Posse C in da House?

still moving things about. this was a fun one.

In a recent Dailykos story, Plutonium Page takes note of some disturbing quotes from Bush’s statements regarding the federal readiness planning for a potential avian flu outbreak. As with most issues (excepting Vietnam, of course), the Yeehaw Kid leaps straight to a military response.

President George W. Bush asked Congress on Tuesday to consider giving him powers to use the military to enforce quarantines in case of an avian influenza epidemic.

He said the military, and perhaps the National Guard, might be needed to take such a role if the feared H5N1 bird flu virus changes enough to cause widespread human infection.

As with most issues involving Bush, Page wonders whether he would actually have the audacity to do such a thing. Would he really use a national crisis to make a power grab so outrageous? You bet he would, Page. One might as well ask “is the sun warm?”

He already declared such intentions during the Gulf Reconstruction speech from New Orleans. Yes; he said many perplexing, hard to believe things in that speech. There was something for everyone to loathe: True conservatives, not to mention average taxpayers, already put out with the deficit, cringed over the cost of rebuilding New Orleans.

Liberals and Democratic members of Congress, not to mention average taxpayers, worry about the costs too, but their concern arises more from having no faith the money will be spent responsibly. With a handful of no-bid contracts already in the works, who can blame them?

Indeed, the only consensus response to his speech was a general disbelief - one big, collective ”Did he really just say that?!?” His sincerity, motivations, rationales and even his promises were all questioned. But if you believe nothing else about what he said regarding federal disaster response, I’m afraid we can take him at his word when it comes to an increased role for the military.

Yet the system, at every level of government, was not well coordinated, and was overwhelmed in the first few days. It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces - the institution of our government most capable of massive logistical operations on a moment's notice.

Ummm…no, Georgie: the need for such an expanded role is neither clear nor necessary. After Katrina, I think it is imperative to make the current level of government purview more effective before we go expanding federal powers. This is, after all, what DHS was supposed to do.

I am also convinced, after Katrina, that we can take it to the bank that this administration will try to parlay a disaster into yet another expansion of federal power. I believe this because they have already done so - after Katrina. On Friday, September 2nd - four days under water for New Orleans - the administration’s response consisted of territory disputes with Governor Blanco and legal wrangling over who was in charge of and responsible for what.

Behind the scenes, a power struggle emerged, as federal officials tried to wrest authority from Louisiana Gov. Kathleen Babineaux Blanco (D). Shortly before midnight Friday, the Bush administration sent her a proposed legal memorandum asking her to request a federal takeover of the evacuation of New Orleans, a source within the state's emergency operations center said Saturday.

The administration sought unified control over all local police and state National Guard units reporting to the governor. Louisiana officials rejected the request after talks throughout the night, concerned that such a move would be comparable to a federal declaration of martial law.

[note: While it accurately depicts the interaction between Bush and Blanco, this WaPo article does contain some factual errors in paragraph nine. The hyperlinked pdf file addresses these.]

The $64,000 question, of course, is “wtf? People are dying and he plays power games?!?!!” To which the answer is: “Yes, entirely unnecessary and irrelevant ones, at that!” Sagely, Blanco did not grant him the authority he requested. Instead, she hired Bill Clinton’s FEMA chief, James Lee Witt. Nonetheless, the military was dispatched in a relief capacity on Saturday. That is to say, Bush needed no “permission slip” from Blanco to call up the cavalry.

So the real curiosity becomes what could possibly be motivating this completely immaterial effort to control the National Guard and local police? We may never know the true answer, but we have three theories to work with for now. We’ll start at the top of the fun scale and work our way down to shrubya.

The speculation theory holds that it was a purely political maneuver aimed at garnering another “bullhorn moment,” with the added bonus of playing the blame game and laying the failed response at Blanco’s feet.

Suspecting a political motive, however, state officials refused to make the request, recognizing its implications for state authority over a state emergency and arguing it would be analogous to a federal declaration of martial law, a legal condition that both the US military and state authorities had previously been at public pains to avoid.

… The Post quotes its state source as saying "Quite frankly, if they'd been able to pull off taking it away from the locals, they then could have blamed everything on the locals."

And that’s not even the fun part. Newspaper accounts of the subsequent exchanges between Blanco and the White House spoke of a “spat” and “snubs" and described some interesting dynamics regarding one of Bush's visits.

Then Bush made an unusual return visit to the state Monday just days after surveying the damage - a trip that Blanco's staff said caught them by surprise, and caused a certain level of consternation.

``We had no idea the president was coming,'' Blanco's communications director, Robert Mann, said as the governor was forced to cancel a planned trip to visit evacuees in Houston so she could meet with Bush.

Early Monday morning, Blanco was in Baton Rouge preparing to fly to Houston to meet with the thousands of Louisiana refugees when she received news that Bush was on his way. Blanco's chief of staff, Andy Kopplin, called the White House and got word from Bush's chief of staff, Andrew Card, that the president was planning to return to Louisiana in a few hours to follow up on his Friday visit.

The White House had notified the media Sunday about the trip. But Blanco aide Bob Mann said Blanco was assured Sunday by the Federal Emergency Management Agency (FEMA) that Bush was not coming. FEMA spokeswoman Nicol Andrews said that agency director Michael Brown knew about the Bush visit, but many lower-level officials didn't and that was probably why the Blanco administration wasn't notified.

Bartlett said ``there was outreach'' to the governor's office, ``e-mails sent, messages left. We apologize if there was any confusion,'' he said.

A Bush visit to Louisiana at a time when Blanco was out of state would have been a major embarrassment for the governor. It could also have sent the message that Bush, who has been criticized for not moving quickly enough to help Louisiana, was in charge on the ground.

But Bartlett assures us “this was not about politics.” To be fair, though, they also conducted similar time- wasting negotiations with Haley Barbour, who also declined the “offer.” Which brings us to our second theory – the official line, i.e. blame the locals.

…Federal officials all the way up to President have suggested that state and local governments were overwhelmed by the scope of the disaster and were slow to respond, but that they themselves could not have moved more quickly because, in the words of Homeland Security Secretary Michael Chertoff, "our constitutional system really places the primary authority in each state with the governor."

Never could I have imagined that “cognitive dissonance” might become trite and cliché through overuse. But there is simply no other descriptor so precisely apt for this instance of GOPthink. “Yes, well, the disaster overwhelmed their response capabilities, but we couldn’t do anything because disaster response starts with the states. Mine goes to 11, see...”

Somehow, I doubt that the National Response Plan consists of “That’s their job, even if their response networks are down.”

According to Bartlett, the request was made for efficiency's sake to streamline the chain of command. But, according to LA National Guard and active-duty Army Commanders, there were no problems with the coordinated, tandem response by both services.

As of Monday, two parallel command structures are in place. Major Gen. Bennett Landreneau, head of the Louisiana National Guard, has control of all of the guard forces massed in the state. U.S. Army Lt. Gen. Russel Honore is in charge of the active-duty forces, including soldiers from the 82nd Airborne Division and the 1st Cavalry.

…The parallel command structure in Louisiana isn't without precedent. After Hurricane Andrew in 1992, federal troops dispatched to Florida to help in the relief and recovery were kept under federal control. The governor, meanwhile, retained authority over the National Guard forces.

…Louisiana's Adjutant Gen. Landreneau called the military command ``very integrated'' and said there was no advantage to putting all troops under his control. Adm. Timothy Keating, commander of active-duty forces in North America, agreed. ``From our perspective,'' he said Monday, ``it would not have provided an advantage over the current situation.''

What we therefore know as we move into the third theory - expanding federal powers - is that no governor request was needed to deploy federal troops, in Louisiana or elsewhere; the Guard and U.S. Army commanders saw no need for, or advantage in, federal consolidation of their efforts and that there is historical precedent for this arrangement. We also know that the National Guard can be federalized in times of need, as with the NG members currently serving under federal authority in Iraq, or as part of a national disaster response under the Stafford Act.

So why would anyone insist on control over the National Guard and the local police, when the point seems entirely moot? Hint: “…sought control over the National Guard and local police” is a euphemism. For whatever reasons, our JINO’s in the Potemkin Press consistently dance around the subject, using vague pseudo-info phrases like “broader federal role,” and “increased military involvement.”

But make no mistake: On Friday, Sept. 2nd, Bush asked Blanco to enable invocation of the Insurrection Act, which allows the federal government to use the U.S. military in a civilian law-enforcement capacity. This is what allowed Eisenhower to send troops to Little Rock in 1957.

Such use is normally constrained by one of our shortest and most eloquent laws:

Posse Comitatus Act

Section 1385 of Title 18, United States Code (USC), states:

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

“Posse Comitatus” literally means “posse of the country." In legalese, it translates thusly:

*The PCA does not apply to the U.S. Coast Guard in peacetime or to the National Guard in Title 32 or State Active Duty status*.

…The PCA generally prohibits U.S. military personnel from direct participation in law enforcement activities. Some of those law enforcement activities would include interdicting vehicles, vessels, and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities.

Prohibiting direct military involvement in law enforcement is in keeping with long-standing U.S. law and policy limiting the military’s role in domestic affairs.

And in realpolitik, it means that the National Guard can act as civilian police when under control of the State Governor – as they did under Blanco’s command after Katrina. What makes “sought control of the National Guard and local police” so disingenuous is the fact that, when the National Guard is federalized - for example, during an emergency response - it also falls subject to Posse Comitatus and therefore loses its police action capacity.

This is what convinces me that he asked for the Insurrection Act. Federalizing the National Guard would have eliminated what little police backup was available. But if the Insurrection Act is invoked, the entire military – National Guard, Army, Navy, etc. – can act as a civilian police force under federal command.

I might have been willing to write it off as purely political so he could have his "bullhorn moment;" his polls weren’t looking so great even before Katrina. But then I am reminded of the unfathomable incompetence in Brownie’s heckuva job. And the fact that New Orleans sat underwater for four days, unaided, or that the USS Bataan also sat for days, fully stocked with medical and relief supplies, off the coast, simply awaiting orders to go in. I recall the hysteria about “lawlessness” and “looting” - the murders and the rapes and oh, the humanity! And I remember the media nattering on about the “insurgency” in New Orleans.

Do you remember the stories about how the troops were surprised to be met with cheers instead of resistance? Mr. Gottlieb is right – Something Wicked this Way Comes, indeed.

Part II is here.




Tags: martial law, Katrina, New Orleans, Posse Comitatus, Bush, Insurrection Act, avian flu, quarantine