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Leader Development and Education: Develop / incorporate internship

for officers and senior NCOs, with law enforcement agencies and local police

stations to prepare MP Leaders to assume responsibilities on a HN Building

Team.

Leader Development and Education: Leaders must be allotted time to

develop their own engagement style prior to deployment. Increasing the

opportunities for leaders to conduct missions and engagements using

interpreters, will further increase their skill set when dealing with a HN populace.

Topic 6.6: Police Station Monthly Report (PSMR) and Operational

Readiness Assessment (ORA)

Discussion:

The PSMR and Operational Readiness Assessments (ORA) were effective tools

for reporting IP progress such as force generation, equipping, and station

operations. Leaders continued to work with their IP counterparts to resolve

issues identified in this report.

MP Leaders conducting the PTT mission agreed that the PSMR was an effective

tool when used properly. They consistently stated that the PSMR is a living

document and to get it right required constant revision. For example, PTT and IP

leaders continued work to migrate away from CF requirements to the IP (or MOI)

requirements that improved systems for both IP training and resourcing.

Those interviewed also agreed that some questions on the PSMR required more

clarification so as to get to the ―so what‖ due to the fact that some questions were

ambiguously written. For example, one question was in reference to an ―FTO

Program‖ and evaluation, but no one could answer the PTT question on what a

FTO was.

Additionally, PTT leaders translated the report from English to Arabic reviewed it

with their IP counterparts, and also captured the strengths and areas where the

IP could improve.

Insights / Lessons:

CF must continue to work with the IP to effectively hand over all reporting

requirements, support requests, and training issues.

PTT leaders need to work with IP leaders to establish and sustain the

functioning systems that track personnel, intelligence, operations, and logistics.

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DOTMLPF Implications:

Doctrine: Doctrine needs to capture the PSMR and the process of

assessing operational and logistical capabilities as we discussed.

Topic 6.7: Materiel Requirements

Discussion:

When OIF kicked off, MP units lost most of their equipment in order to support

the war effort such as M1114s, M4s, and night vision devices. Units also could

not order more equipment due to shortages of funds unless you were a deploying

unit. Units now find that they do not have enough assets at home station to

conduct proper training. Another issue is once they arrive into theater they are

given all new equipment that they are not trained on. While impossible to give

each unit an up to date equipment fill to train with, it is possible to give MP BDEs

and BNs training equipment sets so they can at get their Soldiers trained on the

equipment. The first time a Soldier sees or operates a piece of equipment

should not be in combat. A good example is the MRAP / CFOF and BFT.

Operations in Iraq identified additional capabilities and resource requirements for

MP at all levels. As current equipment improves, new equipment is developed

and technologies are created. This will improve the Soldiers‘ ability to effectively

operate on the battlefield and leaders must continue to analyze and determine

what those gaps are. MP Leaders agree that the following is the list of required

equipment / capability for MP to support the Maneuver Commander in a COIN

environment:

Shoot:

- Common Remote Operating Weapons Station (CROWS) - Provide

additional Survivability (Sniper Defeat / IED) while effectively engaging targets.

- New / improved pistol - More compact weapon with greater stopping

capability. The call for improved pistols for PTT is well-founded. Unlike many

units in the corps, a PTT spends a great deal of time outside the wire working in

the crowded confines of a police station. Given the close quarters, the primary

weapon of the PTT while inside the police station is the pistol.

9mm/M4 magazines - Upgrade so the springs function longer.

Move:

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- ASV. Increase lethality and must have capability to shoot while moving;

and hit a moving target. Also must have better sights with Thermal/FLIR

capability.

- Increase the size of the ASV seats.

- If MPs cannot get the ASV, the unanimous choice for the best vehicle is

MRAP version RG 31 Mk 5 (multiple doors).

- There are some concerns with using the MRAP and ASV in urban areas

as they are too big to ingress / egress from IP Stations and travel safely through

the Muhallas.

- Water Jell Fire Blanket-Plus. For use as an emergency first-aid blanket

and for the extinguishment of fires (size 6‘x5‘).

- Personal Locator Beacon. Sends distress signal via satellite and radio

frequencies providing GPS location of personnel in distress. Used primarily for

kidnapping situations or certain combat related situations.

- Fire Resistant Bib Over-Garment. Kevlar lined suit with steel plated shin

guards to absorb shrapnel and coupled with NOMEX advanced combat uniforms

resists fire.

- Turret Sniper Mitigation Screening System. System developed in

theater to decrease target identification from sniper fire and also prevents

grenades or debris from accessing the turret opening.

- Turret Gunners Seat Strap. Strap is equipped with quick release

connections on each end of strap to assist gunner down from the turret in vehicle

roll over situations.

- Duke II. A counter radio electronic warfare used to jam radio and

electronic frequencies. Disables cell phones and hand held radios, preventing

improvised explosive device initiations.

- Rhino. Used to deter EFP through heat signature to pre-maturely set of

EFP. The Rhino is attached to the front of the vehicle approximately 3 to 10 feet

with a 2-foot chain hanging from the front of the rhino to set off trip wires and

motion censored explosive devices.

- Armored Security Vehicle Crewman Course / Maintenance. Provide

additional familiarization and training on the ASV for all MP squad leaders,

drivers, and mechanics.

Communicate:

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- Secure cell phone capability for out-lying removed squads / platoons.

Thurya, MCI are options. The BFT Fiber Internet Protocol Router (FIPR)

communication package is not reliable.

- Multi-Band Inter / Intra Team Radio (MBITR) radio system. Add an

additional radio to current system. Issue three radios vice 2 (one each for the

TC, driver and Gunner). Pop out function of IMBITR is handy, but not very fast if

quick dismount is needed.

- Multiple RETRANS equipment due to ASIP limitation in urban

operations.

- Enhanced Blue Force Tracker. Satellite imagery is outdated and the

refresh rate is too slow. Also needs capability to track dismounted forces on BFT.

Field an enhanced Blue Force Tracker (BFT) imagery, secure cell phone (or

SAT-phone) with capability down to Squad level, improved pistol, voice stress

analyzer, magazine upgrades, and more holster configurations

See:

- Enhanced / Improved TVS / PVS 4 / 5. The current systems are weak,

unreliable, and do not maintain bore sight. CF must continue to own the night.

General:

- Wireless Handheld Device (similar to HIIDE) that can rapidly query

multiple databases (watch lists) and transfer data in a real-time mode. This

device must be interoperable (DOD and OGAs).

- Bar Coding Scanner capable of printing labels and scanning and

tracking items of evidence.

- Evidence Collection Kits (Basic Collector and CID Agent).

- Evidence repository of evidence for historical / future use (CONUS

Warehouse).

- Data back up for evidence (Sanctuary / Warehouse).

- Field Investigative Equipment (MPI / CID / LEP / WIT).

- Alternate light sources (for collecting serological fluids i.e. blood, semen,

tears, sweat, and trace evidence)

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- Voice Stress Analyzer. Has application in both DO and CS MP missions

to determine truthfulness of the individual (moderate / extremist / potential

insurgent).

- Simultaneous Voice Trainer.

- Software for Release Board. Leverage technology to electronically staff

detainee release board files.

- Detainee Software Package. Incorporate transponder and recorder

capability to track detainee locations within a TIF and who that detainee talks to.

This data would then be used to build a profile and intelligence picture in support

of COIN inside the wire.

- Data Mining. This capability allows users to analyze data from many

different dimensions or angles, categorize it, and summarize the relationships

identified. Applicable for detention operations and will assist in the process of

finding correlations or patterns among dozens of fields in large relational

databases.

- Ground Robotics capable of searching for IEDs and clearing areas

where Soldiers cannot see.

- Driver Visual Enhancement (DVE): A thermal system for use in combat

and tactical wheeled vehicles.

- X-spray Kits: Provides on-site detection for explosives.

- Gyro Cam: Mounts on moving vehicles to provide early warning.

- Cameras (still / video) with zoom capability for guards, towers, must

have capability of traversing across a compound (on a wire).

- Closed Circuit TV for TIF ―dead space‖.

- Extended range NL weapons / rounds.

- Radios with ―911‖ capability linked into the TOC and QRF.

Insights and Lessons:

There are shortages and capability gaps with equipment that

leaders must continue to analyze and determine what those gaps are.

DOTMLPF Implications:

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Materiel: Combat developers must review and analyze the capability gap

requirements and ensure those gaps are filled.

Materiel: Allocate on MTOE additional CROW systems for PTT

platforms. PTT mission require engagements at police stations in which patrols

are susceptible to small arms fire attacks, most importantly, Precision Small

Arms Fire (PSAF). The acquisition system, within the CROW, would allow those

teams to immediately identify the direction of fire from the static PTT position and

would allow those PTTs to engage the Iraqi Police to take immediate action.

Materiel: Provide MRAPs to MPs, depending on terrain, which have

proven extremely useful in the PTT mission. Main reason is they allow for a

greater number of dismounts. They also provide an easy solution to a

CASEVAC situation.

Materiel: Provide TACSAT or satellite phones to MPs as a force

multiplier for PTT. Often, PTT conduct joint operations outside of regular

COMMS range with their home-base. The FBCB2 system is simply not quick

enough to relay urgent information while operating outside of communication

range. These systems would be another solution to that problem and would be

able to acquire immediate support for those type operations.

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Chapter 7

Law and Order Operations

Chapter Contents

Page

Summary

164

Topic 7.1: Law Enforcement on Bases

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Topic 7.2: Provost Marshal Office Facilities and Equipment

167

Topic 7.3: Law Enforcement Training

168

Topic 7.4: Crime Reporting Procedures

170

Topic 7.5: Support Given to the Provost Marshal Office

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Summary

Law enforcement on the bases played a significant role in the efforts of MNC-I.

Law and Order Detachments (L&O DET) established Provost Marshal Offices

(PMO) on selected bases. They protected, assisted, and defended deployed

personnel allowing them to focus on their mission. This chapter addresses five

specific areas of the L&O Detachment: Law enforcement on bases, PMO

facilities and equipment, law enforcement training, crime reporting procedures,

and support given to the PMO.

Topic 7.1: Law Enforcement on Bases

Discussion:

L&O DETs had established law enforcement (LE) on selected bases. However,

out of all the bases in Iraq, there were only 10 with L&O DETs performing LE.

L&O DETs on these bases provided L&O support to CF, Department of the Army

Civilians (DAC), contractors, and third country nationals (TCN) at levels

equivalent to Continental United States (CONUS) based installations. L&O DETs

were typically comprised of Army National Guard (ARNG) MP Detachments or

Air Force Security Forces (AFSF). The ARNG MP DET was deployed as an

organic unit while the AFSF were ad hoc organizations resourced from

throughout the Air Force.

L&O DETs were tasked and organized very similar to L&O DETs in CONUS.

They had different sections responsible for specific functional police areas (i.e.

desk operations, Military Police Investigations (MPI), traffic accident

investigations (TAI), administration, and records). MPI conducted investigations

within their purview with the support of CID to investigate the major crimes. TAI

investigated all traffic accidents. L&O DETs Modified Table of Organization and

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Equipment (MOT&E) did not include a patrol section. Other MP Companies

provided this capability on a rotating basis. Due to the other MP Companies‘

mission when deployed, this backfill was unavailable. Therefore L&O DETs had

to reorganize their personnel by shifting them from other sections to build a patrol

section. This reorganization allowed L&O DETs to complete its mission but at a

minimum manning status. It appeared that any increase in case load would have

deteriorated their ability to perform their current mission.

L&O DETs enforced rules and regulations and investigated violations. This

included enforcing speeding, larceny, breaking and entering, assaults, violations

of General Order #1 (alcohol use, prescription drug abuse, etc.), theft of

government property as the typical offenses. Speeding was a safety concern

due to several vehicle to pedestrian and vehicle roll over fatalities / injuries have

occurred in Iraq. Interviews confirmed L&O DETs conducted a myriad of typical

law enforcement duties on the FOB:

Radar enforcement.

Portable ―breathalyzer‖ tests.

Proactive mounted and dismounted patrolling.

Investigations.

First responders to the base defense plan for indirect fire (IDF) attacks.

Leaders in the Mayor‘s Cell stated the L&O DET was well suited as first

responders to IDF attacks due their quick response, observation, and

communications skills. MPs were always on patrol which allowed them to

respond immediately to any IDF attacks. MPs are trained to observe and

respond to criminal activity. In the OIF environment, these skills were then used

once they arrived on scene by searching for possible enemy spotters. MPs then

cordoned off the area, reported any battle damage, and rendered first aid if

needed. With vehicle-mounted radios and all emergency agencies‘ frequencies,

MPs could immediately call other agencies to respond appropriately (fire

department, medical, crisis response unit, etc.).

L&O DETs also had the unique ability to detain and charge personnel not subject

to the UCMJ. DACs, contractors, and TCNs when charged with lesser crimes

were recorded in the blotter and referred back to their local supervisor /

employer. The MP unit reported that most cases resulted in the offender being

barred from the base and fired. More severe crimes were transferred to the CID

for further investigation. While under investigation, the subject was detained in

the detentions cell (D-cell) or restricted to base. In severe cases, the subject was

placed in the D-cell for extended periods of time (months) while awaiting the

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decision on where and who would try the case. The Garrison Commander with

concurrence of the military magistrate was the approval authority for detention.

L&O DETs did not provide the following capabilities:

Customs operations- Customs were performed by other units in theater

using additional duty Soldiers.

Special Reaction Teams (SRT) - There was no school trained SRT

personnel. Fortunately, to date, it was reported there had not been a recorded

incident demanding this specialization. If the need presented itself the only

capability were selected personnel identified to employ as a quick reaction force

(QRF).

Military Working Dogs (MWD) - L&O DETs could request MWD support

from the local kennel master. The kennel master would support these requests

as dog teams were made available. Both PEDD and PNDD had proven effective

during health and welfare checks. Priority of effort, however, was to the

maneuver commander.

Bases without LE support have seen an increase in crime and other violations.

CID was only conducting investigations on felony crimes when available. The

leadership on one base stated that some of the crimes they had to deal with were

extortion, prostitution, drugs, larcenies, and General Order (GO) #1 violations.

They further stated that after some initial findings, CID did come to investigate a

possible prostitution ring. CID investigated and several TCN were barred from

the base. Investigators alluded to no further action was taken. On other

violations, CID was unavailable due to their caseloads.

Other bases complained of assaults, larcenies, and GO #1 violations. A noted

problem was that parts of the base did not fall under the control of a maneuver

commander, leaving somewhat of a jurisdictional ―no man‘s land,‖ where

anything could happen. At least at this location, crime remained a problem

without any apparent lasting measure enacted to prevent further incidents.

Insights / Lessons:

Law and Order Detachments (L&O DET) had established law enforcement

on selected bases. These L&O DETs supported the commanders by conducting

proactive patrols and investigating crime.

L&O DETs had the unique ability to detain and charge personnel not

subject to the UCMJ. This allowed for the prosecution of US civilians.

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L&O DETs lacked, SRT, customs, and MWD sections, limiting the amount

of support that the unit could provide.

Bases without L&O DETs were experiencing greater levels of crime.

DOTMLPF Implications:

Doctrine: Develop first responder requirements for MP units conducting

L&O Operations.

Organization: Assign the different PMOs an AOR for enhanced

synchronization and better support to the corps. Then establish satellite MP

sub-stations on the outlying bases; man with a few MPs that would service that

base and report directly to the PMO.

Organization: Add Patrol, SRT, Customs, and MWD capabilities to L&O

DETs.

Topic 7.2: Provost Marshal Office Facilities and Equipment

Discussion:

The facilities of the deployed PMO consisted of a stand alone complex with

controlled access. All visitors entered a waiting area where they were met by a

Desk Sergeant (DSGT). The DSGT sat behind a protected area with controlled

access. The divider was not bullet proof glass, but functioned as a physical

barrier for lesser hazards. Some of the facilities had rear access control points

that were not controlled (work orders were submitted).

There was enough space for the PMO to function efficiently accordingly to

interviews and personal observation. Separate offices or buildings within the

PMO complex accommodated patrol rooms, investigation rooms, and a detention

cell (D-Cell). However, the PMO was not in compliance with physical security

regulations. The facilities have proven adequate for a combat theater but would

serve force protection and physical security requirements better if upgraded over

time. An example of this was the customer service area needed to be hardened

to protect the DSGT and prevent potential forced entry into the PMO. The D-cell

also needed to be fixed up to meet regulatory requirements. Two noted

deficiencies were the lack of drains in the D-Cell latrines and no security cameras

to monitor D-Cells by the DSGT. Both requirements were submitted to higher

headquarters but not as yet resourced.

The L&O DET did not deploy with MP station equipment (patrol vehicles, radar

trailers, radios, radar sets, automation, riot control gear, fingerprinting machines,

digital cameras, etc.). They signed for this equipment in theater. Additionally,

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some L&O DETs purchased more equipment (portable breathalyzer tests,

cameras, automation equipment, etc.) and added these to the leave behind

property books. Equipment was comparable to that used in CONUS. Patrol

vehicles consisted of medium sized SUVs (Chevy Tahoes and Ford Explorers)

equipped with vehicle mounted radios, MP decals, and emergency light sets.

There were sufficient numbers of patrol vehicles to outfit the patrol section with a

maintenance rotation included. Radar and laser radar, both moving and

stationary units, were used for traffic enforcement. The only noticeable missing

piece of equipment was an intoxilyzer for more accurate measurements of blood

alcohol content (BAC). However, a subject could be taken to the hospital for

blood draw to determine BAC.

Insights / Lessons:

The facilities have proven adequate for a combat theater but would serve

force protection and physical security requirements better if upgraded over time.

Some L&O DETs purchased more equipment (portable breathalyzer tests,

cameras, automation equipment, etc.) and added these to the leave behind

property books.

Topic 7.3: Law Enforcement Training

Discussion:

The L&O DETs that deployed into theater were either ARNG MP or AFSF.

Experience and training varied between these organizations. The amount of

notification time before deployment also varied. The ARNG MP were generally

notified six months prior to deployment while the AFSF were given even shorter

notice.

Further, the experience level varied significantly with each L&O DET. The ARNG

MP L&O DET was organic and had some limited time to train prior to their

deployment. The AFSF deployed ad-hoc and had not worked or trained as a

unit. The ARNG MP L&O DET had some civilian back ground police officers in

their ranks and some members had conducted LE missions during their annual

training. The AFSF had limited LE experience. Some only had the skills from

initial entry training. Another compounding problem was the lack of ASI trained

personnel in their ranks; usually only filling 10% of their required allocations.

However, if the unit had enough time before deployment, they conducted

additional training and received some priority fills at ASI producing schools.

Nonetheless, leaders stated this was not enough to adequately prepare the unit

for their mission.

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Conversely, some units were fortunate enough to have arranged some specific

LE training at MOBSTATION. They were able to reprogram their training

schedule and consolidated the mandatory 41 / 11 training (41 individual and 11

collective training tasks). Additionally, these units were fortunate to have the flex

to add several weeks of LE training that was coordinated locally with the

Department of Defense (DOD) police. According to those interviewed, this

training plan took extreme effort and a long time to get approved at the First

Army level. Leaders recommended these type programs of instruction (POI) be

incorporated for all units identified to conduct LE missions in Iraq.

The majority of LE training for the L&O DETs was conducted during the RIP /

TOA. The outgoing unit trained their replacement as much as possible prior to

departure. This training was especially vital to the AFSF in an attempt to get

them familiar with Army forms and systems they had never been exposed to.

Due to constant mission requirements after RIP / TOA, there was very limited

opportunity to conduct organized training. A work around that seemed to partially

fill the training gap was conducting training at guard mount.

Almost all interviewed stated a noted deficiency was lack of training on the

Centralized Operating Policing Suite (COPS) and other Army systems being

used in Iraq at the MOBSTATION. Thus, this training had to wait until the unit

arrived in theater. However, theater specific systems and equipment being

utilized were the HIIDE and the BAT.

Insights / Lessons:

Training prior to deployment was limited.

LE training at MOBSTATION would greatly enhance the L&O DET‘s ability

to accomplish their mission once they arrive in theater.

AFSF were not trained on Army forms or equipment prior to deployment.

Once RIP/ TOA was completed, training in theater was very limited

DOTMLPF Implications:

Doctrine: Develop Joint Doctrine to standardize law and order forms and

law enforcement reporting systems DOD wide.

Organization: Deploy L&O DETs as distinct units to ensure cohesion and

to enhance mission accomplishment.

Training: Develop and implement a standard POI for L&O DETs prior to

deployment.

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Material: Resource MOBSTATION HIIDE and BAT training sets so units

can become proficient on system during predeployment training.

Topic 7.4: Crime Reporting Procedures

Discussion:

The US Army tracks and reports crime using the COPS. All Army installations

have the ability to enter and look up information in COPS to determine suspects‘

prior offenses. This greatly assists MP in knowing the backg0round of possible

offenders. It also allows for accurate data collection of crimes by the Criminal

Records Center (CRC).

In theater, the ten primary bases, which have a PMO, are using COPS and were

linked to all PMOs worldwide. Unfortunately, many other bases in Iraq had no LE

support. Adding to this problem, many MP leaders stated that often MP units did

not provide LE support to the bases they were on due to other mission

requirements. Although a few MP units did assist maneuver commanders with a

few LE specific issues, they did not generate MP reports or forward them to a

PMO for COPS entry. When a Soldier committed an offense on a base with no

LE support not requiring CID attention, the command handled the incident in-

house. They did not report violators to a PMO. Thus, the incident and the

subject did not get recorded into COPS. When an incident required CID, a report

was generated and the crime was recorded.

It was further discovered that the different Services used incompatible reporting

databases. The Army used COPS while the Air Force used Security Forces

Management Information System (SFMIS). AFSF in theater used the Army

system, COPS. This meant that PMOs could not look up prior incidents involving

Airmen and inform the patrols of these. Also, any airmen that were processed

were not reported in the SFMIS database.

There was no system to report and research crime data on US civilian personnel

in Iraq. PMOs could not dig for prior incidents or report new ones on US

civilians. Typically, civilian personnel who had committed misdemeanor crimes

were terminated by their employer and subsequently shipped back to the US with

no further action taken.

BAT and HIIDE verified identity of TCNs. The HIIDE had the capability to take

digital photos, iris scans, and digital fingerprints. Additional information was then

entered under the TCN‘s name. This was uploaded into the BAT database,

which was used by battalions and above to vet a TCN before hiring or granting

access to the base. Anytime a TCN was stopped and questioned, instant access

to their database was available. This biometrics technology enhanced base

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force protection by enforcing bans and preventing unauthorized access. It also

allowed for accelerated identification of TCNs.

Insights / Lessons:

When a crime occurred on bases without LE support and did not warrant

CID involvement, it was not being reported to the PMO for entry into the COPS.

There were no databases in theater to lookup US civilian criminal data,

therefore PMOs could not alert patrols to previous offenses committed by

civilians.

BAT and HIIDE enhanced force protection measures by making it easier

to identify TCNs and record any pertinent information regarding them.

DOTMLPF Implications:

Organization: Assign PMOs areas of responsibilities (AOR) that allow

the capability to respond to crime and record the incidents into COPS on all

bases.

Materiel: Develop crime reporting software that interfaces across DOD.

Materiel: Develop a system to enable deployed PMOs to lookup and

record US civilian crimes

Leader Development and Education: Educate commanders, at all

levels, on how reporting crimes to the PMO enhances mission accomplishment

Topic 7.5: Support Given to the Provost Marshal Office

Discussion:

Support given to the PMO included the return of Commander‘s Action Reports

and addressing LE issues brought up in meetings. After MP reports (MPR) were

generated, they were forwarded to the commander / supervisor for action. The

commander / supervisor then completed the DA FM 4833 (Commander‘s Action

Report) and returned it to the PMO. Minor violations, not requiring a MPR, were

recorded on a DD FM 1408. A copy was forwarded to the individual‘s

commander / supervisor where they filled out what actions they took and

returned it to the PMO. For the most part, actions taken were appropriate to the

violation. To better address the timely return of the forms, the PMO appointed a

person in the organization to track commander action reports and help units to

complete and return the reports. Once the DA FM 4833 or DD FM1408 were

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returned to the PMO, they were attached to the MPR (if used) and archived at

the PMO.

Further support was derived from the command structure of the PMO. The PMO

was under the command and control of the Garrison Commander. The Garrison

Commander played a significant role in ensuring the PMO was allowed to focus

on LE and not other taskings. However, taskings for MP to work outside their

expertise did exist. For example, at one base the higher command directed the

PMO to check for reflective belts at the dining facility. The Garrison Commander

knowing this would waste valuable MP resources stepped in and facilitated

termination of this requirement.

To ensure that LE issues were presented post wide to all maneuver commanders

and civilian supervisors, a representative from the PMO attended all Garrison

Commanders‘ briefings, S2 / Base Defense Operations Centers‘ (BDOC)

briefings, base mayors‘ meetings, and contractors‘ meetings. The PM briefed at

all of these meetings. Information shared included current crime trends, crime

statistics, and any outstanding LE issues. All attendees seemed very supportive

of the PM and worked together to solve LE issues. The PM attendance at

meetings to stress LE no doubt contributed to the support received by maneuver

commanders and civilian supervisors.

Support from the other MP PMO Cells in theater was limited to a loose affiliation

with the MNC-I PM section. PMOs would coordinate with an Operations (OPS)

Non-Commissioned Officer (NCO). The MNC-I PM OPS NCO would consolidate

crime statistics and issues from all PMOs. Requests for Information (RFI) were

also sent to the MNC-I PM OPS NCO. However, there was no command

relationship between the PMOs and the MNC-I PM section.

The CAAT was also briefed there was no formal liaison between the PMOs and

BCT PMs. Established liaison could have potentially mitigated LE issues and

clarified roles and responsibilities between the PMOs and the BCT PM. Many

stated it would have also furthered the ability to record and track crime which had

occurred in the BCTs and transparent to the PMO.

Insights / Lessons:

Maneuver commanders supported the PMO by filling out required

commander‘s action reports and addressing any LE issues at meetings regarding

the base.

PMO was represented at all meetings regarding the base and provided LE

trends, statistics, and issues to maneuver commanders. This allowed the

commanders to address any LE issues and ensure their subordinate

commanders were supporting the PMO.

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Chapter 8

Training and Leader Development

Chapter Contents

Page

Summary

174

Topic 8.1: MP Platoon and Squad Level Training and Leader

174

Development

Topic 8.2: MP Company and Battalion Level Training and Leader

177

Development

Topic 8.3: MP Brigade Level Training and Leader Development

183

Topic 8.4: Division Provost Marshal Office and BCT MP Platoon

186

Level Training and Leader Development

Topic 8.5: Predeployment Training for Police Transition Teams

189

Topic 8.6: Equipment training issues that MP Soldiers may face

191

on Deployments in the COE

Summary

Training and leader development is important for an Army to continue to learn

and grow. This chapter will address the challenges as related by the various

levels of organization from MP squads to Division Provost Marshal Staff. Each

unit addressed faced different challenges and training shortfalls that directly

affected their mission. The better-prepared units quickly make an impact on

mission success and built on previous unit‘s foundations. Poorly prepared units

faced serious mission challenges and possibly degraded the level of previous

unit‘s achievement. The Army needs to develop training plans that support the

current fight and mission set and then ensures that deploying units receive the

appropriate training. The variety of missions performed by MP units at different

levels requires a tiered approach to deployment mission preparation. This

chapter will cover those requirements and recommend plans for success in the

future.

Topic 8.1: MP Platoon and Squad Level Training and Leader Development

Discussion:

Training was a major issue that affected Soldiers and leaders at the platoon level

and below. Leaders felt their Soldiers are not being given enough training on the

five MP battlefield functions that they must become proficient with in order to lead

accomplish the variety of missions on the battlefield. Their training cycles focus

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for the past several years has been limited to predeployment battle tasks, PTT,

and re-deployment and integration. If we continue this trend, leaders felt our

skills in other MP functions (Area Security, Maneuver and Mobility Support

Operations, and Law and Order) will decline drastically and could cause mission

failure in major combat operations.

PTT is the primary mission for Combat Support MP Platoons and Squads. The

MP Squad with an IPA assigned comprises the actual PTT. PTT relies on the

MP function of L&O as a critical skill set to enable MP Soldiers to coach, teach,

and mentor the IP. OPTEMPO for the past several years has caused the

Combat Support MP units multiple deployments and limited dwell time. Normally

home station time is when the MP Soldier performs installation L&O and hones

and develops their law enforcement skills. Currently, that exposure is limited due

to back to back deployments and the requisite train up and reset for those

missions. Units are noting that fewer and fewer of their Soldiers possess the

required law enforcement experience to fully train the IP.

USAMPS has developed a one-week PTT train the trainer course for units to

attend prior to deployment. This course has been available both resident and

Mobile Training Team (MTT). Most units that the CAAT spoke with had

personnel who attended this training. Most found it very valuable in assisting and

developing their unit predeployment training program and to understand the

mission requirements. However, several units had not attended and learned of

the course upon deployment. USAREUR, USARPAC, and FORSCOM have a

responsibility to get units properly trained for deployment and the PTT course at

USAMPS is critical.

During the deployment period leaders complained that there was little scheduled

training at the platoon and squad level. Most training was opportunity training or

a mandatory task pushed down from higher HQ such as weapons clearing

procedures after a negligent discharge. Soldiers were conducting unit training on

what was mandated by higher level echelons, but there was no push for specific

time to conduct this training due to day to day missions.

Another critical gap noted was cultural awareness. Units had completed the

basic classes for deployment but needed more for their daily interaction with the

Iraqi people. Leaders have had a hard time with learning basic language and

customs in Iraq. They feel there needs to be a push with not only customs but

also politics and policing in theater. MP squad leaders asked if they could

receive more when they attend NCOES that focuses on more than just basic

cultural awareness. The training needs to focus on how to act and what to say to

specific people in order to better guide them to understand and execute their

mission.

There was also a big push from young leaders who lacked the required

experience to learn the basics of station operations and administration, setting up

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an arms room, running a detention cell, and how to conduct training to better

prepare them and their squads for the PTT mission.

At the platoon and squad level, leaders made a big push for Soldiers to conduct

correspondence courses and college classes when in theater to promote

professional and personal development was noted. One unit had a huge

advantage with their company commander being a certified teacher for Central

Texas University. This seemed to be very valuable to Soldiers as it allowed them

to progress professionally and personally even during deployment.

Insights / Lessons:

The most critical shortfall all MP leaders identified was the basic law

enforcement experience needed to be a police trainer.

Current OPTEMPO limits home station opportunities and this trend will

continue as long as deployment OPTEMPO remains high. Leaders and units

need to seek creative way to conduct advance law enforcement skills training.

Deployment training needs to include extensive law enforcement focus for

units to be successful in the PTT mission.

Human Resources Command (HRC) needs to provide MP Soldiers and

leaders a variety of assignments that expose them to more than just our combat

support MP Companies, Battalions, and Brigades. Assignments to PMOs and

Garrison Law Enforcement Detachments will create a more well rounded MP

leader and Soldier.

USAMPS needs to add more law enforcement training to all levels of

training from OSUT to NCOES and OES. Future operations will continue to call

on the MP Soldiers to be police trainers and this knowledge and experience will

remain crucial to mission success.

USAMPS needs to address current mission training shortfalls and assist

units train their leaders and Soldiers. By conducting critical task selection boards

with input from current and recently deployed MP leaders all pertinent courses

can be updated to meet the changing demands of the battlefield. USAMPS then

needs to ensure that this training is conducted to standard with current operating

equipment and procedures that will be used in day to day theater operations.

Update MP OES and NCOES classes to better reflect what is needed

from leaders on today‘s battlefield. Adding PTT to these courses will better

prepare leaders to conduct PTT in theater and later in their careers. The

establishment and training of a host nation police services will continue to

challenge the MP Corps in the future.

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The 12-15 month deployments have created lengths of time where our

Soldiers are only focused on mission. There needs to be a big push for not only

required military training but also for professional and personal growth from

Soldiers while on deployment. This is playing a big role in not only Soldiers

seeking promotion to the next level but overall morale of units. We must

continue to learn and grow as an Army if we desire to improve.

DOTMLPF Implications:

Training: MP training at all levels (OSUT, NCOES, and OES) needs to

increase the amount of law enforcement training to better prepare MP Soldiers

for missions around the globe.

Training: USAMPS needs to develop battle drills and exercises that

focus on law enforcement related skills. Currently the MP Corps does not have

any battle drills that focus solely on law enforcement.

Training: Add PTT training to NCOES and OES to better reflect what is

needed from leaders on today‘s battlefield. The training of HN police will

continue to be a critical mission for the MP now and in future COIN operations.

Personnel: HRC needs to provide MP Soldiers and leaders a variety of

assignments that expose them to more than just our combat support MP

Companies. Assignments to L&O Detachments and PMOs will enhance required

law enforcement skills.

Topic 8.2: MP Company and Battalion Level Training and Leader

Development

Discussion:

Company and battalion level leaders also noted significant training issues that

impacted their mission. There was little or no effective training conducted directly

with units that fell under the battalion‘s organizational structure prior to

deployment. Battalion HHDs deployed and fell into command of units that were

not organic to them. Each unit was trained differently and therefore possessed

certain strengths and weaknesses. As a basic rule the companies training

programs were focused on how to conduct continuous operations, battle tracking,

marksmanship, convoy operations, and responding to unexploded ordinance

(UXO) and IED. There was not enough training conducted on training local

national police, or how to build, manage, and operate a police department.

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Many units deployed without attending or knowing about the USAMPS PTT

course. Those that had their Soldiers attend stated the USAMPS PTT course

was focused at the squad level and that it did not address the specifics of a

higher headquarters role in the PTT mission. Units that did not know about the

prospective training until the last minute found that they did not have enough time

to send Soldiers through the course, or that they did not get approval for the

course materials to be sent to them to train themselves prior to deployment.

To meet the requirements for PTT, MNC-I had 50 PTT that were non-MPs. A

PTT leader conference in theater revealed that stations trained by the 50 non-MP

PTTs lagged behind in capabilities of the MP PTT police and stations. Non-MP

PTTs were not fully and properly trained on how to conduct police tasks and

operations. MPs were also lacking in some law enforcement training but they

possessed the foundation that is needed to train the basics to the local national

police.

The majority of MP combat support organizations were conducting PTT. Training

for PTT missions at BN level is a very important piece that MP units provide to

assist the development of rule of law in support of stability operations. MP

Soldiers were typically lacking in the basic aspects of L&O. Because MP

Soldiers train as combat support, the focus of OSUT, BOLC, and NCOES has

been heavily weighed with the battlefield mission. The core competency of law

enforcement has not been the priority for the recent past. MP Soldiers need

more advanced law enforcement skills if they are to train and assist local national

police with skills ranging from police operations to investigations. The training

and growth of these skills should not come at a cost of the combat support skills

needed to perform all five MP battlefield functions.

Battalion and Company level MP leaders were involved with the IP at the station

and district levels. Their law enforcement experience and diplomatic skills

needed to be more advanced than the basics that all MP Soldiers receive.

Senior MP leaders stated that there was very little training done to prepare their

leaders and staffs for their current roles. Skills such as contracting, budget

officer, and school and station administration were learned on the job. More

effort needs to go in to the development of training packages for this target

audience. The MP Officer Education System (OES) was seen as not productive

with teaching the skills that a young officer needed to know on the current COIN

battlefield. Battalion Commanders felt that the MP Corps needed to be teaching

the officers the contracting process that the Military uses on the battlefield. This

includes both the legal system and the Army requirements that must be met in

order to get them the assistance that they need at the local nation police stations.

They also need to learn how they can train and teach the local nation police

chiefs the Iraqi process so that they can develop a system to get contracting

needs at their stations.

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Platoon Leaders (PL) were working at station and district levels of local national

police stations along with their respective squads. Units reported that Officers

and NCOs were lacking skills in police administration and law enforcement skills

that are needed in order to effectively train local national police and provide

oversight to Soldiers and policing operations under there command and

responsibility. There was an overwhelming feeling from Battalion Commanders

that their PLs needed to be more thoroughly trained on law enforcement

operations.

The Basic Officer Leader Course (BOLC III) and the Captain Career Course

(CCC) need to add additional classes to better prepare platoon leaders and

company commanders for operating their platoons and companies on the

battlefield during stability operations. It has been recommended that the MP

Corps add courses like physical security, special reaction team, police internship

(with local civilian police departments), and a junior leaders law enforcement

certification course to the class instruction to better prepare officers for their

duties.

In order to conduct enhanced LE training at home stations, Battalion

Commanders felt that it may be necessary for USAMPS to develop and

coordinate a written authorization that will allow them to conduct police training

and internship with local police departments in there prospective areas prior to

and after deployment. Leaders stressed this would allow them to better develop

and maintain their L&O abilities. Similar to the Training with Industry (TWI)

program the Army currently has, this internship program can be awarded for a

period of no more than 12 months and could be focused on police station

operations. Recognizing this need, senior MP leaders interviewed stated that

those engaged with HNP leadership need to know how a civilian police station

operates and how to manage one.

Battalion Commanders recommended a bigger push on not just teaching the

skills but finding a way to ensure that officers are trained on their abilities to react

to situations that they may find themselves in. Adaptive thinking is needed to

handle the variety of challenges that our officers face. Battalion Commanders are

also having a problem with their junior officers due a lack of tactical proficiency

as demonstrated on the battlefield. The officers seemed to have the technical

skills but lacked the tactical ability to actually execute the mission based on the

training they have received. We need to put focus on having leaders think on

there own (outside of the box) in order to be more proficient leaders.

Battalion Commanders also stated that all field grade officers need to take the

Senior Officer Legal Orientation (SOLO) in order to understand the legal

requirements and procedures that they must know in order to properly operate

their battalion staffs while on a deployment.

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Battalion Commanders felt that the Noncommissioned Officers are the backbone

of the MP Battalions. They possess very good technical and tactical skills. What

they feel NCOs are lacking are the administrative and leadership skills needed to

properly counsel their Soldiers and write NCOERs and awards properly while on

a deployment. Commanders recommended that NCOES take this task on as

they see it as a declining skill set in the NCO Corps.

Soldiers were conducting mandatory training in theater that is related to daily

issues that battalions identified such as negligent discharges, sexual misconduct,

and other illegal acts and immoral acts. Too many times NCOs were directly

involved in these incidents. Commanders urged there needs to be added

vignette training in NCOES to the daily classes on what is considered moral and

immoral in order to open leaders eyes as to what they need to be doing instead

of what they are doing while on a deployment.

MP Soldier‘s inter-personal communications (IPC) skills are critical in this COE.

By applying tactical patience and diplomacy, MP Soldiers can better mentor and

train HN police. Units reported adequate skills in this area but would like

additional training that focuses on cultural differences and HN laws.

Although battalions recognized a need for continuing in theater leader

development (LD) programs, the execution of it was challenging. The HHDs of

the battalions had sufficient programs in place due to their mission requirements

and close proximity of their Soldiers. Most subordinate units conducted limited if

any leader development. The OPTEMPO of mission and the dispersion of troops

to many locations made the LD task difficult to achieve. The focus on training

typically included pre-combat checks (PCC), pre-combat inspections (PCI),

negligent discharge training, promotion boards and SGT ‗Audie Murphy boards‘

related training, and PT on a daily basis. There seemed to be very little

emphasis on leader development on the other MP tasks that MP must know to

perform all five battlefield functions. Units seemed to be one sided and were

failing to learn and become knowledgeable about full spectrum MP operations.

The need for advanced police skills arose as basic skills were trained and the HN

police infrastructure developed. Experienced MPI, MOS 31D (CID enlisted

special agents) and 311A (CID Warrant Officers) were needed to assist the local

national police above the station level on investigation techniques. The focus of

the MPI and CID would be to train and over watch the major crime units and

other investigative agencies such as the investigative judges. Additionally, as

MP Soldiers developed the basic police skills at the station level, others must

focus training at the headquarters level in order to build a department that can

sustain itself.

MP leaders in theater emphasized that a Military Police Company does not have

the organic assets necessary to conduct quality investigations training for HNPS

Districts due to lack of training among the Soldiers. There was a reported

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shortage of expert investigations guidance in theater based on the lack of civilian

contractors‘ lack of knowledge and experience.

Many interviewed recommended training additional CID Soldiers and locating

them throughout theater as advisors when not actively investigating a case.

Further, those interviewed stated that CID could visit Companies to instruct

senior leaders and work with them on creating or enhancing existing

investigations training in their Districts, or have the CID Soldiers visit Provincial

Investigations Centers and learn what methods are being used, what equipment

is available at that level (DNA testing, fingerprint analysis, etc.) and push that

information down to the Companies advising HNP on evidence preservation.

The bottom line by MP senior leaders at corps was the expertise of CID Soldiers

is needed beyond their traditional scope in theater.

Insights / Lessons:

There needs to be more focus on building a well rounded unit prior to

deployment. Units need to have personnel that will assist them in many aspects

of building, managing, and operating a police department. We also need to

ensure that we have specialty skills within the MP Corps that will assist units in

investigations, traffic, drug suppression, fights, juvenile crimes, murders, crime

scene investigations, etc.

Make it mandatory for all units to attend the USAMPS PTT course resident

or MTT prior to deployment. Update course to address CO / BN level

responsibilities with the PTT mission.

Understand the basic structure of PTT and how they assist units on the

battlefield. Non-MP PTTs will not yield the same results and can cause

significant issues in the future. We need to ensure that MPs are being resourced

properly so they can conduct PTT operations. If we fail to have MP conduct PTT

and allow other units to do it, we may lose the ability to properly train local

national police to a set standard to properly conduct law enforcement operations

in their environment.

Ensure that Company Commanders understand MP special skills (MPI,

Traffic Investigator, and Physical Security), and how to utilize them to best

support mission accomplishment. Commanders need to identify all Soldiers

within their command who possess these special skill sets so that he / she can

call upon them when needed.

Units need more Soldiers with the special skills of a Garrison Law and

Order Detachment. Adding additional ASI positions on unit MTOEs will better

distribute the skills needed throughout the MP Corps.

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Focus on getting back to the basics of policing for our MPs. Ensure that

we are not just teaching how to perform garrison law enforcement, but also

training our Soldiers, at all levels, on how these skills apply in environments such

as OIF and OEF.

Develop PTTs that can have a make-up of MP and CID Soldiers. If we

develop a well rounded PTT utilizing all the specialties that MP possess we can

develop a more in depth training and mentoring program at the station and

district level. This provides growth of skills and capabilities in the IP system.

DOTMLPF Implications:

Doctrine / Organization: Nowhere in current templates do we account

for establishing a HN police station in a COIN environment. This is significant

and ought to be captured in modeling templates as the MP Corps will continue to

be called on to establish rule of law.

Training: Add training to BOLC and CCC on contract training in both the

legal and Army requirements that go along with it.

Training: Add a requirement for MP field grade officers to take the Senior

Officer Legal Orientation (SOLO) course at the Staff Judge Advocate School.

Training: Revamp BOLC and CCC to ensure that we are adding

additional law enforcement training that will better prepare them for PTT

operations; include physical security, special reaction team, police internship

(with local civilian police departments) and a junior leaders law enforcement

certification course.

Training: Revamp WLC, BNCOC, and ANCOC to better train our

noncommissioned officers on the counseling system, NCOERs, and awards to

ensure they are better rounded as leaders on deployments.

Training: Add additional training within WLC, BNCOC, and ANCOC on

the moral and ethical decision making process focusing on the challenges of

deployments to help our NCOs understand what is expected from leaders in the

MP Corps.

Training: Add specific L&O training (MPI, SRT, Traffic, and Less than

Lethal) at WLC, BNCOC, and ANCOC which will enhance MP Soldiers‘ ability to

do their job and to assist the other troops on the battlefield.

Personnel: USAMPS should develop and submit a written

recommendation signed by the Provost Marshal General (PMG) that will allow

MP Soldiers and leaders to conduct police internship programs at their home

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station. When resourced, will allow BN CDRs to set up a program, at home

stations, to plan and conduct training for their MPs with local (civilian) police

agencies.

Topic 8.3: MP Brigade Level Training and Leader Development

Discussion:

MP Brigades must work within a complex task organization of OPCON and

ADCON responsibilities. This and the nature of their dispersed mission

challenged their ability to schedule and conduct valuable training in theater.

Scheduled training and leader development was limited. Some training was

pushed down from brigade level, as the need arose, but these were limited to

mandatory tasks (AR 350-1 type tasks such as EO and POSH) and mission

related lessons. Training was not given a specific time period to be conducted

due to the OPTEMPO of tactical operations; however it was conducted on a

continual basis. Normally, it was directed to be completed in a given time frame

such as by the end of the month. This allowed Soldiers to actually focus on the

training that they received and not try to cram it in just to meet suspense.

Other MP brigade‘s mandatory training included weapons qualification conducted

twice a year and the Army physical fitness test (APFT). This ensured that

Soldiers remained competitive for promotions, physically fit / involved in PT

programs, and remained proficient on their assigned weapon systems.

Continuous leader development is a major challenge that a brigade must face

when in a continuous combat environment. Limited development was conducted

at both the noncommissioned and commissioned levels. Leader development is

considered a stepping stone to not only keep Soldiers focused on key aspects of

their job as a leader but also on things that may save a Soldier‘s life. Examples

that were being trained on, included, but were not limited to pre-combat checks

(PCC), pre-combat inspections (PCI), Soldier readiness, safety issues, and

overall basic Soldier discipline. Most leader development was geared towards

mission specific tasks or AR 350-1 requirements (EO, POSH etc.).

Standards and safety were trained and enforced constantly. Shortcomings were

addressed in theater with training. Training focused on shortcomings and actions

/ skills that had a major effect on combat readiness and overall performance of

units in the COE. However, leaders stated some Soldiers had become

complacent with weapon systems. This has resulted in either negligent

discharges or misplacing weapons. Actions were taken to ensure training was

conducted to mitigate injury or even death to individuals who were on continuous

combat operations. Training the wear and proper use of personal protective

equipment (PPE), to include ear plugs, seat belts, NOMEX uniforms and gloves

was constant. Escalation of force training was also constantly reinforced.

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Brigade leaders confirmed the USAMPS PTT course was a great tool to assist

efforts in the PTT mission. Ensuring that leaders are trained in PTT prior to

deployment proved the key to success. Moreover, brigade leaders felt their

Soldiers‘ training readiness level was accelerated at home station if they were

exposed to the USAMPS course. And, that this training level transferred to

mission readiness and enhanced individual initial performance capability in

country.

Soldiers need to be very versatile in their ability to not only conduct daily patrols

in the L&O environment but also must possess the necessary skills to conduct

administrative aspects of L&O. Many MP leaders interviewed stated MP Soldiers

lacked the ability to train local national police on how to run an L&O station

properly and that our Soldiers typically did not have the expertise to train the Iraqi

local national police in advance police skills. To mitigate this, they recommended

station administration, dispatching procedures, and other critical operating

system processes are considered as part of future predeployment training.

The issue was raised that we are not properly training our junior leaders (CPL

and SGT) on the proper skills needed to operate FBCB2. Observations revealed

there were not enough Soldiers properly trained on how to send reports, contact

their tactical operation center (TOC), or properly send required messages to units

operating in their battlespace. NCOES and OES are teaching this but our junior

enlisted and team leaders need it also. Several units felt that Kuwait theater

training was helpful with this but limited in time and class seats.

New Soldiers may be missing pertinent training when moving as an individual

deployer from the states to the COE. When a Soldier conducts training at a CRC

location, then moved to theater, they must conduct follow on training. However,

the training conducted at CRC is common core skill level one tasks and not

specific to the theater of deployment. It should be noted, at CRC there is no

attempt to train MOS or mission specific training. Units must understand this and

exercise caution when receiving replacement Soldiers and placing them on

mission.

Insights / Lessons:

From talking directly to the brigade command team, one of the lessons

learned is that Soldiers have a great ability to become complacent in the COE

and fail to do the right things if they are not continuously trained on standards.

Leaders will not only fall short on their specific duties but also leading their

Soldiers if they are not directly trained through leader development programs on

more than a quarterly basis. It is recommended that units make the time to

develop their subordinates whenever they can.

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Several Battalion Command teams have rotating teaching points that they

cover as they maneuver through their battlespace. Tasks are selected based on

current trends but are normally reactive in nature.

The length of current deployments requires leaders to find alternatives to

the normal home station leader development programs (OPD, NCODP)

conducted in the garrison environment.

The majority of replacement Soldiers arriving in theater have completed

only the theater required individual tasks either at home station or at a CRC.

Units need to be prepared to conduct MOS and mission specific training for these

Soldiers immediately upon their arrival and prior to mission utilization

Even at this point in continuous operations it seems to be crucial that

standards are set by leaders at all levels and then enforced from the

headquarters down. Safety and standards continue to be the areas that continue

to cause units and Soldiers to fail.

The MP Corps must deepen our basic abilities in the L&O aspect of being

an MP. To support this, training and leader development should focus more on

specific L&O operations (i.e. fingerprinting, investigations, swabbing, rape kits,

supply systems, administrators, running a data base, etc.) to better prepare MPs

as police trainers and mentors. We have gotten the IP this far with basics; the

next level requires more developed law enforcement skill sets.

USAMPS should consider changing the FBCB2 POI by deleting FBCB2

map and overlay training during BNCOC, ANCOC, and BOLC. Replace this

course time with what has proven fundamental for FBCB2 in theater for Skill

Level Three and Four Soldiers to complete there missions which include sending

reports, contacting units, retrieving pertinent information from other units, and

how to train this down to the Skill Level 1 Soldier.

DOTMLPF Implications:

Training: Leaders need to develop a training program to support

individual replacement Soldiers that arrive at mid-tour. The individual task

training that Soldiers receive prior to deployment is not sufficient for most

missions. Critical MOS and unit mission specific training need to be provided

before these Soldiers assume mission in theater.

Training: Relook MP L&O abilities. Emphasize more L&O training and

leader development for L&O specific operations (i.e. fingerprinting, investigations,

swabbing, rape kits, supply systems, administrators, running a database, etc.) to

better prepare MPs as police trainers and mentors.

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Leader Development and Education: PME training for NCOs and

Officers should include more detailed law enforcement training. FBCB2 training

(maps and overlays) is one area that can be reduced to incorporate more law

enforcement training.

Leader Development and Education: Leaders need to ensure that

leader and professional development continue throughout the deployment period.

This training should focus not just on mission specific and theater concerns but

also on neglected MOS skills, administrative duties such as awards, NCOERs,

and counseling, and promotion requirements.

Topic 8.4: Division Provost Marshal Office and BCT MP Platoon Level

Training and Leader Development

Discussion:

The MP Soldiers operating in the Division and BCT structure faced their own

unique challenges with training and mission support. The Division PMO mission

priorities included Detainee Operations and MWD support to the Division. BCT

MP Platoon missions included Division and Brigade Holding Area support,

Protective Security Detail (PSD) Security Squad for BCT or Brigade Support

Troops Battalion (BSTB) Command Teams, Quick Reaction Force (QRF) to

support the Explosive Ordnance Detachment (EOD) mission, and convoy support

(logistics convoys, EOD, and CMO teams). The BCT MPs were not involved in

the HN PTT mission and the Division PM role was limited to supporting the MP

Battalion or MP Brigade PTT mission within the footprint of the Division. The

Division Provost Marshal did not directly work PTT missions, nor did they have

any direct influence on the units conducting these missions. The missions were

directed and overseen by the MP Brigade elements that were assigned to the

BCT Commanders for PTT.

To facilitate the management of the increasing number of MWD Teams allocated

to the Division, the Division PM cells acquired MWD program managers by

redirecting other sourced RFF and re-missioned them as program managers.

The Division PMs were not authorized a MWD program manager and were

therefore lacking in the ability to control their MWD program. There was also a

problem with leaders, at all levels, not knowing the abilities that MWD can offer

on the battlefield. This often resulted in improper utilization of MDW handlers and

dogs. A wide variety of capabilities exist within the PEDD, PNDD, SSD, Combat

Tracker Dog (CTD), and Cadaver dogs. Experienced MWD program managers

were best suited to support the Division fight in appropriately allocating

resources.

An emerging need for MP Platoons and the Division PM cells is for more detailed

investigator skills, similar to MPI. This knowledge was needed to assist the BCT

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and the PM cell on evidence collection efforts and site exploitation efforts. It

should be noted; the MP Platoons and the PM cell did not have enough technical

or tactical law enforcement skill sets to assist units inside of the BCT with

evidence collection.

MPs assigned to a BCT felt that they did not receive adequate predeployment

training on skills needed in their mission set. Their predeployment training was

limited and not enough time was spent on detainee operations that became a

critical task in theater. There was also no focus at the Division level to train their

subordinates on Point of Capture detainee operations or on evidence collection

which hindered the ability of the Division to prosecute cases against those they

captured and caused administrative challenges for the DHA staff with processing

captured personnel. Maneuver Commanders acknowledged that MP Soldiers

are best suited to train these tasks to all Division Soldiers and need to be utilized

in this role.

Division PMOs reported several concerns about their allocated MOS 31E

(Internment / Resettlement) NCO. The first issue concerned the authorized rank

of Staff Sergeant. This NCO handles detainee operations across the Division

and must direct BCT level MOS 31E NCOs who are Sergeant First Class (SFC)

on mission requirements. The rank imbalance created problems with a junior

NCO at a higher headquarters tasking and inspecting a more senior NCO. This

hindered the ability of the Division PM 31E to get his job accomplished. There

was also no formal training for the 31E that prepared him / her to work in a

Division or BCT PM cell. Leaders recommended that the 31E at Division and

BCT level needed additional Non-Lethal training and further recommended that

this NCO be Inter-Service Non-lethal Weapons Instructor Course (INWIC) trained

in order to be an instructor for Soldiers working in a Detainee Collection Point

(DCP) or Detainee Holding Area (DHA). Finally, the Division and BCT level 31E

NCOs need to be versed in all USAMPS Detainee Operations Training Support

Packages (TSPs).

Insights / Lessons:

Leaders recommended that Division and BCT PM cells need to remain

involved in the PTT training mission even if MP elements are not assigned to the

Division are conducting them. The BCTs are still the responsible landowners

and the Division leadership expects their MPs to understand the mission and the

current MP related issues. Simple liaison coordination with the MP Combat

Support Brigade and Battalions will ensure that the Soldiers inside of the cells

are situationally aware and trained to take on parts of the mission as required in

the future.

Division PM Cells need to have a qualified MDW program manager

assigned so they can ensure that the MWD handlers and dogs are being taken

care of and used for the missions where they can best assist the BCT. As the

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use of SSD and CTD grows in the Division footprint, consideration needs to be

given for dedicated program managers at the Division level.

With the BCT MP Platoons being called on to assist with evidence

collection on the battlefield, increased evidence collection training and school

seats for MPI should be given to them. Consider placing ASI V5 in to the BCT

MP Platoon Squad structure. One BCT was using their MPs as evidence

collectors for all sensitive site exploitation missions with much success. Each

Platoon should possess this capability. Look closer at the predeployment

training that Divisions are conducting and develop a program that will allow PM

cells and MP Platoons to better assist a BCT by providing all Soldiers with quality

training on detainee operations and evidence collection. BCTs then need to use

this expertise by allowing BCT MP Platoon Soldiers to train the remainder of the

brigade on these critical skills magnifying the ability to capture detainees and

collect evidence that will assist with the processing, holding, and sentencing of

those detainees.

The Army look should consider sourcing the Division PMO 31E NCO as a

Master Sergeant or Sergeant First Class to better facilitate their role as the

Division level senior 31E and remove rank imbalance issues when dealing with

BCT level Sergeants First Class.

All Division and BCT 31Es should receive INWIC training prior to

assignment or deployment to better support and train DHA and DCP missions.

USAMPS needs to ensure all updated training packages are in deploying

element hands to best support mission. Two Divisions were unaware of recently

published All Army Evidence Awareness TSP.

DOTMLPF Implications:

Doctrine: Address BCT MP Platoon support to sensitive site exploitation.

This law enforcement centric task provides a critical link between capturing and

prosecuting enemy combatants.

Organization: Expand the number of ASI V5 in the BCT MP Platoon to

better support sensitive site exploitation and evidence collection.

Organization: Change current MTOE authorization for a SSG 31E to a

MSG 31E in a Division PM cell to allow better supervision and development of

the BCT level SFC 31E.

Organization: Assign an MWD Program Manager in the Division PM Cell

to ensure that MWD handlers and dogs are being taken care of and used on

missions best suited to support maneuver commanders.

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Training: Division and BCT 31Es should receive INWIC training prior to

assignment or deployment to better support and train DHA and DCP missions.

Training: Authorize additional MP ASIs such as MPI and PSD to the BCT

MP Platoon in order to better support the BCT mission.

Topic 8.5: Predeployment Training for Police Transition Teams

Discussion:

The Police Transition Team (PTT) training conducted by the US Army Military

Police (USAMPS) was beneficial one MP CO that was interviewed, but more

training in certain areas is still needed. The unit sent platoon leaders and three

noncommissioned officers (NCOs) (two squad leaders and one platoon sergeant)

to Fort Leonard Wood to attend the course. The course taught the NCOs the

right pieces of the PTT program that allowed them to reduce their acclimation

and familiarization timeline once in theater.

During the external evaluation of the company, the unit received great assistance

from the Fort Carson senior leadership. The Puerto Rico National Guard MP

company at Fort Carson provided law and order support was tasked to provide

role players to the MP Company EXEVAL. These role players spoke in Spanish

and caused the MP Company to have to learn how to get information through

interpreters. It was the best role playing and exercise the unit Soldiers had

experienced and benefited them greatly in working with interpreters in theater.

Currently, the Captain Career Course (CCC) teaches students the basics of

MCS-Light when everything in use is the Command Post of the Future (CPOF)

and its supporting systems. Other topics that are missing from the CCC include

training on Iraqi law, Iraqi and US detention / jail procedures, and training on how

to provide MP support to maneuver commanders. What leaders are stating is

that operating TACON and OPCON and reporting through several different

chains of command and technical support can be confusing. The leadership

training scenarios should address providing support to several BCTs. The Field

Grade level is also void of training in support of BCTs or operating within a BCT.

There is currently no class or course that trains folks on how to be Division or

BCT Provost Marshals or Provost Marshal Operations officers.

CAAT members discovered that units felt it is vitally important for Soldiers to

have L&O training and experience prior to deployment. Additionally, they stated

it is equally essential that Soldiers continue to train on and hone their warfighting

skills prior to deployment. To limit the warfighting capabilities of our skill level 10

Soldiers will expose all MP Soldiers to significant risk. The MP leaders that

interact with IPs (Squad Leader, Platoon Leader, and Company Commander)

need training in investigations and RoL. Being simply trained on ―western‖ law

and processes is not beneficial in this theater. Often, those interviewed stated

we continue to try to put a ―western‖ spin on everything because we have no

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other frame of reference and try to gauge success by U.S. standards. Bottom

line is that PTT and HNPA don‘t know what right looks like. The HNPA that are

on the PTT should be subject matter experts and the primary trainers in RoL,

investigations, and HNP systems as it pertains to logistics, admin, maintenance,

budget, etc. MP leaders that engage with HNP should have a working

knowledge of those areas as well. If the way ahead is for HNPA to take the lead,

then it is absolutely imperative that PTTs get partnered with HNPA with the right

skill sets for the job. Those interviewed strongly suggest we do not need another

civilian contractor who can teach an HNP how to fire a weapon, put on hand

irons, or other basic MP skills. They stated we already have NCOs that can do

that. We are hiring Iraqi Police Advisors, not another Skill Level 10 / 20 position.

Conversely, many MPs stated having an eastern culture SME in investigations

would be a great asset to the team.

Insights / Lessons:

There are many ways to incorporate language training and interpreter

training into our predeployment training plan. Use of dual language local

population or assets on the installation can be instrumental in understanding the

dynamics and being able to work through the challenges of using a HN linguist to

get at our predeployment training needs.

The only way we have seemingly mitigated the training gap of BCT and

Division PMs and operation officers were by hand-down SOPs. There is

currently no synchronization of efforts to provide this training and support to the

maneuver commanders. Each BCT and Division PM staff officer / NCO spoken

to described a need to have a class or course in their job / skill requirements and

capabilities.

DOTMLPF Implications:

Training: Continue to update the PTT TSP. The train the trainer course

provides the right type of information the unit needs to reduce the transfer of

authority process and make the unit more effective once they assume the

mission. Ensure relevancy of the information. Ensure units send train the trainer

leaders who can take back the information and training package to their units and

train them accordingly.

Training: Incorporate language and interpreter training into our

professional development courses and unit training in order to capture the

difficulties associated with using interpreters to get and give information.

Training: USAMPS should develop classes / course in Division and BCT

PM operations.

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Training: USAMPS should develop classes that also use CPOF and

other systems used in theater vice MCS-Light only.

Training: USAMPS should develop a class or include information /

classes in the PTT TSPs that describe the various new police elements and learn

about the structure and systems of police departments and how they interface

and synchronize efforts etc. Included in this instruction should be a class to

Lieutenants on how to train police (basics of developing a training program from

beginning to end).

Topic 8.6: Equipment Training Issues that MP Soldiers may face on

Deployments in the COE

Discussion:

MP units currently lack equipment at home station to properly train themselves

on the equipment set they will utilize in theater. Units are identifying equipment

capability and related training gaps in support of the COE. There was a lot of

new equipment that Soldiers were not properly trained on prior to arriving to their

units. Leaders felt that Soldiers should prepare more during basic or advanced

individual training on equipment that they will be using in theater and in the future

as an MP. Examples include M240B, M249, M-4, M-2, M1114, M1151, M1117

(ASV), and soon, the MRAP family of vehicles. The ability to properly train these

systems prior to deployment is limited based on equipment availability.

There has been discussion on MP Companies receiving UAV assets to assist

them with their missions. Leaders felt that this may be beneficial at times based

on certain factors of mission, enemy, time, terrain, troops, civilians on the

battlefield (METT-TC). Many felt that in the COE of Iraq, MP Squads would be

better equipped if they had a ground robotic asset. This will allow them a safer

and more effective way to conduct military operations in urban terrain (MOUT),

maneuver and mobility support operations (MMSO), detect and identify IEDs,

and conduct joint L&O operations with local national police.

There has been an operation needs statement (ONS) for driver visual

enhancement (DVE) thermal imaging system to be added to all Military vehicles

that MP Soldiers operate. This will allow drivers, team leaders, and squad

leaders with better visibility of the roads and areas they are operating on. TMs

and equipment exposure needs to happen before arrival in theater. Leaders

stressed they could have better prepared Soldiers on the equipment that they

operated on day to day missions in theater.

Due to the growing motor vehicle fleet equipment changes (M1114, M1151,

M1117, and MRAPs) that the Army and MP Corps has seen in the last couple of

years, MP leaders feel there needs to be a Sergeant First Class (SFC / E-7) as

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the company motor sergeant. This will allow the motor pool to properly train their

personnel and correctly request the equipment and parts that a MP Company

needs to continue their missions without having to worry about having vehicles

that are down due to lack of resourced maintenance and parts. The current

diversity of equipment assigned to one company and the required tool sets, and

repair skills can overwhelm less experienced maintenance personnel.

Insights / Lessons:

Develop a better training program prior to Soldiers arriving in theater that

will allow them to be properly trained on a piece of equipment prior to leaving the

wire. New Soldiers and leaders both need to know the capabilities on each

assigned piece of equipment and how it can assist or hinder them on a mission.

This effort needs to take place between USAMPS (OSUT, NCOES, and OES),

home station facilities, and as a last resort training facilities in Kuwait. We are

still licensing operators and training Soldiers on equipment one day and sending

them out on combat missions the next. This is unsafe, unnecessary, and

demands immediate leader and institutional Army attention.

Look at the current UAV distribution plan and how ground robotics can

supplement or complement the UAV assets for MP Companies. All company

level leaders requested a ground robotic capability. The multiple purposes of use

and easy operation better supported the training and load plan challenges faced

in the COE. Do not phase out the ability to put a UAV asset in MP MTOE,

however, take a closer look at the way a ground robotic system would

complement a MP squad on the battlefield. Develop a program that would train

leaders on how effective the additional capabilities of a ground robot would assist

leaders on the battlefield.

Recommend that the Army look at sourcing the MP Company motor

sergeant position with a Sergeant First Class. The variety and amount of

equipment is immense and a Staff Sergeant and sometimes Sergeant cannot

adequately handle the scope of responsibilities required. Logistical challenges

continue to hamper company level operations and this request was made by

numerous units. Proper level leadership will better enable MP Companies to

conduct and complete their missions on the battlefield.

DOTMLPF Implications:

Organization: Recommend that the Army look at sourcing the MP

Company motor sergeant position with a Sergeant First Class. The current

authorization is for a SSG.

Training: Develop a better training program prior to Soldiers arriving in

theater that will allow them to be properly trained on a piece of equipment. The

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DOMESTIC OPERATIONAL LAW HANDBOOK

A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES

2010

EDITOR

LTC Jeffrey Spears

LTC Patrick A. Barnett

CONTRIBUTORS

MAJ Christopher Brown

CDR Thomas Emerick

COL John Gereski, Jr.

CPT José Gonzalez

LTC Allen Goshi

MAJ Timothy Harner

MAJ Erin McMahon

Lt. Col. Jeanne Meyer

LTC Michael Noyes

MAJ Robert Paschall

Mr. William Sells

LTC Jeffrey Spears

Mr. Shane Springs

LTC Timothy Tuckey

LTC Bradley Upton

Mr. Jared Williams

as well as the General Counsel Office, Defense Threat Reduction Agency, and numerous past

editors and contributors to the Domestic Operational Law Handbook

Cover design by Ms. Chérie Hülsman-Reid

The contents of this publication are not to be construed as official positions, policies, or decisions of

the United States Government or any department or agency thereof.

EDITOR’S NOTE

The Domestic Operational Law (DOPLAW) Handbook for Judge Advocates is a product of the

Center for Law and Military Operations (CLAMO). First published in April of 2001, it was the first

of its kind. Designed as a resource for operational lawyers involved in domestic support operations,

its publication was indeed timely. After the events of September 11, 2001, and more recently,

Hurricanes Katrina in 2005 and Ike in 2008, the Handbook continued to meet a growing need for an

understanding of the legal issues inherent in such operations. As with the original publication of the

Handbook, this update would not have been possible without the tireless efforts of countless active,

reserve, and National Guard judge advocates who participate in these unique operations on an

ongoing basis.

The contents of this Handbook are based on statutes, Executive Orders and Directives, national

policy, DoD Directives, joint publications, service regulations and field manuals, and lessons

learned by judge advocates. The Handbook is not a substitute for complete references. Indeed, as

this update goes to publication, changes in these references are being discussed and in some cases,

in the process of completion. Judge Advocates advising in this area of the law should monitor

developments in this area closely as the landscape continues to evolve. Further, upon release, the

new FM 3-28, Civil Support Operations, should be added to the bookshelf of Judge Advocates and

operators alike that may be called to support operations in the Homeland. It provides an excellent

overview of the subject and should be read in its entirety.

The information and samples provided in this Handbook are advisory only. Content and the

opinions expressed do not represent the official position of the U.S. Army or the other services, the

National Guard Bureau, the Office of The Judge Advocate General, or The Judge Advocate

General’s Legal Center and School. Further, the information contained herein is not doctrine (with

the exception of footnoted doctrinal material). The Handbook is designed to serve as a working

reference and training tool for judge advocates.

This Handbook is also available in electronic format from the CLAMO website at

www.jagcnet.army.mil/clamo. CLAMO welcomes your suggestions, comments, and work products

for incorporation into the next edition of this Handbook. You may contact CLAMO at (434) 971-

3248/3210 (COMM), 521-3248/3210 (DSN), via email, at CLAMO@conus.army.mil or

clamo.clamotjaglcs@us.army.smil.mil, or at 600 Massie Road, Charlottesville, Virginia 22903-

1781.

Domestic Operational Law Handbook 2010

TABLE OF CONTENTS

PREFACE

CHAPTER 1: OVERVIEW OF DOMESTIC SUPPORT OPERATIONS

A. BACKGROUND

B. PURPOSE OF THIS HANDBOOK

C. DOD’S ROLE IN CIVIL SUPPORT

D. DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)

E. HANDBOOK ORGANIZATION

CHAPTER 2: NATIONAL FRAMEWORK FOR INCIDENT MANAGEMENT

A. THE FEDERAL RESPONSE STRUCTURE

1. HSPD-5

2. HSPD-8 AND THE NATIONAL PREPAREDNESS GUIDELINES

3. EXECUTIVE ORDER 12656: EMERGENCY PREPAREDNESS AND RESPONSE RESPONSIBILITIES

4. THE NATIONAL RESPONSE FRAMEWORK (NRF)

5. NATIONAL INCIDENT MANAGEMENT SYSTEM

6. HSPD-8, ANNEX I, NATIONAL PLANNING

7. INTERPLAY BETWEEN THE NRF AND OTHER PLANS APPLICABLE TO WMD RESPONSE AND

RECOVERY

8. IMPACT OF THE HOMELAND SECURITY ACT ON THE FEDERAL RESPONSE STRUCTURE AND PROCESS

9. DEFENSE AGAINST WEAPONS OF MASS DESTRUCTION ACT

B. THE STAFFORD ACT

1. REQUESTS FOR EMERGENCY OR MAJOR DISASTER DECLARATIONS

2. LIABILITY UNDER THE STAFFORD ACT

3. THE PRESIDENT’S EMERGENCY AUTHORITY UNDER THE STAFFORD ACT

C. SUMMARY

CHAPTER 3: DOD RESPONSE FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR, AND HIGH-YEILD

EXPLOSIVES (CBRNE) CONSEQUENCE MANAGEMENT

A. INTRODUCTION

B. CBRNE CM OVERVIEW AND AUTHORITIES

C. DOD ENTITIES RESPONSIBLE FOR CBRNE CM OPERATIONS

D. SPECIALIZED DOD CBRNE RESPONDERS

1. JOINT TASK FORCE CIVIL SUPPORT

2. NATIONAL GUARD WEAPONS OF MASS DESTRUCTION CIVIL SUPPORT TEAMS

E. SPECIAL LEGAL CONSIDERATIONS DURING CBRNE CM OPERATIONS

1. QUARANTINE / ISOLATION

3. HEALTH CARE LICENSURE

4. MORTUARY AFFAIRS

CHAPTER 4: MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT

A. INTRODUCTION

B. THE POSSE COMITATUS ACT

1. TO WHOM DOES THE PCA APPLY?

2. WHERE DOES THE PCA APPLY?

3. TO WHAT DOES THE PCA APPLY?

Table of Contents

Domestic Operational Law Handbook

CHAPTER 5: CIVIL DISTURBANCE OPERATIONS

INTRODUCTION

CIVIL DISTURBANCE STATUTES

1. SUPPORT A STATE REQUEST

2. ENFORCE FEDERAL AUTHORITY

3. PROTECT CONSTITUTIONAL RIGHTS

4. PROCEDURAL ISSUES

OTHER AUTHORITY

1. PROTECTION OF FEDERAL PROPERTY

2. EMERGENCY

RESPONSIBILITIES AND RELATIONSHIPS OF PARTIES INVOLVED IN CIVIL DISTURBANCE OPERATIONS

1. ATTORNEY GENERAL

2. SENIOR CIVILIAN REPRESENTATIVE OF THE ATTORNEY GENERAL

3. ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND AMERICAS’ SECURITY

AFFAIRS

4. CHAIRMAN, JOINT CHIEFS OF STAFF, JOINT DIRECTOR OF MILITARY SUPPORT (JDOMS)

5. COMBATANT COMMANDERS, U.S. NORTHERN COMMAND AND U.S. PACIFIC COMMAND

6. COMMANDER, U.S. ARMY NORTH

7. COMMANDER, JOINT CIVIL DISTURBANCE TASK FORCE

8. NATIONAL GUARD BUREAU

9. THE NATIONAL GUARD

THE DEPARTMENT OF DEFENSE CIVIL DISTURBANCE PLANS (COMBATANT COMMANDERS’

CONPLANS)

1. CIVIL DISTURBANCE OPERATIONS MISSION

2. COMBATANT COMMANDERS’ CONPLANS

3. THE STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES

4. OTHER LEGAL CONSIDERATIONS

CHAPTER 6: COUNTERDRUG OPERATIONS

A. INTRODUCTION

B. TITLE 10 SUPPORT TO COUNTERDRUG OPERATIONS

1. NATIONAL DEFENSE AUTHORIZATION ACT OF 1991

2. DETECTION AND MONITORING

3. CJCS IMPLEMENTATION

4. COUNTERDRUG SUPPORT TASK FORCES

5. COAST GUARD LAW ENFORCEMENT DETACHMENTS

C. NATIONAL GUARD SUPPORT TO COUNTERDRUG OPERATIONS

CHAPTER 7: MILITARY SUPPORT TO SPECIAL EVENTS

A. INTRODUCTION

B. DESIGNATED SPECIAL EVENTS

1. TYPES OF EVENTS

100

2. REQUESTS FOR SUPPORT

102

C. INNOVATIVE READINESS TRAINING

103

1. INNOVATIVE READINESS TRAINING PROCEDURES

104

2. LEGAL CONSIDERATIONS FOR IRT PROJECTS

105

CHAPTER 8: MISCELLANEOUS DOMESTIC SUPPORT OPERATIONS

108

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Domestic Operational Law Handbook 2010

INTRODUCTION

108

DISASTER AND DOMESTIC EMERGENCY ASSISTANCE

109

1. MILITARY ASSISTANCE TO SAFETY AND TRAFFIC

109

2. SEARCH AND RESCUE OPERATIONS

111

3. EMPLOYMENT OF DOD RESOURCES IN SUPPORT OF U.S. POSTAL SERVICE

111

4. NATIONAL DISASTER MEDICAL SYSTEM

112

5. ANIMAL AND PLANT DISEASE ERADICATION

113

6. MASS IMMIGRATION EMERGENCY

114

7. IMPROVISED NUCLEAR DEVICE INCIDENTS

114

8. DOD RESPONSE TO RADIOLOGICAL ACCIDENTS

114

9. DOD SUPPORT TO WILDFIRES

115

ENVIRONMENTAL MISSIONS

119

MISSIONS IN SUPPORT OF LAW ENFORCEMENT

120

1. SUPPORT OF UNITED STATES SECRET SERVICE

120

2. IMAGERY INTELLIGENCE AND GEOSPATIAL SUPPORT

120

3. CRITICAL ASSET ASSURANCE PROGRAM

121

4. CONTINUITY OF OPERATIONS POLICIES AND PLANNING

121

5. EXPLOSIVE ORDNANCE DISPOSAL

121

COMMUNITY ASSISTANCE

122

1. NATIONAL GUARD ASSISTANCE FOR CERTAIN YOUTH AND CHARITABLE ORGANIZATIONS

123

2. SUPPORT AND SERVICES FOR ELIGIBLE ORGANIZATIONS AND ACTIVITIES OUTSIDE DOD

123

3. NATIONAL GUARD CIVILIAN YOUTH OPPORTUNITIES PROGRAM

124

4. ADDITIONAL ASSISTANCE PROGRAMS

124

PANDEMIC INFLUENZA

125

CHAPTER 9: NTELLIGENCE OVERSIGHT AND INFORMATION HANDLING DURING DOMESTIC AND DOMESTIC

SUPPORT OPERATIONS

128

A. INTRODUCTION

129

B. THE ROLE OF DOD INTELLIGENCE COMPONENTS IN DOMESTIC SUPPORT OPERATIONS

130

C. INFORMATION HANDLING AND THE ROLE OF DOD NON-INTEL COMPONENTS

133

D. THE NATIONAL GUARD

133

1. STATUS: TITLE 32 OR TITLE 10

134

2. COLLECTION VIA AN INTELLIGENCE ACTIVITY

135

3. METHOD OF COLLECTING

135

4. PURPOSE OF THE COLLECTION

136

E. JUDGE ADVOCATE RESPONSIBILITIES

137

CHAPTER 10: RESERVE COMPONENTS, CIVIL AIR PATROL, U.S. COAST GUARD - STATUS AND RELATIONSHIPS

138

A. INTRODUCTION

138

B. RESERVE COMPONENT

139

1. U.S. ARMY RESERVE (USAR)

139

2. U. S. AIR FORCE RESERVE (USAFR)

139

3. U. S. NAVAL RESERVE (USNR)

140

4. U. S. MARINE CORPS RESERVE (USMCR)

140

5. U.S. COAST GUARD RESERVE (USCGR)

140

6. NATIONAL GUARD OF THE UNITED STATES (NGUS)

141

C. RESERVE COMPONENT CATEGORIES

145

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Domestic Operational Law Handbook

1. READY RESERVE

145

2. STANDBY RESERVE

146

3. RETIRED RESERVE

147

RESERVE COMPONENT TRAINING AND SUPPORT

147

1. TRAINING

147

2. SUPPORT

148

3. MILITARY TECHNICIANS (DUAL STATUS) (MT)

149

MOBILIZATION/ACTIVATION OF RESERVE COMPONENT AND CALLING UP THE MILITIA

149

1. FULL MOBILIZATION (10 U.S.C A. § 12301(A))

150

2. PARTIAL MOBILIZATION (10 U.S.C A. § 12302(A))

150

3. PRESIDENTIAL RESERVE CALL-UP (PRC) (10 U.S.C A. § 12304)

150

4. INVASIONS AND REBELLIONS (10 U.S.C A. § 12406)

151

5. RESTORATION ACT (FORMERLY KNOWN AS THE INSURRECTION ACT) (10 U.S.C A. § 331-335)

151

15-DAY INVOLUNTARY FEDERAL ACTIVE DUTY (10 U.S.C A. § 12301(B))

151

VOLUNTARY FEDERAL ACTIVE DUTY (10 U.S.C A. § 12301(D))

151

MEDICAL CARE (10 U.S.C A. § 12301(H))

151

UNITED STATES COAST GUARD (USCG)

152

NATIONAL GUARD OF THE SEVERAL STATES

153

1. OVERVIEW

153

2. TITLE 32 STATUS

154

3. STATE ACTIVE DUTY

155

4. ANG/ARNG PERSONNEL CATEGORIES

155

5. UNIQUE HLS/HLD MISSIONS

157

6. MISCELLANEOUS AREAS OF CAUTION

158

CIVIL AIR PATROL (CAP)

161

JUDGE ADVOCATES

162

1. NATIONAL GUARD JUDGE ADVOCATES

162

2. U.S. ARMY RESERVE JUDGE ADVOCATES

162

3. U.S. AIR FORCE RESERVE JUDGE ADVOCATES

163

4. U.S. NAVAL RESERVE JUDGE ADVOCATES

163

5. U.S. MARINE RESERVE LEGAL SPECIALISTS

163

6. U.S. COAST GUARD RESERVE LEGAL SPECIALISTS

164

CHAPTER 11: RULES FOR THE USE OF FORCE FOR FEDERAL FORCES

165

A. INTRODUCTION

165

B. THE JUDGE ADVOCATE’S ROLE IN THE USE OF FORCE

166

C. PRACTICAL REALITIES OF USE OF FORCE SITUATIONS

167

1. CAPABILITIES AND LIMITATIONS

168

2. PHYSICAL AND PSYCHOLOGICAL EFFECTS

169

D. LEGAL AUTHORITY AND STANDARD FOR U.S. MILITARY USE OF FORCE IN DOMESTIC OPERATIONS

169

1. MINIMUM FORCE NECESSARY OR DEADLY FORCE AS A LAST RESORT

171

2. MANDATORY VERBAL WARNINGS

172

3. DENIAL OF DEADLY FORCE IN SELF-DEFENSE

172

4. OPERATIONAL ORDERS/EXECUTION ORDERS

172

5. SRUF AUTHORITY TO USE DEADLY FORCE

172

6. OTHER MISSION RELATED CIRCUMSTANCES FOR USE OF DEADLY FORCE

174

7. AUGMENTATION OF THE RUF

175

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Domestic Operational Law Handbook

2010

E. LIABILITY FOR SERVICE MEMBERS, LEADERS, AND RUF DRAFTERS IN USE OF FORCE SITUATIONS

175

1. FEDERAL CIVIL LIABILITY

175

2. FEDERAL CRIMINAL LIABILITY

177

3. STATE CIVIL AND CRIMINAL LIABILITY

177

F. OTHER TRIAL OR LITIGATION ISSUES

177

G. COMMON ISSUES IN DRAFTING AND TRAINING RUF

179

1. TRAINING OF JUDGE ADVOCATES

179

2. SRUF AND AREAS OF CONFUSION AND CONCERN

180

CHAPTER 12: RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD

181

A. INTRODUCTION

181

B. RUF AND STATE CRIMINAL LAWS

182

1. STATE LAW APPLICABLE TO BOTH TITLE 32 AND SAD STATUSES

182

2. SUBJECTS FOR INCLUSION IN STATE RUF FOR THE NATIONAL GUARD

183

C. SPECIFIC RUF ISSUES

189

1. RUF IN INTER-STATE (CROSS BORDER) OPERATIONS

189

2. STATE CRIMINAL LIABILITY OF NATIONAL GUARD MEMBERS FOR USE OF FORCE

191

3. RUF IN MIXED NATIONAL GUARD AND ACTIVE COMPONENT OPERATIONS

194

D. ROLE OF THE NATIONAL GUARD JUDGE ADVOCATE

194

1. DRAFTING RUF

194

2. NEGOTIATING RUF WITH STATE AGENCIES

194

3. PROVIDING LEGAL ADVICE ON LIABILITY

195

4. TRAINING

195

CHAPTER 13: FUNDING DOMESTIC SUPPORT OPERATIONS

197

INTRODUCTION: BASIC FISCAL LAW FRAMEWORK

198

BASIC FISCAL CONTROLS

199

1. PURPOSE

199

2. TIME

200

3. AMOUNT

201

MILITARY ASSISTANCE TO CIVIL AUTHORITIES

202

DODD 3025.15

203

DISASTER AND EMERGENCY RELIEF

204

1. IMMEDIATE RESPONSE AUTHORITY

205

2. DERF

205

3. DISASTER SUPPORT INVOLVING LAW ENFORCEMENT AUTHORITIES

206

CIVIL DISTURBANCES

206

SUPPORT TO CIVILIAN LAW ENFORCEMENT

207

1. ECONOMY ACT

208

2. MISCELLANEOUS RECEIPTS

208

3. EXCESS PROPERTY

209

4. EXPERT ADVICE AND TRAINING

210

5. SHARING INFORMATION

211

COUNTERDRUG SUPPORT

211

1. DETECTION AND MONITORING

211

2. ADDITIONAL SUPPORT

212

INNOVATIVE READINESS TRAINING

213

Table of Contents

Domestic Operational Law Handbook 2010

PREFACE

Paul McHale

Former Assistant Secretary of Defense

Homeland Defense & Americas’ Security Affairs¹

“As our cause is new, so must we think anew and act anew.”

Abraham Lincoln

During the past eight years the Department of Defense has initiated a series of fundamental

changes—in both culture and operational capability—in order to better protect the U.S. homeland

from catastrophic events, natural and manmade. By necessity, these changes are closely linked to

an evolving assessment of the 21^st century threat environment. The legal implications associated

with these changes are inevitably profound. Indeed, they go to the very definition of the military’s

proper role within domestic society—reigniting in the process a public policy debate that is as old

as the Republic itself.

For lawyers within the Department of Defense the professional challenge is immediate and

rewarding—the stakes involve core questions of national security, public safety and the preservation

of essential liberty. In my judgment, this new edition of the Domestic Operational Law Handbook

is the seminal compilation of legal authorities (and related analysis) relevant to DOD’s homeland

defense and civil support missions.

For most of our nation’s history the United States was effectively buffered by two great oceans and

secured by the war fighting capabilities of forward deployed combat forces. Moreover, a significant

threat to our country’s security generally required the collective resources and manpower of an

adversarial nation state—or frequently, a coalition of hostile nation states. The CBRNE technology

of the 21^st Century has shattered that paradigm.

The brutal attack of September 11, 2001, should not be seen as an isolated event, but rather, as a

case study in modern conflict. While DOD must remain ever vigilant in guarding against the

continuing threat from aggressive nation states, it is now clear that the asymmetric threat from

terrorist organizations—or even isolated individuals—when strengthened by WMD destructive

power, can pose a fundamental challenge to public safety and our vital institutions of government.

The assumptions contained in the Strategy for Homeland Defense and Civil Support captured the

current threat in stark terms:

¹ In 2003, President George W. Bush appointed Mr. Paul McHale the first Assistant Secretary of Defense for Homeland

Defense. Mr. McHale served in that capacity until January, 2009. The title of the position was later changed to

Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs to reflect the increased

responsibilities of the position. Previously, Mr. McHale served five terms in the Pennsylvania General Assembly - from

1982 to 1991. He resigned in 1991 and volunteered for active duty as a Marine Corps Infantry officer, seeing duty in

Operations Desert Shield and Desert Storm. He was subsequently elected from the 15^th Congressional District in

Pennsylvania to the U.S. House of Representatives. Mr. McHale served in the U.S. House of Representatives for three

consecutive terms. Prior to his appointment by President Bush, Mr. McHale served as the Vice President of Tallman,

Hudders, and Sorrentino. He is currently employed with McKenna, Long, and Aldridge, LLP. Mr. McHale earned a

J.D. from Georgetown University and a B.A. with highest honors from Lehigh University.

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Domestic Operational Law Handbook

• Terrorists will seek and potentially gain surreptitious entry into the United States to conduct

mass casualty attacks against Americans on U.S. soil.

• Terrorists will exploit our vulnerabilities to create new methods of attack.

• Terrorists and/or rogue states will attempt multiple, simultaneous mass casualty CBRNE attacks

against the U.S. homeland.

• Terrorists will try to shape and degrade American political will in order to diminish American

resistance to terrorist ideologies and agendas.

On the morning of September 11, 2001, the United States was poorly prepared to detect, deter and

defeat the asymmetric threat. For the most part, the Department of Defense was still organized as it

had been during the Cold War. In many ways, outdated concepts of attrition warfare continued to

shape military training, task organization and equipment. Indeed, at the time of Al Qaeda’s barbaric

attack, the very concept of a focused “homeland defense” did not yet exist—and “civil support”

missions were seen as unwanted and expensive diversions from core national security requirements.

By the end of that fateful day, however, it was manifestly clear that defenses developed to counter

the 20^th Century Soviet threat were wholly inadequate to defeat transnational terrorist adversaries,

employing asymmetric tactics, in a vastly different 21^st Century threat environment. It was also

clear that the terrorist threat would not likely change. Therefore, DOD had to.

As a result, between 2002 and 2008, the Department of Defense began an on-going series of

fundamental force transformations. United States Northern Command was created in 2002. The

Office of the Assistant Secretary of Defense for Homeland Defense was established by law in 2003.

The Strategy for Homeland Defense and Civil Support was published in 2005.

During this period, the National Guard grew from just nine Civil Support Teams (CSTs) to 53

certified. And as a direct result of far sighted National Guard leadership, seventeen CBRNE

Emergency Response Force Packages (CERFPs) were established and certified. Most significantly,

the Deputy Secretary of Defense directed the creation of three CBRNE Consequence Management

Response Forces (CCMRFs)—essentially joint task forces, each manned by 4,700 military

personnel, highly trained for domestic catastrophic response. In a clear and compelling break with

past practice, the first CCMRF was immediately assigned to NORTHCOM, with the further

expectation that the remaining two CCMRFs would be similarly assigned in 2010 and 2011.

Upon full implementation of these changes, more than 20,000 active duty military personnel will

soon have—as their primary mission—domestic catastrophic response. This military capability—

though sensible and even admirable in its operational value—raises important questions of law and

public policy.

In Federalist 8, Alexander Hamilton presciently noted the danger in relying excessively upon

military forces to ensure domestic security. His cautionary words remain relevant today. The

preservation of innocent life—and liberty—requires that domestic military missions be subject to

very close scrutiny—by civilian DOD leadership, the Congress, the media, and the courts. To that

end, it is essential that military lawyers provide clear and informed guidance with regard to

domestic military missions, assessing the express language of applicable law, as well as the

fundamental propriety of any proposed military mission when judged in the larger context of

American history.

The recently published Quadrennial Roles and Missions Review Report listed six Core Mission

Areas for DOD—the first listed is “Homeland Defense and Civil Support.” The combined HD/CS

Preface

Domestic Operational Law Handbook 2010

annual budget will soon exceed $25 billion. And when asked last year whether homeland defense

could now be considered a military mission of peer importance when compared to power projection

and overseas war fighting, Secretary Gates responded without hesitation that the domestic security

of the American people is the pre-eminent mission of DOD.²

Although the brutality of the September 11^th attack initially brought an anti-terrorism focus to

Defense Support of Civil Authorities (DSCA) missions, the destruction wrought by Hurricane

Katrina in 2005—and the ineffectiveness of our nation’s response—served as a potent reminder that

acts of nature can also have a catastrophic impact upon life and property. Indeed, when DOD

subsequently planned for DSCA missions in anticipation of a potential pandemic influenza

outbreak, we soon realized that many pandemic mission capabilities could build upon the lessons

learned from Hurricane Katrina. And similarly, it quickly became apparent that the planning for

contingent military missions during a pandemic outbreak had great relevance to foreseeable DSCA

missions during a terrorist CBRNE event.

While each catastrophic event has unique characteristics, DOD’s DSCA missions have a remarkable

degree of consistency in required training, equipment, force integration and command. In many

ways the sheer magnitude of a catastrophic event—as much as its cause—will define the

department’s DSCA roles and responsibilities. Lawyers should consider this issue of scale in

reviewing the proper legal framework of relevant interagency and intergovernmental authorities. If

a nuclear device were to be detonated on American soil, must the Secretary of Defense wait

passively for the inevitable Stafford Act declaration? Can he immediately begin deploying tens of

thousands of military forces—active, reserve and National Guard—in a massive consequence

management mission? If he can and must act, by what legal authority does he do so?

It has now become clear that the domestic military missions assigned to DOD require an

unprecedented level of interagency and intergovernmental cooperation, in both planning and

execution. Whether in the realm of Article II war fighting or Stafford Act civil support, DOD’s

roles and responsibilities can only be understood in a larger context of federal, state and local

integration. As a result, the legal issues are inherently complex, frequently contentious, and often

fundamental to the security and civil liberty of our citizens. The newly implemented Task Force for

Emergency Readiness (TFER)³ pilot program, endorsed by the Secretary of Defense, offers great

promise to achieve joint planning and operational integration in this area.

While many challenging legal questions have been answered in recent years, more than a few have

not. Pursuant to the provisions of the amended Defense Against Weapons of Mass Destruction Act,

what are NORTHCOM’s foreseeable missions in preventing a WMD attack on our own soil? What

are the lawful “homeland defense” missions now assigned to the National Guard in Title 32? What

domestic counterterrorism missions—in support of civilian law enforcement—may now be

executed by JTF-North? What is the scope of authority granted to the President under the

Insurrection Act when dealing with the inevitable panic and domestic chaos in the immediate

² Secretary of Defense, The Honorable Dr. Robert M. Gates.

³ The Task Force for Emergency Readiness pilot was implemented by the Secretary of Defense September 1, 2008 with

an expected duration of 18 months. The Task Force’s mission is develop State specific emergency management plans

that take into account the extant strengths and weaknesses of the individual states. The Task Force is composed of

planners, under the leadership of the respective Governor, from the State emergency management office, the state

National Guard, the Department of Homeland Security, and the Department of Defense.

iii

Preface

Domestic Operational Law Handbook

aftermath of a WMD attack? Under such circumstances, what authority does the President have to

involuntarily activate and federalize the National Guard? Under current law, must the Department

of Homeland Security always be the Lead Federal Agency in responding to the consequences of a

domestic catastrophic event? Could the President lawfully designate that responsibility to another

federal agency?

During the six years in which I served as Assistant Secretary of Defense for Homeland Defense &

Americas’ Security Affairs, I routinely quoted from the DOPLAW Handbook when advising the

Secretary of Defense. I gave copies of the Handbook to two Secretaries of DHS and several in-

coming NORTHCOM commanders. I passed out DOPLAW copies to dozens of senior officials

throughout the federal interagency. It is a superb compilation of comprehensive legal authorities,

effectively presented in a format that very knowledgeably describes the reality of DOD’s war

fighting and civil support missions. In short, it is the starting point for any competent lawyer’s

professional understanding of the 21^st Century threat environment—an environment in which

terrorists are fanatically committed to the belief that the U.S. homeland is the ultimate battle space.

In every sense, the DOPLAW Handbook is both past and prologue.

Paul McHale

24 May 2009

Preface

Domestic Operational Law Handbook 2010

CHAPTER 1

OVERVIEW OF DOMESTIC SUPPORT OPERATIONS

A. Background

Traditionally, the foremost task of the U.S. military has been to fight and win the nation’s wars.¹ It

has done so primarily by the projection of military power overseas. Since the terrorist attacks of

September 11, 2001, however, the Department of Defense’s (DoD) highest priority has been the

protection of the homeland from direct attack.² Additionally, the extraordinary destruction wrought

by Hurricane Katrina in August and September 2005 reminded us that threats to our homeland,

people, property and economy are not always the result of acts of man.

Since September 11, 2001, the Federal government has taken aggressive and wide ranging steps to

better address the threat of direct attack on the United States, and to prepare for and respond to the

challenges of natural or manmade disasters. Through the Homeland Security Act of 2002,⁴

Congress created the Department of Homeland Security (DHS)—an executive agency that

consolidated the functions and responsibilities of more than a dozen federal agencies and

departments, including the U.S. Coast Guard, the Federal Emergency Management Agency

(FEMA), the Immigration and Naturalization Service, the Transportation Security Administration,

and the Secret Service, among others.⁵ As required by law, DHS immediately began an effort to

develop a coordinated system of response by civil authorities at all levels of government. The

National Response Framework, published in January 2008, is the result of that effort.⁶

In 2002, DoD created the first Combatant Command, U.S. Northern Command (USNORTHCOM),

with direct responsibility for the defense, protection and security of the continental United States,

Alaska, and the territorial waters including the Gulf of Mexico and the Straits of Florida. In

conjunction with U.S. Pacific Command (USPACOM) and U.S. Southern Command

(USSOUTHCOM), DoD now has Combatant Commands whose combined geographic

responsibilities cover all States and territories of the United States. In June 2005, DoD published

the Strategy for Homeland Defense and Civil Support, setting out the Department’s vision for

transforming homeland defense and support to civil authorities.⁷

¹ National Military Strategy, p. 3, 2004, available at, http://www.defenselink.mil/news/Mar2005/d20050318nms.pdf

[hereinafter National Military Strategy].

² Strategy for Homeland Defense and Civil Support, Foreward, June 2005, available at,

http://www.defenselink.mil/news/Jun2005/d20050630homeland.pdf.

³ Federal analysis indicates that the direct toll in lives and treasure from natural disasters in recent decades far outweighs

that from terrorist attacks. See Financing Recovery from Large-Scale Natural Disasters, CRS, February 9, 2009; and

9/11 Terrorism: Economic Global Costs, CRS, October 5, 2004.

⁴ Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified primarily at 6 U.S.C. §§ 101-

557) [hereinafter HSA 2002].

⁵Id.

⁶ DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, Jan. 2008[hereinafter NRF], available at,

http://www.fema.gov/emergency/nrf,or DOPLAW Handbook, Supp. App. 2-18. The NRF superseded the National

Response Plan (NRP) published in 2005.

⁷See Strategy for Homeland Defense and Civil Support, supra note 2, Foreword, p. iii.

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Domestic Operational Law Handbook

B. Purpose of This Handbook

DoD organized its mission of homeland defense and civil support into three complimentary

categories: Lead, Support, and Enable.⁸

“Lead” refers to DoD’s mission to “dissuade, deter, and

defeat attacks upon the United States.”⁹

“Support” reflects DoD’s mission to assist civil authorities

in recovering from an attack or disaster.¹⁰ And, “Enable” sets out DoD’s mission to improve the

“security contributions of domestic and international partners” and its own capabilities.¹¹ While

each represents a distinct category of activities contained in the Strategy for Homeland Defense and

Civil Support, the functions performed within the categories act in concert to strengthen the nation,

prepare for any incident, defend against any attack, and recover from any disaster.

This handbook focuses on the latter categories of this strategy, Support and Enable. Circumstances

involving the exercise of homeland defense (HD) authority and capabilities; i.e. “dissuade, deter,

and defeat”, are beyond the scope of this handbook. Nevertheless, actions taken within the HD

function may directly impact DoD’s civil support (CS) mission once an event has occurred.

Likewise, for ongoing events or continuing attacks, CS actions may contribute immediately to HD

capabilities.

C. DoD’s Role in Civil Support

Military civil support operations are neither new nor limited to a single service. The military has

long provided assistance in times of disaster and has routinely provided support to state and

territorial governors, even historically having administered governmental affairs until local

governance was established.¹² During the final year of the Civil War, Army officers provided

disaster relief through the Freedman’s Bureau.¹³ In the late Nineteenth Century, the Army played a

direct role in many disaster relief operations including the great Chicago fire, the Johnstown Flood,

and the earthquake at Charleston, South Carolina. Similar support continued throughout the

Twentieth Century to the present.

National Guard (NG) units, under the control of state Governors and The Adjutants General

(TAGs),¹⁴ have traditionally been the primary military responders in domestic operations and

emergencies. The use of federal forces to support state and local governments was, and remains,

the exception rather than the rule. Federal forces are generally used only after state resources are

exhausted or overwhelmed and federal assistance has been requested by state officials.

⁸Id. at 2.

⁹Id.

¹⁰Id.

¹¹Id.

¹²U.S. DEP’T OF ARMY, FIELD MANUAL 3-07 STABILITY OPERATIONS AND SUPPORT OPERATIONS, 6-1 (20 February

2003)[hereinafter FM 3-07]. This publication supersedes FM 100-20/AF Pam 3-20; 5 December 1990, FM 100-23;

December 1994, FM 90-29; 17 October 1994, and FM 100-19/FMFM 7-10; July 1993.

¹³ U.S. Bureau of Refugees, Freedmen, and Abandoned Lands.

¹⁴ In “state status,” National Guard personnel are under the control of the particular Governor and TAG. “state status”

includes “state active duty (SAD)” and Title 32—traditional Guard status. See infra Chapter 10, Reserve Components -

Special Issues, for further discussion of National Guard status.

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Overview of Domestic Support Operations

Domestic Operational Law Handbook 2010

DOD has capabilities and resources uniquely suited to support U.S. civil authorities. DoD consists

of trained, disciplined personnel and organizations capable of rapidly responding to a broad

spectrum of emergencies on a short-notice basis. Military personnel and their associated

equipment, although organized to conduct combat operations, can often be effectively employed in

civil support operations. Consequently, DoD will continue to be called upon to assist civil

authorities.¹⁵ In these instances, DoD’s role is one of support—civilian authorities retain primary

responsibility for domestic operations.¹⁶

U.S. domestic law, Presidential Decision Directives (PDDs),¹⁷ National Security Presidential

Directives (NSPD) and Homeland Security Presidential Directives (HSPDs), ¹⁸ Executive Orders

(EOs), and DoD regulations provide the framework for, and set limits on, the use of military forces

to assist civil authorities. While the types of domestic support operations vary widely, two forms of

statutory restrictions may limit the scope of support. Judge advocates must carefully consider

whether the Posse Comitatus Act¹⁹ or fiscal law constraints,²⁰ as well as policy limitations, apply

when reviewing a proposed domestic support operation.

While HD authority and capabilities are beyond the scope of this publication, it is important to

recognize how the Department of Defense contributes to this larger strategic construct in addition to

providing necessary civil support.

On September 11, 2003, U.S. Northern Command (USNORTHCOM) reached full operational

capability. Its current mission statement:

USNORTHCOM anticipates and conducts Homeland Defense and Civil Support

operations within the assigned area of responsibility to defend, protect and secure the

United States and its interests.

This mission statement recognizes the unique dual roles for U.S. NORTHCOM in HD and CS, in

addition to standard Geographic Combatant Commander (GCC) assigned responsibilities.²²

Because of its responsibility for operations in the homeland, USNORTHCOM is engaged in nearly

constant liaison with our national leadership and with the federal agencies who would lead civil

support operations.

¹⁵ U.S. DEP’T OF DEFENSE, DIR. 3025.15, MILITARY ASSISTANCE TO CIVIL AUTHORITIES (18 Feb. 1997) [hereinafter

DoDD 3025.15]. U.S. DEP’T OF DEFENSE, DIR. 3025.DD DEFENSE SUPPORT OF CIVIL AUTHORITIES is scheduled to be

published in late 2010.

¹⁶See Strategy for Homeland Defense and Civil Support, supra note 2, Executive Summary, p. 2.

¹⁷ The Presidential Decision Directive (PDD) series is the mechanism used by the Clinton Administration to promulgate

Presidential decisions on national security matters.

¹⁸ In the George W. Bush Administration, the directives used to promulgate Presidential decisions on national security

matters are designated National Security Presidential Directives (NSPDs) and those on homeland security matters are

designated Homeland Security Presidential Directives (HSPDs). Unless otherwise indicated, past directives of previous

administrations remain in effect until superseded.

¹⁹18 U.S.C. § 1385. See infra Chapter 4.

²⁰See infra Chapter 13.

²¹ The geographic area of responsibility for USNORTHCOM also contains Mexico, Canada, Bermuda, and portions of

the Caribbean. The exact dimensions of this geographic area are contained in the Unified Command Plan.

²² Duties and assignments for Combatant Commanders are contained in the Unified Command Plan.

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Overview of Domestic Support Operations

Domestic Operational Law Handbook

Acknowledging the value of civil support that DoD can offer, Congress has enacted laws allowing

federal agencies to request support from the military during domestic operations. These laws

emphasize DoD’s supporting role in civil support operations. Further, these laws acknowledge that

the NG, while in state status, has primary responsibility for providing initial support to state and

local civil authorities.²³

When federal forces respond in this support role, they operate under the direction of a designated

lead federal agency (LFA). Federal laws recognize the importance of interdepartmental and

interagency coordination and planning in this area. For example, the National Response

Framework (NRF)²⁴ is designed to maximize unity of effort when federal agencies work together to

respond to domestic emergencies.

In summary, DoD provides federal military assistance only when civil resources are insufficient,

when requested to do so by appropriate civil authorities, and when properly ordered to do so by

DoD officials. In domestic operations, NG units and personnel, in non-federal status²⁵ and under

the command of their respective Governors, have primary responsibility for providing military

assistance to local governments. Only when state and local government resources are exhausted or

inadequate, and support is requested by the state, will the federal government provide the necessary

support.

D. Defense Support of Civil Authorities (DSCA)²⁶

The primary reference for all DoD support to domestic operations is DoD Directive (DoDD)

3025.15, Military Assistance to Civil Authorities.²⁷ This umbrella directive governs provision of all

DoD military assistance to U.S. civil authorities (MACA), and encompasses a variety of specific

types of support.²⁸ See Figure 1-1, below.

DoDD 3025.15 provides criteria against which all requests for support must be evaluated. The

criteria are addressed to approval authorities, but commanders at all levels should be cognizant of

these requirements when forwarding a recommendation for military support through the chain of

command. The criteria are:

• Legality - compliance with the law.

• Lethality - potential use of lethal force by or against DoD forces.

• Risk - safety of DoD forces.

• Cost - who pays and the impact on DoD budget.

• Appropriateness - whether it is in the interest of DoD to provide the requested support.

²³FM 3-07, supra note 12, 6-14.

²⁴ National Response Framework, supra note 6.

²⁵See infra Chapter 10, Reserve Components - Special Issues, for further discussion of National Guard status.

²⁶ MACA and MSCA now come under the term Defense Support of Civil Authorities (DSCA) in the National Response

Framework (NRF). See National Response Framework, supra note 6.

²⁷ DoDD 3025.15, supra note 15.

²⁸ The types of military support to domestic operations include military support to civil authorities (MSCA), military

assistance for civil disturbances (MACDIS), military support to civil law enforcement (MSCLEA), continuity of

operations plan (COOP), sensitive support (SS), counterdrug (CD), counter-terrorism (CT) and consequence

management (CM).

Chapter 1

Overview of Domestic Support Operations

Domestic Operational Law Handbook 2010

Defense Support of Civil Authorities (DSCA)

MACA

Umbrella Policy

DODD 3025.15

MSCA

MACDIS

Support to Law

Military Support to Civil

Military Assistance for

Enforcement

Authorities (Disasters)

Civil Disturbance

DODD 3025.1

DODD 3025.12

CBRNE

Counter Drug

Sensitive

Chem, Biological, Radiol.,

Nuclear, High-Yield Expl.

CJCSI 3710.01A

Support

Interim DODD

DODD S-5210.36

• Readiness - impact on DoD’s ability to perform its primary mission.

Figure 1-1, Defense Support of Civil Authorities

DoDD 3025.15 also outlines the roles and responsibilities of each DoD component and establishes

request procedures and approval authorities for each type of domestic support operation. DoDD

3025.15 changes the approval authority, in certain cases, from that set forth in older directives, but

the older directives have not been changed and are otherwise applicable. The Secretary of Defense

has reserved approval authority of DoD support for civil disturbances and for responses to acts of

terrorism. The various types of domestic support authorities are covered in more detail in specific

Directives and Instructions set out in their respective chapters.

E. Handbook Organization

The phrase “domestic support operations” covers a broad category of DoD operations within United

States. This handbook will address all aspects of DoD’s civil support mission. However, in order

to understand the context of that support, it is necessary to begin with an appreciation of the Federal

government’s approach in preparing for and responding to any major domestic emergency or

disaster, whether the result of a terrorist attack, an industrial accident, or the forces of nature.

We begin that discussion in this handbook with an explanation of the National Security Strategy and

its implementation by key Federal agencies. In particular, chapter 3 provides an initial discussion of

the National Response Framework and the Department of Homeland Security since, in the majority

of emergency and disaster response operations, it will serve as the lead Federal agency (LFA) to

which DoD lends its support. From there, the handbook covers DoD’s strategy for civil support,

and then chapter by chapter, discusses its role in the various forms of domestic support operations.

Each chapter stands on its own and can be used by judge advocates to develop an understanding of

specific types of operations, authorities and limitations. However, each chapter is best understood

Chapter 1

Overview of Domestic Support Operations

Domestic Operational Law Handbook 2010

CHAPTER 2

NATIONAL FRAMEWORK FOR INCIDENT MANAGEMENT

KEY REFERENCES:

•

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et

seq., as amended

•

Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) as amended.

•

Pollution Control Act of Oct. 18, 1972, as amended, and the Oil Pollution Act of 1990 (1991),

as amended.

•

Executive Order 12241 - National Contingency Plan (1980), as amended.

•

Executive Order 12472 - Assignment of National Security and Emergency Preparedness

Telecommunications Functions (1984), as amended.

•

Executive Order 12580 - Superfund Implementation (1987), as amended.

•

Executive Order 12656 -Assignment of Emergency Preparedness (1988) Responsibilities,

(1988), as amended.

•

Executive Order 12657 - Federal Emergency Management Agency Assistance in Emergency

Preparedness Planning at Commercial Nuclear Power Plants (1988), as amended.

•

Executive Order 12777 - Implementation of Section 311 of the Federal Water

•

Executive Order 13286 - Amendment of Executive Orders, and Other Actions, in Connection

with the Transfer of Certain Functions to the Secretary of Homeland Security (2003).

•

NSPD 46 - U.S. Strategy and Policy in the War on Terror (S), March 6, 2006

•

HSPD 15 - U.S. Strategy and Policy in the War on Terror (classified directive), March 6, 2006

•

PDD 63 - Critical Infrastructure Protection, May 22, 1998.

•

HSPD 5 - Management of Domestic Incidents, February 28, 2003.

•

HSPD 8 - National Preparedness, December 17, 2003.

•

HSPD 8, Annex I - National Planning

•

42 U.S.C. § 9605 - National Contingency Plan

•

50 U.S.C. § 2061, et seq. - Defense Production Act of 1950

•

DoDD 3025.1, Military Support to Civil Authorities, 15 Jan 93

•

DoD 3025.1-M, Manual for Civil Emergencies

•

National Response Framework (NRF), January 2008

•

National Incident Management System (NIMS)

•

National Oil and Hazardous Substances Pollution Contingency Plan

The Federal Response Structure

In the two decades that began in 1988 when President George H.W. Bush promulgated Executive

Order (EO) 12656, through March 2008 and the implementation of the National Response

Framework, the Federal government significantly changed its approach to preventing, preparing for,

and responding to a major domestic incident. The changes came in fits and starts; at times they

were incremental, at others, monumental. This chapter addresses the Federal government’s current

system for domestic all-hazard incident management, as well as the vital role of the Stafford Act as

the primary authority for the use of Federal resources to assist States and local governments

accordingly.

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HSPD-5

Homeland Security Presidential Directive 5 (HSPD-5), “Management of Domestic Incidents,”

established a new means to federal emergency management.¹ It centers on the practical necessity

that all levels of government across the nation have a single, unified approach toward managing

domestic incidents. Pursuant to the Homeland Security Act of 2002, HSPD-5 tasked the Secretary

of Homeland Security to develop and administer a National Response Plan (subsequently, the

National Response Framework (NRF)) that would integrate federal government domestic

prevention, preparedness, response and recovery plans into one all-discipline, all-hazards plan. It

also tasked the Secretary of Homeland Security to develop and administer a National Incident

Management System (NIMS) that would unify federal, state and local government capabilities to

work together to prepare for, respond to and recover from domestic events regardless of cause, size

or complexity. The intent of the NRF and NIMS is to provide the structure and mechanisms for

establishing national level policy and operational direction regarding federal support to state and

local incident managers.

HSPD-5 also reaffirmed the Secretary of Homeland Security’s responsibility as the principal federal

official (PFO) for domestic incident management. HSPD-5 tasked the Secretary of Homeland

Security with coordinating the federal government’s resources in response to, or recovery from

terrorist attacks, major disasters or other emergencies. This coordination responsibility exists when

any one of the following four conditions applies: (1) a federal department or agency acting under its

own authority has requested the assistance of the Secretary; (2) the resources of state and local

authorities are overwhelmed and federal assistance has been requested by the appropriate state and

local authorities; (3) more than one federal department or agency has become substantially involved

in responding to the incident; or (4) the secretary has been directed by the President to assume

responsibility for managing the domestic incident.² Table 2-1 summarizes the roles and

responsibilities established by HSDP-5.

HSPD-5 also eliminates the previous distinction, established in PDD-39, between crisis

management and consequence management, instead treating the two “as a single, integrated

function, rather than as two separate functions.”³ Whereas under the old FRP the Attorney General

was the overall lead federal official for the government’s response until the crisis management

phase of the response was over, now, under the NRF, the Secretary of Homeland Security remains

the lead federal official for the duration of the period involving federal assistance. Despite HSPD-5

erasing the distinction between crisis management and consequence management, the Directive

reaffirms the Attorney General’s authority as the lead official for conducting criminal investigation

of terrorist acts or terrorist threats.⁴

¹ Homeland Security Presidential Directive 5, Management of Domestic Incidents, 28 Feb. 2003.

²Id.

³Id.

⁴Id.

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Departments & Agencies

Roles and Responsibilities

Federal Government

Sec. 3 Declares that the U.S. Government policy is to treat crisis management and

consequence management as a single, integrated function, rather than as two

separate functions

Secretary of Homeland

Sec. 4 Assigns Secretary of Homeland Security responsibility for coordinating

Security

federal operations within the U.S. to prepare for, respond to, and recover from

terrorist attacks, major disasters, and other emergencies.

Sec. 15 Tasks the Secretary of Homeland Security to develop and administer a

National Incident Management System (NIMS)

Sec. 16. Tasks the Secretary of Homeland Security to develop and administer a

National Response Plan (NRF)

Attorney General

Sec. 8 Reaffirms the Attorney General’s role as having lead responsibility for

criminal investigations of terrorist acts or terrorist threats.

Table 2-1: Roles and Responsibilities Established by HSPD - 5

2. HSPD-8 and the National Preparedness Guidelines

HPSD-8 “National Preparedness” complements HSPD-5. The purpose of the directive is to

establish the following:

policies to strengthen the preparedness of the United States to prevent and respond to

threatened or actual domestic terrorist attacks, major disasters, and other

emergencies by requiring a national domestic all-hazards preparedness goal,

establishing mechanisms for improved delivery of Federal preparedness assistance to

state and local governments, and outlining actions to strengthen preparedness

capabilities of Federal, state, and local entities.⁵

The directive calls on the Secretary of Homeland Security to work with Federal departments and

agencies in conducting preparedness activities and training, as well as develop and maintain a

system to collect and analyze best practices. The heads of other Federal departments and agencies

are also tasked with supporting the national preparedness goal.⁶

HSPD-8, Annex I, National Planning, is discussed at section F, below.

3. Executive Order 12656: Emergency Preparedness and Response Responsibilities

Executive Order 12656 assigns national security emergency preparedness responsibilities to Federal

departments and agencies, delegating to the Department of Homeland Security primary

responsibility for coordinating the efforts of, among other things, federal emergency assistance.⁷

This Executive Order identifies several departments/agencies, e.g., Defense, Energy, Health and

Human Services, that have an active, and potentially overlapping, role regarding nuclear, biological,

⁵ Homeland Security Presidential Directive 8, National Preparedness, December 17, 2003.

⁶Id.

⁷ Executive Order 12656, “Assignment of Emergency Preparedness Responsibilities,” November 18, 1988, as amended.

See also Executive Order 12148, “Federal Emergency Management”, July 20, 1979, which transferred to FEMA

responsibility for coordinating Federal response to civil emergencies at the regional and national level.

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and chemical (NBC) assessment and response. It also identifies primary and support functions to be

performed during any national security emergency of the United States; development of plans for

performing these functions; and development of the capability to execute those plans. As part of

preparedness, the Executive Order mandates that the heads of Federal Agencies plan for continuity

of government in the event of a national security emergency and plan for the mobilization of agency

alternative resources. In assigning areas of responsibility for domestic preparedness, the Executive

Order provided the foundation for the former Federal Response Plan.

The Executive Order establishing the Office of Homeland Security⁸ amended EO12656 to account

for the responsibilities of the new office within the functional and legal structure of emergency

preparedness. This Executive Order identifies primary and support functions to be performed

during any national security emergency of the United States, development of plans for performing

these functions, and development of the capability to execute those plans. Table 2-2 highlights the

major areas of responsibility for several of the agencies identified in EO 12656, as amended by EO

13286.⁹

Departments &

Roles and Responsibilities

Agencies

Continuation of agricultural production, food processing, storage, and distribution; forest

products; fires in rural areas; forestry and agricultural services, including control of

Department of

diagnosis and control of diseases, pests, or biological, chemical, or radiological agents;

Agriculture

livestock and poultry or their products; agricultural commodities and land exposed to or

affected by hazardous agents. Support: Assist Secretary of Defense in formulating and

carrying out plans for stockpiling strategic and critical agricultural materials.

Military response; national mobilization; damage assessment; support to civil and private

sector, including law enforcement within authority; respond to all hazards related to

Department of Defense

nuclear weapons, materials, and devices; through the Secretary of the Army, manage and

allocate all usable waters within U.S. jurisdiction; stockpile of storage and critical

materials. Support: civil and military national mobilization.

Identify, analyze, assess, and mitigate hazards from nuclear weapons, materials, and

devices; all emergency response activities pertaining to DOE nuclear facilities.

Department of Energy

Support: advise, assist, and assess the radiological impact associated with national

security emergencies.

Mobilize health industry and resources to provide health, mental health, and medical

services; allocate health, mental health, and medical services’ resources among civilian

and military claimants; reduce or eliminate adverse health and mental health effects

Department of Health

produced by hazardous agents (biological, chemical, or radiological); minimize property

and Human Services

and environmental damage; emergency human services, e.g., feeding, registration and

inquiry, social services, family reunification, mortuary services and interment. Support:

agricultural health services.

⁸Executive Order 13228.

⁹Executive Order 13286, “Executive Order Amendment of Executive Orders, and Other Actions, in Connection with

the Transfer of Certain Functions to the Secretary of Homeland Security,” February 28, 2003, transferred key functions

of FEMA to the Department of Homeland Security.

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Primary: Advise National Security Council on issues of national security emergency

preparedness, including mobilization preparedness, civil defense, continuity of

government, technological disasters, and other issues, as appropriate. Coordinate with

Department of Homeland

the other Federal departments and agencies and with state and local government to

Security

implement national security emergency preparedness policy. Support: preparing plans

and programs, to include plans and capabilities for related to nuclear emergencies;

promote programs for Federal buildings and installations.

Interdict and respond to terrorism incidents in the United States; advise the President and

departments/agencies regarding national security emergency powers, plans, and

authorities; Coordinate Federal Government domestic law enforcement activities related

Department of Justice

to national security emergency preparedness, respond to civil disturbances that may

result in a national security emergency. Support: the intelligence community in the

planning of its counter-intelligence and counter-terrorism programs.

Meet essential transportation needs; provide direction to all modes of civil transportation;

control civil transportation resources and systems; coordinate with state and local

highway agencies in the management of all publicly owned or other highways, roads,

Department of

streets, bridges, tunnels; maritime and port control, safety, law enforcement and security.

Transportation

Support: Energy to manage transportation resources involved in the bulk movement of

energy materials; Federal departments/agencies, state and local governments, the private

sector in developing plans to protect essential resources and facilities.

Table 2-2: EO 12656 Roles and Responsibilities during a National Security Emergency

The National Response Framework (NRF)¹⁰

The NRF establishes a comprehensive, national, all-hazards approach to domestic incident

management across a spectrum of activities. It organizes governmental response to natural and

manmade disasters and incidents occurring in the United States, the District of Columbia, and U.S.

territories and possessions. It addresses the principles, participants, roles, and structures of local,

tribal, state and federal governments and respective agencies. The NRF became effective 22 March

2008, superseding the National Response Plan.

The NRF builds upon and complements the National Incident Management System (NIMS).¹¹ The

NIMS is a nationwide template enabling government and nongovernmental responders to respond

to all domestic incidents. It provides the structure and mechanisms for national-level policy and

operational coordination for domestic incident management. It does not alter or impede the ability

of federal, state, local, or tribal departments and agencies to carry out their specific authorities. It

assumes that incidents are typically managed at the lowest possible jurisdictional and organizational

levels, and in the smallest geographical areas feasible.

a. NRF Organization

The NRF is made up of the core document, the Emergency Support Function (ESF), Support

Annexes, Incident Annexes, and the Partner Guides.

• Core Document. The Core Document describes the doctrine that guides national response, roles

and responsibilities, response actions, response organizations, and planning requirements.

¹⁰ A copy of the complete NRF is located at DOPLAW Handbook, Supp., App. 2-18 or online at:

http://www.fema.gov/emergency/nrf/.

¹¹ National Incident Management System; http://www.fema.gov/pdf/emergency/nims/NIMS_core.pdf.

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• Emergency Support Function (ESF). The ESF provide the necessary structures for

coordinating interagency support in response to disasters and emergencies. ESFs describe the

mission, policies, concept of operations, and responsibilities of the primary support agencies

involved in the implementation of response functions. There are fifteen ESFs in the NRF (see

Table 2-3).

• Support Annexes. The eight support annexes describe essential supporting aspects that are

overarching in nature and which apply to all types of incidents. They provide the roles and

responsibilities for these supporting aspects. The support annexes are: critical infrastructure and

key resources, financial management, international coordination, private-sector coordination,

public affairs, tribal relations, volunteer and donations management, and worker safety and

health.

• Incident Annexes. The incident annexes describe the policies and structures to address specific

situations. There are seven incident annexes: biological;¹² catastrophic; cyber; food and

agricultural; mass evacuation; and nuclear/radiological and terrorism.¹³

• Partner Guides. The partner guides provide references for describing the key roles and actions

for local, tribal, state, Federal, and private-sector response partners.

b. Roles and Responsibilities

The NRF specifies the roles and responsibilities of the following parties:

• Local chief elected, or chief appointed official

• Local emergency manager

• Individuals and households

• Private sector organizations and businesses

• Nongovernmental organizations (NGOs)

• Tribal leader

• Governor

• Secretary of Homeland Security

• Attorney General

• Secretary of Defense

• Secretary of State

• Director of National Intelligence

c. Emergency Support Functions (ESFs)

The NRF establishes a coordination mechanism to provide assistance to state, local, and tribal

governments and to federal departments and agencies conducting missions of primary federal

responsibility. The ESFs may be selectively activated for both Stafford Act and non-Stafford Act

incidents. Table 2-3 lists the ESFs and the designated lead federal agencies.

¹² HSPD-10 recommended a biological response annex be included as part of the NRP. This was subsequently included

in the NRF as well. Homeland Security Presidential Directive 10, “Biodefense for the 21^st Century,” April 28, 2004.

¹³ Four of the seven Incident Annexes original to the NRP have been updated under the NRF. Two of the remaining

annexes are still in effect; the third was replaced by ESF #10. An additional annex, “Mass Evacuation” was added in

June 2008. The current Incident Annexes can be found at DOPLAW Handbook, Supp., App. 2-19 through 2-25, or

online at: http://www.fema.gov/emergency/nrf/incidentannexes.htm.

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ESF #

ESF

Lead Federal Agency

Transportation

Department of Transportation

Department of Homeland Security/National

Communications

Communications System

Public Works and Engineering

Department of Defense/U.S. Army Corps of Engineers

Firefighting

Department of Agriculture

Emergency Management

Department of Homeland Security/FEMA

Mass Care, Emergency Assistance,

Department of Homeland Security/FEMA

Housing, and Human Resources

Logistics Management and

General Services Administration

Resource Support

Public Health and Medical Services

Department of Health and Human Services

Urban Search and Rescue

Department of Homeland Security/FEMA

Oil and Hazardous Materials

Environmental Protection Agency

Response

Agriculture and Natural Resources

Department of Agriculture

Energy

Department of Energy

Public Safety and Security

Department of Justice

Long Term Community Recovery

Department of Homeland Security/FEMA

and Mitigation

External Affairs

Department of Homeland Security

Table 2-3: Emergency Support Functions Specified in the NRF

d. NRF Coordinating Structures

The following are several of the key NRF coordinating structures used to manage declared

emergencies or disasters.

(1) Local/State Emergency Operations Center (EOC/SEOC): The location at which

an effected municipal or state government coordinates the information and resources necessary to

support the local or state incident management activities.

(2) Incident Command Post (ICP): The field location at which the primary tactical-

level, on-scene incident command functions are performed. The ICP may be collocated with the

incident base or other incident facilities and is normally identified by a green rotating or flashing

light.

(3) Area Command (Unified Area Command): An organization established to

oversee the management of multiple incidents that are being handled by separate Incident

Command Posts, or to oversee the management of a complex incident dispersed over a large area,

and to broker critical resources. The Area Command does not have operational responsibility; that

authority resides with the Incident Commander. The Area Command can become a Unified Area

Command when incidents are multi-jurisdictional or involve multiple agencies.

(4) National Operations Center (NOC): The NOC is the primary national hub for

situational awareness and operational coordination across the Federal Government. The NOC is a

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standing 24/7 interagency operations center that monitors threats and hazard information and fuses

law enforcement, national intelligence, emergency response, and private-sector reporting. The

NOC facilitates homeland security information-sharing and operational coordination with other

federal, state, local, tribal, and nongovernmental EOCs.

(5) National Response Coordination Center (NRCC): The NRCC is one of two

operational components of the NOC. It is FEMA’s primary operations management center and the

focal point for national resource coordination. The NRCC resolves federal resource support

conflicts and other implementation issues forwarded by the Joint Field Office (JFO).

(6) National Infrastructure Coordinating Center (NICC): The NICC monitors the

Nation’s critical infrastructure and key resources on an ongoing basis. During an incident, the

NICC provides a coordinating forum to share information across infrastructure and key resources

sectors.

(7) Strategic Information and Operations Center (SIOC): The FBI SIOC is the focal

point and operational control center for all federal intelligence, law enforcement, and investigative

law enforcement activities related to domestic terrorist incidents or credible threats, including

leading attribution investigations. The SIOC serves as an information clearinghouse to help collect,

process, vet, and disseminate information relevant to law enforcement and criminal investigation

efforts in a timely manner.

(8) Regional Response Coordination Center (RRCC): The RRCC is a 24/7

coordination center operated by each of FEMA’s nine regions. The RRCC is capable of quick

expansion through staffing ESFs in anticipation of, or immediately following, a serious incident.

The RRCC coordinates federal regional response efforts, establish federal priorities, and implement

local federal program support. The RRCC operates until a JFO is established in the field and/or the

Principal Federal Officer, Federal Coordinating Officer, or Federal Resource Coordinator can

assume their NRF coordination responsibilities.

(9) Joint Field Office (JFO): The JFO is the primary federal incident management

field structure. It is a temporary federal facility established locally to coordinate operational federal

assistance activities to the affected jurisdiction(s) during Incidents of National Significance. The

JFO is a multi-agency center that provides a central location for coordination of federal, state, local,

tribal, nongovernmental, and private-sector organizations with primary responsibility for threat

response and incident support. The JFO adapts to the magnitude and complexity of the situation at

hand, and incorporates the NIMS principles regarding span of control and organizational structure:

management, operations, planning, logistics, and finance/administration. Although the JFO uses an

incident command system structure, the JFO does not manage on-scene operations. Instead, the

JFO focuses on providing support to on-scene efforts and conducting broader support operations

that may extend beyond the incident site. In the event of multiple incidents, multiple JFOs may be

established at the discretion of the Secretary.

(10) Joint Operations Center (JOC): The JOC, when established, is a branch of the

JFO. It is established by the Senior Federal Law Enforcement Officer (SFLEO) (e.g., the FBI

Special Agent-in-Charge (SAC) during terrorist incidents) to coordinate and direct law enforcement

and criminal investigation activities related to the incident. The emphasis of the JOC is on

prevention as well as intelligence collection, investigation, and prosecution of a criminal act. This

emphasis includes managing unique tactical issues inherent to a crisis situation (e.g., a hostage

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situation or terrorist threat). When this branch is included as part of the JFO, it is responsible for

coordinating the intelligence and information function (as described in NIMS) which includes

information and operational security, and the collection, analysis, and distribution of all incident

related intelligence. Accordingly, the Intelligence Unit within the JOC Branch serves as the

interagency fusion center for all intelligence related to an incident.

e. Federal Field-Level Organizations and Associated Federal Officers

(1) JFO Coordination Group

The following are potential members of the JFO Coordination Group:

•

Principal Federal Official (PFO). By law and by Presidential directive, the Secretary of

Homeland Security is the PFO for coordination of all domestic incidents requiring multiagency

federal response. The Secretary may elect to designate a single individual to serve as his or her

primary representative to ensure consistency of federal support and the overall effectiveness of

the federal incident management. When appointed, such an individual serves in the field as the

PFO for the incident. The PFO provides a primary point of contact and situational awareness

locally for the Secretary of Homeland Security.

•

Federal Coordinating Officer (FCO). The FCO is a senior FEMA official who manages and

coordinates federal resource support activities related to Stafford Act disasters and emergencies.

The FCO: assists the Unified Command and/or the Area Command and works closely with the

Principal Federal Official (PFO), Senior Federal Law Enforcement Official (SFLEO), and other

Senior Federal Officials (SFOs).

•

Senior Federal Law Enforcement Official (SFLEO). The SFLEO is the senior law enforcement

official from the agency with primary jurisdictional responsibility as directed by statute,

Presidential directive, existing federal policies, and/or the Attorney General. The SFLEO

directs the intelligence and investigative law enforcement operations related to the incident, and

supports the law enforcement component of the Unified Command on-scene. In the event of a

terrorist incident, this official will normally be the FBI Senior Agent-in-Charge (SAC).

•

Federal Resource Coordinator (FRC). The FRC manages federal resource support activities

related to non-Stafford Act incidents when federal-to-federal support is requested from DHS by

another federal agency. The FRC is responsible for coordinating the timely delivery of

resources to the requesting agency.

•

Governor’s Authorized Representative. The GAR, who is in most cases also the SCO,

represents the governor of the state. Local area representatives may also be members of the JFO

coordination group.

(2) JFO Coordination Staff

The JFO structure will normally include a Coordination Staff. The JFO Coordination Group

determines the extent of this staffing based on the type and magnitude of the incident. The roles

and responsibilities of the JFO Coordination Staff are summarized below:

• Chief of Staff. The JFO Coordination Staff may include a Chief of Staff and representatives

providing specialized assistance, which may include support in the following areas: safety; legal

counsel; equal rights; security; infrastructure liaison; and, other liaisons.

• External Affairs Officer. The External Affairs Officer provides support to the JFO leadership in

all functions involving communications with external audiences. External Affairs includes:

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Public Affairs, Community Relations, Congressional Affairs, State and Local Coordination,

Tribal Affairs, and International Affairs, when appropriate. Resources for the various External

Affairs Functions are coordinated through ESF #15. The External Affairs Officer is also

responsible for overseeing operations of the Federal Joint Information Center (JIC) established

to support the JFO.

• Defense Coordinating Officer (DCO). If appointed by DoD, the DCO serves as DoD’s single

point of contact at the JFO. With few exceptions, requests for Defense Support of Civil

Authorities (DSCA) originating at the JFO will be coordinated with and processed through the

DCO. The DCO may have a Defense Coordinating Element (DCE) consisting of a staff and

military liaison officers in order to facilitate coordination and support to activated Emergency

Support Functions (ESFs). Specific responsibilities of the DCO (subject to modification based

on the situation) include processing requirements for military support, forwarding mission

assignments to the appropriate military organizations through DoD-designated channels, and

assigning military liaisons, as appropriate, to activated ESFs.

Utilization of the NRF

After the President has declared a major disaster or emergency, he may direct any federal agency to

use its authorities and resources in support of state and local response efforts to the extent that

provision of the support does not conflict with other agency emergency missions. Under the

Stafford Act, FEMA serves as the lead federal agency (LFA) for disaster response and recovery

activities. The authority to direct federal agencies to use their resources in support of state and local

response efforts has been delegated from the President to the Secretary of DHS.¹⁴ Under the NRF,

the President, upon the recommendation of the Secretary of DHS and the FEMA Administrator, can

appoint a Federal Coordinating Officer (FCO)¹⁵ who is responsible for coordinating the delivery of

federal assistance to the affected state(s), local government(s) and disaster victims. The FCO works

closely with the SCO, appointed by the governor, to oversee disaster operations for the state. The

SCO also serves as the Governor’s Authorized Representative (GAR) and is generally empowered

to execute all necessary documents for disaster assistance on behalf of the state.

National Incident Management System

Since it was first published, NIMS has subsequently been revised to reflect input from a broad

variety of stakeholders (e.g., Federal, State, Tribal, local, private sector and nongovernmental

organizations).¹⁶ In addition, lessons learned from Katrina and other recent incidents were

considered in the new version. The December 2008 revision “focused on clarifying concepts and

principles, and refines processes and terminology throughout the document…no major policy

changes were made to the document during the revision.”¹⁷

NIMS is comprised of five key components:

¹⁴ DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, Jan. 2008[hereinafter NRF].

¹⁵Id. at p. 67.

¹⁶Available at http://www.fema.gov/pdf/emergency/nims/NIMS_core.pdf.

¹⁷Id.

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•

Preparedness. The NIMS focuses on the following elements of preparedness: planning;

procedures and protocols; training and exercises; personnel qualifications and certification; and,

equipment certification.¹⁸ NIMS also stresses a unified approach to management and response

activities, and that all levels of governments and organizations must identify their capabilities

before incidents occur.

•

Communication and Information Management. The NIMS emphasizes that well-planned,

established, and utilized communications are critical for enabling the dissemination of

information during an incident.¹⁹ Common plans, standards and communication architecture

help to facilitate interoperability and maintain a constant flow of information during an

incident.²⁰ As with incident response in general, communication systems should be flexible and

scalable to effectively manage any situation.

•

Resource Management. According to the NIMS, resource management is divided into five

principles:²¹

• Planning;

• Use of agreements;

• Categorizing resources;

• Resource identification and ordering; and,

• Effective management of resources.

•

Command and Management. The NIMS plans to incorporate the existing Incident Command

System (ICS) and Multi-Agency Coordination Systems (MACS) as the command structure for

response to all hazards at all levels of government.²² The ICS works at the tactical level,

organizing the on-scene operations.²³ In comparison, MACS coordinate activities above the

field level and can be either informal or formal. Formal coordination address issues before an

incident occurs and is the preferred process.²⁴

•

Ongoing Management and Maintenance. HPSD-5 authorized the Secretary of Homeland

Security to establish a mechanism to ensure the ongoing management and maintenance of

NIMS. The National Integration Center (NIC) was established to assist government and private

sectors in implementing the NIMS and to provide for its refinement.²⁵ As part of this process,

the NIMS notes the continued development of science and technology as playing a critical role

in improving response capabilities.

As with the Stafford Act, the NIMS is based upon the premise that most incidents begin and end at

the local level, and are managed on a daily basis at the lowest level.²⁶ There are, however, incidents

which require the involvement of higher levels of government and response.

¹⁸Id. at p. 9.

¹⁹Id. at p. 23.

²⁰Id. at p. 24.

²¹Id. at p. 32-33.

²²Id. at p. 45.

²³Id. at p. 46.

²⁴Id. at p. 64.

²⁵Id. at p. 75.

²⁶Id. at p. 5.

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Like the Stafford Act and its progeny, the draft NIMS is based upon the premise that most incidents

begin and end at the local level with few incidents requiring assistance from federal, state, and local

authorities.²⁷

HSPD-8, Annex I, National Planning

Annex I to HSPD-8, published in 2007, is intended to “further enhance the preparedness of the

United States by formally establishing a standard and comprehensive approach to national

planning.”²⁸ The Annex comprises five components:

1. A standardized Federal planning process;

2. National planning doctrine;

3. Resourced operational and tactical planning capabilities at each Federal department and agency

with a role in homeland security;

4. Strategic guidance, strategic plans, concepts of operations, and operations plans, and as

appropriate, tactical plans; and,

5. A system for integrating plans among all levels of government.

Annex I directs the Secretary of Homeland Security to develop an Integrated Planning System

(IPS),²⁹ coordinated with the heads of Federal agencies involved in homeland security.³⁰ Among

other things, the IPS “provides common processes for developing plans” and sets out the national

planning doctrine, as well as guidance for all-hazard planning with principles applicable to all levels

of government.³¹

Annex I also requires the development of National Planning Scenarios.³² Consequently, the

Homeland Security Counsel developed fifteen scenarios³³ depicting “a diverse set of high-

²⁷Id. at 17.

²⁸HSPD-8, Annex I (2007) [hereinafter Annex I], Purpose.

²⁹ U.S. Department of Homeland Security, Integrated Planning System (Jan. 2009); available at

http://www.hlswatch.com/wp-content/uploads/2009/01/dhs-integrated-planning-system-january-2009.pdf.

³⁰ Annex I, supra note 28, para. 33.

³¹Id.

³²Id. at para. 34.

³³ In 2006, the Department of Homeland Security released National Planning Scenarios, an in-depth analysis of 15

potential disasters that face the nation.

Scenario 1: Nuclear Detonation - 10-kiloton Improvised Nuclear Device

Scenario 2: Biological Attack - Aerosol Anthrax

Scenario 3: Biological Disease Outbreak - Pandemic Influenza

Scenario 4: Biological Attack - Plague

Scenario 5: Chemical Attack - Blister Agent

Scenario 6: Chemical Attack - Toxic Industrial Chemicals

Scenario 7: Chemical Attack - Nerve Agent

Scenario 8: Chemical Attack - Chlorine Tank Explosion

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consequence threat scenarios of both potential terrorist attacks and natural disasters.”³⁴

USNORTHCOM subsequently developed CONPLANs that address each of the scenarios where

DoD support is necessary. These CONPLANs can be accessed with permission of

USNORTHCOM.

7. Interplay between the NRF and Other Plans Applicable to WMD Response and

Recovery

When DHS initiates the response mechanisms of the NRF, including the ESFs, Support Annexes,

and Incident Annexes, the existing interagency plans that address incident management are

incorporated as supporting plans and/or operational supplements to the NRF. For incidents not led

by DHS, other Federal agency response plans provide the primary Federal response protocol. Other

interagency response plans include the National Emergency Communications Plan (NECP),³⁵ and

the National Oil and Hazardous Substances Pollution Contingency Plan (NCP).³⁶ The NRF

represents a significant effort to integrate the federal government’s inter-agency emergency and

disaster plans and may affect certain agency’s responsibilities in the event of a major disaster or

emergency.

The development of the NECP was directed by the Homeland Security Act of 2002³⁷ to promote the

ability of emergency response providers and relevant government officials to continue to

communicate in the event of natural disasters, acts of terrorism, and other man-made disasters, and

to ensure, accelerate, and attain interoperable emergency communications nationwide.³⁸

Emergency Support Function 2 of the NRF supplements the NECP and sets out procedures for

coordinating the provision of temporary national security and emergency preparedness

telecommunications support in areas impacted by a major disaster or emergency.

Scenario 9: Natural Disaster - Major Earthquake

Scenario 10: Natural Disaster - Major Hurricane

Scenario 11: Radiological Attack - Radiological Dispersal Devices

Scenario 12: Explosives Attack - Bombing Using Improvised Explosive Devices

Scenario 13: Biological Attack - Food Contamination

Scenario 14: Biological Attack - Foreign Animal Disease (Foot-and-Mouth Disease)

Scenario 15: Cyber Attack

See, DEP’T. OF HOMELAND SECURITY, NATIONAL PLANNING SCENARIOS (Apr. 2006). Two of the scenarios represent

natural disasters, major earthquake and major hurricane; a third highlights economic and social complications resulting

from a cyber attack; the remaining 12 scenarios focus on chemical, biological, radiological, nuclear or high-yield

explosive (CBRNE) incidents.

³⁴U.S. Dep’t of Homeland Security, National Preparedness Guidelines (Sep. 2007).

³⁵ National Emergency Communications Plan, July 2008. It serves as a basis of planning and use of national

communications resources in support of Stafford Act provisions during a non-wartime emergency [hereinafter National

Emergency Communications Plan or NECP].

³⁶ National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. 300 (2002) [hereinafter the National

Contingency Plan or NCP]. The NCP provides the organizational structure and procedures for preparing for and

responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants.

³⁷ Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) as amended.

³⁸ Id. at “Message from the Secretary.”

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The National Contingency Plan (NCP) was developed pursuant to the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980, as amended.³⁹ It sets out

procedures for managing oil spills into navigable waters and releases of hazardous substances,

pollutants, and contaminants into the environment. Inland, the Environmental Protection Agency

(EPA) is the lead agency for coordinating the federal response. The U.S. Coast Guard, a DHS

entity, is the lead agency for oil spills and hazardous materials releases in coastal areas. Generally,

DoD or Department of Energy (DOE) will be the lead agency for responding to the release of

hazardous substances, pollutants, or contaminants when the incident is on or comes from a facility

or vessel under the control, custody, or jurisdiction of DoD or DOE, respectively. The EPA takes

the lead for hazardous materials with respect to incidents that have not yet been determined to be

related to terrorism, or for incidents when the NRF has not yet been activated. Once the NRF is

activated, FEMA has the lead for incident management and EPA has the lead agency role for ESF

10, Oil and Hazardous Materials Response, incorporating the NCP. Executive Order 12580

authorized the establishment of National Response Team (NRT) for planning and preparing for

response actions; designated the EPA and the Coast Guard as co-chairs; and designated

responsibilities of other agencies on the NRT and on Regional Response Teams.⁴⁰

The Nuclear/Radiological Incident Annex (NRIA) of the NRF supersedes the Federal Radiological

Emergency Response Plan (FRERP) of 1996.⁴¹ The NRIA describes the policies, situations,

concepts of operations, and responsibilities of the Federal departments and agencies governing the

immediate response and short-term recovery activities for incidents involving release of radioactive

materials to address the consequences of the event. The incidents may result from inadvertent or

deliberate acts. Pursuant to the incident annex paradigm, when DHS exercises domestic incident

management functions, it is supported by other Federal agencies that are either “coordinating” or

“cooperating” agencies.

Coordinating agencies provide the leadership, expertise, and authorities to implement critical and

specific nuclear/radiological aspects of the response, and facilitate nuclear/radiological aspects of

the response in accordance with those authorities and capabilities. The coordinating agencies are

those Federal agencies that own, have custody of, authorize, regulate, or are otherwise assigned

responsibility for the nuclear/radioactive material, facility, or activity involved in the incident.

Cooperating agencies include other Federal agencies that provide additional technical and resource

support specific to nuclear/radiological incidents to DHS and the coordinating agencies.

When DHS is not exercising domestic incident management responsibilities, the coordinating

agency, as determined by their authorities, will be the responsible agency. DOD is the coordinating

agency for nuclear facilities owned or operated by DOD, materials shipped by or for DOD, nuclear

weapons, and DOD satellites contain radioactive materials that impact within the US.⁴²

³⁹42 U.S.C. § 9605, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. 99-

499, [hereinafter CERCLA] and by § 311(d) of the Clean Water Act (CWA), 33 U.S.C. § 1321(d), as amended by the

Oil Pollution Act of 1990 (OPA), Pub. L. No. 101-380. Executive Orders 12580 and 12777 delegated to the EPA

responsibility to amend the NCP as necessary.

⁴⁰Exec. Order No. 12580, (Superfund Implementation), 23 Jan. 1987, as amended.

⁴¹ Nuclear/Radiological Incident Annex, June 2008, p. 4.

⁴²Id. at Table 1.

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National Security Presidential Directive 46 (NSPD-46) and Homeland Security Presidential

Directive 15 (HSPD-15)⁴³ detail the policy of the United States in combating terrorism and reaffirm

the lead agencies for the management of various aspects of the counterterrorism effort. They

recognizes that states have primary responsibility in responding to terrorist incidents, including

events, and the Federal Government provides assistance as required.

8. Impact of the Homeland Security Act on the Federal Response Structure and Process

The Homeland Security Act of 2002 represented a watershed in the manner in which the federal

government organizes to respond to WMD terrorism.⁴⁴The Act established the DHS, and

consolidated the consequence management missions, assets, and personnel of numerous federal

departments and agencies into a single department.⁴⁵ The primary missions of DHS include:

preventing terrorist attacks within the United States; reducing the vulnerability of the United States

to terrorism; and minimizing the damage and assisting in the recovery from terrorist attacks that

occur within the United States.⁴⁶ The Department is comprised of various directorates and

components including the Coast Guard, Customs and Border Protection, Citizenship and

Immigration Services, Immigration and Customs Enforcement, and the Federal Emergency

Management Agency.

The Federal Emergency Management Agency (FEMA) maintains responsibility for “reduc[ing] the

loss of life and property and protect[ing] the Nation from all hazards, including natural disasters,

acts of terrorism, and other man-made disasters”.⁴⁷ Activities pursuant to this responsibility include

managing the response; directing the strategic response assets that were transferred to DHS;

overseeing the Metropolitan Medical Response System; and coordinating other federal response

resources outside of DHS in the event of a terrorist attack or major disaster. The Homeland

Security Act also directed the development of a National Incident Management System to integrate

the federal, state, and local government response to terrorist attacks; and consolidate existing federal

government emergency response plans into a single, coordinated National Response Plan.⁴⁸ In sum,

the Homeland Security Act served as the foundation for the government to reorganize and

consolidate incident management functions, assets and personnel under a single federal agency.

Further, it served as the legal impetus for a revised approach to incident management, as later set

forth in Homeland Security Presidential Directive 5, discussed below.

9. Defense Against Weapons of Mass Destruction Act

Title 50 Chapter 40 of the U.S. Code deals with the Federal Government’s response to the

proliferation of and use or threat to use nuclear, chemical, or biological WMD or related materials

and technologies. Title 50 U.S.C. § 2313 directs the Secretary of Defense to designate an official

within the DoD as Executive Agent to coordinate DoD assistance with Federal, state, and local

⁴³ National Security Presidential Directive 46, “U.S. Strategy and Policy in the War on Terror” and Homeland Security

Presidential Directive 15, “U.S. Strategy and Policy in the War on Terror,” both classified, March 6, 2006.

⁴⁴ Homeland Security Act of 2002, Pub. L. No. 107-296 (2002), as amended, [hereinafter The Homeland Security Act].

⁴⁵Id. at § 101.

⁴⁶Id. at § 101(b).

⁴⁷ FEMA mission as stated on the FEMA website located at: http://www.fema.gov/about/index.shtm#0 (last visited on

25 Aug 2010).

⁴⁸ Homeland Security Act, supra note 37, § 502.

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entities. The Secretary of Defense has appointed ASD(HD&ASA) as Executive Agent. The

Department of Energy (DOE) is directed to designate an Executive Agent for its nuclear, chemical,

and biological response. The DoD and DOE Executive Agents are responsible for coordinating

assistance with Federal, state, and local officials in responding to threats involving nuclear,

chemical, and biological weapons.⁴⁹

B. The Stafford Act

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (The Stafford Act) provides

for assistance by the federal government to the states in the event of natural and other disasters and

emergencies.⁵⁰ The Stafford Act is the primary legal authority for federal emergency and disaster

assistance to state and local governments. Congress’ intent in passing the Stafford Act was to

provide for an “orderly and continuing means of assistance by the federal government to state and

local governments in carrying out their responsibilities to alleviate the suffering and damage which

result from such disasters.”⁵¹ The Stafford Act sought, among other things, to broaden the scope of

disaster relief programs; encourage the development of comprehensive disaster preparedness and

assistance plans, programs, and capabilities of state and local governments; and provide federal

assistance programs for both public and private losses sustained in disasters.

Through the Stafford Act, Congress delegated to the President emergency powers he may exercise

in the event of a major disaster or emergency. Generally, Stafford Act assistance is rendered upon

request from a state governor⁵² provided certain conditions are met, primarily that the governor

certifies that the state lacks the resources and capabilities to manage the consequences of the event

without federal assistance. The Federal Emergency Management Agency (FEMA) of the

Department of Homeland Security (DHS) operates under the Stafford Act, focusing its efforts on

managing the consequences of disasters and emergencies. FEMA’s actions generally are driven by

requests from state and local governments. Figure 2-1, below, provides an overview of the process

of providing Federal support to states under the Stafford Act.

⁴⁹50 U.S.C. §§ 2301-2369 (2006).

⁵⁰ The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., as amended by Pub.

L. No. 109-295 (2007) [hereinafter The Stafford Act].

⁵¹Id. at § 5121.

⁵² Section 5170(a) of the Stafford Act was amended in 2006 authorizing the President, in the absence of a State request,

to provide Federal assistance.

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Figure 2-1

The Stafford Act lists the roles and responsibilities of federal agencies and departments in providing

both major disaster and emergency assistance, and it delineates the types of assistance that affected

state(s) may receive from the federal government. See Table 2-4, below.

To coordinate the relief efforts of all federal agencies in both major disasters and emergencies, the

Act authorizes the President to appoint a Federal Coordinating Officer (FCO) immediately after

declaring a major disaster or emergency. The Act also requires the President to request that a

Governor seeking federal assistance designates a State Coordinating Officer (SCO) to coordinate

state and local disaster assistance efforts with those of the federal government.⁵³ The FCO may

utilize relief organizations, such as state relief organizations and the American National Red Cross

(ANRC), in the distribution of emergency supplies, such as food and medicine, and in

reconstruction or restoration of essential services, e.g., housing. The FCO may coordinate all relief

efforts, however, states, localities, and relief organizations must agree. The President is also

authorized to form Emergency Support Teams (EST) of federal personnel to be deployed to the area

of the disaster or emergency.⁵⁴ The FCO may activate ESTs composed of federal program and

support personnel, to be deployed into an area affected by a major disaster or emergency.⁵⁵ These

teams may also be called Emergency Response Teams (ERTs). The ERT is the principal

interagency group that supports the FCO in coordinating the overall federal disaster assistance.

⁵³42 U.S.C. § 5143.

⁵⁴Id. at § 5144.

⁵⁵ 44 C.F.R. 206.24 (2003).

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The Stafford Act applies in the event of a major disaster or emergency. It details the emergency functions of the

President, which are delegated as per, among others, Executive Order 12656.

Departments & Agencies

Roles and Responsibilities

Executive Office of the President

Major Disaster Assistance, upon request of a state governor: Provide

(President or as delegated)

specified essential services; coordinate disaster relief activities; direct

federal agency assistance to states and localities; take other action as

consistent with the Act and within delegated authority.

Emergency Assistance, upon request of a state governor or sua sponte:

Direct federal agencies to provide resources and technical and advisory

assistance; provide essential services; coordinate all disaster relief

assistance.

Federal Coordinating Officer

Major Disaster and Emergency Assistance: Establish field offices;

coordinate relief efforts; take other necessary actions within authority.

Emergency Support Teams

Assist the Federal Coordinating Officer in carrying out his responsibilities

in a major disaster or emergency.

State Governor(s)

Request declaration by the President that a major disaster or emergency

exists.

Federal Agencies

Assistance responsibilities as delegated by the President and outlined in

response plans, within authority: Provide personnel for the Emergency

Support Teams on request from the President; Provide assistance, on the

direction of the President and as specified, to meet immediate threats to life

and property resulting from a major disaster or emergency

FEMA ⁵⁶

Prepare, sponsor, and direct federal response plans and programs for

emergency preparedness; provide hazard mitigation assistance in the form

of property acquisition & relocation assistance

Department of Defense

Upon President’s direction, provide “emergency work” to protect life and

property prior to declaration of major disaster or emergency

American National Red Cross

Major Disaster: As a condition of receiving assistance, comply with

and other relief organizations

regulations relating to non-discrimination and other regulations as deemed

necessary by the President for effective coordination of relief efforts.

Table 2-4. Stafford Act Roles and Responsibilities

Requests for Emergency or Major Disaster Declarations

Under the Stafford Act, the governor of an affected state may request the declaration of a major

disaster or emergency, and must demonstrate, as a prerequisite for receiving assistance, both that the

state’s response plans have been activated and that state and local capabilities are inadequate for an

effective response. The Stafford Act’s definitions of “emergency” and “major disaster” are

referenced in many of the legal documents related to incident management and are used consistently

throughout this chapter.

a. Major Disasters

“Major disaster” is defined as follows:

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

⁵⁶ Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-295(2007), § 506. FEMA retained all

functions assigned to it under the Stafford Act and remains the lead federal agency for Stafford Act responses.

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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.⁵⁷

A major disaster encompasses fires, floods, and explosions, regardless of cause, when such acts

cause damage of sufficient severity to warrant federal disaster assistance, as determined by the

President. A weapons of mass destruction (WMD) event involving fire or explosion, including the

detonation of a high-yield explosive, likely would meet this threshold. Following the letter of the

law strictly, a chemical, radiological, or biological WMD event in the United States would qualify

as a major disaster, only if it results in a fire, flood, or explosion. A WMD event of catastrophic

proportions could warrant treatment as both a major disaster and an emergency

Major disaster assistance is a more comprehensive grant of federal aid for long-term consequence

management. In a major disaster, the President has broad authority to assist states and localities.

To receive federal assistance, a governor must not only indicate to the President that the state does

not have the capacity or resources to mount an effective response, but also furnish information on

the measures that have been taken at the state and local levels to mitigate the effects of the disaster.

In addition, the President must certify that state and local government obligations and expenditures

comply with all applicable cost-sharing requirements of the Stafford Act.⁵⁸

The President’s powers after the declaration of a major disaster include the authority to provide the

following, among others, to states and localities: specified technical and advisory assistance;

temporary communications services; food; relocation assistance; legal services; crisis counseling

assistance and training; unemployment assistance; emergency public transportation in the affected

area; and fire management assistance on publicly or privately owned forest or grassland.⁵⁹ In

addition, the President is authorized to direct federal agencies in providing essential assistance to

meet immediate threats to life and property, and to coordinate all disaster relief assistance.⁶⁰

b. Emergencies

The Stafford Act defines “emergency” as follows:

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.⁶¹

An emergency is, more broadly, any situation in which federal assistance is required to save lives,

protect health and property, or mitigate or avert a catastrophe. Generally, the existence or threat of

each type of WMD-chemical, biological, radiological, nuclear, and high-yield explosive (CBRNE)-

⁵⁷42 U.S.C. § 5122(2).

⁵⁸Id. at § 5170.

⁵⁹See Id. at §§ 5171-5186.

⁶⁰Id. at § 5170(b).

⁶¹Id. at § 5122(1).

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likely would be deemed an “emergency” if the event or threat overwhelms state and local

authorities and warrants the assistance of the federal government.

Emergency authority granted to the President is similar to that authorized for handling major

disasters, but it is not as extensive. Emergency assistance is more limited in scope and in time, and

total assistance may not exceed $5 million for a single emergency, unless the President determines

there is a continuing and immediate risk to lives, property, public health or safety and necessary

assistance will not otherwise be provided on a timely basis.⁶²

In any emergency, the President may direct any federal agency, with or without reimbursement, to

use the authorities and resources granted to it under federal law in support of state and local

emergency assistance efforts to save lives, protect property and public health and safety, and lesson

or avert the threat of a catastrophe.⁶³ The President may coordinate all emergency relief assistance

and provide technical and advisory assistance to affected state and local governments for:

performance of essential community services; issuance of hazard and risk warnings; public health

and safety information; and management, control and reduction of immediate threats to public

safety. He may also direct federal agencies to provide emergency assistance; remove debris

pursuant to 42 U.S.C. § 5173; provide temporary housing assistance in accordance with 42 U.S.C. §

5174; and assist state and local governments in the distribution of food, medicine, and other

consumable supplies.⁶⁴

Liability under the Stafford Act

The Stafford Act specifically provides for immunity from liability for certain actions taken by

federal agencies or employees of the federal government pursuant to the Act. Section 5148 of the

Act provides:

The federal government shall not be liable for any claim based upon the exercise or

performance of or the failure to exercise or perform a discretionary function or duty

on the part of a federal agency or an employee of the federal government in carrying

out the provisions of this chapter.

The President’s Emergency Authority under the Stafford Act

The Stafford Act authorizes the President to declare an emergency, but not a major disaster, sua

sponte with respect to an emergency that “involves a subject area for which, under the Constitution

or laws of the United States, the United States exercises exclusive or preeminent responsibility and

authority.”⁶⁵ The Act also authorizes the President, upon request from the governor of an affected

state, to provide “emergency work” essential for the preservation of life and property, by the

Department of Defense for a maximum of ten days before the declaration of either an emergency or

a major disaster.⁶⁶ In short, if the state or local government is overwhelmed by the incident or there

⁶²Id. at § 5193.

⁶³Id. at § 5192.

⁶⁴Id. at § 5192(a).

⁶⁵Id. at § 5191(a).

⁶⁶Id. at § 5170b(c).

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is an independent federal nexus to the event, the President may authorize major disaster assistance

or declare a federal emergency, respectively.

In summary, response to a disaster or emergency is primarily the responsibility of the state and local

governments. However, when a disaster or emergency overwhelms state and local capabilities, a

governor may request the President to make a major disaster or emergency declaration under the

Stafford Act. A presidential declaration is contingent on the joint findings of a local/state/DHS

preliminary damage assessment, indicating that damages are of sufficient severity to warrant

assistance under the Act.⁶⁷ An incident of WMD terrorism is quite likely to be of sufficient severity

to warrant an emergency declaration. When an emergency involves a facility for which the federal

government exercises exclusive or primary authority, the President may unilaterally direct the

provision of federal assistance under the Act.

C. Summary

The NRF and NIMS are a paradigmatic shift from the pre-9/11 and pre-Hurricane Katrina approach

of the federal government to domestic incident management. Although The Stafford Act remains

the primary mechanism for federal support to state and local authorities, and state requests for

assistance still formally initiate the federal response, the manner in which the federal government

provides the assistance is changing. Consolidation, unification, anticipation, and systemization are

the unifying themes of these key changes.

⁶⁷ NRF, supra note 14, Overview of Stafford Act Support to States, p. 1.

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