After Hurricane Katrina, former President George W. Bush was poised to shift responsibility for federal disaster response to the Pentagon until a senior defense official, harboring fears that date back to the country’s founding, warned that the move might violate the Constitution and federal statute.
That official, former Assistant Secretary of Defense for Homeland Defense Paul F. McHale, Jr., addressed the American Bar Association’s Fourth Annual Homeland Security Law Institute conference Thursday in Washington, D.C.
McHale, an attorney, retired Marine Corps officer, and former Congressman from Pennsylvania, recalled how well before 9-11, he told a class of law students about Alexander Hamilton’s warning that a public grateful to a victorious military faces the risk of ceding liberties to it.
McHale thought the warning was no longer relevant, until after Katrina, when the military was lauded for its historic effort to rescue victims stranded by Katrina’s floodwaters, and Bush considered the transfer of authority from the Department of Homeland Security (DHS) to the Pentagon. The change, McHale said, could violate the law authorizing DHS’s responsibilities, and thus the Constitution.
McHale shared his concerns with then-Secretary of Defense Donald Rumsfeld, who later instructed him at a meeting to share them directly with the president. Bush told McHale he had not been advised of the legal conflict, McHale said.
Rumsfeld resisted pressure to seek invocation of the Insurrection Act after Katrina, McHale said. The 1807 law allows deployment of federal troops within the United States to quell unrest and was last invoked during the Civil Rights Movement. After the 1992 Rodney King verdict, California Gov. Pete Wilson requested its invocation but was denied.
McHale advised Rumsfeld against setting a precedent of circumventing the authority of then- Louisiana Gov. Kathleen Blanco without her request. He further advised Rumsfeld that federal troops were not needed to supplement National Guard troops in New Orleans.
“It may be a long time before Don Rumsfeld receives an annual award from the ACLU,” McHale said, to laughter. “But he exercised sound judgment, under great pressure from other people who were senior in the administration.”
Civil liberties groups—like the American Civil Liberties Union—sounded alarms late last year after the Department of Defense announced that federal units would be assigned to a 12-month “dwell-time” tours at home, essentially on call for response to possible chemical, biological, radiological, and nuclear incidents. The practice, they say, could violate the Posse Comitatus Act, which forbids use of federal troops in domestic law enforcement.
But McHale argued that absent activity that violates that law, the U.S. military and its unparalleled logistical resources should always be “on tap, not on top” for civilian emergency managers, as they were during the humanitarian response to Hurricane Katrina.