Rethinking the Military ‘s Role in Domestic Emergencies Command Relationships (In Katrina ‘s Wake Case study) Writing assignment Analyze the major points of your base articles for research. Use your research time to develop a deep understanding of your

20190222104219command_relationship_in_katrina_hurricane2 x20190221095200writing_assignment2 x20190221051244in_katrinas_wake__rethinking_the_militarys_role_in_domestic_eme2 20190221095202writing_instruction___grading_rubric2

 Rethinking the Military ‘s Role in Domestic Emergencies

Command Relationships

(In Katrina ‘s Wake Case study)

Writing assignment

Analyze the major points of your base articles for research. Use your research time to develop a deep understanding of your topics so you can fully explain your part of the themed outline and support the group effort. Student will write a 5-page research paper (not including the references or title pages) using Times New Roman 12-point font, and APA 6th edition format. Student will provide an additional 4 references to the base document.

HURRICANE KATRINA CASE STUDY RESEARCH QUESTION

Command Relationships

• Introduce the command relationships (Federal Military, State Military and Civil Agencies) that were established during Hurricane Katrina?
• How did those command relationships effect the outcome of the Hurricane Katrina? Did they establish unity of command? What is the importance of establishing unity of command during natural disasters/ emergencies?
• Provide examples and elaborate, using Hurricane Katrina to support your main point.

Reference for case study:

Tkacz, S. R. (2006). In Katrina ‘s Wake: Rethinking the Military ‘s Role in Domestic Emergencies. William & Mary Bill of Rights Journal,15(1), 301-334.

https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1138&context=wmborj

Requirement: Provide case study research outline with thesis statement within 24 hrs

No plagiarism, use as many as credible sources for references.

Analyzing: Breaking Material into constituent parts, determining how the parts relate to each other and to an overall structure or purpose through differentiating, organizing, and attributing.

Applying: Carrying out or using a procedure through executing or implementing.

Understanding: Constructing meaning from oral, written, and graphic message through interpreting, exemplifying, classifying, summarizing, inferring, comparing, and explaining

OUTLINE AND THESIS STATEMENT

OUTLINE

1. Introduction

2. Command relationship models

3. Organization and structures of command in Katrina hurricane

4. Impacts of the command relationship model in the disaster

5. Establishing a unified command and control

6. Conclusion

THESIS STATEMENT

Unity is a very important aspect of disaster management and helps provide a quick and coordinated response to affected areas and people. Command relationship between federal and state forces when responding to domestic disasters has been an issue when the two forces are conducting joint operations within the same area while receiving command from different authorities. The command relationship models suggest that integrating state and federal forces and creating unified command and control helps provide a situation commander supported by unity. Different authorities commanding both forces should, therefore, come together and form a central commanding point to enhance unity and coordination when responding to domestic disasters and avoid the confusion witnessed during the Katrina hurricane.

Writing assignment

Analyze the major points of your base articles for research. Use your research time to develop a deep understanding of your topics so you can fully explain your part of the themed outline and support the group effort. Student will write a 5-page research paper (not including the references or title pages) using Times New Roman 12-point font, and APA 6th edition format. Student will provide an additional 4 references to the base document.

HURRICANE KATRINA CASE STUDY RESEARCH QUESTION

Command Relationships

1.

Introduce the command relationships (Federal Military State Military and Civil Agencies) that were established during Hurricane Katrina?

2. How did those command relationships effect the outcome of the Hurricane Katrina? Did they establish unity of command? What is the importance of establishing unity of command during natural disasters/ emergencies?

3. Provide examples and elaborate, using Hurricane Katrina to support your main point.

Reference for case study:

Tkacz, S. R. (2006). In Katrina ‘s Wake: Rethinking the Military ‘s Role in Domestic Emergencies. William & Mary Bill of Rights Journal,15(1), 301-334.

https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1138&context=wmborj

Requirement: Provide case study research outline with thesis statement within 24 hrs

No plagiarism, use as many as credible sources for references.

Analyzing: Breaking Material into constituent parts, determining how the parts relate to each other and to an overall structure or purpose through differentiating, organizing, and attributing.

Applying: Carrying out or using a procedure through executing or implementing.

Understanding: Constructing meaning from oral, written, and graphic message through interpreting, exemplifying, classifying, summarizing, inferring, comparing, and explaining.

William & Mary Bill of Rights Journal

Volume 15 | Issue 1 Article 11

In Katrina’s Wake: Rethinking the Military’s Role in
Domestic Emergencies
Scott R . Tkacz

Copyright c 2006 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
https://scholarship.law.wm.edu/wmborj

Repository Citation
Scott R . Tkacz,

In Katrina’s Wake: Rethinking the Military’s Role in Domestic Emergencies

, 15 Wm. &
Mary Bill Rts. J. 301 (2006), https://scholarship.law.wm.edu/wmborj/vol15/iss1/11

https://scholarship.law.wm.edu/wmborj

https://scholarship.law.wm.edu/wmborj/vol15

https://scholarship.law.wm.edu/wmborj/vol15/iss1

https://scholarship.law.wm.edu/wmborj/vol15/iss1/11

https://scholarship.law.wm.edu/wmborj

IN KATRINA’S WAKE: RETHINKING THE MILITARY’S ROLE
IN DOMESTIC EMERGENCIES

Scott R. Tkacz

INTRODUCTION …………………………………………. 301
I. LOCAL, STATE, AND FEDERAL RESPONSE TO THE KATRINA DISASTER … 303
Hi. HISTORY OF THE LIMITATION ON THE USE OF THE MILITARY IN

DOMESTIC ARENAS ……………………………………. 307
A. Posse Comitatus Act ……………………………….. 307
B. Exceptions to the Posse Comitatus Act …………………… 308

I. HISTORICAL APPLICATIONS OF THE EXCEPTIONS TO THE POSSE
COMITATUS ACT …………………………………….. 312
A. Presidential Power in Federalizing the National Guard ……….. 314

IV. OVERCOMING THE BARRIERS TO EXPANDING PRESIDENTIAL
AUTHORITY IN THE USE OF FEDERAL TROOPS DOMESTICALLY ……… 315
A. The Need for Centralized Decision-Making by a Single Individual

Is Critical in Emergency Situations ……………………… 315
B. “Traditional Notions” of Domestic Military Action Are Not

Supported by History ……………………………….. 318
C. Federal Military Forces Can Receive Adequate Training for

Effective Execution of Domestic Law Enforcement …………… 324
D. Active Military Participation in Domestic Law Enforcement

Does Not Necessarily Mean Permanent Domestic Deployment ….. 32

6

E. The President Possesses Broad Discretion in Matters Authorized

by Congress ……………………………………… 330
F. Use of the Military in Domestic Affairs Would Serve to Protect

Civilians’ Constitutional Rights, Not to Abrogate Them ……….. 332
CONCLUSION ………………………………………….. 333

INTRODUCTION

The massive devastation wrought by Hurricane Katrina in Louisiana and
Mississippi in August 2005′ left behind shattered communities that will be left to pick
up the pieces for months and years to come.2 The alarming number of hurricanes

See infra notes 6-12 and accompanying text. On June 23, 2006, 1 visited New Orleans and
witnessed the destruction firsthand. The severity of the damage is truly difficult to put into words.

2 See, e.g., Eric Lipton, FEMA Calls 60,000 Houses in Storm Area Beyond Repair, N.Y.

TIMES, Nov. 5, 2005, at A14; Eric Lipton, Hurricane Evacuees Face Eviction Threats at
Both Their Old Homes and New, N.Y. TIMES, Nov. 4, 2005, at A20; Adam Nossiter et al.,
New Orleans Is Still Grappling with the Basics of Rebuilding, N.Y. TIMES, Nov. 8,2005, at Al.

WILLIAM & MARY BILL OF RIGHTS JOURNAL

to strike the United States coastline in 2004 and 2005′ suggests that history can, and
likely will, repeat itself. Significant breakdowns in communication and confused
emergency and law enforcement responses from local, state, and federal officials in
the hours and days after Hurricane Katrina led to chaos and panic in the affected
areas, endangering citizens’ property and lives.4 The delayed reaction to this crisis
suggests the need for an expansion of existing presidential authority to use active
military forces to rapidly secure the disaster area and rescue survivors.5

This Note will argue that Congress should supply the President, and by ex-
tension, the military, authority to engage in domestic law enforcement when cir-
cumstances dictate rapid action to prevent widespread loss of life and property,
such as in the case of Hurricane Katrina. Part I examines the failure of the local,
state, and federal response in the aftermath of Hurricane Katrina. Part II explores
the history and legality of presidential authority to deploy federal troops in do-
mestic theaters. Part IH examines previous instances in which the President has
used existing statutory authority to use federal troops in domestic emergencies.
Part IV examines the arguments made against weakening the posse comitatus
doctrine, and how they translate to modem American policy and values. Finally,
Part V concludes with recommendations to modify the federal structure to give the
President more flexibility in ordering federal troops into active duty in times of
extreme emergency.

As of June 2006, the most heavily affected areas of New Orleans remained deserted, and
rebuilding is only in the preliminary stages. Many community services, including electricity,
water, healthcare, and police protection are sporadic and unreliable.

‘ Six hurricanes struck the United States in 2004, including four which made landfall in
Florida. ERIC S. BLAKE ET AL., NAT’L OCEANIC & ATMOSPHERIC ADMIN., THE DEADLIEST,
COSTLIEST, AND MOST INTENSE UNITED STATES TROPICAL CYCLONES FROM 1851 TO 2004
(AND OTHER FREQUENTLY REQUESTED HURRICANE FACTS) app. A (2005), http://www.nhc
.noaa.gov/pdf/NWS-TPC-4 . In 2005, several powerful hurricanes developed in the
Atlantic basin. Hurricane Dennis made landfall near Navarre Beach, Florida, as a Category
3 storm on the Saffir-Simpson scale. National Hurricane Center, Monthly Tropical Weather
Summary (Aug. 1, 2005), http://www.nhc.noaa.gov/archive/2005/tws/MIATWSAT-jul.shtml.
Hurricane Katrina, before coming ashore near the border of Louisiana and Mississippi,
became the fourth most intense hurricane ever recorded. National Hurricane Center,
Monthly Tropical Weather Summary (Sept. 1, 2005), http://www.nhc.noaa.gov/archive/
2005/tws/MIATWSATaug.shtml. Hurricane Rita, in the days before striking Texas and
Louisiana, was measured as the third most intense hurricane ever recorded. National Hurricane
Center, Monthly Tropical Weather Summary (Oct. 1, 2005), http://www.nhc.noaa.gov/
archive/2005/tws/MIATWSAT-sep.shtml. Hurricane Wilma became the most intense hurricane
ever recorded in Atlantic waters on October 19, 2005, five days before plowing across the
Florida peninsula. National Hurricane Center, Monthly Tropical Weather Summary (Nov.
1, 2005), http://www.nhc.noaa.gov/archive/2005/tws/MIATWSAToct.shtml.

4 See infra Part I.
5 See infra notes 13-33 and accompanying text.

[Vol. 15:301

IN KATRINA’S WAKE

I. LOCAL, STATE, AND FEDERAL RESPONSE TO THE KATRINA DISASTER

Hurricane Katrina crashed ashore near the border of Louisiana and Mississippi
on August 29, 20056 with 145-mile-per-hour winds7 and a twenty- to thirty-foot storm
surge.’ The wind and rain from the hurricane caused the levees protecting the city
of New Orleans from Lake Pontchartrain’s waters to fail,9 engulfing over eighty
percent of the city in up to twenty feet of water.’ ° The flooding stranded 20,000 New
Orleans residents at the Louisiana Superdome, which was intended only to be a “shelter
of last resort.”” Thousands more were stranded on building rooftops for over two days
without food or water, trying desperately to stay out of the flood-water. 2

Local and state authorities struggled to respond to the overwhelmingly massive
rescue and relief effort brought on by the breach of New Orleans’ levees.13 Louisiana
National Guard troops evacuated their headquarters to the Superdome, and communica-
tions were nonexistent among the troops leading the rescue effort.14 Governor Bill
Richardson of New Mexico stated that 200 National Guard troops were packed and
ready to go to New Orleans, but two days passed before state officials responded to

6 National Hurricane Center, Hurricane Katrina Advisory Number 27 (Aug. 29, 2005),
http://www.nhc.noaa.gov/archive/2005/pub/al I22005.public.027.shtml.

” Joseph B. Treaster &Kate Zemike, Hurricane Slams into GulfCoast; DozensAre Dead,
N.Y. TVEs, Aug. 30, 2005, at Al.

s Don Hammack, Documenting Surge Surveyors: Storm Water Topped at Least 28 Feet,
SUN HERALD (Biloxi, MS), Oct. 16,2005, at Al. The National Hurricane Center defines storm
surge as “[a]n abnormal rise in sea level accompanying a hurricane or other intense storm, and
whose height is the difference between the observed level of the sea surface and the level that
would have occurred in the absence of the cyclone.” National Hurricane Center, Glossary
of NHC/TPC Terms, http://www.nhc.noaa.gov/aboutgloss.shtml (last visited Aug. 21,2006).

9 John M. Barry, After the Deluge, Some Questions, N.Y. TIMEs, Oct. 13, 2005, at A27.
‘0 Joseph B. Treatser & N.R. Kleinfield, New Orleans is Inundated as 2 Levees Fail; Much

of Gulf Coast is Crippled; Toll Rises, N.Y. TIMEs, Aug. 31, 2005, at Al.
” Robert D. McFadden & Ralph Blumenthal, Bush Sees Long Recovery for New Orleans;

30,000 Troops in Largest U.S. Relief Effort, N.Y. TIMES, Sept. 1, 2005, at Al. Underlining the
desperate situation at the Superdome, Marty Bahamonde, the sole Federal Emergency Manage-
ment Agency (FEMA) employee in New Orleans before Katrina arrived, stated that he was
told the Superdome would be equipped with a FEMA medical team, 360,000 ready-to-eat
meals and fifteen water trucks before the storm arrived. Eric Lipton, Worker Tells of Response
by FEMA, N.Y. TmIES, Oct. 21, 2005, at A20. In fact, only five water trucks and 40,000 ready-
to-eat meals had arrived before the storm. Id. The FEMA medical team did not arrive until
one day after New Orleans flooded. Id.

12 McFadden & Blumenthal, supra note 11.
” Scott Shane & Thom Shanker, When Storm Hit, National Guard Was Deluged Too,

N.Y. TIMES, Sept. 28, 2005, at Al.
14 Id. Most cellphones, telephone land lines, and satellite phones were disabled because

of the storm, and radio frequencies were often jammed from overuse. The conditions forced
some National Guard commanders to use “runners, like in World War I,” to transfer
information back and forth. Id.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

Richardson’s offer of assistance. More than 250 members of the New Orleans Police
Department abandoned their duties in the days following the flooding, and reports
indicated that some officers even looted homes and businesses.’

6

In the absence of law enforcement in the city, many stranded residents looted
local stores, carrying away electronics, clothing, shoes, and firearms. 7 Property owners
defended themselves on their own using shotguns and small firearms.’ 8 By August 31,
two days after the storm’s landfall, the Mayor of New Orleans had ordered the city’s
police to abandon search and rescue efforts and return to their traditional duties of
law enforcement.’ 9 Supply trucks were delayed entering the city because drivers
refused to proceed without a police escort, and Baton Rouge abandoned its offer to send
riot-trained officers to New Orleans after its chief administrative officer decided
he did not want to place so many of his officers in harm’s way.2′ More than 20,000
evacuees gathered at the New Orleans Convention Center, which had no food, water,
medical care, or security personnel.2′ Thirteen of the sixteen hospitals in greater New
Orleans were closed due to extensive storm damage and fear of looting.22

Communication among Louisiana officials broke down after the storm. Louisiana
Governor Kathleen Blanco asked President George W. Bush for “everything
you’ve got,” which hampered the federal government’s decision-making process in
exactly how to act.23 Blanco’s aides stated that the Governor did not know that the
federal government needed an itemized list for help.24 However, Blanco rejected
President Bush’s request to turn over command and control of the National Guard
troops to a single federal military commander.25 The director of the Federal Emergency

5 Id.
16 Dan Barry & Jere Longman, A Police Department Racked by Doubt and Accusations,

N.Y. TIMES, Sept. 30, 2005, at A20.
‘” Felicity Barringer & Jere Longman, Owners Take Up Arms as Looters Press Their

Advantage, N.Y. TIMES, Sept. 1, 2005, at A16.
“8 Id. One resident, John Carolan, reported that three or four men tried to take his electric

generator by threatening him with a knife and a machete. He scared them away by firing
warning shots over their head with a revolver. Id.

19 Id.
20 Id.
21 James Dao et al.,New Orleans IsAwaiting Deliverance, N.Y. TIMES, Sept. 2,2005, at A15.
22 Reed Abelson, Can Hospitals Reopen? It’s a Matter of Money, N.Y. TIMES, Sept. 14,

2005, at C I.
‘ Eric Lipton et al., Breakdowns Marked Path from Hurricane to Anarchy, N.Y. TIMES,

Sept. 11, 2005, at Al [hereinafter Lipton, Breakdowns].
24 David E. Sanger, Bush Wants to Consider Broadening of Military’s Powers During

NaturalDisasters, N.Y. TIMES, Sept. 27, 2005, atA18. Governor Blanco stated that she thought
she had requested all federal assistance that could be given, including active-duty federal troops:
‘”Nobody told me that I had to request that’ … ‘I thought that I had requested everything they
had. We were living in a war zone by then.”‘ Eric Lipton et al., Political Issues Snarled Plans
for Troop Aid, N.Y. TIMES, Sept. 9, 2005, at Al [hereinafter Upton, Political Issues].

25 Michael Luo, The Embattled Leader of a Storm-Battered State Immersed in Crisis,

[Vol. 15:301

IN KATRINA’S WAKE

Management Agency (FEMA), Michael D. Brown, said that Governor Blanco’ s initial
response to the disaster in Louisiana was uncoordinated and confused, preventing
the agency from taking coherent action to bring the situation under control.26

The Bush administration’s response to the chaos inflicted by Hurricane Katrina
spurred an internal administration debate as to whether active-duty military forces
could be used in relief or law enforcement roles.27 The Bush administration hesitated
to send active-duty military forces because they feared it would appear that the President
was seizing executive authority from a female governor of another political party.’
Blanco acknowledged that she was aware of the political considerations surrounding
relinquishing state control to the federal government and felt pressured to do so by
members of the Bush administration. 29 Further debate continued over whether the
President even had authority to order active-duty troops into the regions affected by
the hurricane if Governor Blanco resisted relinquishing control over the National
Guard.3″ The Justice Department’s Office of Legal Counsel concluded after a series

N.Y. TIMES, Sept. 8, 2005, at A26. Governor Blanco’s press secretary stated that Blanco
refused the President’s request because “Is]he would lose control when she had been in control
from the very beginning.” Elisabeth Bumiller & Clyde Haberman, Bush Makes Return Visit;
2 Levees Secured, N.Y. TIMES, Sept. 6, 2005, at Al.

26 David D. Kirkpatrick & Scott Shane, Ex-FEMA Chief Tells of Frustration and Chaos,
N.Y. TIMES, Sept. 15, 2005, at Al.

27 Lipton, Breakdowns, supra note 23.
28 Lipton, PoliticalIssues, supra note 24. A Bush administration official stated, “Can you

imagine how it would have been perceived if a president of the United States of one party
had pre-emptively taken from the female governor of another party the command and control
of her forces… ?” Id.

29 Bruce Alpert, Panel Grills La. Governor on Katrina, TIMES-PICAYUNE (New Orleans),
Feb. 3, 2006, at 1. New Orleans Mayor Ray Nagin claimed that during a meeting between
President Bush and Governor Blanco four days after the hurricane struck, a discussion about
federalizing the National Guard became so heated that Nagin suggested the pair “go into
another room to settle their differences.” Gerard Shields, Bush Asks for $18 Billion, BATON
ROUGE ADvoc., Feb. 3, 2006, at Al.

30 Lipton, Breakdowns, supra note 23; Lipton, Political Issues, supra note 24; see also
Gerard Shields, Military Personnel Evaluate Confusion, Cooperation in Storm, BATON ROUGE
ADvoc., Feb. 10, 2006, at Al. Senator Joseph Lieberman highlighted the initial confusion sur-
rounding whether the federal military should become involved in the aftermath of Hurricane
Katrina:

Our committee has learned… of some disagreements about the degree to
which the Defense Department should operate on U.S. soil. And these dis-
agreements may have limited the military’s response time and effec-
tiveness in this case because of the initial hesitation to deploy active duty
troops and to pre-position assets before Hurricane Katrina made landfall.

Hurricane Katrina: Defense Department’s Role in Response: Hearing Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 109th Cong. (2006) (statement of Sen. Joseph I.
Lieberman, Ranking Member, S. Comm. on Homeland Sec. & Governmental Affairs), available
at http://hsgac.senate.govLfiles/020906JILOpen [hereinafter Defense Department’s Role].

20061

WILLIAM & MARY BILL OF RIGHTS JOURNAL

of meetings that the President had legal authority to take control of National Guard
troops as well as deploy active-duty troops to the affected areas in the absence of
requests by state officials.” However, the decision was a legal and political risk the
administration was not willing to take, regardless of the conditions persisting in
New Orleans.32 Instead, the Bush administration chose to rely on mobilized National
Guard troops from other states to fill the law enforcement vacuum in New Orleans,
before the President finally ordered 7,200 active-duty forces into New Orleans five
days after the city was flooded.33

In the wake of the massive logistical and communications problems experienced
at all levels of government in the effort to respond to the effects of Hurricane Katrina,
government officials have suggested that the military should play a greater role in
handling such crises. On September 15, 2005, President George W. Bush stated that:

It was not a normal hurricane-and the normal disaster relief
system was not equal to it. Many of the men and women of the
Coast Guard, the Federal Emergency Management Agency, the
United States military, the National Guard, Homeland Security,
and state and local governments performed skillfully under the
worst conditions. 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.’

President Bush reiterated this concept on September 27, 2005, urging Congress to
evaluate extending executive authority in times of emergency so the full assets of the
Department of Defense could be used to respond to catastrophic natural disasters.3

President Bush said that such measures would be helpful “in certain extreme circum-
stances, to be able to rally assets for the good of the people. I don’t want to prejudge
the Congress’s discussion on this issue, because it may require change of law.”36

Lieberman further noted that “[tihe lack of a [military] plan led to unnecessary confusion, unnec-
essary bureaucratic struggles, and more human suffering than should have [occurred].” Id.

” Lipton, Political Issues, supra note 24.
32 Id.
33 Id.
‘ President George W. Bush, Address to the Nation (Sept. 15, 2005) [hereinafter Bush,

Address to the Nation] (transcript available at http://www.whitehouse.gov/news/releases/
2005/09/20050915-8.html).

” President George W. Bush, Remarks at the U.S. Dep’t of Energy (Sept. 26, 2005)
[hereinafter Bush, Remarks] (transcript available at http://www.whitehouse.gov/news/releases/
2005/09/20050926.html).

36 Id.

[Vol. 15:301

IN KATRINA’S WAKE

Senator Joseph Lieberman echoed the President’s sentiment, concluding that
“[Hurricane] Katrina showed us that we need to define where that line [for military
involvement in civilian affairs] is drawn.”37

The Northern Command of the U.S. Department of Defense is developing a
proposal for the creation of a specially-trained and equipped unit of the military’s
active forces to respond to catastrophic domestic events.”8 The proposed unit would
be trained to assist state and local law enforcement with relief capabilities, working
and training with National Guard units, and would be under the authority of the
National Guard’s governor.39 Specific criteria would be outlined to determine when
and how the active-duty forces would be used in natural disaster relief, but the active-
duty forces would only have authority to assist in relief efforts, and not engage in
law enforcement activity.’ The head of the Northern Command, Admiral Timothy
J. Keating, stated that creation of the unit to assist in relief and recovery operations
on American soil was permissible, but any extension of the military’s role in
domestic law enforcement would require Congress to change existing federal laws
that currently preclude the military from engaging in law enforcement activities.4

II. HISTORY OF THE LIMITATION ON THE USE OF THE MILITARY IN

DOMESTIC ARENAS

A. Posse Comitatus Act

The Posse Comitatus Act of 187842 was enacted in an effort to reaffirm the deeply
held American principle that civilian and military spheres should be kept distinctly
separate.43 The extensive use of federal troops serving in domestic law enforcement
roles during the Reconstruction Era spurred Congress to place new limits on the

3″ Defense Department’s Role, supra note 30.

38 Eric Schmitt & Thorn Shanker, Military May Propose an Active-Duty Force for Relief

Efforts, N.Y. TIMES, Oct. 11, 2005, at A15.
39 id.
4 id.
41 Id.

42 Posse Comitatus Act of 1878, ch. 263,20 Stat. 145 (codified as 18 U.S.C. § 1385 (2000)).
43 Matthew Carlton Hammond, Note, The Posse Comitatus Act: A Principle in Need of

Renewal, 75 WASH. U. L.Q. 953, 953 (1997). The Constitution clearly places limits on the
scope of federal military power. Article I, Section 8 gives Congress the power to create and
fund an army and a navy, to regulate the armed forces, and to declare war. U.S. CONST. art.
I, § 8, cls. 11-16. Article II, Section 2 designates the President as commander-in-chief of the
armed forces, placing a civilian at the top of the military hierarchy. U.S. CONST. art. II, § 2,
cl. 1. The Second Amendment provides for the creation of state militias to serve as a counter-
balance to the federal military power and the Third Amendment prevents the stationing of
soldiers in private homes. U.S. CONST. amends. H-11I.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

military’s role in domestic affairs.” The ex-Confederate states were divided into mili-
tary districts from the period of 1865 to 1877 as federal troops were charged with
“registering the voters, supervising the election of delegates to constitutional conven-
tions, supervising the conventions and supervising the ratification of the Fourteenth
Amendment to the Constitution.”4 5 During the hotly contested presidential election
of 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden,
President Ulysses S. Grant, a Republican, ordered federal troops into Florida, Louisi-
ana, and South Carolina to protect the election canvassers and prevent widespread
voting fraud.’ The Republican Hayes won the election narrowly with the help of
the electoral votes of Florida, Louisiana, and South Carolina; Democrats blamed the
results on Grant’s use of federal troops.47 In response to Reconstruction in the South
and the election of 1876, the Democrat-controlled House of Representatives passed
a bill making it unlawful for federal troops to enforce the laws without express
authorization from Congress.4 8 President Hayes signed the bill on June 18, 1878. 4 9

B. Exceptions to the Posse Comitatus Act

Congress permits the President to use federal troops at the request of state authori-
ties.50 Congress has also extended authority to the President to federalize the National
Guard in instances where rebellion has made it impossible to enforce the laws of the

” Sean J. O’Hara, Comment, The Posse Comitatus Act Applied to the Prosecution of
Civilians, 53 U. KAN. L. REv. 767, 771-72 (2005).

41 H. W. C. Furman, Restrictions upon Use of the Army Imposed by the Posse Comitatus
Act, 7 MIL. L. REv. 85, 94 (1960).

46 Id. at 94-95.
47 Id. at 95.
48 Id. at 95-96; see also United States v. Allred, 867 F.2d 856, 870 (5th Cir. 1989)

(stating the legislative impetus of the Posse Comitatus Act arose from the use of federal
troops in elections within ex-Confederate states).

9 Furman, supra note 45, at 96. The Posse Comitatus Act of 1878 stated:
From and after the passage of this act it shall not be lawful to employ
any part of the Army of the United States, as a posse comitatus, or
otherwise, for the purpose of executing the laws, except in such cases
and under such circumstances as such employment of said force may
be expressly authorized by the Constitution or by act of Congress.

Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878) (codified as 18 U.S.C. §
1385 (2000)).

50 10 U.S.C. § 331 (2000) (“Whenever there is an insurrections [sic] in any State against its
government, the President may, upon the request of its legislature or of its governor if the legis-
lature 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.”) The concept that the President has authority to intervene with force
in situations where local and state law enforcement fails has origins dating to the drafting of the
Constitution and the 1795 Militia Act. See infra notes 134-48 and accompanying text.

[Vol. 15:301

IN KATRINA’S WAKE

United States in any state or territory.5 Further, the President is authorized to use the
National Guard or the federal military to suppress an insurrection, domestic violence,
or conspiracy.5 2 While these three exceptions grant significant power to the President
during times of emergency, they offer little in the way of specific circumstances in
which the President may make use of this power. 3 The use of these statutes as a source
of authority to take executive action has been limited to a few occurrences,’ and only
tangential treatment has been given to these statutes by the courts,” creating uncertainty
as to exactly what statutory limits restrict the President in times of emergency.

56

In 1981, Congress expanded the Posse Comitatus Act to increase the federal mili-
tary’ s ability to share information,5 7 equipment,58 and assistance in training to local and

51 10 U.S.C. § 332 (2000) (“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 ordi-
nary 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.”).

52 10 U.S.C. § 333 (2000) (“The President, by using the militia or the armed forces, or both,
or by any other means, shall take such measures as he considers necessary to suppress, in a State,
any insurrection, domestic violence, unlawful combination, or conspiracy, if it: (1) so hinders the
execution of the laws of that State, and of the United States within the State, that any part or class
of its people is deprived of a right, privilege, immunity, or protection named in the Constitution
and secured by law, and the constituted authorities of that State are unable, fail, or refuse to pro-
tect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the
execution of the laws of the United States or impedes the course ofjustice under those laws.”).

13 Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 YALE L.J.
149, 192 (2004).

4 See infra Part Ill.
” See, e.g., Bergman v. United States, 565 F. Supp. 1353, 1401-03 (W.D. Mich. 1983)

(holding the FBI’s failure to disclose knowledge of conspiracy to attack Mississippi “Freedom
Riders” foreclosed President Kennedy’s ability to intervene under the provisions of 10 U.S.C.
§ 333); Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp. 1249, 1254-55 (D.
D.C. 1973) (holding presidential discretion in exercising powers granted by the Constitution
and implementing statutes to use troops and militia to suppress civil disorder is not subject to
judicial review). These cases only noted that presidential authority exists to use the military
against civilians; they did not attempt to define any limits to the authority. Bergman, 565 F.
Supp at 1401-03; Monarch Ins., 353 F. Supp. at 1254-55.

56 See 10 U.S.C. §§ 331-333 (2000). The statutory notes offer no further guidance on the
implementation of the authority provided in these statutes.

” 10 U.S.C. § 371 (2000). The military is permitted to share information as “[tihe Sec-
retary of Defense shall ensure, to the extent consistent with national security, that intelligence
information held by the Department of Defense… or other civilian law enforcement matters
is provided promptly to appropriate civilian law enforcement officials.” Id.

58 10 U.S.C. § 372 (2000). Congress granted “[t]he Secretary of Defense …. in accor-
dance with other applicable law, [the power to] make available any equipment. . . ,base
facility, or research facility of the Department of Defense to any Federal, State, or local
civilian law enforcement official for law enforcement purposes.” Id.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

state law enforcement agencies.59 The impetus for the 1981 amendments was an armed
confrontation between members of the American Indian Movement (AIM) and local,
state, and federal law enforcement authorities during a seventy-one-day standoff begin-
ning on February 27, 1973.’ 0 AIM protested the failure of the United States govern-
ment to respect the federal government’s treaty obligations with the Sioux Nation.6

Specifically, AIM claimed the federal government abrogated Sioux sovereignty by
failing to return the South Dakota Black Hills to Sioux control, which was mandated
under the terms of the still-existing Fort Laramie Treaty of 1868.62 During the standoff,
members of the U.S. Army’s Eighty-Second Airborne Division were on site to supply
advice and counsel to the law enforcement authorities, supervising the transfer of
armored personnel carriers, sniper rifles, ammunition, and flares, as well as providing
aerial reconnaissance from military aircraft. In trials for three separate defendants
following the conclusion of the Wounded Knee standoff, the three defendants each
argued that such military involvement was unlawful under the Posse Comitatus Act.’

The three Wounded Knee courts reached contradictory conclusions as to the scope
of the Posse Comitatus Act.65 In United States v. Red Feather,” the trial court found
that “[t]he prevention of the use of military supplies and equipment was never men-
tioned in the debates, nor can it reasonably be read into the words of the Act. Only the
direct active use of troops was forbidden, unless expressly authorized by the Consti-
tution or by Act of Congress. 6 7 The Red Feather court defined “active use” in law
enforcement as “arrest; seizure of evidence; search of a person; search of a building;
investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner;

See 10 U.S.C. § 373 (2000).
o Nathan Canestaro, Homeland Defense: Another Nail in the Coffin forPosse Comitatus,

12 WASH. U. J.L. & POL’Y 99, 126-27 (2003). The outlaw group looted stores, took hostages,
and established an armed perimeter around their area. Id. at 126.

6 Rebecca Tsosie, Sacred Obligations: Intercultural Justice and the Discourse ofTreaty
Rights, 47 UCLA L. REv. 1615, 1644 (2000).

62 Id.; see also Fort Laramie Treaty, U.S.-Sioux Nation, Apr. 29, 1868, 15 Stat. 635.
63 Canestaro, supra note 60 at 127. In addition, government forces fired approximately

500,000 rounds of ammunition in an effort to end the seventy-one-day standoff. Natsu Taylor
Saito, Whose Liberty? Whose Security ? The USA PATRIOTAct in the Context of COINTELPRO
and the Unlawful Repression of PoliticalDissent, 81 OR. L. REv. 1051, 1097 (2002). It remains
unclear, however, whether President Nixon specifically ordered the federal forces to be
involved or whether the decision was made further down the chain of command. Charles
Bloeser, A Statute in Need of Teeth: Revisiting the Posse Comitatus Act After 9/11, FED.
LAW., May 2003, at 24, 28. On August 7, 1974, the day before Nixon resigned from office,
he refused to comply with a subpoena for Oval Office tapes relating to the White House’s
activities during the Wounded Knee affair. Id. at 28 n.20.

‘ Canestaro, supra note 60, at 126.
65 Id.
6 392 F. Supp. 916 (D. S.D. 1975).

67 Id. at 922 (emphasis added).

[Vol. 15:301

IN KATRINA’S WAKE

search of an area for a suspect and other like activities.” 68 The Red Feather court’s
definition only highlights the confusion surrounding how far the federal military may
go in participating in domestic law enforcement activities, particularly when taken
in light of the other Wounded Knee trials.69

In United States v. Jaramillo,” the court held that although merely providing
military materiel to law enforcement does not constitute a prima facie violation of
the Posse Comitatus Act, the extent and pervasiveness of the military’s extensive
support role were questionable.7′ The Jaramillo court found that the prosecution failed
to prove that law enforcement authorities had acted in a lawful manner because the
court could not find that the military personnel’s advice, counsel, equipment, and
maintenance “did not contribute materially to the operation being carried out by the
law enforcement officers. 72

In United States v. McArthur,3 the Court held that the scope of the Posse Comitatus
Act restricted military action only “which is regulatory, proscriptive or compulsory
in nature, and causes the citizens to be presently or prospectively subject to regula-
tions, proscriptions, or compulsions imposed by military authority.”’74 The court ruled,
in light of the facts, that the military personnel maintained adequate separation
between active participation and passive assistance .7 “1 find… that the government
policy of loaning equipment between branches of the government extends to the
loaning of expert advisors, as was done here. That is, to my mind, Colonel Warner
was borrowed as a vehicle might be borrowed. 76 Therefore, two of the three courts
that examined the Posse Comitatus Act interpreted the restriction broadly, but all
reached the conclusion that the Posse Comitatus Act restricts the use of active
military troops without express congressional authorization. 77

6 Id. at 925. The Red Feather court also highlighted what it considered to be “passive”
law enforcement duties, such as, “advice or recommendations given to civilian law enforce-
ment officers… on tactics-or logistics; presence of military personnel to deliver military
materiel, equipment or supplies, to train local law enforcement officials on the proper use and
care of such material or equipment… ; aerial photographic reconnaissance flights and other
like activities.” Id.

69 See infra notes 70-77 and accompanying text.
70 380 F. Supp. 1375 (D. Neb. 1974).
71 Id. at 1379.
72 Id. at 1380-81.
73 419 F. Supp. 186 (D. N.D. 1975).
74 Id. at 194.
75 Id. at 194-95.
76 Id. at 195.
77 Id. at 194; United States v. Red Feather, 392 F. Supp. 916, 922 (D. S.D. 1975);

Jaramillo, 380 F. Supp. at 1379.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

mH. HISTORICAL APPLICATIONS OF THE EXCEPTIONS TO THE POSSE
COMITATUS ACT

Presidents have been left to maneuver through the gray areas of the Act’s limita-
tions when circumstances demand immediate and decisive executive action. In an
official opinion from July 1856, Attorney General Caleb Cushing proposed the
question of domestic military intervention when the Governor of California requested
presidential intervention to suppress an uprising:

Can the President call forth the militia of one State for the purpose
of suppressing insurrection in another, or employ the land and
naval forces of the United States for the same purpose, when he
has sufficient knowledge of the fact of insurrection, but no
request for his interposition has been made in due conformity
with the conditions of the statute?

78

Cushing argued that only in the gravest circumstances, when all other alternatives
have failed, should the President be able to use federal military force in times of
domestic emergency.79

[T]his high power of the President to cases of doubtful legal con-
dition ought to be reserved for circumstances of the most exigent
emergency.., in which all the constitutional powers of the State
shall have been exerted in vain to prevent or suppress domestic
war, and in which also imminent or extreme public disaster can be
averted only by such interposition of the Federal Government.80

Cushing believed that the request by the Governor of California for federal military
assistance did not satisfy the requirements for enlisting presidential authority, because
the Governor could only make such a request if the state legislature was unable to
convene.81 According to Cushing, the request for military action was “made by the
Governor of the State, not by its legislature, and made by him without any allegation
that the legislature could not be convened.” 2 Clearly, as early as 1856, there was
a general reluctance to expand presidential authority to dispatch federal troops for
law enforcement purposes beyond the prescriptions of the then-existing statutes.

” Insurrection in a State, 8 Op. Att’y Gen. 8, 14 (1856).
79 Id.
80 Id.

81 Id. at 13.
82 Id.

[Vol. 15:301

IN KATRINA’S WAKE

A century later, Attorney General Herbert Brownell issued an opinion regarding
President Dwight D. Eisenhower’s use of federal troops and the federalization of the
Arkansas National Guard in the face of local resistance to school desegregation in
Little Rock, Arkansas. 3 Brownell stated that “[in addition to the constitutional power
in the President in such matters, a series of statutes of broad sweep enable the President
to deal effectively with civil disturbances within a State when compelling circum-
stances are present.”‘ Brownell believed compelling circumstances existed in Little
Rock, because local law enforcement authorities were demonstrably unable to cope
with the white protesters, combined with “the indifference or refusal of the Governor
of the State to supply a sufficient force to quell the lawless movement. 8 5 Brownell
did not believe that the Posse Comitatus Act served as a bar to presidential action,
stating that “at the time the Posse Comitatus Act was enacted, the predecessors to
10 U.S.C. 332, 333 were in force and the Congress did not intend or interpret the act
as impairing whatever powers the President had under those statutes.” 6 Brownell
concluded his affirmation of Eisenhower’s action by stating:

When an unruly mob arrogates to itself the power to nullify a con-
stitutionally-secured right, a statutory prescription, and a court or-
der, it may reasonably be assumed that the danger of a fast-moving,
destructive volcanic force is immediately present. Success of the un-
lawful assemblage in Little Rock inevitably would have led to mob
rule, and a probable breakdown of law and order in an ever-increas-
ing area. When a local and State Government is unable or unwilling
to meet such a threat, the Federal Government is not impotent.’

83 Christopher S. Yo et al., The Unitary Executive in the Modem Era, 1945-2004,90 IOWA

L. REv. 601,625-26 (2005). Eisenhower ordered 1,000 paratroopers from the 101 st Airborne
Division into Little Rock because “[h]e wanted [General Maxwell D.] Taylor to move
quickly in order to demonstrate how rapidly the Army could respond. Within a few hours,
Taylor had five hundred paratroopers of the 101st Airborne Division in Little Rock; another
five hundred were there by nightfall.” 2 STEPHEN E. AMBROSE, EIsENHOWER: THE
PRESIDENT 419-20 (1984).

‘ President’s Power to Use Federal Troops to Suppress Resistance to Enforcement of
Federal Court Orders-Little Rock, Arkansas, 41 Op. Att’y Gen. 313, 327 (1957). Brownell
specifically referred to 10 U.S.C. §§ 331-333. Id.

5 Id. at 328. In his opinion, Brownell highlighted the fact that Eisenhower complied with
the requirements of 10 U.S.C. § 334, id. at 327, which requires the President to “immediately
order the insurgents to disperse and retire peaceably to their abodes within a limited time”
before using federal troops. 10 U.S.C. § 334 (2000). In satisfaction of § 334, President
Eisenhower issued a proclamation on September 24, 1957, ordering those involved with
trying to prevent the execution of federal court orders to immediately cease and desist their
activities. Proclamation No. 3204, 22 Fed. Reg. 7,628 (Sept. 25, 1957).

‘ 41 Op. Att’y Gen. at 330.
87 Id. at 332.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

In the face of widespread urban rioting across American cities during the summer
of 1967, Attorney General Ramsey Clark sent a letter to all fifty state governors detail-
ing the conditions under which President Lyndon B. Johnson would be willing to use
federal troops to assist local law enforcement authorities.8″ Clark stated that there were
three prerequisites to the use of federal troops to combat domestic violence. 9 First,
there must be evidence of serious domestic violence;’ second, such violence cannot be
brought under control by all means of law enforcement available to the state;9 and
third, the legislature or the governor of the state must make a request in writing to the
President to employ federal armed forces.’ The requirement of a written request sup-
ported the President’s required issuance of a proclamation under 10 U.S.C. § 334, but
in cases of “extreme emergency,” a written request would not be required.93 Clark stated
that even if each of the three prerequisites was satisfied, the President still retained dis-
cretion to “exercise his own judgment as to whether Federal troops will be sent, and as to
such questions as timing, size of the force, and federalization of the National Guard.”

A. Presidential Power in Federalizing the National Guard

The National Guard of the individual states remains under state executive control
when not federalized by Congress or the President.95 The Posse Comitatus Act does not

88 Letter from Ramsey Clark, Attorney Gen., to State Governors (Aug. 7, 1967), quoted

in Laird v. Tatum, 408 U.S. 1, 3 n.2 (1972).
89 Id.

9 Id.
91 Id.

92 Id. In his letter, Clark said that there was no specific definition of what consisted
actionable domestic violence, only that the assessment would have to be made under the
particular circumstances of the events. Id.

9 Id. Clark did not define what would constitute an “extreme emergency.” Id.
94 Id. Clark stated in his letter that:

Preliminary steps, such as alerting the troops, can be taken by the
Federal government upon oral communications and prior to the gov-
ernor’s determination that the violence cannot be brought under control
without the aid of Federal forces. Even such preliminary steps, however,
represent a most serious departure from our traditions of local res-
ponsibility for law enforcement. They should not be requested until
there is a substantial likelihood that the Federal forces will be needed.

Id. However, in Alabama v. United States, 373 U.S. 545 (1963), the Supreme Court held
mere preparatory action taken by the President, such as moving federal troops into areas
where they might be needed, was not a violation of 10 U.S.C. § 333. Id. In 1963, President
Kennedy stationed federal troops at bases in Alabama during the Birmingham civil rights
demonstrations, but they were never used. Note, Riot Control and the Use of Federal Troops,
81 HARV. L. REv. 638, 650 (1968) [hereinafter Riot Control].

95 William C. Banks, The Normalization ofHomelandSecurityAfterSeptember 11: The Role
of the Military in Counterterrorism Preparedness and Response, 64 LA. L. REv. 735,762 (2004).

[Vol. 15:301

IN KATRINA’S WAKE

reach the National Guard when control rests in the hands of state governors.’ In 1916,
Congress gave the National Guard dual status,’ requiring all guardsmen to take oaths
to support the United States and the President as well as the state and its governor.98 An
amendment to the Dick Act further authorized the President to draft the National Guard
into federal service for deployment abroad. 9 The Perpich Court held that the National
Guard could be called into active duty over the objections of the state’s governor even
if there was no pressing national emergency.” During the period for which the guards-
men serve in active federal duty, they lose their status as members of the state militia,
and are no longer under the command of the governor.’ O’ The Perpich Court explicitly
stated that once the National Guard is elevated into federal service, they become part
of the regular federal military forces, subject to command of the President.’0 2

IV. OVERCOMING THE BARRIERS TO EXPANDING PRESIDENTIAL AuTHoRrry IN

THE USE OF FEDERAL TROOPS DOMESTICALLY

There are several arguments presented by commentators on the caveats of reducing
the scope of the Posse Comitatus Act. This Note deals with each issue separately to
focus on the individual arguments and presents alternative conclusions as to how
and why the concept of posse comitatus can be reshaped to deal with the challenges
witnessed during a catastrophic disaster such as Hurricane Katrina.

A. The Need for Centralized Decision-Making by a Single Individual Is Critical
in Emergency Situations

The American political structure is predicated on a series of checks and balances
to prevent placing too much authority in the hands of one person.’0 3 In this context,

” See, e.g., United States v. Benish, 5 F.3d 20, 25-26 (3d Cir. 1993) (holding Posse
Comitatus Act inapplicable because Pennsylvania National Guard unit was not in federal
service at the time in question); see also H.R. REP. No. 100-989, at 455 (1988) (Conf. Rep.),
as reprinted in 1988 U.S.C.C.A.N. 2503, 2583 (“When not in federal service, the National
Guard is not subject to the Posse Comitatus Act.”).

9 National Defense Act of 1916, ch. 134, § 1, 39 Stat. 166, 166 (1916).
98 Perpich v. Dep’t of Def., 496 U.S. 334,343 (1990). The Court held that Congress had

the authority to activate Minnesota’s National Guardsmen and send them outside the country
for training, despite the objections of the state’s governor. Id. at 339-40.
99 Id. at 342-43.
‘0o id. at 339-40.
101 Id. at 347.
io Id. at 343-44.
103 Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc.,

501 U.S. 252, 273 (1991) (“The abuses by the monarch recounted in the Declaration of
Independence provide dramatic evidence of the threat to liberty posed by a too powerful
executive.”).

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

although “[t]he military is likewise subject to civilian control… its accountability is
centralized through a command authority running to the President. The centralized
national command authority is not as suited as local officials are to monitor law en-
forcement practices …. .”” However, the need for quick action in times of emergency
dictates that the executive, as a unitary decision-maker, have broad discretion in
deciding when and how to take appropriate action.’0 5 Alexander Hamilton stated that
“[d]ecision, activity, secrecy, and dispatch will generally characterize the proceedings
of one man in a much more eminent degree than the proceedings of any greater number;
and in proportion as the number is increased, these qualities will be diminished.”‘

6

As interpretations of the Posse Comitatus Act currently stand, the President’s
ability to make rapid decisions is hampered because the complex statutory web of
“this approach include[s] a convoluted command and control structure, decreased
response time, and continuity-of-operations problems; it also leaves the federal
response vulnerable to exploitation by the adversary.”‘ 1 7 Only decisions at the top
of the chain of command, by a single informed individual, can be reached with
appropriate timeliness and legitimacy.’08

The concept of a centralized chain of command with the President as commander-
in-chief is the very structure utilized by the military in its traditional role as the

10 Banks, supra note 95, at 770.
10S Hamdi v. Rumsfeld, 542 U.S. 507, 580 (2004) (Thomas, J., dissenting).
106 THE FEDERALIST No. 70, at 424 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
107 Sean M. Maloney, Domestic Operations: The Canadian Approach, PARAMETERS,

Autumn 1997, at 135, 150. Canada’s political-military structure in domestic situations is
compared to that of the United States. Id. at 135. Maloney argues that the greater flexibility
in the Canadian system is more effective because:

[legislation does not prescribe the exact civil-military relationship at
the operational and tactical levels as it does at the national and provin-
cial leadership levels, nor does it hamper commanders by dictating the
levels of response which may be required in violent situations. The mili-
tary is not overburdened with legalities. The government accepts a high
reliance on military professionalism and training, and on an organization
which has a higher loyalty than to elected officials…. [I]n all cases they
have understood that there are limits to the civil authorities’ capability
in terms of coordination, communications, mobility, organization, discip-
line, and force and have allowed the military to take over when the
situation required it.

Id. at 148-49. The Canadian structure allows the government to deploy military forces
“anywhere in or beyond Canada in the case of an emergency” without parliamentary approval.
Kevin D. Hartzell, Note, Voluntary Warriors: Reserve Force Mobilization in the United
States and Canada, 29 CORNELINT’LL.J. 537, 563 (1996). An emergency is simply defined
as “insurrection, riot, invasion, armed conflict or war, whether real or apprehended.” National
Defence Act, R.S.C., ch. N-5, § 2 (2006).
t’ John R. Martin, Note, Morrison v. Olson and Executive Power, 4 TEx. REV. L. & POL.

511, 523-24 (2000).

[Vol. 15:301

IN KATRINA’S WAKE

instrument of defense for the nation.” 9 This structure allows one person to make and
direct decisions regarding the deployment and use of American military forces world-
wide.” 0 The benefit of this structure lies in the fact that the President as the sole decision-
maker can take swift, decisive action in times of war or crisis without interference.”‘

Military affairs frequently demand unique treatment; secrecy,
centralized decision-making, speed, and consistency are of unusual
importance in this area. These requirements are, in large part, in-
compatible with the open, decentralized, frequently slow-moving
give-and-take of a representative legislature. In contrast, the execu-
tive branch possesses most, if not all, of the qualities necessary for
efficient and successful military decision-making.” 2

However, as witnessed during the Katrina disaster,”3 presidents do not enjoy the
same discretion domestically when the military is involved.” 4 The President and
Governor Blanco bickered over who should assume authority over the National
Guard,” 5 and political and legal considerations prevented the President from making
immediate moves to deploy active-duty military forces to secure New Orleans.”

6

The lack of communication among members of the local, state, and federal govern-
ments,1 7 combined with the near collapse of the New Orleans Police Department

81
8

and an overwhelmed and under-equipped National Guard, ” 9 left no decision-makers

“0 Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV.
1, 29-30.
.1. See Parker v. Levy, 417 U.S. 733, 751 (1974) (‘The military establishment is subject

to the control of the civilian Commander in Chief … and its function is to carry out the
policies made by those civilian superiors.”).
“. Eugene V. Rostow, What the Constitution Means by Executive Power, 43 U. MIAMI

L. REv. 165, 195-96 (1988). Rostow highlighted his point regarding the value of centralized
command by using nuclear weapons as an example. Id. Despite the enormous destructive power
of nuclear weapons, the President is invested with sole control over their use. Id. Giving multiple
decision-makers control, such as sharing control between Congress and the President, would
necessarily blunt the nation’s ability to utilize the weapons should the need arise. Id. at 196.

112 Comment, Resolving Treaty Termination Disputes, 129 U. PA.L. REV. 1189, 1210(1981).
113 HOMELAND SEC. CoUNCIL, ExEcuTtvE OFFICE OF THE PRESIDENT, THE FEDERAL

RESPONSE TO HURRICANE KATRINA: LESSONS LEARNED 54 (2006), available at http://
www.whitehouse.gov/reports/katrina-lessons-leamed [hereinafter FEDERAL RESPONSE]
(“[A]ctive duty military and National Guard operations were not coordinated and served two
different bosses, one the President and the other the Governor.”).

“4 See, e.g., 10 U.S.C. §§ 331-333 (2000).
l15 See supra notes 23-26 and accompanying text.
116 See supra notes 27-33 and accompanying text.
117 See supra notes 23-24 and accompanying text.
11 See supra note 16 and accompanying text.

“9 See supra notes 13-14 and accompanying text.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

with the capacity or resources to bring the situation under control. Had the lines of
authority been more clear, and the President confident he was on solid political and
legal ground to dispatch federal troops’ 2° as soon as the need proved evident, there
is no knowing how many lives might have been saved. Hurricane Katrina clearly
proved that presidential reliance on state approval and consent for federal military
support can cause devastating problems for those most affected by a disaster.1

2′

A solution to this problem is for Congress to remove the provision in 10 U.S.C.
§ 331 that requires a state legislature or its governor to request that the President
federalize the National Guard or deploy active-duty troops in an emergency.122 This
step would remove the indecision that results when a crisis is of such magnitude that
it is impossible for state and local officials to make, or even communicate, informed
decisions. Removal of this provision would also eliminate some of the political barriers
that frustrated the federal government’s response during Hurricane Katrina as a
result of 10 U.S.C. § 331,’2 when state officials struggled to keep their status as pri-
mary decision-makers despite their inability to provide effective leadership. 24 The
President, as commander-in-chief and centralized decision-maker, is best suited to
direct coordinated action in times of extreme emergency within the domestic arena,
in exactly the same role that the President assumes in foreign crises.”‘ Modifying
10 U.S.C. § 331 would significantly streamline a process that demands centralized
authority as fast as possible after cataclysmic events like Hurricane Katrina.

B. “Traditional Notions” of Domestic Military Action Are Not Supported by History

One argument for continuing to restrict military activity in domestic arenas is the
long-standing American practice to avoid using the military in law enforcement roles.'”
One of the basic premises of the posse comitatus concept is to delineate the historic
separation of the civilian and military spheres: “The historic democratic purpose of
relying on the people is clear: to promote popular participation in law enforcement

120 See supra notes 27-33 and accompanying text.
121 FEDERAL RESPONSE, supra note 113, at 54, (“[L]imitations under Federal law and

[Department of Defense] policy caused the active duty military to be dependent on requests
for assistance. These limitations resulted in a slowed application of… resources during the
initial response.”).

122 10 U.S.C. § 331 (2000) (“[Tlhe President may [deploy troops], upon the request of its
legislature or of its governor if the legislature cannot be convened …..

123 See supra notes 27-33 and accompanying text.
124 Obviously, politics will remain a part of any president’s decision to deploy active-duty

troops into a crisis situation. This can never be completely avoided, but power struggles
based on political affiliation could be substantially reduced with a clearer delineation of
presidential authority within 10 U.S.C. § 331.

125 See supra notes 105-12 and accompanying text.
126 David B. Kopel & Joseph Olson, Preventing a Reign of Terror: Civil Liberties

Implications of Terrorism Legislation, 21 OKLA. CnTY U. L. REv. 247, 266 (1996).

[Vol. 15:301

IN KATRINA’S WAKE

and to prevent authoritarian rule by use of the military to enforce the law.”‘ 27 The
court in Wrynn v. United States’28 underscored this sentiment, when it stated:

The [Posse Comitatus Act] is not an anachronistic relic of an
historical period the experience of which is irrelevant to the
present. It is not improper to regard it, as it is said to have been
regarded in 1878 by the Democrats who sponsored it, as expressing

“the inherited antipathy of the American to the use of troops for

civil purposes.”‘ 29

There is no constitutional barrier, however to the use of the military in law enforce-
ment. a0 Congress possesses the power to deploy military forces in the domestic arena
at any time, and therefore has the authority to free the executive from the current
restrictions of the Posse Comitatus Act.’ But there remains some conflict whether

Congress usurped presidential constitutional authority by the passage of the Posse
Comitatus Act. 32 In his 1957 opinion to President Eisenhower, Attorney General
Herbert Brownell, concluding Eisenhower acted within the confines of the restrictions

placed upon the President by the Posse Comitatus Act, suggested that there were
“grave doubts as to the authority of the Congress to limit the constitutional powers
of the President to enforce the laws and preserve the peace under circumstances
which he deems appropriate.”‘

133

Although the Founding Fathers were conscious of the importance of civilian
oversight over military affairs when they drafted the Constitution,’ 34 this sentiment
did not prevent federal forces from being used in domestic law enforcement soon
after the Constitution’s enactment. 13 The Founding Fathers recognized that the fragil-
ity of the new union might require military intervention to hold the young nation

127 Id.
12′ 200 F. Supp. 457 (E.D.N.Y. 1961).
121 Id. at 465 (quoting Edwin Erle Sparks, National Development, 1877-1885, in 23 THE

AMERICAN NATION, A HISTORY (1907)).
3 Kopel & Olson, supra note 126, at 265.

’31 O’Hara, supra note 44, at 775; see also Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579,588 (1952). The Court in Youngstown affirmed the notion that Congress possesses
the exclusive ability to make laws, and the President the authority to execute them. Id. at
587-88. The President may not act unilaterally to set policy and then also prescribe the
manner in which to execute them. Id. at 588.

132 41 Op. Att’y Gen. at 331.
131 Id. Brownell was careful to qualify this statement by informing Eisenhower that the

President’s actions did in fact comply with the statutory restrictions. Id.
13 O’Hara, supra note 44, at 769-70.
3 Richard H. Kohn, Using the Military at Home: Yesterday, Today, and Tomorrow,

4 CHI. J. INT’LL. 165, 168-69 (2003).

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

together under certain circumstances. 3 6 When local communities and states were
unable to keep order, James Madison told the Virginia Ratifying Convention, federal
forces would be used to prevent “society from being destroyed.”‘

‘ 37

From the very beginning of the American constitutional era, the military engaged
in domestic law enforcement activities before the passage of the Posse Comitatus Act
in 1878.138 As early as 1793, President George Washington federalized state militia
troops to enforce his Neutrality Proclamation, designed to prevent privateers from
pirating British ships. 39 Shortly after, in July 1794, fierce opposition to federal liquor
taxes sparked the Whiskey Rebellion, which overwhelmed local authorities in
Pennsylvania.”4 Protesters attacked and burned the home of tax inspector John
Neville. 14, In response, President Washington ordered the federalization of militia
troops from four states despite the reluctance of Thomas Mifflin, the Governor of
Pennsylvania. 142 Washington called forth 15,000 men from Pennsylvania, New Jersey,
Maryland, and Virginia, and along with Alexander Hamilton, joined the new federal-
ized militia to provide much-needed leadership. 143 Once the state militias had been
federalized, “‘the state militias ceased to be under the jurisdiction of the governors.
Organized as state units they were nonetheless the President’s men exclusively.””44
Despite some commentators’ strong objections to the President’s use of federal power
in putting down the insurrection rather than allowing the courts to handle the crisis,

145

in 1795 Congress reauthorized the President’s authority to federalize state militias
in case of insurrection.”4 This action was significant because it allowed the President

136 Id. at 168. There was general agreement that the military could be used when the rule
of law failed to compel obedience, but only as a last resort. Id. However, the drafters dis-
agreed as to the extent that power should be exercised. Id. This led to granting Congress the
power to “suppress Insurrections,” leaving that determination to Congress, and by extension,
the President. U.S. CONST. art. I, § 8, cl. 15.

“‘ Kohn, supra note 135, at 168.
131 O’Hara, supra note 44, at 770-71.
… Id. at 770.
“4 Jason Mazzone, The Security Constitution, 53 UCLA L. REV. 29, 109-10 (2005).
141 Id. at 110.
142 Id. at 110-11. Although a federal response to a domestic insurrection technically required

the state legislature or governor to make a formal request for assistance, it is unclear whether
Pennsylvania ever took such action. Id. at 110. Mifflin, despite his misgivings regarding the
President’s position, nevertheless agreed to support it. Id.

14′ Haydn J. Richards, Jr., Redefining the Second Amendment: The Antebellum Right
to Keep and Bear Arms and Its Present Legacy, 91 KY. L.J. 311, 336 (2003).

‘” Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First
Half-Century, 47 CASE W. RES. L. REV. 1451, 1485 (1997) (quoting GLENN A. PHELPS,
GEORGE WASHINGTON AND AMERICAN CONSTITUTIONALISM 142-43 (1993)).

141 Jonathan Turley, The Military Pocket Republic, 97 Nw. U. L. REV. 1, 26 (2002).
146 Vladeck, supra note 53, at 163. In fact, the 1795 Militia Act removed some barriers

to the presidential emergency powers. Id. Unlike the 1792 Militia Act, the 1795 Militia Act
removed the need for a federal court order before the President could take action, and allowed

[Vol. 15:301

IN KATRINA’S WAKE

to act “decisively, expeditiously, and, of most significance, unilaterally” in times of
emergency. 4 7 The 1795 Militia Act established Congress as having the ultimate
authority in determining the scope of executive power.’48 However, Washington’s
action in suppressing the Whiskey Rebellion and Congress’s subsequent affirma-
tion of such action confirmed the need for broad presidential emergency powers and
set a precedent for future incursions by federal forces into domestic affairs.

The Whiskey Rebellion would not be the last time prior to the Civil War that the
federal military was called on to enforce the laws. The Fugitive Slave Act of 1850 em-
powered federal marshals to employ a posse comitatus to return a fugitive slave to his
owner.4 9 In 1854, Attorney General Caleb Cushing issued an opinion stating active fed-
eral military forces could act as a posse comitatus to enforce the provisions of the Act:

These considerations apply as well to the military as to the civil
force employed; for the posse comitatus comprises every person
in the district or county above the age of fifteen years, whatever
may be their occupation, whether civilians or not; and including
the military of all denominations, militia, soldiers, marines, all of
whom are alike bound to obey the commands of a sheriff or
marshal. The fact that they are organized as military bodies, under
the immediate command of their own officers, does not in any
wise affect their legal character. They are still the posse comitatus.15

The Fillmore and Pierce administrations in the 1850s did not hesitate to use the military
to enforce the Fugitive Slave Act. 5 ‘ These actions sparked violence in the Northern
anti-slavery states, which resented the use of force against vigilantes harboring fugitive
slaves.’52 Maryland Senator Reverdy Johnson spoke of the ramifications of the
Fugitive Slave Act of 1850:

The law in one or two instances was enforced in one sense, but
how [was it] enforced? Enforced by power, by military or civil

the President to call forth out-of-state militiamen more easily. Id.
147 Id.
148 Id.

“‘ Act of Sept. 18, 1850, ch. 60, § 5, 9 Stat. 462, 462-63 (repealed 1864).
“o Extradition of Fugitives from Service, 6 Op. Att’y. Gen. 466, 473 (1854) (citations

omitted).
1′ Robert J. Kaczorowski, Congress’s Power to Enforce Fourteenth Amendment Rights:

Lessons from Federal Remedies the Framers Enacted, 42 HARv. J. ON LEGIs. 187, 262-63
(2005). One example was a contingent consisting of a company of the United States Army,
a company of Marines, Massachusetts state militiamen, and Boston police to seize and return
a fugitive slave, Anthony Bums, from Boston to South Carolina. Id. at 234 n.243.

152 David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L.
REv. 1359, 1439 n.301.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

power, threatening upon each occasion when resort was had to
it to involve the particular community where the attempt was
made in civil strife and bloodshed.’53

Yet, despite the hostility of the Northern states to the incursion of military forces
in the execution of local and state laws, Congress refused to prohibit the military
from domestic intervention.’5 4

The structure of the Civil Rights Act of 1866, passed in the aftermath of the
Civil War, used the Fugitive Slave Act of 1850 as a model for military intervention.1

55

The Civil Rights Act explicitly made provisions for federal military involvement to
enforce it:

[I]t shall be lawful for the President of the United States, or such
person as he may empower for that purpose, to employ such part
of the land or naval forces of the United States, or of the militia,
as shall be necessary to prevent the violation and enforce the due
execution of this act.

56

Senator Thomas Hendricks of Indiana warned that it was unnecessary for the
military to be used to execute the laws, reminding his colleagues of the rifts caused
by the Fugitive Slave Act of 1850 and the subsequent Civil War:

If men are guilty of crimes, let them be brought before the courts.
… Are there any Senators here that want this to be a country
governed by military power? Now, in a time of peace, when the
southern armies are abandoned, when the States are rapping at
your door for admission, when they wish to be heard when we
legislate in regard to them; at this time of profound peace in the
country, when there is a more perfect subjugation to law…. we
propose that a law for the benefit of the colored people shall be
executed at the point of the bayonet.’57

113 CONG. GLOBE, 39th Cong., 1st Sess. 505 (1866).
“‘ Steven Lubet, Slavery on Trial: The Case of the Oberlin Rescue, 54 ALA. L. REv. 785,

786 n.5 (2003). The Fugitive Slave Act passed without an absolute majority in either
chamber of Congress because many Northern congressmen abstained from the vote in protest.
Id. President Fillmore signed the bill, believing slavery was constitutionally entitled to pro-
tection, despite his personal misgivings about it. Id.

115 Robert D. Goldstein, Blyew: Variations on a Jurisdictional Theme, 41 STAN. L. REV.
469, 480 n.41 (1989).

156 Act of Apr. 9, 1866, ch. 31, § 9, 14 Stat. 27, 29 (1866).
157 CONG. GLOBE, 39th Cong., 1st Sess. 602 (1866).

[Vol. 15:301

IN KATRINA’S WAKE

If Congress was concerned about the traditional notion of separating the federal
military from domestic activities, it was not evidenced by this legislation. Indeed,
the Civil Rights Act of 1866 merely seems to have extended nearly eighty years of
law enforcement intervention by the military.’58

The Military Reconstruction Act of 1867 was the final piece of congressional
action explicitly allowing the military the right to intervene in domestic affairs prior
to the passage of the Posse Comitatus Act of 1878.’59 The Military Reconstruction Act
was designed to bring the ex-Confederate states back into the Union by stripping them
of their remaining vestiges of slavery and disenfranchisement of blacks.”6 The South
was placed under martial law 16 ‘ and divided into five military districts, each governed
by a federal military commander. 62 The Military Reconstruction Act of 1867 also
provided for the establishment of military commissions or tribunals to replace local
courts at the military commander’s discretion. 63 Under Reconstruction, military rule
would exist in the Southern states until they satisfied a list of conditions for their
representatives to be reseated in Congress: (1) ratify the Fourteenth Amendment,
(2) hold a state constitutional convention, (3) adopt a new state constitution in line
with federal constitutional principles, and (4) have the new state constitution
approved by Congress.’ 64 Among the pre-Posse Comitatus Act events discussed
above, the Military Reconstruction Act is clearly the most expansive in scope with
its explicit congressional mandate of military involvement in domestic affairs.

In their conclusions on the state of posse comitatus, some observers rely on the
assumption that preventing military involvement in domestic affairs is a deeply

‘s See supra notes 134-49 and accompanying text.
‘5 Alfreda A. Sellers Diamond, Serving the Educational Interests of African-American

Students at Brown Plus Fifty: The Historically Black College or University and Affirmative
Action Programs, 78 TUL. L. REv. 1877, 1899 n.103 (2004).

’60 Gabriel J. Chin, The “Voting Rights Act of 1867”: The Constitutionality of Federal
Regulation of Suffrage During Reconstruction, 82 N.C. L. REv. 1581, 1590 (2004).

16′ Diamond, supra note 159, at 1899 n.103; see also Exparte Milligan, 71 U.S. 2 (1866)
(holding martial law constitutional when it “is called into action by Congress, or temporarily,
when the action of Congress cannot be invited, and in the case ofjustifying or excusing peril, by
the President, in times of insurrection or invasion, or of civil or foreign war, within districts or
localities where ordinary law no longer adequately secures public safety and private rights”).

62 W. Sherman Rogers, The Black Quest for Economic Liberty: Legal, Historical, and
Related Considerations, 48 How. L.J. 1, 42 (2004) (“The [military] commander was to register
the voters, exclude prominent Confederate leaders, and include all other male citizens ‘of
whatever race, color, or previous condition of servitude.”‘ (quoting Reconstruction, in 2 THE
VOLUME LIBRARY 1728 (1995) (alteration in original))). The military commander also held
the power to override state legislation. William H. Rehnquist, Judicial Independence, 38 U.
RICH. L. REv. 579, 590 (2004).

163 Military Reconstruction Act, ch. 153, § 3, 14 Stat. 428 (1867) (“[W]hen in [the district
military commander’s] judgment it may be necessary for the trial of offenders, he shall have
power to organize military commissions or tribunals for that purpose.”).

“6 Chin, supra note 160, at 1590.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

rooted tradition within the American legal system. 6 However, for almost an entire
century leading up to the passage of the Posse Comitatus Act, the military was inter-
mittently used in domestic law enforcement capacities.”6 The passage of the Posse
Comitatus Act in 1878 did not represent a return to a fundamental American tradition;
instead, it came as a result of the political environment of that era.’ 67 Indeed, the
passage of the Posse Comitatus Act possessed racist overtones, as congressional
Democrats sought to prevent the military from further enforcing the Thirteenth,
Fourteenth, and Fifteenth Amendments.”6 Nearly every American today likely as-
sumes a rigid division between domestic law enforcement and military operations,
but that is simply the choice of Congress, not a constitutional restriction.”6 Conse-
quently, the presumption made by commentators that posse comitatus should be
more strictly enforced, and even strengthened, is predicated on a misreading of the
historical military-civilian relationship.

C. Federal Military Forces Can Receive Adequate Training for Effective
Execution of Domestic Law Enforcement

Questions arise whether federal active-duty troops-trained, prepared, and condi-
tioned to fight foreign or invading enemies – can be safely placed in the domestic
arena to serve in an entirely different capacity.” 0 In an argument in support of the
Posse Comitatus Act, one commentator argues:

Modem combat is very fast-paced: decisions are made quickly in
the heat and stress of a life-and-death struggle. Soldiers are highly
trained to use force in the furtherance of the mission. They are
trained to respond with force when facing an adversary because

165 See, e.g., Canestaro, supra note 60, at 142-43.

‘6 See generally Part IV.
’67 Furman, supra note 45, at 94-96.
168 Rogers, supra note 162, at 47. The use of the posse comitatus law to dismantle the

newly secured black enfranchisement was enormously successful-without the security
guarantees ensured by the presence of federal troops,

“[f]orce and threat of force had put the whites in power. Within 10 or
15 years after 1867 the premature enfranchisement of the Negro was
largely undone, and undone by veritable revolution.” Fraud in addition
to force was used, including “[g]errymandering, trickery in election
administration, [and] fraud in casting and counting ballots.”

Chin, supra note 160, at 1591-92 (quoting V.0. KEY, JR., SOUTHERN POLICS IN STATE AND
NATION 536, 540 (1995)); see also Geoffrey Klingspom, The Secret Posse, LEGAL AFFAIRS,
March/April 2005, at 23 (“[Tlhe law was enacted for the racist purpose of preventing federal
soldiers from helping black Americans by enforcing voting laws in the post-Civil War South.”).

’69 See, e.g., Vladeck, supra note 53, at 163.
“‘ Michael T. Cunningham, The Military’s Involvement in Law Enforcement: The Threat

is Not What You Think, 26 SEATTLE U. L. REV. 699, 715-16 (2003).

(Vol. 15:301

IN KATRINA’S WAKE

the adversary is likely to do the same. Being under fire changes
the landscape and changes the stakes…. Military personnel have
different approaches to tactical situations than what is required
in a law enforcement situation. The appropriate reaction in an ad-
versarial law enforcement situation is not necessarily the use of
deadly force; a more deliberative approach may be more appropri-
ate. Conversely, military personnel involved in a combat situation
need to quickly decide when deadly force should be used. Moving
military personnel between these two situations may cause the
soldier to misread or misunderstand a situation and use the wrong
kind of force.’

7 1

In addition, this position argues that the posse comitatus law should be strengthened
because “[s]oldiers are taught to violently and effectively destroy the enemy and
their training does not include sensitivity to constitutional limitations on search,
seizure, and the use of reasonable force.”‘

7 2

It cannot be disputed that it would be dangerous to send armed troops into a hostile
environment for which they have not been trained, but these problems can be over-
come. President Bush’s call to broaden federal authority in times of crisis, 173 through
Admiral Timothy Keating, head of the United States Northern Command, 174 does
not envision calling on untrained federal troops.I’7 Rather, it would prepare specially-
trained and equipped soldiers capable of performing a wide range of tasks in the event
of a catastrophic domestic emergency. 76 Under one concept, these so-called “special
response forces” could receive beneficial training with National Guard units for
domestic emergency situations, because the National Guard trains and prepares for
assuming law enforcement functions.” This training would also prepare active forces
to coordinate equipment and communication with their local and state counterparts,

7
1

which was a significant problem experienced by the early responders in the aftermath
of Hurricane Katrina. 79 Therefore, concerns over the lack of proper training’80 can be

171 Id.

172 Christopher H. Lytton, America’s Borders and Civil Liberties in a Post-September 11th

World, 12 J. TRANSNAT’L L. & POL’Y 197, 204 (2003).
’71 See Bush, Address to the Nation, supra note 34, at 3, 4.
114 Schmitt & Shanker, supra note 38.
171 Murray Light, Editorial, Northern Command Makes Sense, BuFF. NEWS, Oct. 23,2005,

at 13.
176 Id.
177 Schmitt & Shanker, supra note 38.
178 FEDERAL RESPONSE, supra note 113, at 95.
179 Geoff Fein, Military Looking at Migrating Some Capabilities to Civilian Side, 228 DEF.

DAILY (Access Intelligence, LLC, Rockville, Md.), Oct. 13, 2005, available at 2005 WLNR
17654408.

‘go See supra notes 171-73 and accompanying text.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

ameliorated, if and when there is recognition of the benefits using federal troops can
bring to stabilizing dangerous situations within the United States. Preparedness and
planning would reduce the dangers of casting the military in an unfamiliar role.
Instead, it would be a readily available force that could respond to the unique
challenges of domestic law enforcement when the-need arises.

Another potential benefit to a specially trained, prepared, and equipped federal
active-duty contingent would be its ability to respond to a wide variety of natural
disasters, whether it be hurricane, earthquake, flooding, tsunami, ‘ tornado, or some
other kind of catastrophic emergency. This is particularly true for situations in which
local and state authorities are ill-prepared and unable to handle the scope of the
disaster. In the wake of Hurricane Katrina, it is clear that local law enforcement
authorities are not always better trained to deal with the specific circumstances of
a natural disaster than a dedicated team of experienced federal troops. The experience
in New Orleans illustrates the fact that local and state law enforcement agencies 82

cannot be expected and prepared to handle a sudden, widespread emergency. There-
fore, a federal first-responder force would be beneficial in providing law enforce-
ment and rescue support to stabilize what could develop into a potentially life
threatening situation for thousands of American citizens.8 3

D. Active Military Participation in Domestic Law Enforcement Does Not

Necessarily Mean Permanent Domestic Deployment

Many recent arguments regarding the erosion of the Posse Comitatus Act center
on the increasing use of the active federal military in domestic counterterrorism-
a permanent and ongoing demonstration of military force within the United States. IM

‘s FEMA posits that tsunamis, while rare, do pose a direct threat to the United States:
The greatest risk to the United States is believed to be a tsunami that
would be generated by an earthquake along the Cascadia fault off the
coast of Washington, Oregon, and northern California. Similar to those
along the northern coast of Sumatra, a Cascadian earthquake would be
very large, would result in a tsunami, and would provide only a few
minutes of warning.

Tsunami Losses Mount, CLAIMS, Feb. 1, 2005, at 212, available at 2005 WLNR 22076025.
Since 1946, three tsunamis striking the United States coastline have resulted in fatalities. Id.
Although there is a reduced vulnerability to tsunamis on the East Coast of the United States,
FEMA maintains that there is a significant threat, which could result in significant property
damage and loss of life. Id. Half of the population of the United States lives in coastal zones.
Editorial, Fair Warning; U.S. Should Help Poorer Nations Protect Themselves From Tsunamis,
SARASOTA HERALD TRm., Jan. 18, 2005, at A16.

182 See supra Part I.
.83 This could potentially prevent a repeat of the scenario in New Orleans, where National

Guardsmen were unable to enter the city because of rampant lawlessness, and hospitals had
to close because of the fear of looting. See supra notes 17-22 and accompanying text.

4 See, e.g., Canestaro, supra note 60, at 134-42; see also Steven G. Brandl, Back to the

(Vol. 15:301

IN KATRINA’S WAKE

“The [Posse Comitatus Act] remains as much a symbol of our nation’s subordination
of military to civilian control, and to the distaste of military involvement in domestic
law enforcement, as it is a set of legal strictures.”‘8 5 Further, “[t]he new Constitution
mirrored the founders’ keen desire to prevent the rise of a standing military as a sort
of Praetorian Guard, responsible to none but itself, forever meddling in civilian politics
and agitating for military adventurism.”‘ There is a strong sentiment that any involve-
ment of the military in law enforcement activities will lead to “mission creep”‘ 7 and
install the military as an ongoing, permanent law enforcement apparatus operating
within the United States.1

8 8

The fear of giving the President, and by extension, the military, greater freedom
for involvement in domestic matters is analogous to the events in Vietnam following
the 1964 Gulf of Tonkin Resolution, which laid the foundation for eventual full-scale
war in Vietnam.'” A unanimous vote in the House of Representatives” and a nearly
unanimous vote in the Senate 9 ‘ authorized the President “to take all necessary steps,
including the use of armed force, to assist any member or protocol state of the Southeast
Asia Collective Defense Treaty requiring assistance in defense of its freedom.”‘ 9 By
the time the conflict concluded, the war was the longest in American history, at the

Future: The Implications of September 11, 2001 on Law Enforcement Practice and Policy,
1 OHIO ST. J. CRIM. L. 133, 146-47 (2003).

185 Banks, supra note 95, at 741.
“16 Jack H. McCall, Jr. & Brannon P. Denning, Mission Im-posse-ble: The Posse Comitatus

Act and the Use of the Military in Domestic Law Enforcement, 39 TENN. B.J., June 2003, at 27.
17 “Mission creep” can generally be defined as the changing of goals, objectives, and deploy-

ment duration in the middle of a military mission. See, e.g., Martin D. Carcieri, Operational
Need, Political Reality, and Liberal Democracy: Two SuggestedAmendments to Proposition
209-based Reforms, 9 SETONHALLCONST. L.J. 459,464 n.24 (1999); MarkT. Uyeda, Note,
Presidential Prerogative Under the Constitution to Deploy U.S. Military Forces in Low-
Intensity Conflict, 44 DuKE L.J. 777, 813 n.187 (1995). One such example of mission creep
is the 1969 expansion of the American aerial bombing campaign at the height of the Vietnam
War. Nicole Barrett, Note, Holding Individual Leaders Responsible for Violations of Customary
International Law: The U.S. Bombardment of Cambodia and Laos, 32 COLUM. HUM. RTs.
L. REV. 429,433 (2001). President Nixon ordered bombing campaigns to attack North Viet-
namese positions in Cambodia and Laos. Id. By the time those bombing operations ceased
in 1973, the United States had dropped more bombs on Laos than it had dropped during the
entirety of World War II. Id. at 434.
.88 McCall & Denning, supra note 186, at 32; see also Norman C. Bay, Executive Powerand

the War on Terror, 83 DENy. U. L. REV. 335, 371 (2005) (“The concern is that ‘mission creep’
will result in which the military becomes adjuncts of internal security agencies including law
enforcement, prosecutors, and domestic intelligence, that had been entirely civilian in nature.”).

i89 Jules Lobel & George Loewenstein, Emote Control: The Substitution of Symbolfor Sub-
stance in Foreign Policy and International Law, 80 CHI.-KENT L. REV. 1045, 1061 (2005).

190 Id.

191 Id.
192 Gulf of Tonkin Resolution, Pub. L. No. 88-408,78 Stat. 384 (1964) (repealed 1971).

20061

WILLIAM & MARY BILL OF RIGHTS JOURNAL

expense of nearly 58,000 American lives. 9 3 At the time, congressional lawmakers
did not fully appreciate the scope and duration of the power they were handing to
the President to have almost unfettered control over military action. 94 The Gulf of
Tonkin Resolution typified the dangers when Congress cedes too much power and
provides too little oversight over the presidential conduct of military action. 95

Certainly, a revision of the Posse Comitatus Act to give the President expanded
authority to employ the military in domestic law enforcement must contain counter-
balances to prevent a repeat of the mission creep experienced during the Vietnam Era.’96
The President cannot be given a blank check to deploy the military in perpetuity.
For instance, the President should not deploy federal troops to stabilize an area struck
by disaster and then allow them to remain there to fight drug trafficking long after
the immediate emergency has passed. There must be strict limits on the duration and
objectives of the deployment so control can be turned back to the local and state law
enforcement agencies as soon as possible.

The 1973 War Powers Act”9 can be used as a model for how a revised Posse
Comitatus Act and its exceptions can be structured to give the President adequate
authority while leveling some restrictions on the exercise of that expanded power.
In an attempt to reassert congressional authority over the constitutional war-making
power, 98 the War Powers Act imposes a notice requirement on the President when
military troops engage in combat activities abroad:

In the absence of a declaration of war, in any case in which United
States Armed Forces are introduced. . . the President shall submit
within 48 hours to the Speaker of the House of Representatives
and to the President pro tempore of the Senate a report, in writing,
setting forth-(A) the circumstances necessitating the introduc-
tion of United States Armed Forces; (B) the constitutional and
legislative authority under which such introduction took place;
and (C) the estimated scope and duration of the hostilities or
involvement. ’99

193 Lobel & Loewenstein, supra note 189, at 1061.
’94 Louis Fisher, War and Spending Prerogatives: Stages of Congressional Abdication,

19 ST. LOUIS U. PUB. L. REv. 7, 23-25 (2000).
195 Jonathan Simon, Parrhesiastic Accountability: Investigatory Commissions andExecutive

Power in an Age of Terror, 114 YALE L.J. 1419, 1426 (2005).
’96 See supra notes 189-95 and accompanying text.
197 War Powers Act of 1973, 50 U.S.C. §§ 1541-48 (2000). This Note does not address

the underlying constitutionality of the War Powers Act.
198 Comment, Congressional Control ofPresidential War-Making Underthe War Powers

Act: The Status of a Legislative Veto After Chadha, 132 U. PA. L. REv. 1217, 1218 (1984).
199 50 U.S.C. § 1543(a) (2000).

[Vol. 15:301

IN KATRINA’S WAKE

In addition, the Act sets a durational limit on presidential discretion over military
engagement by stating:

Within sixty calendar days …. the President shall terminate any
use of United States Armed Forces… unless the Congress (1) has
declared war or has enacted a specific authorization for such use of
United States Armed Forces, (2) has extended by law such sixty-
day period, or (3) is physically unable to meet as a result of an
armed attack upon the United States. Such sixty-day period shall
be extended for not more than an additional thirty days if the Presi-
dent determines and certifies to the Congress in writing that un-
avoidable military necessity respecting the safety of United States
Armed Forces requires the continued use of such armed forces in
the course of bringing about a prompt removal of such forces.”

Whether this statute has been successful in actually limiting the President from uni-
laterally using military force without the consent of Congress is unclear.2°’ The concept
of congressional time limits and notice requirements on presidential authorization
of domestic military deployment can be applied to the posse comitatus statutes.

To ameliorate concerns over the potential for mission creep, a statutory construc-
tion modeled on the War Powers Act could set time limits; perhaps ten days. A ten-
day window would give mobilized federal troops enough time to secure the affected
areas to allow local and state authorities to regroup and assess the situation. The win-
dow would also give rescuers protection, assistance, and security in potentially dan-
gerous situations. A ten-day limit would not, however, give the military an opportunity
to become entrenched in any one place without express congressional approval for ex-
tended deployment, should that become necessary. Before or at the end of the ten-
day window, federal troops acting in their law enforcement capacity would either with-
draw from the region and turn all law enforcement duties back over to local and state
authorities, or in extreme circumstances have their deployment extended through con-
sultation between the President and Congress. President Bush addressed this very point:

I do want [Congress] to think about a circumstance that requires
a lot of planning and a lot of assets immediately on the scene in

200 50 U.S.C. § 1544(b) (2000).
20 There has been some reluctance on the part of Congress to demand that the President

comply with the War Powers Act. Edward Keynes, The War Powers Resolution: A Bad Idea
Whose Time Has Come and Gone, 23 U. TOL. L. REv. 343, 349 (1992). At least three in-
stances in which the President perfunctorily met the reporting requirements to Congress were
President Ford’s action to recover the S.S. Mayaguez in May 1975, President Carter’s decision
to send troops to rescue the American hostages in Tehran, Iran in April 1980, and President
Reagan’s invasion of Grenada in October 1083. Id. at 349 n.34, 350-51.

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

order to stabilize. And so what I was speculating about was a
scenario which would require federal assets to stabilize the situa-
tion, primarily DOD assets-DOD assets, and then hand back over
to Department of Homeland Security, for example. And I think it’s
very important for us as we look at the lessons of Katrina to think
about other scenarios that might require a well-planned signifi-
cant federal response right off the bat to provide stability.2w2

A short-term durational requirement would provide serious safeguards preventing
the federal usurpation of law enforcement duties that are rightfully in the hands of
local authorities.

Similarly, a notice requirement modeled on 50 U.S.C. § 1543(a) would require the
President to keep Congress and the proper state authorities (such as the governor and
state legislature) informed of the decision to take action, the duration expectations
of the deployment, and the reasons necessitating the use of federal troops. Congress
could then fill its proper consultative role while preserving its ultimate authority to
limit either the scope or the duration of the use of federal troops. As a result, the
balance of power between the President and Congress would be protected and
clearly delineated. The threat of mission creep would thus be significantly reduced.

E. The President Possesses Broad Discretion in Matters Authorized by Congress

When Congress expressly grants authority to the President, the President enjoys
broad discretion to use that authority to the fullest extent.’ The Supreme Court high-
lighted this when it upheld President Carter’s freezing of Iranian assets in response
to the seizure and hostage taking of American embassy workers in Tehran, Iran on
November 4, 1979:2o

When the President acts pursuant to an express or implied authori-
zation from Congress, he exercises not only his powers but also
those delegated by Congress. In such a case the executive action
“would be supported by the strongest of presumptions and the
widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.”205

202 Bush, Remarks, supra note 35, at 4.
203 See Dalton v. Specter, 511 U.S. 462,476 (1994) (“How the President chooses to exercise

the discretion Congress has granted him is not a matter for our review.”); see also Monarch Ins.
Co. of Ohio v. District of Columbia, 353 F. Supp. 1249, 1254-55 (D. D.C. 1973).

204 Dames & Moore v. Regan, 453 U.S. 654, 654, 662 (1981).
203 Id. at 668 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,637 (1952)

(Jackson, J., concurring)).

[Vol. 15:301

IN KATRINA’S WAKE

The Supreme Court affirmed this principle a decade later by stating, “Where a
statute … commits decisionmaking to the discretion of the President, judicial
review of the President’s decision is not available.”2 6

The Supreme Court recognized the need for broad presidential discretion in
1862 when it stated, “Whether the President in fulfilling his duties, as Commander-
in-chief, in suppressing an insurrection, has met with such armed hostile resistance,
and a civil war of such alarming proportions as will compel him to accord to them the
character of belligerents, is a question to be decided by him … “207 The President
is perfectly suited to this role, because “the President is unique in the federal system.
The President is only one of two elected officials with a national constituency and
represents the ‘single head in whose choice the whole Nation has a part, making him
the focus of public hopes and expectations.’

20 8

Americans expect the President to use all the tools available to him to provide
leadership and respond to national crises. 2 9 Former White House Press Secretary
Scott McClellan acknowledged this view, stating, “‘He is the president, and… it is
his responsibility when it comes to the federal government’s role in these hurri-
canes.”‘ 210 Politically, the President is accountable to all Americans when he fails,
regardless of whether he had all the tools necessary to accomplish the task at
hand.2 1’ For this reason Congress must not set up the President, and the federal
government as a whole, to fail the next time a major disaster strikes. Congress must
recognize and respond to the lessons learned from Hurricane Katrina, and streamline
the President’s statutory authority to act quickly when the time comes. Unquestion-
ably, in times following such catastrophic disasters, the President needs all available
tools at his disposal in order to meet the expectations of all Americans to provide
leadership when it matters most.212

206 Dalton, 511 U.S. at 477.
207 The Prize Cases, 67 U.S. 635, 670 (1862).
208 Jonathan Turley, “From Pillar to Post”: The Prosecution of American Presidents,

37 AM. CRiM. L. REV. 1049, 1077 (2000) (quoting Youngstown Sheet & Tube Co., 343 U.S.
at 653 (Jackson, J., concurring)).

209 Leo P. Martinez, Tax Legislation and Democratic Discourse: The Rhetoric ofRevenue
and Politics, 4 NEV. L.J. 510, 511 (2004).

210 Richard W. Stevenson, After Katrina’s Lesson, Bush Is Heading to Texas, N.Y. TIMEs,
Sept. 23, 2005, at Al.

211 See Nathaniel Fick, Editorial, An Honest Victory, N.Y. TIMES, Sept. 20, 2005, at A29
(“President Bush’s… accepting responsibility for the federal government’s slow response
to Hurricane Katrina was commendable, if overdue. Though it has been derided by some as
political expediency, the president’s acknowledgment was a necessary first step ….”).

212 Robert V. Percival, Presidential Management ofthe Administrative State: The Not-So-
Unitary Executive, 51 DuKE L.J. 963, 963 (2001) (“In times of war or other national emer-
gency, citizens expect strong leadership from the president in his role as commander-in-chief
of the armed forces.”).

2006]

WILLIAM & MARY BILL OF RIGHTS JOURNAL

F. Use of the Military in Domestic Affairs Would Serve to Protect Civilians’

Constitutional Rights, Not to Abrogate Them

One of the most frequently noted arguments against military involvement in
domestic law enforcement matters is the erosion of American civil liberties at the
hands of the military.2″ 3 Although these are legitimate concerns, a look back at the
history of military intervention in domestic matters supports the counter-argument
that such intervention may be needed to protect civil liberties.21 4 The passage of the
Posse Comitatus Act was partly a result of the military’s presence to enforce civil
rights under the then newly passed Thirteenth, Fourteenth, and Fifteenth Amend-
ments.2″‘ The Posse Comitatus Act thus prevented the military from enforcing the
Reconstruction laws that were so anathema to the ex-Confederate states. 2 6 In a similar
vein, President Eisenhower responded with military force when white protesters,
combined with the state government’s refusal to intervene, threatened to prevent the
enforcement of a court order ordering racial integration of the Little Rock school
system.217 These two examples support the assertion that military intervention can
be used to protect civil liberties, and that it is sometimes necessary to do so. The

President must become involved when the lives and property of citizens are threatened

and state and local authorities are unwilling or unable to do so.
To alleviate the concerns over the potential abridgement of civil liberties, Congress

can install safeguards such as limiting the duration of domestic military engagement,
requiring notification, and providing specialized training for a quick-response military

force designed to deal with the constitutional protections afforded citizens.2 8

Obviously, no situation can be handled perfectly, particularly when disasters strike
and lawlessness prevails. Yet a limited duration force with specialized training may

213 See, e.g., Duncan v. Kahanamoku, 327 U.S. 304, 331 (1946) (Murphy, J., concurring)

(“Civil liberties and military expediency are often irreconcilable.”); John P. Jurden, Spit and
Polish: A Critique ofMilitary Off-Duty PersonalAppearance Standards, 184 MIL L. REV. 1, 16
(2005) (“The constitutional framers preferred a civilian militia to a standing army because
of the restrictions on civil liberties that military culture threatens.”); Kohn, supra note 135,
at 182 (“[I]t is likely that the military will be used internally, perhaps in ways that threaten
civil liberties. . . .”); Geoffrey M. Wyatt, The ThirdAmendment in the Twenty-First Century:
Military Recruiting on Private Campuses, 40 NEw ENG. L. REv. 113, 120-21 (2005) (“And,
indeed, other civil liberties have proven equally flimsy when the rights of civilians have been
infringed in the name of military necessity …. “).

214 See supra notes 83-87, 159-64 and accompanying text; see also FEDERAL RESPONSE,
supra note 113, at 54 (the military “demonstrated that… it was one of the only Federal
departments that possessed real operational capabilities to translate Presidential decisions
into prompt, effective action on the ground”).

215 Furman, supra note 45, at 95-96.
216 Chin, supra note 160, at 1590.
217 See supra notes 83-87 and accompanying text.
218 See supra notes 174-84, 203 and accompanying text.

[Vol. 15:301

IN KATRINA’S WAKE

very well be more effective in safely handling and defusing a combustible domestic
disturbance situation, such as in New Orleans after Hurricane Katrina. An under-
manned, underequipped, and overwhelmed police force could perhaps be more
dangerous than helpful because of the panic and desperation to restore order at any
cost. In that event, the citizens who would suffer most are those who are in need of
emergency services and rescue assistance, and local law enforcement authorities
would have to choose between restoring order and helping afflicted residents. That
is a choice that should not have to be made.

CONCLUSION

The tragic events in New Orleans in the aftermath of Hurricane Katrina made
painfully clear the state of the nation’s readiness to adequately respond to a cata-
strophic natural disaster. In order to prevent local, state, and federal authorities from
grappling for authority to take control of an already chaotic situation, a series of
changes to the Posse Comitatus Act should be made in conjunction with the forma-
tion of a dedicated active duty unit trained to respond to such events. These advances
can significantly increase the effectiveness of a future disaster response. Accord-
ingly, Congress must give the President authority to command all of the resources
and expertise of the American active duty military, by furnishing the President greater
leeway in asserting control over domestic law enforcement. In doing this, appropriate
safeguards traced from the lines of current presidential war-making powers in foreign
arenas can be applied to the domestic front. The pitfalls of over-militarization within
the United States can be neutralized by allowing the President to exercise this expanded
power under only limited circumstances.

First, to structure the President’s power most effectively, Congress should amend
10 U.S.C. § 331 to remove the requirement forcing the President to wait for a request
from a state governor or legislature for federal military assistance in a disaster
situation. 21 9 This avoids unnecessary reliance on state officials who may or may not
be fully aware or capable of making a formal request for federal military assistance
in an extreme emergency. 220 Further, it prevents state officials from withholding
necessary requests based on mere political considerations. 22′ The President is best
positioned to serve as a centralized decision-maker in his capacity as commander-in-
chief of the military in emergency situations, 222 and the American people expect the
President to marshal the federal government and to coordinate an effective response
when disaster strikes.223

219 See supra note 50 and accompanying text.
220 See supra notes 23-26 and accompanying text.
221 See supra notes 27-32 and accompanying text.
222 See supra notes 103-25 and accompanying text.
223 See supra notes 210-13 and accompanying text.

20061

WILLIAM & MARY BILL OF RIGHTS JOURNAL

Second, appropriate checks and balances can be placed on presidential authority
by restricting any federal domestic military deployment to short durations, such as
ten days, which would be ample time for military forces to accomplish their mission
of providing stability and control to the affected areas.224 Coupled with a provision
requiring the President to notify and inform Congress and state officials of the
mission’s goals and expected duration, this achieves the appropriate constitutional
balance between Congress and the President to ensure the exercise of federal power
does not overstep its bounds.2 5

Third, to ensure that the military response is effective and within the bounds of
citizens’ constitutional rights, a special unit of active-duty troops should be created,
maximizing their training in law enforcement roles and familiarizing them with the
proper rules of engagement in domestic law enforcement settings. 22 This can be
created as a safer and more effective alternative to local and state law enforcement
agencies, which cannot be relied on to meet all of the challenges posed by a catastrophic
disaster.227 These three concepts will streamline the federal response in a major crisis,
and undoubtedly save life, limb, and property.

Finally, these recommendations are made with the knowledge that federal military
forces have historically been removed from domestic law enforcement affairs in
most cases, but also with the recognition that in the course of this nation’s history,
there have been occasions in which their active participation has been vital to
keeping order.22 The recommendations are not as radical as they may seem at first
glance; the federal military has historically had an important role since the drafting
of the Constitution.229 Yet, circumstances have changed since 1878 and we must
learn from the recent events experienced during Hurricane Katrina. Catastrophic
disaster will eventually strike our nation again, and these proposed changes will go
far in ensuring that the federal government can take swift action when it does.

224 See supra note 203 and accompanying text.
225 See supra note 203 and accompanying text.
226 See supra notes 174-84 and accompanying text.
227 See supra notes 13-22 and accompanying text.
228 See supra notes 78-94, 134-70 and accompanying text.
229 See supra notes 134-48 and accompanying text.

[Vol. 15:301

William & Mary Bill of Rights Journal
In Katrina’s Wake: Rethinking the Military’s Role in Domestic Emergencies
Scott R. Tkacz
Repository Citation
• tmp.1284398839 .FKwet