Statement for the Record on Federal-State Coordination and the Constitutional Limits of Military Involvement in Domestic Law Enforcement
Written Statement of Admiral Thad W. Allen, USCG (Ret.)
Before the United States Senate Committee on the Judiciary
Mr. Chairman, Ranking Member, Members of the Committee, thank you for the opportunity to submit this Statement for the Record, which I do in my personal capacity as a retired four-star flag officer and a lifelong citizen committed to the foundational principles of our Republic. While I take no position on the specifics of local law enforcement policies, my purpose today is to speak from my expertise as a retired military leader on two related topics. First, the effective collaboration between federal, state, and local entities that was created following the initial failed response to Hurricane Katrina in 2005, where I served as the Principal Federal Official. Second, to comment on the current federal deployment of National Guard forces under Title 10 of the U.S. Code to cities for the espoused purpose of crime control and the strategic and constitutional costs incurred by the U.S. Armed Forces when they are deployed as a tool of law enforcement and are dragged into domestic political disputes.
Hurricane Katrina Response, August-September 2005
Hurricane Katrina came ashore on Monday, 29 August 2005, causing extraordinary devastation along the Gulf Coast. Damage was particularly significant in New Orleans and the surrounding Parishes and on the Mississippi Gulf Coast. The conditions following landfall of the storm have been well documented. The Nation watched through media reports countless cases where trapped individuals were lost and there was a general sense that the response to the storm at the federal, state, and local level was failing. Thousands of people who evacuated first to the Superdome, then to the Convention Center, were trapped or stranded with minimal food or water. A major problem was the lack of central coordination and command and control of the resources responding to the event. This statement focuses on response operations in and around the City of New Orleans. New Orleans had, in effect, lost continuity of operations and had limited capability to direct deployed resources where needed.
Later in the week a U.S. Northern Command Joint Task Force under the command of Lieutenant General (LTG) Russell Honore deployed from Mississippi. The Louisiana National Guard was also deployed by Governor Blanco under Title 32 of the US Code. The Louisiana National Guard was augmented by National Guard forces from other states under mutual aid agreements as a portion of the Louisiana National Guard was deployed to Iraq at the time. During that period LTG Honore worked collaboratively with the Louisiana Adjutant General (TAG), Major General (MG) Bennett Landreneau, to conduct disaster response operations.
On Monday morning, 5 September, one week after the storm made landfall, I was called by Secretary of Homeland Security Michael Chertoff and was directed to deploy to New Orleans to assist the Principal Federal Official (PFO), FEMA Administrator Michael Brown, who was headquartered in Baton Rouge to provide federal coordination for the response in New Orleans. I flew to Baton Rouge via Coast Guard aircraft that evening and the next morning flew by Coast Guard helicopter into the city, landing at a makeshift landing zone near the Convention Center, located adjacent to piers on the Mississippi River. Flying over the city I was astounded at the level of flooding and damage. Most of the city was without power and water and much of it was still underwater. With concurrence of Administrator Brown, I directed FEMA command and control vans be placed on the pier in New Orleans adjacent to the Convention Center next to the USS Iwo Jima that had been deployed to support recovery operations. That "foothold" became the center for planning and coordination with Joint Task Force Katrina, the Louisiana National Guard, FEMA and the Coast Guard. In the next 96 hours the response was stabilized. The City of New Orleans was divided into sectors and then assigned to the deployed JTF components and National Guard in order to support state and local responders who had legal authority to search buildings. Subsequently three sweeps were made through the city to rescue persons remaining and to begin the grim task of recovering remains. On Friday, 9 September, I was called to Baton Rouge by Secretary Chertoff and advised that I would relieve Mike Brown of all PFO duties, including oversight of all federal response and recovery operations in the affected area of the Gulf Coast. Later, I functioned in a similar role after Hurricane Rita made landfall in Southwest Louisiana on 24 September 2005. I carried out PFO responsibilities until my relief in February 2006 by a FEMA Senior Executive.
The key to stabilizing the response in New Orleans was the development of unity of effort between federal, state and local responders, including the support of non-governmental and non-profit organizations. This unity was created by a commonly held understanding of the goal of operations, one focused on the victims and survivors. As I stated several times to the media at the time, our goal was to accelerate the speed of the response and cut red tape. My first guidance issued after my elevation to PFO on 9 September was to treat anyone impacted by the storm as if they were a member of your own family. This construct succeeded because the statutory authority of each party was respected, specifically the state and local leaders in Louisiana and the Louisiana National Guard. I can personally attest to the effectiveness and value of integrated, cooperative operations between the federal, state, and local military, law enforcement, and emergency responders.
As an example, following an agreement that all parties would cooperate in the response, a joint planning cell was located on a pier in New Orleans adjacent to the USS Iwo Jima which was moored in New Orleans to provide federal support. The city was divided into sectors for the purpose of doing house to house sweeps to locate survivors and recover remains of those who perished. These sweeps were done by state and local law enforcement officials who were provided transportation, logistical support, communications, and medical assistance by federal resources from JTF Katrina or the Louisiana National Guard. I termed these operations "coincidental operations" as each component was assigned a sector through integrated, joint planning. As a result, the 82nd Airborne JTF component could be assigned to the central business district to support local law enforcement, while the Louisiana National Guard could conduct similar operations in another agreed-to sector. This construct allowed an immediate "hasty sweep" of the city, followed by secondary and tertiary sweeps to rescue or evacuate any remaining victims and recover remains.
While there was extensive political discourse and associated media coverage regarding responsibility and accountability for what was perceived as a failed initial response, the response was stabilized and was effective once a collaborative structure was implemented based on trust and a shared vision of the desired outcome based on the needs of those impacted. That collaborative approach was validated after the landfall of Hurricane Rita on 25 September near the Texas-Louisiana border. The ability to deploy elements of JTF Katrina to Lake Charles, Louisiana under the operating concepts validated in New Orleans significantly improved the response to Hurricane Rita.
Throughout these response operations I was guided by the 10th Amendment to the Constitution. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Finally, I maintained continual, extensive contact with Secretary Chertoff and President Bush and their staffs. Similarly, I had extensive discussions with Governor Kathleen Blanco, Mayor Ray Nagin, and the surrounding Parish leaders throughout the operation.
Two key enablers allowed me to reorganize and manage the response. First, I was allowed to speak directly to the media and public by the President. Second, while I had no specific legal authority to order or direct operations, I was empowered to represent the President and the administration... I had a "bully pulpit."
Some five years later I was again asked by President Obama to lead the response to the Deepwater Horizon oil spill. In that instance, the event occurred outside state jurisdiction and it was clearly a federally directed response under law. Nonetheless, the concept of unity of effort and a shared, cohesive vision was needed to mount an effective response.
Federal Deployment of the National Guard Under Title 10
The profound lessons of my lifelong service, including leading the responses to Hurricane Katrina and the Deepwater Horizon oil spill, have clearly demonstrated the need to create unity of effort in any complex response regardless of the threat. Unity of effort is a concept that goes beyond the traditional concept of military hierarchical unity of command. The latter is rarely solely the single answer to a complex problem, whether it be a natural disaster, manmade disaster, civil disturbance, or any challenge short of warfare or insurrection. Unity of effort requires coordination among federal and state authorities and agreement on the priorities and divisions of responsibilities. When state and local authorities believe they have the capacity to respond to a given situation without federal assistance, including to respond to demonstrations and restore civil order, achieving the unity of effort required to effectively deploy federalized National Guard units is not possible. Their use under such circumstances is likely to be ineffective and inadvisable.
A profound threat to our system and the future success of our military and our democracy as a whole is the breakdown of the established, constitutional boundaries between military and civilian authority.
The recent Title 10 deployments risk the erosion of the essential boundaries between military and civilian authorities. Specifically, this erosion threatens the integrity of the Posse Comitatus Act as a bedrock of American federalism and civil-military relations. This prohibition is no formality; it reflects the American tradition of strictly keeping the military out of domestic law enforcement. In addition to this erosion of the PCA, deploying federal forces over the objections of elected governors and mayors undermines the delicate balance of power in our federal system and risks further politicizing the military by drawing into politically controversial domestic matters best dealt with by civil authorities. The public's trust in its armed services is a sacred and fragile bond, and once lost, it is difficult to regain.
The failure to adhere to these foundational guardrails and principles is now a matter of judicial record. The deployment of the National Guard in Los Angeles was found to violate the PCA in federal court. Such legal transgressions jeopardize the essential apolitical nature of the force, violating the fundamental principle that the military must be "insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates" (Greer v. Spock.) A brief that I and other amici curiae filed in that case highlighted how military forces, who are not trained for civilian policing, engaged in activities such as: "arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities."
The risks created by these deployments translate directly into tangible harms that undermine the cohesion and capability of the force, posing serious risks to both servicemembers and civilians.
First, military personnel are neither intended nor specifically trained for the complexities of domestic law enforcement, lacking the essential instruction in respecting civilian Fourth and Fifth Amendment rights. This is a grave vulnerability, compounded by the high-risk authorization for deployed Guard members to carry weapons of war while on civilian streets, which is fundamentally unsuited to peacetime duties. The potential for tragedy is not speculative; a communication failure during the 1992 Los Angeles riots reportedly led to Marines firing over 200 rounds into a civilian's house, a clear example of the potentially deadly consequences of such deployments.
Second, the political nature of these missions creates immediate strategic degradation. Reports from the ground indicate troops are experiencing fatigue, confusion, and demoralization due to an unclear mission. We have seen this manifest in arguably trivial assignments, with troops reportedly relegated to gardening duties and being nicknamed the "National Guardeners," activities that debase their service and harm morale. This, in turn, risks exacerbating recruitment and retention challenges. A Guard recruiter reportedly stated that this mission "has deterred potential recruits and pushed already disillusioned soldiers to their breaking points."
Third, these domestic assignments threaten their core national security and disaster relief missions by improperly diverting vital personnel from their customary training, readiness and state emergency response responsibilities. For instance, a failure to adhere to legal guidelines resulted in the diversion of specialized Guard crews in California during peak wildfire season, directly degrading state-level emergency preparedness. In addition, the diversion of Guard units from states across the country during hurricane season risks degrading their home states’ emergency preparedness. The continuous erosion of readiness and morale is an unacceptable cost to our nation’s security.
The integrity of our democratic institutions and the apolitical stature of our military are not negotiable; they are the true strength of our national security. However, this strength is jeopardized if we abandon the constitutional principles that govern civil-military relations for short-term expediency. I urge this Committee to exercise its full oversight authority to ensure strict adherence to the PCA and the foundational laws governing the use of our armed forces. The armed forces must never be used for purposes that compromise the principles they are tasked to defend.
