In Katrina's Wake: Rethinking the Military's Role in Domestic Emergencies
Tkacz, Scott R., The William and Mary Bill of Rights Journal
The massive devastation wrought by Hurricane Katrina in Louisiana and Mississippi in August 2005(1) 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 to strike the United States coastline in 2004 and 20053 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 extension, the military, authority to engage in domestic law enforcement when circumstances dictate rapid action to prevent widespread loss of life and property, such as in the case of Hurricane Katrina. Part I examines the failure ofthe 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 domestic theaters. Part III 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 modern 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.
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.8 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.10 The flooding stranded 20,000 New Orleans residents at the Louisiana Superdome, which was intended only to be a "shelter of last resort."11 Thousands more were stranded on building rooftops for over two days without food or water, trying desperately to stay out of the flood- water.12
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 communications 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 Richardson's offer of assistance.15 More than 250 members ofthe New Orleans Police Department abandoned their duties in the days following the flooding, and reports indicated that some officers even looted homes and businesses.16
In the absence of law enforcement in the city, many stranded residents looted local stores, carrying away electronics, clothing, shoes, and firearms.17 Property owners defended themselves on their own using shotguns and small firearms.18 By August 3 1 , 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.19 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. …