In June, the U.S. Northern Command distributed a “Congressional Fact Sheet” entitled “Legislative Proposal for Activation of Federal Reserve Forces for Disasters.” That proposal would amend current law, thereby “authorizing the Secretary of Defense to order any unit or member of the Army Reserve, Air Force Reserve, Navy Reserve, and the Marine Corps Reserve, to active duty for a major disaster or emergency.”
Previously, the governors of individual states, as a system of check and balances, maintain control of their own National Guard forces, as well as military personnel acting in a domestic capacity in their states.
NorthCom’s Congressional fact sheet refers not just to a “major disaster,” such as Hurricane Katrina, but also to “emergencies.” And it says, “Those terms are defined in section 5122 of title 42, U.S. Code.”
That section gives the President the sole discretion to designate an event as an “emergency” or a “major disaster.” Both are “in the determination of the President” alone.
That section also defines “major disaster” by citing plenty of specifics: “hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought,” as well as “fire, flood, or explosion.”
But the definition of “emergency” is vague: “Emergency means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.”
The current definition of emergency can be re-defined with legislation.
But even the ACLU is alarmed by proposed legislation. Mike German, the ACLU’s national security policy counsel, expressed amazement “that the military would propose such a broad set of authorities and potentially undermine a 100-year-old prohibition against the military in domestic law enforcement with no public debate and seemingly little understanding of the threat to democracy.”