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	Emergency Planning, or Planning an Emergency? By Declan McCullagh and Solveig Singleton February 1, 1999 Jack Straw is looking forward to January 1, 2000 with the type of anticipation reserved for an unusally bloody root canal. As the world toasts the new year, Straw will be preparing for the worst. "As we all must recognise, disasters can strike suddenly, unexpectedly and anywhere," he recently wrote. The disaster? An outbreak of drunken revelry? Distressing shortages of champagne, perhaps? Nope. He's talking about the famous Year 2000 computer bug, or Y2K. As the UK home secretary, Straw is in charge of organizing his government's response to Y2K. His plan: To call out troops to quell disturbances that could be caused by disruptions in electricial power generation and government services. He won't be allowed to leave town. "Jack Straw has been told that, as Home Secretary, he must stay in London during next year's millennium celebrations in case of a serious breakdown in public order or a national emergency," the London Sunday Times said on December 28. The Brits aren't alone in ginning up an aggressive response to Y2K. The Ottawa Citizen in December reported the Canadian government is considering martial law in response to Y2K disruptions. Previously secret government documents the Citizen obtained say: "Among the activities that must be done to meet the problems resulting from Y2000 failures is development of relevant emergency orders and regulations required for the invocation of emergency provisions under the Emergencies Act." In the US, Republican senator Robert Bennett has asked the Pentagon what plans it has "in the event of a Y2K-induced breakdown of community services that might call for martial law," and a House subcommittee has recommended that President Clinton consider declaring a Y2K "national emergency." For the first time since the end of the cold war, a Cabinet task force is concocting emergency disaster responses. "Planning for the war games, tentatively scheduled for June, is in its early stages, so officials can't say which Cabinet secretaries will take part, how long the exercises will last or what mock disaster scenarios the leaders will be wrestling with," is how Scripps Howard News Service described this Y2K exercise. Participating Cabinet departments include Defense, Justice, Energy, Health and Human Services, Transportation, and the Federal Emergency Management Agency. FEMA is in charge of the federal Y2K emergency reaction. The agency chairs the emergency services sector working group of the president's Y2K council. By January 15 1999, FEMA will have updated the Federal Response Plan to take into account Y2K disruptions in services such as electricity or water. FEMA has scheduled regional Y2K training exercises for spring 1999, and will have joint military-civilian forces on alert by late December 1999. It's a fair bet that mounting Y2K jitters won't slow plans to provide domestic governmental and pseudo-governmental functions with the military. Law enforcement functions top the list, but communications and food distribution are also likely candidates. Canada's plan includes stationing destroyers in port to offer generating power, and the US in the past has used the military to deliver aid after hurricanes and other natural disasters. When machinery fails it can be replaced by manpower, and the active military is a logical source of workers trained to operate under harsh conditions. In a worst-case scenario of looting and civil unrest, the involvement of the military in some urban areas could extend to martial law, military law, military courts, the suspension of rights of due process and habeaus corpus, and seizures of industrial or personal property. True, this possibility is unlikely -- even highly unlikely. But based on public statements and documents released so far, we know it's something the federal government is considering. Officials may respond to pressure either because they believe the crisis is genuine -- or because they think the appearance of activity on their part is necessary to head off panic. Much will depend on the perception of the probability of power outages and infrastructure failures. Sen. Bennett says he's far more optimistic than he was half a year ago. But the process of planning for and anticipating these events can create pernicious mischief by itself. Once a plan and the resources to carry it out are in place, an evil temptation to take action will arise. In times of doubt, officials will err on the side of "order" over "anarchy." What's clear already is that politicians are doing their level best to prevent panic. "Even if the Y2K problem is solved, the panic side of it can end up hurting us as badly," Sen. Robert Bennett, the Utah Republican who heads the Senate's Year 2000 committee, said in December. It's hardly a surprise that Janet Abrams, director of the White House Y2K council, said on December 23 that "one of our priorities for the coming year is the prevention of public overreaction to the Y2K problem." As awareness of Y2K increases, officials will face increasing pressure to take more aggressive steps. At a December Y2K conference in Washington DC, a National Guard colonel predicted the governor in his state would be forced to call out the troops because of a public outcry. Reports of shortages caused by stockpiling are likely to fuel concerns. In the bulk food niche market that has been hard-hit by Y2Kers, shipping delays are already stretching to over six months. "People's patience is much thinner now than it was four months ago. They're tougher. They're less likely to give us a few more weeks. All in all, I don't have a real pleasant experience with people yelling at me when I come to work in the morning," said Steve Portela, manager of Walton Feed, a bulk food supplier in Idaho that employs 150 people. A USA Today/National Science Foundation poll recently found 26 percent of Americans say they intend to stockpile food and water. Demand for generators has also spiked. Loren Day, president of China Diesel Imports, spends a good portion of each day puzzling out how to crank out more and more generators to meet a swell of Y2K orders. Shipments of his company's most popular 8,000-watt model are already running six months behind. "Orders are up about 1,000 percent since the first of the year," Day said in November. "And the amount of people who will want a generator now is nothing compared to the amount of people who will want a generator later." The desire of officials to plan for military involvement to calm Y2K jitters is, at one level, natural and benign. And, of course, if power fails and cities erupt in chaos, a National Guard presence may well be the lesser of two evils. (It should go without saying that restrictions on gun ownership are hardly likely to made law-abiding citizens safer.) But some motives for military involvement would not be as innocuous. With the end of the cold war, it would have made sense for the US military to shrink. Retired Army chief of staff Edward Meyer admitted to a Washington Post reporter in 1989 that "the end of the cold war makes it inevitable that the Army will shrink far below the 772,000 on duty today." It didn't. Supporters of an expansive US military have spent the last decade finding something for it to do. In the 1980s, Congress amended the Posse Comitatus Act of 1878 -- which restricts use of troops to enforce civilian laws -- to let the President enlist the military in the war on drugs. President Reagan in 1986 signed a National Security Decision Directive declaring drug trafficking a threat to the security of the United States. The framers of the US Constitution opposed standing armies in general, and especially their use for purposes other than defending the country against foreign enemies. It was the arrest of civilians by the British army, quartering of soldiers in private homes, and similarly incendiary tactics that provided the tinder that sparked the American Revolution. Less than a century later, President Lincoln usurped constitutional authority in well-chronicled ways. His justification: The inherent power of the commander-in-chief and his duty to "take Care that the Laws be faithfully Executed." During the Civil War and Reconstruction, the arrest and trial of civilians by military and civilian courts -- and the impotence of civilian courts when the military refused to respect orders of habeus corpus -- led to the passage of the Posse Comitatus Act. Since that time, understanding of the dangers of deploying the military in the domestic arena has diminished. DEA administrator Francis Mullen once casually dismissed civil libertarians' concerns about potential abuses if the military joined law enforcement. "There is sufficient oversight on the part of Congress and others," he told a Newsweek reporter, "to deter infringement on individual liberties." A Democratic Congressman characterized the Posse Comitatus Act as a "sinful, evil law." Military leaders appear more aware of the danger of deploying forces domestically. Marine Major General Stephen G. Olmstead, deputy assistant secretary of defense for drug policy, warned a Senate subcommittee in 1987 that calling out the military to fight the drug war within the U.S. would be unwise. "One of [America's] greatest strengths is that the military is responsive to civilian authority and that we do not allow the Army, Navy, and the Marines and the Air Force to be a police force. History is replete with countries that allowed that to happen. Disaster is the result." Use of military procedure by FBI agents proved a disaster at Ruby Ridge. Vicky Weaver was murdered in part because the officers who shot her were governed by military rules of engagement. They allow troops to shoot an enemy on sight -- a far cry from the rules controlling domestic law enforcement. At Ruby Ridge the rules of engagement let officers fire at any armed adult, rather than engage in usual threat assessment. Even though using the military to perform civilian functions is extraordinarily dangerous, the Posse Comitatus Act has gradually been eroded. The Stafford Act of 1984 allows the military to help during natural disasters. After a natural disaster, a governor can ask the president to declare a state of emergency. Once the emergency has been declared, soldiers on active duty can be deployed as directed by FEMA. In August of 1992, the Army was deployed in South Florida to respond to Hurricane Andrew, and a month later on the island of Kaui after Hurricane Iniki. Since the Posse Comitatus Act remained in effect during this time, soldiers could not enforce the law, arrest or detain civilians, serve search warrants or any other form of process. In South Florida the soldiers doled out aid to citizens and illegal immigrants alike, without questions. Active-duty soldiers were not permitted to provide security at relief centers occupied by civilians. When it comes to the use of troops to restore order during riots, however, the president can suspend the Posse Comitatus Act at the stroke of a pen. The act doesn't cover soldiers deployed as authorized by the Constitution or exempted from the Act by statute. Defense Department regulations (DoD Directive 3025.12) outline one of the larger loopholes. It allows soliders to be used "to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal governmental functions." The reality? The president can deploy troops whenever he feels like it. President Bush did just this in response to the the Los Angeles riots. On April 29, 1992, the jury released its verdict in the Rodney King trial. A wave of riots followed. On May 1, 1992, California asked the president for aid; Bush responded with an Executive Order allowing the Secretary of Defense to call out the Army. Most probably, Y2K will disrupt our lives only for a few days or weeks -- so is the temporary use of the military to help out worth agonizing over? As with military intervention during a hurricane or riot, most citizens will expect the soldiers to be off the streets sooner rather than later. There may be little objection from civil libertarians shivering in the dark if the troops are called out. Fortunately, the military itself has a powerful traditional of respect for the Posse Comitatus Act. When called into duty in the Los Angeles riots, the commander of the military forces refused to allow troops to be used for law enforcement functions like transporting prisoners, even though the Posse Comitatus Act had been suspended. (Either he didn't understand the restrictions were lifted or he preferred to respect the tradition anyway.) But unlike a hurricane or a riot, Y2K will hit everywhere at the same time. Its impact on machines, the economy, and mass psychology, whether trivial or massive, is extraordinarily difficult to anticipate. Y2K might be more like the Civil War than a tornado, leading to a more prolonged and widespread military presence. One thing to keep in mind is that many "emergencies" declared by Presidential order in past years have become permanent. In the 1970s, Congress learned to its dismay that emergencies including Presidents Roosevelt's 1933 banking emergency were still in effect. "The President has the power to seize property, organize and control the means of production, seize commodities, assign military forces abroad, call reserve forces amounting to 2 1/2 million men to duty, institute martial law, seize and control all menas of transportation, regulate all private enterprise, restrict travel, and in a plethora of particular ways, control the lives of all Americans," senators Frank Church (D-ID) and Charles McMathias (R-MD) said in a joint statement on September 30, 1973. They listed the sheer number of lingering emergencies and noted that "recent history records Hitler seizing control through the use of the emergency powers provisions contained in the laws of the Weimar Republic." In response, the legislature drafted laws to narrow the president's authority in non-wartime situations. Yet three successive Supreme Court rulings eviscerated the International Emergency Economic Powers Act, handing the President nearly unbridled discretion. A perpetual -- and infamous -- state of emergency enables the president to restrict the export of strong encryption technology. Part of the problem when writing about the government's Y2K plans is the murkiness of the information that's been made public so far. Will the federal reaction follow recent disaster-response precedents, or will it include martial law? One thing that is clear, though, is that these discussions are taking place behind closed doors in groups like the emergency services sector working group and the Cabinet's Y2K "war games" plans. And that -- not the Y2K problem itself -- is what we might want to join Jack Straw in worrying about. This article also appeared in the March 1999 issue of Liberty Magazine.		FEATURES Book Reviews Y2K already has spawned its own genre. We tell you what books are worth buying. 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