Hurricane Katrina: DOD Disaster Response

Congressional research reportJan 24, 2006

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Hurricane Katrina: DOD Disaster Response

/name redacted/

/name redacted/

Specialist in U.S. Defense Policy and Budget

/name redacted/

Specialist in Military Manpower Policy

January 24, 2006

Congressional Research Service

7-....

www.crs.gov

RL33095

CRS Report for Congress

Prepared for Members and Committees of Congress

Hurricane Katrina: DOD Disaster Response

Summary

The issue that has received the most attention in post-Katrina discussions is the speed of rescue

and relief operations. The Department of Defense’s (DOD’s) Northern Command began its alert

and coordination procedures before Katrina’s landfall; however, many deployments did not reach

the affected area until days later. An examination of the timeline of DOD’s response and the

decision points along that timeline could provide insight into whether the response could have

been accelerated given the intensity of the storm and the extent of the destruction. Both the

National Response Plan and DOD’s own Homeland Security Doctrine lay out extensive

procedures and specific decision points in an attempt to ensure an organized response to

catastrophic incidents. It may now be necessary to examine those procedures and the actions of

responsible authorities to determine whether procedural obstacles, administrative failures, or both

delayed the arrival of needed resources in the affected area. The traditional assumption that the

Department of Defense is the resource only of last resort may also require reexamination.

As with most natural disasters, the role of the National Guard is critical in the maintenance of

civil order, the provision of logistical support, and the coordination of rescue and relief effort. The

National Guard’s ability to respond through the Emergency Management Assistance Compact

may be proven to have been exemplary, given the extent of regional destruction. Nevertheless, a

number of issues may attract attention. The fact that the National Guard may act under state

control or may be federalized and brought under command of active duty forces at the President’s

discretion creates a decision-point with political, cost, and coordination/command implications.

They present a core concern in the balance of state and federal control in disaster situations.

Another issue that has attracted significant attention is the question of whether the demands of

overseas operations in Iraq and Afghanistan in any way affected the quality of response of both

active duty and National Guard forces. Both DOD and the National Guard have denied any

deleterious effect; however, there is some evidence that equipment shortages among National

Guard units and the non-availability of some active duty units could be attributed to overseas

deployment activities. The National Guard’s equipment levels and deployment policies may be of

particular interest, given its dual responsibilities both domestically and overseas.

In examining its roles, missions, and capabilities, it is likely that the controversies surrounding

the federal response to Katrina will affect DOD’s consideration of its responsibilities and its

ability to execute them. Though Katrina was a natural disaster, many of its effects could be

encountered in an intentional attack. Consequently, “lessons learned” from the Katrina experience

may carry long-term relevance for DOD’s civil support planning.

This report will be updated as events warrant.

Congressional Research Service

Hurricane Katrina: DOD Disaster Response

Contents

Introduction ................................................................................................................................1

Organization of DOD Civil Support ............................................................................................1

Procedures for Obtaining DOD Civil Support..............................................................................2

Role of the National Guard..........................................................................................................5

State Active Duty ..................................................................................................................6

“Title 32” Status....................................................................................................................7

Federal Status .......................................................................................................................8

Activation Statuses: Advantages and Disadvantages ..............................................................9

DOD Katrina-Related Appropriations........................................................................................ 11

Issues for Congress ................................................................................................................... 12

Timeline of Response.......................................................................................................... 12

Structural or Administrative Failures? ................................................................................. 12

Federalization of the Evacuation/Command of the National Guard “ \l 2 ............................. 13

Impact of Overseas Deployments on DOD’s Response........................................................ 13

Impact of Katrina on the Quadrennial Defense Review........................................................ 14

Figures

Figure 1. Assistance Request Procedures .....................................................................................3

Tables

Table 1. Activated National Guard Personnel Serving in Louisiana and Mississippi ................... 10

Contacts

Author Contact Information ...................................................................................................... 15

Congressional Research Service

Hurricane Katrina: DOD Disaster Response

Introduction

The issue that has received the most attention in post-Katrina discussions is the speed of rescue

and relief operations. The Department of Defense’s Northern Command began its alert and

coordination procedures before Katrina’s landfall, however many deployments did not reach the

affected area until days after. An examination of the timeline of DOD’s response and the decision

points along that timeline could provide insight into whether the response could have been

accelerated given the intensity of the storm and the extent of the destruction. Both the National

Response Plan and DOD’s own Homeland Security Doctrine lay out extensive procedures and

specific decision points in an attempt to ensure an organized response to catastrophic incidents. It

may now be necessary to examine those procedures and the actions of responsible authorities to

determine whether procedural obstacles, administrative failures, or both delayed the arrival of

needed resources in the affected area. The traditional assumption that the Department of Defense

is the resource of last resort may also require reexamination. This report examines the existing

disaster response procedures for the Department of Defense and how they were implemented, the

use of the National Guard and its relationship to active duty forces, funds appropriated to date,

and then discusses issues that may receive congressional consideration

Organization of DOD Civil Support1

Reinforcing a long-standing tradition, Homeland Security Presidential Directive-5 states:

The Secretary of Defense shall provide military support to civil authorities for domestic

incidents as directed by the President or when consistent with military readiness and

appropriate under the circumstances and the law. The Secretary of Defense shall retain

command of military forces providing civil support. The Secretary of Defense and the

Secretary [of Homeland Security] shall establish appropriate relationships and mechanisms

for cooperation and coordination between their two departments.

In keeping with the National Response Plan (NRP) and the DOD Joint Doctrine on Homeland

Security, DOD civil support is normally provided only when local, state, and other federal

resources are “overwhelmed”; and it is requested by the Lead Federal Agency responding to an

incident or natural disaster.2 This is a fundamental principle of DOD’s approach to civil support:

it is generally a resource of last resort.

The Secretary of Defense has the principal authority for DOD’s provision of civil support. His

office retains approval authority for all requests for assistance from civilian agencies and retains

control of all DOD assets provided. In practice, the Office of the Assistant Secretary of Defense,

Homeland Defense (ASD/HD) is delegated supervisory responsibility of the civil support mission

area and coordination with the Department of Homeland Security. 3 Within the DOD Joint Staff,

civil support responsibilities reside with the Joint Director of Military Support.

1

Prepared by name redacted, Specialist in National Defense; Foreign Affairs, Defense, and Trade Division.

2

National Response Plan, Department of Homeland Security, Dec. 2004, p. 42; Homeland Security, Joint Publication

3-26, Department of Defense, Aug. 2, 2005, p. IV-1.

3

This is not the ASD/HD’s sole mission area. The ASD/HD is also responsible for the Defense Critical Infrastructure

(continued...)

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Hurricane Katrina: DOD Disaster Response

U.S. Northern Command (NORTHCOM) has the operational responsibility for civil support for

most of the United States. It carries out civil support missions with forces assigned as required

from all the armed services, typically through the creation of a joint task force.4 NORTHCOM

has a permanently assigned Joint Interagency Coordination Group comprising liaison officers

from other DOD components and other federal agencies, including the Department of Homeland

Security (DHS).

The official DOD term for civil support is Military Assistance to Civil Authorities, which is

divided into three types of assistance:5

• Military Support to Civil Authorities (MSCA) generally consists of support during

natural disasters, special security events (e.g., the Olympics), and man-made incidents

(terrorism, oil spills) which have evoked a presidential or state emergency declaration.

• Military Support to Civilian Law Enforcement Agencies (MSCLEA) consists of

support provided to a Lead federal Agency (e.g., Federal Bureau of Investigation, DHS)

for activities such as counterterrorism and counterdrug operations and may include

provision of equipment, training, or expert advice.

• Military Assistance for Civil Disturbances occurs when the President employs the

armed forces to suppress insurrections, riots, or to assist the states in maintaining law and

order. In these situations, the Lead Federal Agency supported by DOD is the Department

of Justice.

The Army Corps of Engineers, however, does not fall under the supervision of the ASD/HD or

the Northern Command, despite providing extensive civil support from within DOD. It performs

its emergency support activities primarily as an adjunct to its on-going mission of water

navigation maintenance and flood control. (See also CRS Report RL33188, Protecting New

Orleans: From Hurricane Barriers to Floodwalls, by (name redacted).

Procedures for Obtaining DOD Civil Support6

With the exception of circumstances discussed below, unless there is a specific direction from the

President, requests for military assistance must originate from a Lead Federal Agency, typically

the Federal Emergency Management Agency (FEMA), Department of Homeland Security.

Requests are submitted to the Office of the Secretary of Defense, where they are evaluated by the

ASD/HD according to the following criteria: legality, readiness, lethality, risk, cost, and

appropriateness.7 This is to be done on an expedited basis and, once the Secretary of Defense

approves the requests, they are forwarded to the Joint Director of Military Support within the

Joint Staff, who in turn provides the appropriate orders to Northern Command. (See Figure 1). A

Defense Coordinating Officer (DCO) is designated and deployed to the area of the incident. In the

(...continued)

Program, DOD domestic antiterrorism and force protection programs, installation preparedness, and DOD continuity of

government programs, among others.

4

Civil support for incidents in Hawaii and the Pacific territories is provided by U.S. Pacific Command.

5

DOD Joint Homeland Security Doctrine, p. IV-4.

6

Prepared by (name redacted), Specialist in National Defense; Foreign Affairs, Defense, and Trade Division

7

Ibid. p. IV-12

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Hurricane Katrina: DOD Disaster Response

case of Katrina, because of the size of the response required, a Joint Task Force (JTF-Katrina)

was established with Lieutenant General Russel Honore, the DCO, as task force commander. The

DCO then serves as the single point of contact for DOD resources for other government agencies

operating in the incident area, but does not, however, have operational control over the U.S. Army

Corps of Engineers or National Guard personnel operating in State Active Duty or Title 32 status

(See, Role of the National Guard). The Corps of Engineers performs its emergency support under

independent flood control authority (P.L. 64-99), but can and does assist both FEMA and JTFKatrina under the National Response Plan.8

Figure 1. Assistance Request Procedures

Source: Homeland Security, Joint Publication 3-26, August 2005, Department of Defense

Within the National Response Plan, there are provisions for a “proactive federal response to

catastrophic events.” These provisions are reserved for an event “that almost immediately exceeds

resources normally available to State and local authorities.” These provisions are contained in the

NRP’s Catastrophic Event Annex and can be implemented only by the Secretary of Homeland

8

For more information on Katrina-related Corps of Engineer activities, see CRS Report RL33188, Protecting New

Orleans: From Hurricane Barriers to Floodwalls, by (name redacted).

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Security or his designee. Such events are to be designated Incidents of National Significance. 9

The NRP specifies the following guiding principles for proactive federal response:

• The primary mission is to save lives; protect critical infrastructure, property, and the

environment; contain the event; and preserve national security.

• Standard procedures regarding requests for assistance may be expedited or, under

extreme circumstances, suspended in the immediate aftermath of an event of catastrophic

magnitude.

• Identified Federal response resources will deploy and begin necessary operations as

required to commence life-safety activities.

• Notification and full coordination with States will occur, but the coordination process

must not delay or impede the rapid deployment and use of critical resources. States are

urged to notify and coordinate with local governments regarding a proactive Federal

response.

• State and local governments are encouraged to conduct collaborative planning with

the Federal Government as a part of “steady-state” preparedness for catastrophic

incidents.

Secretary of Homeland Security Chertoff did not declare Hurricane Katrina an Incident of

National Significance until August 30, the evening after the hurricane made landfall, making a

proactive federal response under the NRP moot.

In addition to the NRP’s provisions for a proactive federal response, the DOD Joint Homeland

Security Doctrine also addresses instances when an “immediate response” is required of military

commanders.

Responses to requests from civil authorities prior to receiving authority from the President or

chain of command are made when immediate support is critical to save lives, prevent human

suffering, or mitigate great property damage. When such conditions exist and time does not

permit prior approval from higher headquarters, commanders or officials acting under

immediate response authority may take necessary action to respond, but must advise the

NMCC [National Military Command Center] through command channels by the most

expeditious means available and seek approval or additional authorizations.10

In response to a FEMA request (based upon predictions of an unusually active hurricane season)

Secretary Rumsfeld issued an order on August 20 which authorized NORTHCOM to deploy

Defense Coordinating Elements (DCE) to FEMA’s East Coast and Gulf Coast administrative

regions upon receipt of a written request from FEMA and the approval of the service secretaries

affected.11 According to the Secretary’s order, FEMA’s written request should specify the area

affected, the installations requested for use as relief staging areas, funds obligated for DOD

reimbursement, and the requested date and duration of deployment. Any FEMA request that

required more than DCE deployment and use of installations would also have to be submitted to

9

National Response Plan, Dec. 2004, p. 43; Catastrophic Annex, p.1

DOD Joint Homeland Security Doctrine, Aug. 2005, p. IV-3

11

Defense Coordinating Elements are small units that serve as liaison between civilian and military authorities. “How

the Pentagon Caught Katrina,” U.S. News and World Report, Sept. 26, 2005, p. 2.

10

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OSD and the Joint Staff for “processing, validation, and subsequent action by the Secretary of

Defense.”

DOD, through NORTHCOM, began planning and actually deploying ships and personnel prior to

receiving specific requests from the Department of Homeland Security or its subordinate, FEMA.

NORTHCOM’s first responses to Katrina’s approach began the week prior to its August 29

landfall. On Wednesday, August 24, NORTHCOM issued its first warning orders to Regional

Emergency Preparedness Officers, State Emergency Preparedness Officers, and the Senior Army

Advisors (Guard) in the states expected to be affected. The governors of Louisiana and

Mississippi declared states of emergency on August 26 and 27, respectively. President Bush

declared a state of emergency for Louisiana on August 27 and NORTHCOM began to deploy the

forward elements of what was to become Joint Task Force-Katrina (JTF-Katrina). On Monday,

August 29, after Katrina made landfall, President Bush issued a federal declaration of

catastrophic emergency, and on Tuesday, August 30, JTF-Katrina was officially activated. That

evening, in response to levee breaches and consequent flooding in New Orleans, the DHS

Secretary declared Katrina an Incident of National Significance. By Wednesday, August 31, DOD

medical airlift operations from the affected area were underway, and the amphibious assault ship

USS Bataan arrived off New Orleans.12 On Thursday, September 1, the 82nd Airborne Division

and 1st Cavalry Division were placed on alert. The 5,200 troops from these units began deploying

on September 3 and arrived in the area on September 5. By September 6, a second amphibious

assault ship, the USS Iwo Jima and the aircraft carrier USS Truman had also arrived. By

September 7, DOD assets in the affected area included 42,990 National Guard personnel, 17,417

active duty personnel, 20 U.S. ships, 360 helicopters, and 93 fixed wing aircraft.13

Role of the National Guard14

The National Guard is descended from the colonial militias15 which existed prior to the adoption

of the Constitution. With the adoption of the Constitution, the federal government acquired

authority to organize, arm, and discipline the militia, and to call the militia into federal service in

order to execute the laws of the Union, to suppress insurrection, and to repel invasion. 16

Additionally, federal laws passed in the early 20th century designated part of the militia as the

National Guard and transformed it into a federal reserve of the Army, enhancing federal authority

over the Guard in certain respects.17 As a result of this history, the National Guard is neither a

purely state nor a purely federal organization. Rather, it is both a state and federal organization.

12

A Wasp class amphibious assault ship like the USS Bataan resembles a small-aircraft carrier in appearance and

typically embarks 2,000 U.S. Marines, a variety of transport helicopters, and has a 600 patient medical capacity.

13

U.S. Northern Command Press Release, Sept. 7, 2005.

14

Prepared by (name redacted), Specialist in National Defense, Foreign Affairs, Defense, and Trade Division

15

The colonial militia concept, which was derived from a longstanding English tradition and which required every able

bodied white male to participate in the common defense of his town or locality, was the backbone of colonial military

power. Gradually, as the colonial population grew and military threats waned, a distinction arose between the

unorganized militia (those members of the militia who were potentially liable for military service but who did not

actively participate in military training) and the organized militia (those members of the militia who regularly trained

for war and who responded first to military threats).

16

See U.S. Constitution, Article I, Section 8, clauses 15 and 16, and Article II, Section 2, clause 1.

17

The most significant pieces of legislation in this transformation were the Dick Act of 1903, and the National Defense

Acts of 1916, 1920, and 1933. Later, with the advent of the Air Force, the National Guard was organized into a land

force (the Army National Guard of the United States) that was a federal reserve of the Army and an air force (the Air

(continued...)

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State Active Duty

Normally, the National Guard operates under the control of state and territorial governors.18 In

response to disasters and civil disorders, governors can order National Guard personnel to

perform full-time duty, commonly referred to as “state active duty.”19 In this state capacity,

National Guard personnel operate under the control of their governor, are paid according to state

law, can perform typical disaster relief tasks20 and are not subject to the restrictions of the Posse

Comitatus Act (that is, they can perform law enforcement functions).21

National Guard personnel called to assist with disaster relief operations for Hurricane Katrina

were originally called to duty in a state active duty status by their respective governors. Interstate

agreements allowed National Guard personnel from states outside the hurricane affected area to

deploy to Louisiana and Mississippi and assist with disaster relief.22 By September 3, there were

more out-of-state National Guard personnel serving in Louisiana and Mississippi than there were

from those states’ own National Guards. (See Table 1 for a summary of National Guard force

levels in Louisiana and Mississippi). In the early days of the relief operation, these out-of-state

National Guard personnel remained on state active duty in their respective home states after

arriving in Louisiana and Mississippi and received the pay and benefits provided by their home

state’s laws, but were placed under the operational control of the governors of Louisiana and

(...continued)

National Guard of the United States) that was federal reserve of the Air Force. They are distinct from the Army

Reserve and the Air Force Reserve, which are purely federal entities, as are the Naval Reserve, Marine Corps Reserve,

and Coast Guard Reserve. The Navy, Marine Corps, and Coast Guard have no National Guard components.

18

The National Guard of the United States is made up of 54 separate National Guard organizations: one for each state,

and one each for Puerto Rico, Guam, the U.S. Virgin Islands, and the District of Columbia. While the District of

Columbia National Guard is an exclusively federal organization and operates under federal control at all times, the

other 53 National Guards operate as state or territorial organizations most of the time. In this capacity, each of these 53

organizations is identified by its state or territorial name (e.g. ,the California National Guard or the Puerto Rico

National Guard), and is controlled by its respective governor.

19

Historically, this authority has been used most frequently in response to natural disasters such as hurricanes,

earthquakes, forest fires, floods, etc. It has also been used to quell domestic violence and to control or disperse crowds.

Additionally, in the aftermath of the September 11 terrorist attacks, a number of governors called up members of the

National Guard to protect critical infrastructure in their states, such as nuclear power plants, water treatment facilities,

and bridges, from potential terrorist attacks.

20

For example, search and rescue, clearing roads, delivering supplies, and providing medical assistance.

21

The Posse Comitatus Act (18 U.S.C. 1385), along with other related laws and administrative provisions, prohibits the

use of the military to execute civilian laws unless expressly authorized by the Constitution or an act of Congress.

Congress has made a number of exceptions to the act which permit military involvement in law enforcement. For

example, Congress has enacted a number of statutes which authorize the President to use military forces to suppress

insurrections and domestic violence (10 U.S.C. 331-335). If these statutes were to be invoked, the President could use

active or reserve components to put down a rebellion or to control domestic violence. Another important exception

relates to the Coast Guard, which Congress has vested with broad law enforcement authority. Under these statutory

provisions, the Coast Guard and Coast Guard Reserve can participate in the enforcement of maritime, customs, and

certain other federal laws. For more information on the Posse Comitatus Act, see CRS Report RS20590, The Posse

Comitatus Act and Related Matters: A Sketch, by (name redacted), and CRS Report RS22266, The Use of Federal

Troops for Disaster Assistance: Legal Issues, by (name redacted) and (name redacted).

22

The response from other states under such agreements has been unprecedented. National Guard personnel from all

fifty states, the District of Columbia, Puerto Rico, Guam and the U.S. Virgin Islands all joined in the relief effort. Some

interstate agreements are negotiated state to state; others occur under the umbrella of the Emergency Management

Assistance Compact (EMAC). For more information on EMAC, See CRS Report RS21227 Emergency Management

Assistance Compact, by (name redacted). The EMAC website is http://www.emacweb.org.

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Mississippi. Later, almost all of them were converted to Title 32 status (see below) and were

therefore authorized federal pay and benefits.

“Title 32” Status

Another way in which National Guard personnel can be activated and remain under the control of

their governor is under the authority of 32 U.S.C. 502(f). This provision of federal law provides

that “a member of the National Guard may...without his consent, but with the pay and allowances

provided by law...be ordered to perform training or other duty in addition to [inactive duty for

training or annual training].” The advantage of using this authority is that the National Guard

personnel called will receive federal pay and benefits and are entitled to certain legal protections23

as though they were in federal service, but they remain under the control of their governor and are

therefore not subject to the restrictions of the Posse Comitatus Act. This is the provision of law

which was used to provide federal pay and benefits to the National Guard personnel who

provided security at many of the nation’s airports in the aftermath of the terrorist attacks of

September 11, 2001.

Shortly after Katrina, the Chief of the National Guard Bureau, Lieutenant General Blum,

reportedly asked the Secretary of Defense to approve the retroactive transfer of all National

Guard personnel participating in Katrina-related disaster relief operations from state active duty

to duty under Title 32. The purpose of this request was to equalize pay and benefits for all

National Guard personnel rather than having their compensation based on disparate state and

territorial laws. On September 7, Acting Deputy Secretary of Defense Gordon England signed a

memorandum approving the use of federal funds “for use of the National Guard in Title 32 U.S.

Code status to support Hurricane Katrina disaster relief efforts retroactive to August 29, 2005.”24

Shortly thereafter, the Army and Air National Guard issued implementing instructions to convert

National Guard personnel participating in the Katrina relief operations from state active duty to

Title 32 status. However, Iowa and Delaware have reportedly opted not to convert their National

Guard personnel to Title 32 status given the more beneficial rate of compensation provided by

state law.25 National Guard personnel responding to Hurricane Rita were either already in a Title

23

Specifically, they are entitled to protection under the Uniformed Services Employment and Reemployment Rights

Act (USERRA), but are not always covered by the Servicemembers’ Civil Relief Act (SCRA). SCRA does cover

members of the National Guard for “service under a call to active service authorized by the President or the Secretary

of Defense for a period of more than 30 consecutive days under Section 502(f) of Title 32, United States Code, for

purposes of responding to a national emergency declared by the President and supported by Federal funds” (P.L. 108189, Sec. 101(2)(A)(ii), codified at 50 U.S.C. App. 511). Those not covered by the SCRA may, however, receive civil

liability protection from state or territorial laws.

24

Gordon England, Acting Deputy Secretary of Defense, “Memorandum for Secretary of the Army, Acting Secretary

of the Air Force; Subject: Hurricane Katrina Relief Efforts,” Sept. 7, 2005.

25

Joint Legislative Liaison, National Guard Bureau. Compensation under state law may be more beneficial to some

National Guard personnel than compensation under federal law. For example, Delaware state law specifies that “while

on State duty on account of an emergency” specified in law, members of the Delaware National Guard shall receive “a

sum equal to twice the per diem pay and allowances that military personnel of like grade and length of service in the

United States Army would be entitled to receive for a similar period of service.” (Delaware Code, Title 20, Section

181) Iowa state law specifies that “Officers and enlisted persons while in state active duty shall receive the same pay,

per diem, and allowances as are paid for the same rank or grade for federal service. However, a person shall not be paid

at a base rate of pay of less than one hundred dollars per calendar day of state active duty.” (2005 Iowa Code, 29A.27)

This minimum rate effectively guarantees a higher rate of pay to most enlisted personnel and some junior officers.

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32 status, after having served in Louisiana in support of Hurricane Katrina recovery efforts, or

were directly ordered to duty in that status.26

Federal Status

National Guard personnel can also be activated in a purely federal status. For example, the

President can invoke the Insurrection Act (10 U.S.C. §§ 331-335), which allows the President to

call the militia (which includes the National Guard)27 into federal service for certain purposes,

including the suppression of insurrection against a state government, at the request of that

government (10 U.S.C. § 331), the enforcement of federal laws and suppression of rebellion

against the authority of the United States (10 U.S.C. §332), and the prevention of interference

with state and federal laws, if that interference deprives a class of people of rights, privileges,

immunities, or protections named in the Constitution (10 U.S.C. § 333).28 Similar authority is

contained in 10 U.S.C. § 12406, which permits the President to call members and units of the

National Guard into federal service to repel invasion, suppress rebellion, or execute the laws of

the United States; orders for this latter type of call up must be transmitted through the appropriate

governor. In this federal status, National Guard personnel operate under the control of the

President, receive federal pay and benefits, and can perform law enforcement duties.

The President may also order National Guard personnel to federal active duty under several other

provisions of law, including 10 U.S.C. 12301(a), 12301(b), 12301(d), 12302, and 12304. Under

these authorities, National Guard personnel operate under the control of the President, receive

federal pay and benefits, and are subject to the Posse Comitatus Act. However, it is unclear how

useful these authorities would be for responding to a disaster as they have traditionally been used

for national security or training purposes and have constraints which limit or prohibit their use for

disaster relief operations. For example, 10 U.S.C. 12301(a) can only be used “in time of war or of

national emergency declared by Congress or when otherwise authorized by law.” Activations

under 10 U.S.C. 12301(b) are limited to 15 days and, for National Guard personnel, require the

consent of the affected governor. 10 U.S.C. 12301(d) permits voluntary activation of National

Guard personnel, but not involuntary activation, and also requires the consent of the affected

governor. National Guard personnel may be involuntarily activated under 10 U.S.C. 12302, but

only “in time of national emergency declared by the President...or when otherwise authorized by

law.”29 Finally, the President may call members of the National Guard into federal service under

26

Joint Legislative Liaison, National Guard Bureau.

10 U.S.C. § 311 states “(a) the militia of the United States consists of all able-bodied males at least 17 years of age

and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of

intention to become citizens of the United States and of female citizens of the United States who are members of the

National Guard. (b) The classes of the militia are - (1) the organized militia, which consists of the National Guard and

the Naval Militia; and (2) the unorganized militia, which consists of members of the militia who are not members of the

National Guard or the Naval Militia.”

28

President George H. W. Bush invoked the Insurrection Act in 1989 in order to use National Guard personnel to

suppress violence in the Virgin Islands in the aftermath of Hurricane Hugo (Executive Order 12690, September 20,

1989) and again in 1992 to suppress rioting in Los Angeles after the Rodney King verdict (Executive Order 12804,

May 1, 1992). According to one news account, current Administration officials considered invoking the Insurrection

Act and calling National Guard personnel into federal service in response to Hurricane Katrina, but decided against it

for several reasons. Eric Lipton, Eric Schmitt and Thom Shanker, “Political Issues Snarled Plans for Troop Aid,” New

York Times, Sept. 9, 2005, p. 1.

29

For the purpose of responding to a catastrophic natural disaster, 10 U.S.C. 12302 would probably be the authority

that would be most useful for calling large numbers of National Guard personnel and other reservists to federal active

duty for an extended period of time, although 10 U.S.C. 12301(b) and 12301(d) would likely be useful as well.

(continued...)

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10 U.S.C. 12304 if he determines it necessary “to augment active forces for any operational

mission”; however the statute prohibits the President from calling units or members to active duty

to perform duties related to repelling invasion, suppressing insurrection, enforcing laws or

“providing assistance to either the Federal Government or a State in time of a serious natural or

manmade disaster, accident, or catastrophe.” The statute makes an exception to this latter

prohibition for certain emergencies related to terrorist attacks and weapons of mass destruction.

Activation Statuses: Advantages and Disadvantages

Each of these activation authorities have advantages and disadvantages when dealing with

disasters. Under state active duty and Title 32 activations, governors retain control over their

National Guard personnel, which is consistent with principles of federalism and the traditional

role of state governors in responding to disasters. Moreover, duty in these statuses poses no

obstacle to the use of National Guard personnel in a law enforcement capacity. However, in the

case of catastrophic events involving multiple jurisdictions and levels of government, state

control of the National Guard can potentially interfere with the effective coordination and

utilization of resources. Federalizing National Guard forces, on the other hand, could increase the

efficiency of a major disaster response effort; however, it would do so by stripping state

governors of one of their most valuable emergency response assets. Additionally, calling National

Guard personnel into federal service requires that the President either invoke statutory exceptions

to the Posse Comitatus Act such as the Insurrection Act, which might be inflammatory, or that the

National Guard personnel refrain from acting in a law enforcement capacity.

In an effort to eliminate some of these trade-offs, Congress revised the statutes governing

National Guard officers called into federal service in the National Defense Authorization Act for

FY2004 (P.L. 108-106). Prior to this revision, all National Guard personnel called to full-time

duty in the active military service of the United States were automatically relieved from duty in

the National Guard of their state. Section 516 provided an exception to this general rule for

certain National Guard officers called to active duty. As the conference report explained, the

provision would:

...allow officers of the Army or Air National Guard, called to active duty for the purpose of

commanding a unit composed of both active duty and reserve component personnel, to retain

and exercise their Army or Air National Guard state commissions if authorized by the

President and the governor. Such National Guard officers would have the authority to

command subordinate active duty personnel by virtue of their own active duty status and also

retain the authority to command National Guard personnel in a nonfederal status.30

In testimony before the House Armed Services Subcommittee on Terrorism, Unconventional

Threats and Capabilities last March, Assistant Secretary of Defense for Homeland Security Paul

McHale described how this authority had been used:

(...continued)

Historically, however, 10 U.S.C. 12302 has only been used for national security purposes and it could be controversial

to use this authority for disaster relief purposes. This is the authority currently in use for mobilizing reservists in

support of Operation Iraqi Freedom, Enduring Freedom, and Noble Eagle. It was also used during Operation Desert

Storm (1990-1991).

30

H.Rept. 108-354, National Defense Authorization Act for Fiscal Year 2004, Conference Report to Accompany HR

1588, November 7, 2003, p. 688.

Congressional Research Service

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Hurricane Katrina: DOD Disaster Response

But utilizing a recent statutory provision, beginning at the G-8 summit, but then again at the

Democratic convention, the Republican convention, and Operation Winter Freeze along the

Canadian border, a single National Guard officer—one man—was given a dual-hatted

command. He was placed in Title 32 status to command the Title 32 forces. He was placed

simultaneously in Title 10 status under the command and control of the combatant

commander so that unity of effort could be achieved, even though we maintained the

distinction in terms of unity of command.31

According to one report, a variation of this model—with an active duty officer being sworn into

the Louisiana Guard, rather than a Louisiana National Guard officer being called to active duty—

was advanced by the Administration in its discussions with the governor of Louisiana but she

rejected it. “In a separate discussion last weekend,” the article stated, “the governor also rejected

a more modest proposal for a hybrid command structure in which both the Guard and active-duty

troops would be under the command of an active-duty, three-star general—but only after he had

been sworn into the Louisiana National Guard.”32 It is not yet clear whether the lack of a unified

command over both National Guard and DOD active duty personnel affected Katrina-related

military operations.

Table 1. Activated National Guard Personnel Serving in Louisiana and Mississippi

Date

Number Serving in Louisiana

Number Serving in Mississippi

Louisiana

National Guard

Personnel

National Guard Personnel

from Other States

Total

Mississippi

National Guard

Personnel

National Guard

Personnel from

Other States

Total

Aug. 30

5,804

178

5,982

3,822

16

3,838

Aug. 31

5,804

663

6,467

3,822

1149

4,971

Sept. 1

5,804

2,555

8,359

3,823

2,861

6,684

Sept. 2

6,779

5,445

12,224

3,823

3,719

7,542

Sept. 3

6,779

10,635

17,414

3,823

6,314

10,137

Sept. 4

6,779

12,404

19,183

4,017

9,399

13,416

Sept. 5

6,779

16,162

22,941

4,017

10,999

15,016

Sept. 6

6,779

20,510

27,289

4,023

11,095

15,118

Sept. 7

6,779

22,589

29,368

4,023

11,388

15,411

Sept. 8

6,779

23,476

30,255

4,023

11,506

15,529

Source: Data extracted from slides to briefing entitled “Hurricane Katrina Update Brief 101000 Sept. 2005,”

National Guard Bureau. (Military date-time group cited in briefing title means 10:00 AM, Sept. 10, 2005)

31

Paul McHale, Assistant Secretary, Homeland Defense, Department of Defense, Hearing on Department of Defense

Homeland Security Responsibilities before the House Armed Services Subcommittee on Terrorism, Unconventional

Threats and Capabilities, March 15, 2005.

32

Eric Lipton, Eric Schmitt and Thom Shanker, “Political Issues Snarled Plans for Troop Aid,” New York Times, Sept.

9, 2005, p. 1.

Congressional Research Service

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Hurricane Katrina: DOD Disaster Response

DOD Katrina-Related Appropriations33

Between the two enacted supplementals, DOD has received $1.9 billion, including $500 million

in P.L. 109-61 and $1.4 billion in P.L. 109-62, to pay for emergency evacuation of DOD

personnel and repair at some 20 affected installations. According to initial estimates, the monies

will be used as follows:

•

$960 million to make emergency repairs to DOD facilities;

• $370 million to evacuate and support 44,000 military personnel, and 32,000 DOD

civilians;

• $570 million to pay to mobilize and support about 44,000 national guard personnel

for 45 days.34

FEMA reimburses DOD separately for its help in rescue and relief operations, estimated at about

$4.6 billion thus far.35

Damage at defense installations ranges from minor problems with roofs and fences to wholesale

damage to facilities in New Orleans and Mississippi. Three of the damaged facilities—Naval

Supply Activity in New Orleans, the Army ammunition plant in Mississippi, and Naval Station,

Pascagoula, Mississippi—are on the base closure list that the President submitted to Congress on

September 15, 2005.

The second Katrina supplemental, P.L. 109-62, also permits DOD to transfer up to $6 million to

cover the costs for residents who were evacuated from the U.S. Naval Home in Mississippi, a

retirement home for certain retired military personnel, to the U.S. Soldiers’ and Airmen’s Home

in Washington, D.C.

The DOD funds are appropriated to Operation and Maintenance, Defensewide, set up as a transfer

account where DOD can move monies to other accounts, depending on the type of expense (e.g.,

to pay military personnel costs, operating costs, procurement, family housing, and Defense

Health). Funds that turn out not to be needed may be returned to the account and then transferred

elsewhere.

The appropriators approved the amount requested in both supplementals, but added language that

requires that the Armed Services and Appropriations Committees in both the House and Senate be

notified in writing within five days of when and where funds are transferred. This requirement is

important to clarify which funds in the various accounts are for hurricane-related expenses as

opposed to those for military operations and regular peacetime activities.

33

34

Prepared by (name redacted), Specialist in National Defense; Foreign Affairs, Defense, and Trade Division.

DOD fact sheet, Sept. 7, 2005 and Congress Daily.

35

Senate Budget Committee, Budget Bulletin, Sept. 12, 2005, http://budget.senate.gov/republican/analysis/2005/

bblatest.pdf.

Congressional Research Service

11

Hurricane Katrina: DOD Disaster Response

Issues for Congress36

Timeline of Response

The issue that has attracted the most attention in post-Katrina discussions has been the speed of

rescue and relief operations. As noted, NORTHCOM began its alert and coordination procedures

significantly before Katrina’s landfall and the subsequent levee breaches. Prior to receiving

requests from FEMA, DOD made its own assessments of what resources would be useful and

began moving towards deployment prior to Katrina’s landfall. However, it was not until after the

presidential declaration of a federal catastrophic emergency and the subsequent declaration of an

Incident of National Significance on August 30, that many deployments began. This is in keeping

with the National Response Plan and DOD’s Homeland Security Doctrine, though it may have

slowed arrival of needed DOD assets in the affected region. Another factor that affected

deployments is simply that most relief assets must be kept out of the storm’s path until it passes to

avoid their own destruction. It is possible, however, that an earlier and phased deployment could

have brought assets closer to the affected region in a more timely fashion. Relief assets’ approach

was also slowed to some extent by damage to airports/airbases, highways, and the concern about

underwater obstructions in the New Orleans Port area. Even after the activation of JTF-Katrina on

August 30, DOD’s response appears incremental, responding to an increasingly deteriorating

situation. The hospital ship USS Comfort was not dispatched from Baltimore until August 31.

Additional active duty ground forces (82nd Airborne, 1st Cavalry) did not begin deploying until

September 3, arriving on September 5. Again, transportation challenges in the affected area may

have played some role in slowing these troops’ arrival.

Structural or Administrative Failures?

Congress may wish to examine whether the shortcomings in Katrina relief efforts are the result of

structural problems with federal and agency disaster plans/doctrines, the failure of administrative

officials to execute effectively, or both. Are the National Response Plan and DOD’s Joint

Homeland Security Doctrine too “procedure-bound,” with too many decision points and

approvals required? Or were provisions for expediting responses inadequately utilized? With

regard to DOD particularly, the fundamental principle that it is almost always a supporting

agency and the resource of last resort may serve to encourage a reactive rather than proactive

mode of operation. This principle exists because, for DOD, disaster relief is secondary to its

primary mission of national defense, and there has been a traditional concern that any greater

emphasis on essentially civilian or non-military operations would detract from its preparedness

for its primary mission. Nevertheless, absent the development of greater civilian capabilities in

disaster response, the expectation will remain that DOD will provide substantial, if not massive,

assistance in instances of catastrophic disasters. Current doctrine requires that state, local, and

other federal agencies be “overwhelmed” before DOD resources are requested. The question then

arises, whether the agencies and authorities that have been overwhelmed are indeed capable of

making the incident assessments and informed resource requests necessary to obtain DOD

assistance.

36

Prepared by (name redacted), Specialist in National Defense; Foreign Affairs, Defense, and Trade Division

Congressional Research Service

12

Hurricane Katrina: DOD Disaster Response

In assessing the response to Katrina, one of the more difficult tasks is determining what are

reasonable expectations in the face of a disaster of unprecedented scale. What shortcomings in

relief efforts could have been avoided with better planning and execution, and what were simply

unavoidable given, for instance, the regional destruction of communication and transportation

infrastructure? Another consideration is the question of predictability. Though many sources have

predicted the possibility or probability of a hurricane with Katrina’s effect on this region (and on

New Orleans in particular), repeated warnings followed by “near misses” over the years may

have contributed to a less proactive response to warnings about Katrina’s predicted effect on this

occasion.

Federalization of the Evacuation/Command of the National Guard

“ \l 2

There has been considerable discussion of Louisiana Governor Blanco’s refusal to permit DOD’s

JTF-Katrina to assume control of the evacuation efforts and to assume command of the National

Guard personnel in Louisiana. This controversy has highlighted the possible political element in

the conduct of relief operations. If state authorities wish to retain control of the National Guard,

which may be the largest resource at their command, at what point can or should presidential

authority be invoked to override state authority?

Both President Bush and Senate Armed Services Committee Chairman Warner have indicated a

desire to explore expanding the authority of the Department of Defense in disaster response. A

part of this may be a review of the so-called posse comitatus statute and subsequent DOD

directives which limit the situations in which federal military personnel may conduct law

enforcement activities (e.g., search and seizures, arrests). It is not clear if the use of active duty

federal troops would or could have mitigated the incidence of violence in Katrina’s aftermath,

given the earlier availability of National Guard troops in the region with law enforcement

authority. It also appears that early estimates of violent crime in the region may have been

overstated.

What is not clear to date is exactly what effect retention of state control of National Guard

personnel had upon the conduct of relief operations. What operations could have been executed

more expeditiously with a unified command structure? Were the command and control

breakdowns between the military components of the relief effort or between civilian and military

components? The answers to these questions may provide guidance for future operations;

however, it is noteworthy that command coordination is often highly dependent upon the

personalities and relationship of the relevant commanders.

Impact of Overseas Deployments on DOD’s Response

It has been suggested that the substantial overseas deployments in Iraq and Afghanistan affected

the ability of both the National Guard and active duty forces to carry out relief operations. This

contention has been repeatedly denied by both the DOD and National Guard leadership.37 Though

DOD has sought to focus this question on the number of personnel that remained available for

37

Department of Defense Press Briefings, August 31, Sept. 6, 2005,

http://www.defenselink.mil/transcripts/archive.html

Congressional Research Service

13

Hurricane Katrina: DOD Disaster Response

relief operations, there is anecdotal evidence that, particularly for the National Guard, the issue

centered more upon the availability of equipment rather than personnel. It has been DOD’s

practice to have many units that deploy to Iraq leave their equipment in Iraq when they return so

that it can be used by subsequent units. As a result, for example, it has been reported that National

Guard units responding to Katrina did not have adequate numbers of tactical radios or High

Mobility Multipurpose Wheeled Vehicles (HMMWVs) adapted for high water operations because

this equipment was in Iraq. Another example noted is that of the 101st Air Assault Division, based

in Ft. Campbell, KY. This division, which has the largest number of transport helicopters of any

Army unit, was not deployed to Katrina operations because it is in the process of deploying to

Iraq.38

Impact of Katrina on the Quadrennial Defense Review

The Department of Defense will release its Quadrennial Defense Review (QDR), a

congressionally-mandated examination of the Department’s roles, missions, and capabilities in

early 2006. The controversies surrounding the adequacy of the federal response to Katrina are

expected to have an effect on DOD’s consideration of its responsibilities and capabilities with

regard to catastrophic incidents. Though Katrina was a natural disaster, many of its effects could

be encountered as a result of an intentional attack (e.g., destruction of communication,

transportation, and flood control infrastructures; mass casualties; or civil unrest). With the

likelihood that DOD leadership will continue to maintain its emphasis on overseas operations as

the primary mission for active duty forces, it is the future role, structure, force-level and

equipping of the National Guard that may receive the most attention as a result of Katrina’s

demand upon DOD resources.

It has been suggested before that the National Guard be reorganized to focus on domestic

missions. In preparation of the 1997 QDR, Army leadership suggested reducing the combat role

of National Guard units and stressing support functions (e.g,. logistics, communications, military

police, and engineers). This was strongly opposed by the National Guard Bureau, and the

recommendation was not included in the final QDR. In 2000, one of the recommendations of the

United States Commission on National Security/21st Century (Hart-Rudman Commission) was to

reduce the National Guard’s emphasis upon potential overseas combat deployments and increase

its attention to domestic incident capabilities. This was again opposed by the National Guard

leadership, which continued to defend the importance of maintaining its combat capabilities.39

This argument by the Guard has received substantial support from DOD’s evidenced need to use

substantial numbers of National Guard troops in Iraq.

Regardless of whether civil support remains a responsibility divided between active duty and

National Guard forces, it is likely that questions of personnel levels and equipping for both

elements of the armed services will be addressed. It will then be necessary to determine what

level of investment will be required to meet civil support expectations. Though the study of

Katrina relief operations may have an effect on QDR recommendations, it will be necessary to

examine to what extent the demands of such an extraordinary catastrophic event should be used

as baseline guidance.

38

“Military Lacked Critical Gear In responding to Katrina,” Newhouse.Com, Sept. 13, 2005; “Behind Poor Katrina

Response, A Long Chain of Weak Links,” Wall Street Journal, Sept. 6, 2005, p. 1.

39

“Katrina Likely to Fuel Debate Over Guard’s Combat, Homeland Defense Roles,” Inside Defense, Sept. 9, 2005.

Congressional Research Service

14

Hurricane Katrina: DOD Disaster Response

The extent of the resources needed to deal with the consequences of Hurricane Katrina, on top of

the requirements for combat operations in Iraq and Afghanistan, raises the question of what

resources would be available in the event of another almost simultaneous catastrophic event.

Though some have suggested that a disaster like Katrina increases potential vulnerability to

opportunistic terrorist attack, the approach of Hurricane Ophelia along the eastern seaboard

shortly after Katrina’s strike also demonstrates the potential for sequential natural disasters. It

could be useful to examine what resources were marshalled in response to the threat of Hurricane

Ophelia, and how these efforts were affected by on-going operations on the Gulf Coast.

Author Contact Information

(name redacted)

(name redacted)

Specialist in Military Manpower Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in U.S. Defense Policy and Budget

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

15

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