Secretary of Health and Human Services Michael O. Leavitt is being less than reassuring about the federal government's capacity for dealing with a bird-flu pandemic, which his department estimates could kill between 100,000 and 2 million Americans and hospitalize 20 million. "We need a plan," Leavitt told a closed-door briefing last week on Capitol Hill, promising to issue one sometime this week.
But a draft of that plan given to the New York Times isn't reassuring either. It has the same flaw as the emergency plan that helped cripple the federal government's response to Katrina: a failure to make effective and early use of the U.S. military.
Late last month, President Bush announced that one of the lessons of Katrina was that the White House lacks legal authority to deploy active federal troops in the first moments of a civil emergency. To gain such power "may require a change of law," Bush said.
Is it really the case that three years after 9/11, new laws are needed to ensure that the military can help civilian victims after a natural disaster, a dirty-bomb attack, or an outbreak of avian flu? No. The problem before and during Katrina was that the White House chose not to use the authority it already has. Presidents can legally deploy federal troops in response to either natural or man-made disasters. Indeed, they can act without the approval of state and local authorities. The president also probably has the authority to order the military to help plan for a disaster before it occurs, and to move airplanes and soldiers into position. What he cannot do is order the military to execute or enforce federal law. But that restriction is by no means a blanket prohibition against deploying troops in a civil emergency.
The federal government's playbook for Katrina was the National Response Plan, a 100-page-plus document (with 300 pages of appendixes) issued by the Department of Homeland Security in November 2004. Needless to say, the NRP is not easy reading. But in the first days after Katrina, all the government players—the Department of Homeland Security, FEMA, the Department of Defense—were studying it, because the plan reflects what the Bush administration believes it has the power to do in a crisis.
The NRP recognizes that a disaster can be of such magnitude that it is imprudent to rely on the response of local or state authorities. In that event, the secretary of the Department of Homeland Security can designate it a "catastrophic incident," defined
Yet in response to Katrina, DHS Secretary Michael Chertoff did not invoke his authority to designate a catastrophic incident. Much has been made of the squabbling between Baton Rouge and the White House over when and if Louisiana Gov. Kathleen Blanco requested the help of the military. But if Chertoff had made a catastrophic incident call, Blanco wouldn't have had to ask. "Notification and full coordination with States will occur," the NRP states, "but the coordination process will not delay or impede the rapid deployment and use of critical resources."
The plan also says that the secretary of defense will determine what, if any, "critical resources" the Pentagon will contribute. If the secretary chooses, the U.S. military can deploy a large number of military assets—planes, helicopters, troops, hospital ships—in response to a civil emergency. In the aftermath of Katrina, however, Rumsfeld, like Chertoff, moved slowly. As a result, the military response was puny. On Aug. 31, two days after Katrina made landfall and the New Orleans levies were breeched, the Pentagon gave Adm. Tim Keating—head of the military's "operational response" to the hurricane—50 helicopters, a 500-bed mobile hospital, and the use of one hospital ship. This military contribution was far from sufficient given the meager airlift and mobile medical resources that the National Guard and other agencies were able to provide.
So, what went wrong? Why didn't Chertoff and Rumsfeld take the necessary steps to ramp up the military? The reams of paper churned out since the late 1980s in efforts to reform national management of emergencies suggest the answer. Presidents and defense secretaries, of both parties, do not like to deploy the military for civil duty. Their reluctance is an artifact of the South's dislike of federal occupation during post-Civil War Reconstruction. After the withdrawal of federal troops in 1877, Southern congressmen pushed to pass the Posse Comitatus law of 1878, which prohibits the use of the active military for law enforcement.
Posse Comitatus did nothing to restrict the use of U.S. troops to evacuate civilians, or to bring them food and water. But a century later, it continues to chill efforts to include the military in federal emergency planning. The Stafford Act of 1988—the most thoroughgoing effort to rethink federal disaster policy before 9/11—enshrined the principle that a governor usually must request federal intervention before the president may provide it. Congress recognized that there were circumstances in which the president might have to act unilaterally, including by deploying troops. But lawmakers were vague on specifics.
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.