A good offense is a good defense

Kevin Frazier is an Assistant Professor at the Crump College of Law at St. Thomas University. He previously clerked for the Montana Supreme Court.

A good offense is a good defense. That quip--attributed to George Washington and every NFL commentator--deserves more attention in the national security context. More specifically, our “civil defense”--the capacity of our governing institutions to respond to emergency situations--requires significant attention and investment.

There’s no shortage of novel and substantial threats facing our country. Some fear a conflict between the U.S. and China arising out of a fight to safeguard Taiwan’s autonomy. Others forecast an AI takeover or “runaway” AI creating unstoppable bioweapons. Many anticipate that the next “100-year storm” might cause a thousand-years worth of damage. Regardless of your own assessment of those threats, we can all agree that our governing institutions have become more fragile in recent decades. That’s a troubling disparity: the likelihood and severity of threats growing at the same time our institutions see drops in competency and public confidence.

This dynamic should motivate a new wave of “civil defense” efforts akin to those adopted by the Truman administration in the 1950s. In the early days of the Cold War, President Truman acted on the public’s widespread fear of disorder and destruction following an atomic war by signing the Federal Civil Defense Act in 1951. The resulting Federal Civil Defense Administration (FCDA) led a wave of preparedness activities around the country, including the creation and operation of warning systems, researching the most secure fallout shelters, and storing emergency supplies. With the benefit of hindsight, it’s easy to question the merit of some of these efforts. Case in point, did New York City need to spend more than $150,000 on identification bracelets for kids? Probably not. Projects like that don’t need repeating in the modern era, but other lessons have stood the test of time.

In particular, contemporary advocates for a more resilient America should take a page out of the FCDA’s emergency playbook and get to work on developing the laws, procedures, and norms that governing institutions will adhere to if and when certain catastrophes occur. How, for instance, should a state government proceed in the event of an election being entirely annulled due to an earthquake, an AI attack, or some other act that causes a substantial fraction of the population from having access to the polls? Similarly, if an attack on the physical infrastructure of a local or state government takes place, where will the government relocate? These “sky-is-falling” situations may appear unlikely but a failure to answer them now may add civil unrest to whatever damage the attack or disaster brought on.

A failure to imagine, anticipate, and prepare for worst-case scenarios has often led to abuses of power. After the attack on Pearl Harbor, for example, Governor Poindexter transferred control of the functions ordinarily exercised by the state government to a U.S. Army General, Walter Scott. General Scott promptly took extraordinary and, arguably, unconstitutional measures, including closing the state’s courts.

In the same way that Governor Poindexter likely never pondered the possibility of his state being the setting of a major military strike, many leaders today have likely not thought through how civil order will be maintained when that hurricane comes, that AI attack is launched, or that bomb goes off. The severe, unpredictable, and uncontrollable threats that confront us today will cause harms that upend day-to-day governance. The duration and significance of that disruption, however, is somewhat under our control.

The relative calm of today should not go to waste. With high-level support from the federal government, local and state leaders should develop more than just succession plans--the magnitude of modern risks necessitates clear guidelines for when and how to rerun an election, for determining how courts will operate, and for allocating resources amidst unprecedented public need. Civil defense is not a cheery topic, but it’s a necessary one, just ask George Washington (or Kirk Herbstreit).