- The Washington Times - Monday, September 12, 2005

In the wake of the Katrina catastrophe, considerable attention has focused on the potential and actual roles of active-duty military forces. Another major issue involved deliberations by the White House over the question of who should ultimately control the National Guard forces, which were under the jurisdiction of the governors, if active-duty military forces were introduced.

Beyond the overwhelming chaos of the moment, the issues are quite murky in their own right, in no small part because the modern circumstances under which such actions have been undertaken are so rare. Further complicating the issue was the need to re-establish law and order. Add in complex political and social dimensions and intense partisanship and the issue became still more complex.

Despite all these complicating factors, one reality must be emphasized: The Army, Navy, Air Force and the Marine Corps are not designated as “first responders.” As the Northern Command appropriately describes its role, it is the “heavy lifter of last resort.” Its assistance is “always in support of a lead federal agency,” such as the Federal Emergency Management Agency (FEMA).

With few exceptions, such as counter-drug operations, the Posse Comitatus Act, which does not apply to the Coast Guard in peacetime or the National Guard, has been interpreted to prohibit active-duty military personnel from participating in law enforcement activities. As chaos and looting enveloped New Orleans, any reasonable assessment would have concluded that active-duty military forces could not have been dispatched without facing immense law-and-order challenges.

In order for active-duty combat forces to engage in law enforcement activities, it would have been necessary for President Bush to bypass the posse comitatus restrictions by invoking the Insurrection Act. In addition to dispatching active-duty forces, the president could have federalized the National Guard troops, according to the Pentagon, irrespective of a governor’s objections.

Instead, the decision was made to rely on National Guard troops from other states, whose police-training was far more extensive than that of, say, the 82nd Airborne Division. As it happened, nearly 5,000 specially trained Guard law-enforcement troops entered New Orleans over three days.

The president has greater leeway in using the military for relief operations. He need not invoke the Insurrection Act to do so, and there are fewer considerations regarding the views of the governor.

Presidents understandably are reluctant to overrule governors. It has been nearly a half-century since a president defied a governor and seized control of the state’s National Guard. In 1957, to enforce a federal-court order regarding school integration, President Eisenhower invoked the Insurrection Act and placed the Arkansas National Guard under federal control; he also dispatched regular Army troops.

For all the Monday-morning quarterbacking today, imagine the reflexive Democratic outrage following a Republican president’s seizing control of the National Guard forces from a woman Democratic governor for law enforcement and relief operations, notwithstanding that governor’s ineffectiveness, which continues to manifest itself as more of the record becomes known.

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