Tuesday, September 06, 2005

Hurricane Katrina: Tyranny and the Rule of Law

I kept trying to focus on the rescue efforts and what it meant to us that did not suffer, what lessons we should learn as people, but I see and hear things that are, while understandable, simply beyond reason and logic. I have seen many a poster from the right and the left denouncing the President for not acting sooner to establish federal control, placing men and materials in the state of Louisiana sooner, assisting in the rescue effort earlier and helping to maintain law and order with the use of military forces in the city of New Orleans.

From an historical view point and the Rule of Law, this must be one of the most ironic demands of those who insist that this action should have been taken above and beyond the request of the governor of the state of Louisiana or should have been able to be implaced and ready to go on the land that is the state of Louisiana so to be used as soon as the governor decided that they would be used without first expressly obtaining a writ from the governor. A state in the United States, whose rights are protected by the constitution, whose responsibilities are spelled out as those not expressly given to the federal, centralized government of the United States and where numerous laws enacted thereafter, continue to protect the rights AND the obligations of the state above that of the federal government, even in particular the President of the United States.

The disaster in New Orleans certainly can be blamed on a number of sources: Mother Nature; the levees; the US Army Corp of Engineers; the individual citizens that did not evacuate or were not prepared; the city for not preparing or not identifying the 0.5% risk of a category 5 hurricane (regardless of self congratulatory statements of "I told you so"); the levee not being built to that specification; the governor for not calling an emergency situation sooner and handing it to the federal organizations; the federal organizations for not having a plan big enough to handle the number of evacuees; the department of homeland security for not having FEMA prepared for this size of a disaster despite many discussions of the size and scope of a terrorist event; the problems of logistics for such movement of people and supplies; the struggle to define leadership and roles within the disaster management; but there are some things that you cannot blame on the President though some have tried.

We live under the Rule of Law. This law exists based on two intangible contracts and one tangible contract. The rule of law exists based on the thin veneer of civilization which we call the "social contract" wherein the people that live together in this country have reasonable expectation not to be harmed by any other citizen of this country. Those that break this social contract are subject to the physical and tangible contract of the laws of the land, embodied in the constitution and amendments, codified in detail at the federal, state, county, city and town level which spells out exactly what that law is and the punishments for breaking them. However, without the social contract, the physical, tangible laws mean nothing.

In the United States of America, we have an intangible contract between the citizens of the United States and the government which we elect. This invisible and intangible contract says that we can reasonably expect to live within the United States and not have the government control our every movement our every thought; that this government is subject to the whims and rule of its people and not the strong arm of a central organization with a military at its beck and call. In turn, the government can expect that we the people will not start an insurrection and overthrow a government by the people, of the people and for the people. This intangible contract is written large, physical and tangible by the constitution, the amendments and all codified federal laws.

The tangible contract we exist by is the Constitution of the United States, which on purpose, to insure that the people could not fall to the tyranny of the state (ie, the United States), limits the ability of the government of the United States from: acting against its citizens except in extremely limited circumstances; usurping the power of the local government; abrogating the rights and responsibilities of individual states within the United States.

All this is to ensure that we do not fall prey to the creation of a police state and the tyranny that would result.

Despite the calls of many for the President to have ignored the laws of the land, to set a precedent with far reaching implications, by calling a national emergency, declaring martial law; wresting power from the local government, abrogating its rights and responsibilities and place the federal, professional military, under the command of the DoD in control of Louisiana to restore public order and control the rescue and relief efforts, there is a matter of the Rule of Law and a matter which is near and dear to many hearts that, while cold comfort to the victims of Hurricane Katrina and those that stood by watching, even takes precedence over our feelings that someone should "do something". Mainly, the President and Federal Government.

There are ironies within these demands that cannot go unanswered. The irony that many already believe that the government has taken on too many powers already, interfering with our individual rights and moving forward as a fascistic police state. These charges are heard from both the right and the left. Yet, in this moment of emergency, those charges are thrown aside for demands that the Federal Government become just that by ignoring the law and the rights and responsibilities of the state, tossing them aside in favor of the command, control and order provided by an active military.

There is the irony that one of the very laws that protects us from the abuse of the government through its aparatus of a standing military was created in the reconstruction period, just after the Civil War, pushed for by the southern states who had suffered what they felt was the tyranny of a military occupation and administration of the surrendered states. Most particularly, the state of Louisiana and more specifically, the City of New Orleans.

Aside from the Constitution and its amendments which spells out the limited role of the government and allocates ALL OTHER rights and responsibilities to the state, there are two specific laws that spell out the role of the federal government in a disaster situation and the use of military forces within the United States, both of which played a role in how the government reaction to Hurricane Katrina and the relief of New Orleans was enacted.

Posse Comitatus
Posse Comitatus Act 1878

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the 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.

The President cannot use the military to enforce civil law except in certain limited circumstances:

§ 331. Federal aid for State governments

Release date: 2004-03-18

Whenever there is an insurrections in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

Was there an insurrection in New Orleans? Or, was it a case of criminal behavior in the wake of a natural disaster? Could the limited cases of criminal activity, including looting, assaults and even shootings, be classified as "insurrection against the its government"? Even if it there was such an "insurrection", who had the responsibility of requesting militia, designating their number? The governor. At what point did the governor of Louisiana declare an insurrection and request government troops to deploy to quail such an "insurrection" and re-establish law and order in the disaster of New Orleans?

That would be "never". That request never came. Should the President have disregarded the law and lack of request by the governor, sending troops anyway? Did he have other legal roads under which the troops could be deployed? The answer is yes, but still with restrictions. What "armed forces" could he call by this law? The answer is the National Guard. He could make use of other states' National Guard, but this law does not expressly permit regular armed forces from participating. (see posse comitatus)

When the request came for assistance, was that assistance expressly for the purpose of supressing civil unrest? No.

§ 332. Use of militia and armed forces to enforce Federal authority

Release date: 2004-03-18

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.

Was New Orleans in rebellion? Were the shooters and looters in "unlawful obstruction" of the laws and authority of the United States?


§ 371. Use of information collected during military operations
§ 372. Use of military equipment and facilities
§ 373. Training and advising civilian law enforcement officials
§ 374. Maintenance and operation of equipment
§ 375. Restriction on direct participation by military personnel
    The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

§ 376. Support not to affect adversely military preparedness
§ 377. Reimbursement

    § 377. Reimbursement

    Release date: 2004-03-18

    (a) To the extent otherwise required by section 1535 of title 31 (popularly known as the “Economy Act”) or other applicable law, the Secretary of Defense shall require a civilian law enforcement agency to which support is provided under this chapter to reimburse the Department of Defense for that support.
    (b) An agency to which support is provided under this chapter is not required to reimburse the Department of Defense for such support if such support—
    (1) is provided in the normal course of military training or operations; or
    (2) results in a benefit to the element of the Department of Defense providing the support that is substantially equivalent to that which would otherwise be obtained from military operations or training.

§ 378. Nonpreemption of other law

    Release date: 2004-03-18

    Nothing in this chapter shall be construed to limit the authority of the executive branch in the use of military personnel or equipment for civilian law enforcement purposes beyond that provided by law before December 1, 1981.

That law that exists before 1981 was the Posse Comitatus Act which required express laws from the constitution or an act of congress. Did anyone hear the Congress of the US expressly authorize the use of military force in New Orleans?

§ 379. Assignment of Coast Guard personnel to naval vessels for law enforcement purposes
§ 380. Enhancement of cooperation with civilian law enforcement officials
§ 381. Procurement by State and local governments of law enforcement equipment suitable for counter-drug activities through the Department of Defense
§ 382. Emergency situations involving chemical or biological weapons of mass destruction

In short, the President can only declare a national state of emergency and place active duty military on duty within any state of the United States in times of war, in times of insurrection and rebellion against the United States' laws and authority. Only National Guard elements can act within a state, under the aegis of the state's governor in times of emergency, such as natural disasters, and this action can only be to "augment the civilian forces" and must act with the same restraint and under the same laws as the civilian law enforcement agencies.

Other states' National Guard units may be called to assist, but only after an appropriate agreement between the affected state and the the governors of the assisting states, an inter-state compact, is signed and agreed upon, putting these forces under the control of the governor of the affected state.

Not the President. Not the DoD.

The purpose of this limitation is to insure that every President and government of the United States is significantly limited on what they can call a national state of emergency and then deploy active troops to quail. Even in the face of the disaster in New Orleans and the Gulf Coast in general, had the President declared a state of emergency and deployed active military troops, he would have set an irrevocably low threshold, providing a precedent for future Presidents to declare national emergencies and use the force of the military, legally, to enforce the rule of the President, the central government and any laws enacted, above and beyond the law, rights and responsibilities of the state, up to and including deposing the governor of the state and installing a new one.

That is why it is the state which retains responsibility in the face of disasters and the state which calls for the National Guard and the state which controls the National Guard.

When the governor declared a state of emergency due to the natural catastrophe of the hurricane, she could solicit assistance from the federal government under the following act:

Robert T. Stafford Disaster Relief and Emergency Assistance Act

This is the law under which FEMA exists, under which it operates and under which assistance is given, including a clause that limits the time under which the milititary can be active in the state providing assistance and what sort of assistance it is limited to.

The most significant words in this act is the words the state and give assistance and coordinate, leaving it in no doubt that it is the state that is responsible for creating disaster plans, soliciting assistance and managing emergencies.


a. The Congress hereby finds and declares that--

1) because disasters often cause loss of life, human suffering, loss of income, and property loss and damage;

2) and because disasters often disrupt the normal functioning of governments and communities, and adversely affect individuals and families with great severity;

- special measures, designed to assist the efforts of the affected States in expediting the rendering of aid, assistance, and emergency services, and the reconstruction and rehabilitation of devastated areas, are necessary.

b. It is the intent of the Congress, by this Act, to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters by--

1) revising and broadening the scope of existing disaster relief programs;

2) encouraging the development of comprehensive disaster preparedness and assistance plans, programs, capabilities, and organizations by the States and by local governments;

3) achieving greater coordination and responsiveness of disaster preparedness and relief programs;

4) encouraging individuals, States, and local governments to protect themselves by obtaining insurance coverage to supplement or replace governmental assistance;

5) encouraging hazard mitigation measures to reduce losses from disasters, including development of land use and construction regulations; and

6) providing Federal assistance programs for both public and private losses sustained in disasters [.]

Who is responsible for creating,implementing and directing disaster preparedness and assistance? States and local governments.

Who is responsible for assisting and coordinating with the state? Federal Emergency Management Agency.

Why is it that the state is responsible for planning and managing disaster relief? Because the constitution protects the state against arbitrary abrogation of their power by the federal government, even in a natural disaster emergency, therefore, it is the state's responsibility to care for its citizens.



b. Technical assistance for the development of plans and programs

The President shall provide technical assistance to the States in developing comprehensive plans and practicable programs for preparation against disasters, including hazard reduction, avoidance, and mitigation; for assistance to individuals, businesses, and State and local governments following such disasters; and for recovery of damages or destroyed public and private facilities.

Did the city of New Orleans and the State of Louisiana have a disaster preparedness plan? Who was responsible for creating it? Who was responsible for providing "technical assistance" in the creation of this plan? Who is the representative of the President that is delegated the duty of assisting in this preparation? Who is responsible for ensuring that state agencies carry out this plan?

5132. DISASTER WARNINGS {Sec. 202}

a. Readiness of Federal agencies to issue warnings to state and local officials

The President shall insure that all appropriate Federal agencies are prepared to issue warnings of disasters to State and local officials.

b. Technical assistance to State and local governments for effective warnings

The President shall direct appropriate Federal agencies to provide technical assistance to State and local governments to insure that timely and effective disaster warning is provided. [snip]

Who is responsible for issuing a disaster warning to the state and local officials? Who is responsible for providing warning to the citizens of the state or the community? Who called the governor of the State of Louisiana to ask her to order an evacuation?

You may want to read the details about who is responsible for mitigation of hazards and how the funds are allocated noted in this act.



Any Federal agency charged with the administration of a Federal assistance program may, if so requested by the applicant State or local authorities, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster.

The state remains in charge of the disaster relief and rescue efforts until they request, modify or waive, such authority "if the inability to meet such conditions is a result of the major disaster."

When did the governor of Louisiana "modify or waive,...such administrative conditions"? Under what conditions was this waived? Who came down to talk to the governor personally to get this condition waived? Why was the governor resistant to waiving this condition?


The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this Act.[snip]


All requests for a declaration by the President that a major disaster exists ,strong>shall be made by the Governor of the affected State. Such a request shall be based on a finding that the disaster 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. As part of such request, and as a prerequisite to major disaster assistance under this Act, the Governor shall take appropriate response action under State law and direct execution of the State's emergency plan. The Governor shall furnish information on the nature and amount of State and local resources which have been or will be committed to alleviating the results of the disaster, and shall certify that, for the current disaster, State and local government obligations and expenditures (of which State commitments must be a significant proportion) will comply with all applicable cost-sharing requirements of this Act. Based on the request of a Governor under this section, the President may declare under this Act that a major disaster or emergency exists.


[snip]c. Utilization of DOD resources

General rule

During the immediate aftermath of an incident which may ultimately qualify for assistance under this title or title V of this Act [42 U.S.C. §§ 5170 et seq. or 5191 et seq.], the Governor of the State in which such incident occurred may request the President to direct the Secretary of Defense to utilize the resources of the Department of Defense for the purpose of performing on public and private lands any emergency work which is made necessary by such incident and which is essential for the preservation of life and property. If the President determines that such work is essential for the preservation of life and property, the President shall grant such request to the extent the President determines practicable. Such emergency work may only be carried out for a period not to exceed 10 days.

The limit to the use of these forces under the DoD is a nod to the Posse Comitatus Act of 1878, to insure that the military is not used unnecessarily to abrogate or usurp the power of the Governor of a state or the state legislature.

4) Federal share

The Federal share of assistance under this subsection shall be not less than 75 percent.

It will only exceed 75%, up to 90% if the community is designated as a "small community" - 3000 or less.



a. 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. As a part of such request, and as a prerequisite to emergency assistance under this Act, the Governor shall take appropriate action under State law and direct execution of the State's emergency plan. The Governor shall furnish information describing the State and local efforts and resources which have been or will be used to alleviate the emergency, and will define the type and extent of Federal aid required. Based upon such Governor's request, the President may declare that an emergency exists.

b. Certain emergencies involving Federal primary responsibility

The President may exercise any authority vested in him by section 502 or section 503 [42 U.S.C. § 5192 or § 5193] with respect to an emergency when he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. In determining whether or not such an emergency exists, the President shall consult the Governor of any affected State, if practicable. The President's determination may be made without regard to subsection (a).

  • The National Guard of the state can only be activated by the governor of the state.
  • Additional national guard from other states can only be activated and sent to the affected state upon the request and signing of an inter-state compact allowing these state guards to operate.
  • These national guard operate under the direction of the governor of the affected state and under their civil laws.
  • Federal Emergency Assistance can only be provided upon the request of the governor of the affected state
  • Federal Emergency Assistance operates under the direction of the governor of the state, unless...
  • The governor of the affected state waives or modifies authority, giving such authority to the director of Federal Emergency Assistance appointed by the President.
  • The DoD cannot provide active duty troops or resources for emergency assistance unless the governor of the affected state makes a specific request.
  • The law that limits the action of active duty forces within the United States is the Posse Comitatus Act.
  • Once the governor does request DoD assistance, these forces can only operate within the state for up to 10 days.

    The purpose of these laws are to protect the states and citizens from the power of the federal government. These laws create a bueacracy and bueacratic process that is slow in response, not only by the sheer amount of services that must be coordinated and delivered, but for the very reason it was built, to insure that proper process is followed and no government can over step its boundaries without time to respond.

    It is to avoid Tyranny of the Federal Government.

    In a recent news interview, Mayor Nagin of New Orleans discussed briefly the meeting of the President and Governor Blanco on Thursday, September 1. He indicated that the President gave Governor Blanco two options. He did not detail these options. Based on the Robert T Stafford Disaster Relief and Emergency Assistance Act, these two options were:

    1) Waive or modify her authority, handing it to the Federal Emergency Management Agency
    2) The President would declare a state of emergency without her consent and the federal government would take control of the rescue and relief effort.

    The governor of Louisiana asked for 24 hours to make this decision.

    Read this time line.

    From the perspective of many unknowledgable commentaters on this subject, they expected the President to throw out the law of the land, abrogate states rights and the governors powers and take over the situation.

    The only way to resolve this situation and not compromise the laws that protect this country from a future of tyranny is to modify state emergency plans to:

  • Insure proper thresholds for declaring a state of emergency and requesting federal assistance
  • Insure proper thresholds for requesting assistance from other states under inter-state emergency assistance compacts
  • Insure the cities and states have proper evacuation plans for citizens that are unable to leave the city under their own power
  • Insure the cities and states have plans and equipment that take into account the destruction of all local infrastructure, communications systems and decimation or degradation of police and other emergency services.
  • Citizens should be involved with local emergency planning

  • 1 comment:

    Gadfly said...

    Thank you, Kat.

    This is what I have been thinking, but I haven't brought it up much, because the explanation is too complex for casual conversation. It's much easier to just shake your head and turn away when someone says "Bush could have stopped this but he went to war instead." Not that I'm a big Bush supporter (boy, there's a joke in there somewhere). All my life I've been reading about the New Orleans problem. "Boy it would be bad if THAT happened."

    And it's not that I'm dissing Louisianna. I think it's one of our most interesting states. It's just that this is a local issue. Even if it took a penny sales tax, what the hell do tourists care about a penny sales tax? If I lived under that levy, I'm thinking I would vote for it.