declarations.

55. Code of Federal Regulations (annual edition), July 1, 2002 Edition, Title 32—National Defense, Chapter V—Department of the Army, Subchapter A—Aid of Civil Authorities and Public Relations, Part 501—Employment of Troops in Aid of Civil Authorities, Sec. 501.4—Martial law, pp. 8–9; http://www.gpo.gov/fdsys/pkg/CFR-2002-title32-vol3/html/CFR-2002-title32-vol3-sec501-4.htm (accessed August 5, 2012).

56. JCS, “Basic Planning Directive for Land Defense of the Continental United States and Military Support of Civil Defense,” February 15, 1983, pp. 20–21 (partially declassified and released under the Freedom of Information Act), says the following about martial law: “.… An essential objective of martial law is to create conditions wherein civil government can be rapidly reconstituted. The justification for martial law is public necessity. Such necessity gives rise to the imposition justification, and limited duration of martial law. The extent of the military force used and the legal propriety of the measures taken, consequently, will depend upon the actual threat to order and public safety that exists at the time. In most instances, the decision to impose martial law is made by the President. Normally, the President announces the decision by a proclamation usually containing instructions concerning the exercise of martial law and any limitations thereon. However, the decision to impose martial law may be made by the local commander if circumstances demand immediate action and time and available communications facilities do not permit obtaining prior approval from higher authority.… In every case, control will be returned to civil authorities upon receipt of notification from a recognized civilian authority, at an authorized level, that civil authorities are prepared to exercise control.”

57. SAIC (for DTRA), Preliminary Report on Literature Search for Legal Weapons of Mass Destruction Seminars, March 26, 2002, pp. 8–9.

58. Lieutenant Colonel Mark C. Weston, Review of the Posse Comitatus Act After Hurricane Katrina, March 15, 2006, p. 8.

59. Lieutenant Colonel Mark C. Weston, Review of the Posse Comitatus Act After Hurricane Katrina, March 15, 2006, p. 8.

60. JCS, Basic Planning Directive, February 15, 1983, pp. 20-21, obtained by the author.

61. A new term was also tried out: “domestic support operations,” a sort of counterpart to peacekeeping operations overseas, but with similar doctrines; Department of the Army/US Marine Corps, Field Manual (FM) 100-19/Fleet Marine Force Manual (FMFM) 7-10, Domestic Support Operations, July 1993.

62. DOD Directive 3025.1, Military Support to Civil Authorities (MSCA), January 15, 1993; DOD Directive 3025.12, Military Assistance for Civil Disturbances (MACDIS), February 4, 1994, Para 4.2.7; DOD Directive 3025.15, Military Assistance to Civil Authorities, February 18, 1997.

63. Richard Reeves, President Kennedy: Profile of Power (New York: Simon & Schuster, 1993), pp. 29–30.

64. The Operation Alert story is told primarily from Matthew L. Conaty, “The Atomic Midwife: The Eisenhower Administration’s Continuity-of-Government Plans and the Legacy of ‘Constitutional Dictatorship,’ ” Rutgers Law Review, vol. 62, no. 3, Spring 2010; Guy Oakes, The Imaginary War: Civil Defense and American Cold War Culture (New York: Oxford University Press, 1994); Federal Civil Defense Administration, Progress Report Fiscal Year 1955, Annual Statistic Report, June 30, 1955; National Archives, Office of Civil and Defense Mobilization, unscheduled records assigned to RG 304 and RG 396 at the Washington National Records Center.

65. Innis D. Harris, Deputy Assistant Director for Plans and Readiness, Office of Defense Mobilization, Presentation at the Industrial College of the Armed Forces, Lessons Learned from Operations Alert 1955–57, April 30, 1958.

66. Herbert Brownell with John P. Burke, Advising Ike: The Memoir of Attorney General Herbert Brownell (Lawrence, KS: University of Kansas Press, 1993), p. 274.

67. See JCS, Basic Planning Directive, February 15, 1983, p. 19, obtained by the author.

68. NCS, Briefing, Federal Emergency Plan D, n.d. (1981), AH 134-35, obtained by the author. The best description of the Eisenhower era and the path to PEADs is Matthew L. Conaty, “The Atomic Midwife: The Eisenhower Administration’s Continuity-of-Government Plans and the Legacy of ‘Constitutional Dictatorship,’ ” Rutgers Law Review, vol. 62, no. 3, Spring 2010.

69. Federal Emergency Plan C, first issued in 1957, dealt with full mobilization in anticipation of general war, and later became Federal Emergency Plan Other than Plan D (OTD). Federal Emergency Plan D dealt with continuity of government and national communications “in a Plan D situation,” that is, “in a crippling nuclear attack on the United States.” Federal Emergency Plan D-Minus was later prepared for “during and after a crippling [nonnuclear] attack on the United States, on overseas bases, and on allies.” Other plans from the Eisenhower years included the National Plan for Civil Defense and Defense Mobilization, the Emergency Relocation Plan, the White House Emergency Plan, Mobilization Plan C, and Federal Emergency Plan D-Minus. See US Government Memorandum, Defense Plans—Presidential Emergency Action Documents, February 1, 1961 (partially declassified and released to government attic.org under the FOIA).

70. NCS, Briefing, Federal Emergency Plan D, n.d. (1981), AH 134-35, obtained by the author.

71. NCS, Briefing, Federal Emergency Plan D, n.d. (1981), AH 134-35, obtained by the author. See also US Congress, Intelligence Activities and the Rights of Americans; Book II; Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities; United States Senate, Together with Additional, Supplemental, and Separate Views (“Church Committee”), April 26 (legislative day, April 14), 1976.

72. “Additional resources (1 attorney) are requested to enable the Office of Legal Counsel to conduct a legal review of 48 Presidential Emergency Action Documents (PEADs). PEADs are pre-coordinated legal documents designed to implement Presidential decision or transmit Presidential requests when an emergency situation does not allow for routine staffing and distribution. PEADs have applicability during a national emergency when the President requires immediate authority for, or direction of, emergency activities.” Department of Justice, FY 2001 Budget Request, General Legal Activities, p. 54.

73. “SIES’s National Security Emergency Preparedness (NSEP) program ensures that the U.S. industrial/technology base can respond effectively to the requirements of national emergencies. During FY 2001, SIES staff participated in interagency planning and execution of the joint civilian/military Positive Force 01 emergency mobilization exercise which took place in April 2001 to ensure appropriate civil agency and industrial base activities. Also, SIES staff reviewed three Presidential Emergency Action Documents (PEADs). The Commerce Department continues to lead federal agency response to industrial emergency preparedness planning and implementation of a variety of NSEP programs, and SIES remains a major contributor to ongoing interagency reviews and assessments of the industrial/technology base”; Department of Commerce, Annual Report 2001, Chapter 4: Strategic Industries and Economic Security, p. 4.

74. NRC, Interim pandemic Response Plan, June 29, 2006, p. 7.

75. “Initiated, designed and directed interagency and internal White House review and update of the Presidential Emergency Action Documents; pre-coordinated legal and policy documents designed to implement presidential decisions during an emergency”; Biography of Meghan O’Brien, Director of Continuity, Homeland Security Council, January 2008–January 2009; http://www.linkedin.com/pub/meghan-o-brien/1a/753/1b3.

76. “In order to ensure continuity of government, Defense Secretary Robert Gates has been designated by the outgoing administration, with the concurrence of the incoming administration, to serve as the designated successor during Inauguration Day,” the White House announced. The White House, Office of the Press Secretary, press release, January 20, 2009.

77. In 1973, the secretary of the army was designated DOD executive agent in providing military support for peacetime civil emergencies with responsibility to be the lead organization for all Defense planning and/or response to the civil sector. A two-star general, designated the director of military support (DOMS), served as “action agent” for the secretary, with the authority to task and coordinate an appropriate commander in chief (CINC), based upon the geographical area of occurrence. The commander in chief, forces command (army FORSCOM), was the four-star commander for the continental US, serving as the principal operating agent under the secretary of the army for planning and response for peacetime disasters; he led “the most complex contingency planning effort within DOD.”

78. One might ask why such procedures were developed after the assassination of President Kennedy. In some ways, the actual death of Kennedy was less messy for the Program, and Washington, though vigilant, wasn’t gripped with fear of a Soviet nuclear attack. The Kennedy assassination did precipitate the Twenty-Fifth Amendment to the Constitution and strengthened the “national command authority,” which dealt exclusively with the control of nuclear weapons, but it really wasn’t until the uncertainties that arose with the Reagan assassination attempt that more extensive changes were pondered.

79. See Chapter 9, p. 151, for amplification of the national mission force.

CHAPTER TWO: HIGH WATER OR HELL

1. Hurricane Katrina made landfall at 0610 CDT (1110Z) as a CAT IV hurricane with 145 mph sustained winds near Buras, Louisiana. The basic facts about the hurricane and various government actions, unless otherwise noted, are taken from Louisiana National Guard Timeline of Significant Events Hurricane Katrina, Task Force Pelican, December 6, 2005; USNORTHCOM Hurricane Katrina Timeline (Unclassified/FOUO), n.d.; USCG, Katrina Timeline (Excel spreadsheet), April 20, 2005; NORTHCOM, Significant Events Timeline (2005); AF/A9, Katrina/Rita by the Numbers: Air Force Support to Hurricane Katrina/Rita Relief Operations (report prepared by Headquarters United States Air Force A9, 2006); DOD, Katrina Interim Timeline (Draft), Prepared by OASD HD 10/17/2005 (October 17, 2005); and A Failure of Initiative: The Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, February 2006.

2. Again, there are many basic documents that summarize Katrina’s impact, particularly A Failure of Initiative: The Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, February 2006; Hurricane Katrina: A Nation Still Unprepared; The White House, Office of Homeland Security. Assistant to the President for Homeland Security and Counterterrorism, The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006; Rand Corporation, Hurricane Katrina: Lessons for Army Planning and Operations, 2007. Most of these documents declare 770,000 displaced, while Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 122, more convincingly says 1.2 million fled the greater New Orleans area, leaving about 200,000 “poverty-stricken people and refuseniks behind.”

3. “The National Guard of one state can assist other states responding to a disaster through formal agreements, such as the Emergency Management Assistance Compact (known as EMAC). Typically, this occurs in state active duty, and may transition to Title 32 status upon approval by the Secretary of Defense. When requested by the supported state’s governor and authorized by the supporting state’s governor under a separate memorandum of agreement, National Guard elements deploy to the supported state. The supporting National Guard operates under the operational control of the supported state’s adjutant general. Typically, deployments under an assistance memorandum are limited to a specific period, such as 30 days. Often, military and civilian officials refer to all National Guard forces as ‘Title 32 forces,’ notwithstanding that some of them may be in a state active duty status—without federal funding”; Department of the Army, FM 3-28, Civil Support, 2010, pp. 1–8.

4. Katrina’s Secrets: Storms after the Storms, pp. 115–116, 135. The particular guardsman was later found to have been shot in the foot in an accidental discharge of a military weapon, that of another soldier.

5. The story of the Ohio Guardsmen is told in Specialist Benjamin Cossel, “Evacuating the Superdome,” Buckeye Response Special Edition 2005, pp. 16–17; Major Nicole Gabriel, “Ohio’s 1–148th Infantry soldiers shine in New Orleans’ muck,” Buckeye Guard, Fall/Winter 2005, pp. 16–17; DVIDS, 196th Mobile Public Affairs Detachment (Story ID 3048), New Orleans Police Officers are also victims of Hurricane Katrina, September 18, 2005; James Janega, “Some storm survivors ride out the hardship,” Chicago Tribune, September 4, 2005; “Kosovo a model for US in Iraq,” Washington Times, November 15, 2004.

6. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 12, 103–104. See also Katrina’s Secrets: Storms after the Storms, p. 58.

7. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 14, 19, 104. The Senate Congressional investigation agreed: “According to the Guard and police, the people in the Superdome were very unhappy and anxious, but they were never out of control”; A Failure of Initiative, p. 248.

8. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 100; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 45.

9. Katrina’s Secrets: Storms after the Storms, p. 121.

10. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 4–5.

11. Katrina’s Secrets: Storms after the Storms, pp. 103ff.

12. The Washington Post called Honoré “the Army officer in charge of the military task force set up to respond to Katrina”; Josh White and Peter Whoriskey, “Planning, Response Are Faulted,” Washington Post, September 2, 2005, p. 1; “Commander of the joint task force coordinating military efforts in hurricane relief”; see Eric Schmitt and David S. Cloud, “Military Dealt with Combination of Obstacles Before Reaching Victims,” New York Times, September 3, 2005, p. 1; “the cigar-chomping Louisiana native son who led National Guard units into the city center Friday morning,” see Scott Gold, Alan Zarembo, and Stephen Braun, “Guardsmen Arrive in New Orleans; Pace of Evacuations Is Stepped Up,” Los Angeles Times, September 3, 2005, p. 1; “The three-star Army general tapped to lead the National Guard’s recovery operations along the battered Gulf Coast is a cigar-chomping ‘John Wayne-type dude’ with a Cajun accent”; Andy Geller, “Gen. Ragin’ Cajun,” New York Post, September 3, 2005.

13. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 89; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 17; Hurricane Katrina: A Nation Still Unprepared, p. 478.

On August 28, NORTHCOM headquarters in Colorado deployed an advance Joint Task Force—Forward to Camp Shelby, MS, to reconnoiter and command the entire area. JTF Katrina was formally established at 2200 CDT (10 p.m.) on the evening of August 30 and Honoré was appointed the task force commander. According to DOD, the Joint Task Force headquarters was fully operational on August 31, with 250 personnel in Atlanta providing rear support at JTF-Main.

14. Hurricane Katrina: A Nation Still Unprepared, p. 487. An e-mail to General Rowe J3 (Operations) of NORTHCOM from one of his planners shows that the marines’ preparatory movements were not coordinated with NORTHCOM: “They do not have orders to move out yet but they are inside our [Joint Operating Area] w/out [Joint Task Force Katrina] or [NORTHCOM visibility]”; Hurricane Katrina: A Nation Still Unprepared, p. 494.

The command and its role are comprehensively treated in Top Secret America, pp. 104–127; and Paul McHale, “Critical Mismatch: The Dangerous Gap Between Rhetoric and Readiness in DOD’s Civil Support Missions,” Heritage Foundation SR-115, August 13, 2012.

15. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 165.

16. Disaster: Hurricane Katrina and the Failure of Homeland Security, pp. 192–193.

17. Governor Blanco pleaded with President Bush to send “everything you have got” and even General Landreneau used the same words in his first conversation with Honoré; Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 101.

18. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 102.

19. Ray Nagin observes that when the three highest-ranking political leaders in the state of Louisiana first came to the Superdome, they “didn’t even go over and talk to the suffering people, let alone go inside it”; Katrina’s Secrets: Storms after the Storms, p. 79.

20. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 160.

21. A Failure of Initiative, pp. 2–3. “The choice of Brown as PFO—whether before landfall or after—was poor, even if for no other reason than his animosity toward the PFO concept, the NRP, and DHS, not to mention his lack of emergency-management training and experience”; Hurricane Katrina: A Nation Still Unprepared, p. 170.

22. Disaster: Hurricane Katrina and the Failure of Homeland Security, pp. 81, 188–189, 213. “Brown arrived in Baton Rouge on Sunday evening. He was accompanied by two FEMA press employees, a FEMA congressional-relations liaison, security detail, and his personal assistant, but no operations experts. They traveled on military aircraft; FEMA’s operational personnel took commercial flights. Once in Baton Rouge, Brown went to dinner and to the hotel, but did not go to the state EOC”; Hurricane Katrina: A Nation Still Unprepared, pp. 176, 220.

There is a devastating portrait of Brown’s red-carpet arrival in Baton Rouge in Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 121. “He was… intensely concerned about his physical appearance on TV,” Ray Nagin observed, among other things; Katrina’s Secrets: Storms after the Storms, p. 104.

Honoré also tells the story of trying to get ahold of Brown at a crucial moment on Wednesday night, August 31, only to be told by his staff that he was unavailable because he was at a restaurant eating dinner; Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 109–110.

23. President Bush issued an executive directive in 2003, punctuating the law and designating the DHS secretary as “the principal Federal official for coordinating the implementation of all-hazards preparedness in the United States”; Homeland Security Presidential Directive 8: National Preparedness, December 17, 2003, paragraphs 4 and 5. See also A Failure of Initiative, p. 131.

24. “Secretary Chertoff himself should have been more engaged in preparations over the weekend before landfall. Secretary Chertoff made only top-level inquiries into the state of preparations, and accepted uncritically the reassurances he received. He did not appear to reach out to the other Cabinet secretaries to make sure that they were readying their departments to provide whatever assistance DHS—and the people of the Gulf Coast—might need”; Hurricane Katrina: A Nation Still Unprepared, p. 6.

“In the critical days before landfall, DHS leadership mostly watched from the sidelines, allowed FEMA to take the lead, and missed critical opportunities to help prepare the entire federal government for the response.… In the days before Katrina made landfall, DHS Secretary Michael Chertoff’s efforts in this regard fell short of what was reasonably expected of him.… During the weekend, as Katrina neared New Orleans, there was a need for initiative, for recognition of the unprecedented threat and the equally unprecedented response it required. Leadership—direction, encouragement, a sense of purpose and urgency—was needed. Secretary Chertoff did not provide it”; Hurricane Katrina: A Nation Still Unprepared, pp. 163–165. See also Michael D. Brown and Ted Schwarz, Deadly Indifference: The Perfect (Political) Storm: Hurricane Katrina, the Bush White House and Beyond, p. 92.

25. A Failure of Initiative, p. 131. In his own (very thin) book, Chertoff barely mentions Katrina, and even there, it is to blame “ill-maintained levees” and selfish individuals and the news media; Homeland Security: Assessing the First Five Years, pp. 90–91, 124–126.

Bush calls Chertoff “a brilliant lawyer and decent man who had resigned his lifetime appointment as a federal judge” to take the job of Secretary of DHS; George W. Bush, Decision Points (New York: Crown, 2010), p. 314. Cheney, in his autobiography, says Chertoff “did tremendous work”; Dick Cheney and Liz Cheney, In My Time: A Personal and Political Memoir (New York: Simon and Schuster, 2011), p. 432.

26. Hurricane Katrina: A Nation Still Unprepared, pp. 243–244; Disaster: Hurricane Katrina and the Failure of Homeland Security, pp. 101, 112, 123, 155; Katrina’s Secrets: Storms after the Storms, pp. 105–108. Rumsfeld says in his autobiography that he left before noon after the ceremony to return to Washington; Donald Rumsfeld, Known and Unknown: A Memoir, p. 618.

27. A Failure of Initiative, p. 24; Nicole Gaouette, Alan C. Miller, Mark Mazzetti, Doyle McManus, Josh Meyer, and Kevin Sack, “Put to Katrina’s Test: After 9/11, a master plan for disasters was drawn. It didn’t weather the storm,” Los Angeles Times, September 11, 2005, p. 1.

28. Article I, Section 8 of the Constitution recognizes these state militias, placing the responsibility of “organizing, arming, and disciplining the militia.…” upon Congress, while reserving the training “according to the discipline prescribed by Congress.…” to the states. These constitutionally based dual roles and missions result in each guardsman or -woman holding memberships in either the army or Air National Guard of his or her state and also in the army or Air National Guard of the United States.

The army’s manual on civil support states: “The Constitution also outlines the antipathy of the founding fathers towards the large militaries of the European powers. These men viewed a large standing army answering to the head of state as a continuous threat to civil liberty. Although the founders shared a fear of a large standing army, they also saw the necessity of a national army for the common defense. They balanced this requirement by providing the states with military capabilities. They had ample reasons for this balancing act”; Department of the Army, FM 3-28, Civil Support, 2010, pp. 1–4.

29. The US Code describes this unique dual status as “in federal service” (Title 10), and “when not in federal service” (state active duty or Title 32). Federal service is codified in Title 10 of the US Code, while nonfederal service is covered in Title 32 of the US Code and applicable state law. Hence, the National Guard of the several states may perform state roles and missions in either state active duty of Title 32 status, while only performing their federal training and ancillary federal missions in Title 32 status. Purely federal roles and missions performed as a reserve of the armed forces, i.e., in the Army or Air National Guard of the United States, are performed in a Title 10 status. Conducting National Guard activities under the appropriate state or federal statute is important for establishing presidential or gubernatorial commander-in-chief authority, operational command and control authority, and funding sources.

30. The National Guard operates under one of three statuses: state status (state funding and state control); Title 32 status (federal funding and state control); and Title 10 status (federal funding and federal control). State missions are authorized by executive order of the governor, who reimburses the federal government for utilization of federal equipment and facilities; How the Army Runs, p. 505.

31. Major General Landreneau later testified before Congress: “By Tuesday, the Louisiana National Guard had every resource committed. We had no reserves”; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 45. See also Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 108–109.

President Bush strangely states in his autobiography: “Contrary to later claims, there was never a shortage of Guardsmen available, either because of Iraq or any other reason”; Decision Points, p. 314. It is a statement that is an affirmation of a unique role for the Guard but one that also conflates the difference between the state’s National Guard and the confederated National Guard as a whole.

32. NGB, “Hurricane Katrina: National Guard’s Finest Hour” (from staff reports), August 28, 2006; Brock N. Meeks, “Guardsmen on a rescue and relief mission,” MSNBC.com, August 30, 2005 (updated 8/30/2005 1:35:52 p.m. ET).

33. Under the constitutional guarantee in Article IV, Section 4, of “a Republican form of government” to the states, the president can act only upon receipt of a request from a state’s legislature or from its governor if the legislature cannot be convened.

34. Congress established the Stafford Act to provide assistance “by the federal government to state and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from… disasters.”

35. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, pp. 19, 24, 40; Deadly Indifference: The Perfect (Political) Storm, pp. 3, 56, 150; Known and Unknown: A Memoir, pp. 618, 621.

Bush would write: “Katrina conjures impressions of disorder, incompetence, and the sense that government let down its citizens. Serious mistakes came at all levels…”; Decision Points, p. 310. Rumsfeld said: “Many perceived the response to Katrina as a slow train wreck. Most of the blame for the shortcomings was quickly placed on Washington.… While some of the unfolding criticism was warranted, much of it was not”; Known and Unknown: A Memoir, p. 618.

36. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 5, 57, 139, 163. In the most telling subdrama of the larger American tragedy, the army old guard took great exception to Honoré’s blunt words and foul language, whispering that only a black officer could get away with speaking to the news media like that.

An army study later observed: “Civilian leaders and concerned citizens should arguably remain vigilant so that an Army general does not create a false impression as to what is happening and who is in charge during an emergency. Lieutenant General Honoré’s saturation of the media with news of JTF-Katrina may have ironically focused the public, including the critics, on the federal effort. Had the American public properly understood the role of the federal forces in accordance with tiered response doctrine, then perhaps the Bush Administration would not have endured the public outcry that prompted the change in the Insurrection Act. In any event, Lieutenant General Honoré’s presence in New Orleans influenced nationwide public opinion and subsequent national policy. For a military officer to have such an impact on domestic policy is unusual.” See Major Mark M. Beckler, US Army National Guard, Insurrection Act Restored: States Likely to Maintain Authority Over National Guard in Domestic Emergencies, SAMS Monograph, 2008, p. 43.

37. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 92; Deadly Indifference: The Perfect (Political) Storm, p. 27; Katrina’s Secrets: Storms after the Storms, pp. 47, 70, 77. At least according to Landreneau, Blanco issued “very clear command guidance… very clear, explicit direction”; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 57.

This is not to say that Blanco was rock steady or didn’t make terrible judgments, though refusing to relinquish control wasn’t one of them. The governor’s self-doubt was broadcast later when a conversation with her press secretary was caught on tape. “I really need to call for the military,” she said as an aside during an interview. “Yes you do. Yes you do,” the aide is heard responding. Blanco then admitted, “I should have started that in the first call,” referring to her initial August 26 letter to President Bush. See Lisa Meyers, “How Much Blame Does Gov. Blanco Deserve?” NBC News, October 8, 2005, http://www.msnbc.msn.com/id/9613133/.

38. See Hurricane Katrina: A Nation Still Unprepared, p. 67.

Governor Blanco officially declared a state of emergency at 1800 CDT (6 p.m.), August 26, signing and issuing Proclamation No. 48 KBB 2005, Declaring a State of Emergency. She warned that “Hurricane Katrina poses an imminent threat to the state of Louisiana, carrying severe storms, high winds, and torrential rain that may cause flooding and damage to private property and public facilities, and threatens the safety and security of the citizens of Louisiana.”

On Friday, September 2, Blanco further issued Executive Order KBB 2005-26, declaring a state of public health emergency and facilitating the acceptance of additional medical professional assistance, as well as allowing out-of-state medical professionals to treat those in need of urgent care.

“In Baton Rouge, Governor Kathleen Blanco looked at the latest forecasts on Saturday and took the unusual step of asking President Bush to preemptively issue a disaster declaration for Louisiana, which he did”; Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 104.

39. According to Major General Landreneau, commander of the Louisiana National Guard, “When Governor Blanco declared a state of emergency, I recommended the activation of 2,000 National Guardsmen early on. This activation began a chain of events that initiated our emergency response plan and began the coordination with staff and units to implement preplanned support requirements for response operations. As we gathered more information on the strengthening storm, I recommended to Governor Blanco that we increase the activation to an additional 2,000 soldiers, for a total of 4,000, unprecedented pre-storm in Louisiana”; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 44.

“Blanco canceled a trip she had planned for Saturday [to the Southern Governors Association Conference], even though the National Hurricane Center forecast no more than a 17 percent probability that the storm would hit anywhere within the state”; Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 98; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 204.

40. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 28.

41. Decision Points, p. 315.

42. Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 168.

43. Decision Points, p. 321.

44. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 18, 118, 128.

45. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 118.

46. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 119.

47. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 107, 125–126.

48. “I was committed with dealing with the situation at the convention center and did not meet with him,” Honoré says, matter-of-factly; Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 127.

49. Decision Points, p. 308.

50. Evan Thomas, “How Bush Blew It: Bureaucratic Timidity; Bad Phone Lines; and a Failure of Imagination; Why the Government Was So Slow to Respond to Catastrophe,” Newsweek, September 19, 2005.

51. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 216; Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 213; Katrina’s Secrets: Storms after the Storms, pp. 169–172; Deadly Indifference: The Perfect (Political) Storm, p. 154.

52. Decision Points, p. 309.

53. Decision Points, p. 321.

54. The most extensive description of Addington and his role in the Bush administration is in Barton Gellman, Angler: The Cheney Vice Presidency. See also Stephen F. Hayes, Cheney: The Untold Story of America’s Most Powerful and Controversial Vice President, pp. 313ff.

55. David S. Addington, e-mail to William J. Haynes, Aug. 28, 2005, 8:41 p.m.; provided to committee; filed as Bates no. 000007; quoted in Hurricane Katrina: A Nation Still Unprepared, p. 508. “Mr. Addington recommended that Mr. Haynes prepare a ‘Proclamation to Disperse,’ whereby the President would “immediately order the insurgents to disperse and retire peaceably within their abodes” (10 U.S.C. §334), and executive orders for 10 U.S.C. 332, “Use of militia and armed forces to enforce Federal authority,” and 10 U.S.C. §334, “Interference with State and Federal Law”; p. 542.

56. Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, pp. 182–183.

57. “At that time, because of violent resistance in Western Pennsylvania to a federal tax on the production of whiskey, the President requisitioned 15,000 militiamen from Pennsylvania, Maryland, New Jersey, and Virginia, and placed Virginia Governor, General (Light Horse) Harry Lee, in command. According to Robert Coakley, Washington acted accordingly, ‘issuing a cease and desist proclamation and citing that acts of treason had been committed against the United States,’ which necessitated calling forth the militia”; Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC, April 1968,” master’s thesis, 1994, p. 3. See also Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, pp. 9ff.

58. Decision Points, p. 323; Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 36; Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 215; Hurricane Katrina: A Nation Still Unprepared, p. 70.

59. Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 213–215.

60. Hurricane Katrina: A Nation Still Unprepared, p. 522.

61. A brigade of the 1st Cavalry from Fort Hood, Texas, was included in this package and also deployed, but it was largely an aviation element. Boots on the ground followed and were used in door-to-door search and rescue missions, with a unit of the Texas National Guard embedded throughout the teams, just in case any law enforcement was needed; Hurricane Katrina: A Nation Still Unprepared, pp. 493–495.

62. Hurricane Katrina: A Nation Still Unprepared, p. 493. Donald Rumsfeld would also say that “their very presence had the effect of reducing crime and disorder”; Known and Unknown: A Memoir, p. 619.

63. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, pp. 20–22, 33-34, 162; Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 142; Katrina’s Secrets: Storms after the Storms, p. 90; A Failure of Initiative, p. 219; Armed Forces Information Service (AFIS), Gerry J. Gilmore, “82nd Airborne Division Becomes ‘Waterborne’ in New Orleans,” September 21, 2005; Major Kevin L. Buddelmeyer, Military First Response: Lessons Learned from Hurricane Katrina, p. 11.

CHAPTER THREE: CRITICAL CONDITIONS

1. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, pp. 171–172.

2. NGB, In Katrina’s Wake: The National Guard on the Gulf Coast, 2005, pp. 29–30; Statement of Kenneth W. Kaiser, Special Agent in Charge, Boston Field Office Federal Bureau of Investigation, before the Senate Homeland Security and Governmental Affairs Committee, February 6, 2006.

3. FBI, Eye of the Storm; Our Response to Hurricane Katrina, November 2, 2005.

4. Hurricane Katrina: A Nation Still Unprepared, p. 176; A Failure of Initiative: The Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, February 2006, p. 190.

5. Hurricane Katrina: A Nation Still Unprepared, p. 480.

Conversely, when others were moving of their own initiative, the Joint Chiefs in Washington never moved from their focus on paperwork, even refusing to respond to any requests to render assistance until after the hurricane made landfall; Hurricane Katrina: A Nation Still Unprepared, p. 479. When the Second Fleet commander actually had the audacity to move a ship on exercise in the Gulf of Mexico closer to the coast to prepare it for posthurricane duty, the Office of the Secretary of Defense admonished him for moving without orders; Hurricane Katrina: A Nation Still Unprepared, pp. 194, 479; A Failure of Initiative, p. 224.

6. Louis A. Arana-Barradas, Air Force Print News, “People venture outside Keesler shelters,” August 31, 2005.

7. Air National Guard, “Chronology of the Air National Guard in 2005 Hurricane Rescue and Relief Operations, 19 August–29 November 2005.”

8. The incident is recorded in the documentary Trouble the Water (2008). Officers from the Naval Support Activity are seen saying “Get off our property,” telling neighborhood residents seeking shelter that their responsibility was to “protect the interests of the government… and maintaining the base.”

9. The Federal Protective Service—one of the smallest of the Department of Homeland Security’s many law enforcement components—set up a clandestine team downtown not to take part in any rescue effort or assist the police, but to reconnoiter federal buildings and collect information on the situation on the ground, reporting back to Washington. See Disaster: Hurricane Katrina and the Failure of Homeland Security, pp. 174–175.

10. See Hurricane Katrina: A Nation Still Unprepared, p. 452; Statement of Kenneth W. Kaiser, Special Agent in Charge, Boston Field Office, Federal Bureau of Investigation, before the Senate Homeland Security and Governmental Affairs Committee, February 6, 2006.

11. Disaster: Hurricane Katrina and the Failure of Homeland Security, pp. 232–233.

12. Almost immediately after news of lawlessness emerged, the head of the Louisiana State Police faxed an urgent letter to Principal Associate Deputy Attorney General William Mercer requesting “any assistance” that the Department of Justice could provide; but since there was no formal request from Governor Blanco, Attorney General Gonzales hesitated to move people in. He ordered a surge of federal agents to a staging area in Baton Rouge. Hurricane Katrina: A Nation Still Unprepared, pp. 446, 450; Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 168.

By midnight on September 2, there were over 100 ICE agents in New Orleans; Border Patrol agents took up posts at the Louisiana State University; the federal air marshals of TSA staged at the New Orleans airport; A Failure of Initiative, p. 255.

Governor Blanco issued a written request for law enforcement assistance on September 4 and Gonzales issued an order to Justice law enforcement officers authorizing them to assist the state in enforcing state and local laws; but even then, there was an additional holdup while the state issued deputization credentials; Hurricane Katrina: A Nation Still Unprepared, p. 452.

13. The New Orleans Police Department, at its full strength, was a force of about 1,688 officers. The Louisiana State Police was a force of only 1,050 troopers; Hurricane Katrina: A Nation Still Unprepared, pp. 446, 450.

14. The Louisiana State Police ultimately oversaw the deputization of more than 400 law enforcement officers from other states and more than 3,000 from the federal government; Hurricane Katrina: A Nation Still Unprepared, p. 448.

15. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 171.

16. The National Communications System (NCS) was established after the Cuban missile crisis in 1963, when communications problems were identified not only between the US and the Soviet Union, but also between NATO and foreign heads of state. President Kennedy ordered an investigation of national security communications, and an interdepartmental committee recommended the formation of a single unified communications system to serve the president, Department of Defense, diplomatic and intelligence activities, and civilian leaders. Consequently, in order to provide better communications support to critical government functions during emergencies, President Kennedy established the National Communications System by a Presidential Memorandum on August 21, 1963. The original NCS charter was to “link together, improve, and extend, on an evolutionary basis, the communications facilities and components of the various federal agencies… to provide necessary communications for the federal government under all conditions ranging from a normal situation to national emergencies and international crisis, including nuclear attack.”

On April 3, 1984, President Ronald Reagan signed EO 12472, broadening the NCS’s national security and emergency preparedness (NS/EP) capabilities, superseding President Kennedy’s original 1963 memorandum. The NCS expanded from its original six members to an interagency group of twenty-three federal departments and agencies, and began coordinating and planning NS/EP telecommunications to support domestic crises and disasters.

17. Michael A. Ordonez, Critical Infrastructure Protection: How to Assess and Provide Remedy to Vulnerabilities in Telecom Hotels, Naval Postgraduate School, Master’s thesis, September 2006, p. 4.

18. The Reagan National Security Division Directive 26 (NSDD-26) spelled out the objectives of promoting deterrence, improving natural disaster preparedness, and reducing the possibility of coercion by enemy forces. The unclassified version of NSDD-26 states: “It is a matter of national priority that the United States have a Civil Defense program which provides for the survival of the US population.” However, NSDD-26 went further than PD 41 by stipulating a concrete deadline in 1989 for plans to protect the population, and it mandated that civil defense leaders investigate and enhance protection measures for critical industries in case of attack. NSDD-26 for the first time supported research into the development of strategies to ensure economic survival in the event of a nuclear attack; DHS, Civil Defense and Homeland Security: A Short History of National Preparedness Efforts, September 2006, p. 20.

19. The White House, National Security Decision Directive 207 (NSDD-207), The National Program for Combatting Terrorism, January 20, 1986, originally top secret but since declassified.

20. The White House, National Security Strategy for a New Century, May 1997, pp. 12–14.

21. The White House, Presidential Decision Directive/NSC 63, Critical Infrastructure Protection, May 22, 1998.

22. The White House, Office of the Press Secretary, Strengthening Cyber Security through Public-Private Partnership, February 15, 2000.

23. Other communications companies contacted the federal government seeking help with security, a mission foisted off on the Pentagon, which said it was more suited for the Louisiana National Guard, which of course was stretched beyond limits, so the companies hired private security guards; Hurricane Katrina: A Nation Still Unprepared, pp. 296, 322.

24. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 34.

25. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 61.

26. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 5.

27. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 5.

28. Hurricane Katrina: A Nation Still Unprepared, p. 484.

29. “The National Geospatial-Intelligence Agency (NGA) started collecting key infrastructure-related information (i.e., on airports, hospitals, police stations, emergency operations centers, highways, schools, etc.) well in advance of landfall.… As the storm was tracked, NGA pre-deployed analysts and mobile systems to the affected areas that provided expertise and information on the ground and facilitated the delivery of additional information from NGA offices elsewhere. Because they had assets in place and focused on the region, NGA provided the first comprehensive overview of the damage resulting from the hurricane and flood. NGA merged imagery with other information, creating hundreds of intelligence products per day that could be used and applied by response professionals to aid in decision-making. NGA assessments were multi-dimensional, timely, relevant, and continuous. They addressed many issues, including but not limited to: recovery planning and operations, transportation infrastructure, critical and catastrophic damage, dike stability and breaches, industry damage, and hazard spills. The NGA World Wide Navigational Warning Service also provided navigation information to the US Navy, Merchant Marine, and Coast Guard, and relayed messages from the National Weather Service to people at sea. NGA also aided in the location and recovery of oil platforms. The imagery activities of NGA were essential to the restoration of critical infrastructure”; The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 131.

30. Defense Program Office for Mission Assurance, Dangerous Materials Katrina Impact Zone, September 2, 2005; obtained by the author.

31. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 61.

32. NRO, The National Reconnaissance Office at 50 Years: A Brief History, September 2011, p. 29.

33. Eagle Vision resources from the HQ USAF Combat Support Office (AFCSO), Ramstein Air Base, Germany; Nevada ANG; and South Carolina ANG provided federal, state, and municipal decision makers with 690,000 square kilometers of unclassified commercial space imagery; Air Force Support to Hurricane Katrina/Rita Relief Operations, August–September 2005, p. 11.

34. On August 30, ANG RC-26B from Ellington, Texas, flew the first support and reconnaissance missions. The Air Guard deployed seven RC-26B ISR aircraft and nine crews from eight states to assist in Hurricane Katrina relief operations. During seventeen days of operations, they flew 297.9 hours in support.

35. On August 31, NORTHCOM tasked U-2 flights over Katrina JOA [joint operating area] for September 1, 2, and 6. The 27th Intelligence Support Squadron at Beale AFB, California, processed much of the U-2 imagery and uploaded hundreds of images daily. In the end, over 2,300 imagery and mapping products were produced. See Major Kevin L. Buddelmeyer, Military First Response: Lessons Learned from Hurricane Katrina, pp. 20–21.

36. The Civil Air Patrol (CAP) flew C-172, C-182, and GA-8 planes. CAP crews conducted aerial photography using the Airborne Real-time Cueing Hyperspectral Enhanced Reconnaissance (ARCHER) system. They linked ARCHER with a satellite-transmitted digital imaging system and transmitted photos via satellite; Air Force Support to Hurricane Katrina/Rita Relief Operations, August–September 2005, p. 11.

37. The OC-135 is equipped with a KS-87 framing camera used for low-altitude photography and a KA-91 pan camera to provide a wide sweep at high altitude. Like the U-2, the OC-135 uses wet optical film and may take up to three days to process, exploit, and digitize. However, unlike the Dragon Lady, processing for OC-135 IMINT was conducted at the National Air and Space Intelligence Center (NASIC) at Wright-Patterson AFB, Ohio; Lieutenant Colonel Christina M. Stone, Air Force Intelligence Role in Combating Weapons of Mass Destruction, Air War College, Maxwell Paper No. 39, November 2006, p. 20; Major Kevin L. Buddelmeyer, Military First Response: Lessons Learned from Hurricane Katrina, p. 22.

38. On September 3, one C-130 Scathe View of the Nevada National Guard deployed to Maxwell AFB, Alabama, from Reno, Nevada, and imaged on the same day.

39. DIA DC-3 overflights commenced on September 7, providing environment and infrastructure survey; Air Force Support to Hurricane Katrina/Rita Relief Operations, August–September 2005, pp. 26–27.

40. Air Forces Northern Command (AFNORTH) PowerPoint Briefing, “ISRD Support to DSCA,” AFNORTH, Tyndall AFB, Florida, April 26, 2006, obtained by the author; Air Force Print News (Captain Ken Hall), “ROVERs aid in search and rescue,” September 24, 2005. The jets included A-10s, F-14s, and F-16s.

41. This despite news reports that those spoilsports at the Federal Aviation Administration declined to issue the necessary permits for unmanned vehicles to overfly New Orleans—and despite government denials; see US Congress, House of Representatives, Hearing on Unmanned Aerial Vehicles and the National Airspace System, 109th Cong., 2nd sess., 2006, p. 11; Air Force Support to Hurricane Katrina/Rita Relief Operations, August–September 2005, p. 12.

See also Testimony of Dyke D. Weatherington, Deputy, Unmanned Aircraft Systems Planning Task Force, Office of the Under Secretary of Defense (Acquisition, Technology and Logistics), before House Committee on Transportation and Infrastructure, Subcommittee on Aviation, March 29, 2006: “DOD UA [unmanned aerial] support for disaster relief in the wake of Hurricane Katrina was available, but not authorized. Instead small UA were attached to helicopter skids to provide some limited electronic collection capability” (emphasis added).

42. The drones included an experimental Evolution UAV, Puma AE (All Environment), Shadow 200, Silver Fox, and the T-Rex unmanned helicopter. “NORTHCOM is already collecting with Predator and Open Skies aircraft”; NORTHCOM NC J3 Teleconference Notes, 1000 MDT 01 Sep 2005 [September 1, 2005], obtained by the author.

Five Silver Fox UAVs were used for search and rescue operations; University of Minnesota PowerPoint briefing, Demoz Gebre-Egziabher, Department of Aerospace Engineering & Mechanics, University of Minnesota, Twin Cities, Minneapolis,“Miniature Aerial Vehicles for Traffic Management and Transportation Infrastructure Security,” Presentation at “Heartland Security” Conference, Minneapolis, July 11, 2007. See also “USF Deploys Unmanned Aerial Vehicles to Katrina Rescue Operations,” Science Daily, September 7, 2005; http://www.sciencedaily.com/releases/2005/09/050908081119.htm (accessed August 28, 2012); Major Kevin L. Buddelmeyer, Military First Response: Lessons Learned from Hurricane Katrina, pp. 23–24.

43. See statement of General Ronald E Keys, “Striking the Balance: Today’s War, Tomorrow’s Threat” (paper presented at the Air Force Association Air Warfare Symposium, Orlando, Florida, February 8, 2007); “Initial attempts to use the Evolution Tactical UAV and MQ-1 Predator were restricted due to a flight restriction on UAV access to Federal Aviation Administration (FAA) airspace. Yet, even with these imposed restrictions, the JTACs persisted and provided a ‘work-around’ by duct-taping the small Evolution UAV to the bottom of an UH-60 helicopter to provide streaming video to the ground”; Major Kevin L. Buddelmeyer, Military First Response: Lessons Learned from Hurricane Katrina, p. 23.

Within twenty-four hours of storm landfall, the Pentagon and NORTHCOM had direct feeds from full-motion video being passed via the Remotely Operated Video Enhanced Receiver (ROVER) systems from a variety of platforms; Major Kevin L. Buddelmeyer, Military First Response: Lessons Learned from Hurricane Katrina, pp. 23–24. See also Air Force Print News (Captain Ken Hall), “ROVERs aid in search and rescue,” September 24, 2005.

44. NORTHCOM, (U//FOUO) United States: Hurricane Katrina Damage Assessments Derived from U-2 Imagery, n.d., obtained by the author.

45. HHT 170 LAKE PONTCHARTRAIN, LA I-10 CAUSEWAY DAMAGE; Tasking Requirement(s): 01; Date/Time of Report: 1116L 19-SEP-05 [September 19, 2005], obtained by the author.

46. Technical Image Analysis of Chalmette Petrol Storage Facility, New Orleans, LA 7-SEP-05 [September 7, 2005], obtained by the author.

47. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 131.

48. Master Sergeant Mark Haviland, Air Combat Command Public Affairs, “After Katrina: ACC’s intel[ligence] team applies lessons learned,” August 31, 2006.

49. The graphic appears in the photographs in the centerfold; see insert p. 3.

50. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 11.

51. Hurricane Katrina: A Nation Still Unprepared, p. 8; Disaster: Hurricane Katrina and the Failure of Homeland Security, pp. 123, 205.

52. Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 123.

53. Minnesota senator Mark Dayton would later scold the homeland security watch-stander: “You know you don’t need to send satellites over; turn on CNN.” Disaster: Hurricane Katrina and the Failure of Homeland Security, pp. 198, 242.

54. Hurricane Katrina: A Nation Still Unprepared, p. 483.

55. Hurricane Katrina: A Nation Still Unprepared, p. 484.

56. Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 207.

57. For details on the intelligence problems, see the excellent summary by Major Jennifer P. Sovada, “Intelligence, Surveillance, and Reconnaissance Support to Humanitarian Relief Operations within the United States: Where Everyone Is in Charge,” Naval War College, Newport, RI, April 23, 2008. See also GAO, Hurricane Katrina: Better Plans and Exercises Needed to Guide the Military’s Response to Catastrophic Natural Disasters, in GAO-06-808T (2006), p. 7; AFNORTH Air Support Handbook, January 1, 2009, pp. 96–97; Air Force Support to Hurricane Katrina/Rita Relief Operations, August–September 2005, p. 3. Referring to the U-2 imagery, one air force observer later wrote: “Unfortunately, much of this intelligence did not make its way to first responders in a timely manner.” Major Kevin L. Buddelmeyer, Military First Response: Lessons Learned from Hurricane Katrina, p. 21. The vast majority of the imagery and information was fed directly to the NORTHCOM Joint Forces Air Component Commander (JFACC) for command situational awareness, not on-scene providers, Buddelmeyer says; Military First Response: Lessons Learned from Hurricane Katrina, p. 4.

58. A Failure of Initiative, p. 223.

59. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 166.

60. HQ USNORTHCOM FORCE PROTECTION (FP) ADVISORY MESSAGE 05-245, 020840ZSEP05 [September 2, 2005], obtained by the author; and HQ US NORTHCOM FP ADVISORY MESSAGE 05-243 HURRICANE KATRINA, 310754ZAUG05 [August 31, 2005], obtained by the author.

61. FBI/DHS Intelligence Bulletin 176, Period of Uncertainty Merits Increased Awareness, September 7, 2005, obtained by the author; NORTHCOM FP [Force Protection] Advisory Message 05-243, September 11 Anniversary, September 7, 2005, obtained by the author.

62. JFHQ-NCR J2 Daily Intelligence “Guardian,” 080900 Sep 05 [September 8, 2005] (Secret/NOFORN); JFHQ-NCR, Force Protection Advisory, Increased Vigilance During the 9-11 Memorial Period, September 8, 2005.

CHAPTER FOUR: POSSE COMITATUS

1. Decision Points, p. 321. “All my instincts told me we needed to get federal troops into New Orleans to stop the violence and speed the recovery. But I was stuck with a resistant governor, a reluctant Pentagon, and an antiquated law. I wanted to overrule them all. But at the time, I worried that the consequence could be a constitutional crisis, and possibly a political insurrection as well.”

2. The Oxford English Dictionary defines Posse Comitatus as the force of the county; the body of men above the age of fifteen in a county (exclusive of peers, clergymen, and infirm persons), whom the sheriff may summon or “raise” to repress a riot or for other purposes; also, a body of men actually so raised and commanded by the sheriff.

3. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. 5. See also the discussion by Commander James S. Campbell, “Current Obstacles to Fully Preparing Title 10 Forces for Homeland Defense and Civil Support,” May 2008, pp. 70–71.

“Concerned about the repeated routine use of federal military to enforce civil laws in contravention of the Founding Fathers’ concern for restrains on a standing army, Congress restricted the routine use of federal military troops in the PCA”; Lieutenant Colonel Mary J. Bradley, Lieutenant Colonel Stephanie Stephens, Mr. Michael Shaw (Joint Task Force Civil Support Fort Monroe, Virginia), “Notes from the Field: The Posse Comitatus Act: Does It Impact the Department of Defense during Consequence Management Operations?,” Army Lawyer, DA PAM 27-50-413, October 2007, p. 70.

4. Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis, 1994, p. 5.

5. On December 1, 1865, the Union Army was demobilized. From a force of one million in arms on May 1, only some 152,000 Union soldiers remained in the South by the end of 1865. On October 1, 1866, more were demobilized, with only about 38,000 remaining in the South by the end of the year. In 1867, Congress additionally suspended the Southern states’ right to organize their militias until those states were firmly under the control of acceptable post-Confederate governments.

6. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. 25.

7. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. 26.

8. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. 26.

9. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. 29.

10. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. 30.

11. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, pp. 30–31.

12. Lieutenant Colonel Mark C. Weston, Review of the Posse Comitatus Act After Hurricane Katrina, March 15, 2006, p. 3.

The Posse Comitatus Act, 18 USC, Section 1385, today states, “Whoever, except in the cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.” Although the Posse Comitatus Act, by its own terms, applies to only the army and the air force, the Posse Comitatus Act’s restrictions have been extended to the navy and marine corps as a matter of DOD policy. Federal court rulings have stipulated that it only governs the federal military and the National Guard when serving in its federal capacity.

Concern over the domestic role also led the states to reexamine their need for a well-equipped and trained militia, and between 1881 and 1892, every state revised its military code to provide for an organized force. Most called their state militias the National Guard, following an example set by the state of New York.

13. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. 33.

14. Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, p. iii.

15. Donald J. Currier, “The Posse Comitatus Act: A Harmless Relic from the Post-Reconstruction Era or a Legal Impediment to Transformation?,” Carlisle Papers in Security Strategy, September 2003, pp. 5–6.

16. Commander James S. Campbell, “Current Obstacles to Fully Preparing Title 10 Forces for Homeland Defense and Civil Support,” May 2008, p. 71.

17. The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 USC 5121-5206, Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act), consolidated federal statutory authorities and continues to guide many of FEMA’s and DHS’s actions. The act gives the president the authority to direct federal capabilities from various federal agencies to provide assistance to states in the wake of an emergency or major disaster. The Stafford Act defines an emergency as “any occasion or instance for which, in the determination of the President, federal assistance is needed to supplement state and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.”

18. These statutory exceptions include the Protection of Nuclear Materials Act (18 USC 831), Chemical-Biological Terrorism (10 USC 382), and Secret Service Assistance (10 USC 3056):

• Under the Prohibited Transaction Involving Nuclear Materials statute (Section 831, Title 18, USC), if the attorney general and the secretary of defense jointly determine that the nation faces an emergency, the secretary of defense may authorize federal military forces to provide direct support to civilian authorities to protect nuclear materials.
• Under the Emergency Situations Involving Chemical or Biological Weapons of Mass Destruction statute, (Section 382, Title 10, USC), if the attorney general and the secretary of defense jointly determine that the nation faces an emergency involving an attack using chemical, biological, radiological, or high-yield explosives, the secretary of defense may provide resources and personnel to assist civil authorities to enforce this statute.

See NGB, Domestic JTF Commander Handbook, 2011, pp. 105–106.

19. Lieutenant Colonel Mark C. Weston, Review of the Posse Comitatus Act After Hurricane Katrina, March 15, 2006, p. 5.

20. NGB, Domestic JTF Commander Handbook, 2011, p. 105. The handbook states explicitly that the Posse Comitatus Act does not apply in these circumstances. See also Department of the Army, AR 500-1, Aircraft Piracy Emergencies, October 6, 1972, p. 1.

Pursuant to DOD Instruction (DODI) 5525.5 [DOD Directive (DODD) 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, January 15, 1986], “the military may provide direct assistance to civilian law enforcement authorities if the actions are taken for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities.”

NORTHCOM says: “the protection of DOD personnel, DOD equipment, classified military information or equipment, and official guests of the DOD, and such other actions that are undertaken primarily for a military or foreign affair’s purpose are not prohibited”; NORTHCOM Operations Order (OPORD) 05-01, Antiterrorism, May 6, 2005, p. 6.

The Military Purpose Doctrine provides the authority for military personnel acting as undercover agents in off-post drug investigations where civilians are either the source of drugs being introduced to the post or are suspected of being involved in drug transactions with service members.

21. “Under imminently serious conditions, when time does not permit approval from higher headquarters, any local military commander, or responsible officials of DOD Components may, subject to any supplemental direction that may be provided by their higher headquarters, and in response to a request from civil authorities, provide immediate response to save lives, prevent human suffering, or mitigate great property damage.” See DOD Directive 3025dd (predecisional draft), Defense Support of Civilian Authority, 2006, p. 9.

“The immediate response authority is not provided for in any statute, but is said to have deep historical roots. Although there is no statutory authority to do so, DODD 3025.15 and 3025.1 establish a CDR’s ‘immediate response’ authority. Immediate response authority is very limited and should be invoked only for bona fide emergencies. When imminently serious conditions exist and time does not permit prior approval from higher headquarters, immediate response authority permits local military CDRs and responsible officials of other DOD components to act immediately ‘to save lives, prevent human suffering, and mitigate great property damage’ in imminently serious conditions when time does not permit approval from higher headquarters. Types of support authorized include rescue, evacuation, emergency treatment of casualties, and maintenance or restoration of emergency medical capabilities; emergency restoration of essential public services (including fire-fighting, water, communications, transportation, power, and fuel); emergency removal of debris and explosive ordnance; and recovery, identification, registration, and disposal of the dead; monitoring and decontaminating radiological, chemical, and biological effects; controlling contaminated areas; and reporting through national warning and hazard control systems; roadway movement control and planning; safeguarding, collecting, and distributing food, essential supplies, and materiel on the basis of critical priorities; damage assessment; interim emergency communications; and, facilitating the reestablishment of civil government functions. DOD support under immediate response authority is limited to the time that local or state authorities can resume control (generally 72 hours or less).” See NGB, Domestic JTF Commander Handbook, 2011, p. 103.

Joint Publication 3-28, Civil Support, sanctions immediate-response authority, though the policy “is limited, restrictive, and conditional”; Center for Army Lessons Learned, Disaster Response Staff Officer’s Handbook, 2010.

Defense Department policy, Honoré writes, “allows commanders to help local communities save lives without having to wait for an order from the Pentagon”; Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 89.

22. In cases such as a CBRNE incident, local law enforcement agencies may request immediate assistance from local military forces. DOD Directive 5535.05, DOD Cooperation with Civilian Law Enforcement, Section E4.1.2.3.1, states that the emergency authority authorizes federal action including the deployment of military forces to prevent loss of life or destruction and to restore public order only if local authorities are unable to do so. See The Department of Defense Chemical, Biological, Nuclear and High Yield Explosive Response Enterprise: Have We Learned the Lessons to Ensure an Effective Response?, p. 14.

23. DOD Directive 3025.12, Military Assistance for Civil Disturbances (MACDIS), Section 4.2.2 and 4.2.2.1, states that military forces shall not be used for MACDIS unless authorized by the president under emergency circumstances, and the acting commander must have exhausted all resources to obtain prior authorization from the president. These exceptions to Posse Comitatus allow local commanders to act on their own authority to provide assistance to local law enforcement during incident management. The Department of Defense Chemical, Biological, Nuclear and High Yield Explosive Response Enterprise: Have We Learned the Lessons to Ensure an Effective Response?, p. 14.

24. How the Army Runs, 2011–2012, p. 515.

Posse Comitatus had become more of a “procedural formality than an actual impediment to the use of military forces in homeland defense”; Major Craig T. Trebilcock, USA, The Myth of Posse Comitatus, October 2000.

“Bottom line, the President has the legal authority to quell insurrection with State request, without State request, and even over State opposition”; DOD, Reserve Components of the United States Military, December 2008, p. 34.

25. Major Mark M. Beckler, US Army National Guard, Insurrection Act Restored: States Likely to Maintain Authority Over National Guard in Domestic Emergencies, SAMS Monograph, 2008, p. 7.

26. The Insurrection Act (10 USC 331-335 and 12301, et seq., as amended). See Major Mark M. Beckler, US Army National Guard, Insurrection Act Restored: States Likely to Maintain Authority Over National Guard in Domestic Emergencies, SAMS Monograph, 2008; Lieutenant Colonel Mary J. Bradley, Lieutenant Colonel Stephanie Stephens, Mr. Michael Shaw (Joint Task Force Civil Support Fort Monroe, Virginia), “Notes from the Field: The Posse Comitatus Act: Does It Impact the Department of Defense during Consequence Management Operations?” Army Lawyer, DA PAM 27-50-413, October 2007, p. 71.

27. Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, p. 143.

28. After issuing a cease and desist order, the president issues an executive order that directs the attorney general and the secretary of defense to take appropriate steps to disperse insurgents and restore law and order. The attorney general is then responsible for coordinating the federal response to domestic civil disturbances. “The restrictions of the Posse Comitatus Act no longer apply to federal troops executing the orders of the President to quell the disturbance in accordance with Rules of the Use of Force (RUF) approved by the DOD General Counsel and the Attorney General.” See How the Army Runs, p. 515.

Section 335 simply recognizes the territories of Guam and the Virgin Islands as states for the purposes of the Insurrection Act.

29. See discussion also of the president’s responsibility in Major Mark M. Beckler, US Army National Guard, Insurrection Act Restored: States Likely to Maintain Authority Over National Guard in Domestic Emergencies, SAMS Monograph, 2008, pp. 19–20.

30. DHS IG, A Performance Review of FEMA’s Disaster Management Activities in Response to Hurricane Katrina, p. 4; A Failure of Initiative: The Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, February 2006, p. 7. Honoré writes that more than 1,800 people died, about 1,600 of them in Louisiana; Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 3; The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 8.

The actual death toll for Louisianans was closer to 1,375 when those who died out of state were added. Michelle Hunter, “Deaths of evacuees push toll to 1,577,” Times-Picayune, May 19, 2006, p. 1, reported that the Louisiana Department of Health and Hospitals added 281 victims to earlier counts on May 18, 2006, after officials concluded from a review of evacuees’ out-of-state death certificates that many were Katrina-related, such as from stress or loss of access to essential medications. See also Hurricane Katrina: A Nation Still Unprepared, p. 38; Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 120.

31. Tony S. Lombardo, Collaboration or Control?: The Struggle for Power in Catastrophic Disaster Response, December 2007, pp. 29–30.

32. The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 8.

33. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 18.

34. McHale also said after Katrina that he was grateful that the Insurrection Act wasn’t invoked. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 15.

35. National Guard forces reached peak deployment numbers for Katrina relief on September 8. With 51,039 guard personnel mobilized on that day, the guard exceeded by three times its previous largest deployment ever for a natural disaster (16,599 in 1989–1990 following the San Francisco Loma Prieta earthquake).

36. Hurricane Katrina: A Nation Still Unprepared, p. 333.

37. Hurricane Katrina: A Nation Still Unprepared, p. 333; The Federal Response to Hurricane Katrina: Lessons Learned, February 23, 2006, p. 38.

38. “Meanwhile, having been stationed in the Gulf of Mexico at the conclusion of a previously scheduled exercise held prior to Katrina, the USS Bataan followed Katrina, and by Tuesday morning was within 150 to 200 miles of New Orleans. Watching the news, the vessel’s commanders began identifying ways to help. At 3 p.m. CT, the Bataan received orders from Second Fleet to send helicopters into New Orleans to conduct search and rescue missions in coordination with Coast Guard District Eight. The Navy and Marine Corps helicopters were in the air by 5 p.m., and reported to the Coast Guard Air Station commander, that, as the designated On-Scene Commander, he held responsibility for coordinating all air search-and-rescue assets. They were joined by two Navy SH-3 helicopters from Pensacola that arrived unannounced at the Coast Guard station, offering their services. In all, USS Bataan’s aircraft rescued, evacuated, or transported over 2,000 persons”; Hurricane Katrina: A Nation Still Unprepared, p. 343, 489.

39. Hurricane Katrina: The Defense Department’s Role in the Response, S. Hrg. 109-813, p. 37.

40. Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 122.

41. Hurricane Katrina: A Nation Still Unprepared, p. 439–441; Katrina’s Secrets: Storms after the Storms, pp. 7, 136. NOPD had a force of 1,668 sworn officers. By the time the storm had passed, only about 147 failed to report for duty.

42. Hurricane Katrina: A Nation Still Unprepared, p. 439. National Guard officials said there were only 50 weapons found among the 30,000 people searched as they entered; A Failure of Initiative, p. 248.

43. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 120.

44. Disaster: Hurricane Katrina and the Failure of Homeland Security, p. 223. See also Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 120.

45. Michael Greenberger and Arianne Spaccarelli, “The Posse Comitatus Act and Disaster Response,” in From Homeland Security and Emergency Management: A Legal Guide for State and Local Governments (Ernest B. Abbott and Otto J. Hetzel, eds., American Bar Association, 2d ed. 2010), pp. 46–47.

46. The narrative of the killing is based upon Alabama Department of Public Safety news releases and AP reporting (as compiled by al.com, the Alabama Media Group of newspapers), as well as Corky Siemaszko, “Michael McLendon, gunman who killed 10, self, in Samson, Alabama shooting spree, had revenge list,” New York Daily News, March 11, 2009.

47. NGB, Domestic JTF Commander Handbook, 2011, p. 105.

48. Decision Points, p. 320.

49. “During the eleven-year period between 1885 and 1895 military forces were mobilized 328 times for riot duty; 118 involved labor conflicts.… During the twentieth century the Army’s role in quelling civil disturbances was both more frequent and more diverse. The Regular Army suppressed civil unrest at the Nevada gold mines in 1907; at the Colorado coal mines in 1913 and 1914; at the Winston-Salem, North Carolina, riots in 1918; at the Washington, DC, riots in 1919; at the Omaha, Nebraska, riots in 1919; at the West Virginia mines in 1921; and thwarted the activities of Army veterans during the Bonus March in Washington, in 1932.” See Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis, 1994, p. 10.

Though law enforcement was not the primary purpose, federal troops have also been used during Hurricane Andrew and Typhoon Iniki in 1992, during Hurricane Marilyn in 1995, and during Hurricane Floyd in 1999, and to fight forest fires in the western states starting in 2000; Rand, Army Forces for Homeland Security, 2004, pp. 4–5.

50. See, for example, the extensive discussion in Tony S. Lombardo, Collaboration or Control?: The Struggle for Power in Catastrophic Disaster Response, December 2007.

51. Donald J. Currier, The Posse Comitatus Act: A Harmless Relic from the Post-Reconstruction Era or a Legal Impediment to Transformation?, 2003, pp. 8–10.

52. Covault’s decision also removed 10,000 California National Guard troops, now federalized, from assisting the Los Angeles police and sheriff, ultimately prolonging the criminal violence in the city. The guard could have been placed back in state active duty status, but it would have required a different command relationship with the federal troops.

The story of the 1992 riots is ably told in Combat Studies Institute (Matt Murphy), The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14, 2006, pp. 47–59. See also Donald J. Currier, The Posse Comitatus Act: A Harmless Relic from the Post-Reconstruction Era or a Legal Impediment to Transformation?, September 2003.

53. AP, Army launches review into use of soldiers at Samson following south Alabama shootings, Wednesday, March 18, 2009, 10:13 a.m.; Lance Griffin, “Army report: Fort Rucker MPs in Samson after shooting a violation,” Dothan Eagle, October 19, 2009; AP, Army says dispatch of MPs to Samson murders in March violated federal law, Monday, October 19, 2009, 6:02 p.m.

54. Mark Ames, “After the Billionaires Plundered Alabama Town, Troops Were Called In… Illegally,” Alternet, October 23, 2009; http://www.alternet.org/story/143485/after_the_billionaires_plundered_alabama_town,_troops_were_called_in_…_illegally.

55. “US Army Soldiers Deployed on the Streets of Samson, Alabama,” March 12, 2009; CNS.com story at http://cryptogon.com/?p=7433.

56. “THIS IS A DRILL! THIS IS A DRILL! Samson Alabama, 10 March 2009;” http://jaghunters.blogspot.com/search?q=Sampson.

57. Jim Kouri, “Obama stealth executive order creating firestorm,” Examiner.com, January 20, 2010; http://www.examiner.com/article/obama-stealth-executive-order-creating-firestorm. See also Kouri’s biography at Renew America; http://www.renewamerica.com/columns/kouri (accessed August 9, 2012).

58. Lance Griffin, “Samson police chief: Town supports Rucker MPs,” Dothan Eagle, October 20, 2009.

59. Known and Unknown: A Memoir, p. 619.

CHAPTER FIVE: THE GARDEN PLOT

1. Army Strategic Studies Institute, Nathan Freier, Known Unknowns: Unconventional “Strategic Shocks” in Defense Strategy Development, November 2008, p. 32.

2. Survival: How a Culture of Preparedness Can Save You and Your Family from Disasters, p. 89. See also Hurricane Katrina: A Nation Still Unprepared, p. 491.

3. Department of the Army Historical Summary: FYs 1990 & 1991, p. 17; Army Forces Command Domestic Plans Branch, DOD Emergency Preparedness Course, Domestic Emergencies Handbook, Second Edition, March 15, 1999, p. 48; NORTHCOM, Civil Support Concept of Employment, August 20, 2004, pp. 4–77; Jay Price, “Stretched Thin, 82nd Airborne Giving Up Rapid-Reaction Unit; Division will no longer maintain brigade that can move on short notice,” Raleigh News and Observer, March 22, 2007, p. 1.

4. “The Commander of the Joint Civil Disturbance Task Force is the Commander for all federal forces, including National Guard forces in Title 10 status, in a civil disturbance area of operations. He is the DOD representative in the civil disturbance area and performs civil disturbance missions assigned by the SCRAG. Civilian officials remain in charge of civil disturbance operations”; Army, Domestic Operational Law Handbook, 2011 Handbook for Judge Advocates, pp. 75–76. The SCRAG is the senior civilian representative of the attorney general.

5. USCINCACOM FUNCPLAN 2502-97 (U), Garden Plot, Final Draft, 1998, p. v, obtained by the author.

6. USPACOM also provides an Alaska-based QRF/RRF for employment by USNORTHCOM for HD operations in the Alaska joint operating area (JOA); JCS, Homeland Defense, Joint Publication 36.1 First Draft, October 28, 2005, p. III-5.

7. USCINCACOM FUNCPLAN 2502-97 (U), Garden Plot, Final Draft, 1998, pp. vi, vii.

8. Mobilized Marine Corps Reserve infantry battalions have also served as ready reaction forces, “on call” to support FEMA (including supporting Joint Task Force Katrina); NGB, National Guard and Reserve Equipment Report for Fiscal Year 2007 (NGRER FY 2007), February 2006, pp. 3–7.

9. After 9/11 JFCOM “sourced” five battalions to support a light infantry Rapid Reaction Force (RRF), by FEMA region: the XVIII Airborne Corps was responsible for Regions I, II, IV, and V; the III Corps was responsible for Regions VI, VII, and VIII; Marine Corps Forces Atlantic (MARFORLANT) was responsible for Region III and IX; and PACOM (through I Corps) was responsible for Region X; JFCOM PowerPoint Briefing, Joint Force Headquarters Homeland Security Command Brief, n.d. (July 13, 2002); obtained by the author.

“These forces are designed to provide responsive, mission-tailored, lightly armed ground units that can deploy on short notice, with minimal lift assets, and capable of providing immediate or emergency response for DSCA missions consistent with the law and DOD policy”; USNORTHCOM CONPLAN 2501-05, Defense Support of Civil Authorities, May 8, 2006, pp. C-24-2, C-24-3; obtained by the author. See also Major Jay L. Lunkins, How Airlift Meets U.S. NORTHERN Command’s Requirements, AFIT, June 2003, pp. 39–40.

10. USCINCACOM FUNCPLAN 2502-97 (U), Garden Plot, Final Draft, 1998, p. vii, obtained by the author. In 2009, a Fort Hood regulation on the III Corps assignment for domestic duties stated:

III Corps provides forces to respond to civil disturbances according to the DOD Civil Disturbance Plan (Garden Plot). The force package is a quick-reaction force (QRF) composed of a brigade headquarters, a minimum of two battalions, and a support element with an alert response time of 24 hours by air or convoy.

b. Requirements.

(1) The following training is required for individuals assigned to or alerted for civil disturbance response:

(a) Qualification with individual weapon in the last 12 months.

(b) CBRN [chemical, biological, radiological and nuclear] mask confidence exercise/training in the last 12 months.

(2) The following training is recommended:

(a) Classes in the use of force, application of minimum force, riot control agents and munitions, search and seizure policies and procedures, and apprehension and detention procedures.

(b) The legal considerations for civil disturbance response.

(c) Units authorized to train with CS [tear gas] or large amounts of OC/spray are required to have approval of the senior commander (through coordination with III Corps G-3) prior to conducting training exercises.

See III Corps, Training and Leader Development, III Corps and Fort Hood Regulation 350-1, March 30, 2009, p. 79.

11. Message, Subject: FRAGO 3 TO JTF-KATRINA EXORD, 050458ZSEP05 [September 5, 2005], obtained by the author.

12. Quoted in Major Daniel J. Sennott, “Interpreting Recent Changes to the Standing Rules for the Use of Force,” Army Lawyer, November 2007, p. 73.

13. NORTHCOM Special Instructions (SPINS), September 3, 2005, paragraph D, point 4, point 5, obtained by the author.

14. Message, Subject: FRAGO 3 TO JTF-KATRINA EXORD, 050458ZSEP05 [September 5, 2005], obtained by the author.

15. DOD Directive 3025.1, Responsibilities for Employment of Military Resources in Domestic Emergencies Other than Civil Defense, July 14, 1956 (and retained in changes through April 23, 1963), assigned “primary responsibility” in CONUS to the Department of the Army, while the JCS were excluded (except for specified overseas areas). This role was codified in the highest war plan, the Joint Strategic Capabilities Plan (JSCP), and with respect to civil disturbances, the JCS, by formal directive, SM-685-63, named the chief of staff of the army (CSA) executive agent for the Joint Chiefs of Staff and gave him wide prerogatives for autonomous action. See Office of the Director of Defense Research and Engineering, Weapons Systems Evaluation Group, Joint Staff Command and Control Problems Attending Support Operations in Domestic Emergencies: Steep Hill-14 and Tempest Rapid “Betsy,” 1965, June 8, 1966, partially declassified and released under the FOIA.

16. Army Chief of Military History, Walter G. Hermes, Global Pressures and the Flexible Response, in American Military History, Army Historical Series, 1989, p. 604.

17. Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, p. 143.

18. Although the Los Angeles “Watts” riots of 1965 were a pivotal point for the army as a whole, only California National Guard troops were utilized in quelling the unrest; federal troops only provided a supporting role. See Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis, 1994, p. 11.

19. Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis, 1994, p. 32.

20. The most thorough military study of Detroit is Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, pp. 177–205.

21. Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis,” 1994, pp. 30–31.

22. Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis, 1994, p. 37.

23. Quoted in Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, p. 185.

24. David S. McLellan, Cyrus Vance (Totowa, NJ: Rowman & Allanheld, 1985), pp. 8–9.

25. Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, p. 198.

26. Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992, Army Historical Series, p. 202.

27. For the Washington, DC, riots following the assassination of Martin Luther King, Jr., the executive agent again was Cyrus Vance, private citizen, with as his subordinates the district’s director of public safety, Patrick Murphy; Under Secretary of the Army David McGiffert; and Deputy United States Attorney General Warren Christopher. Army General Ralph Haines, Jr., the army vice chief of staff, was directly involved; Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis, 1994, pp. 61–64, 79.

28. Barrye La Troye Price, “The Use of Federal Troops in Quelling Civil Unrest in Washington DC,” April 1968, master’s thesis, 1994, p. 15.

29. The National Defense Authorization Act of 1989 also gave the Department of Defense responsibility for certain aspects of drug enforcement, including detection and monitoring and command, control, communications, and intelligence (C3I).

30. Major Craig T. Trebilcock, USAR, “The Myth of Posse Comitatus,” Journal of Homeland Defense, October 27, 2000.

It is interesting to note that in his autobiography, Weinberger does not address domestic use of the military at all; Caspar Weinberger, Fighting for Peace: Seven Critical Years in the Pentagon (New York: Warner Books).

31. Paul McHale, “Critical Mismatch: The Dangerous Gap Between Rhetoric and Readiness in DOD’s Civil Support Missions,” Heritage Foundation SR-115, August 13, 2012.

32. The army always favored a joint command under, of course, an army general to command those standing military forces not assigned overseas and not a part of the strategic nuclear forces. The navy loudly opposed such a command in the early 1960s, vowing that its fleets wouldn’t be further subordinated or constrained. A compromise joint Strike Command (STRICOM) was created in 1962, responsible for army and air force training and doctrine, and for planning overseas contingency operations, including, at least on paper, mustering the forces for reinforcement, even if initially it was without naval forces. Part of STRICOM’s mission was also allocating forces for domestic duty, brokering what was available, because as a joint command it was the best equipped to take into consideration war plans, ongoing missions, and upcoming combat deployments. But the other army—led by DOMS—never relinquished true control.

In 1972, STRICOM was axed as a supposed belt-tightening measure by a supposedly war-weary Nixon administration. The real reason was that the JCS and other regional commands feared that STRICOM would become too powerful and turn into an overall global command—one command, one military—especially since it had responsibility not just for rapid deployment but also for the unassigned areas of the world (then including the Middle East, Africa, and South Asia, referred to as MEAFSA). STRICOM was replaced by Readiness Command (REDCOM), with STRICOM divested of rest-of-the-world (ROW) responsibility. REDCOM lasted less than a decade, the domestic mission being directly assigned to Army Forces Command (FORSCOM), which was designated a JCS “specified command” under FORSCOM and was supplanted by another joint command, US Atlantic Command (ACOM), which was itself supplanted by Joint Forces Command (JFCOM), which gave up its domestic mission to the new homeland defense Northern Command in 2002 (and then was eliminated). See Department of the Army Historical Summary: FY 1987, pp. 73–74; DOD, Review of Unified and Specified Command Headquarters, February 1988, Appendix J, p. 8; JCS Joint History Office, The History of the Unified Command Plan: 1946–1993, pp. 4, 33–34.

33. NORTHCOM PowerPoint Briefing, MACDIS Strategic Mission Analysis, Major Dotson, NC-J531 Civil Support Planner, n.d. (September 14, 2004); obtained by the author.

34. Department of the Army, AR 500-60, Disaster Relief, August 1981.

35. Department of the Army, AR 500-4, Military Assistance to Safety and Traffic, January 1982.

36. Department of the Army, AR 500-70, Military Support of Civil Defense, October 1982.

37. DOD Directive (DODD) 5525.5, Department of Defense Cooperation with Civilian Law Enforcement Officials, January 15, 1986; Secretary of the Navy Instruction (SECNAVINST) 5820.7B, Cooperation with Civilian Law Enforcement Officials, March 28, 1988.

38. Chief of Naval Operations, OPNAVINST 3440.16B, Department of the Navy Civil Emergency Assistance Program, September 4, 1991.

39. Department of the Air Force, AFR 355-1, Disaster Preparedness Planning and Operation, December 1989; Department of the Air Force, AFI 10-803, Air Force Support During Disasters, January 1994.

40. Chief of Naval Operations, OPNAVINST 3440.16C, Navy Civil Emergency Management Program, March 10, 1995.

41. Marine Corps Warfighting Publication (MCWP) 3-33.4, Domestic Support Operations, July 1993.

42. DOD Directive (DODD) 3020.36, Assignment of National Security Emergency Preparedness (NSEP), Responsibilities to Department of Defense Components, November 2, 1988.

43. DOD Directive (DODD) 3025.1, Military Support to Civil Authorities (MSCA), January 15, 1993; National Guard Regulation 500-1, Military Support to Civil Authorities, October 1991.

44. DOD Directive (DODD) 3025.15, Military Assistance to Civil Authorities, February 18, 1997.

45. Chairman of the Joint Chiefs of Staff, CJCSI 3125.01, Military Assistance to Domestic Consequence Management Operations in Response to a Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive Situation, August 3, 2001.

46. Marine Corps Doctrinal Publication (MCDP) 1-0 10-7, Military Support to Civilian Operations, September 2001.

47. Department of the Army, AR 500-50, Civil Disturbances, April 1972; Marine Corps Warfighting Publication (MCWP) 3-33.2, Civil Disturbances, November 1985.

48. DOD Directive (DODD) 3025.12, Employment of Military Resources in the Event of Civil Disturbances (MACDIS), February 4, 1994.

49. Department of the Army, FM 19-15, Civil Disturbances, November 1985.

50. DOD Directive (DODD) 3025.15, Military Assistance to Civil Authorities (MACA), February 18, 1997, defines Military Assistance to Civil Authorities as: “Those DOD activities and measures covered under MSCA (natural and manmade disasters) plus DOD assistance for civil disturbances, counter drug, sensitive support, counterterrorism, and law enforcement” (emphasis added).

51. Shortly after 9/11, Secretary of Defense Rumsfeld reiterated DOD homeland security arrangements: the US Joint Forces Command (JFCOM) was responsible for the land and maritime defense of the continental United States; the secretary of the army was appointed the DOD Executive Agent for Homeland Security, including homeland security and military support to civilian authority; and the North American Aerospace Defense Command (NORAD) was responsible for defense against aerospace weapons.

The prevailing Unified Command Plan (UCP) on 9/11, the presidentially approved document that establishes the missions, responsibilities, and force structure for commanders of the unified combatant commands, tasked JFCOM with providing military assistance to civil authorities in the event of a terrorist incident within the United States. JFCOM was also required to provide military support to civil authorities (MSCA) and military assistance for civil disturbances (MACDIS), subject to SECDEF approval. See Joint Staff, Extracts from Unified Command Plan, ed. Gerry Dillon (Naval War College: September 1999), p. 12.

52. Quoted in Antulio J. Echevarria II, The Army and Homeland Security: A Strategic Prospective, Army War College Strategic Studies Institute, 2001, p. 7.

53. The term “homeland defense” was reportedly first used in the 1997 Report of the National Defense Panel, and thereafter was loosely seen as a subset of the term “homeland security”; see Lieutenant Colonel Gus Sankey, The Role of the Army National Guard in Homeland Defense, USAWC Fellowship Research Paper, April 9, 2002, p. 3.

54. “Homeland Defense operations are conducted in the air, land, maritime, and space domains and in the information environment. DOD is the primary federal agency for Homeland Defense, supported by other agencies. On order of the President or Secretary of Defense, National Guard units may be called to defend the Homeland against external threats. Certain National Guard units have been assigned roles in support of Homeland Defense missions, including the Air Defense of the Homeland and the Anti-Missile Defense of the Homeland. The general focus of National Guard Homeland Defense missions is on deterring and detecting external threats to the Homeland”; NGR 500-1/ANGI 10-8101, June 13, 2008, National Guard Domestic Operations, p. 5.

55. The DOD Strategy issued in 2005 made clear that unless otherwise directed by the secretary of defense, homeland defense missions and ongoing traditional military activities take priority over civil support. See DOD, Strategy for Homeland Defense and Civil Support, 2005.

56. The last formal Garden Plot plan was: Headquarters, Department of the Army, Department of Defense Civil Disturbance Plan, February 15, 1991. There was also a 2001 plan prepared by US Joint Forces Command, the force provider prior to the existence of NORTHCOM; USCINCJFCOM FUNCPLAN 2502-98 Civil Disturbance Plan (FOUO), June 25, 2001, obtained by the author. The 1991 plan replaced Department of the Army Civil Disturbance Plan, March 1, 1984, making it a Department of Defense plan and not just a Department of the Army plan. The 1984 plan was preceded by OPLAN 55-2, “Garden Plot,” 1968, which was employed during the riots of 1967–1971.

The 2002 Unified Command Plan signed by President Bush moved the responsibility for general civil support planning from the army to the regional combatant commands, but there was no regional command for the United States at the time. Responsibility thus fell to JFCOM as the force provider, but for the continental US only; Pacific Command (PACOM) was designated the civil support planning authority for Alaska and Hawaii. See NGB, Domestic JTF Commander Handbook, 2011, p. 121.

57. DOD Directive 3025.15, Military Assistance to Civil Authorities (MACA), February 18, 1997; DOD Directive 3025.12, Military Assistance for Civil Disturbances (MACDIS), February 4, 1994; DOD Directive 3025.1, Military Support to Civil Authorities (MSCA), January 15, 1993.

58. Deputy Secretary of Defense Memorandum, Implementation Guidance Regarding the Office of the Assistant Secretary of Defense for Homeland Defense, March 25, 2003, obtained by the author; JCS Message, Subject: Transfer of the Army Director of Military Support to the Joint Staff, 141916Z May 03 [May 14, 2003], obtained by the author.

59. NORTHCOM PowerPoint Briefing, USNORTHCOM J53 MACDIS Planners’ Workshop, Legal Perspective, Lieutenant Colonel Oliver Johnson, USNORTHCOM JA, September 14, 2004, obtained by the author; NORTHCOM PowerPoint Briefing, MACDIS Strategic Mission Analysis, Major Dotson, NC-J531 Civil Support Planner, n.d. (September 14, 2004); obtained by the author.

60. The workshop is described in: NORTHCOM PowerPoint Briefing, DOD Civilian Disturbance Plan and Policy Review, Mr. Vernon Lindgren USNORTHCOM J531, September 14, 2004, obtained by the author; NORTHCOM PowerPoint Briefing, USNORTHCOM MACDIS Planners’ Workshop, Draft MACDIS PLANORD Review, Mr. Vernon Lindgren, NC-J531, September 15, 2004, obtained by the author; NORTHCOM PowerPoint Briefing, USNORTHCOM MACDIS Planners’ Workshop, J5 Closing Remarks, Colonel Guy Dahlbeck, USAF, NCJ5, September 15, 2004, obtained by the author; NORTHCOM PowerPoint Briefing, USNORTHCOM MACDIS Workshop, Overall Issues & Take-aways, Mr. Vernon Lindgren, NC-J531, September 15, 2004, obtained by the author.

NORTHCOM CONPLAN 2501, Defense Support of Civil Authorities (DSCA), 2006, stated under Para 1(d), Enemy: “Enemy forces are not expected during the conduct of DSCA operations. If a situation with enemy forces should arise, it would trigger CONPLAN 2002, Homeland Defense, or other plans in the USNORTHCOM family of plans”; US Northern Command (NORTHCOM), CONPLAN 2501-05, Defense Support of Civil Authorities (DSCA), April 2006, p. 14, obtained by the author.

61. NORTHCOM J5 Message, Military Assistance for Civil Disturbances (MACDIS) Planning Order (PLANORD), November 4, 2004, obtained by the author.

62. The SRUF supersede Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.02, Rules for the Use of Force (RUF) for DOD Personnel Providing Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States, RUF in Enclosure 2 to DOD Directive (DODD) 5210.56, Use of Deadly Force by DOD and Contract Law Enforcement Personnel on DOD Installations, and the rules for the use of force in the DOD Civil Disturbance Plan (Garden Plot).

63. USNORTHCOM Concept Plan (CONPLAN) 3502, Civil Disturbance Operations, replaced Garden Plot and CONPLAN 2502.

64. CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, June 13, 2005.

“The SRUF (Enclosures L through Q) establish fundamental policies and procedures governing the actions to be taken by US commanders and their forces during all DOD civil support (e.g., military assistance to civil authorities) and routine Military Department functions (including AT/FP duties) occurring within US territory or US territorial seas. SRUF also apply to land homeland defense missions occurring within US territory and to DOD forces, civilians and contractors performing law enforcement and security duties at all DOD installations (and off installation while conducting official DOD security functions), within or outside US territory, unless otherwise directed by the SecDef.”

See also Joint Publication 3-26.1, Homeland Defense, First Draft, October 28, 2005, p. I-25.

65. CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, June 13, 2005, p. 3.

66. “These include the concept of use of ‘minimum force,’ the general prohibition on the use of warning shots by land forces, the use of warnings to include verbal warnings, and the introduction of restrictions that go beyond that required by the SRUF that may have the inadvertent effect of depriving a Soldier of otherwise valid defenses available to federal officers acting in their official capacities. Such restrictions could come from the imposition of additional preconditions to the use of force beyond that of ‘reasonable belief,’ imposing a duty to retreat by inappropriately relying on state law as it relates to the use of force by private citizens, or by attempting to further restrict the right of self-defense.” See Domestic Operational Law Handbook 2011, p. 190.

“In RUF, the authority to use deadly force exists for limited purposes. Most RUF plans and policy reflect or incorporate the policy set forth in DOD Directive 5210.56. DOD Directive 5210.56 authorizes the use of deadly force only after a service member has determined: lesser means have been exhausted, are unavailable, or cannot be reasonably employed; the risk to innocent persons is not significantly increased by its use; and one or more of the following seven purposes apply. The draft Standing Rules for Use of Force will, when effective, assist in unifying the guidance on domestic use of force. It will also provide a consistent training template to avoid the ad hoc approach currently seen in domestic operations RUF practice.” See Center for Law and Military Operations, Domestic Operational Law (DOPLAW) Handbook for Judge Advocates, vol. I, 2005, p. 236.

67. “Do not confuse the two”—ROEs and rules for the use of force—a manual intended for tactical commanders warned. DSCA Handbook Tactical Level Commander and Staff Toolkit, p. B-1.

A draft army doctrine later referred to the SRUF mistakenly as applying “in domestic, noncombat situations”; only later was this corrected to recognize that they applied to “federal military forces performing a homeland defense mission,” which could include combat. See Department of the Army, FM 3-28 (Signature Draft—Not for Implementation), Civil Support Operations (Draft), June 4, 2010, p. 1-15; and Department of the Army, FM 3-28, Civil Support Operations, August 20, 2010, p. 3-24.

There were also warnings that separate rules for the use of force existed in each of the 54 National Guards of the states and territories, at least under state active duty and not federal mobilization. “SRUF also apply to land homeland defense missions occurring within US territory and to DOD forces, civilians, and contractors performing law enforcement and security duties at all DOD installations (and off-installation while conducting official DOD security functions), within or outside US territory, unless otherwise directed by the SecDef”; See CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, June 13, 2005, para. 3b.

68. DSCA Handbook Tactical Level Commander and Staff Toolkit, p. B-1. The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

69. Diana L. Johnson, Major, USAF, Capability Does Not Equal Authority: A Primer for Judge Advocates on Defense Support of Civil Authorities in a Natural Disaster Scenario, April 2008, p. 24.

70. Major Daniel J. Sennott, “Interpreting Recent Changes to the Standing Rules for the Use of Force,” Army Lawyer, November 2007, p. 57.

CHAPTER SIX: ALL HELL BREAKS DOWN

1. Quoted in Jiri Nehnevajsa, Civil Defense and Society (Pittsburgh: University of Pittsburgh, 1964).

2. Cheney, In My Time: A Personal and Political Memoir, pp. 341ff.

3. “New location for LLNL’s NCR BioWatch Lab,” Lab News (published for the employees of Lawrence Livermore National Laboratory), February 15, 2008.

4. Condoleezza Rice, No Higher Honor: A Memoir of My Years in Washington (New York: Crown, 2011), p. 101.

5. Bush and Rice made the same odd comment about Powell’s demeanor and calculations; see Decision Points, p. 153; No Higher Honor: A Memoir of My Years in Washington, p. 101.

6. No Higher Honor: A Memoir of My Years in Washington, p. 102.

7. The primary overall source for this narrative is Coast Guard Captain VanHaverbeke, PowerPoint briefing and report, M/V Palermo Senator, n.d. (2002); obtained by the author. See also DOJ IG, The Federal Bureau of Investigation’s Efforts to Protect the Nation’s Seaports (Redacted and Unclassified), Audit Report 06-26, March 2006; Statement of JayEtta Z. Hecker, Director, Physical Infrastructure Issues, GAO before the Subcommittee on National Security, Veterans Affairs, and International Relations, House Committee on Government Reform, “Current Efforts to Detect Nuclear Materials, New Initiatives, and Challenges,” November 18, 2002; Transcript, Admiral Thomas H. Collins, USCG, World Shipping Council, September 17, 2002.

8. DHS, Chronology of Changes to the Homeland Security Advisory System, May 5, 2011.

9. The White House, Presidential Decision Directive 39 (PDD-39), US Policy on Counterterrorism, June 21, 1995; originally secret.

10. “The FBI scientific portion… is the Hazardous Material Response Unit, which is based out of Quantico, Virginia”; Proceedings, DTRA First Biennial Threat Reduction Conference, Waterside Marriott Hotel, Norfolk, Virginia, September 4–7, 2001, p. 102. “FBI Evidence Recovery Teams and the FBI Hazardous Material Response Unit (HMRU) handle the collection of forensic evidence from a contaminated crime scene”; CNI 3400.17, Navy Installation Emergency Management Program Manual, October 27, 2005.

“In 1996, the FBI responded to the growing threat posed by WMD by creating the Hazardous Material Response Unit (HMRU) to gather and process evidence at scenes involving chemical, biological and/or radiological materials. Responsibility for analysis of the material was moved to the FBI’s newly created Chemical Biological Sciences Unit (CBSU) in April of 2002”; LLNL (Donald Prosnitz), Department of Justice Role in Countering WMD, January 13, 2004, p. 3.

11. Ronald Smothers, “Ship’s Radiation Is Traced to Harmless Tiles,” New York Times, September 14, 2002; Ronald Smothers, “Vigilance and Memory: New Jersey; Container Ship Is Held Offshore After Search Discovers Radiation,” New York Times, September 12, 2002; ABC News, Pierre Thomas, “Detained Ship Searched for Radioactive Material,” September 12, 2002; http://abcnews.go.com/WNT/story?id=130115&page=1#.T66Tw8XwDKc (accessed May 12, 2012); FoxNews.com, “Navy SEALs Inspecting Radioactive Ship off New Jersey,” September 12, 2002; http://www.foxnews.com/story/0,2933,62897,00.html#ixzz1ufTrrsb1 (accessed May 12, 2012).

12. DHS, T4 FSE Private Sector Player Handbook, FINAL, October 9, 2007, p. 3, obtained by the author; FEMA, National Exercise Division, Homeland Security Exercise and Evaluation Program, Quarterly Newsletter, Summer 2008.

13. State of Oregon, The TOPOFF 4 Exercise, Fact Sheet, 2007; http://www.oregon.gov/osp/docs/oregon_t4_fact_sheet.pdf (accessed October 29, 2012); FBI press release, The Topoff Terror Drill; Why It Matters to Us and You, October 19, 2007.

14. JFHQ-NCR Exercise Order 06-0 (TOPOFF 4 CPX 06), June 6, 2006, obtained by the author.

CHAPTER SEVEN: ENOUGH TO MAKE YOU SICK

1. Arizona Department of Health Services (Developed and Maintained by the Bureau of Emergency Preparedness and Response), Pandemic Influenza Mass Fatality Response Plan, June 22, 2007 (Version 4.0), p. 11; obtained by the author.

2. Department of Energy Performance and Accountability Report: FY 2001, p. A60; “BASIS Counters Airborne Bioterrorism,” Science and Technology Review (LLNL), October 2003; Lauren de Vore, “New location for LLNL’s NCR BioWatch Lab,” Livermore Lab Newsline, February 15, 2008.

3. Dugway Proving Ground FAQs, What biological agents were tested at Dugway Proving Ground?, September 8, 2008. “The following are the principal biological agents that were used in testing:

• a. Bacillus anthracis
• b. Brucella melitensis
• c. Brucella suis
• d. Clostridium botulinum toxin
• e. Coccidioides
• f. Coccidioides uranine
• g. Coxiella burnettii
• h. Pasteurella pestis (Versinia pestis)
• i. Pasteurella tularensis (Francisella tularensis)
• j. Psittacosis virus.”

4. Department of Defense Fiscal Year (FY) 2011 President’s Budget, Chemical and Biological Defense Program Justification Book, Research, Development, Test & Evaluation, Defense-Wide, February 2010, pp. 515–516.

5. In August 2001, Livermore and Los Alamos scientists successfully characterized types of pathogens with detectors in a program called Biological Aerosol Sentry and Information System (BASIS); Department of Energy Performance and Accountability Report: FY 2001, p. A60.

6. “BASIS Counters Airborne Bioterrorism,” Science and Technology Review (LLNL), October 2003.

7. Nancy S. Bush, “BioWatch: Case for Change of Traditional Leadership to Improve Performance,” master’s thesis, Naval Postgraduate School, September 2009, p. 34; “BASIS Counters Airborne Bioterrorism,” Science and Technology Review (LLNL), October 2003; North American Technology and Industrial Base Organization (NATIBO), Biological Detection System Technologies: Technology and Industrial Base Study; A Primer on Biological Detection Technologies; Final Report, February 2001, p. 7.29.

8. Angler: The Cheney Vice Presidency, pp. 185, 226–234, 343.

9. No Higher Honor: A Memoir of My Years in Washington, pp. 99–100.

10. In February 2001, President Bush asked Vice President Cheney to undertake a review of issues related to how well prepared the United States was domestically to deal with incidents of weapons of mass destruction; Responding to Terror: A Report of the US Army War College Consequence Management Symposium, August 21–23, 2001, p. 81.

11. Nancy S. Bush, “BioWatch: Case for Change of Traditional Leadership to Improve Performance,” master’s thesis, Naval Postgraduate School, September 2009, p. 34. See Cheney: The Untold Story of America’s Most Powerful and Controversial Vice President, pp. 319ff, for a description of the WMD assignment to Cheney’s office.

12. DHS, FY 2013 Budget Request and Supporting Information: Office of Health Affairs, p. 2255.3

13. DHS, National Capital Region Coordination: First Annual Report to Congress, 2005, p. F-4; Integrated Chemical and Biological Defense Research, Development and Acquisition Plan: Chem-Bio Point Detection, Decontamination and Information Systems Technology Areas, April 2003, p. 28; Defense Science Board 2003 Summer Study on DOD Roles and Missions in Homeland Security, p. 40.

14. An excellent summary of the group and the incident is contained in Army Training and Doctrine Command TRADOC G2 Handbook No. 1.01, Terror Operations: Case Studies in Terrorism, July 25, 2007. See also Senate, Committee on Government Affairs, Subcommittee on Investigations, Hearings, Global Proliferation of Weapons of Mass Destruction, 31 October–1 November 1995, Part 1, pp. 68–80. See also Judith Miller, William J. Broad, and Stephen Engelberg, Germs: Biological Weapons and America’s Secret War, pp. 151–163.

15. Other events occurred during the same period to convince the president and the Clinton administration of the growing WMD threat; in August 1995, Saddam’s minister of industry, his son-in-law, and a gaggle of family members showed up at the Jordanian border, ready to spill the beans on how Iraq continued to hold back and how Saddam successfully hid his biological weapons program from UN inspectors. The defectors presented chapter and verse on Saddam’s various foreign partners in the acquisition of forbidden material, including Sudan, where the radical Osama bin Laden was living and already the subject of WMD intelligence reports. Intelligence also showed Iraq-Serbian cooperation in the development of chemical weapons, and what seemed like an increasingly vibrant trade in both nuclear technology and missiles being perpetrated by North Korea, Pakistan, China, Russia, and various brokers from the former Soviet Union. When the FBI got its hands on an al Qaeda defector in 1996, the WMD scare went viral. Jamal Ahmad al-Fadl spoke of bin Laden’s attempts to obtain chemical weapons and to buy highly enriched uranium from South Africa, as well as details of al Qaeda contacts with Iranian, Pakistani, former Soviet, and North Korean chemical and nuclear experts and brokers, this information being fed directly to the president. Tenet later wrote: “We learned [from al-Fadl] that al Qaeda had attempted to acquire material that could be used to develop chemical, biological, radiological, or nuclear weapons capability. He had gone so far as to hire an Egyptian physicist to work on nuclear and chemical projects in Sudan”; George Tenet, At the Center of the Storm: My Years at the CIA, p. 102.

16. George Tenet, then a national security staffer at the White House, drafted the directive; Richard A. Clarke, Against All Enemies: Inside America’s War on Terror, p. 387. Richard Clarke, also then a national security staffer and one of the drafters, says he inserted the language about WMD, an inclusion, he later writes, that other departments found “odd.”

“No one in the departments objected to my including a policy on counterterrorism and weapons of mass destruction; they just thought it was odd”; Against All Enemies: Inside America’s War on Terror, p. 92.

17. The White House, Presidential Decision Directive 39 (PDD-39), US Policy on Counterterrorism, June 21, 1995; originally secret.

18. In 1979 the FBI director and the Coast Guard commandant additionally signed an MOU agreeing to a policy of mutual assistance in support of FBI and coast guard operations to counteract terrorist activities in the maritime environment. According to the MOU, the FBI: maintains a large number of strategically located Special Weapons and Tactics (SWAT) teams; has personnel trained to act as negotiators in dealing with terrorists’ demands; and can use SWAT teams to suppress terrorists’ actions during direct confrontation scenarios. See DOJ OIG, The Federal Bureau of Investigation’s Efforts to Protect the Nation’s Seaports (Redacted and Unclassified), Audit Report 06-26, March 2006.

As former FBI Director Louis Freeh stated before 9/11, PDD-39 states: “Unless otherwise specified by the Attorney General, the FBI shall have lead responsibility for operational response to terrorist incidents that take place within U.S. territory or that occur in international waters and do not involve the flag vessel of a foreign country. Within this role, the FBI functions as the on-scene manager for the US Government.” Moreover, “the FBI shall have lead responsibility for investigating terrorist acts planned or carried out by foreign or domestic terrorist groups in the US or which are directed at US citizens or institutions abroad.” See Testimony of Louis J. Freeh, Director, FBI, before the House Appropriations Subcommittee, May 16, 2001.

See also The White House, Presidential Decision Directive 39 (PDD-39), U.S. Policy on Counterterrorism, June 21, 1995 originally secret.

19. PL 104-201, September 23, 1996, also known as Nunn-Lugar-Domenici Act.

20. Richard Preston, The Cobra Event (New York: Random House, 1st edition, 1997).

21. In April 1998, President Clinton hosted a roundtable at the White House with Dr. J. Craig Venter, head of the Institute for Genomic Research; Joshua Lederberg; and Jerry Hauer, director of emergency services in New York, to discuss biological weapons. The three urged the president to start a crash program to improve US public health capabilities and build a national vaccine stockpile. See Daniel Benjamin and Steven Simon, The Age of Sacred Terror: Radical Islam’s War Against America, p. 254.

22. “A lone madman or fanatics with a bottle of chemicals, a batch of plague inducing bacteria or a crude nuclear bomb can threaten or kill tens of thousands of people in a single act of malevolence,” Cohen repeated. “These are not far off or far-fetched scenarios. They are real; they are here; and they are now”; Bill Gertz, “Cohen Details Threats Posed by Baghdad,” Washington Times, November 26, 1997.

In his last press conference as secretary of defense, William Cohen released the study Proliferation: Threat and Response (January 2001), which stated:

At the dawn of the 21st Century, the United States now faces what could be called a Superpower Paradox. Our unrivaled supremacy in the conventional military arena is prompting adversaries to seek unconventional, asymmetric means to strike what they perceive as our Achilles heel.… Looming on the horizon is the prospect that these terror weapons will increasingly find their way into the hands of individuals and groups of fanatical terrorists or self-proclaimed apocalyptic prophets. The followers of Usama bin Laden have, in fact, already trained with toxic chemicals.… The race is on between our preparations and those of our adversaries. There is not a moment to lose.

23. Tom Ridge and Larry Bloom, The Test of Our Times: America Under Siege… And How We Can Be Safe Again, p. 48.

24. The conference call took place on January 9, 2003, hosted by the Environmental Council of the States. The state EPA departments were instructed to coordinate with state homeland security advisors and health departments after the call; however, those entities were not invited to the initial planning calls or meeting regarding the program and were never given a chance to contribute to the planning and rolling out of the program; Nancy S. Bush, “BioWatch: Case for Change of Traditional Leadership to Improve Performance,” master’s thesis, Naval Postgraduate School, September 2009, pp. 5–6, 33–34.

25. The White House, Executive Office of the President, State of the Union Address, January 28, 2003.

26. Commencing January 10, 2003, the White House Office of Homeland Security (later to become the Department of Homeland Security) embarked on the effort, with support from the Environmental Protection Agency (EPA), the Centers for Disease Control and Prevention (CDC), the Department of Health and Human Services (DHHS), the Department of Energy (DOE), the DOD, the FBI, and the National Laboratories. See DHS IG, DHS’ Management of BioWatch Program, OIG-07-22, January 2007, p. 4; EPA OIG, Evaluation Report, EPA’s BioWatch Role Reduced, Report No. 10-P-0106, April 20, 2010.

27. “In the event of a bioattack, thousands of samples, collected both from BioWatch sensors and from the environment, would require lab analysis. DHS S&T is part of the Integrated Consortium of Laboratory Networks (ICLN), formed in 2005 to harmonize analytical protocols and to ensure that results from the wide array of federal, state and private laboratories involved in evaluating BioWatch samples are comparable. ICLN is addressing such questions as how labs would work together to confirm the nature and extent of contamination following a biological (or chemical or radiological) release.” Testimony of Tara O’Toole before the House Subcommittee on Homeland Security Appropriations, on Biosurveillance, April 16, 2010.

28. “In March 2003, emplacement of outdoor and indoor air sample collectors and implementation of filter retrieval and sample analysis on a once per day cycle was achieved. With the elevation of the Homeland Security Advisory System from Yellow to Orange on December 22, 2003, increased BioWatch Urban Monitoring for the NCR was implemented by increasing the sample collection and analysis cycle to twice per day. This operational tempo was maintained until April 2005 when sample collection and analysis was reduced to once per day. In FY 2004, BioWatch expanded coverage in the NCR by deploying additional collectors in Northern Virginia and Maryland. Additional underground Metro stations had collectors installed to enhance coverage of the system. BioWatch also added multiplexed bio-toxin detection to the system capability to the NCR in conjunction with CDC/DHHS and LLNL during this time frame.” See DHS, National Capital Region Coordination: First Annual Report to Congress, p. F-4.

29. Nancy S. Bush, “BioWatch: Case for Change of Traditional Leadership to Improve Performance,” master’s thesis, Naval Postgraduate School, September 2009, p. 27.

30. DHS, National Planning Scenarios: Created for Use in National, Federal, State, and Local Homeland Security Preparedness Activities, April 2005; Scenario 1: Nuclear Detonation—10-kiloton Improvised Nuclear Device, obtained by the author.

31. National Security Presidential Directive 43/Homeland Security Presidential Directive 14, Domestic Nuclear Detection, April 15, 2005. DNDO was established as a statutory entity via Section 501 of the SAFE Port Act of 2006. See Security and Accountability for Every Port Act of 2006, HR 4954, §§ 501-502 (2006) (“SAFE Port Act”).

32. DHS, Exploratory Research in Nuclear Detection Technology, Broad Agency Announcement No. BAA09-101 for Domestic Nuclear Detection Office (DNDO) and Transformational and Applied Research Directorate (TARD), p. 4.

DNDO also would coordinate nuclear forensics efforts across the US government with the Federal Bureau of Investigation, the Departments of Defense, Energy, and State, and the Office of the Director of National Intelligence. “Nuclear forensics helps trace the origin of seized nuclear and other radioactive materials or devices, supports the identification of smuggling networks, aids prosecution efforts of such illicit trafficking, and assists in uncovering vulnerabilities in security measures to ensure nuclear and other radioactive materials remain under regulatory control”; DHS, 2012 Nuclear Security Summit, as of April 5, 2012.

33. DHS, Job Description DHSHQ 09-2007, Nuclear Assessment Specialist, 2007.

34. GAO, Combating Nuclear Terrorism: DHS’s Program to Procure and Deploy Advanced Radiation Detection Portal Monitors Is Likely to Exceed the Department’s Previous Cost Estimates (Letter Report to Congressional Requesters), September 22, 2008; GAO-07-133R DNDO’s Cost-Benefit Analysis, October 17, 2006, p. 4.

35. The Southeast Transportation Corridor Pilot (SETCP), launched in 2008, was designed to “red team” a sensor web. The idea was to take radioactive material that represented a threat and see if operators at truck weighing stations could detect it; DHS, The DHS Domestic Nuclear Detection Office Goes NIEM, from a Portfolio of NIEM Success Stories, 2010.

36. Statement of Warren M. Stern, Director, Domestic Nuclear Detection Office, Department of Homeland Security, Before the House Committee on Science, Space, and Technology Subcommittee on Technology and Innovation Research and Development Priorities and Strategic Direction, March 15, 2011.

37. In June 2002, Congress passed the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act).

38. The White House, National Strategy for Homeland Security, July 2002. The National Strategy also identifies as crucial the need for sharing vulnerability assessment information between federal and nonfederal agencies, and particularly with the private sector. To do this effectively, the “law” section of the National Strategy recommends that an attorney general–led panel propose the legal changes needed to enable the sharing of essential security information. The legal changes would give the private sector reasonable assurance that good faith disclosures about vulnerabilities and preparedness would not expose firms to liability, a drop on share value, loss of competitive advantage, or antitrust action.

39. DHS, National Planning Scenarios: Created for Use in National, Federal, State, and Local Homeland Security Preparedness Activities, April 2005; Scenario 13: Biological Attack—Food Contamination. See also Association of State and Territorial Health Officials, “Issue Brief: State Activities in Food Security,” April 2004.

The three incidents are:

• In 1984, members of the Bhagwan Rajneesh cult poisoned ten Oregon salad bars with salmonella, resulting in 751 individual cases of illness.
• In 1996, a disgruntled employee of a Texas hospital tainted snacks in a staff break room, causing 12 illnesses.
• In 2003, a Michigan supermarket employee infected 200 pounds of beef with an insecticide, causing 92 illnesses.

40. FDA, Risk Assessment for Food Terrorism and Other Food Safety Concerns, October 13, 2003.

41. President’s Council of Advisors on Science and Technology, The Science and Technology of Combating Terrorism, July 2003, p. 5.

42. Homeland Security Presidential Directive (HSPD) 9, Defense of United States Agriculture and Food, January 30, 2004.

HSPD 9 set out numerous related requirements for DHS, USDA, and FDA, among other federal agencies, and appointed DHS “responsible for coordinating the overall national effort” to protect the food and agriculture sectors, and designated the DHS secretary as “the principal [f]ederal official to lead, integrate, and coordinate implementation of efforts” among federal, state, local, and private sector elements (paragraph 6).

43. William Branigin, Mike Allen, and John Mintz, “Tommy Thompson Resigns from HHS,” Washington Post, December 3, 2004.

44. Lawrence M. Wein and Yifan Liu, “Analyzing a bioterror attack on the food supply: The case of botulinum toxin in milk,” Proceedings of the National Academy of Sciences, July 12, 2005, pp. 9984–9989.

45. FDA, “Risk Assessment for Food Terrorism and Other Food Safety Concerns,” October 13, 2003.

46. DHS, National Infrastructure Protection Plan, June 30, 2006, p. 1. The plan stated that the impact of an attack on food would undermine “the public’s psychological well-being, and the effectiveness of government.”

47. DHS IG, DHS’ Role in Food Defense and Critical Infrastructure Protection, p. 2.

48. DHS IG, DHS’ Role in Food Defense and Critical Infrastructure Protection, p. 15.

49. Vice Admiral Richard H. Carmona, MD, MPH, FACS, United States Surgeon General, “Prevention and Preparedness: Medical Reserve Corps Serving America,” Nashville Surgical Society, remarks as prepared; not a transcript; Tuesday, October 7, 2003.

50. Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Report of the Committee on Armed Services, House of Representatives, Report 110-652, 2008, p. 652.

51. Department of Homeland Security Appropriations Bill, 2013, Senate Report 112-169, p. 103.

52. If automated and more ubiquitous Generation 3 BioWatch detectors are installed, the cost will be four times that. DNDO’s ten-year plan to equip ports of entry with new radiation detection equipment could run as much as $3.8 billion through 2017. See GAO, Combating Nuclear Terrorism: DHS’s Program to Procure and Deploy Advanced Radiation Detection Portal Monitors Is Likely to Exceed the Department’s Previous Cost Estimates (Letter Report to Congressional Requesters), September 22, 2008.

53. US HLS-HLD Markets—2011–2014, p. 68.

54. Al Mauroni, “Progress of ‘Biodefense Strategy for the 21st Century’: A Five-Year Evaluation,” in Army War College, Strategic Studies Institute Book Project on National Security Reform, Case Studies Working Group Report, vol. II, March 2012, p. 161.

55. Statement of Warren M. Stern, Director, Domestic Nuclear Detection Office, Department of Homeland Security, Before the House Committee on Science, Space, and Technology Subcommittee on Technology and Innovation Research and Development Priorities and Strategic Direction, March 15, 2011.

56. DHS, Exploratory Research in Nuclear Detection Technology, Broad Agency Announcement No. BAA09-101 for Domestic Nuclear Detection Office (DNDO) and Transformational and Applied Research Directorate (TARD), p. 4.

57. DHS, The DHS Domestic Nuclear Detection Office Goes NIEM, from a Portfolio of NIEM Success Stories, 2010.

58. Nominations before the Senate Armed Services Committee, Second Session, 111th Congress, S. Hrg. 111-896, 2010, p. 181.