In the 1990s, despite rising concerns about a WMD terrorist attack, neither Congress nor the Clinton administration tried to clarify when the military should be called in for a domestic emergency. Sensitivity to states' rights played a role. But the main problem was that Congress and the president didn't want to face some tricky questions. What if a riot or looting broke out in the chaos after a civil disaster—in light of the limits imposed by Posse Comitatus, would troops be authorized to fire on the looters? Rather than come up with creative ways to link local police to military units, these questions were tabled. The 9/11 attacks didn't quite force the issue. President Bush responded to the attack on the Pentagon before Virginia Gov. James Gilmore declared a state of emergency—the damage to a federal facility seemed to fall clearly within the zone of federal authority. To be on the safe side, though, White House lawyers asked Gilmore to announce a state of emergency after the fact.
The 2004 National Response Plan shares the historical aversion to setting out beforehand a role for the military in the event of a domestic disaster. Even if a catastrophic incident is designated, the Pentagon's only immediate assignment is to manage "patient movement"—the transport of sick people—with the Department of Health and Human Services. Mass civilian evacuations are left entirely to the Department of Transportation.
At the same time, however, the NRP says that the White House has the authority to initiate a "proactive" response using all "critical resources." The Bush administration doesn't need an act of Congress to rethink the military's role in planning for the next disaster. Leavitt's bird-flu plan, when it's finished, should clarify the president's willingness to use troops in the event of a mass outbreak of a deadly virus. In the wake of Katrina, President Bush had all the authority he needed to instruct the Pentagon to send more helicopters, to use military transport planes, and to move more troops to the Gulf Coast. He didn't. He shouldn't make that mistake again.