Use of Federal Troops for Law Enforcement during Crises: the “Immediate Response Authority”

The Hurricane Katrina event beginning on August 29, 2005, raised questions concerning the President’s legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. (1) For the most part, the President is limited by the Posse Comitatus Act of 1868 in using military troops to enforce civil laws. (2) The Stafford Act forbids use of federal troops to enforce civil law during disasters (of course, federal troops can provide humanitarian assistance during disaster relief efforts). However, the President may invoke a number of other authorities, including the “Immediate Response Authority,” to support the use of military resources to enforce civil law and order during disasters.

The Immediate Response Authority permits a “local commander, when time does not permit prior approval from higher headquarters, to provide assistance to local authorities in the case of emergencies. Department of Defense Directive 3025.1 articulates this authority, as follows:

“Imminently serious conditions resulting from any civil emergency or attack may require immediate action by military commanders, or by responsible officials of other DOD Agencies, to save lives, [to] prevent human suffering, or [to] mitigate great property damage. When such conditions exist and time does not permit prior approval from higher headquarters, local military commanders and responsible officials of other DOD components are authorized by this Directive, subject to any supplemental direction that may be provided by their DOD Component, to take necessary action to respond to requests of civil authorities. All such necessary action is referred to in the Directive as ‘Immediate Response.’” (3)

The Immediate Response Authority reflects the historical role of the military, particularly the Army, to provide an immediate or emergency response to the civilian community in case of disaster, according to Winthrop who wrote about the 1995 Oklahoma bombing incident (3, pp. 3-4). Probably the most celebrated use of this authority, however, was during the 1906 San Francisco earthquake/fire whose centennial is fast approaching (2006). Two main commanders of that incident—Major General Adolphus W. Greely and General Frederick Funston—moved to take charge of the city with US Army troops. This response was without precedence, as described further below.

General Adolphus W. Greely

General Adolphus W. Greely (1844-1935) was already a legend before he organized the relief response to the San Francisco earthquake catastrophe of 1906. (4) He fought through the Civil War, bore a conspicuous part in the Reconstruction days, built thousands of miles of telegraph lines through the southwest in the 1870s, and became the Army’s expert in this field. He led a scientific expedition to the Arctic where he discovered new lands, reached the farthest north, and carried out climatic and magnetic observations. Abandoned for two years by the relief parties that were sent north, he maintained his organization intact for three years, although it was finally decimated by starvation and unheard of hardships until few survivors remained when relief finally arrived. For those interested, it is one of the most heroic tales of tenacity and privation ever recorded. (5-6)

Greely also reorganized the US Weather Bureau, precursor to the National Weather Service today, and organized the Signal Corps during the Spanish War. He oversaw the Alaska telegraph system and laid the first American-made deep-sea cables. He procured the first automobiles for the army, the first radios, and put into operation the first long distance radio communication ever installed. He left the Signal Corps on promotion to Major General on February 10, 1906 at which time he assumed command of the Pacific Division, US Army, with headquarters in San Francisco.

The Federal Military Response to the 1906 San Francisco Earthquake

On April 18, 1906, Greely was in Chicago en route from San Francisco to Washington, DC, to attend the wedding of his daughter Rose when he received word that a severe earthquake had struck San Francisco at 5:13 a.m. that same morning. He learned that disastrous fires followed the tremors. All telephone and telegraph communications stopped within the city, although some commercial telegraph circuits to New York and to India, via the Pacific cable at the Ocean Beach, remained in temporary operation. He began to make his way back to San Francisco.

General Frederick Funston, in charge during General Greely’s absence, dispatched before 10:00 a.m. on April 18, 1906, approximately 1,700 troops from Forts McDowell and Miley. He wrote in 1906 that “[t]hey were used in various ways, guarding the people, the Sub-Treasury and the Mint, patrolling the streets to prevent looting, maintaining fire-lines, and taking a hand at the hose wherever there was sufficient water pressure to enable the firemen to accomplish anything.

“While not acting under the orders of the officers of the police- and fire-departments, the officers of the troops consulted them and complied with their wishes in every possible way. There was absolutely no friction…Through all this terrible disaster, the conduct of the people had been admirable. There was very little panic and no serious disorder. San Francisco had its class of people, no doubt, who would have taken advantage of any opportunity to plunder the banks and rich jewelry and other stores of the city, but the presence of the square-jawed silent men with magazine rifles, fixed bayonets, and with belts full of cartridges restrained them. There was no necessity for the regular troops to shoot anybody and there is no well-authenticated case of a single person having been killed by regular troops. (7)
Nevertheless, Secretary of War William Taft sent a telegram to Funston on April 21, 1906, as follows:

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T E L E G R A M.

General Funston
San Francisco, Cal.
April 21, 1906.

Word comes to the Associated Press that you and Mayor Schmitz are having some conflict of jurisdiction in respect to police matters. Of course as long as you are assisting him, his orders must control, and you must merely conform to his judgement [sic] so far as police matters are concerned.
With respect to army supplies and government property generally, you should listen to and co-operate with him in their distribution. You are responsible for the distribution of supplies and the sole judge, ultimately.
Please advise me whether the report of the Associated Press has any foundation. It would be much deplored if you and Schmitz could not get along together. I rely on your good sense to avoid conflict and friction, unless the situation is such that it is impossible for you to harmonize matters and in such case you should advise me before taking final action.

Taft,
Secretary of War (8)

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According to one source, “There was cause for the Associated Press report. Captain Frank Nichols of Truck Co. 4 witnessed a heated discussion on Van Ness Avenue over who was in charge during dynamiting operations. It was Nichols’ view that acting Fire Chief Doughtery was in charge. However, Brig.-Gen. John Koster of the National Guard reported the debate between the Army and municipal officials, and between municipal officials themselves, was so bitter that:

‘During the time in which [National Guard] troops were engaged in clearing streets, much opposition to the plan of action was interposed by the chiefs of the Police and Fire departments. I strongly urged upon these officials the advisability of presenting the objections to the Mayor, to enable him to modify or change his orders if such conclusion should be arrived at. The time for the accomplishment of this was ample, but neither of these officials [Fire Chief Engineer Dougherty and Police Chief Dinan] appeared sufficiently interested in my recommendation.

‘When ready to proceed with the work of dynamiting, the wagon containing the explosive had been removed from the position assigned to it by me, and could not again be located. It is presumed that, being a portion of the equipment of the Fire Department, the same was withdrawn by direction of the chief of this department in order to prevent the carrying out of the Mayor's orders. After a lapse of considerable valuable time, during which the conflagration was rapidly approaching the [Van Ness] avenue, a quantity of dynamite was obtained from a quarry in the Mission District and the work proceeded with.’
“It was Col. Morris who broke the deadlock by independently ordering the demolition of Van Ness Avenue.”

Meanwhile, Mayor Schmitz responded immediately to Secretary Taft after hearing of the telegram to Gen. Funston, as follows:

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T E L E G R A M.

Fort Mason, Calif., April 22, 1906.

Supplementing my telegram of yesterday, I wish again even in the midst of our great troubles to express my indignation at the presumably malicious and decidedly untruthful suggestion that a conflict exists between General Funston and myself. I wish to emphasize the pleasantness and harmony of our relations and co-operation.

E.E. Schmitz, Mayor.

2:53 p.m. (8)
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When Greely reached San Francisco, the city lay in ruins. He supposedly walked for miles through the ravaged city and saw the dead lying on the sidewalk, while the injured lay groaning. Hundreds of buildings were destroyed, and tens of thousands of people were homeless. All lines of transportation and communication had been severed. The water system was broken up and smallpox and typhoid fever were present. People could not cook their food even when provided with rations because their chimneys were knocked down. They made cooking fires on the street and lived in little wickiups made of a few boards.

Greely first ordered Funston to send engineers to dynamite all buildings in the path of the flames in order to stop the fires by creating spaces. This entailed blowing up half the standing buildings, which took two days. The fires stopped. Troops were stationed at key points and patrols established with the intent of preventing stealing and to insure safety. “Each person was given a card of identification, which also stated what he was entitled to from the relief stores. Food and clothing sent in from all parts of the country were distributed. Six relief districts were established. Soup kitchens were set up and shelters were provided.” (#4, p. 206)

According to one direct observer, “[s]ome looting of food trucks and wagons was going on, and General Greely ordered that an armed soldier accompany each truck, with instructions to shoot if anything was touched. [The mayor] of San Francisco and a group of prominent citizens who had called on Greely for aid, protested at this saying, ‘You can’t do that. The food belongs to the people of San Francisco.’ ‘No,’ answered General Greely, ‘it belongs to the distressed people of San Francisco and it is my place to say who is distressed.’ One of the men said, ‘Some one will be shot!’ General Greely replied, ‘Gentlemen, when the first man is shot, come to me and I will consider rescinding the order.’ From the moment armed soldiers were put on the trucks, there was no further looting and no casualties.” (#4, p.p. 206-207)

Soldiers directed citizens into huge tent cantonments that the army had set up. The army troops were reinforced by units of the California National Guard and additional companies of regulars. Demobilization occurred gradually as Greely worked consistently to put all the civil authorities back on the job. On April 26, 1906, the California Governor George C. Pardee telegrammed the President requesting “federal forces be continued to assist as has been done since the destruction of city of San Francisco and other local cities by earthquake and fire. The legislature is not in session and cannot be convened forthwith.”  (9)

On April 25, 1906, the acting Secretary of War telegrammed Greely that he “reconsider over again your request of…additional troops. Wire minimum number of troops from outside your division that are absolutely essential to comply with reasonable requests of civil authorities of State and city. In assisting stricken people War Department is agreeable to any reasonable plans and requests of the properly constituted civil authorities, but return to normal conditions should be as rapid as practicable. There is no law for such use of the Army, and it is desired to avoid sending additional troops from elsewhere if possible…” (10)

By July 1, 1906, the Army had relinquished its control over the civil population.
Secretary of War Taft had entrusted the handling of everything in San Francisco to General Greely. “Although martial law had never been declared and the Army acted entirely on the initiative of its own officers, no trouble of any kind grew out of it, no claims for the destruction of property or the detention of individuals,” noted General William Mitchell. “During the Army’s administration, there had been no murders, riots, epidemics or formal criticism, and all deserving persons applying were given food and clothing. It was a remarkable demonstration of the use of a trained and organized force in time of emergency.” (#4, pp. 210-211).

 In summary, the basis for the Immediate Response Authority available to the President of the United States during crises today has its roots in an unprecedented military response to the San Francisco earthquake of 1906, which qualifies in retrospect as a catastrophe as defined in the National Response Plan (2004): “any natural or manmade incident, including terrorism, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions. A catastrophic event could result in sustained national impacts over a prolonged period of time; almost immediately exceeds resources normally available to State, local, tribal, and private-sector authorities in the impacted area; and significantly interrupts governmental operations and emergency services to such an extent that national security could be threatened.” The problems described by eyewitnesses to the 1906 San Francisco earthquake seem eerily similar to the problems bouncing around the media today in relation to Hurricane Katrina.

A recent crisis in which military commanders invoked the Immediate Response Authority was the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma at 9:02 a.m. on April 19, 1995. Commanders at Fort Sill and Tinker Air Force Base in Oklahoma released two med-evac helicopters, rescue teams, and other resources to support civil authorities many hours before President Clinton declared a federal emergency at 4 p.m. that same day.

Sources:

1. Jennifer K. Elsea: “The Use of Federal Troops for Disaster Assistance: Legal Issues.” CRS Report for Congress, September 16, 2005. Available online at: http://fpc.state.gov/documents/organization/53685.pdf. Accessed September 24, 2005.

2. See SEMP Biot #165: “How the 1868 Posse Comitatus Act Influences U.S. Department of Defense Missions” at: http://www.semp.us/biots/biot_165.html. Accessed September 24, 2005.

3. Commander Jim Winthrop: “The Oklahoma City Bombing: Immediate Response Authority and Other Military Assistance to Civil Authority.” In “The Army Lawyer.” July 1997. DA-PAM 27-50-296. Available at: http://www.mipt.org/pdf/okcbombira_maca.pdf. Accessed September 24, 2005.

4. General William Mitchell: “General Greely: The Story of a Great American.” 1936. GP Putnam’s Sons, New York.

5. General David L. Brainard: “The Outpost of the Lost.” 1929. The Bobbs-Merrill Company, Indianapolis.

6. Irving Werstein: “Man Against the Elements: Adolphus W. Greely.” 1960. Archway Paperback. New York.
7. Frederick Funston: “How the Army Worked to Save San Francisco: Personal Narrative of the Acute and Active Commanding Officer of the Troops at the Presidio.”  Cosmopolitan Magazine, July 1906. Available online at: http://www.sfmuseum.org/1906/cosmo.html. Accessed September 24, 2005.
8. See San Francisco Museum website, an excellent source for the San Francisco earthquake of 1906: http://www.sfmuseum.org/1906/conflict.html.
9. See San Francisco Museum website, an excellent source for the San Francisco earthquake of 1906: http://www.sfmuseum.org/1906.2/pardee.html.
10. See San Francisco Museum website, an excellent source for the San Francisco earthquake of 1906: http://www.sfmuseum.org/photos2/telegram3.gif.