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After the water recedes and New Orleans begins to rebuild, the lessons of Hurricane Katrina and its aftermath will come into focus. How the government reacts to predictable natural disasters-let alone unpredictable acts of terror-will be the subject of reports, studies and congressional hearings. Curiously, it is a little-known law more than 50 years old-the Defense Production Act (DPA)-that may mitigate and manage Katrina’s damage. It is this very law that should inform the nation’s response to future disasters, natural or manmade, accidental or deliberate. When President Harry S. Truman signed the Defense Production Act of 1950, the principal threat to our security was Joseph Stalin, not Osama bin Laden. The growing Soviet menace and commensurate military buildup necessitated the DPA, which gave the president unprecedented authority to ensure that the nation had adequate military capacity. Under its authority, the president could, among other things, reallocate scarce resources and grant priority contracting to government defense projects. These powers remain in force to this day. Unlike other presidential powers that are dormant until triggered by an emergency declaration, the president retains DPA powers in the absence of such a declaration, making the law as potent in peacetime as it is in war. The president must only make a finding that the application of DPA authority is necessary to promote the “national defense.” So long as a nexus with “national defense” can be established, the president may exercise his DPA powers. Providing critical authority Even though the Iron Curtain has fallen, many national security experts believe that the DPA provides critical authority to confront terrorism and other threats to national security. For these and other reasons, Congress continues to reauthorize the law, most recently with the Defense Production Act Reauthorization of 2003, Pub. L. No. 108-195. The DPA is next due to expire on Sept. 30, 2008. DPA authority has been used since the terrorist attacks of Sept. 11, 2001. In one instance, as a result of the DPA’s priority-contracting provisions, the government accelerated a contractor’s production schedule for a military sensor system, thereby guaranteeing that Predator aerial drones with the latest targeting technology could be deployed to Afghanistan in a timely manner. Given the devastation from Katrina, could the president use his DPA authority to help resurrect critical infrastructures in the area, such as power systems, water supplies and transportation networks? And if so, does critical infrastructure protection and restoration qualify as a “national defense” purpose? The answers clearly are yes. When Congress reauthorized the DPA in 2003, it made several amendments to the act, one of which was the inclusion of “critical infrastructure” as a defined term in the statute. The revised DPA defines “critical infrastructure” as “systems and assets . . . so vital to the United States that the degradation or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited to, national economic security and national public health or safety.” This reflected a post-Sept. 11 belief that functioning critical infrastructures are necessary not only for military readiness but also for the nation’s health, welfare and economic vitality. The complete loss of critical infrastructures serving New Orleans and the Gulf Coast certainly represents the type of “debilitating impact” that the definition contemplates. ‘National defense’ Yet, unless critical infrastructure protection and restoration can be linked to “national defense,” the president lacks DPA authority. To eliminate ambiguity, Congress amended the definition of “national defense” to include “critical infrastructure protection and restoration.” This ensured that stable and functional critical infrastructures are not merely an implicit national defense purpose, but an explicitly authorized use of the president’s DPA power. More importantly, the underlying cause of the critical infrastructure disruption is irrelevant-making flood recovery as good a reason as any to use the DPA in the rebuilding process. It does not matter whether a hurricane or a jetliner slammed into the levees: The DPA permits the president to mobilize resources “necessary or appropriate to promote the national defense.” Indeed, this presidential power exists for the rare occasion when the market is unable or unwilling to marshal and allocate scarce resources itself. For example, when natural gas suppliers terminated sales to the beleaguered Pacific Gas & Electric Co. in January 2001- threatening to exacerbate California’s energy crisis-President Bill Clinton used his DPA authority to compel the suppliers to continue delivery. However, the acute emergency created by Katrina is far more serious than an energy crunch, making the application of the DPA in this instance not only necessary but also pragmatic. Furthermore, using the DPA during this tragedy will ensure that future presidents have the precedent to respond to yet unknown events. Now is the time to use the full reach of the DPA to help restore the devastated Gulf Coast. For New Orleans in particular, the president should use this authority to marshal scarce resources and prioritize critical infrastructure repair contracts that the government will undertake, even if other projects have to wait. The speed at which the federal government helps bring New Orleans and the Gulf back to life must be better than the speed at which help arrived in the first place. Steven Roberts, an NLJ columnist, is a homeland security consultant.

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