Military reference books and manuals (2009-2023, Volume 3) - page 4
Domestic Operational Law Handbook 2010
CHAPTER 3
DOD RESPONSE FOR CHEMICAL, BIOLOGICAL,
RADIOLOGICAL, NUCLEAR, AND HIGH-YIELD EXPLOSIVES
(CBRNE) CONSEQUENCE MANAGEMENT1
KEY REFERENCES:
• Robert T. Stafford Disaster Relief and Emergency Assistance Act (as amended), Pub. L. No. 93-
288, 42 U.S.C. §§ 5121-5207.
• The Defense Against Weapons of Mass Destruction Act, 50 U.S.C. §§ 2301-2368 (2007).
• EO 13527 Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack (Dec. 30, 2009).
• National Response Framework, January 2008.
• DoDD 3025.1, Military Support to Civil Authorities (MSCA), 15 Jan 93
• DoDD 3025.12, Military Assistance for Civil Disturbances (MACDIS), 4 Feb 94
• DoDD 3025.15, Military Assistance to Civil Authorities (MACA), 18 Feb 97
• DoDD 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, 15 Jan 86,
incorporating change 1, 20 Dec 89
• CJCSI 3125.01A, “Military Assistance to Domestic Consequence Management Operations in
Response to a Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive Situation,”
16 Mar 07
• Joint Pub 3-28, Civil Support, 14 Sep 07
• Joint Pub 3-41, Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive
Consequence Management, 2 Oct 06
A. Introduction
In the wake of 9/11 and Hurricane Katrina, the Department of Homeland Security (DHS) developed
the National Response Framework.2 This document evolved from the National Response Plan
(NRP), which, in turn, was mandated under Homeland Security Presidential Directive (HSPD)-5,
Management of Domestic Incidents. The intent of HSPD-5 was to develop a single, comprehensive
approach to domestic incident management3 built on the template of the National Incident
1 Other agencies or organizations may occasionally refer to these operations as Chemical, Biological, Radiological and
Nuclear (CBRN) consequence management. Consequence management (CM) comprises “those essential services and
activities required to manage and mitigate problems resulting from disasters and catastrophes. Such services and
activities may include transportation, communications, public works and engineering, fire fighting, information
planning, mass care, resources support, health and medical services, urban search and rescue, hazardous materials, food,
and energy.” See, DoDD 3025.15, E2.1.5.
2 The National Response Framework (NRF) is addressed in more detail in Chapter 2.
3 The term “Incident Management” was introduced, under the National Response Plan (NRP), with a view toward
eliminating the distinction between crisis and consequence management. Although NRF also uses incident management
to denote both crisis and consequence management, for the purposes of this chapter, the distinctions between crisis and
consequence management remain important, especially in the response to any incident that may result from terrorist
activity. Crisis management is predominantly a law enforcement response and involves measures to identify, acquire,
plan, and employ the use of resources needed to anticipate, prevent, and/or resolve a threat or act of terrorism.
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Management System (NIMS).4 The NRF provides national-level policy and operational direction
for all Federal agencies involved in the response to domestic disasters or emergencies. While
responses to incidents should generally be handled at the lowest capable jurisdictional level, the
NIMS and NRF contemplate the needs that must be met when the responding jurisdictions’
capabilities are overwhelmed by the magnitude of a catastrophic incident.
This framework is designed to ensure timely and effective Federal support in response to state,
tribal, and/or local requests for assistance (RFAs). The NRF is the product of DHS, but it applies to
all Federal departments and agencies that have jurisdiction for, or responsibility to support, any
response or recovery effort. When Federal resources are necessary, the Department of Defense
(DOD) may provide advice, assistance and assets in support of the Lead Federal Agency (LFA).
DOD plays only a supporting role, unless otherwise directed by the President,5 and its activities are
referred to as Defense Support to Civilian Authorities (DSCA).6
The NRF and NIMS provide broad direction for any type of disaster, in what is characterized as an
“all-hazards” approach.7 Consequently, the framework applies equally to natural disaster relief, the
handling of an unintentional or negligent industrial accident, or the Federal government’s response
following terrorists’ potential domestic employment of a Chemical, Biological, Radiological,
Nuclear, and high-yield Explosives (CBRNE) weapon of mass destruction (WMD).8 Although the
various levels of government have experience in responding to natural disasters, CBRNE events
pose some of the greatest challenges facing the United States today9 and underscore the importance
of maintaining a DOD force that is ready and able to respond to the specialized threats.
Consequence management are those actions taken to maintain or restore essential services and manage and mitigate
problems resulting from disasters and catastrophes, including natural, manmade, or terrorist incidents.
4 The National Incident Management System (NIMS) provides a doctrinal framework for incident management
designed to provide consistency at all jurisdictional levels. The NIMS includes a core set of concepts, principles,
terminology, and technologies covering the incident command system; multi-agency coordination systems; unified
command; training; identification and management of resources (including systems for classifying types of resources);
qualifications and certification; and the collection, tracking, and reporting of incident information and incident
resources.
5 Joint Chiefs of Staff, Joint Pub. 3-26, Homeland Security IV-1 (2 Aug 2005) [hereinafter Joint Pub. 3-26].
6 See 32 C.F.R. part 185. Defense Support to Civilian Authorities is defined as:
Support provided by U.S. Federal military forces, National Guard forces performing duty under title 32, U.S.C.,
DoD civilians, DoD contract personnel, and DoD component assets, in response to requests for assistance from
civil authorities for special events, domestic emergencies, designated law enforcement support, and other domestic
activities. Support provided by National Guard forces performing duty under title 32, U.S.C., is considered DSCA
but is conducted as a State-directed action. Also known as Civil Support (CS).
7 Federal consequence management was traditionally focused on natural disasters. Following the attacks of 9/11,
emergency planning and consequence management experts advocated for a single, “all-hazards” process for planning
and responding to both natural disasters and man-made events, including acts of terrorism. See NRF supra note 2, at p.
2.
8 It is important to note that while the employment of any weapon of mass destruction (WMD) will constitute a CBRNE
incident, not all CBRNE incidents are the result of a WMD. A domestic accident on the scale of the radiation release in
Chernobyl, Ukraine or the pesticide release in Bhopal, India would most likely result in DOD-assisted CBRNE CM
operations.
9 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
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B. CBRNE CM Overview and Authorities
A CBRNE incident is any accident or intentional event involving chemical agents, biological
agents, radiological sources, nuclear devices, or high-yield explosives, and/or industrial materials
that are hazardous by themselves or when mixed with other material, including hazards from
industrial pollutants and waste, and will produce a toxic effect in exposed personnel. Any action
taken to address the consequences of any inadvertent or deliberate release of a chemical, biological,
radiological, or nuclear agent constitutes a CBRNE CM operation.10 As a general proposition, a
catastrophic CBRNE event would quickly exceed the capabilities of local, state and tribal
governments; consequently, CBRNE CM11 is normally managed at the Federal level, with DOD in
a supporting role.12
The principle of unity of effort dictates that a single authority control the efforts of the various
responding Federal assets; while DOD forces may be fully committed to CBRNE CM, they are not,
however, directed by the LFA they support. The SecDef always retains command of Federal (Title
10) military forces providing CBRNE CM. Similarly, state governors, through their Adjutants
General, control National Guard forces when performing active duty in their state role and when
performing active duty under Title 32, United States Code.
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
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, April, 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.
10 An exception to this general classification is the Government’s response to incidents involving U.S. nuclear weapons
within DOD custody or fissionable materials within Department of Energy custody. See, generally, ESF 10; and DoD
3150.8-M, “NUCLEAR WEAPON ACCIDENT RESPONSE PROCEDURES (NARP),” February 22, 2005.
11 CBRNE CM includes those measures and methods of responding to CBRNE events to alleviate damage, loss of life,
hardship or suffering caused by the incident, protect public health and safety, emergency restoration of essential
government services and infrastructure, and provide emergency relief to governments, businesses, and individuals
affected by the consequences of a CBRNE situation.
12 For example, 10 U.S.C. § 382 (2007) authorizes the Attorney General to Request DoD support when an emergency
situation involving nuclear materials exists.
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Requests for DOD capabilities from state governors or other Federal agencies are called requests for
assistance (RFA). In most cases, these requests for emergency support are written and are
processed through formal RFA process. The processing of an RFA varies depending upon the size
and urgency of the incident, the level of Federal involvement, and the originator of the request. For
small scale CBRNE incidents, and during the initial stages of larger incidents, a state’s Emergency
Operations Center (EOC) may forward requests to the FEMA region’s Defense Coordinating
Officer (DCO), who, in turn, forwards the RFA to the Assistant Secretary of Defense for Homeland
Defense and Americas’ Security Affairs (ASD(HD&ASA)).13 If the incident exceeds the
capabilities of the state and local responders, and the President has issued an emergency or disaster
declaration at the Governor’s request, the LFA will establish a Joint Field Office (JFO), and a
Federal Coordinating Officer (FCO) will be designated. Following the establishment of the JFO,
the FCO will forward RFAs from civil authorities to the Office of the Executive Secretary of the
Department of Defense, who forwards them to the ASD(HD&ASA) and the Joint Director of
Military Support (JDOMS) for validation and order processing, respectively. Once SecDef
approves a request for DOD assistance, JDOMS prepares an order and coordinates with necessary
force providers, legal counsel, and ASD(HD&ASA) to ensure asset priority and concurrence. The
order is then issued to U.S. Northern Command (USNORTHCOM), the combatant command, to
execute the mission.
13 The Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD(HD/ASA) is the
DoD Executive Agent responsible for approving and monitoring DoD assistance for Federal, State and local officials in
responding to domestic threats or events involving nuclear, chemical and biological weapons. 50 U.S.C. § 2313 (2006).
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Figure 3.1: RFA Process Decision Matrix
Figure 3-1, above, illustrates the flow of a request for military response to a CBRNE event from the
LFA to DOD. The request is submitted to ASD(HD&ASA) for approval, who then forwards the
request to the Joint Staff for execution. JDOMS issues an Execute Order (EXORD) to Commander,
USNORTHCOM, Commander, USSOUTHCOM or Commander, U.S. Pacific Command
(USPACOM), depending upon which Area of Responsibility encompasses the CBRNE event. The
Combatant Commander then orders the Commander, JTF-CS, to conduct consequence management
operations.
Every RFA must undergo a legal review. All requests by civil authorities for DOD military
assistance shall be evaluated by DOD approval authorities against the following criteria:
• legality (compliance with laws);
• lethality (potential use of lethal force by or against DOD forces);
• risk (safety of DOD forces);
• cost (who pays, impact on DOD budget);
• appropriateness (whether the requested mission is in the DOD’s interest); and
• readiness (impact on the DOD’s ability to perform its primary mission).
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Military missions require legal authority. DOD’s CBRNE CM operations are generally executed
under the provisions of The Robert T. Stafford Disaster Relief and Emergency Assistance Act.14
The Stafford Act authorizes the Federal government to assist local and state governments alleviate
the suffering and damage caused by disasters.15
Occasionally, the legal authority to use DOD forces arises from other sources. For instance, the
DOD policy on Immediate Response addresses the authority delegated to DOD component or
military commanders to provide immediate assistance to civil authorities to save lives, prevent
human suffering, or mitigate great property damage in the event of imminently serious conditions
resulting from any civil emergency or attack.16 Executive Order 13527 Establishing Federal
Capability for the Timely Provision of Medical Countermeasures Following a Biological Attack
provides authority for designated Federal Agencies to include the DoD to provide support to
operations that leverage the United States Postal Service to distribute “medical countermeasures” to
the general population.17 Likewise, Joint Publication 3-28 sanctions immediate response authority
for various CBRNE incident related operations, such as search and rescue missions and debris
removal.18
14 The Robert T. Stafford Disaster Relief and Emergency Assistance Act, (Public Law 93-288) (Title 42 U.S. Code,
Section 5121, et seq.) (as amended) [hereinafter Stafford Act].
15 The Stafford Act is outlined earlier in Chapter 5. The Secretary of Homeland Security is responsible for overall
coordination of Federal Stafford and non-Stafford incident management activities. Requests for DOD assistance may
occur under Stafford Act or non-Stafford Act conditions. In general, a Stafford Act incident is one in which state and
local authorities declare a state of emergency but require Federal assistance to adequately manage the incident and
consequently request federal assistance. A non-Stafford Act incident is essentially all of the other emergencies
occurring each year that do not necessarily overwhelm state and local authorities, but where the event would still benefit
from federal assistance and coordination. A small-scale CBRNE response that is within the capabilities of a state’s
National Guard Weapons of Mass Destruction Civil Support Team may constitute a non-Stafford Act incident.
16 U.S. DEP’T OF DEFENSE, DIR 3025.1, MILITARY SUPPORT TO CIVIL AUTHORITIES, 15 Jan 93 [hereinafter DoDD
3025.1], at para 4.5.
17 EO 13527, Establishing Federal Capability for the Timely Provision of Medical Countermeasures Following a
Biological Attack (Dec. 30, 2009).
18 See, JOINT CHIEFS OF STAFF, JOINT PUB 3-28, CIVIL SUPPORT, (14 Sep 07) [hereinafter JOINT PUB. 3-28], at II-7. A
commander engaged in CBRNE CM operations:
responding to a SecDef approved DSCA mission and/or execute order (EXORD), is like any other DOD military
commander and may find the need to exercise his/her immediate response authority with available forces. This is
particularly relevant in the event of a second terrorist attack . . . within the JOA, since trained medical and
specialized CBRNE assessment/response teams are on the scene and able to rapidly respond to time-sensitive
requests from the civil sector
As soon as practical, the military commander, or responsible official of a DOD
component or agency rendering such assistance, shall report the request, the nature of the response, and any other
pertinent information through the chain of command to the National Military Command Center, so that the
information is received within a few hours of the local commander’s decision to provide immediate response
support. Immediate response requests in the event of a CBRNE incident may include, but are not limited to:
1. Rescue, evacuation, and emergency medical treatment of casualties, maintenance or restoration of emergency
medical capabilities, and safeguarding the public health.
2. Emergency clearance of debris, rubble, and explosives ordnance from public facilities and other areas to permit
rescue or movement of people and restoration of essential services.
3. Detection, assessment, and containment (initial steps taken to facilitate emergency evacuation and public
awareness warnings).
4. Roadway movement control and planning.
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It is “important for commanders to understand that the policy is limited, restrictive, and
conditional.”19 There is both a temporal and proximity aspect to immediate response. Although no
law or DOD policy limits the authority to a specific period of time, given the both the NRF’s policy
that Federal assistance is applied only after lower level jurisdictions’ resources are exhausted and
the premise that DOD should remain in a supporting role, immediate response should be limited to
the time it takes local, State, and possibly Federal responders to reach the scene and assume control
of the relief effort.20 Absent unusual circumstances, such as another incident, immediate response
should not be initiated after a Presidential declaration under the Stafford Act, which would bring
FEMA and the appropriate array of Federal agencies into the relief effort in support of the local
community.21
C. DOD Entities Responsible for CBRNE CM Operations
The National Defense Authorization Act of Fiscal Year 200322 established what later became the
Office of The Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
(ASD(HD/ASA)). The ASD(HD/ASA) assumed responsibilities as DOD’s Executive Agent
responsible for approving and monitoring DOD assistance for Federal, State and local officials in
responding to domestic threats or events involving nuclear, chemical and biological weapons. As a
result, this office oversees defense support of civilian authorities (DSCA), including CBRNE CM.
The Joint Director of Military Support (JDOMS) produces military orders for DSCA, including
consequence management operations.
In 2002, DOD also established the U.S. Northern Command (USNORTHCOM) to consolidate
under a single unified command all existing missions previously executed by other military
organizations.23 The command’s specific mission is to “anticipate[] and conduct[] Homeland
Defense and Civil Support operations within the assigned area of responsibility to defend, protect,
and secure the United States and its interests.”24 USNORTHCOM is designated as the supported
command to conduct CBRNE CM operations in support of a LFA in the 48 contiguous states, the
District of Columbia, and Alaska, and U.S. territorial waters.25 Based upon the magnitude of the
CBRNE incident and required response, USNORTHCOM determines the appropriate level of
command for, and composition of, the DOD CBRNE Consequence Management Response Force
(CCMRF).
In 2008, USNORTHCOM designated U.S. Army North (ARNORTH) as the Joint Force Land
Component Commander (JFLCC) for domestic CM operations. The JFLCC now has operational
5. Emergency restoration of essential public services (including fire-fighting, water, communications,
transportation, power, and fuel).
but see, 32 C.F.R. § 185.3.
19 JOINT PUB 3-28, supra note 16, II-7.
20 Id. at II-28.
21 32 C.F.R. § 185.3.
22 The Bob Stump National Defense Authorization Act of 2003, Pub. L. No. 107-314, § 902.
23 Unified Command Plan 2002.
24 USNORTHCOM, http://www.northcom.mil/About/index.html (last visited 25 Aug 2010).
25 CDRUSNORTHCOM CONPLAN 3500-08 (CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR AND HIGH-YIELD
EXPLOSIVES CONSEQUENCE MANAGEMENT OPERATIONS (CBRNE CM), paras. 1b(1) and 1e(1) (22 Oct. 08)(U).
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control of Joint Task Force Civil Support (JTF-CS), which had previously been directly subordinate
to USNORTHCOM. The JTF-CS is a standing joint task force comprised of active, reserve and
National Guard members from the Army, Navy, Air Force, Marines and Coast Guard, as well as
civilian personnel, and is commanded by a Federalized Army National Guard General Officer. The
unit’s purpose is to save lives, prevent injury and provide temporary critical life support during a
CBRNE incident in the U.S. or its territories and possessions. The JTF-CS is the only military
organization dedicated solely to planning and integrating DOD forces for CBRNE CM support to
civil authorities in such a situation.
D. Specialized DoD CBRNE Responders
1. Joint Task Force Civil Support
Joint doctrine divides civil support (CS) operations into three broad categories:26 domestic
emergencies; designated law enforcement support;27 and other activities,28 based on the CS
definition. Although Joint Task Force Civil Support (JTF-CS) is nominally linked to broader
mission areas, the organization’s focus is far narrower; JTF-CS’ specific mission is CBRNE CM.
JTF-CS is a standing joint task force headquarters located at Fort Monroe, Virginia. It is a
deployable command and control headquarters for DOD units and personnel executing CM
operations in response to CBRNE incidents, and a source of response plans for essential DOD
support to the LFA. The unit’s mission is to plan and integrate DOD support to the designated LFA
(usually DHS/FEMA) for domestic CBRNE CM. When directed, JTF-CS will deploy to the
incident site and establish command and control of designated DOD forces to provide defense
support of civil authorities to save lives, prevent further injury, and provide temporary critical life
support. The NRF provides the coordinating framework under which JTF-CS performs its mission.
An Army National Guard Major General on Federal active duty status commands JTF-CS. The
staff consists of active and reserve component military from all five services, government service
personnel, and civilian contractors. Collectively, the command possesses expertise in a wide range
of functional areas to include operations, logistics, intelligence, planning, communications, and
medical services. Created by the Unified Command Plan for 1999,29 JTF-CS provides both an
26 JOINT PUB. 3-28, supra note 16, III-1.
27 When situations are beyond the capability of the state, the governor requests federal assistance through the President.
DOD support and/or assistance in restoring public services and civil order may include augmentation of local first
responders and equipment. It may include law enforcement support, continuity of operations/continuity of government
measures to restore essential government services, protect public health and safety, and provide emergency relief to
affected governments, businesses, and individuals. Responses occur under the primary jurisdiction of the affected state
and local government, and the Federal government provides assistance when required. See, JOINT PUB. 3-28, Executive
Summary, at x.
28 These other activities include support to special events designated by the DHS Special Events Working Group
(SEWG). National special security event (NSSE) is a designation given to certain special events that, by virtue of their
political, economic, social, or religious significance, may be the target of terrorism or other criminal activity. The
Secretary of Homeland Security, after consultation with the Homeland Security Council, shall be responsible for
designating special events as NSSEs. Usually, other military operations will have priority over these missions, unless
directed otherwise by the SecDef. These events will be assigned a priority by the SEWG and will normally be
monitored by the combatant command responsible for the area of responsibility in which they are conducted. See
DOPLAW Handbook, chapter 7.
29 Even though the Unified Command Plan for 1999 doesn’t specifically mention JTF-CS, the SECDEF memo
accompanying the plan when forwarded to the President notified the President that the SECDEF intended to establish a
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operational capability and an oversight mechanism that can anticipate support requirements for
responding to a catastrophic CBRNE incident, undertake detailed analysis, conduct exercises, and
ultimately respond in support of civil authorities. The unit’s focus is entirely on CBRNE
consequence management.
On October 1, 2008, JTF-CS received operational control over various units assigned to the
CCMRF. These units possess the military occupational specialties required to staff DOD’s initial
CBRNE CM entry force. The CCMRF is comprised of approximately 4,500 service members but
may be augmented as necessary by force packages tailored to the particular type of incident and
response required. The CCMRF forces are configured into subordinate task forces with specific
response missions, such as medical, aviation, and operational support. When called upon to
perform its mission, JTF-CS and the CCMRF will quickly deploy to mitigate the effects of a
CBRNE incident.
JTF-CS employs a three-fold process that enables the command to gain and maintain situational
awareness prior to an execution order. First, at Fort Monroe, JTF-CS staffs an around-the-clock
operations center tasked with gaining and maintaining situational awareness. Second, the command
has liaison officers who routinely interact with interagency partners to ensure familiarity with their
operations, facilitate interagency communications and operations, and gain first-hand understanding
of their emergency response plans. Third, when an incident actually occurs but prior to the receipt
of an execution order, JTF-CS is prepared to send an assessment element to the incident area. This
element is referred to as the NORTHCOM Situational Awareness Team (NSAT). The NSAT’s
purpose is to establish the “ground truth” concerning what emergency assets and capabilities are
either at-hand or available to emergency managers through intrastate or interstate compacts. The
NSAT provides this information to the Commander, USNORTHCOM, to assist in his decision-
making. Additionally, the information enables JTF-CS planners at Fort Monroe to perform
predictive analysis regarding the types of missions that the LFA may ask DOD to perform. These
extensive planning efforts enable DOD to organize a timely flow of appropriate assets to the
incident area upon request.
Upon receipt of an execution order, JTF-CS has the ability to reconfigure into two command posts
to ensure continuity of operations at home station, while deploying forward to the incident site. The
magnitude of the CBRNE incident determines the size of the deploying command post.
Additionally, JTF-CS routinely provides support to other commands during real-world events with
Joint Planning Augmentation Cells (JPACs). JPACs consist of 5 to 15 individuals with extensive
consequence management planning skills that can help other staffs plan for and respond to CBRNE
or other incidents in their immediate area of responsibility. JPACs are tailored to fit the type of
support requested by the supported organization.2. National Guard Weapons of Mass
Destruction Civil Support Teams
standing Joint Task Force for Civil Support. The unit would report to the SECDEF through the U.S. Joint Forces
Command and the Chairman of the Joint Chiefs of Staff. Its principle focus would be to plan for and integrate DoD’s
support to the lead federal agency that would have the responsibility to manage the consequences of a domestic
weapons of mass destruction (WMD) event. The SECDEF felt that, due to the catastrophic nature of a WMD terrorist
event that would quickly overwhelm state and local authorities, the structure that existed for providing DoD support
needed to be expanded.
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Pursuant to the Defense Against Weapons of Mass Destruction (WMD) Act, and additional
authorizations by Congress, DOD is authorized a total of 55 WMD-CSTs.30 Recognizing that the
National Guard is “forward deployed for civil support,”31 the Secretary of Defense determined that
the CSTs would be most effective if established in the National Guard. Consequently, each WMD-
CST is composed of 22 full-time National Guard Soldiers and Airmen and contains five elements:
command, operations, administrative/ logistics, medical, and survey. The teams are designed to
deploy rapidly to assist local first responders in the event of an intentional or unintentional CBRNE
incident.32
The mission of the state National Guard WMD-CSTs is to deploy to an area of operations and:
• Assess a suspected event in support of a local incident commander;
• Advise the local incident commander and civilian responders; and
• Facilitate requests for assistance to expedite arrival of additional state and Federal assets to help
save lives, prevent human suffering, and mitigate great property damage.
WMD-CSTs are to be specially equipped and trained. Special equipment includes the Mobile
Analytical Laboratory System (MALS)33 for nuclear, biological and chemical (NBC) detection and
the Unified Command Suite (UCS) for communications.34 WMD-CST capabilities are specifically
designed to complement civilian responders.35 Community and state emergency management plans
may directly incorporate WMD-CST capabilities.
WMD-CSTs will operate under the command and control of the state governor and the Adjutant
General. Individual team members serve in a full-time, Title 32 National Guard status.36 If the
teams are called to Federal active duty, they will normally be attached with operational control to
JTF-CS.37
WMD-CSTs assigned to one state are authorized to operate in another state under one of the
following:
• State-to-State Compacts;
• State-to-State Memoranda of Agreement; and,
• Activation under Title 10.38
30 The number of authorized CSTs is the culmination of legislative actions during the last decade. For a current account
31 U.S. Secretary of Defense Report to Congress pursuant to FY00 National Defense Authorization Act § 1036, 2 (24
Feb. 2000).
32 Id.
33 Id. at 3. MALS is based on system used by the Marine Corps’ Chemical Biological Incident Response Forces with
enhanced biological detection capability.
34 Id. The UCS, built by the Navy, provides communication interface across the ICS frequencies, military command and
control elements, and technical support assets.
35 Id. at 4.
36 Id. at 5.
37 Id.
38 Id. at 6. See infra Chapter 10, Reserve Components, for a discussion of interstate compacts.
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E. Special Legal Considerations During CBRNE CM Operations
The parameters under which DOD operates domestically vary greatly from those in traditional
military activities. DOD domestic CBRNE CM activities raise legal issues not usually found in
more typical military operations. Depending on the circumstances, and the location of the incident,
the scope and complexity of potential legal issues will greatly vary. Following are four legal issues
that may arise in the context of a CBRNE CM operation. As these areas are largely driven by
policy decisions at the SecDef level or higher, and are additionally vetted through the normal
mission assignment process, judge advocates on the operational and tactical levels should receive
primary guidance concerning these issues through appropriate mission EXORDs and FRAGOs.
Judge advocates should also become familiar with the primary Federal and state authorities
discussed below.
1.
Quarantine / Isolation
Quarantine39 and isolation40 enforcement issues may arise most typically in pandemic scenarios.
State and local health authorities are most commonly responsible for decisions to impose quarantine
or isolation, and the power to enforce these is generally considered to be part of a jurisdiction’s
police powers.41 Federal power to impose quarantine and isolation measures arises concerning
attempts to halt or impede the “introduction, transmission, or spread of communicable diseases from
foreign countries into the States or possessions, or from one State or possession into any other State
or possession.”42
Regardless of whether the quarantine and isolation measures are imposed from the Federal, state, or
local level, DoD enforcement actions will likely be subject to the Posse Comitatus Act,43 absent an
alternative statutory or Constitutional authority. One such exception would be DoD enforcement of
a quarantine or isolation under circumstances that have given rise to Presidential invocation of the
Insurrection Act.44 Typically, however, any DoD support provided to quarantine and isolation
support will be limited to logistical, communications, medical, and other support commonly
envisioned by the Stafford Act.
2.
Environmental Compliance
Judge advocates planning for CBRNE CM operations should assume that Federal, state, and local
environmental laws and regulations will remain in place, at least insofar as they pertain to DoD
response operations. For example, the Stafford Act specifically states that NEPA applies to actions
undertaken pursuant to the Act (an exception is that restoring a facility substantially to its condition
39 “Quarantine” is defined as the “[s]eparation of individuals who have been exposed to an infection but are not yet ill
from others who have not been exposed to the transmissible infection.” Homeland Security Council, National Strategy
for Pandemic Influenza: Implementation Plan 209 (GPO May 2006).
40 Id.
41 U.S. Congressional Research Service. Federal and State Quarantine and Isolation Authority 2 (RL33201; Jan. 23,
2007), by Kathleen S. Swendiman and Jennifer K. Elsea.
42 42 U.S.C. § 264(a). Additionally, in some situations, the Federal government may intervene if it deems state and
local control measures to be inadequate. 42 C.F.R. § 70.2.
43 18 U.S.C. § 1385.
44 10 U.S.C. §§ 331-335.
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prior to the disaster or emergency is not deemed a major Federal action significantly affecting the
quality of the human environment).45 Although the Stafford Act does contain a blanket waiver
authority of “administrative conditions for assistance” for Federal agencies,46 this authority does not
overcome statutory requirements. Additionally, the EPA or appropriate ESF 10 agencies, rather
than DoD, would normally issue any environmental waivers.
The handling and disposal of waste from CBRNE CM decontamination operations will frequently
implicate environmental compliance issues. In such a scenario, the EPA, operating under ESF 10,
would be the primary agency responsible for hazardous waste management.47 Additionally,
coordination with state authorities regarding the state’s environmental laws and regulations is
essential. Judge advocates should ensure that appropriate staff sections and levels of command
have ascertained whether the decontamination and decontaminated waste disposal procedures
outlined in FM 3-11.548 are sufficient for CBRNE CM operations, or whether those procedures
should be modified pursuant to guidance from appropriate state and federal regulatory agencies.
3. Health Care Licensure
In a domestic CBRNE event, non-fatality casualties may range from minimal to overwhelming.
The National Planning Scenarios’ casualty numbers for domestic CBRNE events range from a few
hundred (radiological dispersal device) through hundreds of thousands (improvised nuclear device)
to nearly ten million (pandemic influenza).49 The greater the number of casualties, the more likely
that any requested DoD support will include requests for DoD medical personnel to provide care for
the affected populace. Because DoD caregivers may not necessarily be licensed / credentialed in
accordance with the appropriate state laws, however, judge advocates must be prepared to render
advice on Federal and state licensure requirements during emergency support operations. Upon a
command’s receipt of any mission assignments relating to the provision of health related services
(or even prior to receipt, if practicable), judge advocates on the operational and tactical levels
should verify with higher headquarters that any health care licensure requirements have been met or
waived by appropriate authorities, and that there is a common understanding between the various
agencies involved (including DoD, ESF 8, and state and local agencies) of the statutory portability
provisions discussed below.
The primary federal statute regarding credentialing of military personnel is 10 U.S.C. § 1094
(Licensure requirement for health care professionals). This law states that an armed forces health
care professional who has a current license and is performing authorized duties for DoD may
practice his or her health care profession in any state, notwithstanding any other health care
licensure laws and regardless of whether the practice occurs in a DoD facility, a civilian facility
affiliated with DoD, or any other location authorized by SecDef.50 DoD has promulgated
45 42 U.S.C. § 5159.
46 42 U.S.C. § 5141.
47 Dep’t of Homeland Security, National Response Framework, Emergency Support Function #10 (Oil and Hazardous
Materials Response Annex), Jan. 2008.
48 U.S. Dep’t of Army, Field Manual 3-11.5, Multiservice Tactics, Techniques, and Procedures for Chemical,
Biological, Radiological, and Nuclear Decontamination (4 Apr. 06) [hereinafter FM 3-11.5].
49 Dep’t of Homeland Security, National Planning Scenarios (6 Apr. 2006).
50 10 U.S.C. § 1094.
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qualification and coordination requirements to this statutory portability provision as it pertains to
off-base duties.51 The various qualification / coordination with state licensing board requirements
pertaining to health care personnel involved in off-base duties can be found in DoD 6025.13-R,
para. C4.2.
On the state level, many jurisdictions have passed emergency management provisions containing
portability of licensure provisions. For example, in Florida, the Governor’s proclamation of a major
or catastrophic disaster is authority for a health care practitioner licensed in another state to assist in
providing health care in the disaster area according to the provisions specified in the
proclamation.52 Similarly, California permits health care providers licensed in other states to
provide health care during a statutorily defined state of emergency if the emergency overwhelms
California health care practitioners’ response capabilities and California’s Director of the
Emergency Medical Service Authority so requests.53 Although during a Stafford Act response,
DoD support will not normally be provided absent a specific request from State authorities, judge
advocates, through their technical chain, should ensure that all appropriate agencies and levels of
command have a common understanding of the state laws and rules regarding licensure and how
those mesh the Title 10 provisions.
Also on the state level, Judge Advocates can look to the state Emergency Management Assistance
Compact (EMAC). Article V of the Model EMAC legislation states that
[w]henever any person holds a license, certificate, or other permit issued by any state
party to the compact evidencing the meeting of qualifications for professional,
mechanical, or other skills, and when such assistance is requested by the receiving
party state, such person shall be deemed licensed, certified, or permitted by the state
requesting assistance to render aid involving such skill to meet a declared emergency
or disaster, subject to such limitations and conditions as the governor of the
Requesting State may prescribe by executive order or otherwise.54
Even if the state has passed the model EMAC legislation without alteration, however, judge
advocates must be cognizant of the particular state Governor’s limitations on this portability
provision.
4.
Mortuary Affairs
As with non-fatality casualties, the number of fatalities in a CBRNE event may quickly overwhelm
state and local capabilities. The National Planning Scenarios contain fatality numbers from those
low enough to be handled at the state level with Federal, though not necessarily DoD, support (100
- improvised explosives), through fatality numbers that are catastrophic (over a quarter of a million
51 “Off base duties” are “[o]fficially assigned professional duties performed at an authorized location outside a MTF and
any military installation.” U.S. Dep’t of Defense, Reg. 6025.13-R, Military Health System Clinical Quality Assurance
Program, para. DL1.1.32 (Jun. 11, 2004).
52 Fla. Stat. § 252.36(3)(c)1.
53 Cal. Bus. & Prof. Code § 900.
54 Nat’l Emergency Mgmt Ass’n, Model EMAC Legislation, Article V, http://www.emacweb.org/?13 (last visited 25
Aug 2010).
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for a improvised nuclear device, and nearly two million for pandemic influenza).55 As in other
aspects of emergency management, primary responsibility for mortuary affairs (MA) operations lies
at the local level, normally with the local medical examiner and/or coroner. The National Response
Framework gives ESF 8 the responsibility for mass fatality management in the federal response,56
but in a catastrophic scenario, it is likely that DoD will be asked to provide mortuary affairs support.
Types of support DoD may be asked to provide, potentially utilizing personnel that are not MA
skilled, may include search and recovery operations and transportation / storage of remains, among
others.57 DoD personnel who are not MA skilled may require training and oversight from DoD
mortuary affairs personnel prior to engaging in mortuary affairs-related missions or activities.58
Guidance on DoD personnel’s handling of human remains and their interface with the civilian
authorities will most likely be published in the form of a FRAGO to an EXORD. For example,
during Hurricane Katrina, DoD forces assisting in the recovery effort were prohibited from touching
human remains, and were permitted only to mark the locations of remains.59 Nevertheless, during
operations, judge advocates should become familiar with the relevant state laws, regulations, and
licensure requirements regarding the handling, transportation, and disposition of human remains,
and ensure that these requirements have either been met or waived by appropriate authorities.
Judge advocates should also be cognizant of the various points of contact involved in mortuary
affairs operations, including the local medical examiner/coroner, local law enforcement, and the
FBI.
55 Dep’t. of Homeland Security, National Planning Scenarios (6 Apr. 2006).
56 Dep’t. of Homeland Security, National Response Framework, Emergency Support Function #8 (Public Health and
Medical Services), 8-2, January, 2008.
57 Joint Chiefs of Staff, Joint Pub 4-06, Mortuary Affairs in Joint Operations (5 Jun. 06), para. II-4h.
58 Id.
59 FORSCOM FRAGO 7 TO JTF KATRINA EXORD, 06XXXXZSEP05, para. 3.b.2.
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CHAPTER 4
MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT
KEY REFERENCES:
•
10 U.S.C. § 371-381 - Military Support for Civilian Law Enforcement
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA)
•
DoDD 5525.5 - DoD Cooperation with Civilian Law Enforcement Officials, January 15, 1986
•
DoDD 3025.12 - Military Assistance for Civil Disturbances, 4 Feb 94
•
DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not
Affiliated with the Department of Defense, 7 Jan 80
• DoDD 5240.01 - DoD Intelligence Activities, 27 Aug 07
• DoD 5240.1-R - Procedures Governing the Activities of DoD Intelligence Components that
Affect U.S. Persons, 1 Dec 82
• SECNAVINST 5820.7C - Cooperation with Civilian Law Enforcement Officials (26 Jan. 2006)
• AFI 10-801 - Assistance to Civilian Law Enforcement Agencies (15 Apr. 1994)
A. Introduction
Military support to civilian law enforcement agencies has undergone significant growth in recent
years. In the wake of the events of September 11, 2001, Hurricane Katrina in August and
September 2005, and the US-Mexico border security mission beginning in June 2006, the need for
support and coordination with local, state and federal law enforcement agencies has increased
markedly. The necessity of defending the homeland from emerging threats generated a renewed
emphasis for the Department of Defense’s (DoD) role and responsibilities in domestic operations.
U.S. military resources include specialized personnel, equipment, facilities, and training that may be
useful to civilian law enforcement agencies. The provision of DoD resources, however, must be
consistent with the limits Congress placed on military support to civilian law enforcement through
the Posse Comitatus Act and other laws. Judge advocates must also weigh and advise on the
political sensitivity of employing U.S. military forces in law enforcement roles with U.S. civilians.
This chapter begins with a discussion of the Posse Comitatus Act. It then discusses the applicable
provisions of the U.S. Code addressing military support to civilian law enforcement and the DoD
regulations that implement this guidance. Chapter 6 covers counterdrug support.
B. The Posse Comitatus Act
The primary statute restricting military support to civilian law enforcement is the Posse Comitatus
Act (PCA).1 The PCA states:
1 Posse Comitatus Act, 18 U.S.C. § 1385. The phrase “posse comitatus” is literally translated from Latin as the “power
of the county” and is defined in common law to refer to all those over the age of 15 upon whom a sheriff could call for
assistance in preventing any type of civil disorder. See generally United States v. Hartley, 796 F.2d 112, 114, n.3 (5th
Cir. 1986).
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Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or Air Force as
a posse comitatus or otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both.
The PCA was enacted in 1878, primarily as a result of the military presence in the South during
Reconstruction following the Civil War.2 This military presence increased during the bitter
presidential election of 1876, when the Republican candidate, Rutherford B. Hayes, defeated the
Democratic candidate, Samuel J. Tilden, by one electoral vote. Many historians attribute Hayes’
victory to President Grant’s decision to send federal troops for use by U.S. Marshals at polling
places in the states of South Carolina, Louisiana, and Florida. Possibly as a result of President
Grant’s actions, Hayes won the electoral votes of these hotly contested states.3 The use of the
military in this manner by a President led Congress to enact the PCA in 1878.4
The intent of the PCA was to limit direct military involvement with civilian law enforcement,
absent Congressional or Constitutional authorization, in the enforcement of the laws of the United
States.5 The PCA is a criminal statute and violators are subject to fine and/or imprisonment. The
PCA does not, however, prohibit all military involvement with civilian law enforcement. A
considerable amount of military participation with civilian law enforcement is permissible, either as
indirect support or under one of the numerous PCA exceptions.
In addition to the PCA, 10 U.S.C. ch. 18, Military Support for Civilian Law Enforcement Agencies6
and Department of Defense Directive (DoDD) 5525.5, DoD Cooperation with Civilian Law
Enforcement Officials, also provide guidance in this area.7 Both authorities, discussed below,
provide additional guidance regarding restrictions the PCA places on the military when supporting
civilian law enforcement agencies.8
2 See, e.g., Matthew C. Hammond, The Posse Comitatus Act: A Principle in Need of Renewal, 75 WASH. U. L.Q. 953,
954 (1997) [hereinafter HAMMOND]; H.W.C. Furman, Restrictions Upon Use of the Army Imposed by the Posse
Comitatus Act, 27 MIL. L. REV. 85, 94-95 (1960).
3 HAMMOND, supra note 2, at 954. The states of South Carolina, Louisiana, and Florida sent in double returns. The
electoral boards of these three states, which were dominated by Republicans, certified that the states had voted for
Hayes even though it was widely believed that each state had a majority of Democrats. The Democrats sent in their
own returns which showed that Tilden won each of the three states. Congress, which held a Republican majority,
eventually appointed an electoral commission to recount the entire vote. Hayes was declared the winner by one
electoral vote. Tilden won the popular vote with 51% over Hayes’ 48%.
4 Id.
5 United States v. Red Feather, 392 F. Supp. 916, 922 (W.D.S.D. 1975).
6 See Hayes v. Hawes, 921 F.2d 100, 103 n.3 (7th Cir. 1990) (noting that 10 U.S.C. ch. 18 specifically incorporates 18
U.S.C. § 1385 and provides the primary restriction on military participation in civilian law enforcement activities).
7 U.S. Dep’t of Defense, Dir. 5525.5, DoD Cooperation with Civilian Law Enforcement Officials (15 Jan. 1986)
[hereinafter DoDD 5525.5].
8 Service regulations that implement DoDD 5525.5, Id. are; U.S. Dep’t of Navy, Secretary of the Navy Instr. 5820.7C,
Cooperation with Civilian Law Enforcement Officials (26 Jan. 2006) [hereinafter SECNAVINST 5820.7C]; and U.S.
Dep’t of Air Force, Secretary of the Air Force Instr. 10-801, Assistance to Civilian Law Enforcement Agencies (15 Apr.
1994) [hereinafter AFI 10-801].
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1.
To Whom Does the PCA Apply?
On its face, the PCA only applies to active duty members of the Army and the Air Force.
Accordingly, federal courts have consistently read the plain language of the Act to limit its
application to these two services.9 However, 10 U.S.C. § 375 directs the Secretary of Defense to
promulgate regulations that prohibit “direct participation by a member of the Army, Navy, Air
Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in
such activity by such member is otherwise authorized by law.”10 The Secretary of Defense
subsequently prohibited these activities in DoDD 5525.5,11 and, as a result, the restrictions placed
on Army and Air Force activities through the PCA now apply to the Navy and Marine Corps.12 The
PCA does not apply to the Coast Guard unless it is operating under the command and control of the
Department of Defense.13
The PCA also applies to Reserve14 members of the Army, Navy, Air Force, and Marine Corps who
are on active duty, active duty for training, or inactive duty training in a Title 10 duty status.
Members of the National Guard performing operational support duties,15 active duty for training, or
inactive duty training in a Title 32 duty status are not subject to the PCA. Only when members of
the National Guard are in a Title 10 duty status (federal status) are they subject to the PCA.
Members of the National Guard also perform additional duties in a State Active Duty (SAD) status
and are not subject to PCA in that capacity.16 Civilian employees of the Department of Defense are
9 See, e.g., United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991) (citing congressional record that earlier version
of measure expressly extended PCA to the Navy but final version deleted any mention of application to the Navy);
United States v. Roberts, 779 F. 2d 565 (9th Cir. 1986), cert. denied, 479 U.S. 839 (1986).
10 Hayes, supra, note 6, at 102-103 (10 U.S.C. § 375 makes the proscriptions of 18 U.S.C. § 1385 applicable to the
Navy). See also Yunis, supra note 9, at 1094 (“Regulations issued under 10 U.S.C. § 375 require Navy compliance
with the restrictions of the Posse Comitatus Act….”).
11 See DoDD 5525.5, supra note 7, para. E4.3; SECNAVINST 5820.7C, supra note 8, para. 8(a); AFI 10-801, supra
note 8, ch. 2.1. Exceptions to this prohibition as it applies to the Navy or Marine Corps may be granted by the Secretary
of Defense or the Secretary of Navy on a case by case basis. See also Yunis, supra, note 10, at 1094 (affirming that
DoDD 5525.5 requires the Navy to comply with the restrictions of the Posse Comitatus Act).
12 SECNAVINST 5820.7C, supra note 8, para. 8(b).
13 14 U.S.C. § 2.
14 The Reserve includes Reservists in the: Selected Reserve (SelRes), Guard/Reserve Units Individual Mobilization
Augmentees (IMAs), Active Guard/Reserve Personnel Individual Ready Reserve (IRR), and Inactive National Guard
(ING). “The Ready Reserve consists of units or individuals, or both, liable for active duty under the provisions of 10
U.S.C. §§ 12301-12302. The Ready Reserve is comprised of the Selected Reserve and the Individual Ready Reserve
(IRR) / Inactive National Guard(ING).” 10 U.S.C. § 10142.
The SelRes is comprised of: Reserve/Guard Units: Unit members are Guard/Reserve personnel assigned to Reserve
organizations and perform in drill periods and annual training as a minimum. Individual Mobilization Augmentees
consist of Reserve personnel assigned to Active component organizations who perform in drill periods and annual
training. Active Guard/Reserve (AGR) is comprised of Reserve personnel on full-time active duty or full-time National
Guard duty to provide support to the Reserve Components. All Members of the SelRes are in an active status. Id. §
10143.
15 32 U.S.C. § 502(f).
16 See infra ch. 10, Reserve Components - Special Issues, for a detailed discussion of National Guard and Reserve
status.
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only subject to the prohibitions of the PCA if they are under the direct command and control of a
military officer.17
Finally, the PCA does not apply to a member of the Army, Navy, Air Force, or Marine Corps when
they are off duty and acting in a private capacity. A service member is not in a private capacity
when assistance is rendered to civilian law enforcement officials under the direction or control of
DoD authorities.18
2.
Where Does the PCA Apply?
Federal courts have generally held that the PCA places no restrictions on the use of the armed forces
abroad.19 The courts, noting that Congress intended to preclude military involvement in domestic
law enforcement activities, have been unwilling to read any extraterritorial application into the
PCA.20 A 1989 Department of Justice Office of Legal Counsel Opinion concluded that the PCA
and the restrictions in 10 U.S.C. §§ 371-381 have no extraterritorial application.21 However, in
United States v. Kahn22 the 9th U.S. Circuit Court of Appeals indicated that the extraterritorial
application of the PCA remains an open question.22 While recognizing that several courts held that
the PCA only applies within the territory of the United States, the Kahn court maintained that the
issue has not been definitively resolved, since the PCA imposes restrictions on the use of the armed
forces abroad through 10 U.S.C. §§ 371-381.23
Nevertheless, DoD implementing policy contained in DoDD 5525.5 applies to all members of the
armed forces wherever located. Therefore, PCA restrictions must be considered even when
contemplating military assistance to law enforcement overseas. In case of compelling or
extraordinary circumstances, the Secretary of Defense may consider exceptions to the prohibition
against direct military assistance to law enforcement outside the territorial jurisdiction of the United
States.24
17 DoDD 5525.5, supra note 7, para. E4.2.
18 Id.
19 See, e.g., Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949); D’Aquino
v. United States, 192 F.2d 338, 351 (9th Cir. 1951), cert. denied, 343 U.S. 935 (1952).
20 Id. at 936 (the PCA was “the type of criminal statute which is properly presumed to have no extraterritorial
application in the absence of statutory language indicating a contrary intent”).
21 Memorandum from Office of the Assistant Attorney General to General Brent Scowcroft, subject: Extraterritorial
Effect of the Posse Comitatus Act (3 Nov. 1989).
22 United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994).
23 Id. The Kahn court cites 10 U.S.C. § 374(b)(2)(F) (mentioning “law enforcement operations outside of the land area
of the United States”), § 379(a) (mentioning “naval vessels at sea”), and § 379(d) (mentioning “area outside the land
area of the United States”) as examples of limitations placed on the use of the armed forces abroad.
24 DoDD 5525.5, supra note 7, para. 8.1 provides:
With regard to military actions conducted outside the territorial jurisdiction of the United States, however, the
Secretary of Defense or the Deputy Secretary of Defense will consider for approval, on a case by case basis,
requests for exceptions to the policy restrictions against direct assistance by military personnel to execute the laws.
Such requests for exceptions to policy outside the territorial jurisdiction of the United States should be made only
when there are compelling and extraordinary circumstances to justify them.
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3. To What Does the PCA Apply?
10 U.S.C. §§ 371-375 outline the restrictions of the PCA as they apply to participation by the
military in civilian law enforcement activities. These restrictions are divided into three major
categories: (1) use of information, (2) use of military equipment and facilities, and (3) use of
military personnel. DoDD 5525.5 further divides the restrictions on the use of DoD personnel in
civilian law enforcement activities into categories of direct assistance, training, expert advice,
operation or maintenance of equipment, and other permissible assistance.25 See Figure 4-1, below.
Use of
Use of DoD
Use of Military
Information
Personnel
Equipment
(10 U.S.C. §
(10 U.S.C. §§
and Facilities
371 and DoDD
371-375 &
(10 U.S.C. §
DoDD 5525.5,
5525.5, Encl. 2)
372 & DoDD
Encl. 4)
5525.5, Encl. 3)
Training
Expert Advice
Direct
Operation and
Other
(10 U.S.C. §
(10 U.S.C. §§
Assistance
Maintenance
Permissible
373 & DoDD
373 & DoDD
(10 U.S.C. §§
of Equipment
Assistance
5525.5, Encl. 4)
5525.5, Encl. 4)
375 & DoDD
(10 U.S.C. §§
(10 U.S.C. §§
5525.5, Encl. 4)
374 & DoDD
371 & DoDD
5525.5, Encl. 4)
5525.5, Encl. 4)
Prohibited
Permissible
Direct
Direct
Assistance
Assistance
(10 U.S.C. §§
(10 U.S.C. §§
375 & DoDD
375 & DoDD
5525.5, Encl. 4)
5525.5, Encl. 4)
Military
Emergency
Civil
Other Express
Purpose
Authority*
Disturbance
Statutory
Doctrine
(DoDD 5525.5,
Statutes
Authority
(DoDD 5525.5,
Encl. 4.1.2.3)
(10 U.S.C. §§
(DoDD 5525.5,
Encl. 4.1.2.1)
331-334 &
Encl. 4.1.2.5)
DoDD 5525.5,
Encl. 4.1.2.4)
*See DoDD 3025.12 to distinguish Emergency MACDIS Authority from Immediate Response Authority.
Figure 4-1. PCA Restrictions contained in 10 U.S.C. §§ 371-375 and DoDD 5525.5
In addition to the above categories, 10 U.S.C. §§ 376 and 377 provide further limitations on the
provision of military support to civilian law enforcement. 10 U.S.C. § 376 provides an overarching
restriction in the event “such support will adversely affect the military preparedness of the United
25 DoDD 5525.5, supra note 7, para. E4.1; SECNAVINST 5820.7C, supra note 8, para. 8; AFI 10-801, supra note 8, ch.
2.1.
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States.”26 The Secretary of Defense directed the Secretaries of the Military Departments and the
Directors of the Defense Agencies to ensure that approval authority for the disposition27 of
equipment to civilian law enforcement agencies is vested in those officials who can properly assess
the impact the disposition will have on military preparedness and national security.28
10 U.S.C. § 377 requires civilian law enforcement agencies to reimburse DoD for support provided
as required by the Economy Act29 or other applicable law. Civilian law enforcement agencies do
not have to provide reimbursement for support under this statute if the support: (1) is provided in
the normal course of military training or operations, or (2) results in a benefit to DoD that is
substantially equivalent to that which would otherwise be obtained through military training or
operations.30 Waiver authority for reimbursements not required by law resides with the Assistant
Secretary of Defense (Force Management and Personnel). This authority may be delegated to the
Secretaries of the Military Departments and the Directors of the Defense Agencies (or designees) on
matters within their approval authority.31
a. Use of Information Collected During Military Operations
The use of information collected during military operations is codified in 10 U.S.C. § 371 and
implemented by the Secretary of Defense in Enclosure 2 of DoDD 5525.5. The sharing of
intelligence information has taken on crucial importance after September 11, 2001. The Homeland
Security Act of 2002 tasked the Secretary of the Department of Homeland Security with
establishing procedures to share information with local, State and Federal entities.32 The President
is to ensure that the procedures apply to “all agencies of the Federal Government.”33
Under 10 U.S.C. § 371, the Secretary of Defense may provide information collected during the
normal course of military operations to federal, state, and local law enforcement agencies if the
information is relevant to a violation of federal or state law under the jurisdiction of these officials.
The Secretary of Defense shall, to the maximum extent possible, take into account the needs of
civilian law enforcement officials when planning and executing military training and operations.
Further, § 371 provides that the Secretary of Defense shall ensure, to the extent consistent with
national security, that intelligence information held by DoD and relevant to drug interdiction and
other civilian law enforcement matters is promptly provided to the appropriate civilian law
enforcement officials. 10 U.S.C. § 371, et seq., are included at Appendix 2-2, Statutes Governing
Support to Law Enforcement.
26 10 U.S.C. § 376 (1998). This statute reflects congressional concern over the potential dilution of military readiness
and capabilities by complying with requests for assistance from civilian law enforcement agencies.
27 DoDD 5525.5, supra note 7, para. E3.1 states: “Military Departments and Defense Agencies may make equipment,
base facilities, or research facilities available to federal, State, or local civilian law enforcement officials for law
enforcement purposes in accordance with this enclosure.”
28 Id. para. E4.4; SECNAVINST 5820.7C, supra note 8, para. 6(b); AFI 10-801, supra note 8, ch. 3.
29 31 U.S.C. § 1535.
30 10 U.S.C. § 377.
31 DoDD 5525.5, supra note 7, para. E5.2; SECNAVINST 5820.7C, supra note 8, para. 9; AFI 10-801, supra note 8, ch.
5.
32 Homeland Security Act of 2002, § 891(c), Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified primarily at 6 U.S.C.
§§ 101-557) [hereinafter HSA 2002].
33 Id. § 892(a)
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Enclosure 2 of DoDD 5525.5 implements the above guidance with some additional restrictions.
Military Departments and Defense Agencies are generally encouraged to provide law enforcement
officials any information collected during the normal course of military operations that may be
relevant to a criminal violation. While the Secretary of Defense shall take into account the needs of
civilian law enforcement officials when planning and executing military training and operations in
accordance with 10 U.S.C. § 371 above, the planning or creation of missions or training for the
primary purpose of aiding civilian law enforcement officials is prohibited. Law enforcement
officials may accompany regularly scheduled training flights as observers, but point to point
transportation and training flights for civilian law enforcement officials are not authorized.34
Additionally, the handling of all such information must comply with DoDD 5240.1, Activities of
DoD Intelligence Components that Affect U.S. Persons;35 DoDD 5200.27, Acquisition of
Information Concerning Persons and Organizations not Affiliated with the Department of
Defense;36 and DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence
Components that Affect United States Persons.37 See ch. 9, Intelligence Law and Policy
Considerations During Domestic Support Operations, for additional information.
b. Use of Military Equipment and Facilities
The loan or lease of military equipment to civilians is a difficult legal area. Each military service
has implemented its own regulations in addition to DoDD 5525.5. The Army Regulation on point is
AR 700-131. 38 10 U.S.C. § 372 and Enclosure 3 of DoDD 5525.5 address the use of military
equipment and facilities by civilian law enforcement authorities. Section 372(a) allows the
Secretary of Defense to make available equipment (including associated supplies and spare parts),
base facilities, and research facilities of the Department of Defense to any federal, state, or local
civilian law enforcement official for law enforcement purposes. The provision of equipment and
facilities must be made in accordance with all other applicable law. Enclosure 3 of the DoDD
implements this provision and allows Military Departments and Defense Agencies to make
equipment, base facilities, or research facilities available to federal, state, or local law enforcement
authorities if the assistance does not adversely affect national security or military preparedness.
Approval authority under DoDD 5525.5 varies based on the type of equipment requested, the reason
for the request, and whether the equipment will be loaned39 or leased.40 The following is a list of
the approval authorities for various types of equipment and facilities:41
34 See U.S. DEP’T OF DEFENSE, REG. 4515.13-R, AIR TRANSPORTATION ELIGIBILITY (1 Nov. 1994) for guidance on this
type of assistance. This rule does not apply to counter-drug operations. See infra ch. 6, Counterdrug Operations.
35 U.S. DEP’T OF DEFENSE, DIR. 5240.1, ACTIVITIES OF DOD INTELLIGENCE COMPONENTS THAT AFFECT U.S. PERSONS
(27 Aug. 2007) [hereinafter DoDD 5240.1].
36 U.S. DEP’T OF DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS
NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980).
37 U.S. DEP’T OF DEFENSE, REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE
COMPONENTS THAT AFFECT UNITED STATES PERSONS (1 Dec. 1982) [hereinafter DoDD 5240.1-R].
38 U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL (23 Aug. 2004).
39 Transfers under the Economy Act, 31 U.S.C. § 1535, are limited to executive branch agencies of the federal
government. The Economy Act does not govern loans.
40 Leases under 10 U.S.C. § 2667 may be made to entities outside the federal Government.
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• Approval authority for military assistance in civil disturbances is governed by DoDD 3025.12,
Military Assistance for Civil Disturbances (MACDIS);42
• Approval authority for assistance to the government of the District of Columbia is governed by
DoDD. 5030.46, Assistance to the District of Columbia Government in Combating Crime;43
• Approval authority for training, expert advice, and personnel to operate and maintain equipment
shall be made in accordance with Enclosure 4 of DoDD 5525.5;
• Approval authority for assistance from DoD intelligence components is governed by DoDD
5240.1 and DoD 5240.1-R;44
• DoDD 5525.5 places approval authority for arms, ammunition, combat vehicles, vessels, and
aircraft with the Secretaries of the Military Departments and the Directors of the Defense
Agencies; however, DoDD 3025.15 subsequently reserved approval authority to the Secretary of
Defense;
• Approval authorities for loan or lease of other equipment or facilities are the Secretaries of the
Military Departments and the Directors of the Defense Agencies unless the authority has been
retained at a higher level. The authority of the Secretaries of the Military Departments and the
Directors of the Defense Agencies may be delegated.45
Service regulations supply additional guidance. For example, security bonds are often required
before the loan or lease of equipment. Approval authorities may vary depending upon the
implementing service regulation. A chart depicting Army and National Guard approval authorities
for the loan or lease of military equipment is included at Appendix 2-2, Loan and Lease of DoD
Equipment.
10 U.S.C. § 372 provides additional guidance for chemical and biological incidents. Under §
372(b), the Secretary of Defense may make training facilities, sensors, protective clothing, antidotes
and similar items available to federal, state, or local law enforcement or emergency response
agencies to prepare for or respond to an emergency involving chemical or biological agents. Before
making these materials available, however, the Secretary of Defense must make a determination
that the items are not reasonably available from another source.46
Further, EO 13527 Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack provides additional authority for DoD to be
integrated into plans to support the delivery of “medical countermeasures” as part of a response to a
biological attack. This Executive Order provides directs that the Secretaries of Homeland Security,
Defense and Health and Human Services shall develop a plan to support the United States Postal
41 Since many of the applicable military regulations predate their corresponding DoD Directives, care must be exercised
in applying authority or procedures from military regulations without verifying currency of the information.
42 U.S. DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (MACDIS) (4 Feb.
1994)[hereinafter DODD 3025.12].
43 U.S. DEP’T OF DEFENSE, DIR. 5030.46, ASSISTANCE TO THE DISTRICT OF COLUMBIA GOVERNMENT IN COMBATING
CRIME (26 Mar. 1971).
44 See also U.S. DEP’T OF ARMY, REG. 381-10, U.S. ARMY INTELLIGENCE ACTIVITIES (3 May 2007).
45 DoDD 5525.5, supra note 7, para. E3.4; SECNAVINST 5820.7C, supra note 8, para. 6(b); AFI 10-801, supra note 8,
ch.3. See also DEP’T OF DEFENSE, DIR. 3025.15, MILITARY ASSISTANCE TO CIVIL AUTHORITIES (18 Feb. 1997), which
withholds approval authorities for some types of support.
46 See also 10 U.S.C. § 382 for further guidance on emergency situations involving chemical or biological weapons of
mass destruction.
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Service in its distribution of efforts under this order. This shall include a “plan for supplementing
local law enforcement personnel, as necessary and appropriate, with local Federal law enforcement,
as well as other appropriate personnel, to escort U.S. Postal workers delivering medical
countermeasures.”47
c. Participation of DoD Personnel in Civilian Law Enforcement Activities
The federal courts have enunciated three tests to determine whether the use of military personnel
violates the PCA.48 If any one of these three tests is met, the assistance may be considered a
violation of the PCA.49 The first test is whether the actions of military personnel are “active” or
“passive.” Only the direct, active use of military personnel to enforce the laws is a violation of the
PCA.50 The second test is whether the use of military personnel pervades the activities of civilian
law enforcement officials. Under this test, military personnel must fully subsume the role of
civilian law enforcement officials.51 The third test is whether the military personnel subjected
citizens to the exercise of military power that was regulatory, proscriptive, or compulsory in nature.
A power “regulatory in nature” is one which controls or directs. A power “proscriptive in nature” is
one that prohibits or condemns. A power “compulsory in nature” is one that exerts some coercive
52
force.
47 EO 13527, Establishing Federal Capability for the Timely Provision of Medical Countermeasures Following a
Biological Attack (Dec. 30, 2009).
48 Yunis, supra note 9.
49 Kahn, supra note 22, at 431.
50 United States v. Rasheed, 802 F. Supp. 312, 324-25, (D. Haw. 1992) (finding that the Navy’s providing of aerial
reconnaissance and intercepting ship, as well as providing back-up security while the ship was searched and defendants
arrested, was passive involvement, and consequently did not violate PCA); Red Feather, note 5, at 925 (W.D.S.D. 1975)
(Activities which constitute active role in law enforcement by military are: arrest, seizure of evidence, search of a
person, search of a building, investigation of crime, interviewing witnesses, pursuit of an escaped prisoner, search of an
area for a suspect, and other like activities. Activities which constitute a passive role are: mere presence of military
personnel under orders to report on necessity for military intervention, preparation of contingency plans to be used if
military intervention is ordered, advice or recommendations given to civilian law enforcement officials regarding tactics
or logistics, presence of military personnel to deliver military equipment and supplies, training civilian law enforcement
officials on the use and maintenance of equipment, aerial reconnaissance flights, and similar activities).
51 Kahn, supra note 22, at 431-432 (holding that Navy’s involvement in apprehension, arrest, and detention of defendant
in international waters was passive and thus did not violate PCA because the FBI was in charge of operation at all times,
and Navy merely provided necessary support services); Hayes, supra, note 6, at 103-04 (actions of undercover NIS
agent in acting as a drug buyer and signaling civilian law enforcement officers when the transaction was complete, was
not so pervasive as to violate the PCA since the NIS agent did not become involved in the arrest and search of the
defendant or the seizure and transportation of evidence); United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986)
(Air Force allowing a U.S. Customs Service officer to ride aboard an AWACS aircraft, tracking defendant’s aircraft,
and reporting its location to U.S. Customs Service agents on the ground was not so pervasive as to violate the PCA.
The court further noted that these actions are specifically allowed by 10 U.S.C. §§ 371, 374(b)).
52 See, Yunis, supra, note 9, at 895-96 (The Navy’s involvement in apprehension, arrest, and transportation of defendant
was not regulatory, proscriptive, or compulsory use of military power because defendant was under exclusive custody
and control of FBI at all times); United States v. Casper, 541 F.2d 1275, 1278 (8th Cir. 1976) (holding that the use of
military equipment by civilian law enforcement officers, presence of military personnel ordered there to observe and
report whether federal military intervention would be required, drafting of contingency plans by military personnel for
intervention of military, and aerial reconnaissance by military aircraft, was not regulatory, proscriptive, or compulsory
use of military power which would result in violation of PCA).
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As previously mentioned, in implementing the guidance contained in 10 U.S.C., ch. 18, DoDD
5525.5 divides the PCA restrictions regarding the use of military personnel to assist civilian law
enforcement into five categories: (1) direct assistance; (2) training; (3) expert advice; (4) use of
DoD personnel to operate or maintain equipment; and, (5) other permissible assistance.
DoD personnel involvement in support to civilian law enforcement will often be subject to intense
scrutiny, such as occurred following the 3d U.S. Army’s and the 82d Airborne Division’s support in
the aftermath of Hurricane Katrina, and prior to that, the standoff between the Branch Davidians
and the federal government in Waco, Texas. In advising commanders on the permissible use of
military personnel in support of civilian law enforcement activities, JAs must also consider possible
legal ramifications of PCA violations. Evidence may be excluded from use at trial and the military
may be sued.53
(1) Direct Assistance
(a) Prohibited Direct Assistance
Direct assistance and participation by military personnel in the execution and enforcement of the
law is the heart of the prohibition of the PCA.54 Impermissible direct assistance by military
personnel in civilian law enforcement activities is codified in 10 U.S.C. § 375 and is implemented
as DoD policy by DoDD 5525.5.55 Prohibited direct assistance by military personnel includes:
• Interdiction of a vehicle, vessel, aircraft, or other similar activity;
• A search or seizure;
• An arrest, apprehension, stop and frisk, or similar activity; or
• Use of military personnel for surveillance or pursuit of individuals, or as undercover agents,
informants, investigators, or interrogators.
(b) Permissible Direct Assistance
(i) Military Purpose Doctrine
Conversely, there are several forms of direct assistance by military personnel that are permitted
under the PCA. The first type of permitted direct assistance is action taken for the primary purpose
of furthering a military or foreign affairs function of the United States.56 This category is often
referred to as the “Military Purpose Doctrine” and covers actions the primary purpose of which is to
further a military interest. While civilian agencies can receive an incidental benefit, this section
should be construed narrowly and cannot be used as a subterfuge for getting around the PCA. For
example, the scheduling of a military exercise for the sole purpose of benefiting a civilian law
53 18 U.S.C. § 1385.
54 Red Feather, supra note 5, at 923 (It is clear from the legislative history that Congress intended 18 U.S.C. § 1385 to
prevent the direct, active use of federal troops to execute the laws).
55 DoDD 5525.5, supra note 7, para. E4.1.3; SECNAVINST 5820.7C, supra note 8, para. 8(b); AFI 10-801, supra note
8, ch. 2.
56 DoDD 5525.5, supra note 7, para. E4.1.2; SECNAVINST 5820.7C, supra note 8, para. 8(c)(1); AFI 10-801, supra
note 8, ch. 2.
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enforcement agency is contrary to the intent of the military purpose doctrine. Military actions under
the military purpose doctrine include:
• Investigations and other actions related to enforcement of the Uniform Code of Military Justice
(UCMJ);
• Investigations and other actions that are likely to result in administrative proceedings by DoD,
regardless of whether there is a related civil or criminal proceeding;
• Investigations and other actions related to the commander’s inherent authority to maintain law
and order on a military installation or facility;
• Protection of classified military information or equipment;
• Protection of DoD personnel, DoD equipment, and official guests of the Department of Defense;
and
57
• Such other actions that are undertaken primarily for a military or foreign affairs purpose.
It is important to note that use of military forces in the defense of the United States is not support to
civilian law enforcement agencies. Rather, it is homeland defense under the President’s authority as
Commander in Chief under Article II of the Constitution. The use of military forces in a national
defense role is not subject to the PCA and other restrictions on military participation in law
enforcement.
(ii) Emergency Authority
A second type of direct assistance that may be permitted is action that falls under the “emergency
authority” of the United States.58 These actions are taken pursuant to the inherent authority of the
federal government under the Constitution. Actions permitted in accordance with this authority are
those necessary to preserve public order and to carry out governmental operations within U.S.
territorial limits, or otherwise in accordance with applicable law. In such circumstances, force may
be used if necessary.
“Emergency authority” is reserved for extremely unusual circumstances. Further, it will only be
used under the guidance of DoDD 3025.12, Military Assistance for Civil Disturbances
(MACDIS).59 DoDD 3025.12 states: “Military Forces shall not be used in MACDIS unless
specifically authorized by the President, except in the following emergency circumstances:”60
• When the use of Military Forces is necessary to prevent loss of life or wanton destruction of
property, or to restore governmental functioning and public order. That “emergency authority”
applies when sudden and unexpected civil disturbances (including civil disturbances incident to
earthquake, fire, flood, or other such calamity endangering life) occur, if duly constituted local
authorities are unable to control the situation and circumstances preclude obtaining prior
authorization by the President,61 or
57 Id.
58 See 32 C.F.R. § 215.4.
59 DoDD 3025.12, supra note 42.
60 Id. at para. 4.2.2.
61 Id. at para. 4.2.2.1.
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• When duly constituted state or local authorities are unable or decline to provide adequate
protection for federal property or federal governmental functions, federal action (including the
use of military forces) is authorized, as necessary, to protect the federal property or functions.62
Presidential approval is not a prerequisite to the use of military forces in these two limited
circumstances. However, DoD officials and military commanders must use all available means to
obtain Presidential authorization through their appropriate chains of command while applying
emergency authority.63
(iii) Civil Disturbance Statutes
The third type of permitted direct assistance by military forces to civilian law enforcement is action
taken pursuant to DoD responsibilities under the Restoration Act, formerly known as the
Insurrection Act, 10 U.S.C. §§ 331-334. See ch. 4, Military Assistance for Civil Disturbances
(MACDIS) for a more detailed discussion. These statutes contain express exceptions to the Posse
Comitatus Act64 and they relate to the use of military forces with respect to insurgency, domestic
violence, or conspiracy that hinders the execution of state or federal law in specified circumstances.
Actions under this authority are governed by DoDD 3025.12. This Act permits the President to use
the armed forces to enforce the law when:
• There is an insurrection within a state, and the state legislature (or governor if the legislature
cannot be convened) requests assistance from the President;65
• A rebellion makes it impracticable to enforce the federal law through ordinary judicial
proceedings;66 or
• An insurrection or domestic violence opposes or obstructs federal law, or so hinders the
enforcement of federal or state laws that residents of that state are deprived of their
Constitutional rights and the state is unable or unwilling to protect these rights.67
10 U.S.C. § 334 requires the President to issue a proclamation ordering the insurgents to disperse
within a certain time before he can use the military to enforce the laws. The President issued such a
proclamation during the Los Angeles riots. See ch. 4, Military Assistance for Civil Disturbances,
for more information.
(iv) Other Statutory Authority
There are several statutes, other than the Insurrection Act, that provide statutory authority for the
military to assist civilian law enforcement agencies in executing the laws.
68 These statutes permit
direct military participation in civilian law enforcement, subject to the limitations within the
respective statutes. This section does not contain detailed guidance. Specific statutes and other
62 Id. at para. 4.2.2.2.
63 Id. at para. 4.2.2.
64 Insurrection Act, 10 U.S.C. §§ 331-334 (1998).
65 Id. at § 331.
66 Id. at § 332.
67 Id. at § 333.
68 DoDD 5525.5, supra note 7, para. E4.1.2.5; SECNAVINST 5820.7C, supra note 8, para. 9(c)(5).
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references must be consulted before determining whether military participation is permissible.
These statutes include the following:
• Prohibited transactions involving nuclear material (18 U.S.C. § 831);
• Emergency situations involving chemical or biological weapons of mass destruction (10 U.S.C.
§ 382);
• Assistance in the case of crimes against foreign officials, official guests of the United States,
and other internationally protected persons (18 U.S.C. §§ 112, 1116);
• Protection of the President, Vice President, and other designated dignitaries (18 U.S.C. § 1751
and the Presidential Protection Assistance Act of 1976);
• Assistance in the case of crimes against members of Congress (18 U.S.C. § 351);
• Execution of quarantine and certain health laws (42 U.S.C. § 97);
• Protection of national parks and certain other federal lands (16 U.S.C. §§ 23, 78, 593);
• Enforcement of the Fishery Conservation and Management Act of 1976 (16 U.S.C. § 1861(a));
• Actions taken in support of the neutrality laws (22 U.S.C. §§ 408, 461-462);
• Removal of persons unlawfully present on Indian lands (25 U.S.C. § 180);
• Execution of certain warrants relating to enforcement of specified civil rights laws (42 U.S.C. §
1989);
• Removal of unlawful enclosures from public lands (43 U.S.C. § 1065);
• Protection of the rights of a discoverer of a guano island (48 U.S.C. § 1418);
• Support of territorial governors if a civil disorder occurs (48 U.S.C. §§ 1422, 1591); and
• Actions in support of certain customs laws (50 U.S.C. § 220).
(2) Training
The second category of restrictions on military involvement in civilian law enforcement is training.
DoD is prohibited from providing advanced military training to civilian law enforcement agencies.
69 Advanced military training is defined as high intensity training which focuses on the tactics,
techniques, and procedures required to apprehend, arrest, detain, search for, or seize a criminal
suspect when the potential for violent confrontation exists. Examples of advanced military training
include: advanced marksmanship and sniper training, military operations in urbanized terrain
(MOUT), close quarters battle/close quarters combat (CQB/CQC) training, and other similar
training. Advanced military training does not include basic military skills such as basic
marksmanship, patrolling, mission planning, medical, and survival skills.70
A single general exception to the above policy is provided to the U.S. Army Military Police School
which is authorized to train civilian law enforcement agencies in the Counterdrug Special Reaction
Team Course, the Counterdrug Tactical Police Operations Course, and the Counterdrug
Marksman/Observer Course. Additionally, the Commander, U.S. Special Operations Command
(USSOCOM) may approve similar training by special operations forces on an exceptional basis.71
69 Memorandum, Deputy Secretary of Defense, subject: DoD Training Support to Civilian Law Enforcement Agencies
(29 June 1996) [hereinafter Training Memorandum].
70 DoD may allow local police organizations and other civic organizations to use military ranges. See 10 U.S.C. § 4309
(1998).
71 Training Memorandum, supra note 69.
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10 U.S.C. § 373 permits the Secretary of Defense to make DoD personnel available for the training
of federal, state, and local civilian law enforcement personnel in the operation and maintenance of
equipment, including equipment provided to civilian law enforcement by DoD under 10 U.S.C. §
372. The Secretary of Defense has implemented this guidance in DoDD 5525.5.72
DoDD 5525.5 allows the Military Departments and Defense Agencies to provide training that is not
“large scale or elaborate” and does not result in a direct or regular involvement of military
personnel in activities that are traditionally civilian law enforcement operations. Training assistance
is limited to situations where the use of non-DoD personnel would be impractical because of time or
cost. Training assistance cannot involve military personnel in a direct role in a law enforcement
operation, unless otherwise authorized by law, and this assistance will only be rendered at locations
where law enforcement confrontations are unlikely.73
(3) Expert Advice
The third category of military assistance to civilian law enforcement under DoDD 5525.5 is the
provision of expert advice. 10 U.S.C. § 373 allows the Secretary of Defense to make DoD
personnel available to provide civilian law enforcement agencies with expert advice relevant to the
purposes of 10 U.S.C., ch. 18. The Secretary of Defense has directed that Military Departments and
Defense Agencies may provide expert advice in accordance with this statute as long as military
personnel are not directly involved in activities that are fundamentally civilian law enforcement
operations.74
(4) Use of DoD Personnel to Operate or Maintain Equipment
10 U.S.C. § 374 and DoDD 5525.5 encl. 3 address the use of DoD personnel for the operation or
maintenance of equipment, including but not limited to equipment provided under § 372, for
federal, state, or local law enforcement officials.
10 U.S.C. § 374(a) allows the Secretary of
Defense to make DoD personnel available for the maintenance of equipment. 10 U.S.C. § 374(b)
allows the Secretary of Defense, upon the request of the head of a federal law enforcement agency,
to make DoD personnel available to operate equipment with respect to:
• A criminal violation of certain specified laws;75
• Assistance that such agency is authorized to provide to a state, local, or foreign government
involved with enforcement of a similar law;
• A foreign or domestic counter-terrorism operation; or
• A rendition of a suspected terrorist from a foreign country to the United States to stand trial.
72 DoDD 5525.5, supra note 7, para. E4.1.4; SECNAVINST 5820.7C, supra note 8, para. 8(c)(7).
73 Id.
74 DoDD 5525.5, supra note 7, para. E4.1.5; SECNAVINST 5820.7C, supra note 8, para. 8(c)(6).
75 Controlled Substances Act, 21 U.S.C. §§ 801-904 (1999); Controlled Substances Import and Export Act, 21 U.S.C.
§§ 951-971 (1999); Immigration and Nationality Act, 8 U.S.C. §§ 1324-1328 (1999); a law relating to the arrival or
departure of merchandise (as defined in § 401 of the Tariff Act of 1930) into or out of the customs territory of the
United States; Maritime Drug Law Enforcement Act, 46 U.S.C. app. § 1901 (2000); or any foreign or domestic law
prohibiting terrorist activities.
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DoD personnel made available under 10 U.S.C. § 374(b) may operate equipment for the following
purposes:
•
Detection, monitoring, and communication of the movement of air and sea traffic;
•
Detection, monitoring, and communication of the movement of surface traffic outside of the
geographic boundary of the United States and within the United States not to exceed 25 miles of
the boundary if the initial detection occurred outside of the boundary;
•
Aerial reconnaissance;
•
Interception of vessels or aircraft detected outside the land area of the United States for the
purposes of communicating with such vessels and aircraft to direct such vessels and aircraft to
go to a location designated by appropriate civilian officials;
•
Operation of equipment to facilitate communications in connection with law enforcement
programs specified in 10 U.S.C. § 374(4)(b)(1);
•
Subject to joint approval by the Secretary of Defense and the Attorney General (and the
Secretary of State in the case of a law enforcement operation outside of the land area of the
United States):
• the transportation of civilian law enforcement personnel along with any other civilian or
military personnel who are supporting or conducting a joint operation with civilian law
enforcement personnel;
• the operation of a base of operations for civilian law enforcement and supporting personnel;
and
• the transportation of suspected terrorists from foreign countries to the United States for trial
(so long as the requesting federal law enforcement agency provides all security for such
transportation and maintains custody over the suspect through the duration of the
transportation).
Additionally, DoD personnel made available to operate equipment for the purpose stated above may
continue to operate such equipment into the land area of the United States in cases involving the
pursuit of vessels or aircraft where the detection began outside such land area.76 Lastly, 10 U.S.C. §
374(c) provides that the Secretary of Defense may make DoD personnel available to operate
equipment for purposes other than those enumerated in 10 U.S.C. § 374(b)(2) so long as such
support does not result in DoD personnel directly participating in a civilian law enforcement
operation, unless direct participation is otherwise authorized by law.77
Not all of the provisions of 10 U.S.C. § 374 have been implemented by the Secretary of Defense
through DoDD 5525.5.78 Generally, under DoDD 5525.5, use of DoD personnel to operate or
maintain, or to assist in the operation or maintenance of equipment, will be limited to situations
where it would be impractical because of time or cost to use non-DoD personnel. The assistance
cannot involve DoD personnel in a direct law enforcement role unless otherwise authorized by law,
and the assistance should be provided at a location where there is not a reasonable likelihood of a
76 10 U.S.C. § 374(b)(3) (1998).
77 See DOPLAW Handbook, Supp., App. 4-8, Support to DOJ.
78 DoDD 5525.5, supra note 7, para. E4.1.6. DoDD 5525.5 was last updated in 1989 while 10 U.S.C. §§ 371-382 have
been updated several times since 1989. Judge advocates must be aware that DoDD 5525.5 may not accurately reflect
the state of the law regarding military support to civilian law enforcement as it stands today.
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law enforcement confrontation. Requests for the use of personnel to operate or maintain equipment
must come from the head of the civilian law enforcement agency making the request. 10 U.S.C. §
374, however, specifically requires that requests for the operation of equipment come from the head
of a federal law enforcement agency.79 Use of military aircraft for point-to-point transportation and
training flights for civilian law enforcement personnel is governed under the authority of DoD
4515.13-R.
Like 10 U.S.C. § 374(b), DoDD 5525.5 provides additional guidance concerning drug, customs,
immigration, and other laws. Under the DoD Directive, DoD personnel made available at the
request of the head of a civilian agency empowered to enforce the laws enumerated in 10 U.S.C. §
374(b) (2) may provide the following assistance:
• Operate or maintain equipment to the extent that the equipment is used for monitoring and
communicating to civilian law enforcement officials the movement of sea and air traffic with
respect to any criminal violation of a law enumerated in paragraph E4.1.2.5,80 including
communicating information concerning the relative position of civilian law enforcement
officials and other sea and air traffic; or
• Operate equipment (by, or with the assistance of DoD personnel) in an emergency circumstance
outside the land area of the United States (or any Commonwealth, territory, or possession of the
United States) as a base of operations by federal law enforcement officials to facilitate the
enforcement of a law enumerated in 10 U.S.C. § 374(b)(1) and to transport such law
enforcement officials in connection with such operations subject to the following limitations:
• equipment operated by or with the assistance of DoD personnel may not be used to interdict
or interrupt the passage of vessels or aircraft, except when DoD personnel are otherwise
authorized to take such action with respect to civilian law enforcement operations; and
• there must be a joint determination by the Secretary of Defense and the Attorney General
that an emergency situation exists. An emergency circumstance may be determined to exist
for purposes of this subparagraph only when the size and scope of the suspected criminal
activity in a given situation poses a serious threat to the United States. This emergency
authority may be used only with respect to large-scale criminal activity at a particular point
in time or over a fixed period. It does not permit use of this authority on a routine or
extended basis.
The key authorities addressing requests for maintenance and operation of equipment in support of
law enforcement agencies investigating drug, customs, and immigration violations are inconsistent.
Under 10 U.S.C. § 374, requests for DoD personnel to maintain equipment may come from federal,
state, or local authorities, while requests for DoD personnel to operate equipment must come from
the head of a federal law enforcement agency.
79 The U.S. Code does not mention state and local law enforcement agencies. However, under 10 U.S.C. §
374(b)(1)(B), DoD personnel may operate equipment for a state or local law enforcement agency, but only if the request
comes from the head of a federal law enforcement agency and this support is of the type the federal law enforcement
agency is authorized to provide to the state or local law enforcement agency.
80 The laws enumerated in DoDD 5525.5, supra note 7, para. E4.1.2.5 pertaining to the operation and maintenance of
equipment are the same laws listed in paragraph 3.c(1)(b)(iv) Other Statutory Authority, above, regarding the use of the
DoD personnel to enforce laws under specific statutory authority.
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DoDD 5525.5, on the other hand, does not distinguish between requests for personnel to operate or
to maintain equipment. The Directive, only requires that the requests come from the head of a
civilian law enforcement agency charged with enforcing specified federal laws.
Also, the purposes listed in 10 U.S.C. § 374(b) (2) for which DoD personnel may operate
equipment are more expansive than those listed in the DoD Directive. Operations such as aerial
reconnaissance and intercepting vessels outside the land area of the U.S. in order to direct them to a
certain area are permitted under § 374, but not under the DoD Directive. A legal advisor must be
aware of these discrepancies and work through the requirements closely in order to provide the best
legal advice.
(5) Other Permissible Assistance
The last category of military assistance to civilian law enforcement under DoDD 5525.5 is the
overarching category of “other permissible assistance.”81 Under 10 U.S.C. § 371, the transfer of
information acquired in the normal course of military operations to civilian law enforcement
agencies is not a violation of the PCA.82 Additionally, the DoD Directive provides that other
actions which are approved by the Secretaries of the Military Departments or the Directors of
Defense Agencies that do not subject civilians to the regulatory, prescriptive, or compulsory use of
military power are not violations of the PCA. See app. 2-5, Support to Capitol Police Order.
81 DoDD 5525.5, supra note 7, para. E4.1.7; SECNAVINST 5820.7C, supra note 8, para. 9(d); AFI 10-801, supra note
8, ch. 4.
82 Transfer of information is discussed in greater detail above in this chapter at B.3.a., Use of Information Collected
During Military Operations.
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CHAPTER 5
CIVIL DISTURBANCE OPERATIONS1
KEY REFERENCES:
•
10 U.S.C. § 331-335 - The Restoration Act (Formerly known as “The Insurrection Act”)
•
10 U.S.C. § 2667 - Leases: Non-Excess Property of Military Departments
•
18 U.S.C. § 231 - Civil Disorders
•
18 U.S.C. § 1382 - Entering Military, Naval, or Coast Guard Property
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA)
•
28 U.S.C. § 1346, 2671-2680 - The Federal Tort Claims Act
•
31 U.S.C. § 1535 - Agency Agreements
•
Executive Order 12656 - Assignment of Emergency Preparedness Responsibilities
•
EO 13527 - Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack (Dec. 30, 2009)
•
DoDD 3025.12 - Military Assistance for Civil Disturbances, 4 Feb 94
•
DoDD 3025.15 - Military Assistance to Civil Authorities,18 Jan 97
•
DoDD 5111.13 - Assistant Secretary of Defense for Homeland Defense and Americas’ Security
Affairs, 16 Jan 09
•
DoDD 5525.5 - DoD Cooperation with Civilian Law Enforcement Officials, 15 Jan 86
•
CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules For the Use of Force for U.S.
Forces (S), 13 JUN 2005
•
CJCSI 3110.07C, Guidance Concerning Chemical, Biological, Radiological, and Nuclear
Defense and Employment of RIOT Control Agents and Herbicides (S), 22 NOV 2006
•
Joint Pub 3-28 - Civil Support (14 Sep. 2007)
•
Army Regulation 700-131 - Loan and Lease of Army Materiel (23 Aug. 2004)
•
National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations (13
Jun. 2008)
•
FM 3-07 - Stability Operations and Support Operations (6 Oct. 2008)
•
FM 3-19.15 - Civil Disturbances (18 Apr. 2005)
•
USNORTHCOM CONPLAN 3502 (S)
•
USNORTHCOM CONPLAN 3600 (S)
•
USPACOM CONPLAN 7502 (S)
A.
Introduction
Within civilian communities in the United States, the local government and the state have the
primary responsibility for protecting life and property and maintaining law and order. Generally,
federal forces are employed in support of state and local authorities to enforce civil law and order
only when circumstances arise that overwhelm the resources of state and local authorities. This
basic policy reflects the Founding Fathers’ hesitancy to raise a standing army and their desire to
1 The National Response Framework (Jan. 2008) uses the phrase Defense Support of Civil Authorities (DSCA). A copy
of the National Response Framework is located at DOPLAW Handbook, Supp., App. 2-18.
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render the military subordinate to civilian authority.2 The basic policy is rooted in the Constitution3
and laws of the United States,4 and allows for exception only under extreme, emergency conditions.
The Constitution guarantees to the states that the Federal government will aid in suppressing civil
disturbances (Civil Disturbance Operations (CDO)) and empowers Congress to create laws that
provide Federal forces for that purpose.5 Other emergency conditions, which are outside the
constitutionally and congressionally prescribed conditions, may also allow for CDO.
B. Civil Disturbance Statutes
Title 10, Chapter 15 of the United States Code,6 entitled “Insurrection,” allows the use of federal
forces to restore order during times of civil disturbance. The Department of Defense and the courts
use one phrase, “civil disturbance,” to encompass the various situations allowing the use of military
assistance under the Restoration Act which is formerly known as the Insurrection Act.
The Department of Defense defines civil disturbances as “group acts of violence and disorders
prejudicial to public law and order in the 50 States, the District of Columbia, the Commonwealth of
Puerto Rico, U.S. possessions and territories, or any political subdivision thereof.” 7 The phrase
“civil disturbance” includes all circumstances requiring the use of force under the conditions set out
in the Insurrection Act. The Insurrection Act is the authority that allows the President, in certain
domestic conditions, to use Federal Forces under DoDD 3025.12.8 Courts have used similar
language when defining “insurrection.”9
2 Among the several grounds stated in the Declaration of Independence for severing ties with Great Britain includes that
the King “has kept among us, in times of peace, Standing Armies without the consent of our Legislature . . . [and] has
affected to render the Military independent of and superior to the Civil power.” THE DECLARATION OF INDEPENDENCE,
para. 13, available at http://www.loc.gov/rr/program/bib/ourdocs/DeclarInd.html. This feeling resurfaced during the
Constitutional Convention where Maryland Delegate Luther Martin recorded the general sentiment, “When a
government wishes to deprive its citizens of freedom and reduce them to slavery, it generally makes use of a standing
army.” Luther Martin’s Letter on the Federal Convention of 1787 (1787), in 1 DEBATES IN THE SEVERAL STATES
CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (ELLIOT’S DEBATES), 344, 372 (Jonathan Elliot ed.,
3 The Constitution divides authority over the Armed Forces between the President as Commander in Chief, U.S. CONST.
art. II, § 2, para. 1, and Congress, which has the authority to “raise and support Armies . . . provide and maintain a
Navy, . . . [and] make Rules for the Government and Regulation of the land and naval Forces.” Id. art. I, § 8, para. 11.
4 See, e.g., Posse Comitatus Act, 18 U.S.C. § 1385. The Posse Comitatus Act is discussed fully, supra, Chapter 2,
Military Support to Civilian Law Enforcement.
5 U.S. CONST. art. I, § 8, para. 15, art. II, § 2, and art. IV, § 4. These sections provide authority to Congress and the
President to support the States by providing forces to repel an invasion and suppress domestic violence.
6 10 U.S.C. §§ 331-335.
7 U.S. DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (MACDIS) (4 Feb. 1994)
[hereinafter DODD 3025.12]. Note that DoDD 3025.dd, Defense Support to Civil Authorities, is pending final approval
and should soon be released. DoDD 3025.dd will replace both DoDD 3025.12 and DoDD 3025.15. DoDD 3025.dd,
will refer to all support to civilian authorities, formerly MACDIS, MSCLEA, or CS as DSCA.
8 Id. at para. E2.1.4 (4 Feb. 1994) [hereinafter DODD 3025.12]. See also U.S. JOINT CHIEFS OF STAFF, JOINT
PUBLICATION 3-28, CIVIL SUPPORT, Part II - Terms and Definitions (14 September 2007) [hereinafter JP 3-28].
9 E.g., In re Charge to Grand Jury, 62 F. 828 (N.D. Ill. 1894) (The open and active opposition of a number of persons to
the execution of the laws of the United States, of so formidable a nature as to defy for the time being the authority of the
government, constitutes an insurrection, though not accompanied by bloodshed, and not of sufficient magnitude to
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Under the Insurrection Act, federal forces may be used to restore law and order. As the use of
federal forces to quell civil disturbances is expressly authorized by statute, the proscriptions of the
Posse Comitatus Act (PCA) are inapplicable.10 The Insurrection Act permits the commitment of
U.S. forces by the President under three circumstances: to support a request from a state or territory;
to enforce federal authority; or to protect Constitutional rights.11
1.
Support a State Request
The Federal Government has an obligation to protect every state in the union, upon request, from
domestic violence.12 Pursuant to this obligation, Congress included in the Insurrection Act a
provision allowing the President to use federal forces to assist state governments. Title 10, United
States Code, section 331 provides:
Whenever there is an insurrection in any state against its government, the President
may, upon the request of its legislature or of its governor if the legislature cannot be
convened, call into federal service such of the militia of the other states, in the
number requested by that state, and use such of the armed forces, as he considers
13
necessary to suppress the insurrection.
A request from a state for the assistance of federal armed forces is made to the President. The
President has designated the Attorney General of the United States to receive and coordinate
preliminary requests from the states for federal military assistance under this provision.14 See
DOPLAW Handbook, Supp., App. 2-4, Executive Order 12656, Emergency Preparedness. Should
a request for assistance be presented to a local commander, the commander should inform the
person making the request to address the request to the Attorney General. The commander must
also inform the Chairman of the Joint Chiefs of Staff of the request and all known material facts
pertaining to the request.15
render success probable.) (An insurrection is a rising against civil or political authority; the open and active opposition
of a number of persons to the execution of law in city or state.).
10 Posse Comitatus Act, 18 U.S.C. § 1385, makes it unlawful to use any part of the Army or Air Force in a civilian law
enforcement capacity to execute local, state, or federal laws. The language of the act itself specifies that activities
expressly authorized by the Constitution or by statute are exempt from the act’s restrictions. For a more complete
discussion of the Posse Comitatus Act, see supra Chapter 4, Military Support to Civilian Law Enforcement.
11 10 U.S.C. §§ 331-335.
12 U.S. CONST. art. IV, § 4.
13 10 U.S.C. § 331.
14 See Exec. Order No. 12,656, 53 Fed. Reg. 47,491, § 1101(8) (18 Nov. 1998) [hereinafter EO 12,656]; DODD
3025.12, supra note 7, para. 4.6.1; JP 3-28, supra note 8, para. 1b (1). A copy of the Executive Order is located at
DOPLAW Handbook, Supp., App. 2-4.
15 U.S. DEP’T OF DEFENSE, DIR. 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND
AMERICAS’ SECURITY AFFAIRS, (16 Jan. 2009)[hereinafter DoDD 5111.13], appointed Assistant Secretary of Defense
for Homeland Defense & Americas’ Security Affairs as DoD Executive Agent and transferred the Director of Military
Support function from the Army to the Chairman of the Joint Chiefs of Staff .
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Prior to a state requesting assistance in the form of federal military forces, all local and state
resources, including the National Guard in State Active Duty status,16 should have been brought to
bear on the civil disturbance.17
On 1 May 1992, pursuant to this statute, California Governor Pete Wilson requested federal military
support from President George H.W. Bush to assist with restoring law and order in Los Angeles.
Governor Wilson advised President Bush that the domestic violence exceeded the capabilities of
available law enforcement resources, including National Guard forces mobilized a day earlier.18 In
accordance with the order of President Bush, The Secretary of Defense ordered the federalization of
the California National Guard and the deployment of Soldiers of the 7th Infantry Division from Fort
Ord and Marines from Camp Pendleton to assist in restoring order in Los Angeles.19 See
DOPLAW Handbook, Supp., App. 5-9, Presidential Proclamation and Executive Order 12804;
App. 5-10, Acting SECDEF Memorandum “Execution of Operations to Assist in Restoring Civil
Order to Los Angeles and Other Districts in California; and App. 5-11, JTF LA Report.
2.
Enforce Federal Authority
The President of the United States has a Constitutional duty to see that the laws of the United States
are faithfully executed.20 Within the Insurrection Act, Congress gave the President the authority to
commit the U.S. military to enforce federal law.21 Title 10, United States Code, Section 332
provides:
Whenever the President considers that unlawful obstructions, combinations, or
assemblages, or rebellion against the authority of the United States, make it
impracticable to enforce the laws of the United States in any state or territory by the
ordinary course of judicial proceedings, he may call into federal service such of the
militia of any state, and use such of the armed forces, as he considers necessary to
enforce those laws or to suppress the rebellion.22
The provisions of this statue were used to enforce public school desegregation in Arkansas23 and
Alabama.24 The same provisions were used to control civil rights protests in Mississippi25 and
16 See infra, Chapter 10, Reserve Components - Special Issues, which discusses the mobilization and activation of
National Guard forces.
17 See NATIONAL GUARD BUREAU, REG. 500-1/ANGI 10-8101, NATIONAL GUARD DOMESTIC OPERATIONS, PARA. 4-2d
(13 June 2008) (which anticipates that state national guard forces would exercise their primary responsibility for
providing military assistance to state and local government agencies while in state active duty status).
18 Proclamation No. 6427, 57 Fed. Reg. 19,359 (May 5, 1992).
19 Exec. Order No. 12,804, 57 Fed. Reg. 19,361 (May 5, 1992).
20 U.S. CONST. art. II, § 3.
21 10 U.S.C. § 332.
22 Id.
23 See Exec. Order No. 10,730, 22 Fed. Reg. 7,628 (Sept. 24, 1957).
24 See Exec. Order No. 11,118, 28 Fed. Reg. 9,863 (Sept. 10, 1963).
25 See Exec. Order No. 11,053, 27 Fed. Reg. 9,681 (Sept. 30, 1962).
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Alabama.26 See Appendices 4-9, EO 10730; 4-10, EO 11053; 4-11, EO 11111; and 4-12, EO
11118.
3. Protect Constitutional Rights
Citizens of the United States are guaranteed equal protection under the law.27 The final
congressional grant of authority to the President for the use of the U.S. military during times of
insurrection is for the protection of citizens in states that cannot protect the Constitutional rights of
its citizens.28 Title 10, United States Code, section 333 states:
The President, by using the militia or the armed forces, or both, or by any other
means, shall take such measures as he considers necessary to suppress, in a state, any
insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that state, and of the United States within
the state, that any part or class of its people is deprived of a right, privilege,
immunity, or protection named in the Constitution and secured by law, and the
constituted authorities of that state are unable, fail, or refuse to protect that right,
privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the
course of justice under those laws. In any situation covered by clause (1), the state
shall be considered to have denied the equal protection of the laws secured by the
Constitution.29
Under 10 U.S.C. § 333, President Kennedy sent military troops to Alabama in April 1963 during the
civil rights protests in Birmingham, Alabama.30
4.
Procedural Issues
Prior to committing federal troops under the Insurrection Act, the President must issue a
proclamation demanding that the insurgents cease and desist all acts of violence and retire
peaceably within a prescribed time.31 If the Presidential Proclamation does not end the disturbance,
the President will issue an Executive Order to the Secretary of Defense directing the Secretary to
use such of the armed forces as are necessary to restore order. 32 Decisions of the President to
26 See Exec. Order No. 11,111, 28 Fed. Reg. 5,709 (June 11, 1963).
27 U.S. CONST. amend. XIV, § 1 which states in part “No State shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny any person within its jurisdiction equal protection of the laws.”
28 10 U.S.C. § 333.
29 Id.
30 See Alabama v. U.S., 373 U.S. 545 (1963).
31 10 U.S.C. § 334 which states in full, “Whenever the President considers it necessary to use the militia or the armed
forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to
their abodes within a limited time.”
32 See Exec. Order No. 10,703, 22 Fed. Reg. 7,628 (Sept. 24, 1957) (order authorizing use of military forces for
desegregation in Arkansas); Exec. Order No. 11,053, 27 Fed. Reg. 9,681 (Sept. 30, 1962) (order authorizing use of
military forces during riots in Mississippi); Exec. Order No. 11,111, 28 Fed. Reg. 5,709 (June 11, 1963) (order
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issue proclamations and Executive Orders in this area are final33 and cannot be compelled by the
courts.34 Copies of the Presidential Proclamation and Executive Order for the deployment of
military forces to Los Angeles along with the Executive Orders for enforcing school desegregation
and controlling civil rights protests in the 1960s are included at Appendices 4-1 and 4-9 through 4-
12.
Department of Defense Directive (DoDD) 3025.15, Military Assistance to Civil Authorities,
requires all requests for military support be evaluated against six criteria prior to the decision to
employ forces.
• Legality - compliance with the law.
• Lethality - potential use of lethal force by or against DoD forces.
• Risk - safety of DoD forces.
• Cost - who pays, impact on DoD budget.
• Appropriateness - whether DoD is the proper source.
• Readiness - impact on DoD’s ability to perform its primary mission.35
The decision to employ armed forces is made at the cabinet level in coordination with the President,
the Secretary of Defense and the Attorney General. The criteria are helpful to local commanders
and legal advisors when forwarding formal assistance requests to higher headquarters for
consideration.
The Secretary of Defense has reserved the authority to approve all military support in response to
civil disturbances.36 Pre-commitment approvals and requirements do not prevent federal military
forces from alerting troops, conducting planning, preparing orders, or pre-positioning forces under
the command and control of the appropriate geographic combatant commander in coordination with
ASD(HD&ASA) and the Chairman of the Joint Chiefs of Staff, Joint Director of Military Support
(JDOMS).37 If more than a battalion-sized unit is to be pre-positioned, the President must approve
authorizing use of military forces during riots in Alabama); Exec. Order No. 11,118, 28 Fed. Reg. 9,863 (Sept. 10,
1963) (order authorizing use of military forces for desegregation in Alabama).
33 See, e.g., Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp. 1249 (D.D.C. 1973), aff’d, 497 F.2d 683,
aff’d, 497 F.2d 684 (D.C. Cir. 1977), cert. denied, 419 U.S. 1021 (1974), aff’d, 497 F.2d 685 (D.C. Cir. 1974) (decision
whether to use troops or militia to quell civil disorder is exclusively within the province of the President, and
presidential discretion in exercising powers granted in U.S. Constitution Article 2, § 2 and Article 4, § 4, and the
Insurrection Act is not subject to judicial review).
34 See Consolidated Coal and Coke Co. v. Beale et al., 282 F. 934 (S.D. Ohio 1922) (ruling that court could not compel
President to issue Proclamation or exercise discretion under Insurrection Act).
35 U.S. DEP’T OF DEFENSE, DIR. 3025.15, MILITARY ASSISTANCE TO CIVIL AUTHORITIES, PARA. 4.2 (18 FEB. 1997)
[hereinafter DODD 3025.15]. See also supra note 7.
36 DoDD 5111.13, supra note 15. The Secretary of Defense delegated all previous executive agent assignments for
support to civil authorities to the DOD Assistant Secretary of Defense for Homeland Defense and Americas’ Security
Affairs (ASD(HD&ASA)). DODD 3025.15, supra note 35, withheld approval authority for civil disturbance operations
at the Secretariat level.
(Note: DoDD 3025.15 (MACA) and DODD 3025.12(MACDIS), supra note 7, have not been
updated to reflect the duties of ASD(HD&ASA). But, DoDD 3025.dd (DSCA) is pending release and it should capture
these changes.)
37 JP 3-28, supra note 8, provides valuable guidance until DoDD 3025.12 and DoDD 3025.15 are updated.
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the pre-positioning.38 The Secretary of Defense, through the office of the ASD(HD&ASA), will
issue employment orders prior to the Presidential executive order directing the use of troops.39
C. Other Authority
In addition to the Insurrection Act, authority to use federal troops in a law enforcement capacity to
quell civil disturbances can be found in two other major areas.40
1. Protection of Federal Property
The United States has the right to protect federal property or functions through the use of federal
armed forces. The use of federal armed forces in this manner is warranted only where the need for
protection exists, and the duly constituted State or local civil authorities cannot or will not give
adequate protection.41 A military installation commander, exercising “inherent authority,”42 may
take such actions as are reasonably necessary and lawful to protect military installations. This could
include ejection from the installation or denial of access to an installation of those who threaten or
are involved in civil disturbances.43
2.
Emergency
Responsible DoD officials and commanders may approve the use of military forces in a law
enforcement capacity to support civilian authorities, during sudden and unexpected civil
disturbances beyond the control of local civilian authorities when circumstances preclude seeking
prior approval from the President. The use of military forces must be necessary to prevent the loss
38 DODD 3025.12, supra note 7, para. 4.2.6. See also United States v. Alabama, 373 U.S. 545 (1963) (no justiciable
issue when President alerts and stations troops in the vicinity of an area of civil disturbance foreseeing need to exercise
powers under the Insurrection Act).
39 JP 3-28, supra note 8, chapter III. See USNORTHCOM CONPLAN 3502 (S) (limdis) and USPACOM CONPLAN
7502 (S) (limdis). To review these CONPLANS, contact the respective Staff Judge Advocates.
40 In addition to these two major areas, there are other numerous statutory authorizations that allow the use of troops in a
law enforcement capacity to quell various civil disturbances. See supra, Chapter 4, Military Support to Civilian Law
Enforcement, which discusses the Posse Comitatus Act and its exceptions.
41 DODD 3025.12, supra note 7, para. 4.2.2.2.
42 The courts have approved the theory of a commander’s inherent authority, that is, authority not found in statute or
regulation. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 893 (1961) (commanders have
“historically unquestioned power” to exclude persons from their installations); Greer v. Spock, 424 U.S. 828, 840
(1976) (“There is nothing in the Constitution that disables a military commander from acting to avert what he perceives
to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.”).
43 18 U.S.C. § 1382 states:
Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation,
post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever
reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been
removed therefrom or ordered not to reenter by any officer or person in command or charge thereof - Shall be fined
under this title or imprisoned not more than six months, or both.
From this federal trespass statute, courts have inferred military power of apprehension of civilians trespassing on federal
installations. See United States v. Banks, 539 F.2d 14 (9th Cir. 1976), cert. denied, 429 U.S. 1024 (1976). For a
complete analysis of law enforcement authority over civilians, see Major Matthew Gilligan, Opening the Gate?: An
Analysis of Military Law Enforcement Authority over Civilian Lawbreakers on and off the Federal Installation, 161
Mil. L. Rev. 1 (1999).
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of life or wanton destruction of property, or to restore governmental functioning and public order.44
This emergency provision should be used with great caution. The authority granting the use of
federal forces in this manner clearly states that it would be difficult to justify such action, without
prior approval, while communications facilities are operating.45
Historically, authority in these circumstances has been granted to officers of the “active Army in
command of troops” allowing them to take prompt and vigorous action designed to preserve law
and order and to protect life and property until they receive instruction from a higher
headquarters.46 Oral requests from local officials to a commander should be reduced to writing as
soon as possible. An officer exercising emergency authority must report the facts surrounding the
request, the command’s response, and any other relevant information through the chain of command
to the Chairman of the Joint Chiefs of Staff, Joint Director of Military Support (JDOMS) with copy
to USNORTHCOM Domestic Warning Center at (719) 554-2361 by the most expeditious means of
communication available. If the commander has not received a written request at the time he
forwards the request to JDOMS, the written request should be forwarded to JDOMS as soon as it is
available.47
D. Responsibilities and Relationships of Parties Involved in Civil Disturbance Operations
1. Attorney General
The Department of Justice is the primary federal agency for coordinating the Federal Government
response to restore law and order.48 As the head of the Department of Justice, the Attorney General
is the chief civilian official responsible for the Federal Government’s activities in civil
disturbances.49 The Attorney General provides early threat assessments and warnings to the
Department of Defense to support civil disturbance planning. States request the assistance of
federal forces through the Attorney General, who also advises the President on the use of federal
military forces to restore law and order. The Attorney General coordinates the activities of federal
law enforcement agencies with those of the local and state agencies in an area faced with a civil
disturbance. Finally, the Attorney General appoints the Senior Civilian Representatives of the
Attorney General (SCRAG), who will be located in each city where federal forces are committed.
2. Senior Civilian Representative of the Attorney General
Appointed by the Attorney General, the SCRAG is the Attorney General’s on-scene agent. The
SCRAG is responsible for the coordination of effort of all federal agencies involved in the civil
disturbance operation with the efforts of state and local agencies engaged in restoring law and order.
44 DODD 3025.12, supra note 7, para. 4.2.2.1; U.S. DEP’T OF DEFENSE, DIR. 5525.5, DOD COOPERATION WITH CIVILIAN
LAW ENFORCEMENT OFFICIALS, PARA. E4.1.2.3.1 (15 JAN. 1986), [hereinafter DODD 5525.5].
45 DODD 3025.12, supra note 7, para. 4.2.2., JP 3-28, supra note 8, chapter II, para. 3, but see note 36.
46 JP 3-28, supra note 8, Chapter III; U.S. DEP’T OF ARMY, FIELD MANUAL 3-19.15, CIVIL DISTURBANCES, para B-45
(18 Apr. 2005) [hereinafter FM 3-19.15].
47 DODD 5525.5, supra note 44, para. 4.7.1.
48 EO 12,656, supra note 14, at § 1101(3) and (8).
49 For a detailed discussion of the Attorney General’s role under the Insurrection Act, including a historical description
of the Act’s uses, see “The Use of Military Force Under Federal Law to Deal with Civil Disorders and Domestic
Violence,” United States Department of Justice (1980).
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The SCRAG has the authority to assign missions to federal military forces and the authority to
resolve disputes arising between local law enforcement agencies and the joint task force commander
concerning the types of missions military forces may undertake.
3.
Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
The Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
(ASD(HD&ASA)) acts as the principal point of contact between the Department of Defense and the
Department of Justice for CDO.50 ASD(HD&ASA) is responsible for all training, planning, and
operations relating to the employment of any military resources in the event of a civil disturbance.51
4.
Chairman, Joint Chiefs of Staff, Joint Director of Military Support (JDOMS)
The Chairman, Joint Chiefs of Staff (JDOMS) is the action agent within the Department of Defense
with responsibility for planning, coordinating and directing the commitment of all designated
federal military resources during civil disturbance operations. JDOMS coordinates with the
supported Combatant Commander (CC) for a civil disturbance operation. JDOMS is the point of
contact within the Department of Defense for civil disturbance matters.52
5.
Combatant Commanders, U.S. Northern Command and U.S. Pacific Command
The Combatant Commanders of U.S. Northern Command (CDRUSNORTHCOM) and U.S. Pacific
Command (CDRUSPACOM) have responsibility for planning and executing civil disturbance plans
within their areas of operation. In total, these areas cover the 50 states, Puerto Rico, U.S. Virgin
Islands, Guam, American Samoa and all U.S. territories, possessions, and territorial waters.53 The
Combatant Commander, in coordination with the SCRAG, will determine the organization and
forces required to accomplish the civil disturbance mission.
CDRUSNORTHCOM, is responsible for federal civil disturbance operations in the 48 contiguous
states, Alaska, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. CDRUSPACOM
is responsible for civil disturbance operations in Hawaii, and U.S. possessions and territories in the
Pacific.54
6.
Commander, U.S. Army North
U.S. Army North (ARNORTH) is currently the lead operational authority for federal civil
disturbance response within the 48 contiguous states. The Commander, ARNORTH, designates a
50 DoDD 5111.13, supra note 15.
51 Id.
52 Id. and DODD 3025.12, supra note 7, para. 5.6.4; see also FM 3-19.15, supra note 46, Appendix B.
53 DODD 3025.12, supra note 7, para. 4.3.3.
54 Id. DODD 3025.12 was promulgated in 1994 and assigned responsibilities based on the geographical responsibilities
of the Combatant Commands applicable at the time of promulgation. Pursuant to CHAIRMAN, JOINT CHIEFS OF STAFF,
UNIFIED COMMAND PLAN 2002 (30 Apr. 2002) (classified Secret) [hereinafter UCP 02], the Chairman, Joint Chiefs of
Staff (CJCS), reassigned geographical responsibilities for the Commanders of the Combatant Commands. This change
is not reflected in DoDD 3025.12, which has not been updated.
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Commander, Joint Civil Disturbance Task Force, receives civil disturbance units, ensures
preparedness, and deploys forces to the objective area.
7. Commander, Joint Civil Disturbance Task Force
The Commander of the Joint Civil Disturbance Task Force is the Commander for all federal forces,
including National Guard forces in Title 10 status, in a civil disturbance area of operations. He is
the DoD representative in the civil disturbance area and performs civil disturbance missions
assigned by the SCRAG. Civilian officials remain in charge of civil disturbance operations.
8.
National Guard Bureau
The Chief of the National Guard Bureau is a joint activity of the Department of Defense, and is the
channel of communication for all National Guard matters between (1) the Secretary of Defense, the
Chairman of the Joint Chiefs of Staff, the DoD Components, and the Departments of the Army and
Air Force and (2) the States.55 In that capacity, CNGB facilitates and deconflicts the use of
National Guard forces to ensure that adequate and balanced forces are available for domestic and
foreign military operations.56
9. The National Guard
National Guard units have primary responsibility to respond to a civil disturbance, and will initially
deploy in a State Active Duty (SAD) status or under Title 32.57 In either capacity, they are not
subject to the prohibitions of the PCA,58 and can freely support state or federal law enforcement
missions. National Guard forces remain under the command of state NG officers, and missions are
conducted through the NG chain of command, after coordination with civil authorities. NG
operations are normally conducted according to the unity of effort paradigm. In extreme
circumstances, National Guard units may be federalized under Title 10 pursuant to a Presidential
order.59 Once federalized, the NG conducts its mission in accordance with Federal law and
CONPLANs, as discussed in the next section.
The NG’s use of force while in SAD or Title 32 status is governed by the law of the state where the
operation occurs. Multi-state operations therefore will involve a separate RUF for each receiving
state. The only instance to date of a regional RUF for T32 forces occurred during Operation Jump
Start, a border security mission conducted during 2006-200760
55 U.S. DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) (21 May 2008) [hereinafter DODD
5105.77].
56 Id. at para. 5.1.11.2.
57 With SecDef approval, the National Guard may conduct operational missions under 32 U.S.C. 502(f)(2) “operational
support” authority.
58 See supra, Chapter 2, Military Support to Civilian Law Enforcement, for a complete discussion on the Posse
Comitatus Act.
59 See infra Chapter 10, Reserve Components, for a complete discussion of National Guard status.
60 See Memorandum of Agreement Between the States of Arizona, California, New Mexico, Texas, and the Department
of Defense, subj: OPERATION JUMP START (June 2006).
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E. The Department of Defense Civil Disturbance Plans (Combatant Commanders’
CONPLANs)
The Department of Defense has delegated to geographic combatant commanders responsibility for
developing Civil Disturbance CONPLANs. Formerly, DoD’s CDO plan was known as “GARDEN
PLOT.”61 These geographic commanders’ CONPLANs provide guidance and direction for
planning, coordinating, and executing military operations during domestic civil disturbances.
1. Civil Disturbance Operations Mission
Broadly stated, the CDO mission assists civil authorities in restoring law and order in the United
States and its territories.62 This mission statement, while not duplicating the language in the
Insurrection Act allowing for the use of federal forces to “suppress” insurrection, provides wide
latitude to the President to use federal forces to assist civil law enforcement in “restoring” law and
order.
The restoration of law and order must be distinguished from the preservation of law and order.63
CDO mission statements do not allow the joint civil disturbance task force commander to undertake
preservation missions.64 It is generally agreed that missions to restore law and order include
dispersing unauthorized assemblages, patrolling disturbed areas, maintaining essential
transportation and communications systems, setting up roadblocks, and cordoning off areas.65 Care
should be taken before a military commander accepts missions that are routine maintenance of civil
order.
2. Combatant Commanders’ CONPLANs
The CONPLANs provide the basis for all preparation, deployment, employment, and redeployment
of Department of Defense component forces, including National Guard forces called to active
federal service, for use in domestic civil disturbance operations, in support of civil authorities as
directed by the President.66 The concept of a civil disturbance operation is multi-phased: Phase 0,
Shape; Phase I, Anticipate; Phase II, Respond (deployment can occur in either Phase I or Phase II);
Phase III, Operate; Phase IV, Stabilize; and Phase V, Transition (redeployment). Prior to
deployment, military forces maintain five preparedness postures, called Civil Disturbance
61 GARDEN PLOT was published in 1991. The creation of the Department of Homeland Security and U.S. Northern
Command required a change to the plan. The UCP in 2002 moved this responsibility to the regional combatant
commands. Changes to the UCP in 2008 resulted in NORTHCOM and PACOM having sole responsibility for CDO
planning. GARDEN PLOT has been replaced by COCOM CONPLANs for the respective theaters.
62 JP 3-28, supra note 8, at para. 3(1)(b).
63 The preservation of law and order is the responsibility of state and local governments and law enforcement
authorities. DODD 3025.12, supra note 7, para. 4.1.3; FM 3-19.15, supra note 52, I-8, para. 5(a)(2).
64 See DODD 3025.12, supra note 7, para. 4.2.7, which states, “The DoD Components shall not take charge of any
function of civil government unless absolutely necessary under conditions of extreme emergency. Any commander
who is directed, or undertakes, to control such functions shall strictly limit military actions to the emergency needs, and
shall facilitate the reestablishment of civil responsibility at the earliest time possible.”
65 FM 3-19.15, supra note 52.
66 In most of the US, USNORTHCOM CONPLAN directs how the Joint Civil Disturbance Task Force would plan,
train, and conduct operations. See NORTHCOM CONPLAN 3502 supra note 39.
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Conditions (CIDCONS) in order to alert and react to potential civil disturbance operations.
PRESCRIBED LEVELS OF PREPAREDN ESS FOR A CIVIL DISTURBANCE CONTROL MISSION
C IDC ON 5
CIDCON 4
CIDCON 3
CIDCON 2
CIDCON 1
Unit in n ormal
training and
i
prep ared ness
Unit has 12 h rs.
statu s
fr om initiall
notification to f uly
ll
MACOM
attain CIDCON-4
comman der
status
wt h SCRAG
deter mines
i
Unit increases
or ganizatio n an d
monitioring and
i
Unit increas es
i
Unitim oves to
f orces requiried
analysis
i
prepar edn ess,
airfield or star t
Unit a ttains st ate
for ci
ili
includin
i
ig possibly
i
i
point an d boa rds
of ma
im um
distur bance
ASD ( HD) identifies
i
pr e-positio nin
i
ig
aircr aft of
pr epar edness
misson
r econ nee ds f or
a r lf t and groun d
vehicles
l
Joint Civ
i
iil
force s
F irst aircr aft ifts
CIDCON 1
FORSCOM
i
Dstu rbanc e T ask
Unit co mpletes
off or first vehicle
i l
attained as
(CONUS)
Force Comma nder
Unit
rea dy to
oa ding; ready to
cr osses star t
i
i
H- Hour occurs
or ap propr iate
i
com plete oa ding
deploy f irst
i
point
comman der
Unitiup dates
ni
5 hou rs an d
aircr aft or
OCONUS
movem ent needs
to depa rt ni
vehicles n
i
Unit deploys
n ominate units
6 hour s
1 hour
and Joint Civil
i
l
ASD(HD) sets
Distu rbance
t entativ
i
e H-hour ,
T ask F orce
if p ossible
Comm ander
Unit f uly attains
ASD (HD)
CIDCON-4 status;
confirms
i
read y to depart in
i
nomin
i
ation;
i
1 2 hour s
i
places u nit
on alert status
l
of less than
2 4 hour s
Civil Disturbance Conditions , o r CIDCONs, are req uire d leve ls o f p repa red ness th at must be a ttai ned b y u nits desi gna te d
fo r ci vil di stu rba nce ope ratio ns. CIDCONs are a mean s of mea suri ng that prep are dne ss. CIDCON 5 is the no rmal state of
p rep ared ness, wh ich can be sustai ned i nde fi nite ly. CIDCON 1 is th e sta te o f pre pa redn ess a t wh ich the un it d epl oys.
Changes in the CIDCON level are directed by the JDOMS.67
Figure 4-2, CIDCON levels of preparedness
CIDCON 5 is a state of normal preparedness that is sustainable indefinitely. Forces may be
designated for a civil disturbance operation.
CIDCON 4 is declared once a civil disturbance has developed. The Joint Civil Disturbance Task
Force commander may establish reconnaissance and information requirements and may initiate
detailed planning. Upon attaining CIDCON 4, designated units are prepared to cross the start point
at home station in 12 hours.
CIDCON 3 represents an increase in preparedness. Military forces may be pre-positioned. The
President or ASD(HD&ASA) issues orders to be prepared to deploy within six hours.
67 A Commander cannot unilaterally increase the CIDCON of forces under his operational control above CIDCON 4. A
commander cannot decrease the CIDCON posture without approval from JDOMS.
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CIDCON 2 reflects that the deployment of federal forces is probable. All designated units will be
moved to airfields and will have completed movement planning. CIDCON 2 is fully attained when
units are prepared to deploy in one hour.
CIDCON 1 is directed one hour prior to time for deployment (H-hour). CIDCON 1 is attained
simultaneously with H-hour, when the first units have deployed.
Once military forces are within the civil disturbance area of operations, they fall under the
operational control of the Joint Task Force commander. The Joint Civil Disturbance Task Force
commander receives missions from the SCRAG and is responsible for accomplishing the Task
Force mission.68
Throughout the employment of military forces, the Commander will maintain liaison with the
SCRAG, state law enforcement representatives, and municipal authorities. Normally, this liaison is
through the Defense Coordinating Officer from ARNORTH. The liaison will be maintained until
termination of the civil disturbance mission. The Joint Civil Disturbance Task Force Commander
will accept missions from the SCRAG, and, if reasonably possible, within the framework of his
orders, comply with requests from civil authorities.69
The SCRAG designates a single state or federal law enforcement coordinating officer, through
whom requests are typically passed. Validated requests are transmitted to the Joint Civil
Disturbance Task Force Commander for staffing. Approved missions are assigned through the
military chain of command to the appropriate unit for execution. The supported combatant
commander or SCRAG resolves discrepancies when the Joint Civil Disturbance Task Force
Commander is unable to fulfill requests from the civil authorities.
Except in a direct support relationship approved and ordered through the military chain of
command, units should not accept taskings directly from law enforcement or civilian officials.
Even though the Joint Civil Disturbance Task Force Commander may direct subordinate elements
to assist designated civil authorities or officials, military personnel will not be placed under the
command of civilians. This requirement does not preclude the establishment of joint patrols or
jointly manned operations.70
On order, commitment of federal forces will be terminated at a specified date and time. Forces
redeploy to home station where they return to the control of their respective commands.
3. The Standing Rules for the Use of Force for U.S. Forces
CDO are conducted in accordance with Appendix L of the Standing Rules of Engagement/Standing
Rules for the Use of Force for U.S. Forces (SRUF). Guidance on how and when forces can use
68 It is important to remember that civilian authorities retain primary authority over the employment of military forces.
See notes 1-4, supra, and accompanying text. See DoDD 3025.12, supra note 7, para. 4.1.5. See also 9 Op. Att’y Gen.
517 (1860) (“Under [the Insurrection Act] the President may employ the militia and the land and naval forces for the
purpose of causing the laws to be executed; but when a military force is called into the field for that purpose, its
operations must be purely defensive, and the military power on such occasion must be kept in strict subordination to the
civil authority.”).
69 JP 3-28, supra note 8, Chapter III.
70 Id.
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force in a CDO mission are detailed in that annex. Although the CJCSI is classified, Annex L is not
and can be shared with our mission partners.
a. Custody and Detention
All apprehensions should be made by the civil police force unless they are not available or require
assistance. Military forces have the authority to detain rioters, looters or other civilians committing
criminal offenses.71 Civilians taken into custody should be transferred to civilian law enforcement
authorities as soon as possible.
All members of the force must remember that state and federal criminal law and procedure govern
apprehension. Apprehension is justified only on the basis of probable cause to believe that an
offense has been committed and that the person to be apprehended committed the offense. Soldiers
should not question detainees beyond basic personal information such as name and address. If
formal questioning of an offender is necessary, civilian police should conduct the interrogation. If
civilian police are not available, CID agents or military police may conduct interrogations only if
the interrogation is essential to the civil disturbance mission. Actions taken by Soldiers that do not
conform to criminal law constitutional standards could jeopardize future prosecution and subject
Soldiers and their Commanders to criminal and/or civil liability.72
b. Search and Seizure
CDO CONPLANs anticipate that military forces will generally not be involved in searches unless
there is “an immediate danger of violence, destruction of evidence, or escape of violent persons
unless the search is conducted without delay.” In all other cases, local authorities should conduct
searches. When required to perform searches, federal armed forces may conduct warrantless
searches under the same constitutional parameters imposed upon law enforcement officials. Joint
Civil Disturbance Task Force forces conducting a warrantless search will fully document the
reasons for the search as soon as is reasonably convenient.73 Generally these are limited to the
following types of searches.
(1) Stop and Frisk
If there is a reasonable suspicion based upon articulable facts that a person has committed, is
committing, or is about to commit a crime, that person may be temporarily stopped and questioned
about his activities. The stop must be limited in duration to that which is reasonably necessary to
investigate the suspicion. If there is a reasonable suspicion based on articulable facts that a person
is armed or is carrying instruments of violence and that the individual presents an immediate risk of
harm, members of the armed force may conduct a “frisk” (an external “patdown” of the clothing)
for weapons. Any weapons found during a frisk may be removed from the individual and seized.74
(2) Incident to Apprehension
71 JP 3-28, supra note 8, Chapter III.
72 See FM 3-19.15, supra note 52, Chapter 3.
73 Id.
74 Id.
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A person lawfully detained may be searched for weapons or destructible evidence. A search for
weapons or destructible evidence may also be conducted in the area where the detained person
could reach with a sudden movement to obtain a weapon or destroy evidence.75
(3) Exigent circumstances
Federal forces assisting law enforcement may make a search without a warrant when they have
reason to believe (probable cause) that weapons, objects related to criminal activity, or persons
believed to have committed an offense, are in the place to be searched; and they have reason to
believe that the delay necessary to obtain a search warrant would result in removal of the weapons
or destruction of the objects related to criminal activity. Joint Civil Disturbance Task Force forces
may stop and search an automobile without a warrant when there is reason to believe that the
automobile contains weapons or instruments of violence and/or contains an individual reasonably
believed to have committed violence76
(4) Emergency
Armed forces in a civil disturbance operation may make an immediate entry into a building when
there is reason to believe that entry is necessary to prevent injury to persons, serious damage to
property, loss of evidence, to protect public safety or to render aid to someone who is in danger.77
(5) Hot pursuit
Military forces pursuing a person who they have reason to believe has just committed a serious
crime, may enter a vehicle or building believed to be entered by the suspect and search the building
or vehicle for the person or any weapons that might be used to further his escape.78
(6) Plain View
During the course of otherwise lawful activity, military forces may seize any unlawful weapons or
objects related to criminal activity which they observe in plain view.79 When conducting
warrantless searches that require a probable cause determination, military forces can obtain advice
from a JA; however, the probable cause determination must be made personally by the individual
desiring to conduct the search.
If a search warrant is required, local civil authorities should obtain judicially issued search warrants.
If local civilian authorities are not available, JAs need to be prepared to provide advice on probable
cause to military authorities before they approach a local judge or magistrate for a search warrant.
75 Id.
76 Id.
77 Id.
78 Id.
79 Id.
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When feasible, all searches conducted by military personnel will be conducted by two personnel
with the actual search performed by someone of the same sex.80 A hand receipt or some similar
document should be prepared when items of personal property are seized from an individual.81
c. Confinement Facilities
The Joint Civil Disturbance Task Force should not operate a detention facility.82 Any person
apprehended should be turned over to the police for detention. Military correctional facilities
cannot be used to detain civilians. If available civilian detention facilities cannot accommodate the
number of detained persons who are awaiting arraignment,83 the Joint Civil Disturbance Task Force
commander must seek the approval of the SCRAG and Combatant Commander to set up a
temporary detention facility.84
Should the Task Force be required to operate a detention facility, the detention facility standards
and operations should conform, to the maximum extent possible, to current DoD confinement
facility operations and will be under the professional supervision and control of Military Police
personnel.85 The establishment and operation of military detention facilities is a temporary
expedient and is authorized only until such time as the custody of detained persons can be
transferred to civil authorities.86
d. Riot Control Agents
Normally, for CDO the deployment and use of riot control agents is allowed as a matter of U.S.
policy.87 However, initial approval authority for its deployment and use may be retained at a level
higher than the Joint Civil Disturbance Task Force Commander and may require a specific
request.88
80 Id. at para. 3-20 to 3-37 requires the application of common-sense when evaluating options to search a person of the
opposite gender and recommends that searches of the person be performed by a member of the same-sex.
81 U.S. DEP’T OF ARMY, FIELD MANUAL 3-19.1, MILITARY POLICE OPERATIONS, ch. 9 (22 Mar. 2001) [hereinafter FM
3-19.1] and U.S. DEP’T OF ARMY, FIELD MANUAL 3-19.13, LAW ENFORCEMENT INVESTIGATIONS (10 JAN.
2005)[hereinafter FM 3-19.13] contain extensive information on conducting searches and processing suspects and
witnesses.
82 FM 3-19.15, supra note 52, para. 3-38 to 3-40; see generally, DODD 3025.12, supra note 7, para. 4.2.7 (“DoD
Components shall not take charge of any function of civil government unless absolutely necessary under conditions of
extreme emergency.”).
83 The Task Force Commander is responsible for verifying the fact that available federal, state and local confinement
facilities can no longer accommodate the number of persons apprehended. USNORTHCOM CONPLAN 3502, supra
note 39. CONPLAN 3502 (or Commander U.S. PACIFIC COMMAND CONPLAN 7502) specifies that detention
facilities be under the control of U.S. Army MP Corps personnel. Due to base closure and increased joint nature of
operations it is possible that U.S. Navy and U.S. Air Force confinement facilities could be used.
84 USNORTHCOM CONPLAN 3502, supra note 39; JP 3-28, supra note 8; FM 3-19.15, supra note 52.
85 E.g., U.S. DEP’T OF ARMY, REG. 190-47, THE ARMY CORRECTIONS SYSTEM (6 June 2006). See also FM 3-19.1,
supra note 81.
86 USNORTHCOM CONPLAN 3502, supra note 39.
87 USNORTHCOM CONPLAN 3502, supra note 39; Exec. Order No. 11,850, 40 C.F.R. 16,187 (Apr. 8, 1975);
CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 3110.07A, NUCLEAR, BIOLOGICAL, CHEMICAL DEFENSE; RIOT CONTROL
AGENTS; AND HERBICIDES (15 Dec. 1998) (classified Secret); FM 3-19.15, supra note 52.
88 See USNORTHCOM CONPLAN 3502, supra note 39, Appendix 4 to Annex E (Legal).
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4. Other Legal Considerations
a. Billeting of Troops
Selection of a location to assemble and billet troops can have significant legal implications. When
possible, assembly and quartering areas should be on military installations or federal property. If
these locations are not practical, state and other local government property should be sought for use.
Locating assembly areas on public property can reduce property damage claims, contract costs, and
adverse perceptions about the military operation.
b. Intelligence
See Chapter 9, Intelligence Law and Policy Considerations During Domestic Support Operations.
c. Claims
Negligent or wrongful acts or omissions of military forces assisting law enforcement during civil
disturbances may be covered under the Federal Tort Claims Act (FTCA).89 In order for claims
under the FTCA to be compensable, damage or injury must be caused by acts or omissions of
employees of the United States. National Guard troops in Title 10 or Title 32 status, as well as
active duty military members are considered United States employees for the purposes of the
FTCA. National Guard forces activated pursuant to a state activation statute are not considered
employees of the United States, and potential claims arising out of the activities of these forces
should be directed to state authorities.90
The development of disaster and civil disturbance claims plans is the responsibility of the head of
the various Area Claims Offices (ACOs) across the United States.91 The ACO in whose
geographical area a claims incident occurs is primarily responsible for investigating and processing
the claim.92 With the approval of Commander, United States Army Claims Service, the responsible
ACO can appoint a special Claims Processing Office to handle claims arising from civil disturbance
operations.93 A complete list of ACOs and their geographical responsibilities is reprinted in
Appendix 4-19.
Even though primary claims investigating responsibilities fall to the ACO, JAs deployed as part of a
civil disturbance task force can assist in the investigation by insuring that potential claims are
documented and available information concerning the claims collected. Judge advocates assisting
the Joint Task Force can also assist by collecting information concerning the status of National
Guard troops operating within the area.94
89 28 U.S.C. §§ 1346, 2671-2680.
90 USNORTHCOM CONPLAN 3502, supra note 39.
91 U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11k (8 Feb. 2008).
92 Id. at para. 2-2.
93 Id. at para. 1-17(c).
94 Extensive information on claims arising during civil disturbances can be found in U.S. Army Claims Service,
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d. Medical Support
Typically, medical personnel wear the distinctive medical arm brassard when performing medical
duties. The primary mission of medical support personnel deployed with a Joint Civil Disturbance
Task Force is to treat military personnel requiring medical care. Civilian personnel should be seen
by the civilian health care system. Military treatment facilities may be used to treat civilians only in
cases of emergency when undue suffering or the loss of life or limb is a possibility. Civilians
admitted to military treatment facilities should be transferred to a civilian hospital as soon as
medically feasible.
Military personnel should be admitted to civilian hospitals only in an emergency and should be
transferred to a military facility as soon as medically possible. In some locations military and
civilian hospitals have patient sharing agreements which would allow civilians to use the military
facility.
e. Civil Law, Ordinances, Restrictions, and Interference with Federal Forces
Federal law makes it a crime to interfere with law enforcement officers engaged in controlling civil
disorders.95 Included in the definition of “law enforcement officers” are members of the National
Guard, in both state and federal status, and members of the armed forces.96
Close coordination with local governmental authorities can assist the Joint Civil Disturbance Task
Force Commander in accomplishing the mission. Except in the unlikely event of martial law,
federal forces are unable to impose restrictions on the civil population. However, local
governments may be able to implement such restrictions to aid in the control of lawlessness. The
Joint Civil Disturbance Task Force Commander may make recommendations to local governments
concerning the appropriateness of various restrictions and then assist local authorities in carrying
them out.97
f.
Loan and Lease of Military Equipment
Approval authorities for the loan and lease of DoD materiel to federal, state, and local law
enforcement authorities and the National Guard historically has been determined based upon the
type of equipment to be provided. Requests for the loan or lease of personnel, arms, ammunition,
tactical vehicles, vessels and aircraft, riot control agents, and concertina wire for expected civil
disturbances will be forwarded through the Chairman of the Joint Chiefs of Staff (JDOMS) to the
Secretary of Defense (SECDEF). The loan or lease of fire fighting resources, protective equipment,
95 18 U.S.C. §§ 231-233.
96 Id. at § 232 which states:
The term “law enforcement officer” means any officer or employee of the United States, any State, any political
subdivision of a State, or the District of Columbia, while engaged in the enforcement or prosecution of any of the
criminal laws of the United States, a State, any political subdivision of a State, or the District of Columbia; and
such term shall specifically include members of the National Guard (as defined in section 101 of title 10), members
of the organized militia of any State, or territory of the United States, the Commonwealth of Puerto Rico, or the
District of Columbia not included within the National Guard (as defined in section 101 of title 10), and members of
the Armed Forces of the United States, while engaged in suppressing acts of violence or restoring law and order
during a civil disorder.
97 FM 3-19.15, supra note 52.
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body armor, clothing, searchlights and use of DoD facilities can be approved by garrison,
installation, or task force commanders.98 All loans or leases of U.S. Army materiel will be for a
period of 15 days with the possibility of an additional 15-day extension.99 Commanders are
authorized to approve the loan or lease of equipment as required to save human life, prevent human
suffering, or reduce great property damage or destruction.
There is no specific statutory authority to loan or lease equipment for use in civil disturbance
situations. Loans to federal agencies are completed pursuant to the Economy Act and require a loan
agreement but no surety bond.100 Equipment for non-federal law enforcement agencies must be
leased under the leasing statute, which requires both a lease agreement and a surety bond.101 The
leasing statute also includes the requirement for the payment of a lease fee, which may be waived
by the ASA(I, L&E). When Commanders approve emergency loans or leases, follow-up action will
be taken within 5 days to formalize the action by completing a loan or lease agreement.102 See
DOPLAW Handbook, Supp., App. 5-7, Loan, Lease and Donation of Army Material.
98 U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF ARMY MATERIEL, para. 2-6b (1 Sept. 1996) [hereinafter
AR 700-131]. DoDD 3025.12, supra note 7, identifies MACDIS operations as unprogrammed emergency
requirements. Procedures for financing and reporting costs associated with civil disturbance operations are prescribed
in DoD Instruction 7200.9. See also NGR 500-1, supra note 17, Chap. 3-1, which governs the loan or lease of National
Guard property.
99 AR 700-131, supra note 98, at Table 2-1.
100 31 U.S.C. § 1535.
101 10 U.S.C. § 2667; see also AR 700-131, supra note 98, paras. 2-7, 2-8 (discussing loan/lease agreements and surety
bonds).
102 AR 700-131, supra note 98, para. 2-7a.
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CHAPTER 6
COUNTERDRUG OPERATIONS
KEY REFERENCES:
•
10 U.S.C. § 124 - Detection and Monitoring of Aerial and Maritime Transit of Illegal Drugs
•
10 U.S.C. § 371-381 - Military Support for Civilian Law Enforcement Agencies
•
10 U.S.C. § 379 - Coast Guard Law Enforcement Detachments
•
14 U.S.C. § 89 - Law Enforcement (Coast Guard)
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA)
•
32 U.S.C. § 112 - National Guard Funding
•
National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004 (1991) (as amended)
•
DepSecDef Memo, Department of Defense Counternarcotics Policy, 31 Jul 02
•
DepSecDef Memo, Department of Defense International Counternarcotics Policy, 24 Dec 08
•
DepSecDef Memo, Department Support to Domestic Law Enforcement Agencies Performing
Counternarcotics Activities, 2 Oct 03
•
DASD/CN Memo, Policy Definition of “Counterdrug Activities”, 23 Oct 02
•
DASD/CN Memo, Policy Definition of “Narcoterrorism”, 12 Apr 04
•
DASD/CN Memo, Counter Drug Support to Counter-Narcoterrorist Activities, 26 Aug 2005
(memo to Chief, NGB)
•
DASD/CN Memo, Procedures for Handling Requests for Counterdrug Narcoterrorist Support,
2006
•
DoDD 5525.5, DoD Cooperation with Civilian Law Enforcement Officials, 15 Jan 86
•
CNGB Memo, Counter Drug Support to Counter-Narcoterrorist Activities, 22 Dec 2005
•
CNGB Memo, Implementation of Procedures for Handling Requests for Counterdrug
Narcoterrorist Support, 2 Jun 06
•
NGR 500-2 - National Guard Counterdrug Support (28 Aug. 2008)
•
CJCSI 3121.01B - Standing Rules of Engagement/Standing Rules for the Use of Force for U.S.
Forces, 13 JUN 2005
•
CJCSI 3710.01B, DoD Counterdrug Support, 26 JAN 2007
•
Joint Pub 3-07.4, Joint Counterdrug Operations (13 Jun. 2007)
A.
Introduction
In the 1980s, Congress determined that DOD should provide increased support to civilian law
enforcement agencies (LEA) counterdrug operations. Over the years, Congress increasingly
mandated support by DoD for counterdrug operations. It now includes both active component and
National Guard forces engaged fulltime in the mission. Department of Defense counterdrug
operations are coordinated by the Deputy Assistant Secretary of Defense, Counter Narcotics
(DASD/CN), which is located within the Office of the Assistant Secretary of Defense for Special
Operations and Low Intensity Conflict (ASD(SO/LIC)). The National Guard CD program is
administered through NGB-CD. This chapter examines support by both the active duty military and
the National Guard.
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B. Title 10 Support to Counterdrug Operations
In 1981, Congress passed Chapter 18 of Title 10 entitled Military Cooperation with Civilian Law
Enforcement Officials.1 Although Chapter 18 permits general military cooperation with civilian
law enforcement agencies, Congress passed the Act and its subsequent amendments with the intent
of enabling DoD to provide increased counterdrug support.2 In 1989, Congress took additional
steps, assigning specific counterdrug missions to DoD. As part of the National Defense
Authorization Act (NDAA) for Fiscal Years (FY) 1990 and 1991,3 Congress designated DoD as the
single “lead” agency for the detection and monitoring of aerial and maritime transit of illegal drugs
into the U.S.4 Section 1206 of the same Act stated that the “Secretary of Defense shall direct that
the armed forces, to the maximum extent practicable, shall conduct military training exercises in
drug interdiction areas.”5 Finally, Congress provided specific counterdrug authority to DoD by
passing Section 1004 of the NDAA for FY 1991.6
In addition to providing statutory authority for counterdrug support, Congress annually appropriates
funds to DoD specifically for these operations.7 The money is disbursed through DASD/CN and it
differs from the funding for most other military support to civilian law enforcement in that
reimbursement is not required.
1.
National Defense Authorization Act of 1991
Congress annually gives DoD authority to support federal, state, local, and foreign agencies that
have counterdrug responsibilities. This authority has not been codified, but can be found in Section
1004 of the National Defense Authorization Act for FY 1991.8 Section 1004 is the primary
authority for DoD support to counterdrug operations.
Under Section 1004, the Secretary of Defense may provide support for the counterdrug activities of
any federal, state, local or foreign law enforcement agencies if the support is requested by:
• The official with counterdrug responsibilities for the requesting federal department or agency;
• The appropriate state or local official for state or local support; or
1 10 U.S.C.A. §§ 371-382 (2001). See supra Chapter 2, Military Support to Civilian Law Enforcement.
2 See H.R. Rep. No. 97-71, 1981 U.S.C.C.A.N. 1785. The 1986 amendments to Chapter 18 were contained in the
“Defense Drug Interdiction Assistance Act.” Pub. L. 99-570, § 3051, 100 Stat. 3207-74.
3 National Defense Authorization Act of 1990, Pub. L. No. 101-189, 103 Stat. 1563 [hereinafter FY90 NDAA].
4 10 U.S.C. § 124.
5 FY90 NDAA, supra note 3, § 1206.
6 National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004, as amended, 104 Stat. 1629 [hereinafter
FY91 NDAA]. See also generally DOPLAW Handbook, Supp., App. 6. Statutes Governing DoD Support to
Counterdrug Operations.
7 The Counternarcotics Program is financed through the Drug Interdiction and Counterdrug Activities, defense
appropriation, which is a central transfer account (CTA). It is a single line that accounts for all associated counter
narcotics (CN) resources with the exception of those resources for the Active components’ military personnel, and
Service OPTEMPO. In 2009, Congress appropriated $1.06 billion for counterdrug operations. National Defense
Appropriations Act, 2009, Pub. L. No. 110-417 (2008).
8 Id. These authorities first appeared in the National Defense Authorization Act of 1991 and this section has been
continuously amended to apply through the year 2009. Many of these authorities are also reproduced in the notes
following 10 U.S.C.A. § 374 in the annotated codes.
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• The appropriate official of a federal department or agency with counterdrug responsibilities for
foreign support.9
The following types of support may be provided by the Secretary of Defense under § 1004.
•
The maintenance and repair of equipment made available by DoD for the purpose of:
• preserving the future utility of the equipment for DoD; and
• upgrading such equipment to ensure the compatibility of such equipment with other
equipment used by DoD.
•
The maintenance, repair, or upgrading of equipment, other than equipment referred to in
subsection (a), for the purpose of:
• ensuring that the equipment being maintained or repaired is compatible with equipment used
by DoD; and
• upgrading such equipment to ensure compatibility of that equipment with equipment used
by DoD.
•
The transportation of personnel of the United States and foreign countries (including per diem
costs associated with such transportation), and the transportation of supplies and equipment, for
the purpose of facilitating counterdrug activities within or outside the United States.
•
The establishment and operation of bases of operations and training facilities for the purpose of
facilitating counterdrug activities of DoD or any federal, state, local law enforcement agency
within or outside the United States, or counterdrug activities of a foreign law enforcement
agency outside the United States.10
•
Counterdrug related training of law enforcement personnel of federal, state, or local
governments, or of foreign countries, including associated support expenses for trainees and the
provision of materials necessary to carry out such training.
•
The detection, monitoring, and communication of the movement of:
• air and sea traffic within 25 miles of, and outside the geographic boundaries of the United
States; and
• surface traffic outside the geographic boundary of the United States and within the United
States not to exceed 25 miles of the boundary if the initial detection occurred outside of the
boundary.
•
Construction of roads and fences and installation of lighting to block drug smuggling corridors
across international boundaries of the United States.
•
Establishment of command, control, communication, and computer networks for improved
integration of law enforcement, active military, and National Guard activities.
9 FY91 NDAA, supra note 6, § 1004(a).
10 Section 1004(h) requires notification by the Secretary of Defense to the congressional defense committees when
military construction under this subsection is to be carried out. The project may not commence until 21 days after the
date written noticed was received by Congress. This requirement only applies to construction projects that will modify
or repair DoD facilities for the purpose set forth in this subsection, and whose estimated cost is more than $500,000.
See id. at § 1004(h).
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• The provision of linguist and intelligence analyst services.
• Aerial and ground reconnaissance. 11
The Secretary of Defense may contract for equipment and services to provide the above types of
support if DoD would normally acquire such equipment and services via contract to support similar
DoD activities.12
Section 1004 also provides statutory exceptions to the Posse Comitatus Act. Section 1004
counterdrug support is not subject to the requirements of 10 U.S.C., Chapter 18, with the exception
of 10 U.S.C. §§ 375 and 376.13 Further, the Secretary of Defense may provide support that will
adversely affect military preparedness in the short term in contravention of 10 U.S.C. § 376 if the
Secretary determines that the importance of providing such support outweighs the short-term
adverse impact.14 For example, § 1004(f) allows the Secretary of Defense to plan and execute
otherwise valid military training and operations for the primary purpose of aiding civilian law
enforcement agencies, which contradicts the guidance contained in Enclosure 2 of DoDD 5525.5.
2.
Detection and Monitoring
10 U.S.C. § 124 makes DoD the lead federal agency for the detection and monitoring of aerial and
maritime transit of illegal drugs into the United States. This statute does not extend to the detection
and monitoring of land transit. Although detection and monitoring is now a DoD mission per §
124, it must still be carried out in support of federal, state local, or foreign law enforcement
authorities.15
In order to perform the detection and monitoring mission, DoD personnel may operate DoD
equipment to intercept a vessel or an aircraft detected outside the land area of the United States for
the purposes of:
• Identifying and communicating with that vessel or aircraft; and
• Directing that vessel or aircraft to go to a location designated by appropriate civilian officials.16
In cases where a vessel or aircraft is detected outside the land area of the United States, DoD
personnel may begin, or continue, pursuit of that vessel or aircraft over the land area of the United
States.17
11 Id. at § 1004(b). CHAIRMAN JOINT CHIEFS OF STAFF, INSTR. 3710.01B, DOD COUNTERDRUG SUPPORT (26 January
2007) [hereinafter CJCSI 3710.01B], provides a detailed listing and discussion of approval authorities for certain types
of DoD support to counterdrug operations.
12 FY91 NDAA, supra note 6, para. (d).
13 Id. at § 1004(g).
14 Id. at § 1004(e).
15 10 U.S.C. § 124(a)(2).
16 Id. at § 124(b).
17 The term “United States” as used in 10 U.S.C. § 124 means the land area of the several states and any territory,
commonwealth, or possession of the United States. 10 U.S.C. § 124(c)(1998).
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3.
CJCS Implementation
Authority to approve counterdrug operational support to LEAs under the statutes discussed above
has been delegated by the Secretary of Defense (SECDEF), through the Chairman of the Joint
Chiefs of Staff, to the Commanders of the Unified Combatant Commands (with the authority to
further delegate to flag and general officers within their chains of command).18 The CJCSI
3710.01B provides a specific list of the types of counterdrug missions that may be approved, such
as certain types of aerial reconnaissance, transportation support, intelligence analyst support,
engineering support and more. Specifically withheld is the authority to approve counterdrug
support missions involving ground reconnaissance, detection and monitoring operations, and
deployments for longer than 179 days or involving more than 400 personnel. These missions
require specific SECDEF approval. CJCSI 3710.01B, contains significant guidance and guidelines
on permissible counterdrug support to LEAs and should be consulted whenever reviewing a
proposed operation.19
On 31 July 2002, The Deputy Secretary of Defense (DepSecDef) published the Department of
Defense Counternarcotics Policy. Also, on 2 October 2003, the DepSecDef published the policy on
domestic counternarcotics activities.
The July 2002 policy states that the DoD will focus its counternarcotics activities on programs that:
enhance the readiness of the DoD; satisfy the Department’s statutory detection and monitoring
responsibilities; contribute to the war on terrorism; advance the Department’s security cooperation
goals; or enhance national security.
The October 2003 policy established a goal of reducing the operational stress on Title 10 forces that
conduct domestic counternarcotics activities through utilization of Title 32 forces; concentrating the
Department’s support on those military unique skills and capabilities that domestic law enforcement
agencies lack, or cannot practically replicate and employ those measures designed to detect,
interdict, disrupt, or curtail any activity that is reasonably related to narcotics trafficking. This
policy directed that Under Secretary of Defense (policy) shall be responsible for reviewing and
approving Title 10 counternarcotics support, except where that authority was delegated pursuant to
CJCSI 3710.01B.
This policy also dictates that all requests for department support must satisfy the following criteria:
• there must be a valid counterdrug activities nexus;
• there must be a proper request;20
• the support must improve unit readiness or mission capability;
18 Id. U.S. Northern Command (USNORTHCOM) further delegated its authority to the Joint Force Land Component
Commander (JFLCC), who further delegated his authority to Commander, Joint Task Force-North (JTF-N).
19 A copy of CJCSI 3710.01B is located at DOPLAW Handbook, Supp., App. 6-6.
20 A proper request must be from an appropriate official of a federal, state, or local government agency who has
responsibility for counternarcotics activities. First, federal law must authorize the Department to provide the requested
support. Second, the support will assist the requesting agency in accomplishing its counternarcotics activities within the
U.S. Third, the support is consistent with the Department’s implementation of the national Drug Control Strategy.
Finally, the support is limited to those activities that are militarily unique and significantly benefit the DoD or are
essential to national security goals. Memorandum, Deputy Secretary of Defense, Subject: Department Support to
Domestic Law Enforcement Agencies Performing Counternarcotics Activities (2 Oct 2003).
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• the support must provide a training opportunity that contributes to combat readiness; and
• Title 10 forces will not be used for continuing, on-going, long term operational support
commitments at the same location.
For all domestic counternarcotics support requests sent to NORTHCOM, the Cdr, NORTHCOM,
will first ensure a National Guard unit cannot provide the support. If not, NORTHCOM will
determine whether the requested support is feasible, supportable, and consistent with DOD policy.
If approval is authorized under CJCSI 3710.01B, the Cdr, NORTHCOM, or his delegated authority
may approve the request. All other requests will be forwarded through the Joint Staff deployment
order process, to the DASD/CN and Under Secretary of Defense for Policy (USD (P)), for
consideration.
Requests sent directly to DoD will first be referred to the National Guard Bureau. If the NGB
cannot provide the support the request will be referred through the Joint Staff to Cdr,
USNORTHCOM, for review. If feasible and supportable the Cdr, USNORTHCOM will request
forces through the Joint Staff from the appropriate service.
Detailed rules governing the use of force by military forces engaged in counterdrug support
operations within the U.S. are provided in CJCSI 3121.01B, Standing Rules of
Engagement/Standing Rules for the Use of Force for U.S. Forces, Appendices L and O.
4. Counterdrug Support Task Forces
Counterdrug support operations are planned, coordinated and controlled primarily via three
headquarters: Joint Interagency Task Force (JIATF) South , located in Key West, Florida, (under
the command and control of Southern Command (SOUTHCOM)), JIATF West, located in
Alameda, California, (under the command and control of Pacific Command (PACOM)), and Joint
Task Force North (JTF-N), located in El Paso, Texas (under the command and control of
NORTHCOM.) While the two JIATFs do provide some support to LEAs in their Areas of
Responsibility (AORs),21 their primary focus is on operations in the source and transit zones of
South and Central America and in Southeast and Southwest Asia and in international waters and
airspace. To deconflict and identify interim and long-term solutions for command and control
arrangements between NORTHCOM, SOUTHCOM and PACOM, the ASD (SO/LIC) established
specific areas of responsibility for JIATF-S, JIATF-W and for JTF-N. 22 While the JIATFs focus
their attention on international AORs the bulk of domestic counterdrug support is provided by JTF-
N.
Joint Task Force Six, activated on November 13, 1989,23 was designated the lead DoD organization
responsible for planning and coordinating all DoD support to civilian drug law enforcement
agencies in the continental United States (CONUS). Joint Task Force Six’s original AOR,
composed of the four southwest border states of Texas, New Mexico, Arizona and California, was
21 For example, Hawaii falls within PACOM’s AOR, and Puerto Rico and the Virgin Islands fall within NORTHCOM’s
AOR.
22 Memorandum, Assistant Secretary of Defense, Special Operations/Low Intensity Conflict, Subject Joint Interagency
task Force (JIATF) Area Responsibilities (1 Aug 2003).
23 Message, 152330Z Oct 89, Commander in Chief, Forces Command (CINCFOR), subject: Operations Order—
Counternarcotics Operations (15 Oct 1989).
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expanded in 1995 to cover all of CONUS.24 On 28 September 2004, Joint Task Force Six was
officially renamed Joint Task Force North. JTF-N’s mission includes synchronizing and integrating
DoD operational, technological, training, and intelligence support to domestic law enforcement
agency counterdrug efforts in CONUS to reduce the availability of illegal drugs.
There are approximately 175 personnel assigned to JTF-N, including civilians, contractors and
service members from all four services. Unlike the JIATFs, JTF-N has no LEA representatives
assigned to or working in the command. Joint Task Force North has no assigned units and no
tasking authority. The command relies entirely on volunteer units to perform its operational support
missions. From its inception as JTF-6, JTF-N has completed over 6,000 counterdrug support
missions throughout CONUS. These included aerial and ground reconnaissance missions, detection
and monitoring, mobile training teams, and engineer support missions.
Co-located with JTF-N is Operation Alliance, a headquarters comprised of representatives from
federal law enforcement agencies. It serves as the single point of contact for all law enforcement
agencies (federal, state and local) in requesting DoD counterdrug support. Operation Alliance
verifies the counterdrug nexus, prioritizes LEA support requests, and then forwards their requests to
JTF-N for review and consideration.
5.
Coast Guard Law Enforcement Detachments
As the primary enforcer of U.S. maritime law, the United States Coast Guard (USCG) plays a
critical role in the war on drugs. The USCG has the lead role in maritime drug interdiction, and
shares the lead role in air interdiction with the U.S. Customs Service. The USCG conducts
extensive maritime counterdrug operations. These range from enforcing drug possession and use
laws during routine recreational vessel boardings, to conducting sustained multi-unit operations
targeting major drug traffickers far from U.S. shores. Since the PCA does not apply to the USCG,25
the PCA restrictions on arrest, search, seizure, and the interdiction of vessels and aircraft, are
inapplicable to USCG operations and personnel. To capitalize on this expertise and capability, 10
U.S.C. § 379 requires the Secretary of Defense and the Secretary of Homeland Security to assign
Coast Guard law enforcement detachments (LEDETs) to every appropriate naval surface vessel
operating at sea in a drug interdiction area.26 See DOPLAW Handbook, Supp., App. 6-12, JP 3-
07.4, Appendix E, LEDETS.
Coast Guard personnel assigned to LEDETs are trained in law enforcement and have the powers of
arrest, search, and seizure in accordance with Title 14, United States Code.27 Coast Guard
24 Message, 212255Z Aug 95, Commander in Chief, Forces Command (CINCFOR), subject: Commander Joint Task
Force Six Expansion of Area of Responsibility for Counterdrug Support for Domestic Drug Law Enforcement Agencies
(21 Aug 1995). The AOR was expanded to include CONUS, Puerto Rico, and the Virgin Islands.
25 United States v. Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982), cert. denied, 459 U.S. 1156 (1982).
26 10 U.S.C. § 379(a). A “drug interdiction area” is defined as an area outside the land area of the United States in
which the Secretary of Defense, after consulting with the Attorney General, determines that activities involving
smuggling of drugs into the United States are ongoing.
27 14 U.S.C. § 89(a):
The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas
and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of
violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any
time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States,
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personnel assigned under § 379 will have functions which are agreed to by the Secretary of Defense
and Secretary of Homeland Security and which are otherwise within the Coast Guard’s
jurisdiction.28 No fewer than 500 active duty Coast Guard personnel will be assigned duties under
§ 379, unless the Secretary of Homeland Security, after consulting with the Secretary of Defense,
determines that there are not enough naval surface vessels to support this number of personnel. If
this is the case, these Coast Guard personnel may be assigned duties to enforce the laws listed under
10 U.S.C. § 374(b)(4)(A).29
Specific rules governing the use of USCG LEDETs are provided in Commandant, United States
Coast Guard Instruction (COMDTINST) M16247.1D, Maritime Law Enforcement Manual.30
Chapter Five of the Maritime Law Enforcement Manual addresses the roles and responsibilities of
the USCG in counterdrug operations. The primary federal statute used by the USCG in counterdrug
operations is the Maritime Drug Law Enforcement Act (MDLEA).31 The MDLEA prohibits any
person on board an U.S. vessel, or a vessel subject to the jurisdiction of the U.S., to knowingly or
intentionally manufacture or distribute, or to possess with the intent to manufacture or distribute, a
controlled substance.32 The term “U.S. vessel” includes:
• Federally documented or state numbered vessels;
• Vessels owned in whole or in part by:
• the U.S. or a territory, commonwealth, or possession of the U.S.;
• a state or political subdivision thereof;
• a citizen or national of the U.S.; or
• a corporation created under the laws of the U.S. or any state, the District of Columbia, or
any territory, commonwealth, or possession of the U.S.; and
• U.S. documented vessels sold or registered in a foreign country in violation of U.S. law.33
“Vessel subject to U.S. jurisdiction” includes a foreign vessel if located:
address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the
vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or
search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has
been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued
and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the
laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof,
on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel
liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both,
shall be seized.
28 10 U.S.C. § 379(b).
29 Id. at § 379(c).
30 U.S. DEP’T OF COAST GUARD, COMMANDANT OF THE COAST GUARD INSTR. M16247.1D, MARITIME LAW
ENFORCEMENT MANUAL (15 Apr. 2005)(FOUO)[hereinafter COMDTINST M16247.1D]. See also Memorandum from
Commander, Atlantic Area, U.S. Coast Guard, to Commanding Officers, Regional TACLETs North, South, and Gulf,
subject: Memorandum of Agreement Concerning Deployment of Law Enforcement Detachment (5 Aug. 1993) (on file
with CLAMO).
31 46 U.S.C.A. App. §§ 1901-1904 (2000).
32 Id. at § 1903.
33 Id. at § 1903(b).
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• In U.S. Customs waters;
• On the high seas and the flag State has consented or waived objection to the enforcement of
U.S. law; or
• In the territorial waters of another nation and that coastal State consents to the enforcement of
U.S. law.34
U.S. Navy ships with USCG LEDETs aboard remain under the operational control (OPCON) of the
Unified Commander in whose area of responsibility the DoD asset is operating. OPCON is defined
as “the authority to direct the activities of a unit in the performance of its operational mission and
such additional tasks as may be assigned by competent authority; the organizational element with
OPCON of a unit is the operational commander of that unit.”35 When an U.S. Navy ship enters the
boarding phase of a law enforcement operation, it shifts tactical control (TACON) to the USCG
until the boarding phase is complete. TACON is defined as “the temporary authority to direct
activities of a specific unit on a specific mission for a specific period of time; this authority is
assigned by the operational commander and an organizational element with TACON of a unit is the
tactical commander of that unit.” 36 U.S. Navy ships transporting USCG LEDETs under TACON
of the USCG will follow the Use-of-Force Policy issued by the Commandant, USCG regarding use
of warning shots and disabling fire.37
In addition to placing LEDETs on U.S. Navy ships, the USCG also relies on extensive bilateral and
multilateral agreements between the U.S. and other nations to place LEDETs on the ships of foreign
countries. These agreements can take various forms—from standing formal memoranda of
agreements to ad hoc verbal agreements. Standing agreements typically address various aspects of
enforcement including: shipriders, overflight, access to territorial waters, combined operations, and
flag State authorization to board, search, seize, and arrest. As with all international agreements,
these bilateral and multilateral agreements can only be negotiated with authorization from the U.S.
Department of State.38 See DOPLAW Handbook, Supp., App. 6-13, Sample LEDET MOA, for a
sample bilateral agreement.
C. National Guard Support to Counterdrug Operations
National Guard forces are authorized by 32 U.S.C. § 112(a) to use CD funds for “drug interdiction
and counterdrug activities”. This includes:
• Pay, travel, allowances, clothing, subsistence, gratuities, travel, and related expenses, as
authorized by state law, for National Guard personnel used for drug interdiction and
counterdrug activities while not in federal service;
34 Id. at § 1903(c).
35 COMDTINST M16247.1D, supra note 30 ch 2, § E(1)(e).
36 Id.
37 CHAIRMAN JOINT CHIEFS OF STAFF, INSTR. 3121.01B, STANDING RULES OF ENGAGEMENT, Encl. H, Counterdrug
Support Operations Outside the U.S. Territory, para. 1(b) (13 June 2005). CJCSI 3121.01B is classified in part.
Enclosure H is confidential in part. The provision cited is unclassified. See also 10 U.S.C. § 637 (1998), Stopping
vessels; immunity from firing at or into vessels.
38 COMDTINST M16247.1D, supra note 30, at ch. 5, sec. B and Encl. 4.
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• The operation and maintenance of National Guard equipment and facilities used for drug
interdiction and counterdrug activities; and
• The procurement of services and equipment, and the leasing of equipment, by the National
Guard for the purpose of drug interdiction and counterdrug activities.39
Funds provided by the Secretary of Defense under 32 U.S.C. § 112 are part of the DoD counterdrug
appropriation and cannot be used for purposes other than the National Guard counterdrug support
program. Authority to spend CD funds depends on whether the primary purpose of the mission is to
conduct CD activities. Evidence that CD is a purpose, but not the primary purpose, is insufficient
to justify the expenditure. For example, a Purpose Act violation occurred when the Texas National
Guard used counterdrug funds in January 1993 in support of the Bureau of Alcohol, Tobacco, and
Firearms (BATF) and Federal Bureau of Investigation (FBI) operation concerning the Branch
Davidians near Waco, Texas. The finding was returned despite evidence that a former Branch
Davidian had stated to the ATF that there was a methamphetamine lab in the compound, and David
Koresh had stated to an undercover ATF agent that the compound would be an ideal location for a
meth lab. The ADA violation was based on the fact that the operation’s primary purpose was to
investigate potential federal firearms violations.40
CD funds may be used for the purpose of drug interdiction and counterdrug activities in which (1)
drug traffickers use terrorism to further their aims of drug trafficking or (2) terrorists benefit from or
use drug trafficking to further their aims of drug trafficking.41
In order to qualify for federal funding under 32 U.S.C. § 112(a), the Governor of the state
requesting such funding must submit a state drug interdiction and counterdrug activities plan to the
Secretary of Defense.42 A state drug interdiction and counterdrug activities plan shall:
• Specify how personnel of the National Guard of that state are to be used in drug interdiction and
counterdrug activities;
• Certify that those operations are to be conducted at a time when the personnel involved are not
in federal service;
• Certify that participation by National Guard personnel in those operations is service in addition
to training required under 32 U.S.C. § 502;43
• Certify that any engineer-type activities (as defined by the Secretary of Defense) under the plan
will be performed only by units and members of the National Guard;
39 Procurement of equipment cannot exceed $5000 per purchase order unless approval is granted by the Secretary of
Defense. 32 U.S.C.A. § 112(a)(3)(1959). Further, equipment purchased, loaned, leased, or otherwise obtained using 32
U.S.C. § 112 funds will only be used for the Counterdrug Support Program except in very limited circumstances. U.S.
DEP’T OF ARMY, NAT’L GUARD BUREAU REG. 500-2, NATIONAL GUARD COUNTERDRUG SUPPORT, paras. 7-10, 7-11 (28
August 2008)[hereinafter NGR 500-2].
40 DA (FM&C) Report of Antideficiency Act Violation Case #95-09, 11 March 1997.
41 CNGB Memo, Implementation of Procedures for Handling Requests for Counterdrug Narcoterrorist Support, 2 June
2006.
42 State drug interdiction and counterdrug support plans must be submitted through the Counterdrug Office of the
National Guard Bureau. NGR 500-2, supra note 39, para. 2-5.
43 See 32 U.S.C. § 502 (1959) (addressing annual drill and field exercise requirements of National Guard personnel).
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• Include a certification by the Attorney General of the state that the use of the National Guard of
the state for the activities proposed under the plan is authorized by, and is consistent with, state
law; and
• Certify that the Governor or a civilian law enforcement official of the state designated by the
Governor has determined that any activities included in the plan that are carried out in
conjunction with federal law enforcement agencies serve a state law enforcement purpose.44
The National Guard Counterdrug Coordinators for each state or territory must submit their State
Plan to the National Guard Bureau for review. The National Guard Bureau submits the State Plan,
complete with original certifying signature from the respective Adjutant General, Attorney General,
and Governor, to DASD/CN. DASD/CN reviews the State Plan and, in coordination with the
Comptroller, ASD (HD & ASA), the Joint Staff, the Commander, NORTHCOM, and other
appropriate offices within the department, recommends approval or rejection to the Secretary of
Defense.45
To ensure that the use of National Guard units and personnel participating in counterdrug operations
does not degrade training and readiness, the following requirements apply in determining what
activities National Guard personnel may perform:
• The performance of the activities may not adversely affect the quality of that training or
otherwise interfere with the ability of a member or unit of the National Guard to perform the
military functions of the member or unit;
• National Guard personnel will not degrade their military skills as a result of performing the
activities;
• The performance of the activities will not result in a significant increase in the cost of training;
and,
• In the case of drug interdiction and counterdrug activities performed by a unit organized to serve
as a unit, the activities will support valid unit training requirements.46
The Secretary of Defense will examine the state drug interdiction and counterdrug activities plan in
consultation with the Director of National Drug Control Policy. However, if the Governor of a state
submits a plan substantially similar to the one submitted the prior fiscal year, and funds were
provided to the state under the prior plan, consultation by the Secretary of Defense with the Director
of National Drug Control Policy is not required. National Guard units can execute only those
missions approved by the Secretary of Defense in the state drug interdiction and counterdrug
activities plan.
National Guard units performing counterdrug missions under 32 U.S.C. § 112 are in State service
(not Federal service in Title 10 status) and under State command and control. In fact, § 112(c)(2)
specifically requires the state drug interdiction and counterdrug activities plan to certify that
“…operations are to be conducted at a time when the personnel involved are not in federal service.”
However, the CD personnel must be in FTNGD (full time national guard duty) status, not AGR. As
44 Id. at § 112(c).
45 Memorandum, Deputy Secretary of Defense, Subject: Department Support to Domestic Law Enforcement Agencies
Performing Counternarcotics Activities (2 Oct 2003).
46 32 U.S.C. § 112(b)(2)(C).
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with all National Guard personnel in a Title 32 status under State control, National Guard personnel
conducting counterdrug missions under 32 U.S.C. § 112 are covered under the Federal Tort Claims
Act47 even though they are not in a federal status.48 For NG members sued or prosecuted in state
court for state or federal constitutional violations resulting from counterdrug operations, they may
request representation from the Department of Justice pursuant to AR 27-40, chapter 4 or AFI 51-
301, chapter 1. For this purpose, NG personnel in a Title 32 status are considered state employees.
The process of determining representation is separate and distinct from the determination of FTCA
coverage. If representation is granted, NG personnel remain individually named defendants in the
action and are responsible for any criminal convictions, fines or civil judgments. The Department
of Justice is not obligated to indemnify NG personnel for any adverse monetary judgments or
sanctions, but may, in its sole discretion, do so upon request.
The Posse Comitatus Act does not apply to National Guard counterdrug missions performed under
32 U.S.C. § 112, even though these units are performing missions using federal funds and operating
under federal fiscal oversight.49 This allows NG personnel more flexibility than active component
forces in conducting counterdrug missions. However, the National Guard Bureau has imposed
several policy restrictions on National Guard counterdrug operations in NGR 500-2.50 As a matter
of policy, National Guard personnel will not directly participate in the arrest of suspects, conduct
searches which include direct contact of National Guard members with suspects or the general
public, or become involved in the chain of custody of any evidence, except in exigent
circumstances, or when otherwise authorized.51 Exigent circumstances are defined as situations
where immediate action is necessary to protect police officers, National Guard personnel, or other
persons from death or serious injury; to prevent the loss or destruction of evidence; or to prevent the
escape of a suspect already in custody.52
The following missions have been approved for federal funding by the Secretary of Defense under
32 U.S.C. § 112:
• Counterdrug Coordination, Liaison, and Management - Planning and coordinating state
counterdrug supply and demand reduction support;
• Linguist Support - Providing transcription/translation of audio/video tapes, seized documents
and other information media (active/real-time conversation monitoring or direct participation in
interrogations is not allowed);
47 28 U.S.C. §§ 2671-2680.
48 NGR 500-2, supra note 39, para. 2-4.
49 Gilbert v. United States, 165 F.3d 470, 473-474 (6th Cir. 1999) (Where a state used National Guardsmen for purpose
of carrying out drug interdiction and counterdrug activities, in accordance with federal statute. Guardsmen were found
to be exempt from the Posse Comitatus Act, which generally prohibits use of federal army to aid civil authorities in the
enforcement of civil laws); United States v. Benish, 5 F.3d 20, 25-26 (3rd Cir. 1993) (The use of National Guard unit
that was not in federal service for civilian law enforcement involving surveillance of possible drug operation was held
not to be in violation of federal law, where under Pennsylvania law governor could place members of National Guard
on special state duty to support drug interdiction programs).
50 This regulation does not address National Guard counterdrug activities performed under the authority of Title 10,
United States Code.
51 NGR 500-2, supra note 39, para. 2-1e.
52 Id.
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•
Investigative Case and Analyst Support - Assisting law enforcement agencies (LEAs) in the
establishment of counterdrug intelligence systems/databases and providing intelligence analysis
support;
•
Communications Support - Providing personnel to establish, operate and maintain
communications stations, bases, and equipment in support of LEA counterdrug operations;
•
Operational/Investigative Case Support - Providing assistance to LEAs in developing
investigations and cases for prosecution;
•
Engineer Support - Providing engineer support to LEAs and community organizations where
the project has a counterdrug nexus;
•
Subsurface/Diver Support - Conducting subsurface inspections of commercial vessel hulls
within U.S. territorial waters or maritime ports of entry through the use of sidescan sonobuoys
or divers to detect alien devices or containers attached to vessel hulls, or other underwater
activities;
•
Domestic Cannabis Suppression/Eradication Operations Support - Supporting LEA domestic
cannabis suppression and eradication operations;
•
Transportation Support - Providing transportation (aerial, ground, or maritime) of LEA
personnel/equipment, persons in LEA custody, seized property or contraband as part of on-
going time-sensitive counterdrug operations, when security or other special circumstances
reasonably necessitate National Guard support and there is a counterdrug nexus;
•
Maintenance/Logistical Support - Providing maintenance/logistical support of LEA vehicles
and equipment to enhance the counterdrug effectiveness of the supported agency;
•
Cargo/Mail Inspection - Assisting LEAs by inspecting cargo and mail;
•
Training LEA/Military Personnel - Training LEA/military personnel in military subjects and
skills useful in the conduct of counterdrug operations or in the operation of equipment used in
counterdrug operations;
•
Surface Reconnaissance - Reconnoitering or performing area observation by land or water to
detect and report illegal drug activities that include, but are not limited to, cultivated marijuana,
suspected isolated drug trafficking airstrips, drug drop zones, drug trafficking corridors, illegal
drug laboratories, suspicious aircraft, watercraft, or motor vehicles;
•
Aerial Reconnaissance - Conducting reconnaissance/observation of airspace, maritime or
surface areas (land and internal waterways of the U.S. and territories) for illegal drug activities
which include, but are not limited to, cultivation of marijuana or delivery of illegal drugs;53
•
Drug Demand Reduction Support - Providing support to community based activities primarily
designed to educate, train, or otherwise prevent drug abuse among youth, and providing
information about drug abuse or drug abuse programs;
•
Drug Demand Reduction Education and Programs - Supporting community based activities
that focus on educational institutions, or otherwise have an educational institution as the primary
sponsor, and are primarily designed to educate, train, or otherwise prevent drug abuse;
•
Leadership Development - Supporting camps, retreats, seminars and programs, not primarily
associated with educational institutions that focus on developing drug abuse prevention
leadership skills in youth and adults; and
53 An additional requirement for aerial reconnaissance (otherwise known as “Mission 5a”) is that at least one person
involved in either the operation or training of the mission must attend the National Counterdrug Civil-Military Institute
(NICI) Mission 5a course. Id. para. 5-17.
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• Coalition Development - Assisting in the development of functioning community-based
coalitions organized to reduce the illegal use of legitimate drugs and the use of illegal drugs.54
National Guard personnel carrying out the above missions serve in a support role to LEAs and will
not be directly involved in law enforcement duties. Consequently, National Guard members will
only be armed at the request of the supported law enforcement agency and after meeting certain
criteria. A mission risk analysis will be conducted by The Adjutant General (TAG) of that State to
determine whether National Guard personnel should be armed as a force protection measure.55
Since National Guard personnel providing counterdrug support under 32 U.S.C. § 112 are acting as
State officials, each State promulgates its own Rules for the Use of Force (RUF), as they are now
generally called in domestic operations. CJCSI 3121.01B, Encl. O, Counterdrug Support
Operations Within U.S. Territory, is not applicable to the NG unless they are in federal service
(Title 10 status). A sample NG RUF card is DOPLAW Handbook, Supp., App. 6-11, California
National Guard Counterdrug Task Force Standing Rules of Engagement. Judge advocates must be
aware of the application of the law of the state in which operations are being conducted.56
If National Guard personnel are armed, NGR 500-2 requires the AG to consider the following:
•
All personnel authorized to carry firearms must have received qualification training and testing
on the type of firearm to be carried, in accordance with current regulations. Training will
include instruction on safety functions, security, capabilities, limitations, and maintenance of the
firearms. Testing will include qualification firing in accordance with current qualification
standards;
•
Arms and ammunition will be secured at all times in accordance with appropriate regulations
and policies. Rounds will be chambered only on order of the commander/senior officer/senior
noncommissioned officer present, in coordination and in conjunction with the supported LEA,
except in cases of exigent circumstances;
•
Firearms will not be discharged from moving vehicles (except in self defense or to defend other
persons);
•
Pilots in command of aircraft have the authority to override an order to chamber rounds while
on board an aircraft;
•
Possession or use of non-issued or personally owned firearms and/or ammunition during
counterdrug support operations is prohibited. National Guard personnel will not accept offers of
weapons or ammunition from LEAs except for use on LEA operated ranges for training
purposes only. The only weapons used for counterdrug support operations will be federally
owned military weapons listed on the unit’s property books;
•
Federally owned military weapons will not be secured in private dwellings at any time;
•
The counterdrug coordinator will direct additional weapons training when, in his judgment, it is
advisable, regardless of the level of training indicated by training and qualification records;
•
National Guard units may use minimum force for the following purposes:
54 See NGR 500-2, para. 2-7 for a detailed description of what each mission entails.
55 Id. para. 3-6. This authority may be delegated in accordance with para. 3-6(b).
56 Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the Right
Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1[hereinafter Stafford].
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• To defend themselves or other persons;
• To protect property, or prevent loss/destruction of evidence;
• To make arrests if they have arrest powers pursuant to state law and exigent circumstances
require such action.
• The discharge of any firearm is always considered deadly force; and
• National Guard members will be thoroughly briefed on the Rules of Engagement and Use of
Force prior to the commencement of any operation.57
57 NGR 500-2, supra note 39, para. 3-6.
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CHAPTER 7
MILITARY SUPPORT TO SPECIAL EVENTS
KEY REFERENCES:
•
10 U.S.C. § 422 - Use of Funds for Certain Incidental Purposes
•
10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside the
Department of Defense
•
10 U.S.C. § 2554 - Equipment and other services: Boy Scout Jamborees
•
PDD 62 - Protection Against Unconventional Threats to the Homeland and Americans Overseas
(22 May 1998)
• HSPD 7 - Critical Infrastructure Identification, Prioritization, and Protection (17 December
2003)
• HSPD 15 - U.S. Strategy and Policy in the War on Terror (6 March 2006) (Classified)
• NSPD 46 - U.S. Strategy and Policy in the War on Terror (6 March 2006) (Classified)
• DoDD 1100.20 - Support and Services for Eligible Organizations and Activities Outside the
Department of Defense, 12 Apr 04
• DoDD 2000.15 - Support to Special Events, 8 Dec 03
• Reese, Shawn, National Special Security Events, CRS REP. FOR CONG. (March 19, 2008)
A. Introduction
The Department of Defense (DoD) supports a wide variety of special events held within the United
States. There are two general types of support: support to designated special events under statutory
authority and community support as part of innovative readiness training (IRT). Designated special
events include National Special Security Events such as major sporting events, Presidential
inaugurations, and international meetings.1 The IRT program allows commanders to conduct
training in the civilian community, but benefit to the community must be incidental to the training.2
IRT support must provide a training benefit to the participating unit or individual.
B. Designated Special Events
Title 10 of the United States Code § 2554 permits support for Boy Scout Jamborees.3 This provides
the Secretary of Defense authority to lend or otherwise provide the Boy Scouts of America (BSA)
with a variety of equipment to include cots, flags, tents and other equipment to include expendable
medical supplies without reimbursement. This support may be provided to the BSA in support of
both national and world scout jamborees.4 Further, if the Jamboree is conducted on a military
installation, the Secretary may authorize logistical and personnel support on the military
1 Reese, Shawn, National Security Special Events, CRS REP. FOR CONG. (March 19, 2008), at 3-4 (hereinafter CRS
Report, National Security Special Events).
2 Memorandum, Assistant Secretary of the Army (Manpower and Reserve Affairs), subject: Innovative Readiness
Training (IRT), Encl. 1 (28 Mar. 2000) [hereinafter IRT Policy].
3 10 U.S.C. § 2554. Note that the section previously numbered as 2554 has been changed to 10 U.S.C. § 2564 and
relates to the provisioning of DOD support to certain athletic events. These events are discussed, infra.
4 10 U.S.C. § 2554(a.).
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installation.5 Certain expenses such as those associated with transportation must be reimbursed and
in some cases a payment bond must be secured before the support is rendered.6
Congress has also authorized military support to certain sporting events, such as the Olympics or
World Cup soccer.7 In addition to sporting events, other special events may be designated by the
Secretary of Defense for support.8 Such support may be provided on a reimbursable basis or may
be funded by specific appropriations.9
Event
Location
Date
World Energy Council Meeting
Houston, TX
Sep.13-17, 1998
NATO 50th Anniversary Celebration
Washington, DC
Apr. 23-25, 1999
World Trade Organization Meeting
Seattle, WA
Nov. 29-Dec. 3, 1999
State of the Union Address
Washington, DC
Jan. 27, 2000
International Monetary Fund Meeting
Washington, DC
Apr. 14-17, 2000
International Naval Review (OpSail)
New York, NY
Jul. 3-9, 2000
Republican National Convention
Philadelphia, PA
Jul. 29-Aug. 4, 2000
Democratic National Convention
Los Angeles, CA
Aug. 14-16, 2000
Presidential Inauguration
Washington, DC
Jan. 20, 2001
Presidential Address to Congress
Washington, DC
Feb. 27, 2001
United Nations General Assembly 56
New York, NY
Nov. 10-16, 2001
State of the Union Address
Washington, DC
Jan. 29, 2002
Super Bowl XXXVI
New Orleans, LA
Feb. 3, 2002
Winter Olympic Games
Salt Lake City, UT
Feb. 8-24, 2002
Super Bowl XXXVII
San Diego, CA
Jan. 26, 2003
State of the Union Address
Washington, DC
Jan. 20, 2004
Super Bowl XXXVIII
Houston, TX
Feb. 1, 2004
Sea Island G8 Summit
Sea Island, GA
Jun. 8-10, 2004
President Reagan State Funeral
Washington, DC
Jun. 11, 2004
5 10 U.S.C. § 2554(g).
6 10 U.S.C. § 2554(b-f).
7 10 U.S.C. § 2564. Note that this section was previously numbered as 2554 until 2000.
Security and Safety Assistance. - At the request of a federal, state, or local government agency responsible for
providing law enforcement services, security services, or safety services, the Secretary of Defense may authorize
the commander of a military installation or other facility of the Department of Defense or the commander of a
specified or unified combatant command to provide assistance for the World Cup Soccer Games, the Goodwill
Games, the Olympics, and any other civilian sporting event in support of essential security and safety at such event,
but only if the Attorney General certifies that such assistance is necessary to meet essential security and safety
needs.
Id. at 2564(a).
8 U.S. DEP’T OF DEFENSE, DIR. 2000.15, SUPPORT TO SPECIAL EVENTS, para. 3.1 (21 Nov. 1994) [hereinafter DoDD
2000.15].
9 Id. at para. 4.4.
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Democratic National Convention
Boston, MA
Jul. 26-29, 2004
Republican National Convention
New York, NY
Aug. 30-Sep. 2, 2004
Presidential Inauguration
Washington, DC
Jan. 20, 2005
State of the Union Address
Washington, DC
Feb. 2, 2005
Super Bowl XXXIX
Jacksonville, FL
Feb. 6, 2005
Super Bowl XL
Detroit, MI
Feb. 5, 2006
President Ford State Funeral
Washington, DC
Jan. 3, 2007
Super Bowl XLI
Miami Gardens, FL
Feb. 4, 2007
State of the Union Address
Washington, DC
Jan. 28, 2008
Democratic National Convention
Denver, CO
Aug. 25-28, 2008
Republican National Convention
Minneapolis-St. Paul, MN
Sep. 1-4, 2008
Presidential Inauguration
Washington, DC
Jan. 20, 2009
Super Bowl XLIII
Tampa Bay, FL
Feb. 1, 2009
Figure 7-1, DoD Support to Special Events10
1.
Types of Events
a. Sporting Events
Support to certain sporting events is specifically authorized by 10 U.S.C. § 2564. Sporting events
are planned programs of athletic competition and related activities.11 The authorizing legislation
specifically mentions the World Cup Soccer Games, the Goodwill Games and the Olympics.12
Other sporting events previously supported include the World Alpine Ski Championships and the
Special Olympics. Military forces provided extensive support during the 1996 and 2002 Olympic
Games held in Atlanta, Georgia and Salt Lake City, Utah, respectively. 13
Commander, U.S. Joint Forces Command (JFCOM) formed Joint Task Force-Olympics (JTF-O) on
January 16, 2001.14 Routine support approved by the Secretary of the Army for this event included
aviation, communications, explosive ordnance disposal, physical security, and temporary
facilities.15 JTF-O received requests for assistance from the U.S. Olympic Planning Committee and
the Salt Lake Olympic Planning Committee.16 With the establishment of U.S. Northern Command
(USNORTHCOM) on September 11, 2003, similar future support missions would be assigned to
USNORTHCOM.
10 Table produced by Reese, Shawn, see CRS Report, National Security Special Events, supra note 1.
11 DoDD 2000.15, supra note 8, para. 4.4.
12 10 U.S.C. § 2564(a).
13 See U.S. Forces Command, Slide Presentation, 2001 Winter Olympic Games, Joint Task Force-Olympics FORSCOM
Augmentation (22 Feb. 2001) [hereinafter FORSCOM Presentation].
14 Message, 181815Z Jan 01, Commander in Chief, Joint Forces Command, subject: USCINCJFCOM JTF-Olympics
Stand Up Announcement (18 Jan. 2001).
15 Message 141555Z Mar 00, Commander in Chief, Joint Forces Command, subject: USCINCJFCOM 2000 XIX
Olympics PLANORD Feedback (14 Mar. 2000).
16 FORSCOM Presentation, supra note 13.
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b. Non-athletic Events
The Secretary of Defense may also designate non-athletic events to receive support. Non-athletic
events include large events, such as the World’s Fairs, the Universal Postal Union Congress and the
International Special Olympics.17 DoD may also support designated “national special security
events” when tasked to do so.
(1) Events Not Declared National Security Events
The Secretary of Defense may designate “non-athletic international or national events to receive
support.”18 The International Monetary Fund and World Bank Group meeting of April 2000 was a
non-athletic event approved for support but not designated a national security event.19 The G-8
meeting of 2004 was also designated to receive such support.
(2) National Security Events
Pursuant to Homeland Security Presidential Directive 7 (HSPD-7), the Secretary, DHS, makes the
final determination as to whether to designate an event as a national special security event
(NSSE).20 This determination is made after consultation with the Homeland Security Council.21
Other events may be categorized through the use of the Special Events Assessment Rating (SEAR)
process used by the Department of Homeland Security to determine other events that may require
federal support. With respect to NSSEs, the U.S. Secret Service is responsible for security design,
planning and implementation at NSSEs.22 Military assets provided in support of NSSEs may
include explosive ordnance disposal (EOD) teams, technical escort units (TEU),23 geospatial
intelligence support24, and Chemical/Biological Immediate Response Forces (C/BIRF).25
The designation of an NSSE by the Secretary, DHS, is based upon an analysis of several factors.
These factors include: The anticipated attendance of United States and foreign officials; the size of
the event; and, the significance of the event to include the event’s historical, political or symbolic
importance.26 Examples of such events receiving DoD support include the NATO 50th
17 DoDD 2000.15, supra note 8, para. 3.1.
18 Id.
19 U.S. Forces Command, Operational Briefing, International Monetary Fund and World Bank Group Spring Meeting
11-17 April 2000 (14 Apr. 2000) (classified FOUO).
20 HSPD-7, Critical Infrastructure Identification, Prioritization, and Protection at para. 26 (December 17, 2003).
21 Id.
22 U.S. Secret Service Statement Before the House Committee on the Judiciary, Subcommittee on Crime (24 June 1999)
(Brian L. Stafford, Director, U.S. Secret Service). See also United States Secret Service, National Special Security
23 TEU teams are capable of detecting, rendering safe, and transporting chemical and biological devices.
24 10 U.S.C. § 442, National Geospatial-Intelligence Agency, Missions.
25 For an excellent overview of the process from an interagency perspective, see Briefing, “National Special Security
Events,” prepared by USNORTHCOM and the FBI, Miami (4 March 2008) on file with CLAMO.
26 CRS Report, National Security Special Events, supra note 1, at 2.
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Anniversary Summit, the 1999 visit to the U.S. by Pope John Paul II, and the World Trade
Organization (WTO) meeting held in Seattle in 1999.27
Further, state operational plans may be triggered by such a designation. For example, prior to the
1999 WTO meeting in Seattle, the Washington National Guard conducted activities pursuant to the
Washington State Comprehensive Emergency Management Plan in support of the WTO.
2.
Requests for Support
a. Processing Requests for Support
There are a variety of special events, each with their own legal support authorities and policies.
Judge advocates must carefully analyze requests, approvals, and types of support when advising
commanders on these kinds of operations.
Requests for military support to sporting related special events are made by the federal, state, or
local agency responsible for providing law enforcement, security, or safety services for the event.28
Often, this means that local police or a FBI field office requests the military support. The Attorney
General must then certify that the specific categories of support are “necessary to meet essential
security and safety needs.”29 Once a request is certified, the support is coordinated through the
Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD(HD &
ASA)) and the Joint Director of Military Support (JDOMS). A 2003 Deputy Secretary of Defense
Memorandum transferred management and coordination of DoD support for these missions from
the Secretary of the Army to ASD(HD & ASA)30.
Further, upon the designation of an NSSE by the Secretary, DHS, security support for the event is
coordinated through a “unified command model” that includes representatives of all agencies at all
levels of government.31 Lessons learned from these events is collected by the U.S. Secret Service
and used to train federal, state and local law enforcement and public safety officials who respond to
NSSEs.32 DOD Support to NSSEs are authorized pursuant to DoDD 2000.15 and may include
support such as equipment, personnel, technical or managerial advice or guidance.33
b. Types of Support
In addition to security or safety based assistance that is most commonly requested, other types of
military support may also be authorized.34 Some of the other types of assistance that may be
27 Message, 180715Z Oct 99, Department of the Army, subject: World Trade Organization (WTO) Ministerial
Conference (18 Oct. 1999).
28 10 U.S.C. § 2554(a).
29 Id.
30 Memorandum, Deputy Secretary of Defense, subject: Implementation Guidance Regarding the Office of the Assistant
Secretary of Defense for Homeland Defense (25 Mar. 2003).
31 CRS Report, National Security Special Events, supra note 1, at 3.
32 Id.
33 DoDD 2000.14, Support to Special Events, at para. 3.1 to 3.2 (November 21, 2004). Although the focus of the
Directive is primarily sporting events, it also specifically includes “non-athletic special events” at paragraph 3.1.
34 10 U.S.C. § 2564(b).
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authorized include equipment, personnel, technical support, managerial advice or guidance.35 This
“logistically focused” assistance is provided only to the extent such assistance cannot be reasonably
provided by an outside source and such assistance does not adversely affect military preparedness.36
Security or safety related support has precedence over logistical assistance.37
c. Funding Support
Military support may be provided on a reimbursable or non-reimbursable basis. Logistical and
security support for international sporting competitions may be paid, in part, from the support for
international sporting competitions (SISC) defense account.38 Organizations requesting logistically
focused assistance for other types of special events must agree to reimburse DoD.39 Such assistance
must be reimbursed in accordance with applicable laws.40
Since FY2006, Congress has provided specific appropriations to fund support to NSSEs. Further, in
additional to general funding for NSSEs that began in FY2006, Congress has also designated funds
for specified NSSEs since 2004. These NSSEs receiving specific appropriations include the
Presidential Nominating Conventions for both parties in 2004 and 2008.
C. Innovative Readiness Training
Under certain circumstances, the “units and military personnel” can be used to assist eligible
organizations and activities in “addressing community and civic needs of the United States” to
include territories and possessions.41 These activities when authorized are to be performed as
“innovative readiness training” (IRT).42 Innovative Readiness Training (IRT) provides the military
the opportunity to satisfy valid unit training requirements or relate to the military skills of requested
individual military members.43 Further, IRT projects provide a direct and lasting benefit to our
communities. Secondary purposes includes building unit and individual morale, generating positive
public support for the military and its capabilities, and enhancing recruiting and retention efforts.
The IRT Program is the only avenue for commanders to conduct military training in the civilian
community while simultaneously providing support and services to civil authorities and other
eligible civilian organizations and activities.44 IRT is conducted by combat support units and
individuals off base and within communities throughout the U.S., its territories and possessions.
35 DoDD 2000.15, supra note 8, at para. 3.2.
36 10 U.S.C. § 2564 (b)(1) & (2).
37 DoDD 2000.15, supra note 8, para. 4.3.
38 Pub. L. 104-208, div. A, title V, § 5802, 110 Stat. 3009-522 (1996).
39 10 U.S.C. § 2564 (b)(3).
40 Id. at § 377; U.S. DEP’T OF DEFENSE, REG. 7000.14-R, VOL. 2, DEPT. OF DEFENSE FINANCIAL MANAGEMENT
REGULATION (June 2000).
41 U.S. DEP’T OF DEFENSE, DIR. 1100.20, SUPPORT AND SERVICES FOR ELIGIBLE ORGANIZATIONS AND ACTIVITIES
OUTSIDE THE DEPARTMENT OF DEFENSE (12 APR 2004) [hereinafter DoDD 1100.20], at para. 4.1.
42 Id.
43 Id. at paragraphs 4.4.2.1.1 to 4.4.2.1.2.
44 10 U.S.C. § 2012; implemented by DODD 1100.20, supra note 41; an excellent overview of this program and its
procedures is by Lieutenant Commander W. Kent Davis, Innovative Readiness Training Under 10 U.S.C. § 2012:
Understanding the Congressional Model for Civil-Military Projects, ARMY LAW., Jul. 2001, at 21.
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Although IRT missions simultaneously support the unit and the local community, the regulations
require that steps be taken to ensure that IRT activities do not impermissibly compete with local
commercial enterprises. This is accomplished by either a determination that there is no reasonably
available commercial alternative, or, by providing a certification from the requesting official that
“the commercial entity that would otherwise provide the services agrees to the provision of such
services by the Armed Forces.45
IRT projects include, but are not limited to, constructing rural roads, providing medical and dental
care to medically underserved communities, and small building and warehouse construction or re-
assembly. While Active components may conduct IRT programs, the National Guard and Reserve
elements primarily provide such support.
1.
Innovative Readiness Training Procedures
Military units may provide support and services to certain eligible organizations in the US, its
territories and possessions, and the Commonwealth of Puerto Rico.46 Such assistance must be
provided incidental to training or be otherwise authorized by law.47 Assistance is primarily
provided by combat service support units, combat support units, and personnel serving in the areas
of health-care services, general engineering and infrastructure support and assistance services.48
a. Requests for Assistance
Requests for assistance must come from a “responsible official” of an “eligible organization.”49 A
responsible official is “an individual authorized to represent the organization or activity regarding
the matter of assistance to be provided.”50 There are three categories of eligible organizations. Any
federal, regional, state or local government entity is an eligible organization.51 Eligible
organizations also include youth and charitable organizations as specified in 32 U.S.C. § 508.
Finally, an entity can be approved as an eligible organization by the Secretary of Defense on a case-
by-case basis.52
The request for IRT assistance must specify that the requested assistance is not reasonably available
from a commercial entity.53 In determining whether assistance from a commercial entity is
reasonably available, it is permissible to consider whether the requesting organization “would be
able, financially or otherwise, to address the specific civic or community need(s) without the
assistance of the Armed Forces.”54 If commercial assistance is reasonably available, the requesting
individual must certify the commercial entity agrees to the provision of such services by the
45 DoDD 1100.20, supra note 41, paragraph 4.4.1.2.
46 10 U.S.C. § 2012 (1998); DoDD 1100.20, supra note 41.
47 10 U.S.C. § 2012(a).
48 DoDD 1100.20, supra note 41, para. 4.2.
49 10 U.S.C. § 2012(c)(1).
50 DoDD 1100.20, supra note 41, para. 4.4.1.1.
51 10 U.S.C § 2012(e)(1).
52 Id. at § 2012(e)(3).
53 Id. at § 2012(c)(2).
54 DoDD 1100.20, supra note 41, para. 4.4.1.2.
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military.55 An outstanding resource for current materials to support an IRT request can be accessed
via the internet at http://ra.defense.gov/html/irt.html. This site maintains current forms and other
materials of interest to those seeking to process an IRT application.
b. IRT Program Assistance-Nature and Requirements
An organization may request Innovative Readiness Training assistance of a military unit or
individual members. However, the requested IRT assistance must meet three requirements. First, it
must be related to military training. In the case of a military unit, the requested assistance must
accomplish valid unit training requirements (there is an exception to this particular requirement
discussed below).56 Innovative Readiness Training projects must support a unit’s wartime METL.
In the case of assistance by an individual military member, the requested assistance must involve
tasks directly related to the individual’s military occupational specialty (MOS).57 Second, providing
the assistance cannot adversely affect the quality of training or otherwise interfere with a unit or its
members’ ability to perform military functions.58 Third, providing the assistance cannot result in a
significant increase in training costs.59
There is one exception to the requirement that requested IRT assistance must accomplish valid unit
training requirements. In cases where the assistance consists primarily of military manpower and
will not exceed 100 man-hours, the assistance need not accomplish unit training requirements.60 In
such cases, volunteers will meet manpower requests, and assistance other than manpower will be
extremely limited.61 Military vehicles may only be used, for instance, to provide transportation of
personnel to and from the work site.62 The use of military aircraft is prohibited in these instances.
The second and third requirements must still be met.
2. Legal Considerations for IRT Projects
a. Approval Authority for IRT Projects63
OASD/RA approval is required of all projects that involve additional funding from OASD/RA, and
all projects that require Office of the Secretary of Defense General Counsel’s review of eligibility.64
All IRT project requests received directly from requestors that lack military unit sponsors must also
be forwarded to OASD/RA.65 Major Commands (MACOMs) generally approve other IRT projects.
55 10 U.S.C. § 2012(c)(2); and DoDD 1100.20, supra note 41, para. 4.4.1.2.
56 Id. at § 2012(d)(1)(A)(i).
57 Id. at § 2012(d)(1)(A)(ii).
58 Id. at § 2012 (d)(1)(B).
59 Id. at § 2012 (d)(1)(C).
60 Id. at § 2012 (d)(2).
61 DoDD 1100.20, supra note 41, para. 4.4.2.1.3.
62 Id.
63 IRT Policy, supra note 2, Encl. 1, 2.
64 IRT projects requiring OSD (RA) approval include those which seek additional funding from OSD, seek to reallocate
IRT funds to another IRT project, or involve requesting entities that need to be assessed for eligibility on a case-by-case
basis.
65 IRT Policy, supra note 2, Encl. 1, 2.
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For projects that do not require additional funding or OSD review, the Office, Chief Army Reserve
and the Army National Guard are considered MACOMs. A general officer or equivalent approval
signature is required for all IRT requests.66 Additional requirements may exist if the proposed IRT
project crosses multiple fiscal years.67
b. Processing Requests for IRT Projects
(1) How the IRT Project Request Process Begins
A representative from an eligible organization approaches a commander or command representative
with a concept for a project. The project concept must address a need that is not otherwise being
meant. The commander evaluates the project to determine whether it is compatible with unit or
individual METL training requirements. If the project is compatible, the commander than must
determine the feasibility of using the project as a training exercise.
(2) Contents of IRT Project Requests
If the commander determines the proposed IRT project is feasible as a training exercise, the
commander works with the requestor to assemble the IRT project request. An IRT project request
must contain a cost analysis of the proposed project. The cost analysis includes total program costs
and identifies whether the costs are borne by military department accounts or defense-wide
accounts. The requesting commander must certify that the proposed project will not increase the
cost of the training above the amount the event would cost if it were conducted independent of an
IRT project. The IRT project request must contain a certification of non-competition. The
certification of non-competition states that the requested assistance is not reasonably available from
a commercial entity, or the existing commercial entities agree to the provision of such services by
the military. The IRT project request must also contain an environmental assessment. IRT Medical
project proposals have additional submission requirements.68
(3) IRT Project Requests-The Review Process
All IRT project requests must be reviewed for full compliance with applicable guidelines and law.
All IRT project requests must be reviewed and endorsed by the Staff Judge Advocate, U.S. Property
and Fiscal Officer or Federal Budget Officer, and Plans, Operations and Training officials.69
Depending on the nature of assistance requested, additional endorsements may be required from
medical, dental, or nursing officials. If applicable, the command may inform and request
endorsement from the State Adjutant General of the project state or intergovernmental agencies.70
c. Claims Arising From IRT Projects
Claims involving Active Duty, Reserve, or National Guard Soldiers that arise from IRT projects are
cognizable under the Federal Tort Claims Act (FTCA) despite the fact that a non-DoD or private
66 Id. at Encl. 1, 3.
67 Id.
68 Id.at Tab A, 3.
69 Id. at Encl. 1, 2.
70 Id. at Tab A, 4.
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entity derives a benefit from the project. IRT projects are conducted in a federally funded training
status under Title 10 or Title 32 status.71 Community assistance undertaken by National Guard
units that are not IRT projects is accomplished in a state active duty (SAD) status. Claims
generated incident to projects accomplished in SAD status are solely a state responsibility.
71 Id. at Tab A, 2.
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CHAPTER 8
MISCELLANEOUS DOMESTIC SUPPORT OPERATIONS
KEY REFERENCES:
•
10 U.S.C. § 422 - Use of Funds for Certain Incidental Purposes
•
10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside DoD
•
32 U.S.C. § 508 - Assistance for Certain Youth and Charitable Organizations
•
50 U.S.C. § 404e - National Mission of National Geospatial-Intelligence Agency
•
PDD-63 - Critical Infrastructure Protection
•
EO 12241 - National Contingency Plan (NCP)
•
EO 12333 - United States Intelligence Activities
•
EO 12580 - Superfund Implementation
•
EO 12656 - Assignment of Emergency Preparedness Responsibilities
•
EO 12657 - Federal Emergency Management Agency Assistance In Emergency Preparedness
Planning At Commercial Nuclear Power Plants
•
Director of Central Intelligence Directive (DCID)1/8 - Management of National Imagery,
Imagery Intelligence, Geospatial, 21 March 2001.
•
DoDD 3020.26 - Department of Defense Continuity Programs, 9 Jan 09
•
DoDD 3020.36 - Assignment of National Security Emergency Preparedness (NSEP)
Responsibilities to DoD Components, 2 Nov 88 (incorporating Change 1, 12 Mar 93)
•
DoDD 3025.13 - Employment of Department of Defense Resources in Support of the United
States Secret Service, 13 Sep 85
•
DoDD 3025.15 - Military Assistance to Civil Authorities, 18 Feb 97
•
DoDD 3150.8 - DoD Response to Radiological Accidents, 13 Jun 96
•
DoD 3150.8-M - Nuclear Weapon Accident Response Procedures (NARP), 22 Feb 05
•
DoDD 4500.9E - Transportation and Traffic Management, 11 Sep 07
•
DoDD 5030.50 - Employment of Department of Defense Resources in Support of the United
States Postal Service, 13 Apr 72
•
DoDD 5105.60 - National Imagery and Mapping Agency (now NGA)
•
DoDD 5230.16 - Nuclear Accident and Incident Public Affairs (PA) Guidance, 20 Dec 93
•
DoDD 6000.12 - Health Services Operations and Readiness, 29 Apr 96
•
National Military Strategy to Combat Weapons of Mass Destruction (CJCS) (13 Feb. 2006)
•
AR 95-1 - Flight Regulations (12 Nov. 2008)
•
AR 500-3 - U.S. Army Continuity of Operations Program Policy and Planning (18 Apr. 2008)
•
NGR 500-1/ANGI 10-8101, National Guard Domestic Operations (13 Jun. 2008)
•
Defense Threat Reduction Agency, Preliminary Report on Literature Search for Legal Weapons
of Mass Destruction Seminars (March 26, 2002)
A.
Introduction
Domestic support operations supplement the efforts and resources of State and local governments,
and include a variety of lesser-known types of support. While Field Manual 3-07, Stability
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