September 4, 2005

BRENDAN LOY is extremely unhappy with FEMA Director Michael Brown.

It’s beginning to look as if this column may turn out to have been prescient all along, notwithstanding what I said later.

UPDATE: On the other hand, a reader sends these comments:

Buried at the end of the WaPo’s critical article on FEMA’s decline is this crucial paragraph:

Other federal and state officials pointed to Louisiana’s failure to measure up to national disaster response standards, noting that the federal plan advises state and local emergency managers not to expect federal aid for 72 to 96 hours, and base their own preparedness efforts on the need to be self-sufficient for at least that period. “Fundamentally the first breakdown occurred at the local level,” said one state official who works with FEMA. ‘Did the city have the situational awareness of what was going on within its borders? The answer was no.”

Measuring from the passage of the storm from the target area — say 1500 hours on Monday, THE PLAN would therefore expect federal aid at the earliest at midday Thursday.

Does this excuse any bureaucratic errors that we will find to have been made? No. But it should put the federal response in perspective.

Oh, and all the blithe comments on how quickly we were able to get troops to Iraq and the Navy to Sumatra shows a short-term memory loss. The buildup for Iraq took place over a period of months, and the Navy’s trip from Asian bases to the Indian Ocean, unimpeded by crumbled infrastructure, took a number of days.

As I’ve noted before, it’s not like calling Domino’s. I think that all the efforts at political point-scoring now are misplaced. There’s plenty of blame to go around, and plenty of opportunities to figure out how to do better in the future. Those are likely to get lost in the fog of name-calling.

ANOTHER UPDATE: This story from the Washington Post suggests problems with coordination between state and federal authorities:

Louisiana did not reach out to a multi-state mutual aid compact for assistance until Wednesday, three state and federal officials said. As of Saturday, Blanco still had not declared a state of emergency, the senior Bush official said. . . .

Blanco made two moves Saturday that protected her independence from the federal government: She created a philanthropic fund for the state’s victims and hired James Lee Witt, Federal Emergency Management Agency director in the Clinton administration, to advise her on the relief effort.

I’m all for federalism, but this doesn’t seem like the time for that sort of thing. I’m not clear on what legal authority the President has to simply take charge over a governor’s objections; I’m not aware of that problem coming up before. Presumably Congress could — subject to some fairly limited Constitutional constraints — address this via legislation if necessary, though it’s probably too late for that to do much good now.

Meanwhile, Eric Muller thinks it was a mistake to name prosecutor Mike Chertoff as head of Homeland Security, even though he knows and likes Chertoff: “You can’t cross-examine a hurricane.”

We lawyers have many virtues, but management skills aren’t high on the list. For that you want an MBA, usually. I’ve long been deeply unimpressed with the whole Homeland Security approach, but again, it’s too early to say just how much difference it’s made here.

MORE: A reader emails:

If I remember, wasn’t there a non-lawyer, Bernie Somebody, who was actually first choice? Didn’t all of “Official Washington” breathe a sigh of relief when he withdrew his name?

Indeed. I believe he actually had some relevant experience.

MORE STILL: Several readers note that the Post story seems to be wrong — at least here is a proclamation of a state of emergency by Gov. Blanco from August 26. I suspect, however, that what the Post article refers to is a declaration that would place the National Guard under federal control. Here’s a piece from the L.A. Times on that:

Although active-duty U.S. troops are being used in the relief effort, constitutional limits prevent them from performing law enforcement duties.

Pentagon officials stressed that only National Guard troops, which are under the control of governors when operating within the United States, may be given law enforcement duties.

Only a presidential decree would allow active-duty federal military troops to be brought into a law enforcement mission, and officials said they did not envision that would be necessary in this case.

Or am I missing something here? Meanwhile, Mark Levin emails:

In the end, the question is why weren’t more people evacuated from New Orleans before the storm hit. There’s simply no debate that this is the responsibility of local and state officials. And we keep hearing that everyone knew that this could be a massive disaster. You’d think local and state officials would know this best, as they live there. As for federalism, no this is not the time to make the case. But I have to wonder – if the federal government is to be the first-responder, then the local and state governments will have to surrender considerable control and resources to the federal government, including the military. And in the end, I wonder how much difference it would actually make, given all the finger-pointing at federal competence.

If there’s any upside to this disaster, it’s that local authorities are likely to be quicker to order evacuations in the future, and people are likely to be quicker to listen. Meanwhile, reader Ralph Tacoma emails regarding my federalism point:

I’d suggest that you take a deep breath and think that through. There are VERY serious reasons why for the long term good of nation the federal government cannot just preempt state and local governments whenever it feels like it. IF we start down the slippery slope of allowing such federal preemption, we’ll soon wind up with no limits to the power of the federal government. There are strong constitutional reasons why that should not happen. IF we once give the federal government the right to merely assume powers, we’ve shattered the very basis of our government.

Good point — I just meant that I thought it odd to see Gov. Blanco working so hard to “protect her independence from the federal government” at a time when, in fact, Louisiana is extremely dependent on outside aid. I wouldn’t support legislation that would turn the National Guard into a force that’s always under the control of the President.

STILL MORE: This sounds right, though I haven’t researched it independently:

Here’s the quick legal skinny: There’s a difference between money and boots on the ground; the governor (surprise!) immediately asked for the former.

Under the Posse Comitatus Act (18 U.S.C. § 1385), the president can’t use armed forces (including national guard in federal service) for law enforcement absent congressional directive. (Some courts, however, have held that this does not apply to the Navy (U.S. v. Yunis, 924 F.2d 1086 (C.A.D.C. 1991)) and the Coast Guard (U.S. v. Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982)), both of which seem to be more useful here, since it looks like that nobody without boats can provide any serious logistical or enforcement functions in NO.)

But upon request of the governor, or perhaps on his own initiative, the president can use the federal military by invoking the Insurrection Act (10 U.S.C. §§ 331-34). What’s happening in NO might be called “insurrection” or “rebellion,” but that’s a politically-dangerous stretch.

Much more here. Though I’ve taught National Security Law in the past, I’ve focused on espionage, surveillance and law enforcement issues, not so much on this sort of thing, suggesting that my syllabus has the same blind spot. . . .

YET MORE: Mickey Kaus has further thoughts on this, though I should note that federalism hasn’t caused problems like this in the past, as far as I know.

CORRECTION UPDATE: The Post has now posted a correction referring to the Aug. 26 declaration of emergency, so I guess they were just wrong. As for the rest of the story, about “independence” — no correction, so make of that what you will.

See also this post. And I’m not sure what to make of this: DHS was preparing for a terror attack subsequent to a hurricane?

And James Lee Witt was apparently involved in Louisiana’s disaster planning already, for over a year, for whatever that’s worth.

And Michelle Malkin wants Brown fired, too.

And here’s more on the problem with the National Guard:

At this point, questions about why the troops weren’t there quicker seem to be an exercise in bureaucratic finger-pointing. Pentagon officials last week said questions should be directed to the state. But on the ground, local officials like New Orleans Mayor Ray Nagin called on Washington for more troops.

The reason, Young said: State governors outside the hurricane zone wouldn’t mobilize Guard troops in advance because they weren’t sure they would be reimbursed by Washington.

Sheesh. The same article, which looks like a pretty good overview, notes the breakdown in communications systems, and also observes that planning was inadequate:

A FEMA spokesman said at the time that the exercise tested response to a Category 3 hurricane – rather than a higher-level Category 4 storm like Katrina – because they didn’t want planners to face a hopeless scenario. He predicted that even the lower-level storm would cause lots of casualties. And a top Louisiana emergency official told The Associated Press that part of the plan was for people to be “on their own for several days in a situation like this.”

Well, it worked out that way. And here’s a Defense Department briefing on what happened on the law-enforcement side:

GEN. BLUM: It was not foreseen. When they put the original EMAC together it was really for disaster response. Law enforcement was not envisioned. So it has to be handled as a separate process. The governors may get together and modify their EMAC in the future so that it is all-inclusive, but this fills that gap and it makes the activity of the National Guard in this regard totally legally sufficient and supportable.

Q: Does that explain why it took several days to get to this point?

GEN. BLUM: No, there was no delay. The fortunate thing is with modern technology they faxed the agreement back and forth, the two governors signed it. It was a matter of moments. That was not the delay.

The delay was in, if you want to call it a delay. I really don’t call it a delay, I’ll be honest about that. When we first went in there law enforcement was not the highest priority, saving lives was. You have to remember how this thing started. Before the hurricane hit there were 5,000 National Guardsmen in Mississippi and 5,000 National Guardsmen — excuse me. Let me correct the record. There were 2,500 National Guardsmen in Mississippi and almost 4,000 National Guardsmen in Louisiana that were sheltered and taken out of the affected area so as soon as the storm passed they could immediately go into the area and start their search and lifesaving work, and stand up their command and control apparatus, and start standing up the vital functions that would be required such as providing food, water, shelter and security for the people of the town. So it was phased in. There was no delay.

The real issue, particularly in New Orleans, is that no one anticipated the disintegration or the erosion of the civilian police force in New Orleans. Once that assessment was made, that the normal 1500 man police force in New Orleans was substantially degraded, which contributed obviously to less police presence and less police capability, then the requirement became obvious and that’s when we started flowing military police into the theater.

Two days ago we flowed 1400 military policemen in. Yesterday, 1400 more. Today 1400 more. Today there are 7,000 citizen soldiers — Army National Guard, badge-carrying military policemen and other soldiers trained in support to civil law enforcement — that are on the streets, available to the mayor, provided by the governor to the mayor to assist the New Orleans police department. . . .

Q: General, you mentioned a disintegration of the New Orleans Police Department. Do you know how many officers are still on duty?

GEN. BLUM: I would rather not say. I think you’d be better to refer that question to the mayor of New Orleans. I have my own estimate. I would say they are significantly degraded and they have less than one-third of their original capability.

Q: So is it fair to say it is the National Guard that’s keeping law and order in New Orleans?

GEN. BLUM: No. As long as there’s one uniformed police officer in the city of New Orleans, we will send as many National Guard soldiers to augment, support and work in support of that lone law enforcement officer as necessary. So if hypothetically there’s only one left, who’s in charge? It’s still that lone police officer supported by the National Guard in their role as military support to law enforcement.

We are not in the lead. We have no need nor intention of imposing martial law or having the military police the United States of America.

Q: What happened to the other police, general?

GEN. BLUM: Again, that can be best addressed, but what was told to me by the Mayor day before yesterday is many of them lost their homes, many of them lost ability to get to the precinct, many of them who did show up found what they were dealing with so overwhelming and dangerous or threatening to them as an individual that they made the personal decision to not risk their life until the situation made more sense to them. That was an individual decision, it was not the police chief’s decision or the mayor’s decision. I think that the mayor and police chief are working right now to reconstitute the New Orleans Police Department, but that question would much better be addressed to them for detail.

So nobody anticipated the meltdown of the NOPD (brought about in part, I think, by the collapse of the NOPD’s radio system, which wasn’t designed to be survivable, and in part by the fact that the NOPD has never been a topflight force). And read the whole DoD briefing, which has a lot of other interesting and useful information.

YET MORE: Here’s more on the late evacuation order in New Orleans:

President Bush declared a state of emergency in Louisiana, authorizing federal emergency management officials to release federal aid and coordinate disaster relief efforts.

By mid-afternoon, officials in Plaquemines, St. Bernard, St. Charles, Lafourche, Terrebonne and Jefferson parishes had called for voluntary or mandatory evacuations.

New Orleans Mayor Ray Nagin followed at 5 p.m., issuing a voluntary evacuation.

Nagin said late Saturday that he’s having his legal staff look into whether he can order a mandatory evacuation of the city, a step he’s been hesitant to do because of potential liability on the part of the city for closing hotels and other businesses.

Ack. I don’t know whether there was an issue there — but surely nobody had to wait until Saturday night before the hurricane hit to figure it out.

LATER: Now it’s Nagin against Blanco!

And there’s a fire Brown now blog.

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