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Wednesday, September 07, 2005

Really Worth Reading

The Anchoress deals out some sound common sense along with a survivor story from Biloxi, MS.

Betsy's Page links to an interesting story of student activism in the 21st century. I like it.

This post about UN disaster response at Striving For Average has made me laugh every day since Tommy posted in on the 25th. Treat yourself.

Randall Robinson is an appallingly demented person. Jonah Goldberg lights into him. Dr. Demarche has a nice string of environmentalist quotes. I'm not joking when I say I grew up at the end of the last ice age. (Courtesy Howard).

NYgirl picks up her tommygun and starts firing. I'm awed and I bow before her brilliance. Don't miss this one, courtesy No Oil for Pacifists.

Dr. Sanity posts an email from a friend who is a journalist. I am amazed that there are any journalists left in the country who realize that the state must allow the federal government to come in with troops due to a trivial document called the "Constitution". I guess they don't work at papers like the Washington Post. Try a few facts, you rabid Bush-blamers (Dingo, hon, this means you):
President Bush spent Friday afternoon and evening in meetings with his advisors and administrators drafting all of the paperwork required for a state to request federal assistance (and not be in violation of the Posse Comitatus Act or having to enact the Insurgency Act). Just before midnight Friday evening the President called Governor Blanco and pleaded with her to sign the request papers so the federal government and the military could legally begin mobilization and call up. He was told that they didn't think it necessary for the federal government to be involved yet. ...

Saturday before the storm hit the President again called Blanco and Nagin requesting they please sign the papers requesting federal assistance, that they declare the state an emergency area, and begin mandatory evacuation. After a personal plea from the President Nagin agreed to order an evacuation, but it would not be a full mandatory evacuation, and the governor still refused to sign the papers requesting and authorizing federal action. In frustration the President declared the area a national disaster area before the state of Louisiana did so he could legally begin some advanced preparations. ...

Throw in that over half the federal aid of the past decade to NO for levee construction, maintenance, and repair was diverted to fund a marina and support the gambling ships.
I am sure that a review of the events will show many ways in which the feds could have done better. I anticipate a raft of revised discovery-recovery guidances for banks, for example. I think everybody had better be looking at what happened at the local and state level and ask a few local questions of their own authorities. It seems almost as if the crisis was treated as a political matter at the LA level rather than a natural disaster. Barring a change in the Constitution, you will need to have your state and local bodies function better if it is your turn to be on the firing line.

By the way, I think Bush tried to take early action because Jeb Bush of Florida was calling and screaming at him that disaster was impending, not because of his own native brilliance. But the truth is that federal disaster planners had marked NO out as a danger area long ago.

You got same bad info MOM. Press conference August 28th:

MAYOR RAY NAGIN, NEW ORLEANS: ... "storm is intensifying, and is still pointed toward New Orleans, and there's not a meteorologist or an expert that I have talked to that says that this storm will not impact New Orleans in a major way.

As a result of that, I am, this morning, declaring that we will be doing a mandatory evacuation. And I'm going to read the evacuation order to the public.

The National Weather Service has indicated that Hurricane Katrina will likely affect Louisiana coast, with tropical force winds and heavy rainfall by this evening, whereas because of anticipated high lakes and marsh tides, due to the tidal surge, combined with the possibility of intense thunderstorms, hurricane-force winds and widespread severe flooding, Governor Blanco and I, Mayor C. Ray Nagin, have each declared a state of emergency.

Now, therefore, I, as mayor of the city of New Orleans, pursuant to the authority granted by L.A. Rev Stat 29-727 (ph), do hereby promulgate and issue the following orders, which will be effectively immediately, and which will remain in effect until the earlier of five days following the date of this issuance, or the declaration by the governor that the state of emergency no longer exists."

That state of emergancy order also included authorization for federal help not that it really need to do that since the new laws in regards to homeland security have done away with this requirement. They and already been coordinating with FEMA to use fed resources. And BTW, Bush only called Blanco shortly before the presse conference. The state of emergancy had already been signed by Blanco. You are just getting spin, MOM.

Nagin also signed an order to commendeer any and all property that could be used to evacuate people on August 28th.
Nagin also signed an order to commendeer any and all property that could be used to evacuate people on August 28th.

Then what happened?
No, apparently the right stuff wasn't in place to move troops in. Remember, the feds can't come in without authorization.

FEMA came in, got shot at, and ducked out. FEMA is not a "battle-hardened" civil order group. The Red Cross hasn't been delivering services in NO for hurricanes above cat 2 because they said it was too dangerous.

So the people stuck in the city were without even the normal services and the police were overwhelmed.
MOM, under the homeland security act, federal troops can move in under an emergancy without state authorization. It is all spin. all the president has to do is direct the secretary of homeland security in. He does not need state authorization.

Homeland Security Presidential Directive/HSPD-5

(4) The Secretary of Homeland Security is the principal Federal official for domestic incident management. Pursuant to the Homeland Security Act of 2002, the Secretary is responsible for coordinating Federal operations within the United States to prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies. The Secretary shall coordinate the Federal Government's resources utilized in response to or recovery from terrorist attacks, major disasters,

or other emergencies if and when any one of the following four conditions applies: (1) a Federal department or agency acting under its own authority has requested the assistance of the Secretary; (2) the resources of State and local authorities are overwhelmed and Federal assistance has been requested by the appropriate State and local authorities; (3) more than one Federal department or agency has become substantially involved in responding to the incident; or (4) the Secretary has been directed to assume responsibility for managing the domestic incident by the President.
But I don't believe those troops can be used in law enforcement actions, but I have to confess I've been out of the military since before this was revamped but I don't think that changed. And it's a delicate situation at best, what do you believe the reaction would have been if Bush had effectively handed control over to the secretary against the wishes of the Governor?
There was a survey that said 30-40 percent of responsdents said they would not leave the city, regardless of being told/asked to do so.

That might explain all those flooded out cars- after the fact.
Thats it Tommy, it was not against the wishes of the gov or the mayor. They both asked for it. But, even if would have been agains the wishes of the gov. do you really think she would have been complaining?

and yes, it has changed now. That is why there are two seperate prongs of the directive. One for state authorization and one for no state authorization. The president had the authority all along. They are just misinforming people so they can deflect criticism.

And BTW MOM, FEMA is part of homeland security. They can request help from any other federal agency in their efforts. Even if you go by the authorization requirement pre-homeland security, once FEMA is in, that authorization is trasfered to any other agency help they request. So, either way you look at it, the pres had authority (pre or post homeland security).
OK MOM, I just posted the letter from the Blanco to the president on August 27th (the day before Bush called) delcaring a state of emergancy and asking the president to do the same.
state of emergency request
Dingo, but that relates to federal resources and not federal troops. This is a very complicated body of law and the understanding built up over more than a century runs against your interpretation. A presidential directive probably does not have legal authority to overcome the effect of the Posse Comitatus Act and the body of precedent on it.

See this article:
Let's put it this way, if what you wrote were true than Congress would never have had to pass specific exemptions for nuclear material (Title 18 Section 831) or counter-drug operations and biological or chemical weapons (Title 10, Chapter 18), which it did.

Those who claim that Posse Comitatus really means nothing (if the president doesn't want it to) are ignoring an awful lot of legal precedent. You can make an argument for that based on the plain text of the Constitution but not based on that body of precedent. It would have been truly revolutionary if Bush had called up some National Guard troops and sent them in without state consent. Truly revolutionary!

FEMA is not a civilian law enforcement agency, so it does not have the ability to directly call for military support. I believe the US Marshalls might. This is a truly difficult and unresolved area of the law in the wake of 9/11.

Congress did not make another exemption for Homeland Security purposes, and it is questionable as to whether this would have qualified if it did.

See the Navy's interpretation.
"Prohibits search, seizure, or arrest powers to US military personnel. Amended in 1981 under Public Law 97-86 to permit increased Department of Defense support of drug interdiction and other law enforcement activities."

It is clear that the Executive can use its powers to mobilize the National Guard and deploy within a state when requested by the governor. A lot of people argue very intensely that to cede the power to go in without the consent of the state except under extraordinary circumstances could lead to terrifying consequences. I think there is a general sentiment among the military that this should not be done and among politicians that it must not be done unless the attack emanates from outside the US, in which case it is basically a war powers situation.

There is a
decent compilation
at The Army National Guard's website.

So by all precedent, when Blanco called for federal intervention with Guard troops is a very important question. It was there and it was her right to have it. I don't think you want to change the law to allow Presidents, under their own authority, to send troops in to do civilian law enforcement in a particular city or state. This smacks of Red China.

One problem FEMA experienced is that they kept getting shot at even on Tuesday. Not that some of the police stations weren't drawing fire either.
Do I take it to mean you are suggesting that Posse Comitatus no longer applies? The only law enforcement capability of the military that the president controls in the Coast Guard. That is why you always see the National Guard handle these types of issues. I haven't seen anything in the Homeland Security stuff that suggests the active duty forces can be used in a law enforcement role without a request from the Governor. It's designed to prevent the use of the military as a national police force.

As far as an immediate response what I have to say about that is here:
http://almostaverage.com/2005/09/immediate_response.html I apologize for linking my own site but don't want to retype it.
Dingo, you are ignoring the various authorizations. Sending in the troops is different than a FEMA-type emergency. There is a distinction between a "national" emergency and a state emergency for the purposes of posse comitatus, which relates to law enforcement types of operations.

Blanco could, and did, call upon the Michigan Guard - but my understanding is that posse comitatus was thought to limit their assignments.
Tommy, thanks for your assistance.

Tommy's explanation is here.
But Blanco asked Bush to delcare a National Emergecy for the state of Louisiana which does give him the authority to use troops. She delcared the state emergancy on the 27th. And asked Bush to declare a federal state of emergancy on August 27th. A state of emergency gives the president the power to declare marshal law as of 1976. so, even if you take the re-org under homeland security out of the equasion, the president was handed the authorization 2 days before the huricane hit.

Blanco asked him to do it. He didn't. For what ever reason, but you cannot say that his hands were tied. They were not.
Well, this is why we have to wait until it's over to find out what is going on because as I understand it to use Federal Troops as law enforcement requires a designation of insurrection. What ever was going on in New Orleans was crime, not insurrection. That is why the National Guard is different, they belong to the Governor, if they are placed under federal control, I think they then lose their law enforcement capability.

And it's really irrelevant, the problem is a lack of coordination/cooperation between the local, state and federal officials. It's too soon to know why or where that failure was.

As far as Bush declaring Louisiana a national emergency that happened before the storm hit land.
Tommy wrote:
That is why the National Guard is different, they belong to the Governor, if they are placed under federal control, I think they then lose their law enforcement capability.
That is my understanding as well. That is the crucial distinction.

Mind you, Bush could have sent all sorts of troops in there to ferry stuff, etc. However, that was not what was needed. But once it came down to crime control, shooting at civilians, etc, that is law enforcement. This is never done without a specific request from the Governor of the state.

Haley Barbour made one. It might have been on Wednesday?

Dingo, it is at least possible that Blanco did not understand the distinction herself, and that is why she refused to sign agreements for the federalized units.

"Federal resources" is not the same as federal units detailed to control civilians. That kicks in a different set of rules.

I bet we are going to have some very interesting debates in Congress before this is all done.
"POSSE COMITATUS ACT" (18 USC 1385): A Reconstruction Era criminal law proscribing use of Army (later, Air Force) to "execute the laws" except where expressly authorized by Constitution or Congress. Limit on use of military for civilian law enforcement also applies to Navy by regulation. Dec '81 additional laws were enacted (codified 10 USC 371-78) clarifying permissible military assistance to civilian law enforcement agencies--including the Coast Guard--especially in combating drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance (e.g., use of facilities, vessels, aircraft, intelligence, tech aid, surveillance, etc.) while generally prohibiting direct participation of DoD personnel in law enforcement (e.g., search, seizure, and arrests). For example, Coast Guard Law Enforcement Detachments (LEDETS) serve aboard Navy vessels and perform the actual boardings of interdicted suspect drug smuggling vessels and, if needed, arrest their crews). Positive results have been realized especially from Navy ship/aircraft involvement.

The intent of the act is to prevent the military forces of the United States from becoming a national police force or guardia civil. Accordingly, the act prohibits the use of the military to “execute the laws.”[4,5] Execution of the laws is perceived to be a civilian police function, which includes the arrest and detention of criminal suspects, search and seizure activities, restriction of civilian movement through the use of blockades or checkpoints, gathering evidence for use in court, and the use of undercover personnel in civilian drug enforcement activities.

The federal courts have had several opportunities to define what behavior by military personnel in support of civilian law enforcement is permissible under the act. The test applied by the courts has been to determine whether the role of military personnel in the law enforcement operation was “passive” or “active.” Active participation in civilian law enforcement, such as making arrests, is deemed a violation of the act, while taking a passive supporting role is not.[7] Passive support has often taken the form of logistical support to civilian police agencies. Recognizing that the military possesses unique equipment and uniquely trained personnel, the courts have held that providing supplies, equipment, training, facilities, and certain types of intelligence information does not violate the act. Military personnel may also be involved in planning law enforcement operations, as long as the actual arrest of suspects and seizure of evidence is carried out by civilian law enforcement personnel.[8]

EVERYWHERE you research makes it clear that only the National Guard can legally enforce laws when local law enforcement breaks down. The Military CANNOT EVER do anything more than supply equipment to accomplish National Guard or local law enforcement. Blanco's failure or refusal to send in the Guard was a major cause of civilian death and civilian human damage. Had they been in the Super Dome???? Who knows?
Thanks for the link & generous compliment.

What an interesting discussion. One of the problems with the left's interpretation of the events is that they fail to recognize that this is a natural disaster, not an act of war. This limits the President's powers.
NYgirl, if it had been an act of war, nuclear accident, or biological or chemical WMD he would have more specific powers. That's true.

Howard, I found some good links to the DOD manual and I am going to try to write something up tomorrow.
declaration of a state of emergency gives the president the power to declare marshal law. Blanco explicitly said on August 26th the state would not be able to handle this and asked for federal assistance "necessary to save lives, protect property, public health, and safety,..."

That includes law enforcement. What did Bush do? He went to a fund raiser.

I sometimes think you guys could have watched Bush eat a baby on live TV and somehow blame it on Nancy Pelosi.
The president can declare martial law I guess, but until it's declared an insurrection (meaning an attempt to overthrow the government) active duty troops are prohibited from law enforcement actions.

I know you keep saying that includes law enforcement, but that is specifically prohibited. I've seen some places claiming that it doesn't necessarily apply and can be overridden, but everyone I've seen so far is an editorial or interpretation from someone not in a position to actually make a decision. The act itself prohibits search, seizure, or arrest my military personnel. There are 3(4 really) exceptions:

Crimes involving Nuclear Materials
Emergency situations involving chemical or biological weapons of mass destruction.


do a search.
Dingo - no, I am no Bush-adulator.

However I think Posse Comitatus is a terribly important principle that must, at all costs, be preserved.

You keep saying that Bush had the power to declare martial law. This is not done over the heads of governors. The specific plans that Blanco refused to sign for deployment of outside resources in were for this type of arrangement. I have read in multiple places, including WaPo, that on Friday (9/2) she still had not signed the paperwork.

Tommy is absolutely correct about the four exceptions. Dingo, you clearly have no military background or you would understand this. You also don't understand how the National Response Plan is supposed to work. I am collecting a bunch of links showing the limits and conditions of usage of the military plus the current theory of how to respond to disasters.

You assume that the feds "take over" in a disaster. That is not so. Nor is it what has been contemplated, except in a few enumerated circumstances. The Feds are supposed to respond to requests for help, not run the show. If the state is overwhelmed, the feds can essentially come in. However, they don't do so preemptively - they do so as a result of an agreement with the state (preserving state authority). This appears to be what Blanco was not allowing.

You seem to have wanted the feds to take over New Orleans. Should they even have the authority to do so? Furthermore, the feds don't have the authority to do all that's necessary in the entire state. Did you want the feds to invade LA? Maybe that would have saved some lives this time, but what about all the possible implications in the future?

Dingo, think about the logical implications of what you are saying. What you are advocating is that if a state declares an emergency, the federal government should have the authority to come in and take over the entire state as far as it deems necessary without the consent of the state governor.

You can't truly believe that this would be a good thing. Let me tell you, the governors of the 50 states would not agree with you even if you think this is a great plan. This is why Congress abruptly shut down its "emergency" Katrina hearings. You are advocating opening a legal road to the establishment of a totalitarian fascist state.

This is a horrible, horrible idea.
regardless of if the military is performing law enforcement, they are still allowed to perform relief efforts. I.e. trucking or flying in food and water and evacuating citizens. Are you saying that the military cannot perform these functions? They had a limited number of military personnel doing this from day one (and not just the coast guard), so you can't claim they can't?

And Blanco was asking for federal assistance from the 26th. What did Bush do? He went to a fund raiser in WY.
The Guard and the military are allowed to provide supplies, logistical support, vehicles etc. That's no problem. Blanco had control over the LA units anyway.

Aside from the hurricane and flooding in NO, the problem was a lack of order that prevented people from getting in there. To restore order required a shooting and killing presence, to put it bluntly.

According to FEMA, their helicopters were shot at on Tuesday. The Red Cross wasn't allowed in to supply the Superdome and Convention Center. (Multiple reasons given for that.) Various rescue efforts were pulled because of the shooting. I heard multiple reports over several days of hospital evac efforts etc, being shut down because of shooting.

Police were pinned down in at least one station by shooting on Tuesday. The contractors trying to fix the breaches were shot at. The ones in there now are under constant armed guard. Search and rescue operations by boat and helicopter in the really flooded areas were pulled because both the helicopters and the boat crews were being shot at.

I don't know all of what went on and no one can at this point, but what we are talking about is a massive civil disorder problem complicating an already desperate situation. Whatever troops the Feds deployed in there and their mission would have had to be agreed to in writing by Blanco and I think the feds would still have had command. I think we will find out a lot more in the weeks to come.

What I am disputing is your idea that POTUS ever had the authority, without written agreement from the Governor, to waltz in there and take over. He didn't. Not only that, but I am maintaining that he shouldn't. The declaration of emergency gave the President the authority to start deployment of a bunch of federal resources, but not to move federal troops or the called-up National Guard in to take over.

Think of Nixon and some of his more paranoid moments and I think you will agree that we don't want Presidents to have that authority. They don't have the authority to tell the mayor or the governor what to do. I am pretty certain that Blanco never wanted to give that authority for a bunch of reasons.
well now we are back to where we started. relief efforts were hampered by being shot at, FEMA isn't a shooter, troops aren't allowed to shoot, and the National Guard belongs to the Governor.

As far as a delayed response from the Feds, I can speak for the turn times required to the military, and FEMA's plans call for at least a 48 hour delay. I don't see anyway you can reasonably expect an immediate response. And the Red Cross was on TV here in Dallas this morning complaining that they still can't get into New Orleans because the Louisiana Emergency folks won't let them in. I don't know if it's true or not.

A decent timeline of events is

I don't blame the feds for the first 48 hours. Even the first 72 hours. That blame falls squarely on the shoulders of Nagin and Blanco. It is the fact that it took about 140 hours for FEMA to get things going is what I am talking about. FEMA whould be able to respond in 48-72 hours. They didn't.

MOM, the paperwork was signed on the 26th for a federal response.

but before we can point fingers we need to wait until the after action report to find out what happened and why.
Dingo, I suspect you are being unjust to FEMA. I also don't think we can fairly blame Blanco & Nagin for most of what went on. They both came into power recently. On the other hand, I don't think they can fairly blame the feds.

Like Tommy, I would like to wait for the AAR before blaming people. Unlike Tommy, I now fear that we are never going to get an accurate AAR because of political factors.

At first, Dingo, I was extremely skeptical of all the reports of violence. However, after reading of multiple reports of various relief agencies and law enforcement agencies being attacked without provocation, this is what I suspect is the truth:

Various gangs saw an opportunity to loot the city. They deliberately wished to keep the area open for action and so deliberately fired on whatever they saw moving that looked official.

I don't think the mayor was really to blame. I don't think Blanco is a bad or reckless person. I think less than a thousand criminals ruled NO for 5 days and wanted to keep it that way while they knocked off jewelry stores, etc. 50 to 100 of them would have had to be shot down in cold blood to stop it. I believe 50 to 100 of them were finally shot down to stop it.

I simply do not believe this truth is one that any politician will wish to tell because of the extremely charged racial atmosphere that has developed. Do you expect Blanco or Nagin to come out with what I am saying? Do you think a Congressional Committee is going to come out with the announcement that in the future, announcing a "shoot to kill" policy before an urban disaster is the best policy?

My guess, Dingo, is that FEMA did an excellent, excellent job. The Army Corp of Engineers certainly has performed near miracles.

I will say again what I have said before. What happened in NO should be studied for what we can learn from it. An absolutely perfect disaster plan that had been executed perfectly would not have prevented thousands of casualties. Civil order in an area is necessary before agencies like the Red Cross and FEMA can come in. FEMA is not an attack brigade, Dingo.

As for me, I have drawn my own conclusions. They are that if you live in an urban area, you will have to defend yourself in a severe disaster, and you had better be willing to shoot to kill.
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