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Tuesday, September 13, 2005

John Conyers is earning his salary

The Bush administration has generated a lot of smoke about legal restrictions on federal assistance to Louisiana and alleged omissions by governor Blanco. John Conyers asks the Congressional Research Service to look into the relevant law -- the Stafford Act. They conclude that the President had, under the law, all authority he might need and that Blanco successfully crossed every t and dotted every i.

The assistance which was requested and granted included "emergency protective services" which are repeatedly mentioned. I think this refers not only to search and rescue but also to policing, that is the keeping order.

The Stafford act is very explicit that DOD resources are among the federal resources that the President can make available. I think the following clause is meant to amend and restrict the Posse Comitatus act of 1878 (recall I'm not a lawyer).

I quote from the act (in italics)

5170b Essential assistance

[snip]
(c) Utilization of DOD resources
(1) General rule
During the immediate aftermath of an incident which may ultimately qualify for
assistance under this subchapter or subchapter IV A of this chapter, the Governor
of the state in which such incident occurred may request the President to direct the
Secretary of Defence to utilize the resources of the Department of Defence for the
purpose of performing on public and private lands any emergency work which is
made necessary by such incident and which is essential for the preservation of life
and property. If the President determines that such work is essential for the
preservation of life and property, the President shall grant such request to the
extent the President determines practicable. Such emergency work may only be
carried out for a period not to exceed 10 days.

[snip]
(6) Definitions
for the purposes of this section
[snip]
B)Emergency Work
the term "emergency work" includes clearance and removal of debris and
wreckage and temporary restoration of essential public facilities and services.


So what does that mean ? First it is clear that the Governor must specifically request DOD resources even after requesting a declaration of a national emergency. The Stafford act does not explicitly say if asking for "everything you have got" counts, but the Governor later specifically requested 40,000 actice duty military personel.

The Stafford act does not explicitly say that the part I quoted amends, restricts and partially repeals the Posse Comitatus act. Nonetheless I see no other reason that the resources of DOD (and no other department) would be specifically mentioned after the President has been given broad authority to send what is needed (I didn't quote all that). Also the sensitivity of this part of the law is made clear by the 10 day restriction. This restriction makes it clear that the DOD resources may be used for the sort of things people in Democracies are not at all used to their defence departments doing. If the resources in question were say a humvee loaned to the Governor or a satellite cell phone, there would be no reason for the 10 day limit.

Clearly neither the Posse Comitatus act nor the Insurrection act can be considered without taking into account the more recent Stafford act which seems to this non lawyer to have included an effort to anticipate and pre-emptively refute the arguments of DOD lawyers who nonetheless managed to delay relief and the restoration of order in New Orleans.

The Bush administration's alleged concern for the letter of the law always seemed strange. The fact that the argument was only possible, because the lawyers neglected to quote the relevant law brings us back to business as usual. No surprise there, but I do have an every higher opinion of Conyers and am impressed at Stafford's foresight.

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