This is a partial transcript of "The Big Story With John Gibson," September 26, 2005, that has been edited for clarity.

JOHN GIBSON, HOST: The president says he now wants Congress to consider giving the military the lead role in responding to natural disasters. State governors now take the lead in rescue and recovery efforts. But is the Pentagon better prepared to take charge when disasters strike?

Let's talk about that with Bing West, former assistant secretary of defense in the Reagan administration, and also the author of "No True Glory: A Frontline Account of the Battle for Fallujah."

So, Mr. West, should the military be stepping in here first simply because of its logistical prowess?

BING WEST, FORMER ASSISTANT SECRETARY OF DEFENSE: Well, John, I think that might be going too far entirely too fast. This is an event, what, about once every 10 years, and when we see something as catastrophic, the military can add an awful lot, as your pictures show about the helicopters.

But first and foremost, our military exists to win wars, not to be a nation building force, either abroad or at home. Definitely, better planning can be made, but I think we should be modest in what we expect the military to be able to bring.

GIBSON: Now Mr. West, first of all, these may be historically 10-year events but lately they seem to be coming a lot faster, and it doesn't take that much military to help out here. It's not like invading Fallujah (search).

WEST: Oh, well, John, but I didn't say they couldn't help out. But I do think that we have to ask what kinds of emergencies do we expect them to be taking the lead in?

And I think that saying taking the lead is a little bit too strong. If you need people evacuated in a hurry, absolutely the military can step in and help you an awful lot. But in most of the disasters, the military really can only aid you in a modest way.

GIBSON: Well, all right, but let's look back here. There were those days, and I think that it did amount to a few days, where people were stranded in New Orleans (search), either on highway overpasses or in the convention center. And they just couldn't get aid there.

Now you can imagine looking at these helicopters that had someone been able to pick up the phone and say to this military unit, "Kindly fly now with a bunch of water and a bunch of MREs to that bridge overpass and fly over to that convention center," and they may have alleviated a lot of suffering.

WEST: I think you've struck on something and I think that's why the president said let's review the planning that we're doing here.

But, you know, there's another thing working there that will have to wait until the analysis of this comes out, and that is if federal troops go into a state, they have to work with the governor and the governor has to be willing to work out some sort of command-and-control arrangements so that can happen. And there are a lot of rumors about what happened down in Louisiana and whether that kind of cooperation was forthcoming as quickly as it should have been. So I think that's why.

GIBSON: But, Mr. West, I mean, look, let's just say Gen. Honore (search) had been in charge.

WEST: Yes.

GIBSON: And we know he's a very take-charge guy and says you can't get stuck in stupid and all those things. Even if the governor were incommunicado, couldn't be reached, he couldn't get permission or even if she said no and he said, "I'm doing it anyway," do you honestly believe the governor would have complained about life-saving missions from the U.S. military?

WEST: I don't think there's any way that Gen. Honore would overstep the governor. I really don't. I think that's a delicate line. And I don't think that the military should — no matter how bad the crisis, I think that the military has to respond the way it's designed to respond, which is that the governor — every state basically has to say, "I'm overwhelmed. I need some federal aid." And work it out from there. I don't think we should rush them in too quickly on those kinds of things.

GIBSON: All right. Bing West, former assistant secretary of defense from the Reagan administration. Mr. West, thanks very much.

WEST: Thank you.

GIBSON: But is it legal for the U.S. military to be involved in these domestic missions? Whether it's wise or not, is it legal? Let's ask FOX News senior judicial analyst Judge Andrew Napolitano.

Before you tell me no, if they're not armed with guns, they're armed with MREs — is it legal?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: It's not legal because of a statute that the Congress passed...

GIBSON: 1878?

NAPOLITANO: Correct, in response to Reconstruction, which has been modified several times, as recently as 1974, Republican Congress under a Democratic president, which prohibits the Army and the Air Force — what's missing? Marines...

GIBSON: The Marines.

NAPOLITANO: Marines, Navy, Coast Guard. Prohibits the Army and the Air Force from executing the laws, which means doing anything in law enforcement. That statute has been amended several times, and the punishment has been added. The maximum punishment has been increased.

It doesn't punish the Army or Air Force. It punishes the civilian who commands them.

So what options are available for President Bush? He could have federalized the Louisiana National Guard, but the Congress has said to presidents you can only federalize the National Guard when the state is unable to enforce its own laws and indeed, presidents have only federalized the National Guard three times since World War II, one by President Bush's father during the Los Angeles riots. The president chose to not federalize the National Guard in Louisiana, because Governor Blanco (search) asked him not to.

GIBSON: Yes, but Judge, pardon me, but this seems like such a dumb discussion. I mean, here are these...

NAPOLITANO: Well, you started it.

GIBSON: I know I did, but I'm going to provoke you.


GIBSON: Here are these military assets, there to be used. Here's the military with vast supplies of water and food and medicine. And they all sit, because some governor hasn't signed something or some president hasn't signed something, based on a law in reaction. I mean, you said Reconstruction and I bet a lot of people in the audience don't know what you're talking about. Reconstruction after the Civil War.


GIBSON: Why do we have to be stuck in history when people are drowning?

NAPOLITANO: Well, the law was revised, as I told you, as recently as 1994 when they added the maximum penalty. They changed it from $10,000 to $100,000.

GIBSON: Made it worse.

NAPOLITANO: Right. Imagine fining the president personally $100,000 because he sent the troops into the streets.

Look, what happened in Louisiana was that President Bush and Governor Blanco were eyeball-to-eyeball and neither of them blinked. She wouldn't say, "Yes, you can control the National Guard and bring in the Army." And he wouldn't say, "I'm going to federalize your National Guard and take them away from you."

If either had done something affirmatively, the military, the National Guard would have been in there sooner. The National Guard is not covered by this statute.

GIBSON: But you're not answering my question. I mean, I don't see why when that thing goes on someone can't take advantage of everything that is needed and is readily at hand, which happens to be owned by the U.S. military.

NAPOLITANO: You'd be confronted with a governor going before a federal judge to get the troops out of her state.

GIBSON: I'm sure those people in New Orleans wouldn't have cared.

NAPOLITANO: I think in a crisis situation you don't care who delivers your food. You really don't. But these governors are very protective of their authority and would try to get the troops out.

GIBSON: OK, Judge Napolitano, the caretaker of our Constitution here on "The Big Story" on the FOX News Channel. Thanks a lot, Judge.

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