Bush Admin Debated Invoking Insurrection Act

[Derek Ortt]

http://www.cbsnews.com/stories/2005/09/ ... 5174.shtml

maybe one with some more knowledge could explain to me what would have happened if this act would have been invoked

[mf_dolphin]

The Insurrection Act allows for the Federalization of State National Guard and the use of active duty military assets to suppress a rebellion. That's the only way around the issue of active duty military enforcing state and local laws. If President Bush had acted under the Insurrection Act all control would have be taken away from Gov Blanco.

Here's a link.

http://www4.law.cornell.edu/uscode/html ... 30_15.html

IMO the Insurrection Act was properly not invoked.

[stormie_skies]

Hmmm.....thats interesting, and kind of odd, actually. The Insurrection Act is designed to quell uprisings.....it allows the President to bypass posse comitatus and use the military to enforce the law. Here is the text:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

However, its my understanding that the President would not have had to use the Insurrection Act at all, because the power to bypass posse comitatus is also included in the Stafford Act (the act that created FEMA, which the President had already invoked when he declared a state of emergency & a major disaster).

As I noted in another thread, this is what the Department of Homeland Security Act (Section 886) has to say about it:

(4) Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President's obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.

(5) Existing laws, including chapter 15 of title 10, United States Code (commonly known as the `Insurrection Act'), and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), grant the President broad powers that may be invoked in the event of domestic emergencies, including an attack against the Nation using weapons of mass destruction, and these laws specifically authorize the President to use the Armed Forces to help restore public order.

So unless I am reading that wrong (and I don't see how I could be) the President already had the power to use active duty soldiers to keep the peace in New Orleans for days before he considered invoking the Insurrection Act. Why it worked out the way it did....I have no idea....

[themusk]

So unless I am reading that wrong (and I don't see how I could be) the President already had the power to use active duty soldiers to keep the peace in New Orleans for days before he considered invoking the Insurrection Act. Why it worked out the way it did....I have no idea....

It seems that many people involved in this had no idea what their abilities were and responsibilities were and were not. Barring evidence otherwise, I think the problem wasn't so much that political leaders failied to do what they should as that the persons whose job it was to advise them (from NO's city attorney on up the line to Michael Chertoff) didn't know what they needed to know to give the right advice. (Remember, few if any political leaders have any expertise when it comes to disaster, and depend on others to give them advice. We don't usually elect our leaders on their EM credentials, and probably shouldn't).

That doesn't absolve any political leader from anything (after all, they appointed these people to these positions), but it does say much about the need to insure that appointees and advisors are fully informed and qualified. It should be no more thinkable for politicians to appoint political operatives to disaster-related positions than it is for them to appoint emergency managers to manage political campaigns.

[mf_dolphin]

The issue with the Stafford Act is that the Govenor had the resources to use to quell the lawlessness she just didn't use them. In order for the President to use the Stafford Act he would have had to justify that the state was incapable of restoring order.

[stormie_skies]

The issue with the Stafford Act is that the Govenor had the resources to use to quell the lawlessness she just didn't use them. In order for the President to use the Stafford Act he would have had to justify that the state was incapable of restoring order.

The President was already using the Stafford Act - the Stafford Act is what outlines the emergency response procedure. It is the Act that created FEMA and outlines its duties. It is invoked whenever a state of emergency is declared:

The President today declared an emergency exists in the State of Louisiana and ordered Federal aid to supplement state and local response efforts in the parishes located in the path of Hurricane Katrina beginning on August 26, 2005, and continuing.

The President's action authorizes the Department of Homeland Security, Federal Emergency Management Agency (FEMA), to coordinate all disaster relief efforts which have the purpose of alleviating the hardship and suffering caused by the emergency on the local population, and to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives, protect property and public health and safety, or to lessen or avert the threat of a catastrophe in the parishes of Allen, Avoyelles, Beauregard, Bienville, Bossier, Caddo, Caldwell, Claiborne, Catahoula, Concordia, De Soto, East Baton Rouge, East Carroll, East Feliciana, Evangeline, Franklin, Grant, Jackson, LaSalle, Lincoln, Livingston, Madison, Morehouse, Natchitoches, Pointe Coupee, Ouachita, Rapides, Red River, Richland, Sabine, St. Helena, St. Landry, Tensas, Union, Vernon, Webster, West Carroll, West Feliciana, and Winn.

http://www.whitehouse.gov/news/releases/2005/08/20050827-1.html

As far as justifying that the state was incapable of restoring order on its own .... a federal state of emergency is only granted when it is clear that the state(s) affected will not be able to handle the situation on their own:

Request and declaration

All requests for a declaration by the President that an emergency exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the situation is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary.

http://www.fema.gov/library/stafact.shtm#sec501

So technically it had already been declared - by both the state and the federal government - that the state would be unable to handle the situation on its own. Once that declaration is made, the federal government is authorized to do what is necessary to protect life and property - and according to the Department of Homeland Security Act, that includes using active military for law enforcement.

I'm not saying that the governor couldn't have done a better job in the law enforcement department. I'm just saying that technically the federal government had the right to come in and restore order - even though it seems unclear as to whether or not they even knew that.

[mf_dolphin]

The issue was not whether or not the Stafford act was being used but whether or not the situation warranted the use of the provision that allowed the use of active duty military in a law enforcement role. The scope of the assistance is under the Stafford Act is left to the Govenor of the state. Since she didn't request such law enforcement aid then the President would have had to invoke the Insurrection Act in order to provide such assistance. Under the Insurrection Act there's is a much higher standard for it's use. The Gov could also have asked for a Martial Law declaration which she refused.

[stormie_skies]

The issue was not whether or not the Stafford act was being used but whether or not the situation warranted the use of the provision that allowed the use of active duty military in a law enforcement role.

Well, IMO this should have been very clear to all involved very early on ....in fact, I think it could have been easily anticipated before the storm even arrived. I mean, we are talking about a major metro under water here.....its pretty easy to see that a lot of boots on the ground will be needed in order to maintain law and order, don't you think?

The scope of the assistance is under the Stafford Act is left to the Govenor of the state. Since she didn't request such law enforcement aid then the President would have had to invoke the Insurrection Act in order to provide such assistance. Under the Insurrection Act there's is a much higher standard for it's use. The Gov could also have asked for a Martial Law declaration which she refused.

See, but this isn't exactly true, either. This is what the 2004 National Response Plan has to say about proactive federal response in the case of an Incident of National Significance:

■ The primary mission is to save lives; protect critical
infrastructure, property, and the environment;
contain the event; and preserve national security.

■ Standard procedures regarding requests for assistance
may be expedited or, under extreme circumstances,
suspended in the immediate aftermath of an event of
catastrophic magnitude.

■ Identified Federal response resources will deploy and
begin necessary operations as required to commence
life-safety activities.

■ Notification and full coordination with States will occur,
but the coordination process must not delay or impede
the rapid deployment and use of critical resources.
States are urged to notify and coordinate with local
governments regarding a proactive Federal response.

http://www.dhs.gov/interweb/assetlibrary/NRPbaseplan.pdf

Now, Katrina was classified as an Incident of National Significance by 8/30 at the latest (that was the date of Chertoff's memo, which stated it outright - however, the NRP states that all catostrophic events are Incidents of National Significance). So once the storm was given that classification, the federal government was free to act to protect life and property without waiting for permission from state officials. I don't remember Blanco ever saying that she refused to accept help from active duty soldiers - she just didn't specifically ask for them right away. The NRP even says that state officials may not impede the use of critical resources -
I would interpret that to mean that even if state officials disagreed with the federal plan of action the federal government would still be empowered to do what they had to do.

Gosh, you've got me running all over the net here! Oh well....at least I'm learning something....

[stormie_skies]

See, and this right here is the reason why Chertoff is under fire. Just as the declaration of a "state of emergency" invokes the Stafford Act, the designation of an "incident of national significance" invokes the NRP - which gives the federal government significantly more power and control when it comes to saving lives, protecting property and ensuring national security. The first time anything Chertoff said or released designated Katrina as an "incident of national significance" was the afternoon of the 30th. DHS officials claim that that designation was implied as soon as a state of emergency was declared. No one seems to know whether the designation needed to be specifically announced or not ... but if it did need to be announced, that means that there was essentially no federal chain of command with any authority until the 30th.

[mf_dolphin]

While I would have been happy to see active duty troops there our founding fathers would have rolled over in their grave. The State had the right and the responsibility to protect the people of New Orleans and they didn't. The blame for that lays at the feet of the Govenor of Louisiana and nowhere else.

■ The primary mission is to save lives; protect critical
infrastructure, property, and the environment;
contain the event; and preserve national security.

■ Standard procedures regarding requests for assistance
may be expedited or, under extreme circumstances,
suspended in the immediate aftermath of an event of
catastrophic magnitude.

■ Identified Federal response resources will deploy and
begin necessary operations as required to commence
life-safety activities.

■ Notification and full coordination with States will occur,
but the coordination process must not delay or impede
the rapid deployment and use of critical resources.
States are urged to notify and coordinate with local
governments regarding a proactive Federal response.

Please show me where this authorizes Active Duty troops to do enforce state and local laws. Keep in mind that the the State to this day maintains control over the LA National Guard troops deployed.

[stormie_skies]

I don't disagree that giving the federal government that kind of power would have displeased the founding fathers - then again, how many other bits of freedom and federalism have we conceeded during the age of terror?

The part you quoted doesn't address that issue, obviously. The rules are all spread out....so let me see if I can summarize.....

1. The Department of Homeland Security Act says that the power to use active duty soldiers to keep the peace is part of the Stafford Act:

5) Existing laws, including chapter 15 of title 10, United States Code (commonly known as the `Insurrection Act'), and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), grant the President broad powers that may be invoked in the event of domestic emergencies, including an attack against the Nation using weapons of mass destruction, and these laws specifically authorize the President to use the Armed Forces to help restore public order.

2. The Stafford Act is immediately invoked every time a state of emergency is declared - which means that, according to the DHS Act, every time there is a federal state of emergency the federal government has the power to use soldiers to keep the peace.

3. The bit you just quoted, from the National Response Plan, states that in the event of an "incident of national significance" (i.e. any state of emergency), the federal government can bypass formal request procedures and even act without full state coordination to use its Stafford Act powers (including the ability to deploy troops, per the DHS Act) in order to preserve life and property.

That means that the federal government did not need to wait until Blanco asked for troops to send them - and those troops could have been used to keep the peace if absolutely necessary. I'm sure that action would have seemed politically risky, but it certainly appears to have been an option according to the current law.

Does that make any more sense???

[mf_dolphin]

I don't disagree that the ability is there. The issue to me is one of whether this situation is one that warranted the overriding the state's rights. I remind you that once the State fulfilled it's responsibility and got National Guard troops there the lawlessness has largely been controlled. Federal troops should only be used in dire situations where the state cannot fulfill it's responsibility. The issue in New Orleans was not one of could not, it was one of did not. I also remind you that federal resources were there almost immediately in the form of the Coast Guard to perform their search and rescue misison.

Back to the issue of this thread. Do you think the Insurrection Act should have been used?

[Tommedic]

The aspects that have been discussed regarding the use of federal troops may have been interpreted as available by some, however, remember that none of these parts of the act have been tested in the courts. It is very likely that the Federal courts may have not ruled these as constitutional. It is possible that some may have avoided this interpretation in order not to test that aspect. This is just a thought.

I can only say that in over 20 years of involvement with federal, state, and local disaster planning, EVERYONE is made aware that for the first 72 hours, "YOU ARE ON YOUR OWN". At all times the emphasis is that FEMA is a support agency and will coordinate assets that are REQUESTED by state and local government officials.

I for one DO NOT want the federal government jumping into the business of our city and state.

[stormie_skies]

I don't disagree that the ability is there. The issue to me is one of whether this situation is one that warranted the overriding the state's rights. I remind you that once the State fulfilled it's responsibility and got National Guard troops there the lawlessness has largely been controlled. Federal troops should only be used in dire situations where the state cannot fulfill it's responsibility. The issue in New Orleans was not one of could not, it was one of did not. I also remind you that federal resources were there almost immediately in the form of the Coast Guard to perform their search and rescue misison.

Back to the issue of this thread. Do you think the Insurrection Act should have been used?

Do I think federal troops should have been sent in? I consider that option to be preferable to letting people die, thats for sure. I think it would have depended on how long it would have taken to mobilize troops once it was clear that the situation was spiraling out of control. I'm guessing that they could have gotten there quickly enough....so in that case, yes, send them in.

Now....I am a bit confused in regards to the whole National Guard thing. I understand that Gov. Blanco was in charge of her own state's National Guard, but did she have the authority to mobilize the NG of other nearby states as well? How long does it typically take a state's NG to mobilize (IOW, did she need to give them advance notice, or could they have been there in 12-24 hours)? Did she turn down the aid of the NG, or did she simply underestimate the number of people that would be needed? Couldn't somebody have a sit down with her and explain that more people were needed?

I guess the whole situation seems odd to me, frankly. I mean, she was proactive about declaring a state of emergency....and by Wednesday she was screaming for soldiers.....was she asking for active duty soldiers before she even called up the NG? How much of the Louisiana NG had not been utilized up until that point?

(I understand that you probably won't have all the answers to my millions of questions .... .....I just think there are a lot of things that we don't really know at this point)

But did the situation warrant the overriding of the state's rights? Once it was clear that the state would not be able to handle the situation, YES. When peoples lives are at stake, there shouldn't be any time for turf wars, IMO....

[Derek Ortt]

I never stated my opinion on this issue (even though I started the thread); however, I will now.

I do not believe at all in states rights as I believe we are <b>ONE NATION</b>, not a federation of 50 independent states. It is the incompetence of some of the officials in not acting that causes me to have these views. I would have liked to have seen an immediate invocation of this act and had decisive action taken immediately. Would the situation have been better? That is something that could have beend ebated for a while; however, we would have fared better than what happened, especially preventing the Red Cross from entering the convention center

[stormie_skies]

The aspects that have been discussed regarding the use of federal troops may have been interpreted as available by some, however, remember that none of these parts of the act have been tested in the courts. It is very likely that the Federal courts may have not ruled these as constitutional. It is possible that some may have avoided this interpretation in order not to test that aspect. This is just a thought.

Well then what exactly is the point of writing them in in the first place? Surely they weren't written to sit there and rot on the shelves. If the federal courts are going to find those things unconstitutional (and I don't know that they would - I don't see who would have challenged it, and the USSC has been very open to giving the feds new powers in recent years), then let them find them unconstitutional. In the mean time, there is no better time to extend them than when so many people are in trouble.

I can only say that in over 20 years of involvement with federal, state, and local disaster planning, EVERYONE is made aware that for the first 72 hours, "YOU ARE ON YOUR OWN". At all times the emphasis is that FEMA is a support agency and will coordinate assets that are REQUESTED by state and local government officials.

I for one DO NOT want the federal government jumping into the business of our city and state.

What I find odd about this is that the National Response Plan directly contradicts it (as I posted above). It states that in times of crisis, requests from the state are not needed by FEMA to act.....the FCO has the authority to coordinate state assets and assess the situation for himself and take additional measures to protect life and property as needed.

I understand that the NRP is fairly new, but that to me is no excuse for federal officials to not know their powers and their roles.

As far as your last statement goes, would you feel the same way if your local and state government were in way over their heads, and it was costing your friends and family their health - if not their lives?

If so, you are a stronger man than I.....

[fwbbreeze]

I never stated my opinion on this issue (even though I started the thread); however, I will now.

I do not believe at all in states rights as I believe we are <b>ONE NATION</b>, not a federation of 50 independent states. It is the incompetence of some of the officials in not acting that causes me to have these views. I would have liked to have seen an immediate invocation of this act and had decisive action taken immediately. Would the situation have been better? That is something that could have beend ebated for a while; however, we would have fared better than what happened, especially preventing the Red Cross from entering the convention center

OH give me a BREAK....It is states rights that make this country great..not some large central controlling government spouting out dictatoral like orders. Responsibility can be taken across the board with this disaster, but let me assure more central government involvement in our problems is not the answer!!

fwbbreeze

[f5]

this would hurt Bush politically beacuse the dems will make it sound like Bush is an emperor

[stormie_skies]

this would hurt Bush politically beacuse the dems will make it sound like Bush is an emperor

You seriously think that would fly? No way. An "emperor" that saves possibly hundreds of lives isn't someone you wanna go up against...

I assure you, had active duty troops flown into NO on Wednesday with water and food for everyone, those Democrats trapped in the Superdome wouldn't have been criticizing - they would have been dancing in the streets!

[mf_dolphin]

I never stated my opinion on this issue (even though I started the thread); however, I will now.

I do not believe at all in states rights as I believe we are <b>ONE NATION</b>, not a federation of 50 independent states. It is the incompetence of some of the officials in not acting that causes me to have these views. I would have liked to have seen an immediate invocation of this act and had decisive action taken immediately. Would the situation have been better? That is something that could have beend ebated for a while; however, we would have fared better than what happened, especially preventing the Red Cross from entering the convention center

I know that's what you would like but we ARE a federation of 50 independent states.