Using the Military At Home

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• MARGARET WARNER:

  In the days following Hurricane Katrina, chaos reigned, with looting in the streets of New Orleans and mayhem at the city's convention center. The situation provoked confusion and, later, recriminations over how quickly federal troops should have gotten involved in responding to the disaster. Soldiers from the 82nd Airborne Division did not arrive in New Orleans until four days after Katrina hit.

• SPOKESMAN:

  The priority today is to keep patrolling the city and the French Quarter and make sure there's no looters or anything crazy that shouldn't be going on.

• MARGARET WARNER:

  Within days, some 22,000 active duty soldiers and 50,000 National Guard troops were on the ground providing security, rescue and recovery duties. Last Sunday, in San Antonio, President Bush suggested Congress might want to rethink the military's role in natural disasters.

• PRESIDENT GEORGE W. BUSH:

  Is there a circumstance in which the Department of Defense becomes the lead agency? Clearly, in the case of a terrorist attack, that would be the case. But is there a natural disaster which… of a certain size that would then enable the Defense Department to become the lead agency in coordinating and leading the response effort? That's going to be a very important consideration for Congress to think about.

• MARGARET WARNER:

  Several federal laws limit the role U.S. soldiers can play inside the United States. The reconstruction-era Posse Comitatus Act of 1878 prohibits federal troops from acting in a domestic law enforcement capacity unless specifically authorized by Congress. Secretary of Defense Rumsfeld told reporters today that the Pentagon followed the law in the Katrina situation, relying on state and local governments to take the lead.

• DONALD RUMSFELD:

  The reality was that the first responders at the state and local level were, in large measure, victims themselves, and, as such, somewhat overwhelmed by the catastrophic nature of the Hurricane Katrina and the floods that followed. So we had a situation that was distinctively different than the normal situation, which works pretty well for a normal natural disaster or even a normal manmade disaster. And the president's point was that there are some things that are of sufficient magnitude that they require something to substitute for the overwhelmed first responders at the state and local level. And that is the issue that he's thinking about.

• MARGARET WARNER:

  Some members of Congress are calling for a review of the use of active military in domestic disasters.

• MARGARET WARNER:

  So, should the U.S. Military be given a more prominent role in responding to natural disasters in the United States? To explore that, we turn to: Lawrence Korb, former assistant secretary of defense for manpower and personnel during the Reagan administration– he's now a senior fellow at the Center for American Progress, a progressive think tank; and Gene Healy, an attorney and a senior editor at the Cato Institute, a libertarian think tank. Welcome to you both.

  Larry Korb, let's just go right to the president's question that he laid on the table. Should the military be given lead responsibility in disasters on the scale of Katrina?

• LAWRENCE KORB:

  When you have a disaster that overwhelms state and love government and requires a federal response, the Department of Defense is the agency best positioned to do it. They know how to plan. They're very good at logistics. They've got the resources. And they got people, field commanders, who know how to take charge in a difficult situation.

• MARGARET WARNER:

  And would you give them this responsibility? If you knew the disaster was coming, as indeed with Katrina, there was warning, are you talking about ahead of time?

• LAWRENCE KORB:

  Well, I would give it to them. The president mentioned that they have the lead responsibility if there's a terrorist attack. What we saw with Katrina is that a natural disaster can be as devastating or almost as devastating as a terrorist attack — so I think in terms of planning for catastrophic attacks, whether they're by terrorists or whether they're natural.

• MARGARET WARNER:

  What's your view of that question?

• GENE HEALY:

  Well, I'm very cautious about these proposals to weaken the Posse Comitatus Act. We've long had a tradition in American law of being very reluctant to engage standing armies in keeping the peace domestically. And I think that's where the line should be drawn.

  I think it's important to keep in mind that the Posse Comitatus Act and the state of federal law right now do not prevent logistical help. And they do not prevent even in very extraordinary circumstances the use of active duty military in a policing role. What they do say is that this should be a last resort.

  This should not — you do not want to institutionalize a principle where what goes through policymakers' heads is, when in doubt send in the 82nd Airborne. I think that would be very dangerous.

• MARGARET WARNER:

  Before we delve further into this, Larry Korb, what would you add on the state of the law now — is it that the U.S. military is used on American soil only as a last resort?

• LAWRENCE KORB:

  Essentially, you have got two conflicting laws. Gene is right about the Posse Comitatus law which does limit the role of federal troops. Don't forget you have National Guard troops which can be under the control of the governor who can do these things. They have a dual mission.

  You've also got the Insurrection Act which is based on Article 1 of the Constitution which says that if the president determines that law and order has broken down or a particular class of individuals is being disenfranchised he can take charge as President Eisenhower did in Little Rock, President Kennedy did it. Bush's father sent in troops to… active duty troops into Los Angeles in 1992 when the riots came out there.

• MARGARET WARNER:

  And there have been some exceptions carved out even under the Posse Comitatus Act. Isn't that true? I mean, say drug enforcement. Hasn't Congress chipped away at that a little bit?

• GENE HEALY:

  Yes. I think that's been a mistake. In 1997 there was an incident where a Marine Corps anti-drug patrol shot and killed an 18-year-old American high school student. And the Pentagon's internal investigation after that said, you know, one of the reasons for this is because these soldiers were — had an aggressive spirit and were combat trained. Now, that's exactly how you want your soldiers to be trained, but it also points out, I think the difficulty of when you start mixing these two functions.

  I think Mr. Korb put it best himself some years ago when he said that the military is trained to, quote, vaporize, not Mirandize.

• MARGARET WARNER:

  Meaning issue the Miranda warning.

• GENE HEALY:

  Right. I think that's important. I think it what makes our forces so effective. And I think it's also one of the things that should make us a little cautious about throwing this principle out the window.

• MARGARET WARNER:

  What's your response to that?

• LAWRENCE KORB:

  Well, I think that after Sept. 11, whether we like it or not, particularly with a terrorist attack we're going to give the military that role. And I think you need to train them to do that.

  When I made that comment, yes, I was concerned about what would happen using the Marines which I thought was really they weren't needed back then to deal with, you know, people trying to come over the border.

  But since 9/11, we have used the military and we're planning to use them in a terrorist attack. And what you need to do is have peacekeeping and stabilization divisions. And the role the military has changed. I mean we've used the military for peacekeeping in Bosnia. We've used it for peacekeeping in Somalia so we've used it in a lot of places so the military role is changing.

  And, yes, you did have that unfortunate incident but you had nothing when Eisenhower sent them in, Kennedy sent them in, President Bush's father sent them in. You did not have any incidents because they were well trained. And they followed orders.

• MARGARET WARNER:

  Is there also a difficulty, Mr. Healy, or could there be in having to train the military for this additional function? Or do you accept Mr. Korb's argument that, in fact, whether it's in Iraq or in Bosnia or in a lot of places, in fact the police, I mean the U.S. military are now doing policing functions?

• GENE HEALY:

  Well, that is a valid point, though I would say that counterinsurgency warfare is not an appropriate sort of training in the rules of engagement that operate there – are not the — are certainly not the sorts of rules that you would want to see operate in an American city.

  I mean you may remember General – Lt. Gen. Russell Honore when he went into New Orleans. He told his soldiers, you know, keep your guns down; this isn't Iraq. And I think that reflected a real appreciation that we're talking about two different functions here.

  I personally would rather see us, when civilian law enforcement fails; I think this is a better role for the National Guard under the command of the state governors.

• MARGARET WARNER:

  That raises the other really sensitive issue, which is, okay, on whose say-so should federal troops go in? And the question is: Do you wait for the governor to ask for the help, or should the circumstances be widened under which a president could just, on his own or her own authority say, we're activating American active duty forces?

• LAWRENCE KORB:

  Well, I think it's the president's judgment. He has to decide whether in fact the state is up to the job. Now obviously it works better if the state asks them to send the troops in, then you don't have any constitutional issues, but the fact of the matter is the president has to make that judgment.

  If, in fact, the state is not up to the job or if the National Guard troops are deployed overseas, for example, as they're being used now, I think this is important for the Pentagon to be planning ahead of time so that when the president makes the decision, they know what to do. I agree we ought to use National Guard when we can. But remember National Guard troops are trained in the same way active forces are. They're used very much. So the idea that they're under state control doesn't change the way that they've been trained.

• MARGARET WARNER:

  Is it constitutional, I mean, just under our current system, for a president to usurp the governor's powers in this regard?

• GENE HEALY:

  Well, under — the Constitution seems to prefer in Article 4 Section 4 that there is a request from the state government — the Insurrection Act does have a provision that allows even over the objection of the state governor that allows the president to send in active duty military. The president —

• MARGARET WARNER:

  A certain class of citizens isn't being protected?

• GENE HEALY:

  Well, it's actually when the law — federal law cannot be enforced. This is what Eisenhower used in Little Rock. I don't think it's something we want to — the way the law draws a line now is the president should think twice before he does this.

  He still has the power in an extraordinary circumstance, but I think there are legitimate reasons that we would want the president to think twice before going in militarily over the objection of the sitting state governor. I think federalism matters here.

• MARGARET WARNER:

  The final question that came up at this hearing. If homeland security and FEMA were on top of their game in terms of coordination, would we even be having this conversation? Or would it obviate the need for having the military take charge?

• LAWRENCE KORB:

  Well, some day they may be but it's clear to me they're not now. I mean, four years after Sept. 11, the Department of Homeland Security was supposed to be planning for 15 different scenarios. And it's clear to me that they can't handle it. Maybe at some point they might. But I think we don't have time to wait because you could have not only just another natural disaster, another terrorist attack and I would prefer that when the president makes this judgment — however the circumstances may be — that it goes quickly and we save more lives.

• MARGARET WARNER:

  What's your view on that?

• GENE HEALY:

  I'm just concerned, you know, after we've seen another instance of colossal government failure on the state, local and federal level and too often the rush to judgment is, well, how can we centralize more power and, you know, use the military to carry out some of these goals?

  I'd rather see some examination of what went wrong here and how they can use — state, local and federal officials can use their considerable powers to deal with disaster relief without having a militarized, you know, federal war on hurricanes which seems to be what a lot of the talk in Washington is centering around.

• MARGARET WARNER:

  No federal war on hurricanes. Gene Healy, Larry Korb, thank you both.

• LAWRENCE KORB:

  Thank you.

• GENE HEALY:

  Thank you.