Should the Military Be Called in for Natural Disasters?

Skeptics of the military mission at home question whether this signals a "creeping militarism" into our civilian culture and the erosion of the Posse Comitatus Act, a 130-year-old law that specifically bars the President from using the military for law enforcement in the United States.

 

"The founding fathers had a fear of standing armies," says Stephen Dycus, who teaches national security law at Vermont Law School and co-authored a book on the subject, National Security Law. "Posse Comitatus is one expression of that. We’ve always had a problem of having the military involved in civil affairs. On the other hand, if we got in a bind, such as a plague released in Chicago, the only way to get out is to have the military involved. They’ve got the personnel, the training and the experience in use of force that other parts of the government don’t have."

The Pentagon insists Posse Comitatus is not going to be an issue because the 20,000 troops will play no role in actual law enforcement. "The first point to make, our department understands and respects the concerns that have been voiced – even under circumstances where some of the concerns are not well based in fact," says Paul McHale, the outgoing assistant defense secretary for homeland defense, who vows transparency about the mission. McHale says he met with the American Civil Liberties Union a few weeks ago to give assurances that the proposals will not infringe on the basic rights of civilians. "We believe that when there is a serious review of what we are doing, that what we are doing is appropriate and noteworthy in terms of enhanced security without any threat to civil liberties."

Proponents of the program say it makes a lot of sense to give troops specific training for how to deal with disaster response, because inexperienced troops have often been called upon to help out by sending in much-needed supplies. "You really do want people who are trained and thinking about this specific mission," says George Koenig, a former marine who previously served as counsel to the general counsel for the Department of Homeland Security during the immediate aftermath of Hurricane Katrina. "You don’t want to pull someone who is training for combat missions." Still, Koenig acknowledges that even a properly trained military is not right for the long-term job of dealing with a disaster’s aftermath. And, he says, "The one drawback [could be that] most people sign up for the military; they are not signing up for this type of thing."

Gene Healy, a vice president of the libertarian Cato Institute and author of The Cult of the Presidency, maintains the biggest danger is the possibility of mission creep because there just aren’t that many terrorist attacks and disasters to keep the military busy on a regular basis.

"I don’t share the view that this is some sinister plot," Healy says. "There is the danger where we keep militarizing. When we say we really need active duty military, combat-ready troops for homeland security, there’s a danger of collateral damage to American lives and property and a danger to democracy."

But others do fear sinister plots, and there is some historical justification for that. They date back to the 1980s, when Lt. Col. Oliver North worked with the Federal Emergency Management Agency (FEMA) to provide for the continuity of government in the wake of insurrection or an atomic attack. He sought to put together an emergency process whereby the President, through FEMA, would temporarily take over broad unprecedented powers, including censorship, the suspension of habeas corpus and the seizure of production, from farms to manufacturing plants. As part of the operation, FEMA might even assume authority over all Defense Department personnel and National Guard forces, according to Guts and Glory, Ben Bradlee, Jr.’s book about North.

More recently, since 9/11, the Bush administration has attempted to stiff-arm the Posse Comitatus law as part of the war on terror. Barely a month after the September 11 terror attacks, on Oct. 23, 2001, then Deputy Assistant Attorney General John C. Yoo co-wrote a memo regarding "Authority for the Use of Military Force to Combat Terrorist Activities Within the United States." Jay Bybee, then chief of the Office of Legal Counsel, acknowledged in a later memo that the act generally prohibits use of the military for law enforcement purposes unless there’s a constitutional or statutory reason for doing so. However, he and others came to the conclusion that even absent constitutional or statutory support, the act "does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States."

Historically, Presidents have suspended the Posse Comitatus Act by invoking the Insurrection Act. President Dwight D. Eisenhower did just that in 1957 when segregationists tried to prevent black students from enrolling and attending public school in Little Rock, Ark. John F. Kennedy also used the act in 1962 and 1963 to send troops to enforce desegregation in Mississippi and Alabama. Similarly, George H.W. Bush sent troops to quell the Los Angeles riots in 1992. Assistant Secretary of Defense McHale notes that the troops being trained for disaster response under the new program would not even be the ones called upon to help quell domestic disturbance in the event of a President invoking the Insurrection Act.

"Part of the genius of the Insurrection Act is before it can be invoked the President has to make a public declaration that he is doing it," Dycus says. "There is no way the President can use that exception to the Posse Comitatus Act secretly."

One emergency manager, who asked not to be named, says people on the civilian side worry about how to separate FEMA from the Department of Homeland Security, how to keep it professional and not "a weak sister of the military." At the same time, most civilian emergency managers recognize the military has specialized training in chemical, biological, nuclear and urban warfare. With the current threat of dirty bombs and improvised explosive devices, it makes sense to have the military available to deploy to a disaster of that nature anywhere in the United States.

"From Andrew on, I’ve believed there is a civilian mission for the military," the emergency manager says. "We needed what they uniquely could provide in Andrew, and it was needed again in Katrina…On the personal side, I have fears that urban-warfare-trained commando units could do the bidding of the government in more malevolent and malignant ways."

Others in the emergency management field welcome the military with open arms. Billy Wagner, who retired as director of emergency management in the Florida Keys two years ago, says the military is the way to go. "I’ve always advocated that," Wagner says. "I’ve thought it was imperative to react to any kind of disasters we had, specifically to have these units ready to be mobilized."

Reasonable minds can and do differ on this subject. Only future disasters will reveal who’s right.

Multimedia: How New Orleans Has Changed

Photos: Between Duty and Downtime in Afghanistan

View this article on Time.com

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