Trigger power

JOHN YOO, a professor of law at UC Berkeley and a visiting scholar at the American Enterprise Institute, is the author of "The Powers of War and Peace"(University of Chicago Press, 2005).

AS OFFICIAL Washington starts investigating the government’s tardy response to Hurricane Katrina, President Bush floated an idea of his own. This week, he called on Congress to consider a new law to allow presidents to deploy the military immediately after a natural disaster.

Critics jumped all over the idea. Members of the White House press corps want to know why Bush needs to “bypass our civilian rule over the military” and why he needs “trigger power” to take over during a catastrophe. Libertarians worry about overkill in terms of federal power and military action. The military is trained to vaporize, after all, not Mirandize.

Both the administration and its critics are overreacting. Congress doesn’t need to pass new laws because Bush already had the power to send federal troops to New Orleans. And with no lasting harm to the republic, the military has often engaged in domestic crises in the past. It, after all, has the resources and structure to swiftly deploypeople and materiel, provide food, housing and medical care to thousands and restore law and order in the worst of circumstances.


But the United States has an aversion to using the federal military for domestic problems. And before calling on the military’s massive resources, presidents generally wait on a request from a governor. News reports suggest that Louisiana Gov. Kathleen Babineaux Blanco’s failure to make a full and timely request resulted in a significant delay in getting needed help.

The wall of separation between the domestic, civilian realm and the military rests on law enforcement. Law enforcement is the primary responsibility of the states, whose agencies have the best knowledge of local conditions and crime patterns. Under the 1878 Posse Comitatus Act (in the context of post-Civil War Reconstruction), Congress prohibited use of the military “to execute the laws.”

But the Posse Comitatus Act bears three important exceptions: The president can deploy troops to the states for uses specifically authorized by law, for non-law-enforcement activities or for uses pursuant to presidential constitutional authority.

Under versions of the Insurrection Act, President Washington called out the militia to suppress the 1794 Whiskey Rebellion, and Eisenhower ordered federal troops to enforce desegregation in the South. The Insurrection Act permits the president to send troops when “any insurrection, rebellion, domestic violence, unlawful combination or conspiracy” blocks the enforcement of federal law. It allowed President George H.W. Bush to send troops to restore order during the 1992 Los Angeles riots.

Under the heading of “non-law-enforcement activities,” the armed forces routinely support the Drug Enforcement Agency’s efforts to intercept drug traffickers. Neither the courts nor Congress consider that use of a Coast Guard vessel, for instance, to ferry DEA agents rises to the level of law enforcement as long as civilian officials actually arrest the smugglers. The military can also be ordered into situations solely for relief or rescue efforts after disasters.

Under his constitutional authority as commander in chief, the president can also deploy troops to protect the nation from foreign attack. After the Sept. 11 attacks, jet fighters, on Bush’s order, patrolled above New York City and Washington, D.C., armed soldiers guarded airports, and troops provided security at the 2002 Winter Olympics. The Pentagon made it a point to ensure soldiers operated in a restrained manner toward civilians in such situations.

These examples show that even under the Posse Comitatus limitations, President Bush could have quickly called on the military after Katrina, with or without the governor’s request. If order breaks down to the point where federal laws -- those protecting mail, telecommunications or interstate commerce and travel, for instance -- are not enforced (as appeared to happen amid the chaos of New Orleans), the Insurrection Act would apply. If Bush had restricted the military to relief efforts only, he could also have sent in troops and remained in compliance. If Katrina’s destruction had been judged to have harmed American national security, perhaps by crippling its oil supply, he could have sent forces to restore those operations.

But the president has powers that extend even beyond these exceptions. Federal disaster law already specifically allows the president to declare a national emergency in an area where “the United States exercises exclusive or preeminent responsibility and authority” under the Constitution. That phrase is vague, but most would agree that a catastrophic hurricane that causes widespread death and destruction in three states would qualify. Once a national emergency has been declared, the president can send troops to provide assistance and restore order.

There is an appropriate cultural reluctance toward the use of military might within the United States. One of the features of our constitutional democracy is that our military, unlike those of many other nations, does not police civilians. But we also have plenty of legal triggers and historical precedents that allow governors and the president to overcome that reluctance when confronted by disasters or emergencies.

In the case of Katrina, the lesson is not that federalism -- our system of separating state and federal power -- failed us. We do not need another law to trigger federal action in a national emergency. What we need is better definition and execution of disaster responsibilities at all levels of government and more leadership on both the state and federal level to use the laws that are already in place.