FEDERAL RESPONSE TO A 

DOMESTIC NUCLEAR ATTACK

by

James C. Mercer

The Counterproliferation Papers

Future Warfare Series No. 46

USAF Counterproliferation Center

Air University

Maxwell Air Force Base, Alabama

Federal Response to a Domestic Nuclear Attack

James C. Mercer

August 2009

The Counterproliferation Papers Series was established by the USAF 

Counterproliferation Center to provide information and analysis to assist 

the understanding of the U.S. national security policy-makers and USAF 

officers to help them better prepare to counter the threat from weapons of 

mass destruction. Copies of No. 46 and previous papers in this series are 

available from the USAF Counterproliferation Center, 325 Chennault 

Circle, Maxwell AFB AL 36112-6427. The fax number is (334) 953-7530; 

phone (334) 953-7538.

Counterproliferation Paper No. 46

USAF Counterproliferation Center

Air University

Maxwell Air Force Base, Alabama 36112-6427

The Internet address for the USAF Counterproliferation Center is:

http://cpc.au.af.mil

Contents

Page

Disclaimer................................................................................................... ii

About the Author....................................................................................... iii

Introduction..................................................................................................1

It Happens....................................................................................................2

What Needs to be Done ...............................................................................6

What is the Authority Used to Respond? ..................................................12

Recommendations......................................................................................23

Conclusions................................................................................................25

Notes..........................................................................................................27
ii

Disclaimer

The views expressed in this publication are those of the author and do 

not reflect the official policy or position of the U.S. Government, 

Department of Defense, or the USAF Counterproliferation Center.
iii

The Author

Lieutenant Colonel J. Calvin Mercer is an Air War College student 

at Maxwell, Air Force Base, Alabama. Previously he was the commander 

of the 1st Airlift Squadron, Andrews AFB, where he was responsible for a 

142-member unit with selectively manned aircrews directly supporting the 

President, First Lady, Vice President, Secretary of State, Secretary of 

Defense, members of Congress, CJCS, Combatant Commanders and 

foreign dignitaries. The squadron conducts global missions outside DOD 

command and control channels on HQ USAF directed Special Air 

Missions using specially configured C-32A and C-40B aircraft. After he 

graduated from undergraduate Pilot Training at Columbus AFB, he was 

assigned to Charleston Air Force Base, South Carolina to fly the Lockheed 

C-141B Starlifter. As part of the C-141 program move, he transferred to 

McGuire Air Force Base as the Special Operations Low Level II (SOLL 

II) evaluator aircraft commander initial cadre. Lt Col Mercer next became 

a member of the Checkmate Division on the Air Staff at the Pentagon. As 

a member of Checkmate, he was temporarily assigned to Macdill Air 

Force Base to augment the U.S. Central Command Staff during the early 

phases of OPERATION ENDURING FREEDOM. He also deployed with 

this headquarters staff prior to the start of OPERATION IRAQI 

FREEDOM to draft the daily Commander’s Guidance. Following 

graduation from the Air Force Institute of Technology, Lt Col Mercer 

became the Operations Officer of a C-21A Learjet squadron at Scott Air 

Force Base, Illinois, tasked with responsibility for three geographically 

separated flying units.

Federal Response to a Domestic Nuclear Attack

James C. Mercer

Introduction

The risk of a nuclear weapon being used today is growing, 

not receding.

—Senator Sam Nunn

The United States government needs to plan for and prepare against 

terrorist attacks. Terrorism, when combined with weapons of mass 

destruction, increases the planning complexity. In the event of a nuclear 

terrorist attack, the government will need to conduct consequence 

management in the affected areas, govern the non-affected areas, and 

prevent future attacks. This paper examines what actions, following a 

nuclear terrorist attack on domestic soil, produce the broadest and deepest 

results and what options the President has to address such a national 

emergency. The federal government must address the national effects 

caused by the attack itself as well as the anticipated results caused by 

communities enacting protective measures at the detriment of their 

neighbors. To produce the list of coordinated actions and options, this 

paper uses a scenario where a terrorist loads a 10-kiloton (kt) weapon into 

a truck, drives it to the nation’s capital, and detonates it. After detonation, 

the government must attempt to mitigate the weapon’s real and perceived 

effects. A review of the mitigating responses reveals that some actions are 

nearly impossible without prior planning and coordination. Additionally, 

the government must operate within a framework of constitutionally 

granted authorities. Continuity of government is assumed sufficient to 

exercise command and control and is beyond the scope of this paper. It is 

also beyond the scope of this paper to present more than a cursory 

overview of preventing a subsequent attack. 
2. . . Federal Response to a Domestic Nuclear Attack

This paper reviews the physical characteristics of a nuclear detonation 

using a 10-kt weapon as the baseline for distances and time effects. These 

effects and the ensuing chain of events produce probable governmental 

mitigating actions. To state the obvious, prior planning greatly enhances the 

outcome of some of these actions. However, prior planning cannot 

completely mitigate the overwhelming calamity of a nuclear attack. Drastic 

measures will be required. There are explicit and implicit constitutional 

authorities available to the President. Throughout the country’s history, 

Congress has used its constitutional authority to delegate additional power 

to the President during periods of duress. This paper reviews four Supreme 

Court martial law cases used to distill guiding principles.

It Happens

Nuclear terrorism is still often treated as science fiction—I 

wish it were. But unfortunately we live in a world of excess 

hazardous materials and abundant technological knowhow, in which some terrorists clearly state their intention to 

inflict catastrophic casualties.

— Kofi Annan1

The most difficult aspect of developing and producing a nuclear 

device is the refinement of the required fissile material. Most experts 

postulate only state actors possess the required centrifuge capability to 

produce highly enriched uranium (HEU) or plutonium. The number of 

countries with nuclear programs has grown over the last 50 years. Because 

of the growth of both the acknowledged and clandestine programs, the 

nuclear community does not know the exact promulgation of the requisite 

resources and technology. Additionally, some nuclear states may not have 

nuclear security procedures sufficient to prevent nefarious individuals 

from stealing fissile material or nuclear weapons. This means one cannot

completely discount a determined group gaining access to a nuclear device 

or the material and knowledge to build one. Whether acquired as a gift 

from a rogue nation or stolen, the result would be a nuclear device in the 

hands of terrorists. Regardless of the method of obtaining a device, ground 
Federal Response to a Domestic Nuclear Attack . . .3

or sea transportation to the detonation location is almost certainly the 

likely delivery method. Dr. William Perry postulates it is more likely a 

nuclear device will arrive in Washington, D.C. or New York City via a

truck or freighter than a missile.2

In our scenario, terrorists deliver a hypothetical 10-kt nuclear device by 

ground transportation and detonate it in Washington, D.C. Ground delivery 

eliminates the technical challenges of aerial delivery and detonation. With 

an aerial delivery, the user may attempt to optimize the detonation altitude 

for a desired effect. This ―ground burst‖ would differ from the ―air burst‖ of 

those used over Japan during World War II. Aerial detonations cause 

approximately twice the blast and flash radiation effects, while a ground 

detonation produces more radioactive fallout.3In general, aerial detonations 

produce more immediate effects and ground detonations more delayed 

effects. In order to appreciate the government’s actions to mitigate the 

effects, one must first understand what happens during a nuclear detonation.

Immediate and Delayed Effects on the Local Area

Nuclear weapons cause immediate and delayed effects upon 

detonation. The immediate effects are tremendous, and they are almost 

impossible to overcome after detonation has occurred. In contrast, postdetonation actions can mitigate some of the delayed effects (i.e., 

evacuation out of the radioactive plume area). However, without thorough 

planning and rehearsal, the ensuing confusion of a detonation will severely 

limit any successful mitigating actions. Prior to determining what should 

be done, one must understand what occurs during a nuclear detonation.

Blast effects, thermal fireball, and flash radiation are the immediate 

effects of a nuclear detonation. Barotraumas are the primary blast effect. 

Barotraumas are the overpressurization and underpressurization affecting 

air-filled bodily cavities. Eardrums are ruptured at 5 psi, lungs are injured 

at 15 psi, and effects are fatal at 50 psi. Penetrating objects and trajectory 

fragments cause secondary blast effects. Collapsing infrastructure and 

traumas sustained by windblast are tertiary effects. The damage of the 

blast wave dissipates exponentially with the distance from the detonation. 

As the outward energy dissipates, an underpressurization occurs and winds 

blow inward toward the blast.4
4. . . Federal Response to a Domestic Nuclear Attack

The resulting fireball will produce thermal and burn injuries. The 

fireball has both immediate and delayed effects. The fireball immediately 

vaporizes everything inside it with temperature exceeding 10M degrees 

Celsius. The fireball, carrying upward the vaporized items including soil 

and water, creates the mushroom cloud.5The thermal energy of the fireball 

causes secondary fires, with the spread controlled by the conditions of the 

construction, geography, and meteorological conditions.6 Blindness would 

also result. Individuals not looking directly at the blast will experience 

temporary blindness lasting as little as a few seconds. Blast size, proximity, 

and meteorological conditions will affect the severity of the blindness. 

Retinal scarring will occur for those directly viewing the blast. The location 

of the retina scarring directly affects the severity of the permanent disability.7

Radiation fallout from the detonation has decaying effects with both 

immediate and delayed impact. In addition to the residual radiation, flash 

or prompt radiation will cause immediate injury and fatalities. Distance, 

time, and shielding govern the effects of fallout. Exposure to fallout is 

most dangerous in the first few hours and decays rapidly with time. 

Example, for our hypothetical 10-kt detonation, after 3 hours the risk to 

radiation is reduced to 20% of the initial exposure levels. After 8 hours it’s 

reduced to 10%, and at 48 hours it’s down to 1%.8The basic instruction 

for most of the population around a nuclear detonation is to shelter and 

shield in place for three days. Unshielded on an open highway without the 

freedom of movement is a very dangerous place for individuals.

Figure 1: Approximate Effects of a Nuclear Weapon Based on Energy Dispersed9
Federal Response to a Domestic Nuclear Attack . . .5

The above graph depicts one method of approximating the effects of a 

nuclear weapon based on energy dispersed. The blast wave produces 50% 

of the device’s energy compared to only the 5% dispersed by the initial 

radiation. Dispersed energy does not correlate to the effects’ range 

measured in distance from the epicenter. For our hypothetical 10-kt device, 

a 50% mortality rate extends 0.4 miles from the epicenter for blast effects, 

1.1 miles for the fireball, and 0.8 miles for the initial radiation. The residual 

radiation of 400 rads10 could extend up to 6 miles downwind.11

Hypothetical Cases

This paper briefly reviews two hypothetical case studies to illustrate 

the magnitude of a nuclear incident. The first case study, conducted by the 

Homeland Security Council, uses a 10-kt ground detonation device near 

the White House. Based on prevailing wind direction and speed, the study 

estimated over 150,000 severe injuries with a possible 70% mortality rate. 

The injured would include severe burns, lacerations and punctures caused 

by high-speed projectiles, and radiation illness all requiring sophisticated 

equipment and medical procedures. Over 100,000 individuals would 

require decontamination by current standards, overwhelming the regional 

capabilities. It is predicted over 500,000 individuals would attempt to 

evacuate, effectively closing both egress and ingress routes.12 The blast 

would damage or destroy bridges and tunnels further restricting 

transportation options.

The second case study completed by the RAND Corporation looks at 

the predicted effects on the port of Long Beach, California. In this 

scenario, a 10-kt nuclear device is offloaded from a ship onto the dock in a 

modular container and then detonated. The results are similar to the 

Washington case study. Over 60,000 fatalities would occur in 72 hours. 

Over 150,000 individuals would require decontamination. It is predicted 

that over 6-million would attempt to evacuate. And 2 to 3 million might 

need to be relocated due to the fallout. The coastal location produces an 

egress barrier for most of the inhabitants. In both these cases, it is assumed 

first responders will subject themselves to large doses of radiation and 

become victims themselves. The most critical lifesaving response may be 

not administering medical care to those injured by the blast. Instead, the 

most effective method of lifesaving may be to address the choice between 
6. . . Federal Response to a Domestic Nuclear Attack

evacuation and shelter-in-place.13 It is beyond the scope of this paper to 

address the long-term effects or the recovery of the destroyed city.

What Needs to be Done

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.

—Tenth Amendment, United States Constitution

Our government and our Federal Response Framework expect first 

responders to be from the local community. Local and state governments 

have the authority and responsibility to respond and control the situation in 

the affected area. Current plans and statutes call for the federal government 

to support these local and state governments during emergencies.

In response to the terrorist attacks on September 11, 2001, the federal 

government undertook the most massive organizational realignment in the 

country’s history. This organizational realignment consolidated and 

attempted to streamline the activities, authorities, and responsibilities of a 

variety of government agencies. The Department of Homeland Security 

(DHS) was created to achieve synergy amongst the federal governmental 

organizations for the security of the country’s homeland. Additionally, 

Congress and the President charged DHS with updating and consolidating 

the numerous federal emergency plans into a single, integrated, and 

coordinated national response plan.14 This consolidated response plan, call 

the National Response Plan (NRP), was produced and released in 2003. 

Perceived problems with the implementation of the NRP during Hurricane 

Katrina led Congress to enact the Post-Katrina Emergency Management 

Relief Act of 2006. This Act directs DHS to issue a restructured plan 

incorporating the numerous lessons learned. This new plan is the National 

Response Framework (NRF).15

The NRF is the cornerstone document for the national homeland 

security strategy. It provides the doctrine and the guiding principles for the 

unified response for all levels of government and communities for all 
Federal Response to a Domestic Nuclear Attack . . .7

types of emergencies and hazards. The NRF includes the roles and 

responsibilities for all actors for all phases of emergency response. 

However, it is heavily geared towards response and short-term recovery. 

The 80-page NRF document attempts to establish a national framework 

promoting user discretion and flexibility. It uses eight incident annexes to 

guide the planning for specific contingencies or hazardous situations. It 

was designed to streamline and improved the 400-page overly 

bureaucratic and complicated NRP document.16 Beyond the NRP’s 

confusing style and format, a major critique was that it was not an 

operational plan. The President, in order to overcome the lack of 

comprehensive operational plans, issued Homeland Security Presidential 

Directive-8 (HSPD-8) in 2003, directing the DHS to establish the federal 

standardized planning process. In conjunction with the release of the NRF 

in order to satisfy HSPD-8 dictates, DHS created the Federal Partner 

Response Guide and the Integrated Planning System. The partners guide 

provides key roles and actions for actors at the federal, state, and local 

levels of government in addition to nongovernmental and privateorganization partners. The planning system details the collaborative process 

between the tiers of government for the various incident scenarios. 

However, these guides have not been completed or released.17

It is difficult to determine the national level of response capability to 

a nuclear terrorist attack scenario since some of the planning guidance is 

still being developed. However, the NRF’s nuclear/radiological incident 

annex describes the response concept of operations to an attack. The annex 

commences by stating the incident will be handled by the lowest 

governmental level possible. However, it spends the majority of the 

remainder of the annex describing the federal government’s role in the 

response and recovery, mostly because the majority of the technical 

expertise resides in the Department of Energy. It also states the Secretary 

of Homeland Security is the principal agent for coordinating the federal 

response. The Secretary’s role as the principal federal agent is common 

across the incident annex for the eight scenarios.18 Thus, the NRF seems 

self-contradicting in that the lowest level will control the incident with a 

Cabinet level member as the principal agent. Yet, this hierarchical design 

is the baseline for our current response system.

Some experts have looked to lessons learned from Hurricane Katrina 

and suggested this hierarchical style response system may not support a 
8. . . Federal Response to a Domestic Nuclear Attack

nuclear detonation scenario. Some have submitted that local and state 

governments will be overwhelmed with the magnitude of the calamity.19

The former director of operations for United States Northern 

Command at the time of Hurricane Katrina argues some have incorrectly 

interrupted the lessons learned. In the affected coastal states, different 

areas dealt with the disaster conditions in different ways to different 

measured outcomes. He describes the local and state responders in 

Alabama and Mississippi having the ability to conduct adequate initial 

response actions, which led to successful outcomes. Because of their 

cooperative local and state government relationships, especially in the 

emergency coordinator offices, each tier of government called for and 

incorporated higher tier government assistance. His top three lessons 

learned from Hurricane Katrina are 1) local responders are critical to the 

initial response20 2) the relationship between the local and state emergency 

response and coordination staffs is critical to success 3) an inclusive list of 

critical and essential key infrastructure and facilities must be maintained 

and disseminated to all levels of responders.

21

Federal Government Assumes Control

It is important to combine the lessons from a past incident of national 

significance with the overwhelming effects of a nuclear detonation. The 

federal government needs to plan realistically and must consider the 

following. First, a nuclear detonation will be of such national significance 

the President must be involved in the response. Second, the devastation of 

a nuclear detonation will require assets greatly exceeding local and state 

governments’ capabilities. Third, all local and state governments have not 

developed to a common response level, making federal support areas 

across the country more challenging. Fourth, one must assume a nuclear 

terrorist attack may be followed by a second nuclear attack at another 

locale. For these reasons, this paper recommends the federal government 

must assume the lead role from the state and local authorities after a 

nuclear detonation. In the lead role, the federal government is required to 

develop an emergency response plan integrating all its agencies and local 

partners.22 Congress should prepare for this catastrophic event by 

establishing the mechanism to transfer authority immediately upon 

detonation which will help ensure continuity of incident command. Local 
Federal Response to a Domestic Nuclear Attack . . .9

responders will still be first on the scene and will continue to play an 

important role throughout the emergency. Out-of-state and federal 

personnel, many especially equipped and trained for these events, will 

outnumber these local responders shortly.

Shelter Decision

In both of the above cases, individuals attempting to flee the area may 

increase the risk of radiation fallout to themselves. In a 10-kt scenario, 

except for individuals nearest and immediately downwind the epicenter, 

most individuals should remain indoors (preferable underground) and 

increase the buildings’ shielding properties for at least three days.23 The 

fallout shelters of the Cold War may not have prevailed in a superpower 

nuclear exchange, but in our scenario, fallout shelters are extremely 

beneficial. In the Washington, D.C. metropolitan area, many of the 

commercial and government buildings have basements and areas suitable 

for fallout shelters. Long term planning to include the use of government 

tax incentives could increase the number of usable fallout shelters built in 

new construction. However, staying in a shelter or basement after a 

nuclear attack is counter to the human instinct to flee. Approximately 80%

of the 2.5 million individuals in Washington, D.C. commute into the city 

for work. It is unrealistic to assume mass area evacuations will not occur. 

Education of the population and prior planning and testing are essential to 

a successful shelter-in-place campaign.

Communication Message

A well informed press would be extremely beneficial to accurately 

disseminating the coordinated plans during the initial crisis response. 

Unlike an aerial detonation, the electromagnetic pulse caused by a ground 

bust will not destroy the region’s communication capability. The primary 

blast and fireball effects will cause the vast majority of the lost 

communication capability.24 These losses can be mitigated through prior 

planning. Similar to 9/11, cellular phone networks will be saturated. 

Government Emergency Telephone Service (GETS) and Wireless Priority 

Service (WPS) should remain effective on landline phones, where phones 
10. . . Federal Response to a Domestic Nuclear Attack

are available and in service.25 Thus, with the ability to communicate with 

the population, the government should have the ability to provide 

guidance to the masses. The Emergency Alert System (formerly known as 

the Emergency Broadcast System) can function as the backbone for the 

appropriate government agency to issue a plethora of instructions. 

Regardless of the communication medium, the government will need 

a consistent message. RAND estimates authorities should have initial 

radiation plume analysis within two hours of detonation.26 With this 

information, the government can issue mandatory evacuation orders for 

areas contaminated by excessive radiation levels, and outline the areas 

where shelter-in-place is appropriate. Describing to the public that being 

stranded in a gridlocked highway system without any shelter is the most 

dangerous place to be is a message that must be consistent and timely.

Interaction between the federal government and local communities is 

critical to establishing continuous training and planning for individuals 

working in government and commercial facilities especially in large 

metropolitan regions to conduct an appropriate nuclear response. The facility 

owners, operators, or custodians must be prepared to shepherd the 

inhabitants into a prepared facility. Additionally, all tiers of governmental 

response plans must address the natural instinct to rejoin spouses, parents,

and children during an emergency. In recent years many communities have 

enacted provisions to improve the protection and accountability of 

schoolchildren, restricting parental access to children during the initial stages 

of an emergency. These provisions will hamper parents’ ability to collect 

their children before commencing other post-attack reactions. The integrated 

crisis reaction plans must address the probable increased confusion and 

congestion caused by parents attempting to reunite with their children.

Transportation Dilemma

An additional benefit of sheltering the population in place is the relief 

on the transportation system.27 Without a functioning transportation system, 

emergency workers and mandatory evacuation individuals cannot move 

freely. The federal government, in conjunction with local and state 

governments, needs to develop a process of opening and closing parts of the 

transportation system to facilitate this movement. Without preplanning for 

how to modulate the flow of traffic and who will do it, the ensuing confusion 
Federal Response to a Domestic Nuclear Attack . . .11

of a mass exodus will severely limit freedom of ground movement. 

Providing adequate transportation for responders to activity locations like 

radiation decontamination centers, hazardous waste collection points, and 

medical triage centers must be incorporated into this response plan.28

An additional consideration to the transportation dilemma involves 

prevention of another nuclear detonation. As mentioned earlier, the 

government must assume additional devices exist after the detonation of 

the first one. This will force the government to maintain a state of crisis 

until they have ascertained and processed additional information.29 This 

assumption will force local, state, and federal governments to enact 

additional protective measures. The government can quickly determine 

whether the nuclear detonation occurred in the air or on the ground. Also, 

the use of a missile can quickly be determined. With the two above cases, 

it is assumed that terrorists use land and sea transportation as a delivery 

method. This will cause all similar forms of transportation to become 

suspect. This will have a national, if not a global, impact as state and local 

governments enact drastic protective measures to search for other devices. 

These measures may include attempting to inspect all commercial trucks 

prior to entering a large metropolitan area. These inspections will require 

tremendous amounts of equipment and manpower as well as 

comprehensive planning. It is believed that commercial transportation will 

come to a halt. Inventories of essential items around the country may 

quickly evaporate. Federal and state governments must examine this issue 

to develop an integrated plan for restricting and inspecting commercial 

carriers and favoring the transport of essential life-sustaining items. It is 

beyond the scope of this paper to examine the economic impact of shutting 

down the commercial trucking and shipping system.

Former Senator Sam Nunn summarized an immediate aftermath of 

governmental responses to a nuclear terrorist attack as a wish list. Shortly 

after a nuclear detonation, the government will wish it had developed a 

sophisticated local, state, and federal integrated response plan. The 

responders will wish the plan had been tested, rehearsed, and refined. And 

finally, the government will wish it had implemented a serious public 

education campaign reminiscent to the Cold War Civil Defense programs of 

the 1950s.30 To accomplish successfully what Senator Nunn suggests 

requires Congress to establish the federal government as the lead agent for 

this contingency. The authority to lead includes the responsibility to plan 
12. . . Federal Response to a Domestic Nuclear Attack

and prepare. A nuclear attack would be overwhelming and catastrophic, and 

the federal government is uniquely qualified to synchronize and execute the 

response. According to the Department of Homeland Security, the greatest 

mitigating factor for a nuclear attack is the speed and appropriateness of 

decisions and the effectiveness of the information disseminated.31

Though it is beyond the scope of this paper to examine subsequent 

attacks and preventive means and actions, maintaining a strategic reserve 

capability must be mentioned. Prudence requires assuming a second attack 

and initiating preparatory actions. The question will arise of how much of 

one’s highly skilled and limited response assets should the government 

withhold from the immediate catastrophe in order to respond to another 

possible terrorist attack.

The review of what the government will need to do will produce a list 

of items requiring pre-detonation action. After detonation the President will 

respond, but under what authority? The authority of the President derives 

from the Constitution or from congressionally mandated statutes. The 

United States has faced emergencies and threats to survival in the past. 

Congress has attempted to delegate additional authority to the President 

beyond those in the Constitution during these emergencies. And the courts 

generally have been permissive in their rulings on the constitutionally or 

legality of executive crisis directives. However, the trinity of the United 

States government has on occasion internally disagreed.

What is the Authority Used to Respond?

Necessity hath no laws.

—Oliver Cromwell

Many weapons of mass destruction experts have studied catastrophic 

chemical, nuclear, and biological attack scenarios. Many of these 

scenarios develop and progress until disintegration of civil obedience and 

loss of governmental control occurs, caused by the rapidly eroding 

essential assets, and the President’s final option might be to order martial 

law. The Constitution does not explicitly grant the Congress or the 

President the authority to declare martial law. But it does give different 
Federal Response to a Domestic Nuclear Attack . . .13

branches of government partial control over the armed forces in time of 

national need. Article 1, Section 8, Clause 15, of the Constitution states 

Congress has the power ―[t]o provide for calling forth the Militia to 

execute the Laws of the Union, suppress insurrections and repel 

invasions.‖ Article II, Section 2, Clause 1, of the Constitution declares, 

―The President shall be Commander in Chief of the Army and Navy of the 

United States, and of the Militia of the several States, when called into 

actual Service.‖ Additionally, the Constitution addresses the government’s 

responsibility to address civil disturbances in Article IV with ―The United 

States shall guarantee to every state in this union a republican form of 

government, and shall protect each of them against invasion; and on 

application of the legislature, or of the executive (when the legislature 

cannot be convened) against domestic violence.‖

So in a nuclear terrorist attack scenario should the President impose 

martial law? This is not a simple question to answer. First, for a country 

founded on the principles of liberty and freedom, martial law may appear 

ill advised, a road to dictatorship. Indeed these are recent cases in 

embattled lands where the rule of law has been lost by such martial law 

decrees. Before we address the question of whether a President should 

impose martial law, we must first determine if such action is legal. It is 

appropriate to define what martial law has meant to our country by 

reviewing periods of imposed ―martial law‖ and the associated Supreme 

Court opinions. This paper uses four Supreme Court decisions to 

anticipate the future legality of imposing martial law. But what does 

martial law mean? Unfortunately, this is not as clear as we may like.

Martial Law Defined

Stare decisis, or law of precedence, is a basis for the United States’ 

legal system.32 The foremost legal precedent is a Supreme Court opinion. 

Unfortunately, there is a dearth of martial law rulings, making it difficult 

to develop a complete set of governing procedures. This leaves us without 

a precise martial law definition. The court has written about the 

boundaries of martial law rather than the entity. This has forced scholars 

to develop a working definition based on necessity. Here is one such 

definition of the term.
14. . . Federal Response to a Domestic Nuclear Attack

Martial law is the public law of necessity. Necessity calls it 

forth, necessity justifies its exercise, and necessity 

measures the extent and degree to which it may be 

employed. That necessity is no formal, artificial, legalistic 

concept but an actual and factual one. It is the necessity of 

taking action to safeguard the state against insurrection, 

riot, disorder, or public calamity. What constitutes 

necessity is a question of fact in each case.33

Additionally, the United States Code of Federal Regulations has 

codified a similar definition. It states, ―Martial law depends for its 

justification upon public necessity. Necessity gives rise to its creation; 

necessity justifies its exercise; and necessity limits its duration.‖

34

Understanding martial law dictates a historical review of its use and 

precedents in the United States and Europe. Martial law is invoked, for 

example, in scenarios like those found in a city under siege. Periods of 

grave public disorder have caused domestic militaries to impose martial 

law upon the towns where the problem existed.35 During our country’s 

formative years, the United States imposed martial law in Massachusetts, 

Virginia, and Louisiana. More interestingly, General Andrew Jackson at 

New Orleans in 1814, made a list of proclamations in preparation for the 

forthcoming battle with the British. He declared that everyone entering the 

city had to check in with the Adjutant General. No one was allowed to 

depart the city without his or his staff’s approval. No vessels or boats were 

permitted to leave the immediately surrounding waters without his 

approval. Street lamps were to be extinguished at 9PM, and no one was to 

be on the street without permission. All able bodied men of all races were 

compelled to serve in the army or navy. The old and infirmed were formed 

into reserve units or compelled to join the police force. Jackson also 

suspended the writ of Habeas Corpus.36 Because the courts were open 

during the period of Jackson’s proclamation, a disagreement over legal 

authority arose. General Jackson and a United States District Court judge 

both issued orders to jail and fine each other, after the judge issued a 

dissenting writ. This humorous incident foreshadows the contentious issue 

of the legality, breadth and depth of martial law.37 Next, this paper 

discusses the background for the four Supreme Court cases.
Federal Response to a Domestic Nuclear Attack . . .15

Conditions of Necessity

Though General Winfield Scott declared martial law during the 

Mexico campaign, the United States Civil War brought a significant 

challenge to the legality of martial law and the government’s authority to 

impose it. Early in the Civil War, President Lincoln imposed martial law 

not only on insurgent enemies in the insurrectionary states but also ―their 

aiders and abettors within the United States, and all persons discouraging 

volunteer enlistments, resisting militia drafts, or guilty of any disloyal 

practice affording aid and comfort to rebels against the authority of the 

United States.‖

38 These proclamations of martial law included the 

suspension of the writ of Habeas Corpus for any persons about to depart 

from the United States or absenting themselves from their county or state 

to avoid the draft.39

More recently, the government imposed martial law in the Hawaiian 

territory at the start of World War II, and this incident gives us a modern 

era court opinion. The governor received permission from the President to 

impose martial law on the Hawaiian Islands after the Japanese bombed 

Pearl Harbor. Congress passed the Hawaiian Organic Act detailing the 

jurisdiction and limits of martial law. The governor appointed a military 

commander as a military governor and suspended the writ of Habeas 

Corpus. The Act authorized the military to arrest and prosecute civilians 

and to remove the rules of evidence and the civilian sentencing laws.

The last two important cases arise from measures imposed in 

February 1942. The War Department appointed a military commander to 

impose martial law measures on the western United States. The most well 

known of these measures was the curfew imposed on all alien Japanese, 

German, and Italian and individuals of Japanese descent, residing in the 

United States and the internment of over 110,000 Japanese-Americans. 

Supreme Court Analysis of Martial Law

First, during the early period of the Civil War, President Lincoln 

imposed martial law, and Congress refused to ratify his suspension of writ 

of Habeas Corpus. In March 1862, the events of the war caused a change. 

Congress passed the statutes which ―authorized the President to suspend 

the writ whenever he thought necessary and to detain those persons under 
16. . . Federal Response to a Domestic Nuclear Attack

arrest by the military authorities without interference by the civil courts.‖

40

Lambdin Milligan, along with several others in the State of Indiana, was 

arrested and tried for treason. A military commission found him guilty and 

sentenced him to be hanged. His appeal eventually was heard by the 

Supreme Court.

In ex parte Milligan, Milligan argued the military commission did not 

have jurisdiction over him since he was not a member of the military 

service. The government argued the military commission had jurisdiction 

based on the President and the Congress suspending the writ of Habeas 

Corpus based on the necessity of war and the imposition of martial law. 

The Supreme Court overturned the conviction rejecting the government’s 

argument of the law of war justifying the use of the military commission. 

The court based its decision on the fact the courts in the State of Indiana 

were open at the time of the military commission. 

Of note, the Court added the government had not followed the 

congressionally mandated guidance for the suspension of the writ of 

Habeas Corpus.

[T]his court has judicial knowledge that in Indiana the 

Federal authority was always unopposed, and its courts 

always open to hear criminal accusations and redress 

grievances; and no usage of war could sanction a military 

trial there for any offense whatever of a citizen in civil life, 

in no way connected with the military service... One of the 

plainest constitutional provisions was, therefore, infringed 

when Milligan was tried by a court not ordained and 

established by Congress.

41

A significant point of this ruling hinges on the fact the executive 

branch, referred to as the government, ignored the mandates of Congress, 

since no necessity existed in the State of Indiana. This placed the President 

and the Congress in opposition over implied constitutional authority. The 

Court also rendered in dicta the opinion that the Constitution only 

explicitly allows for the suspension of one enumerated right, the writ of 

Habeas Corpus. But it did infer situations may develop where the 

imposition of martial law exist. Yet, it held in addition to the prerequisite 

of necessity for martial law, the courts must be closed. So it can be 

concluded this Court considered the conditions for martial law are met 
Federal Response to a Domestic Nuclear Attack . . .17

when: 1) they are applied on in strict conditions of necessity, 2) declared 

only in a time of war, 3) issues are resolved by military commissions only 

when the courts are closed, and 4) such decrees only pertain in locations 

proximate to the war. Importantly, in the execution of emergency powers 

the President must act in conjunction with congressional will.42

During the period of martial law in the Hawaiian territory, a military 

tribunal accused and tried two civilian individuals on charges of 

embezzlement and assault, respectively. In Duncan v. Kahanamoku, the 

Supreme Court ruled a military tribunal did not have jurisdiction in these 

cases. The government argued Congress had passed the Hawaiian Organic 

Act, authorizing the imposition of martial law including the suspension of 

writ of Habeas Corpus. However, the Court ruled that when Congress 

enacted the Hawaiian Organic Act, they did not wish to exceed the 

boundaries between military and civilian power in which our people have 

always believed. It is clear Congress always intended the citizens of Hawaii 

the same constitutional entitlement and protection as provided to citizens 

living elsewhere in the United States. So even though Congress authorized 

martial law, including the suspension the writ of Habeas Corpus, the courts 

were open and the perpetrators where not infringing on the security of the 

territory in the commission of these crimes. The Supreme Court ruled that 

even though the President and the Congress were acting in conjunction, the 

government’s use of a military tribunal was not a necessity relative to the 

existing security conditions in that case.43

The third and forth cases are examined together because of the 

overlapping circumstances and the similarity of the rendered opinions. 

Both cases involved individuals of Japanese descent and the World War II 

martial measures put in place by the War Department to attempt to 

mitigate the threat of a possible invasion by Japanese forces along the 

Pacific coast of the United States. The War Department authorized martial 

law measures, but martial law itself was not imposed. On the surface, 

these cases are about the government’s ability in a crisis to deny citizens 

the exercise of their civil rights in order to cope with a severe security 

threat. Thus, the circumstances of these cases warrant a review to 

understand the Supreme Courts’ opinion of martial law. 

The Supreme Court considered the legality of the government’s 

actions. Both of these cases involved a violation of the military sanctioned 

measures of curfew or confinement. In Hirabayahsi v. United States, the 
18. . . Federal Response to a Domestic Nuclear Attack

Court upheld a curfew placed on Japanese Americans during the war. In 

Korematsu v. United States the Court justified the apparently random 

internment of Japanese Americans. As with all of these studied cases, an 

evaluation of Presidential and Congressional actions must incorporate the 

social and political conditions that existed at that time. In both these cases, 

the Supreme Court recognized the Constitution authorizes certain officials 

to enact and enforce measures in a time of war that otherwise would not be 

allowed. Those decisions are based on the decision-maker’s judgment, and 

the Court ruled its judgment would not supplant that of those officials who 

were elected or appointed to make those decisions. In Hirabayashi the 

Court rendered

[T]he conditions call for the exercise of judgment and 

discretion and for the choice of means by those branches of 

the Government on which the Constitution has placed the 

responsibility of war-making, it is not for any court to sit in 

review of the wisdom of their action or to substitute its 

judgment for theirs.44

Korematsu is particularly useful in anticipating the Courts’ reaction 

to the implementation of martial law. The Supreme Court again 

recognized the principle of necessity but also implied conditions may exist 

where previously unacceptable actions become warranted. Additionally, 

the Supreme Court recognized the level of the actions taken must be 

proportionate to the level of the threat by stating, ―when under conditions 

of modern warfare our shores are threatened by hostile forces, the power 

to protect must be commensurate with the threatened danger.‖

45 Finally, 

although this court evaluated the conjoined actions of the President and 

the Congress, they did not render any opinion in cases where the President 

diverged from Congressional intent. 

Though the last two cases are not explicitly about martial law, much 

can be inferred about future Court opinions. Interestingly, it has been 

inferred from the member casting a dissenting vote in Korematsu that a 

properly imposed martial law would have changed his vote.46 However, 

none of these or other United States cases directly discusses the 

Presidential authority to impose martial law. Taken together, these cases 

produce five principles a President should consider when contemplating 

the declaration of martial law.
Federal Response to a Domestic Nuclear Attack . . .19

First, the Supreme Court has yet to deem the practice of martial law 

itself unconstitutional. Second, the Court recognizes there are some 

Presidential emergency powers not explicit in the Constitution. Third,

there are limits to the Presidential emergency power. Fourth, when the 

President and the Congress acts together, this is the highest level of 

credibility for executing implied powers. And fifth, the Court will afford 

the President authority commensurate with the level of threat and the 

extremity of the conditions. In light of the nuclear detonation scenario, it 

appears the President does have the legal authority to imposed martial law. 

Explicit Congressional approval enhances this authority. Congress has 

granted standing authorities based on previous events. These standing 

authorities provide the President other options to consider for our scenario. 

Congress has also passed laws limiting the executive’s authority based on 

precedents from past events. For example, the Posse Comitatus Act limits 

what the executive can have the military carry out.

Posse Comitatus

Posse Comitatus means power or force of the country. Following the 

end of the Civil War, the United States used its army to maintain order and 

civil obedience in the southern states. For several years, the military was 

given almost free reign to govern the rebellious states. The issue of 

military rule came to a head during the disputed 1876 Presidential election 

when three states disputed their electoral votes. Coincidentally, the 

incumbent President employed thousands of federal troops and special 

marshals in these same three southern states to guard polls and prevent 

fraud. In response, the losing political party submitted legislation 

preventing future military funding from ―supporting...any state 

government or office.‖ Though this bill did not make it through 

committee, the subsequent Congress modified the legislation and passed a 

bill prohibiting the Army from enforcing civil laws.47 The bill signed in 

1878, became known as the Posse Comitatus Act. Over the years the Posse 

Comitatus Act has been modified to now include the Army and Air 

Force,48 but it still excludes the Navy. However, the Department of 

Defense has developed internal regulations placing the same limitations on 

the Navy and the Marines. The Act does not include the National Guard 

unless they are under federal service.49 The Act does include provisions 
20. . . Federal Response to a Domestic Nuclear Attack

for exceptions for constitutionally and congressionally mandated military 

enforcement.

The first constitutional exception is an emergency authority to prevent 

loss of life or property during serious disturbances or calamities.50 The 

second authority allows the use of military forces to protect federal 

property and governmental functions.

51 Various congressional statutes 

allow direct military support to civilian law enforcement and are 

considered Posse Comitatus Act exceptions. Title 10 U.S.C. Sections 371–

382, authorizes military and civilian law enforcement to share information 

and equipment to include operation and maintenance of the equipment. 

The military also has greater latitude to support the Secret Service for the 

protection of government officials. However, it does not allow the military 

to make arrests or conduct search and seizures.52

In the last exception, Congress delegated the authority to the 

President to call forth the military to quell insurrections and civil 

disturbances with the Insurrection Act of 1807. Most recently amended in 

the 2007 Defense Authorization Act, it is now Title 10 U.S.C. Sections 

331–333. The Act authorizes the President to employ federal troops to 

suppress an insurrection upon the request of the state government as part 

of the federal responsibility to ―protect states against domestic violence.‖

Congress has delegated the authority to suppress an insurrection, domestic 

violence, unlawful combination, or conspiracy that deprives any part or 

class of people of a constitutional right, privilege, immunity, or protection. 

The Act also authorized the President to order insurgents to disperse and 

retire peaceably to their abodes.53 In 1992, the President invoked the 

authorities of this Act during the Los Angeles Riots at the request of the 

California governor. Twice, the President invoked the authorities without 

the request of the governor. In both cases, the President considered the 

governor culpable of the disobedience. The President sent federal troops in 

1957 to Central High School in Little Rock, Arkansas to implement the 

integration of the school system. Similarly, the President sent troops to 

Alabama in 1963 to enable racial integration at the University of Alabama.

Stafford Relief and Emergency Assistance Act

The Robert T. Stafford Relief and Emergency Assistance Act of 

1974, amended several times hence, provides the regulatory framework 
Federal Response to a Domestic Nuclear Attack . . .21

for the President’s declaration of an emergency or major disaster. This Act 

established Federal Emergency Management Agency’s (FEMA) statutory 

basis for disaster relief. Though sometimes misunderstood, the Stafford 

Act provides no independent Department of Defense statutory basis for 

disaster assistance. Additionally, the Stafford Act does not provide 

statutory exception to the Posse Comitatus Act. This declaration permits 

federal assistance to local and state agencies combating the effects of an 

emergency or major disaster exceeding the capabilities of the local 

government. This request for a declaration must come from the governor 

of the effected state.

The Stafford Act provides for the flow of federal assistance and 

funding under three scenarios. The most basic is the Presidential Order to 

perform emergency work using federal agencies which may include the 

Department of Defense. The second and third scenario requires starting 

with a statutory definition.

This statute contains two important definitions.

1. Emergency. ―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.

2. Major Disaster. ―Major disaster‖ means any natural 

catastrophe (including any hurricane, tornado, storm, 

high water, wind driven water, tidal wave, tsunami, 

earthquake, volcanic eruption, landslide, mudslide, 

snowstorm, or drought), or, regardless of cause, any 

fire, flood, or explosion, in any part of the United 

States, which in the determination of the President 

causes damage of sufficient severity and magnitude to 

warrant major disaster assistance under this Act to 

supplement the efforts and available resources of States, 

local governments, and disaster relief organizations in 

alleviating the damage, loss, hardship, or suffering 

caused thereby.54
22. . . Federal Response to a Domestic Nuclear Attack

An Emergency Declaration is limited in scope and without the longterm federal recovery programs of a Major Disaster Declaration. The 

federal assistance and funding is designed to meet a specific emergency 

need. The Presidential Major Disaster Declaration puts into motion longterm federal recovery programs. The federal assistance and funding is 

designed to help disaster victims, businesses and public entities. The 

governor’s request for the Major Disaster Declaration requires the state to 

commit state funding and resources for the long-term recovery effort. The 

Federal Emergency Management Agency evaluates the governor’s request 

and makes a recommendation to the President. This process culminates 

with a Presidential decision concerning the declaration which could take 

from hours to weeks.55

It is useful to understand the scope of this Act using historical 

examples. On August 28, 2005, in response to Hurricane Katrina, President 

Bush issued a Major Disaster Declaration for Florida followed on August 

29, with a Major Disaster Declaration for Louisiana, Mississippi, and 

Alabama. On September 24, in response to Hurricane Rita, President Bush 

issued a Major Disaster Declaration for Texas and Louisiana.56

National Emergency Act

The President also has options under the National Emergency Act 

(Title 50 U.S.C. Section 1601). Ironically, Congress sought to rectify 

long-standing National Emergency proclamations still open years after the 

termination of the incident. The National Emergency Act enacted in 1976, 

placed a two-year limit on any national state of emergency, but it did not 

provide a definition of what constituted an emergency. The test is 

subjective and is determined by the President, and his decision is final, not 

reviewable or reversible. Upon a National Emergency declaration, 

hundreds of Congress enacted standby laws, permitting the President to 

act in ways that would be impermissible in absence of the crisis. The 

President can commit troops abroad without Congressional notification, 

call up Reserve units to active duty, enter into defense contracts without 

the usual contracting procedures, recapture certain land and waive caps on 

headquarters management personnel. 

Again it is helpful to understand the magnitude of this Act through an 

historical example. Through proclamation President Bush ―declare[d] that
Federal Response to a Domestic Nuclear Attack . . .23

the national emergency has existed since September 11, 2001.‖

57 He 

outlined which provisions of the Act he would utilize. One provision of 

the Act is self-termination after two years. However, periodically since 

2001, the President has declared the state of the National Emergency 

continues and has extended the declaration. It is currently extended 

through 2010.

Recommendations

Every senior leader, when you’re asked what keeps you 

awake at night, it’s the thought of a terrorist ending up with 

a weapon of mass destruction, especially nuclear.

— Secretary of Defense, Robert Gates

The destruction caused by a domestic nuclear detonation would be 

horrific, but it would not be fatal to the continued existence of the United 

States. The emotional and psychological damage to the American people, 

government, and way of life may exceed the physical and economic 

damage. However, nature, including humans, exhibits incredible resiliency 

when stressed with termination. The resiliency and rate of returning 

society back to a level of normalcy are enhanced through the speed and 

appropriateness of response decisions and the information’s dissemination. 

This paper examines a domestic nuclear attack scenario and recommends a 

list of federal actions most beneficial to emergency response success. 

These recommendations fall into two broad categories: what are the preattack actions including the required planning and coordination, and what 

are the post-attack options. The most critical actions hinge on the federal 

government assuming the lead role for responding to any domestic nuclear 

attack.

Federal Government Takes Lead

A nuclear attack would be a catastrophic incident of national 

significance (global significance may be more appropriate). For the 
24. . . Federal Response to a Domestic Nuclear Attack

reasons stated above, the federal government needs to prepare to take 

control of the response for such a horrific event. The federal government 

should command and control the response at the local, state, national, and 

international level. Only the federal government’s unique span of control 

allows for the simultaneous and successful execution at various levels. 

The entirety of the federal government will be needed to support the 

response.

There are three sub-elements to this recommendation. First, laws and 

regulations should immediately delegate response authority to the federal 

government following a nuclear detonation. Second, this authority should 

include the inherent responsibility of crisis planning and coordinating. The 

complexity of vertical and horizontal governmental planning requires a 

comprehensive set of federal guidelines and principles to lead the state, 

local, interagency, and non-governmental planning processes. Third, 

disaster-recovery plans will require testing and rehearsal. While it may be 

politically unachievable to interrupt the lives of all in a large metropolitan 

area by disrupting traffic and city access for an exercise, the government 

cannot evaluate effectiveness and efficiency of the plans solely through 

tabletop exercises. Again, only the federal government possesses the 

ability to test and rehearse a gigantic nuclear detonation response 

combined with any subsequent nuclear detonation responses needed in 

different locations.

Establish Education Program

In a single nuclear device scenario, the human instinct to flee is 

counter to what for many will be the more appropriate response to shelterin-place. Once a detonation occurs, immediate confusion will likely 

overwhelm attempts by authorities to communicate with the public and to 

relay the best means of reducing exposure to the radiation. Only through a 

comprehensive, long-term program can one expect a significant portion of 

the population to understand the appropriate response for each of them to a 

nuclear attack on their locale. A multipronged approach should include, 

but not be limited to, the school system, the press, and the mass appeal. 

Fortunately, the national school system affects the majority of the 

population. The school system approach captures the greatest United 

States audience. Second, the continual education of the press enables more 
Federal Response to a Domestic Nuclear Attack . . .25

accurate broadcasting during the initial stages of the incident. Third, 

because the mass media reaches large portions of the population, the 

federal government should mandate a series of periodic public broadcasts 

for the purposes of establishing a baseline program of public education 

and interaction.

Congress Authorizes Martial Law

Scholars have distilled five guiding principles for the legal imposition 

of martial law. Reviewing these principles allows one to assume the 

conditions for martial law will exist. A nuclear detonation will produce the 

required level of necessity. Because the majority of nuclear response 

capability resides in the Department of Defense, specially equipped 

military units will augment and may supplant local and state responders. 

Any Presidential decision to use the military force to control the 

population and guide the response will legally need to be commensurate 

with the necessity of the situation. In the area surrounding the explosion’s 

epicenter, the government will close most normal services, including the 

courts. Congress may not be able to convene immediately. Thus, Congress 

should establish the conditions which automatically authorize the President 

to impose martial law, suspend the writ of Habeas Corpus, and use the 

armed forces to exercise authority. In aggregate, these conditions will 

satisfy the guiding principles to impose martial law in the grim scenario 

where terrorists have detonated a nuclear bomb in an American city.

Conclusions

A terrorist attack on the United States remains a very real and 

dangerous possibility. Armed with nuclear or biological weapons, these 

terrorist attacks become a threat to national security. Congress and the 

President have previously mandated a comprehensive plan be developed 

for this scenario. The government’s first attempt was revamped after 

Hurricane Katrina. The subsequent plan, the National Response 

Framework, provides only cursory guidance. Congress needs to 

understand the severity of this threat and forego these recycled attempts of 
26. . . Federal Response to a Domestic Nuclear Attack

hierarchical response and recovery. Laws need to be enacted granting the 

President the ability to impose martial law immediately following a 

nuclear detonation, to include the suspension of the writ of Habeas 

Corpus. Authority should immediately transfer to the federal government 

for responding to a nuclear detonation over the rights and authorities of 

states and local governments. This mandates the federal government take 

the lead role for planning and rehearsing. The federal government is 

uniquely capable of exercising and rehearsing the plan. Education 

improves all aspects of response and recovery. Only through the federal 

government will nation-wide education be effective. Now is the time to 

properly prepare for this catastrophic event of national significant.
Federal Response to a Domestic Nuclear Attack . . .27

Notes

1. Graham Allison, ―Preface,‖ Confronting the Specter of Nuclear Terrorism, The 

Annals of the American Academy of Political and Social Science, Harvard University, 

Sage Publication, 9 October 2006, 6.

2. Ibid., 9.

3. Charles Meade and Roger Molander, ―Considering the Effects of a Catastrophic 

Terrorist Attack,‖ RAND Center for Terrorism Risk Management Policy, 2006, 4.

4. U.S. Department of Health and Human Services, Radiation Event Medical 

Management, ―Nuclear Explosions: Weapons, Improvised Devices,‖ Online, Internet, 2 

July 2009, available from http://www.remm.nlm.gov/nuclearexplosion.htm, (Updated on 

8 June 2009).

5. Ibid.

6. Meade and Molander, op. cit., 4.

7. U.S. Department of Health and Human Services, op. cit.

8. Ibid.

9. Ibid.

10. A rad is the amount of radiation required to absorb 0.01 joules of energy into 1 

kilogram of matter. 400 rads is a recognized threshold between illness and fatality.

11. Ibid.

12. U.S. Senate Hearing for the Committee on Homeland Security and 

Governmental Affairs, ―Nuclear Terrorism: Confronting the Challenges of the Day After, 

Impact of Small Nuclear Weapons on Washington, D.C.‖ Testimony of Dr. Cham Dallas, 

15 April 2008, 3.

13. David Howe, ―PLANNING SCENARIOS: Created for Use in National, 

Federal, State, and Local Homeland Security Preparedness Activities,‖ U.S. Homeland 

Security Council, July 2004.

14. The federal government has maintained a document called the Federal 

Response Plan since 1992.
28. . . Federal Response to a Domestic Nuclear Attack

15. Bruce Lindsay, ―The National Response Framework: Overview and Possible 

Issues for Congress,‖ CRS Report for Congress, Washington, D.C., 20 November 2008, 

CRS-2.

16. Ibid., CRS-6

17. Ibid., CRS-9.

18. National Response Framework, NUC-6, On-line, Internet, 2 July 2009, 

available from http://www.fema.gov/emergency/nrf/incidentannexes.htm.

19. Ashton Carter, Michael May, and William Perry, ―The Day After: Action in the 

First 24 Hours Following a Nuclear Blast in an American City,‖ A report based on a 

workshop hosted by the Preventive Defense Project, Harvard and Stanford Universities, 

19 April 2007, 10.

20. Major General Rowe, USA, former USNORTHCOM Director of Operations, 

cited the failure of the New Orleans initial responders as a documented and well accepted 

cause for the magnitude of the situation following the hurricane.

21. Major General Rowe, United States Army, Commander, Military District of 

Washington, D.C. Round Table Panel Discussion, 2008 USAF Counterproliferation 

Center Conference, June 2008.

22. Carter, May, and Perry, op. cit., 10.

23. Ibid., 12.

24. Ibid., 11.

25. Meade and Molander, op. cit., 19.

26. Ibid., 23.

27. Carter, May, and Perry, op. cit., 13.

28. It has been suggested co-locating triage centers at medical facilities during this 

kind of mega-crisis may cause an incident where the triage center overflows into the 

medical facility, reducing overall medical efficiency and response.

29. Ibid., 15.

30. Sam Nunn, ―The Race Between Cooperation and Catastrophe,‖ Confronting the 

Specter of Nuclear Terrorism, The Annals of the American Academy of Political and 

Social Science, September 2006, 46.
Federal Response to a Domestic Nuclear Attack . . .29

31. David Howe, op. cit.

32. Stare decisis literally means to stand by what is decided. On-line, Internet, 2 

July 2009, available from http://www.lectlaw.com/def2/s065.htm.

33. Major Kirk Davies, ―The Imposition of Martial Law in The United States,‖ Air 

Force Law Review, Volume 49, Spring 2000, 88.

34. Title 32 Section 501 Employment of Troops in Aid of Civil Authorities, Online, Internet, 20 December 2008, available from www.access.gpo.gov.nara/

cfr/waisidx_00/32cfr501_oo.html.

35. William Winthrop, Military Law and Precedents, Washington, D.C., General 

Printing Office, 1920, 818.

36. Ibid., 822.

37. Ibid.

38. Ibid., 823.

39. Thos. M. O’Brien and Oliver Diefendorf, General Orders of the War 

Department: Embracing the Years 1861, 1862, & 1863, General Order 104, War 

Department, Volume 1, New York, Derby & Miller, 1864, 364.

40. Major Kirk Davies, ―The Imposition of Martial Law in the United States,‖ Air 

Force Law Review, Volume 49, Spring 2000, 96.

41. Ibid., 98.

42. Ibid., 100.

43. Ibid., 102.

44. Ibid., 104.

45. Ibid., 105.

46. Ibid.

47. The exclusion of the Navy was a political compromise.

48. Amended to include the Air Force in 1956.
30. . . Federal Response to a Domestic Nuclear Attack

49. Jennifer K. Elsea, ―The Use of Federal Troops for Disaster Assistance: Legal 

Issue,‖ CRS Report for Congress, 16 September 2005, CRS-3.

50. Lieutenant Colonel Mary Bradley, Lieutenant Colonel Stephanie Stephens, and 

Michael Shaw. ―The Posse Comitatus Act: Does It Impact the Department of Defense 

during Consequence management Operations?‖ Army Lawyer, Department of the Army 

Pamphlet 27-50-413, October 2007, 71.

51. Ibid., 72.

52. Darrell Phillips, ―Defense Support of Civil Authorities,‖ Lecture, Air Force 

Judge Advocate General’s School, October 2008.

53. Ibid.

54. U.S. Department of Homeland Security, Federal Emergency Management 

Agency, ―Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 

93-288) as amended,‖ On-line, Internet, 26 June 2007, available from 

http://www.fema.gov/about/stafact.shtm.

55. Lieutenant Colonel Drone, Major Fournier, ―Federal Declaration of Major 

Disaster,‖ HQ Air Force Judge Advocates Office, 24 September 2005, 1.

56. Ibid., 1.

57. Declaration of National Emergency by Reason of Certain Terrorist Attacks, Online, Internet, 2 July 2009, available from http://www.whitehouse.gov/news/releases/

2001/09/20010914-4.html.