Officials consider quicker federalization, use of military in disaster response

Future disasters--whether they be acts of nature or terrorism--might require a swifter federalization of response operations and deployment of military forces, even if state and local governments don't request such assistance, federal officials told Government Executive.

How far the federal government can go in usurping state and local authorities, however, is a knotty constitutional problem that requires careful deliberations, the officials said.

Hurricane Katrina and the subsequent flooding of New Orleans resulted in a severe lack of command and control at all levels of government and revealed major shortcomings in the National Response Plan, the blueprint for disaster response, according to senators and the government's top official in New Orleans.

Coast Guard Vice Adm. Thad Allen, the federal official in charge of recovery efforts in New Orleans, said 30 percent to 40 percent of the government's National Response Plan did not work because it did not account for two simultaneous catastrophes -- the hurricane and subsequent flooding when the levees broke. That, he said, made first responders victims and debilitated the city of New Orleans.

"The paradigm was broken in that the first responders were taken out. That is the paradigm shift," Allen said. "The issues of the levees breaking and the catastrophic events that happened in New Orleans are the equivalent, in my view, of a terrorist attack by Mother Nature overlaid on a natural disaster. That's what made this thing complex, that's what confounded local officials, that's what's made this response so difficult. This is something like nobody has ever dealt with before."

Allen said the federal government might need to establish new criteria for when and how agencies respond to disasters. He said, for example, more resources and capabilities might need to be deployed when the government knows a crisis is coming or immediately after a surprise event, even if state or local governments do not request such assistance.

"I'm talking about something you could do whether the state requests anything or not. In other words, in the national interest you could say that if we think these conditions are going to be met, maybe we need to deploy assets in advance of the event," he said. "That's independent of any request by a governor or a disaster declaration. What you're doing is prudently positioning units so you might be able to respond in the future."

He added: "If you know in advance and you have a set of criteria by which you can pre-deploy to reduce the response time and the potential consequences, you probably should do that. If you can't because of a series of events … then maybe you need to have a mechanism by which you can force a decision quicker on whether or not you need a federal response more than you would normally."

"That's the kind of discussion we need to have, in my view."

Allen said he believes the basic framework of the National Response Plan remains sound in that it defines the chain of command and responsibilities after a crisis occurs. But he questioned whether a larger disaster might require federalization without consultation.

"If this happened at a state capital rather than a nonstate capital, then the effect would have been multiplied even further because not only would the city be taken down, you might not have continuity of government in the state," he said. "Those all become factors that you consider in whether or not you're going to pre-deploy or, if the event has already occurred, what you may do with or without consultation."

Sen. John Warner, R-Va., has asked the Pentagon to review laws governing the use of the active military for domestic operations, including law enforcement. Warner, who chairs the Senate Armed Services Committee, wants a review of the 1878 Posse Comitatus Act and the insurrection statutes written in the 1860s and 1870s.

"That framework of laws has served us well for the history of our country, but our nation is faced with some unusual threats today unlike anything we had when these laws were devised," Warner said. He said he wants a "careful review" and did not put a timeline on when it should be done.

Sen. Joseph Lieberman, D-Conn., said a review is warranted, adding that it is "probably time for a change."

"We may, in some situations, want to give a president … the opportunity early on in a crisis to federalize the operation," said Lieberman, who is ranking member of the Senate Homeland Security and Governmental Affairs Committee and also sits on the Senate Armed Services Committee.

"The fear … of federal military usurping state and local authority and, in the worst case, martial law imposed by a president has to give way to the reality of lives on the line that in many cases only federal authorities will save," Lieberman added.

Senate Majority Leader Bill Frist said the military might be the only option when first responders and local infrastructure are wiped out.

"I think that mobilization of sufficient resources with a strong command and control structure and good communications is something our military can provide. If it can't be provided locally or at the state level or with the [National] Guard, active military will be deployed," he said.

Frist added, however, that he does not know if any changes to the law are necessary.

But Allen acknowledged that giving the federal government greater control over disaster response operations might present legal complications.

"This country was made to have constitutional challenges," he said. "The organization and the execution of government in the United States was made messy on purpose."