Sunday, September 18, 2005

Katrina - National Guard Assitance

As the events of Hurricane Katrina unfolded I noticed several things that seemed unusual to me. First is that National Guard troops seemed to be leaving their home states with out being federalized. This was first that National Guard from several states were staging in Tennessee to support operations in Alabama, Mississippi, and Louisiana. After Katrina made landfall the troops going to support were National Guard units from across the country. There was no news story of the National Guard being federalized. When the National Guard went into New Orleans it was under the command of the Chief of the National Guard Bureau, which one would normally assume is not an operational command position. My expectation was that the state National Guard would be federalized and reinforced with large numbers of Active Duty Federal troops. The Federal troops were mostly Coast Guard and Navy that came to the coast and units that were stationed in the area.

The National Guard is both a Militia of the State under the Constitution’s Milita clauses, and a Reserve of the Army under the power of Congress to raise an Army. This means that the National Guard can be called to state active duty as a militia of the state by the governor, called to federal active duty as the militia of the United States with the consent of the governor or ordered to active duty by the President as a reserve of the Army. If the National Guard was to leave it’s home state in an active status I thought it would have to be federalized. (Note: I discuss the history of the militia from a different angle here but the pertinent background is there.)

Thanks to Google I did a little research.

In the 1990’s the states and Congress agreed to the the Emergency Management Assistance Compact EMAC to provide a vehicle for states to assist each other in an emergency. (Pre-Katrina overview.) This compact was made on the iniative of several state governors under the authority of Section 10 Article I on the US Constitution, since compacts are passed as laws of the states that agree to them and by Congress they have the force of law at both state and federal levels. The law of the states that agree to the compact is that the governor will request National Guard support in an emergency from other states that are members of the compact, which by their own law must provide it. The troops remain on state active duty. The requesting state is responsible for funding (almost certain to be reimbursed by the federal government.) The loaned National Guard units have the same status as the requesting states National Guard, no Posse Comitatus Act and no federal supremacy doctrine. The largest previous use of National Guard under the compact was 800 Guardsman, mostly specialized units during last year’s hurricanes in Florida.

The Compact covers more than the National Guard. It can authorize all kinds of non-military assistance. This is important because what is often needed is not the military but professionals in the specialized fields of local government. News reports tell of support in police, fire, public health, medical areas and I'm sure many others. FEMA and other Federal agencies apparently have their disaster assistance programs coordinated with EMAC Compact.

This compact has been governing emergency assistance for ten years, and seems to have worked well for emergencies that required much less support. The thing that puts the Compact into operation is the request from the governor of the effected state. Mississippi and Alabma requested assistance 24 hours before the Katrina arrived. It is not clear from the news reports I have read when the Louisiana request was made, some reports suggest up to 48 hours after the levee broke. The news reports show that once the assistance was on the ground it worked well. There were a some lesser problems with implementation due to the size of the call up and key people at all levels not understanding their roles under EMAC. It appears there is a need for some better planning for large emergencies. There also needs to be a way to require key officials to be briefed and understand their roles in an emergency before it happens.

I think this is a good approach to emergency relief. It is a means to provide assistance to a state, which can be tailored to need, and without the complications of dual federal and state jurisdiction. It is completely in keeping with the Federal nature of the Republic, assistance can be provided with out stretching the Constitution. It should be improved not scrapped.

For more information do Google searches on EMAC National Guard, EMAC FEMA, EMAC Katrina, or EMAC with whatever other term you are interested in. eMac by itself will tell you all about Apple Computers.

NOTE: The Posse Comitatus Act governs and restricts the use of federal troops in law enforcement roles. The exception to the Posse Comitatus Act I and II that allows the President to put federal troops in a law enforcement role also requires a request from the state governor. Many other federal emergency assistance programs also need a request for the state governor to be implemented.

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