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by DHS, other federal agency response plans provide the primary federal response protocol.
Common interagency plans responders may encounter during such incidents include the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the National Emergency
Communications Plan (NECP). Agencies should note the NRF may modify their responsibilities in
the event of a major disaster or emergency.
a. The National Contingency Plan
The NCP82 was developed pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA) and the Federal Water Pollution Control Act or Clean Water
Act of (1972). It sets out procedures for preventing and responding to oil discharges into navigable
waters and releases of hazardous substances, pollutants, and contaminants into the environment.
The NCP provides that a predesignated on-scene coordinator (OSC) shall direct response efforts at
the scene of a discharge or release. Inland, the Environmental Protection Agency (EPA) is the lead
response agency and provides OSCs for responses. In coastal areas, the U.S. Coast Guard is the
lead response agency for coordinating the federal response. Executive Order 12580 authorizes the
establishment of the National Response Team (NRT) for planning and preparing for response
actions; designates the EPA and the Coast Guard as co-chairs; and designates responsibilities of
other agencies on the NRT and on Regional Response Teams.83 Generally, DoD or Department of
Energy (DOE) will provide the OSC and have the lead for responding to the release of hazardous
substances, pollutants, or contaminants when the incident is on or comes from a facility or vessel
under the control, custody, or jurisdiction of DoD or DOE, respectively.84 Whether or not the NRF
is activated, the OSCs apply NIMS and Incident Command principles during a response.
Although the EPA is the ESF #10 coordinator under the NRF, either the EPA or DHS/Coast Guard
will serve as the primary agency for ESF #10 response actions, depending on whether the incident is
in the inland or coastal zone (the role of primary agencies under the ESFs are discussed above).
The NCP is considered an operational supplement to the NRF. If the NRF or ESF #10 is activated
for an oil discharge or hazardous material release, the NCP will serve as the basis for actions taken
in support of the NRF.85
b. The National Emergency Communications Plan (NECP)
Congress directed the Department of Homeland Security’s (DHS) Office of Emergency
Communications (OEC) to develop the first National Emergency Communications Plan (NECP).
Title XVIII of the Homeland Security Act of 200286, as amended, calls for the NECP to be
82
40 C.F.R. § 300 (2012). The NCP is required by section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. 9605, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA), Pub.L. 99-499, and by section 311(d) of the Clean Water Act (CWA), 33 U.S.C.
1321(d), as amended by the Oil Pollution Act of 1990 (OPA 90), Pub.L. 101-380. See 40 C.F.R. § 300.2 (2012).
Executive Orders 12580 and 12777 delegated to the EPA responsibility to amend the NCP as necessary.
83 Exec. Order No. 12580, 52 F.R. 2923, (23 Jan. 1987).
84
40 C.F.R. § 300 (2012).
85 FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (May 2013),
available at FEMA.gov.
86 HSA, supra note 6.
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developed in coordination with stakeholders from all government levels and with members from the
private sector. DHS worked with stakeholders from Federal, State, local, and tribal agencies
to develop this strategic plan establishing a national vision for the future state of emergency
communications. The desired future state is that emergency responders can communicate “As
needed, on demand, and as authorized, at all levels of government, across all disciplines.87
Emergency Support Function 2 of the NRF supplements the NECP and sets out procedures for
coordinating the provision of temporary national security and emergency preparedness
telecommunications support in areas impacted by a major disaster or emergency.
c. Nuclear/Radiological Incidents
The Nuclear/Radiological Incident Annex (NRIA) of the NRF supersedes the Federal Radiological
Emergency Response Plan (FRERP) of 1996. The NRIA describes the policies, situations, concepts
of operations, and responsibilities of the federal departments and agencies governing the immediate
response and short-term recovery activities for incidents involving release of radioactive materials.
The incidents may result from inadvertent or deliberate acts. Pursuant to the incident annex
paradigm, when DHS exercises domestic incident management functions, it is supported by other
federal agencies that are either “coordinating” or “cooperating” agencies.88
“Coordinating agencies” provide the leadership, expertise, and authorities to implement critical and
specific nuclear/radiological aspects of the response, and facilitate nuclear/radiological aspects of
the response in accordance with those authorities and capabilities. The coordinating agencies are
those federal agencies that own, have custody of, authorize, regulate, or are otherwise assigned
responsibility for the nuclear/radioactive material, facility, or activity involved in the incident.
“Cooperating agencies” include other federal agencies that provide additional technical and
resource support specific to nuclear/radiological incidents to DHS and the coordinating agencies.89
When DHS is not exercising domestic incident management responsibilities, the coordinating
agency, as determined by their authorities, will be the responsible agency. DoD is the coordinating
agency for incidents involving nuclear facilities owned or operated by DoD, materials shipped by or
for DoD, nuclear weapons, and DoD satellites contain radioactive materials that impact within the
United States.90
d. NSPD-46 and HSPD 15
National Security Presidential Directive 46 (NSPD-46)/Homeland Security Presidential Directive
15 (HSPD-15)91 detail the policy of the United States for combating terrorism and reaffirm the lead
agencies for the management of various aspects of the counterterrorism effort. They recognize that
87 DHS, NATIONAL EMERGENCY COMMUNICATIONS PLAN, DHS (2008) ES-1, available at
88 FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Jun. 2008) 1,4,7, available at
89
Id. at 7.
90
Id. at 10.
91 NATIONAL SECURITY PRESIDENTIAL DIRECTIVE 46/HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 15, “U.S.
STRATEGY AND POLICY IN THE WAR ON TERROR” (classified), March 6, 2006.
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states have primary responsibility in responding to terrorist incidents, including actual events, and
the Federal Government provides assistance as required.
e. The Defense Against Weapons of Mass Destruction Act92
Title 50 of Chapter 40 of the U.S. Code concerns the U.S. Government’s response to the
proliferation of and use or threat to use nuclear, chemical, or biological WMD or related materials
and technologies.93 Title 50 U.S.C. § 2313 directs the Secretary of Defense to designate an official
within the DoD as Executive Agent to coordinate DoD assistance with federal, state, and local
entities when responding to incidents involving such materials. The Secretary of Defense has
appointed the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
(ASD(HD&ASA)) as Executive Agent. The Department of Energy (DOE) was directed to
designate an Executive Agent for its nuclear, chemical, and biological response, and the DoD and
DOE Executive Agents are responsible for coordinating assistance with federal, state, and local
officials when responding to threats involving nuclear, chemical, and biological weapons.94
B. The Stafford Act
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (The Stafford Act) provides
for assistance from the federal government to states in the event of emergencies or natural and other
disasters.95 The Stafford Act is the primary legal authority for federal emergency and disaster
assistance to state and local governments. Congress’ intent in passing the Stafford Act was to
provide for an “orderly and continuing means of assistance by the federal government to state and
local governments in carrying out their responsibilities to alleviate the suffering and damage which
result from such disasters.”96 The Stafford Act sought, among other things, to broaden the scope of
disaster relief programs, encourage the development of comprehensive disaster preparedness and
assistance plans, programs, and capabilities of state and local governments, and provide federal
assistance programs for both public and private losses sustained in disasters.
Through the Stafford Act, Congress delegated to the President emergency powers that may be
exercised in the event of a declared major disaster or emergency. Generally, Federal Stafford Act
assistance is given upon request from a state governor97 provided certain conditions are met;
primarily that the governor certifies that the state lacks the resources and capabilities to manage the
92 The Defense Against Weapons of Mass Destruction Act, Public Law: 104-201, 1996, codified at 50 U.S.C. §§ 2301-
2371 (2011).
93
10 U.S.C. § 12304 (2011) provides the federal authority for the mobilization of Reserve Components in response to
the use or threatened use of a weapon of mass destruction.
94
50 U.S.C. §§ 2301-2371 (2011).
95 The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., as amended by the
Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-295 (2007), and the Sandy Recovery
Improvement Act of 2013, Pub. L. No. 113-2 (2013) [hereinafter The Stafford Act].
96
42 U.S.C. § 5121 (2011).
97 An example where a request is not required is in the case of an emergency in an area where the Federal government
is determined to have primary responsibility, as discussed below. See 42 U.S.C. § 5191(a) (2011). Additionally, 42
U.S.C. § 5170a(5) states that in a major disaster, the President may provide accelerated Federal assistance in the
absence of a request where necessary to save lives, prevent human suffering, or mitigate severe damage as long as
prompt coordination with the state occurs. Use of this authority may impede the ability of the Federal government to
implement the cost-share process.
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consequences of an event without federal assistance. The Stafford Act lists the roles and
responsibilities of federal agencies and departments when providing both major disaster and
emergency assistance, and it outlines the types of assistance that affected state(s) may receive from
the federal government. (See Table 2-4 below). FEMA operates under the Stafford Act and is the
lead federal agency for Stafford Act responses, focusing its efforts on managing the consequences
of disasters and emergencies. FEMA’s actions under the Stafford Act are generally driven by
requests from state and local governments. Figure 2-1, below, provides an overview of the process
of providing federal support to states under the Stafford Act.
Figure 2-1.98
To coordinate the relief efforts of all federal agencies in both major disasters and emergencies, the
Stafford Act authorizes the President to appoint a Federal Coordinating Officer (FCO) immediately
after declaring a major disaster or emergency. The Stafford Act also requires the President to
request that a Governor seeking federal assistance designate a State Coordinating Officer (SCO) to
coordinate state and local disaster assistance efforts with those of the federal government.99 The
FCO may utilize relief organizations, such as state relief organizations and the American National
Red Cross (ANRC), in the distribution of emergency supplies, such as food and medicine, and in
98 Overview of Stafford Act Support to States, FEMA.GOV, http://www.fema.gov/pdf/emergency/nrf/nrf-stafford.pdf
(last visited Jul. 1, 2013).
99
42 U.S.C. § 5143 (2011).
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reconstruction or restoration of essential services such as housing. The FCO may coordinate all
relief efforts; however, states, localities, and relief organizations must agree with the courses of
action. The President is also authorized to form Emergency Support Teams (EST) of federal
personnel to be deployed to the area of the disaster or emergency.100 By delegation, the FCO may
activate ESTs composed of federal program and support personnel, to be deployed into an area
affected by a major disaster or emergency.101 The EST is the principal interagency group that
supports the FCO in coordinating the overall federal disaster assistance.
The Stafford Act applies in the event of a major disaster or emergency. It details the emergency functions of the
President, which are delegated as per Executive Order 12656 and other directives.
DEPARTMENTS & AGENCIES
ROLES AND RESPONSIBILITIES
Executive Office of the President
Major Disaster Assistance—upon request of a state governor. Provide
(President or as delegated)
specified essential services; coordinate disaster relief activities; direct
federal agency assistance to states and localities; take other action as
consistent with the Act and within delegated authority.
Emergency Assistance, upon request of a state governor or sua sponte:
Direct federal agencies to provide resources and technical and advisory
assistance; provide essential services; coordinate all disaster relief
assistance.
Federal Coordinating Officer
Major Disaster and Emergency Assistance: Establish field offices;
coordinate relief efforts; take other necessary actions within authority.
Emergency Support Teams
Assist the Federal Coordinating Officer in carrying out his or her
responsibilities in a major disaster or emergency.
State Governor(s)
Request declaration by the President that a major disaster or emergency
exists.
Federal Agencies
Provide, consistent with appropriate authorities and upon request from the
President: Personnel for the Emergency Support Teams; and, assistance in
meeting immediate threats to life and property resulting from a major
disaster or emergency.
FEMA
Prepare, sponsor, and direct federal response plans and programs for
emergency preparedness; provide hazard mitigation assistance in the form
of property acquisition & relocation assistance.
Department of Defense
Upon President’s direction, provide “emergency work” to protect life and
property prior to declaration of major disaster or emergency.
American National Red Cross
Major Disaster: As a condition of receiving assistance, comply with
and other relief organizations
regulations relating to non-discrimination and other regulations as deemed
necessary by the President for effective coordination of relief efforts.
Table 2-4. Stafford Act Roles and Responsibilities
1. Requests for Emergency or Major Disaster Declarations
Under the Stafford Act, the governor of an affected state may request the declaration of a major
disaster or emergency, and must demonstrate, as a prerequisite for receiving assistance, both that the
state’s response plans have been activated and that state and local capabilities are inadequate for an
effective response.102 The Stafford Act’s definitions of “emergency” and “major disaster” are
100
42 U.S.C. § 5144 (2011).
101
44 C.F.R. § 206.43 (2012). These teams may also be called emergency response teams.
102 The specific requirements for a request for an emergency declaration are set forth in 44 C.F.R. § 206.35 (2012). The
specific requirements for a request for a major disaster declaration are set forth in 44 C.F.R. § 206.36 (2012).
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referenced in many of the legal documents related to incident management and are used consistently
throughout this chapter.
a. Major Disasters
A “major disaster” is defined as follows:
[A]ny natural catastrophe (including any hurricane, tornado, storm, high water, wind
driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide,
mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or
explosion, in any part of the United States, which in the determination of the
President causes damage of sufficient severity and magnitude to warrant major
disaster assistance under this Act to supplement the efforts and available resources of
States, local governments, and disaster relief organizations in alleviating the damage,
loss, hardship, or suffering caused thereby.103
A major disaster encompasses fires, floods, and explosions, regardless of cause, when such acts
cause damage of sufficient severity to warrant federal disaster assistance, as determined by the
President. A WMD event involving fire or explosion, including the detonation of a high-yield
explosive, would likely meet this threshold. Following the letter of the law strictly, a chemical,
radiological, or biological WMD event in the United States would qualify as a major disaster only if
it results in a fire, flood, or explosion. A WMD event of catastrophic proportions could warrant
treatment as both a major disaster and an emergency.
Major disaster assistance is a more comprehensive grant of federal aid for long-term consequence
management. In a major disaster, the President has broad authority to assist states and localities.
To receive federal assistance, a governor must not only indicate to the President that the state does
not have the capacity or resources to mount an effective response, but he or she must also furnish
information on the measures that have been or will be taken at the state and local levels to mitigate
the effects of the disaster. In addition, the governor must certify that state and local government
obligations and expenditures will comply with all applicable cost-sharing requirements of the
Stafford Act.104
The President’s powers after the declaration of a major disaster include (but are not limited to) the
authority to provide the following assistance to states and localities: specified technical and
advisory assistance; temporary communications services; food; relocation assistance; legal services;
crisis counseling assistance and training; unemployment assistance; emergency public
transportation in the affected area; and fire management assistance on public or privately-owned
forest or grassland.105 In addition, the President is authorized to direct federal agencies to provide
equipment, supplies and facilities to state and local governments; distribute food and medicine to
victims; and perform work and services (such as search and rescue) necessary to save lives and
protect property.106
103
42 U.S.C. § 5122(2) (2011).
104
42 U.S.C. § 5170 (2011).
105
42 U.S.C. §§ 5171-5189 (2011).
106
42 U.S.C. § 5170b (2011).
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b. Emergencies
The Stafford Act defines “emergency” as follows:
[A]ny occasion or instance for which, in the determination of the President, [f]ederal
assistance is needed to supplement State and local efforts and capabilities to save
lives and to protect property and public health and safety, or to lessen or avert the
threat of a catastrophe in any part of the United States.107
An emergency is, more broadly, any situation in which federal assistance is required to save lives,
protect health and property, or mitigate or avert a catastrophe. Generally, the existence or threat of
each type of WMD-chemical, biological, radiological, nuclear, and high-yield explosive - likely
would be deemed an “emergency” if the event or threat overwhelms state and local authorities and
warrants the assistance of the federal government.
Emergency authority granted to the President is similar to that authorized for handling major
disasters, but it is not as extensive. Emergency assistance is more limited in scope and in time than
assistance under a major disaster declaration, and total assistance may not exceed $5 million for a
single emergency, unless the President determines there is a continuing and immediate risk to lives,
property, public health or safety, and necessary assistance will not otherwise be provided on a
timely basis.108
In any emergency, the President may direct any federal agency, with or without reimbursement, to
use the authorities and resources granted to it under federal law in support of state and local
emergency assistance efforts to save lives, protect property and public health and safety, and lessen
or avert the threat of a catastrophe.109 The President may coordinate all emergency relief assistance
and provide technical and advisory assistance to affected state and local governments for the:
performance of essential community services; issuance of hazard and risk warnings; broadcast of
public health and safety information; and management, control and reduction of immediate threats
to public safety. The President may also direct federal agencies to provide emergency assistance;
remove debris pursuant to 42 U.S.C. § 5173; provide temporary housing assistance in accordance
with 42 U.S.C. § 5174; and assist state and local governments in the distribution of food, medicine,
and other consumable supplies.110
The Stafford Act authorizes the President to declare an emergency, but not a major disaster, sua
sponte with respect to an emergency that “involves a subject area for which, under the Constitution
or laws of the United States, the United States exercises exclusive or preeminent responsibility and
authority.”111
107
42 U.S.C. § 5122(1) (2011).
108
42 U.S.C. § 5193 (2011).
109
42 U.S.C. § 5192 (2011).
110
42 U.S.C. § 5192(a) (2011).
111
42 U.S.C. § 5191(a) (2011).
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The Stafford Act also authorizes the President, upon request from the governor of an affected state,
to provide “emergency work” essential for the preservation of life and property, by DoD for a
maximum of ten days before the declaration of either an emergency or a major disaster.112
2. Liability under the Stafford Act
The Stafford Act specifically provides for immunity from liability for certain actions taken by
Federal agencies or employees of the Federal government pursuant to the Act. 42 U.S.C. § 5148 of
the Stafford Act provides:
The federal government shall not be liable for any claim based upon the exercise or
performance of or the failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the federal government in carrying
out the provisions of this chapter.113
3. Interplay Between the Stafford Act and National Preparedness System114
The following is a summary of how Stafford Act assistance typically occurs, with reference to
relevant National Preparedness System concepts.
As the DHS NOC monitors for potential major disasters or emergencies, it will receive advance
warning of an incident, at which time DHS may deploy representatives to state EOCs for situational
assessment. RRCCs and other coordinating structures discussed above may be activated.
Immediately after the incident, local emergency personnel assess the situation. They may seek
additional resources through mutual aid agreements or the state. State officials will mobilize State
resources and may use mutual aid processes such as the Emergency Management Assistance
Compact (EMAC) to augment their resources. The governor will activate the state emergency
operations plan, declare a state of emergency, and may request a state/DHS joint Preliminary
Damage Assessment (PDA). State and Federal officials conduct the PDA in coordination with
tribal/local officials as required and determine if the event warrants a request for a Presidential
declaration of a major disaster or emergency.
After a major disaster or emergency declaration, an RRCC coordinates initial activities until a JFO
is established. If regional resources are overwhelmed or if it appears that the event may result in
particularly significant consequences, DHS may deploy a national-level Incident Management
Assistance Team (IMAT). Depending on the scope and impact of the event, the NRCC carries out
initial activations and mission assignments and supports the RRCC. The governor appoints a State
Coordinating Officer (SCO) to oversee State response and recovery efforts. A Federal Coordinating
Officer (FCO), appointed by the President in a Stafford Act declaration, coordinates Federal
activities in support of the State.
112
42 U.S.C. § 5170b(c) (2011).
113
42 U.S.C. § 5148 (2011).
114 Example provided by Overview of Stafford Act Support to States, FEMA.GOV,
http://www.fema.gov/pdf/emergency/nrf/nrf-stafford.pdf (last visited Jul. 1, 2013).
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A JFO may be established locally to provide a central point for Federal, State, tribal, and local
executives to coordinate their support. The UCG leads the JFO. The UCG may need to meet
initially via conference calls to develop objectives and an initial action plan.
The UCG coordinates field operations from the JFO. In coordination with State, tribal, and/or local
agencies, ESFs are activated to assess the situation and identify response requirements. Federal
agencies provide resources under DHS/FEMA mission assignments or their own authorities.
As immediate response priorities are met, recovery activities begin. The Stafford Act Public
Assistance program provides disaster assistance to States, tribes, local governments, and certain
private nonprofit organizations. As the need for full-time interagency coordination at the JFO
decreases, the UCG plans for selective release of Federal resources and demobilization.
C. Immediate Response Authority
1. Federal Military Commanders
Federal military commanders, heads of DoD Components, and/or responsible DOD civilian officials
have “Immediate Response Authority” under DoDD 3025.18. In response to a request for
assistance from a civil authority, under imminently serious conditions and if time does not permit
approval from higher authority, DoD officials (most typically installation commanders) may
provide an immediate response by temporarily employing the resources under their control, subject
to any supplemental direction provided by higher headquarters, to save lives, prevent human
suffering, or mitigate great property damage within the United States.115
• However, Immediate Response Authority does not allow for actions that would subject
civilians to the use of military power that is regulatory, prescriptive, proscriptive, or
compulsory (for a detailed discussion, see the Chapters within on Military Support to
Civilian Law Enforcement and Civil Disturbance Operations).
• Separately, per DoDD 3025.18.4.G.1, any decision by an Immediate Response Authority to
temporarily deploy resources requires notification to the National Joint Operations and
Intelligence Center (NJOIC).
• Finally, commanders may not normally continue support under immediate response
authority beyond 72 hours. When using this authority DoD commanders shall reassess
whether there remains a continued need for a DoD response as soon as practicable, but no
later than 72 hours after the request for assistance was received.
As noted in Chapter 1, all such requests from civil authorities for assistance must be evaluated for:
• Cost - Who pays and the impact on DoD budget.
• Appropriateness - Whether it is in the interest of DoD to provide the requested support.
• Readiness - Impact on DoD’s ability to perform its primary mission.
• Risk - Safety of DoD forces.
115 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (Sep. 21, 2012) para. 4.g.
[hereinafter DoDD 3025.18].
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• Legality - Compliance with the law.
• Lethality - Potential use of lethal force by or against DoD forces.
2. State Governors
As the principle authority during state emergencies, governors may direct an immediate response
using National Guard personnel under state command and control (including personnel in a Title 32
status); however, National Guard personnel will not be placed in or extended in Title 32 status to
conduct State immediate response activities. Additionally, state leadership must coordinate with the
Chief of the National Guard Bureau to approve the continued use of personnel in a Title 32 status
responding in accordance with immediate response authority in excess of seventy-two hours.
D. Conclusion
The NPS and NIMS represent a significant shift from the pre-9/11 and pre-Hurricane Katrina
approach of the federal government to domestic incident management. Although the Stafford Act
remains the primary mechanism for federal support to state and local authorities, and state requests
for assistance still formally initiate the federal response, the manner in which the federal
government provides the assistance is changing. Consolidation, unification, anticipation, and
systemization are the unifying themes of these key changes. It is possible that DoD personnel or
assets could be among first responders to an emergency or disaster (e.g., an event in close proximity
to a DoD installation). In such a case, DoD personnel and assets might be employed pursuant to
immediate response authority per DoDD 3025.18 before a larger federal response is orchestrated
under the NRF. Figure 2-2 below illustrates the process by which local requests for assistance
would be handled following a Stafford Act declaration and under immediate response authority.
Judge advocates should be familiar with and prepared to advise on the various authorities under
which DoD may provide assistance to non-Federal entities.
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Figure 2-2.
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CHAPTER 3
STATUS AND RELATIONSHIPS BETWEEN COMPONENTS
RESPONDING TO DOMESTIC INCIDENTS
KEY REFERENCES:
• DoDD 1235.10 - Activation, Mobilization, and Demobilization of the Ready Reserve,
November 26, 2008, incorporating Change 1, September 21, 2011.
• DoDD 5125.01 - Assistant Secretary of Defense for Reserve Affairs, December 27, 2006,
incorporating Change 1, June 4, 2008.
• DoDI 6025.13 - Medical Quality Assurance (MQA) and Clinical Quality Management in the
Military Health System (MHS), February 17, 2011.
• DoDI 1215.13 - Reserve Component (RC) Member Participation Policy, May 11, 2009.
• DoDI 1215.06 - Uniform Reserve, Training and Retirement Category Administration, February
7, 2007, incorporating Change 2, December 25, 2008.
• DoDD 1200.17 - Managing the Reserve Components as an Operational Force, October 29,
2008.
A. Introduction
This chapter discusses various service components and the importance of their designated status to
the missions they perform. The Reserve Component (RC) in particular plays a significant role in
domestic support operations. The purpose of the RC is to provide trained and qualified persons
available for active duty in time of war, national emergency, or at other times that national security
may require.1 The RC has unique personnel/duty categories that are important to understand
because they not only determine what benefits (e.g. medical and retirement) and protections (e.g
Federal Tort Claims Act or similar liability regimes) RC members have, but they also determine the
different types of duties that are authorized in particular personnel categories. The Assistant
Secretary of Defense for Reserve Affairs (ASD(RA)) is responsible for overall supervision of all
RC affairs in DoD, and establishes the directives that provide guidance on RC activation,
mobilization, and training.2
Judge advocates practicing domestic operational law should also be familiar with the structure and
roles of U.S. Coast Guard, the National Guard in a non-federal status, and the Civil Air Patrol,
because these entities have unique roles in domestic operations and will often work jointly with
DoD during domestic civil support missions. For example, in addition to being a branch of the U.S.
Armed Forces, the Coast Guard is also a federal law enforcement agency and has the responsibility
to act as a lead agency for numerous domestic missions including environmental response, maritime
search and rescue, and maritime migrant interdiction.3 Also, while in a non-federal status, the Air
and Army National Guard have different authorities and capabilities in domestic missions. Finally,
the Civil Air Patrol, a nonprofit corporation, also serves as an auxiliary to the United States Air
1
10 U.S.C. § 10102 (2012).
2 U.S. DEP’T OF DEFENSE, DIR 5125.01, ASSISTANT SECRETARY OF DEFENSE FOR RESERVE AFFAIRS (27 Dec. 2006,
incorporating change 1, 4 Jun. 2008) [hereinafter DoDD 5125.01].
3 14 U.S.C. §§ 2, 3 (2011).
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Force.4 Understanding the roles of these entities ahead of time will assist judge advocates during
future joint operations.
B. Reserve Component
The RC consists of the Army National Guard of the United States, the Army Reserve, the Naval
Reserve, the Marine Corps Reserve, the Air National Guard of the United States, the Air Force
Reserve, and the Coast Guard Reserve.5 Members of the RC are a true reflection and extension of
civilian society. The defense of the United States has been based in large part on the contributions
of these citizens who prepare for active service during peacetime and enter active duty during times
of national emergency.
1.
U.S. Army Reserve (USAR)6
The USAR’s mission is to meet Department of the Army contingency operations and mobilization
requirements.7 The Army Reserve makes up 20% of the Army’s organized units, but provides half
of the Army’s combat support, and 25% of the Army’s mobilization base expansion capability.8
The Army Ready Reserve contained 294,267 members as of September, 2012.9
2.
U.S. Air Force Reserve (USAFR)10
The USAFR is composed of thirty-six wings that report to one of three Numbered Air Forces
(NAFs).11 With just over ten percent of the Air Force’s manpower, the USAFR performs more than
thirty percent of all Air Force missions.12 Like all of the other RCs, the role of the USAFR is to
4
10 U.S.C. § 9442 (2012).
5
10 U.S.C. § 10101 (2012).
6 U.S. DEPT’ OF ARMY, REG. 140-1, MISSION, ORGANIZATION, AND TRAINING (20 Jan. 2004) [hereinafter AR 140-1];
U.S. DEP’T OF ARMY, REG. 140-10, ASSIGNMENTS, ATTACHMENTS, DETAILS, AND TRANSFERS (15 Aug. 2005); U.S.
DEP’T OF ARMY, REG. 140-30, ACTIVE DUTY IN SUPPORT OF THE UNITED STATES ARMY RESERVE (USAR) AND ACTIVE
GUARD RESERVE (AGR) MANAGEMENT PROGRAM (1 Sept. 1994).
7 AR 140-1, supra note 6, para. 1-8.
8 The Army Reserve Mission, ARMY RESERVE, http://www.usar.army.mil/ourstory/Pages/default.aspx (last visited Aug.
21, 2013).
9 LAWRENCE KAPP & BARBARA SALAZAR TORREON, Reserve Component Personnel Issues: Questions and Answers,
CRS REP’T TO CONG. (July 12, 2013) [hereinafter “CRS REP’T”].
10 U.S. DEP’T OF AIR FORCE, INSTR. 36-2132, FULL-TIME SUPPORT (FTS) TO THE AIR FORCE RESERVE (23 Mar. 2012);
U.S. DEP’T OF AIR FORCE, INSTR. 36-2619, MILITARY PERSONNEL APPROPRIATION (MPA) MAN-DAY PROGRAM (22 Jul.
1994); U.S. DEP’T OF AIR FORCE, MANUAL, 36-8001 RESERVE PERSONNEL PARTICIPATION AND TRAINING PROCEDURES
(22 Jan. 2004).
11 Structure, U.S. AIR FORCE RESERVE, http://www.afreserve.com/?:Structure#Organization (last visited August 9,
2013).
12 The unit program of the USAFR is called the “Category A” program. Personnel perform a minimum of one weekend
of inactive duty training every month, referred to as a unit training assembly (UTA), and two weeks of active duty
(annual training) for pay and points each fiscal year. The “Category B” program is the individual mobilization
augmentee (IMA) program consisting of individual reservists assigned to major commands, field operating agencies,
joint organizations, direct reporting units and outside agencies. Although some commands allow training with other
units in the member’s local area, this decision is made on a case-by-case basis by the individual command. Inactive
duty training periods for pay and points, are usually performed during the week in increments of 4 IDTs per quarter. A
day is worth two IDT points. Members also perform a 12-14 day paid active duty training tour annually with one point
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provide trained and ready forces to support its parent service. Yet the USAFR also has several
unique missions. For example, the 731st Airlift Squadron, assigned to the 302nd Airlift Wing,
Peterson Air Force Base, Colorado, is trained in the use of modular airborne firefighting systems
that support local, state, and federal agencies during wildland fire response.13 Additionally, the
53rd Weather Reconnaissance Squadron at Keesler Air Force Base, Mississippi, performs hurricane
reconnaissance exercises over the Atlantic, Pacific, Caribbean, and Gulf of Mexico and is the only
DoD unit tasked to perform weather reconnaissance in support of the Department of Commerce.14
3. U.S. Naval Reserve (USNR)15
The Naval Reserve is composed of both commissioned units (self-contained, deployable assets with
both personnel and mission equipment) and augmentation units (non-hardware units that provide
trained manpower to active Navy units). Currently, reservists represent about 20% of the Navy’s
total force. The total ready reserve for the Navy included 108,718 personnel as of September
2012.16 USNR unique missions include operation of a Mine Countermeasure Ship, Mobile Inshore
Undersea Warfare Units, and Helicopter Warfare Support Squadrons.17
4. U.S. Marine Corps Reserve (USMCR)18
The Marine Corps Reserve is composed of one Marine division, one Marine air wing, one service
support group, and a Marine Corps Reserve support command. As of September 2013, the total
ready reserve number for the Marines was 108,718. Unique units in this reserve branch include
Civil Affairs Groups and Air-Naval Gunfire Liaison Companies.
5. U.S. Coast Guard Reserve (USCGR)19
The USCGR, like its active duty counterpart, is an agency within the Department of Homeland
Security. Under Title 14 and Title 10 of the United States Code, the Coast Guard is at all times an
armed force, as well as a law enforcement agency. As an armed force, the Coast Guard is required
to maintain a state of readiness to function as a specialized service in the Navy in time of war or
upon Presidential declaration. The Coast Guard, discussed more below, is a unique member of
awarded for each day. In the “Category E” program, personnel do not earn pay for their service, but they do earn
retirement points. Examples of this are service with the Civil Air Patrol Assistance Program and the Chaplain
reinforcement designees.
13 MAFFS Exclusive: Fighting Rocky Mountain Wildland Fires, 302ND AIRLIFT WING,
http://www.302aw.afrc.af.mil/news/maffs.asp (last visited Aug. 21, 2013).
14
53rd Weather Reconnaissance Squadron Hurricane Hunters, 403RD WING,
http://www.403wg.afrc.af.mil/library/factsheets/factsheet.asp?id=7483 (last visited Aug. 21, 2013).
15 U.S. DEP’T OF NAVY, CHIEF OF NAVAL OPS, INSTR. 1001.20C, STANDARDIZED POLICY AND PROCEDURE FOR ACTIVE
DUTY FOR SPECIAL WORKS (ADSW) (4 Mar. 2008).
16 CRS REP’T, supra note 9, at 5.
17 About the Reserve, NAVY RESERVE, http://www.navyreserve.com/about/mission.html (last visited Aug. 21, 2013).
18 U.S. MARINE CORPS, Order 1001.52J, ACTIVE RESERVE SUPPORT TO THE RESERVE COMPONENT (RC) (6 Jun 2011);
U.S. MARINE CORPS, ORDER 1001.59, ACTIVE DUTY FOR SPECIAL WORK IN SUPPORT OF THE TOTAL FORCE (22 Oct.
2001).
19 U.S. COAST GUARD, COMDTINST M1001.28A, RESERVE POLICY MANUAL, (18 May 2003).
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Joint Forces involved in civil support missions because of its mix of military, civil law enforcement,
and regulatory authorities that allow it to respond to a wide variety of threats at home and abroad.
Coast Guard reservists may be called in response to serious natural or man-made disasters,
accidents, or catastrophes such as hurricanes, earthquakes, tornadoes, or floods. The Secretary of
Homeland Security is authorized to order members of the Coast Guard Ready Reserve to active
duty without their consent in a domestic emergency.20 They may be used for not more than 60 days
in any four-month period and not more than 120 days in any two-year period to augment the
Regular Coast Guard. Coast Guard reservists perform unique missions as well. Among the most
important is the staffing of Guard Port Security Units (PSUs) - specialized deployable security units
that have served both domestically and abroad during times of war.21 Additionally, under 10 U.S.C.
§ 12302, the USCGR provided key support to Operation Iraqi Freedom and Operation Enduring
Freedom.22
6.
National Guard of the United States (NGUS)
a. Overview
The terms “Army National Guard of the United States” (ARNGUS) and “Air National Guard of the
United States” (ANGUS) refer to the guard as a reserve component of their respective service.23
The term “federal service,” is applied to National Guard members and units when ordered to active
duty in their reserve component status or called into federal service in their militia status under
various sections of Title 10 of the U.S. Code.24
The terms “Army National Guard”(ARNG) and “Air National Guard” (ANG) refer to the federally
recognized (and usually federally trained under Title 32, U.S. Code) organized militia of the various
states, in other words, Guardsmen in a “state status” pursuant to Article I, Section 8, Clause 16 of
the Constitution.25
Determining whether National Guard members are in the ARNGUS/ANGUS or the ARNG/ANG is
critical to defining their roles and responsibilities. Status is also the primary factor for determining
the applicability of law for such issues as benefits, protections, and liabilities. For instance, guard
members only become subject to the Uniform Code of Military Justice (UCMJ) when federalized;
while in a state status they are subject to their respective state codes of military justice.
Additionally, some laws, such as the Posse Comitatus Act (PCA) only apply to the National Guard
when they are in a Title 10 status. National Guard members are usually relieved from duty in the
20
14 U.S.C. § 712 (2011).
22 The Center for Naval Analyses (CNA), upon request of the U.S. Coast Guard Historian, compiled a summary of
Coast Guard operations in Operation Iraqi Freedom. See BASIL TRIPSAS, ET AL., COAST GUARD OPERATIONS DURING
OPERATION IRAQI FREEDOM (Center for Naval Analyses 2004), available at
http://www.uscg.mil/history/articles/oif_d0010862.pdf (last visited August 9, 2013).
23
10 U.S.C. §§ 101(c), 10101 (2012). Per 10 U.S.C. §§ 10105 and 10111, the ARNGUS and ANGUS specifically
consist of (1) federally recognized units and organizations of the ARNG/ANG, and (2) members of the ARNG/ANG
who are also members of the Army/Air Force Reserves.
24 See 10 U.S.C. Ch. 1211 (2012).
25 See 10 U.S.C. § 101 (2012); 32 U.S.C. §§ 301, 307 (2011).
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National Guard when on federal active duty as a member of the NGUS under 32 U.S.C. § 325.
However, per the National Defense Appropriations Act for Fiscal Year 2004, 32 U.S.C. § 325 was
amended to allow National Guard officers to retain command authority over state forces with the
approval of POTUS and the consent of the Governor (see the discussion on Dual Status
Commanders below, and in Chapter 2 infra).
Guard personnel in Title 10 and Title 32 (discussed under National Guard of the Several States
section below) status receive federal pay and are covered under the Federal Torts Claims Act.26
Title 10 personnel always receive federal military retirement credit for the performance of duty.
Similarly, Title 32 personnel also receive such credit, unless in an inactive duty training (IDT)
status. It is important to remember that the determination of whether the National Guard is in
federal or state service does not rest on the entity that funds the activity, but rather which entity has
command and control.
b. History
In 1903, the organized militia (i.e., the National Guard) was created.27 The National Defense Act of
1916 further strengthened the organization and training of the National Guard.28 Because members
of the National Guard had to be drafted as individuals for service in World War I, Congress in 1933
amended the National Defense Act of 1916 to establish the dual status of the National Guard by
creating the “two overlapping but distinct organizations,” i.e., the National Guard of the various
states and the National Guard of the United States.29 Although Guardsmen were relieved from their
militia status while on federal status, at the conclusion of that service, they reverted to their state
status. In other words, this statute created the dual enlistment requirement that we know today.30
c. Federal Missions
Like the other RCs, ARNGUS/ANGUS31 members and units augment the Armed Forces during
wars or other conflicts. To become an ARNGUS or ANGUS member, the Guardsman or unit must
also be “federally recognized.”32 To be federally recognized, the Guardsman or unit must meet
26 See 32 C.F.R. § 536.97 (2013).
27 Military Act of 1903 (also known as the “Dick Act”), 57 Pub. L. No. 33, 32 Stat. 775; see also Perpich v. Department
of Defense, 496 U.S. 334, 342 (1990).
28 National Defense Act of 1916, 64 Pub. L. 85; see also Perpich, 496 U.S. 334, 343-44.
29 National Guard Act of 1933, 73 Pub. L. 64, § 18: see also Perpich, 496 U.S. 334, 345-46.
30 This is a system that the Perpich Court recognized as a statutory creation, causing a member of the militia to be
relieved from state status for the “entire period of federal service.” Perpich, 496 U.S. 334, 345-346.
31 When ANG members enter Title 10 active duty, they are transferred from their ANG units and assigned to the Air
National Guard Readiness Center (ANGRC), either directly or to a detachment of the ANGRC created for the purpose
of deploying forces in support of an active duty mission. The ANGRC is a Field Operating Agency (FOA) of HQ
USAF that executes NGB policy for the ANG and ANGUS and exercises elements of command and control over
ANGUS units and members. It is a Title 10 organization with a 32 U.S.C. § 104 commander appointed on G-series
orders. The ANGRC commander, currently a brigadier general, also serves as the Deputy Director of the ANG
Directorate and is on Title 10 orders. See U.S. DEP’T OF AIR FORCE, INSTR. 10-402, MOBILIZATION PLANNING, para 2.2
(1 May 2012)) [hereinafter AFI 10-402]; NATIONAL GUARD BUREAU, MEMORANDUM 10-5/38-101, ORGANIZATIONS
AND FUNCTIONS OF THE NATIONAL GUARD BUREAU, ch. 4 (1 Jul. 2003).
32
10 U.S.C. §§ 10105, 10111, 10503(7), 12201, 12211, 12212 (2012); 32 U.S.C. § 105(b) (2011).
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prescribed federal standards.33 NG units or members may be ordered to federal active duty in one
of two ways. One way is to order NG members or units to active federal duty, with the consent of
the governor, as members of the ARNGUS34 or ANGUS reserve components.35 The other way is
pursuant to the power of Congress to call out the militia to enforce federal law, suppress
insurrections, or repel invasions; under this authority the NG is “called” to duty as part of the militia
of the United States.36 Congress has given the President the authority to call the NG to active duty
for these purposes.37
d. Other Title 10 Duty
In addition to duties performed when federalized under the aforementioned authorities, members of
the National Guard serve in a full-time Title 10 status in other ways. Members in this category
include: Members of the National Guard Bureau (NGB); U.S. Property and Fiscal Officers
(USPFO) in each state serving the National Guard;38 any other National Guard members serving a
tour of duty under Title 10 in support of NGB, Major Commands, or other “seats of government”
tours.
(1) National Guard Bureau (NGB)
The NGB is designated under Title 10 as a “joint activity” of DoD, serving as the NG channel of
communications between the Army and Air Force and the fifty-four states and territories.39 While
33 See NATIONAL GUARD BUREAU, REG. 10-1, ORGANIZATION AND FEDERAL RECOGNITION OF ARMY NATIONAL
GUARD UNITS (22 NOV. 2002); U.S. DEP’T OF AIR FORCE, INSTR. 38-101, AIR FORCE ORGANIZATION ( 16 Mar. 2011).
34 Air National Guard Readiness Center (ANGRC) exercises administrative control (ADCON) over all units and
members in Title 10 status (except those brought on active duty through full mobilization) because they are assigned to
ANGRC. ADCON includes: organization of forces; personnel management; control of resources and logistics; training,
readiness, and mobilization; and discipline. ADCON flows from the National Command Authorities through the
Secretary of the Air Force, Chief of Staff of the Air Force, Major Commands, and Numbered Air Forces to a unit. A
commander exercises ADCON over all assigned forces, but not over attached forces. For attached forces, ADCON
remains with the commander to whom they are assigned. For example, when forces are assigned to ANGRC but
temporarily attached to another unit, ADCON remains with ANGRC.34 ANGRC/makes forces available to a supported
active duty commander by attaching them to the gaining organization that will exercise operational control (OPCON)
over them. The Uniform Code of Military Justice (UCMJ) gives the Commander of Air Force Forces (COMAFFOR) or
any active duty commander within the chain of command the right to discipline any person serving in Title 10 status.
UCMJ authority is a function of command under federal law and the Manual for Courts-Martial. Command authority
for discipline includes UCMJ authority as an element of ADCON, which, for members of an ANGRC detachment, is
within the command authority of ANGRC. Discipline is also an element of specified ADCON, which is within the
command authority of the COMAFFOR. ADCON and specified ADCON do not confer UCMJ authority but identify
those commanders who may exercise UCMJ authority as a matter of Air Force doctrine and policy in recognition that
more than one commander may have UCMJ authority over a member in a given situation. Since disciplinary authority
is shared between the commanders holding ADCON and specified ADCON, it is frequently a matter of coordination
between the two concerning which one will take disciplinary action. See U.S. DEP’T OF AIR FORCE, INSTR. 51-202,
NONJUDICIAL PUNISHMENT, para 3.7 (7 Nov. 2003, incorporating through Change 3, 11 Aug. 2011), which requires the
USAF to coordinate with the parent reserve organization before imposing nonjudicial punishment.
35 U.S. CONST. art. 1, § 8, cl. 12; Perpich, 496 U.S. at 334; 10 U.S.C. §§ 12301-12304 (2012).
36 U.S. CONST. art. I, § 8, cl. 15; 10 U.S.C. §§ 331-333 (2012) (these statutes also include the use of the Armed Forces
of which the NGUS is part); 10 U.S.C. § 12406 (2012). Although these statutes are in Title 10 of the U.S. Code,
members “called up” under these provisions retain their militia status.
37
10 U.S.C. §§ 331-333 (2012).
38
32 U.S.C. § 708 (2011).
39
10 U.S.C. § 10501 (2012).
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the NGB serves as the coordination, administrative, policy, and logistical center for the ARNG and
the ANG, NGB does not command and control either the Army or Air National Guard. Pursuant to
its charter, NGB is responsible for, among other things, implementing Army and Air Force
guidance, prescribing and monitoring training discipline and requirements, and supervising and
administering the budgets of the ARNG and ANG.40
Through the 2012 National Defense Authorization Act, the Chief, NGB (CNGB), a four-star
general, became a member of the Joint Chiefs of Staff with responsibilities advising the President,
the National Security Council, Homeland Security Council, and the Secretary of Defense.41 As a
member of the Joint Chiefs, CNGB was also given the additional specific responsibility of
addressing matters involving non-Federalized National Guard forces in support of homeland
defense and civil support missions.42 CNGB also serves as the principal advisor on all NG matters
to the Secretaries of the Army and Air Force and to the Army and Air Force Chiefs of Staff.43
CNGB has executive agent responsibility for planning and coordinating the execution of NG
military support operations. The Director, ARNG, and the Director, ANG, are responsible to the
CNGB and assist in executing the functions of NGB as they relate to their respective branches. The
Chief Counsel’s office at NGB provides legal advice and assistance to the CNGB, the Directors of
the Army and Air National Guards, and to the full-time judge advocates at the state level. The
Chief Counsel’s office normally employs a joint staff of military and civilian attorneys in a wide
variety of disciplines, including administrative law, contract and fiscal law, international and
operational law, environmental law, legislation, labor law, and litigation.
(2) U.S. Property and Fiscal Officers (USPFO)
Each state and territory has a USPFO. As Title 10 officers assigned to the NGB, a USPFO is
detailed for duty to a state or territory and is accountable for all federal funds and property
provided to the NG of each state.44 The USPFO and his staff also perform functions relating to
supply, transportation, internal review, data processing, contracting, and financial support for the
state NG. 45 When required, the USPFO staff can support AC or other RC forces on a reimbursable
basis.
e. Other NG Authorities for Duty
Guardsmen perform Inactive Duty Training (IDT) and Annual Training (AT) in a Title 32 status.
They can also perform Active Duty for Operational Support (ADOS) in a Title 10 status to support
the ANG and ARNG at federal headquarters levels.46 As noted above, some “AGR” tours are also
40 DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) (21 May 2008).
41
10 U.S.C. § 151 (2012).
42 10 U.S.C. § 10502 (2012).
43 Id.
44 32 U.S.C. 708 (2011).
45 NATIONAL GUARD BUREAU REG. 130-6/AIR NATIONAL GUARD INSTRUCTION 36-2, UNITED STATES PROPERTY AND
FISCAL OFFICER APPOINTMENT, DUTIES, AND RESPONSIBILITIES (1 Jul. 2007).
46 See U.S. DEP’T OF ARMY, REG. 135-200, ACTIVE DUTY FOR MISSIONS, PROJECTS, AND TRAINING FOR RESERVE
COMPONENT SOLDIERS, ch. 6 (30 Jun. 1999).
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in a Title 10 status. They also perform ADOS in a Title 10 status to support Active Component
requirements; this duty is paid by Army and Air Force appropriations.47
C. Reserve Component Categories
There are three Reserve categories: Ready Reserve, Standby Reserve, and Retired Reserve. Each
member of the National Guard and Reserve is assigned within one of these categories. All members
of the Army National Guard and Air National Guard, including those in the Inactive National Guard
(ING), are in the Ready Reserve or Retired Reserve.48
1.
Ready Reserve
The Ready Reserve consists of three subgroups: the Selected Reserve, the Individual Ready
Reserve, and the Inactive National Guard. These are units and individuals subject to order to active
duty to augment the Active Forces during a time of war or national emergency.49 This chapter will
primarily address the Selected Reserve.
a. Selected Reserve
The Selected Reserve consists of Soldiers assigned to Reserve Component units, Individual
Mobilization Augmentation (IMA) Program, Drilling Individual Mobilization Augmentation
(DIMA) Program, and the Active Guard Reserve (AGR) Program. These individuals and units are
considered essential to wartime missions and have priority for training and equipment over other
RC categories.
(1) Drilling Unit Reservists
Sometimes called Troop Program Units (TPU), these units consist of soldiers assigned to Tables of
Organization and Equipment or Tables of Distribution and Allowances who normally perform at
least 48 inactive duty training (IDT) assemblies and not less than 15 days, exclusive of travel time,
of annual training (AT) each year. In the alternative, they may perform Active Duty for Training
(ADT) for no more than 30 days each year, unless otherwise specifically prescribed by the
Secretary of Defense.50
(2) Individual Mobilization Augmentees and Drilling Individual Mobilization
Augmentees
IMAs and DIMAs are RC members in a Selected Reserve status and not attached to an organized
Reserve unit. The IMA Program function is to provide qualified soldiers to fill pre-designated
47 See id. Note that ch. 2, sec. 521 of the FY 2001 National Defense Authorization Act, exempts reserve officers on the
reserve active-status list (RASL) serving on active duty for three years or less from placement on the active-duty list
(ADL). Previously, these soldiers were added to the ADL for promotion.
48 U.S. DEP’T OF DEFENSE, INST. 1215.06, UNIFORM RESERVE TRAINING AND RETIREMENT CATEGORIES, para. E5.1 (7
Feb. 2007, incorporating Change 2, 24 Dec. 2008) [hereinafter DoDI 1215.06].
49
Id. para. E.5.1.1. These individuals and units may be involuntarily ordered to active duty during war or national
emergency under the authority of 10 U.S.C. §§ 12301, 12302 (2012) and 14 U.S.C. § 712 (2011).
50 U.S. DEP’T OF DEFENSE, INST. 1215.13, RESERVE COMPONENT MEMBER PARTICIPATION POLICY, Encl. 2, para.
1.a.(2) (11 May 2009).
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mobilization required positions. IMAs are assigned to Active Component organizations or
Selective Service System positions that must be filled to support mobilization requirements,
contingency operations, operations other than war, or other specialized or technical requirements.
Drilling IMA positions are identified as critical elements for mobilization during a Presidential
Reserve Call-up (PRC) requiring an incumbent to maintain an even higher level of proficiency than
a regular IMA Soldier. Soldiers assigned to these positions are authorized to perform 48 paid IDT
periods per year. All IMAs must perform a minimum of 12 days of AT each year.51
(3) Active Guard and Reserve (AGR) Program
The AGR Program consists of Soldiers performing active duty or full-time National Guard duty
(FTNGD) for 180 days or more for the purpose of organizing, administering, recruiting, instructing,
or training the Reserves.
b. Individual Ready Reserve (IRR)
The IRR is a pool of pre-trained individuals who have already served in Active Component units or
in the Selected Reserve and have some part of their Military Service Obligation (MSO) remaining.
Some members volunteer to remain in the IRR beyond their MSO or contractual obligation and
participate in programs providing a variety of professional assignments and opportunities for
earning retirement points and military benefits.52 IRR members are subject to involuntary active
duty and fulfillment of mobilization requirements.
c. The Inactive National Guard (ING)
The ING consists of National Guard personnel in an inactive status in the Ready Reserve, not in the
Selected Reserve, attached to a specific National Guard unit. These individuals must muster once a
year with their unit, but they do not participate in training activities. They may not, however, train
for points or pay and are not eligible for promotion.53
2. Standby Reserve
The Standby Reserve consists of personnel who are maintaining their military affiliation without
being in the Ready Reserve, but have been designated key civilian employees, or have a temporary
hardship or disability. They are not required to perform training and are not part of units. The
Standby Reserve is a pool of trained individuals who may be mobilized as needed to fill manpower
needs in specific skills.54
51 DoDI 1215.06; supra note 48, para. E. 5.1.1.1.3. The Army National Guard and the Air National Guard do not have
IMA programs.
52
Id. para. E.5.1.1.2. The IRR also may include personnel participating in officer training programs, including
Merchant Marine Academy cadets, enlisted members awaiting IADT (except for those in the National Guard) who are
not authorized to perform IDT, and members of the Delayed Entry Program. Id.
53
Id. para. E.5.1.1.3. The Air National Guard does not have an inactive status.
54
Id. para. E.5.1.2. The Standby Reserve consists of the active status list and the inactive status list categories.
Members designated as key employees and personnel not having fulfilled their statutory military service obligation, or
temporarily assigned for hardship reasons intending to return to the Ready Reserve, are on the active status list. Those
members who are not required to remain in an active program, but who retain Reserve affiliation in a non-participating
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3.
Retired Reserve
This category consists of all Reserve personnel transferred to the Retired Reserve. These
individuals may voluntarily train with or without pay.55 All members retired for having completed
the requisite years of active duty service (Regular or Reserve), may be ordered to active duty when
required by the Secretary of the Military Department concerned.56
D. Reserve Component Training and Support
The Service Secretaries and the Commandant of the Coast Guard are required to ensure trained and
qualified RC units and individuals are available for AD throughout the entire spectrum of
requirements, including war or national emergency, contingency operations, military operations
other than war, operational support, humanitarian operations, and at such other times as the national
security may require.57 Each military department has its own regulations and instructions that
implement these training and support duties.58
1.
Training
All RC members receive training according to their assignment and required readiness levels. This
training may be conducted in Active Duty, Inactive Duty for Training, or Full-Time National Guard
status.
a. Active Duty
Active Duty for Training (ADT) consists of structured individual and unit training, including on-
the-job training, or educational courses to RC members. It includes Initial Active Duty training
(IADT),59 Annual Training (AT), and Other Training Duty (OTD). Initial ADT includes basic
military training and technical skill training required for all enlisted accessions. AT is the minimum
period of active duty training that RC members must perform each year to satisfy the training
requirements associated with their RC assignment. By DoD policy, members of the Selected
status and whose skill may be of future use to the Armed Force are on the inactive status list. These members cannot
participate in prescribed training and are not eligible for pay or promotion and do not accrue credit for years of service.
The Army National Guard and Air National Guard do not have a Standby Reserve.
55
Id. para. E.5.1.3. The Retired Reserve consists of the following retired categories: (1) Reserve members who have
completed the requisite qualifying years creditable for non-regular retired pay and are receiving retired pay (at, or after,
age 60); (2) those who have completed the requisite qualifying years creditable for non-regular retired pay and are not
yet 60 years of age, or are age 60 and have not applied for non-regular retirement pay; (3) those members retired for
physical disability; (4) members who have completed 20 years of service creditable for regular retired pay, or are 30
percent or more disabled and otherwise qualified; (5) Reserve members who have completed the requisite years of
active service and are receiving regular retired or retainer pay (regular enlisted personnel of the Navy and Marine Corps
with 20 to 30 years of active Military Service who are transferred to the Fleet Naval Reserve or the Fleet Marine Corps
Reserve on retirement, until they have completed 30 years of total active and retired or retainer service, are not included
in this category); and (6) Reserve members drawing retired pay for other than age, service requirements, or physical
disability.
56
10 U.S.C. § 688 (2012).
57 DoDI 1215.06, supra note 48, para. 5.2.2. Combatant commanders have oversight responsibility for the training and
readiness of assigned guard and reserve forces.
58
Id.
59
Id., para. 6.6.4.1.4.
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Reserve must perform AT. For all members of Selected Reserve units, except for those in the
National Guard, that training is not less than 14 days, and not less than 12 days for the Coast Guard
Reserve. IMAs and DIMAs must perform 12 days of AT each year and National Guard units must
perform full-time military training for at least 15 days each year. OTD is used to provide all other
structured training, including on-the-job training and attendance at schools. ADT is funded by the
RC, but may support active component operational requirements and missions.60
b. Inactive Duty for Training (IDT)
This training is used to provide structured individual and unit training, or educational courses to RC
members. It includes regularly scheduled training periods, additional training periods,61 and
equivalent training. It is funded by the Reserve Component.62
c. Full-time National Guard Duty (FTNGD)
The National Guard performs their federal training in a Title 32 status. Thus, while the various
terms used above also apply to the National Guard, there are variations. Full time National Guard
duty (FTNGD) is training or other duty (including support), other than inactive duty, performed by
a member of the National Guard in a member’s status as a member of the National Guard of a state,
territory under 32 U.S.C.A. §§ 316, 502, 503, 504, 505. It is considered active service pursuant to
10 U.S.C.A. § 101(d)(3), but it is not considered “active duty.” (For other reserve components,
some of the categories above are active duty.)
In 2006, as a result of the increasing use of the National Guard for domestic missions of national
importance, such as the response to Hurricane Katrina, Congress amended 32 U.S.C. § 502(f) to
expressly authorize the use of the National Guard for “Support of operations or missions undertaken
by the member’s unit at the request of the President or Secretary of Defense.”63
2. Support
RC members may be placed on Active Duty Other than for Training (ADOT), which includes the
categories of active duty for operational support (ADOS), Active Guard and Reserve (AGR) duty,
and involuntary AD. Support may also be provided during FTNGD, discussed above.64
60 DoDI 1215.06, supra note 48, para. 6.1.4.1.
61 Additional IDT periods are for the use of drilling Reservists who are not military technicians. They include
additional training periods (ATPs) for units, components of units, and individuals for accomplishing additional required
training; additional flying and flight training periods (AFTPs) for primary aircrew members for conducting aircrew
training and combat crew qualification training; and Readiness management periods (RMPs) to support the following
functions in preparing units for training: the ongoing day-to-day operation of the unit, accomplishing unit
administration, training preparation, support activities, and maintenance functions. Id., para. 6.1.2.
62
Id., para. 6.1.2.1. Paid IDT periods cannot be under 4 hours. No more than two IDT periods may be performed in
any calendar day. In addition, IDT for points only (without pay) cannot be less than 2 hours with a maximum of two
points authorized in any one calendar day. Further, one retirement point in any one calendar day can be granted for
attendance at a professional or trade convention, with a minimum of four hours.
63
32 U.S.C. § 502(f)(2) (2011).
64 DoDI 1215.06, supra note 48, para. 6.1.5.3.
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a. Active Duty for Operational Support (ADOS)
The purpose of ADOS is to temporarily provide the necessary skilled manpower assets to support
existing or emerging requirements. Accordingly, total cumulative ADOS (and FTNGD) time per
service member is limited to 1,095 days within the previous 1,460 days before that service member
is counted against active duty end strength.65 ADOS may be funded by the Active Component to
support AC functions (ADOS-AC) or funded by the RC to support RC functions (ADOS-RC).66
b. Active Guard/Reserve (AGR)
This duty is funded by the RC and performed by an RC member of the Army, Navy, Air Force,
Marine Corps, Coast Guard, or FTNGD performed by a member of the NG under an order to active
duty or FTNGD for a period of 180 days or more. Unless a statutory exception exists, the scope of
duty for AGRs is limited to organizing, administering, recruiting, instructing, or training the reserve
components.67
c. Involuntary Active Duty (IAD)
IAD is used in support of military operations when the President or the Congress determines that
RC forces are required to augment the Active Component (AC). IAD is funded by the AC.68
3.
Military Technicians (Dual Status) (MT)69
Military Technicians are civilian employees who are required to maintain military membership in a
RC and who perform administration and training for that RC or maintenance and repair of supplies
or equipment issued to that RC. Military and civilian positions must be compatible. Though the
NG also has technicians, they are administered differently as discussed below.
E. Mobilization/Activation of Reserve Component and Calling Up the Militia
For major regional conflicts and national emergencies, access to RC units and individuals through
an order to AD without their consent is assumed. For lesser regional conflicts, domestic
65
Id., para. 6.1.4.2.1.7. It is important to note the so called “1095 Rule” is not a restriction preventing members who are
on ADOS orders from remaining on active duty for more than three years in a four year period. As explained in DoDI
1215.06, the 1095 Rule is only a strength accounting and reporting requirement - not a limit that precludes the
performance of duty. Specifically, para 6.9.1 of DoDI 1215.06 states that, “Neither law nor DoD policy requires any
RC member to leave voluntary active duty under section 12301(d) (Operational Support Duty)…after 1,095 days.
However, consideration is to be given to documenting long-term tours as full-time requirement billets (AC, AGR, or
Civilian).”
66 For additional information on Army ADOS and FTNGD for Operational Support within the Army, as well as relevant
DoD-references, see ASSISTANT SECRETARY OF THE ARMY MEMORANDUM TO DEPUTY OF CHIEF OF STAFF G-1, POLICY
FOR MANAGEMENT OF RESERVE COMPONENT SOLDIERS ON ACTIVE DUTY FOR OPERATIONAL SUPPORT AND FULL-TIME
NATIONAL GUARD DUTY FOR OPERATIONAL SUPPORT, (21 Feb. 2008) available at:
21.pdf.
67
10 U.S.C. § 101(d)(6)(A) (2012). Other statutes include 10 U.S.C. §§ 10211, 10302, 12310, and 12402 (2012).
68 DoDI 1215.06, supra note 48, para. E.3.1.1.2.3; see also 10 U.S.C. §§ 12301, 12302, 12304 (2012), and 14 U.S.C. §
712 (2011).
69
10 U.S.C. § 10216 (2012).
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emergencies, and other missions, where capabilities of the RC could be required, maximum
consideration is given to accessing volunteer RC units and individuals before seeking authority to
order members of the RC to active duty without their consent.70
It is important to distinguish the ARNGUS and ANGUS from the Army National Guard (ARNG)
and Air National Guard (ANG). Unlike the ARNGUS and ANGUS, which are RC organizations
under the command and control of the President of the United States, the ANG and ARNG train for
their federal military missions according to the congressionally established disciplines under Title
32, United Stated Code, under state control as members of their respective states’ militia.
ARNG/ANG members also take oaths to obey their respective governors and abide by state law.
Although the terms “activation” and “mobilization” are sometimes used interchangeably to describe
the process that “federalizes” reservists, the terms have different meanings. Activation is an order
to active duty, for units and individuals, (other than for training) in the federal service pursuant to
statutory authority granted to the President, Congress, or the service secretaries.71 Reservists can be
“activated” involuntarily or voluntarily with their consent (Guardsmen also need the consent of their
respective governors). Mobilization is the process of bringing all national resources to a state of
readiness for war or national emergency; it includes activating the RC.72 Levels of mobilization
include selective mobilization, partial mobilization, full mobilization, and total mobilization.
Therefore it is more helpful to use the term “activate” when referring to placing a reservist on active
duty rather than using the more encompassing term “mobilize.” The statutes below provide
authority for activating reservists, calling the militia into federal service, and ordering reservists to
active duty voluntarily.73
1. Full Mobilization (10 U.S.C. A. § 12301(a))
A full mobilization occurs through the duration of a war or emergency (plus six months). This
section may only be invoked when there is a congressional declaration of national emergency or
war, or other authorization in law.
2. Partial Mobilization (10 U.S.C. A. § 12302(a))
A presidential declaration of national emergency or “when otherwise authorized by law” allows the
involuntary partial mobilization of up to 1,000,000 members of the Ready Reserve for up to two
years. Applies to units, and any member not assigned to a unit organized to serve as a unit.
70 U.S. DEP’T OF DEFENSE, DIR. 1235.10, ACTIVATION, MOBILIZATION, AND DEMOBILIZATION OF THE READY RESERVE,
para. 4.1. (26 Nov. 2008, Incorporating Change 1, 21 Sep. 2011) [hereinafter DoDD 1235.10].
71 See generally id.; JOINT CHIEFS OF STAFF, JOINT PUB. 4-05, JOINT MOBILIZATION PLANNING (22 Mar. 2010).
72 DoDD 1235.10, supra note 70.
73 Occasionally older cases, regulations, and instructions will reference former versions of these statutes and it is
helpful to know the previous citations: In Title 10 of the U.S. Code, § 672(a) is now codified at § 12301(a); § 672(b) is
now codified at § 12301(b); § 672(d) is now codified at § 12301(d); § 673 is now codified at § 12302; § 673(b) is now
codified at § 12304; and § 3500 and § 8500 are now codified at § 12406.
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3.
Presidential Reserve Call-up (PRC) (10 U.S.C. A. § 12304)
Involuntary activation of up to 200,000 members for up to 365 days (these troops are excluded from
active duty end strength calculations) by the President. Such service must be for other than training
and may not exceed 365 days. It authorizes ordering members of the RC to active duty without
their consent, without declaration of war or national emergency, for operations other than domestic
disasters except those involving a use or threatened use of a weapon of mass destruction or a
terrorist attack or threatened terrorist attack in the United States that results, or could result, in
significant loss of life or property.
4.
Invasions and Rebellions (10 U.S.C. A. § 12406)
If the United States or any U.S. state or territory is invaded, or when: invasion is threatened by a
foreign nation, there is a rebellion or danger of rebellion against the U.S. Government, or the
President is unable to execute U.S. laws without active forces, the President can call the National
Guard into federal service. Any orders for these purposes are to be issued through the governors of
the states or the D.C. commanding general.
5.
Insurrection Act (10 U.S.C. A. § 331-335)
a.
10 U.S.C. A. § 331
If there is an insurrection in a state, the President, at the request of the state’s legislature, or
governor if the legislature cannot be convened, may call militia of other states into federal service as
well as use the armed forces to suppress the insurrection.
b.
10 U.S.C. A. § 332
Whenever the President considers that unlawful obstructions, combinations, or assemblages or
rebellion against authority of United States makes it impracticable to enforce the law of the United
States in any state or territory by judicial proceedings, the President may call into federal service
such of the militia of any state and use such of the armed forces to enforce the laws or suppress the
rebellion.
(Such authority was exercised in Arkansas in 1957; Mississippi in 1962; and Alabama in
1963).
c.
10 U.S.C. A. § 333
The President can use the militia and/or the armed forces to suppress insurrection, domestic
violence, unlawful combination or conspiracy if: (a) it so hinders the execution of law of that State
and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it
opposes or obstructs the execution of laws or impedes the course of justice. In the event of the
deprivation of rights, the State is deemed to have denied its citizens equal protection of laws.
6.
15-Day Involuntary Federal Active Duty (10 U.S.C. A. § 12301(b))
The Service Secretaries may order “units and any member not assigned to a unit organized to serve
as a unit” to a period of duty not to exceed 15 days (with the consent of the governor or D.C.
commanding general for guardsmen).
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7. Voluntary Federal Active Duty (10 U.S.C. A. § 12301(d))
An individual can be ordered (by an authority designated by the Secretary concerned) to active duty
with the consent of the individual (and with the consent of the governor or DC commanding general
for guardsmen) for an unlimited period of time.
8. Medical Care (10 U.S.C. A. § 12301(h) and 12322)
Reservists may be ordered to AD for medical care, evaluation, or to complete a health care study.
9.
Reservists Recalled for Domestic Events (10 USC §12304a)
Section 515(a) of the 2012 National Defense Authorization Act included a provision that amended
Title 10 and allowed the SECDEF to order Army Reservists, Navy Reservists, Marine Corps
Reservists, or Air Force Reservists without their consent onto active duty for no more than 120 days
to respond to a major disaster or emergency under the Stafford Act.74
10. Active Duty for Preplanned Missions in Support of the Combatant Commands (10
U.S.C. 12304b)
The 2012 National Defense Authorization Act also added a provision permitting the Service
Secretaries to order members of the “Selected Reserve” (including National Guard) without their
consent onto active duty for no more than 365 days to “augment the active forces for a preplanned
mission in support of a combatant command.”
F. United States Coast Guard75
Per 14 U.S.C. § 1, 14 U.S.C. § 2 and 10 U.S.C. § 101(a)(4), the United States Coast Guard is
designated as both an armed force and a federal law enforcement agency. The Coast Guard is a
principal federal agency responsible for maritime safety, security, and stewardship. As such, the
Coast Guard protects vital economic and security interests of the United States, including the safety
and security of the maritime public, natural and economic resources, the global maritime
transportation system, and the integrity of U.S. maritime borders. The Coast Guard has eleven
statutory missions divided into two categories, homeland security and non-homeland security,
pursuant to section 888 of the Homeland Security Act of 2002, Pub. L. 107-296 (6 U.S.C. § 468).
The homeland security missions are: (1) port, waterways and coastal security; (2) drug interdiction;
(3) migrant interdiction; (4) defense readiness; and (5) other law enforcement.
74 The full text states:
“(a) Authority- When a Governor requests Federal assistance in responding to a major disaster or
emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5122)), the Secretary of Defense may, without the consent of
the member affected, order any unit, and any member not assigned to a unit organized to serve as a
unit, of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to active
duty for a continuous period of not more than 120 days to respond to the Governor's request.” 10
U.S.C. § 12304a (2012).
75 Additional details about the history, unique missions, capabilities, and authorities of the Coast Guard are available in
UNITED STATES COAST GUARD, COAST GUARD PUBLICATION 1 (1 May 2009).
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The non-homeland security missions include: (1) marine safety; (2) search and rescue; (3) aids to
navigation; (4) living marine resources; (5) marine environmental protection; and (6) ice operations.
Due to the multi-mission nature of the Coast Guard, a Coast Guardsmen performing a non-
homeland security function, such as a recreational boating safety inspection, could have to perform
a homeland security function, such as drug interdiction, during the same mission.
The Coast Guard operates as part of the Department of Homeland Security.76 Presently,
approximately 38,000 men and women serve on active duty in the Coast Guard. 77 Upon a
declaration of war, if Congress so directs in the declaration or when directed by the President, the
Coast Guard will operate as a service in the Navy. When operating as a service in the Navy, the
Coast Guard is subject to the orders of the Secretary of the Navy who may order changes in Coast
Guard operations to render them uniform with Navy operations.78 The Coast Guard operated as a
component of the Navy in World War I and World War II. Both the Coast Guard and Navy are
authorized to exchange resources and information at all times. The Coast Guard receives
equipment, armament, and training support from the Navy while providing the Navy vessels,
personnel, and equipment for Naval vessel security and other Navy operations.
Occasionally, some are confused about the Coast Guard’s authority to operate as an armed force.
Some observers have assumed that the Coast Guard must switch from a Title 14 status to a Title 10
status when acting as an armed force of the United States, similar to the National Guard change
from a state to a federal status depending on the mission. The Coast Guard is at all times both an
“armed force” and “law enforcement agency” under Title 10 and Title 14. Put another way, the
Coast Guard does not switch “hats” between a military service/armed force and a law enforcement
agency—it performs both functions simultaneously.
As discussed earlier in this chapter, the Coast Guard has a reserve component. Presently,
approximately 9,000 Coast Guardsmen comprise the total Coast Guard Ready Reserve.79
Finally, the Coast Guard Auxiliary is a civilian volunteer service, but one that is specifically
authorized to “assist the Coast Guard, as authorized by the Commandant, in performing any Coast
Guard function, power, duty, role, mission, or operation authorized by law.80 The Coast Guard
Auxiliary assists both the active duty and the reserve components of the Coast Guard in search and
rescue assistance missions, environmental protection, marine safety, boater safety education
programs, and patrolling/regulating regattas and marine events.81
76
6 U.S.C. § 468 (2012).
77 See Careers, U.S. COAST GUARD, http://www.uscg.mil/top/careers.asp (last visited August 9, 2013) [hereinafter CG
Stats].
78 See 14 U.S.C. § 3 (2011).
79 See CRS REP’T, supra note 9, at 5.
80 See 14 U.S.C. § 822 (2011).
81
It is important to note Coast Guard Auxiliary members do not have law enforcement authority. Thus, they may not
directly issue letters of warning, notices of violation, or other civil penalties, nor may they participate in law
enforcement boardings. Operators supervising Auxiliary must ensure any assistance given is in accordance with the
U.S. COAST GUARD, COMDTINST 16798.3 (series), AUXILIARY OPERATIONS POLICY MANUAL. Despite this
limitation, the Auxiliary can and do provide tremendous assistance to the Coast Guard active component. During a
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Unique to the Coast Guard as an armed force, the Coast Guard is authorized by 14 U.S.C. § 141 to
use its personnel and equipment to assist any federal or state agency, to include DoD, when the
Coast Guard assistance sought is of the type that the Coast Guard personnel or facilities are
especially qualified to provide.82 Thus, Coast Guard units can be attached to DoD without the
entire Coast Guard being fully absorbed into the Navy under 14 U.S.C. § 3. In addition, 14 U.S.C.
§ 141 allows the Coast Guard to accept the assistance of any federal agency in the performance of
any Coast Guard function. This unique assistance authority makes the Coast Guard a powerful
partner in domestic contingency operations.
Because the Coast Guard is at all times a federal law enforcement agency and an armed force of the
United States, the Coast Guard has legal authority to conduct both Maritime Homeland Security
Law Enforcement (MHS) and Maritime Homeland Defense (MHD),83 depending on the
circumstances. Coast Guard units conducting maritime homeland security operations could find
themselves in a maritime homeland defense situation in a matter of minutes. The ability to handle
evolving scenarios as a federal law enforcement agency or as an armed force offers tremendous
flexibility to the Coast Guard.
MHS is a federal law enforcement mission carried out by domestic law enforcement authorities,
including the Coast Guard.84 The mission is to protect the U.S. Maritime Domain and the U.S.
Marine Transportation System (MTS) and deny their use and exploitation by terrorists as a means
for attacks on U.S. territory, population, and critical infrastructure. As the lead federal agency for
MHS, the Coast Guard engages in maritime surveillance, reconnaissance, tracking, and interdiction
of threats to the security of the United States, and responds to the consequences of such threats.
Armed and uniformed Coast Guard law enforcement operations ashore are limited to activities at
waterfront facilities, public and commercial structures adjacent to the marine environment, and, to
the extent necessary to protect life and property, in transit ashore between such facilities or
structures.85
G. National Guard of the Several States
1. Overview
Militia are authorized by the code and/or constitution of each state or territory within the United
States. The definition of “militia” in the United States Code includes both the organized and the
unorganized militia; the National Guard, along with the Naval Militia, is considered the organized
domestic emergency or disaster, Auxiliary members may be particularly helpful in staffing an incident or unified
command post, as many of them are extensively trained in National Incident Management System (NIMS) procedures.
82
14 U.S.C. § 141 (2011). The Coast Guard may provide such assistance with or without the requirement of
reimbursement. See 14 U.S.C. § 141(a) (2011).
83
In the event of a threat or incident requiring the exercise of national self-defense, DoD, acting through U.S. Northern
Command (USNORTHCOM) and supported by other agencies, would take the lead in carrying out MHD operations,
which involves the protection of U.S. territory, domestic population, and critical infrastructure.
84 The Coast Guard is required to perform Maritime Homeland Security law enforcement duties in support of the Ports
and Waterways Safety Act, the Espionage Act of 1917, the Magnuson Act of 1950, 33 C.F.R. § 6, Homeland Security
Presidential Directive 5 (HSPD-5), the National Security Strategy of the United States of America, the National
Strategy for Homeland Security, and The Coast Guard Maritime Strategy for Homeland Security.
85 See 33 C.F.R. § 6 (2013).
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militia.86 In the Constitution, POTUS is the Commander in Chief of the militia only when it is
“called into actual service of the United States.”87 This section discusses the National Guard when
it is under the control of the governor or in “state status,” i.e., Title 32 status or State Active Duty
(SAD). In a state status, Guardsmen are subject to the military code of the respective state to which
they belong.88
Each of the states and territories has an Adjutant General (TAG) or equivalent (e.g., Commanding
General for District of Columbia), a state officer whose rank may or may not be federally
recognized.89 The Governor of the State or Territory or the TAG/ (depending on state law) is the
Commander in Chief of the state military unless it is federalized; at which time President of the
United Stated (POTUS) is the Commander in Chief of the state military personnel serving in Title
10 status.90 In the fifty states, District of Columbia, Virgin Islands, and Puerto Rico, there are 88
Air Force wings in the ANG and 8 divisions, 15 enhanced brigades, and 6 other major units in the
ARNG throughout the states.
Currently, each state has a joint headquarters (State JFHQs) to provide command and control to its
ANG and ARNG - this concept was approved by Chief, NGB in October 2003. The Joint HQs
replaced the State Area Commands (STARCs) and ANG Headquarters in each state and any other
joint headquarters existing in the states.
2.
Title 32 Status
When performing duty pursuant to Title 32, U.S. Code, a National Guard member is under the
command and control of the state but paid with federal funds. The majority of NG members are
traditional Guard personnel, sometimes referred to as “M-Day (Mobilization Day) Guardsmen”
because of the weekend drills of inactive duty training (IDT) and annual training (AT). Each year,
such NG Soldiers are required to perform 48 IDT drills and 15 days of AT.91 The operations of NG
units in Title 32 status are controlled by the individual states, and supplemented by funding from
federal sources pursuant to federal regulations.92 Federal recognition of NG units and associated
funding is conditioned upon the unit continuing to meet applicable federal standards.93 ARNG and
ANG Soldiers performing duty in Title 32 status have Federal Tort Claims Act (FTCA) coverage as
long as they are acting within the scope of their federal employment.
86
10 U.S.C. § 311 (2012).
87 U.S. CONST. art. II, § 2, cl. 1.
88 Pursuant to 32 U.S.C. § 327, the President or active duty commanders may convene state courts-martial. In 2003,
Congress ordered the preparation of a model state code of military justice.
89 The U.S. President is the Commander in Chief of the National Guard of the District of Columbia. See Exec. Order
No. 11485, 34 Fed, Reg. 15411, (3 Oct. 2001) and Title 39, District of Columbia Code.
90
32 U.S.C. §§ 314, 325 (2011).
91
32 U.S.C. § 502(a) (2011).
92
Illinois National Guard v. Federal Labor Relations Authority, 854 F.2d 1396, 1398 (D.C. Cir. 1988).
93
32 U.S.C. §§ 107-109 (2011). Note that any “duty,” other than that authorized by specific statutes, that is
performed in a Title 32 status should constitute some sort of training because of fiscal considerations. 31 U.S.C. §
1301. Additionally, note that DoDI 1215.06, supra note 48, para. 6, specifically permits training to confer an incidental
operational benefit.
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There are many instances of the National Guard performing operations (as opposed to training) in a
Title 32 status (e.g., post 9-11 airport security duty, Hurricane Katrina, Southwest Border
operations, counter-drug operations, and WMD-CST teams). The use of Title 32 duty for
operational missions must be based on statutory authority (for example, counter drug authority at 32
U.S.C. § 112) or upon the request of the President or SecDef (see 32 U.S.C. § 502(f)(2)(A)).
Ultimately, the performance of many Homeland Security (HLS) missions in a Title 32 status,
instead of a Title 10 status, may be preferable because the Posse Comitatus Act (PCA) does not
apply, National Guard troops can respond more rapidly because they are in the local area, National
Guard troops have more situational awareness in domestic areas than their active duty counterparts,
and Title 10 activations result in National Guard loss of control over a state manpower pool
depriving them of flexibility. Furthermore, HLS missions can enhance National Guard training
through “training by doing.” The benefits of allowing operations under Title 32 instead of Title 10
have continually been raised by studies. Moreover, various legislative proposals have been
advanced to modify Title 32 to improve this capability.94
Ordinarily, NG personnel in a Title 32 status should not provide defense support to civil authorities
(DSCA), such as disaster assistance, unless such missions receive funding and authority.
Accordingly, National Guard members are often in a State Active Duty (SAD) status (funded by the
state) performing those functions. If TAGs use NG members in a Title 32 status to perform
operational missions without appropriate authority or approval, the state may be required to
reimburse the federal government for the pay and allowances of these personnel.
3. State Active Duty
Only the National Guard has a status entitled State Active Duty (SAD); such duty is performed
pursuant to state constitutions and statutes.95 It has no relationship to USAR/USAFR or Active
Duty (AD). In a SAD status, NG personnel are controlled by their individual state, subject to the
command and control of the respective governor and Adjutant General. National Guard units
perform duties authorized by state law, such as responding to emergencies or natural disasters
(floods, hurricanes, fires), and are paid with state funds. Because National Guard units are subject
to state control unless “federalized,” they generally respond to local emergencies, such as civil
disturbances, before active forces. For these types of operations, the governor may proclaim an
emergency and order a unit or units to SAD. DoD funds are not obligated for any personnel or units
performing SAD; however, if the President declares a major disaster or an emergency after a
request by a governor under the Stafford Act, the state military department may be reimbursed
through FEMA for the SAD pay and allowances it has expended.96
94 For example, H.R. 2073/S. 215, called “Guaranteeing a United and Resolute Defense Act of 2003,” set forth a
mechanism that allows centralized federal funding and decentralized execution of National Guard homeland security
missions.
95 For example, Arizona Constitution, art. 5, sec. 3; A.R.S. § 26-101 (governor as commander-in-chief of state military
forces when not in federal service), A.R.S. § 26-121 (composition of militia); A.R.S. § 26-172 (mobilization of militia
for emergencies and when necessary to protect life and property).
96
42 U.S.C. § 5121 (2011).
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4.
ANG/ARNG Personnel Categories
On any given day in a particular state, members of the National Guard serve in a variety of
personnel categories such as technicians, AGRs, ADOS, FTNGD, and traditional guard members
performing IDT or AT.
a. AGRs
Every guard unit has AGRs performing full-time National Guard duty under 32 U.S.C. § 502(f). 10
U.S.C. A. § 101(d)(6)(a) defines “active Guard and Reserve duty” as “active duty” or “full-time
National Guard duty” for a period of 180 consecutive days or more for the purpose of “organizing,
administering, recruiting, instructing, or training the reserve components.”97 AGRs receive
essentially the same benefits and pay as their active duty counterparts of the same rank. Although
they are required to perform drills with their units, they do not receive additional pay to do so. They
can also be “activated” and placed into a Title 10 status under appropriate authorities.98
b. NG Federal Technicians (32 U.S.C. § 709)
Each Guard unit may employ persons as technicians who are unique to the NG.99 Technicians are
federal civilian employees under the exclusive control of a state official, the Adjutant General who
hires, fires, and supervises them. In terms of their civilian employment pursuant to 32 U.S.C. §
709, they are military technicians (“excepted service” civilian employees) as defined in 10 U.S.C. §
10216 during the normal workweek.100 They must also maintain membership in a state NG and
maintain federal recognition in the military grade associated with their technician position.101 Loss
of NG membership terminates the full-time technician position.102
In some states, NG technicians are members of collective bargaining agreements. Their civilian job
positions are tied to their military rank and they wear military uniforms to work. When they
perform drills and other training, they are in a Title 32 status just like traditional guard members.
These members are also subject to “activation” into a Title 10 status and can also be called to
perform “state active duty.”
In their civilian “excepted service” capacity, NG technicians are responsible for organizing,
administering, instructing, or training the NG and for the maintenance and repair of supplies issued
to the NG or the armed forces. They are covered under the Federal Tort Claims Act. In their
civilian capacity, their participation in domestic support operations is limited because any
97 See also U.S. DEP’T OF ARMY, REG. 135-18, THE ACTIVE GUARD RESERVE (AGR) PROGRAM (10 Dec. 2003);
NATIONAL GUARD BUREAU, REG. 600-5, THE ACTIVE GUARD/RESERVE PROGRAM, TITLE 32 FULL-TIME NATIONAL
GUARD DUTY (FTNGD) (30 Feb. 1990); and AIR FORCE NATIONAL GUARD, INSTR. 36-101, THE ACTIVE
GUARD/RESERVE PROGRAM (3 May 2002).
98 For a good discussion of FTNGD status, see United States ex rel. Karr v. Castle, 746 F. Supp. 1231, 1237 (Del.
1990).
99
32 U.S.C § 709 (2011).
100 See Lopez v. Louisiana National Guard, 733 F. Supp. 1059, 1065 (E.D. La. 1990).
101
10 U.S.C. § 101(c)(3), (5) (2012).
102 NATIONAL GUARD BUREAU, REG. 635-100, TERMINATION OF APPOINTMENT AND WITHDRAWAL OF FEDERAL
RECOGNITION, ch. 6 (8 Sep. 1978).
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participation must fall within the position description for the particular position the NG technician
holds. Otherwise, the NG technician may be placed in a leave status and placed on SAD orders.
NG technicians also have the responsibility to train and perform general military duties with their
unit and to be available to enter active federal service when their units are activated. In many cases,
state headquarters principal staff officers also serve as technicians. Because their technician and
NG roles are very similar, these staff officers play extremely important leadership roles in domestic
support operations in their non-technician status.103
c. Full Time National Guard Duty - Operational Support104
If funding is available, NG units can place National Guardsmen (whether traditional or federal
technicians) on FTNGD-OS orders (for as little as a day to as much as a year) to perform particular
functions necessary to support the NG. These orders should not be confused with the requirements
of Guardsmen to perform “training.” Most Guardsmen that participate in the counter-drug program
are on FTNGD-CD orders, which are a type of FTNGD-OS but given a separate moniker because it
is aligned against a specific statutory program (i.e. 32 U.S.C. § 112). These members are also
subject to “activation” into a Title 10 status and can also be called to perform SAD.
d. State Civilian Employees
In addition to military technicians, the state NG units employ civilians pursuant to “Master
Cooperative” agreements. These personnel are authorized to use vehicles, property, and equipment
provided to the ARNG by the federal government to accomplish their duties under the master
cooperative agreement. Many guard units employ state employees in security and in civil
engineering. These employees may or may not be members of the National Guard of that state; in
other words, membership in the National Guard is not a condition of their employment as it is
federal technicians discussed above. State employment should never be confused with SAD.
e.
“Traditional” Guard Members
The majority of Guardsmen at a unit are “traditional” members. In other words, they hold civilian
jobs in the community and are only in a military status when performing drills or other training or
military duty. These members are subject to “activation” into a Title 10 status and can also be
called to perform “state active duty.”
As noted above, each member of the National Guard can be placed into several different personnel
categories (without being in more than one at a time). These categories are important when
determining, among other things, benefits, discipline, and immunities.
103
32 U.S.C. § 709 (2011).
104 Similar to Full Time National Guard Duty previously described in Section D.1.c., above, but here specifically for
“operational support.”
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5.
Personnel with Unique HLS/HLD Missions
a. Weapons of Mass Destruction (WMD)/Civil Support Teams (CST)
Pursuant to 10 U.S.C. § 12310(c), these National Guard teams support emergency preparedness
programs to prepare for or to respond to any emergency involving the use of a weapon of mass
destruction. These DoD-certified teams are state controlled because they perform duty pursuant to
32 U.S.C. § 502(f), although their missions are congressionally mandated. The teams are trained to
support (they are not first responders) civil authorities at a Chemical, Biological, Radiological, or
Nuclear (CBRN) incident site by identifying the agents/substances, advising on responses, and
otherwise assisting with requests for state support. Currently there are 57 full-time teams: at least
one in every U.S. state, as well as Washington D.C., Puerto Rico, Guam, and the U.S. Virgin
Islands. By statute, the WMD/CST teams may not operate OCONUS. WMD-CSTs are discussed
in greater depth in Chapter 6, infra.
b. National Guard Enhanced Response Force Package (NG-CERFP)
The initial establishment of CERFPs placed at least one in each FEMA Region. There are currently
12 validated CERFPs. An additional five CERFPs have been authorized and funded by Congress, to
include full-time manning and equipment.105 NG-CERFPs use existing guard units and traditional
(M-day) Soldiers to provide governors or a combatant commander with the capabilities to locate
and extract victims from a contaminated area, provide patient and casualty decontamination, and
perform medical triage and treatment. These response forces provide support to civilian first
responders or military authorities within the first 6 to 72 hours after a CBRN event. These task
forces operate in SAD, Title 32 and Title 10 statuses. It is important for the judge advocate to know
the deployed status of these forces if required to provide them legal advice. CERFPs are also
discussed in greater depth in Chapter 6, infra.
6.
Miscellaneous Areas of Caution
a. Command and Control - Dual Status Commanders
Pursuant to the Constitution, the militia is under the exclusive command and control of the governor
unless and until “called into federal service” or otherwise federalized as a Reserve Component.
Thus, federal status military officers cannot normally exercise command and control over state
status National Guard members nor can state status National Guard members exercise command
and control over federal troops.106 Two different statutes however, allow, under strictly prescribed
circumstances, one officer to exercise command and control over both federal and state status
troops, although the authority is exercised in a mutually exclusive manner.107 The dual status
105 See The National Guard’s Role in Homeland Defense,
http://www.nationalguard.mil/features/HomelandDefense/cerfp/factsheet.html (last visited Aug. 21, 2013).
106 See also Perpich, 496 U.S. 334, 348 (1990).
107 Though not true military “command and control,” coordinating authority has been used by the USAF to allow a
federal status officer to control federal and state forces. The concept works because one commander tells his forces to
obey the orders of the other commander or risk discipline. The concept has been used while fighting wildfires and it has
recently been accepted as Air Force doctrine as a method of promoting “unity of effort between Active, federalized Air
National Guard, Reserve, civilian, contract and Auxiliary Air Force personnel operating under Title 10 U.S. Code, and
non-federalized Air National Guard forces operating under Title 32 U.S. Code or state active duty.” It must be noted
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command option provides unity of effort and facilitates the maintenance of a common operating
picture for both the federal and state military chains of command.
The first statue, 10 U.S.C. § 315, allows regular members of the Army and Air Force to be detailed
to duty with the National Guard and with the permission of the President and the consent of the
governor, to accept a state commission.108 Although it has also been argued that 32 U.S.C. § 104(d)
allows the President to detail Title 10 Guardsmen or Regular Air Force officers to command Title
32 troops if the President details them, this detailing would not give the officer the ability to enforce
his own orders unless he was also commissioned in that state’s national guard.109
The second statutory basis is 32 U.S.C. § 325 as amended by the FY04 National Defense
Authorization Act110 which allows a National Guard officer to serve in both a federal and state
status while serving on active duty in command of a National Guard unit if the President authorizes
such service in both duty statuses and the governor of his State or Territory or Puerto Rico, or the
commanding general of the District of Columbia National Guard, as the case may be, consents to
such service in both duty statuses.
A request to implement 32 U.S.C. § 325 could come from either DoD or the TAG of a particular
state. Required implementing documents would be the Presidential authorization and the
that others contend that coordinating authority cannot be used during operations but only for planning, referencing the
definition of coordinating authority in JOINT CHIEFS OF STAFF, JP 1- 02, DEP’T OF DEFENSE DICTIONARY OF MILITARY
AND ASSOCIATED TERMS (8 Nov. 2010). Many contend that a state status officer cannot use coordinating authority to
supervise federal troops because of federal supremacy.
108 A legal opinion of the OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE, OpJAGAF 1998/20, (19 Feb.
1998), notes that state law will determine if a Title 10 officer who accepts such a commission may be placed in
command of a non-federalized unit and notes that this would not be necessary for Title 10 Guardsmen in their own state.
It also states that active duty officers, or guard officers in a Title 10 status, placed in command of non-federalized Guard
units will be subject to “two simultaneous chains of command,” a “situation that is neither legally precluded nor
unusual.”
109
32 U.S.C. § 104(d) does not allow such an action if it would “displace” a “commanding officer of a unit organized
wholly with a state or territory.” OpJAGAF 1998/20, supra note 108, opines that there would not be a displacement if
the governor, or other state authority, of the affected state concurred with the detailing of the Regular Air Force officer.
110 Title 32 U.S.C. § 325 currently reads as follows (amendments are underlined):
32 U.S.C. § 325. Relief from National Guard duty when ordered to Active Duty
(a) Relief required.
(1) Except as provided in paragraph (2), each member of the Army National Guard of the United States or
the Air National Guard of the United States who is ordered to active duty is relieved from duty in the
National Guard of his State or Territory, or of Puerto Rico, or the District of Columbia, as the case may be,
from the effective date of his order to active duty until he is relieved from that duty.
(2) An officer of the Army National Guard of the United States or the Air National Guard of the United
States is not relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the
District of Columbia, under paragraph (1) while serving on active duty in command of a National Guard
unit if—
(A) the President authorizes such service in both duty statuses; and
(B) the Governor of his State or Territory or Puerto Rico, or the commanding general of the District of
Columbia National Guard, as the case may be, consents to such service in both duty statuses.
(b) Return to State status. So far as practicable, members, organizations, and units of the Army National
Guard of the United States or the Air National Guard of the United States ordered to active duty shall be
returned to their National Guard status upon relief from that duty.
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Gubernatorial consent to use 32 U.S.C. § 325, and a Memorandum of Understanding (MOU)
between the two mutually exclusive federal and state military commands outlining the
responsibilities and authority of the dual status commander.111 While the dual status commander
may receive orders from two chains of command, those chains of command must recognize and
respect that the dual status commander exercises all authority in a completely mutually exclusive
manner, i.e., either in a federal or state status but never in both statuses at the same time. In a state
status, this dual status commander takes orders from the governor through the Adjutant General of
the State and may issue orders to National Guard forces serving in a state status. As a federal
officer activated under Title 10, the dual status commander takes orders from the President or those
federal officers the President and Secretary of Defense have ordered to act on their behalf. The dual
status commander, acting pursuant to his/her federal authority may issue orders only to federal
forces.
A dual status commander is always a Title 10 officer covered by the Posse Comitatus Act, the
Federal Tort Claims Act, the Uniform Code of Military Justice and pay and entitlements. When
commanding Soldiers in a non-Federal status, he or she receives legal advice from a State legal
advisor. Conversely, when commanding Soldiers in a Federal status, he or she receives legal advice
from a Federal legal advisor.
This “dual status” commander concept under 32 U.S.C. § 325 has been used several times since
October 2003, first with the G8 Summit at Sea Island, GA, in June 2004; followed by the
Republican and Democratic National Conventions in the summer of 2004; Operation Winter Freeze
in Vermont during the winter of 2004-05; for the brigade and battalion commanders of the Ground
Base Missile Defense system in Colorado in Alaska, respectively, in 2006; the Republican and
Democratic National Conventions in the summer of 2008; the G20 Summit in Pittsburgh, PA, in
2009. Dual Status Commanders were also used for Hurricane Irene in 2011, the 2012 NATO
Summit in Chicago, IL, the Colorado wildfires in June 2012, the 2012 Republican and Democratic
National Conventions, Tropical Storm Isaac in August 2012 and for Hurricane Sandy in October
2012.
Section 515(c) (1) and (2) of the National Defense Authorization Act, for FY12 provided guidance
on when a dual status arrangement should be used. It states when the Armed Forces and the
National Guard are employed simultaneously in support of civil authorities in the United States,
appointment of a dual status commander should be the “usual and customary” command and control
arrangement, including for missions involving a major disaster or emergency as those terms are
defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. § 5122).112 Additionally, when a major disaster or emergency occurs in any area subject to
the laws of any State, Territory, or the District of Columbia, the Governor of the State affected
normally should be the principle civil authority supported by the primary Federal agency and its
111 Pre -coordinated Memorandums of Understanding between all States and the Department of Defense covering the
appointment and use of qualified and vetted National Guard Dual Status Commanders have been executed and are
available through the National Guard Bureau.
112 It is important to note that despite a Dual Status Commander being the “usual” arrangement in such situations, this
language “does not limit, in any way, the authorities of the President, the Secretary of Defense, or the Governor of any
State to direct, control, and prescribe command and control arrangements for forces under their command.” National
Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515(c), 125 Stat. 1395 (2011), 32
U.S.C. § 317, note.
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supporting Federal entities, and the Adjutant General of the State or his or her subordinate designee
normally should be the principal military authority, supported by the dual status commander when
acting in his or her State capacity.
On 14 April 2011, President Obama delegated his functions and authority under both Title 32
U.S.C. §§ 325 and 315 to the Secretary of Defense.
b. State law
State law provides the legal basis for the National Guard of each state and territorial entity.
Moreover, state law provides the authority to perform missions, the basis for pay and benefits, rules
for the use of force, liability and immunity rules, and military justice, just to name a few areas.
Duty performed in a Title 32 status must also comply with federal laws and policies. Personnel in a
Title 32 status also receive protections such as the Federal Tort Claims Act (FTCA) and other
federal benefits.113 Note that once a state has passed the Emergency Management Assistance
Compact (EMAC), discussed below, state law is modified in conformity with EMAC, so missions
conducted pursuant to EMAC guidance are “exempted” from any contradictory state law
provisions. Moreover, because Congress consented to EMAC, this compact is now federal law.114
Matters become more complicated when National Guard personnel cross state borders in a state
status. It is then important to remember to examine the law of both the “originating state” and
“receiving state.” For example, some state codes of military justice apply even when Guardsmen
are performing duty in another state.115 Moreover, state law may dictate if and when non-
federalized guard units may enter or leave a state for duty. For example, some states do not allow
armed guard units to enter their state without permission from the governor or legislature.116 Some
states have specific authority that allows their militias to leave the state to perform duty.117
Another very important issue to consider is that of professional licensing. Military health
professionals in a Title 10 status (physicians, dentists, clinical psychologists, nurses or others
providing direct patient care), properly licensed pursuant to 10 U.SC. § 1094, can practice in any
DoD facility, any civilian facility affiliated with DoD, or “any other location authorized by the
Secretary of Defense” to include practice in a state, D.C., or commonwealth, territory, or possession
of the United States regardless of where actually licensed.118 Arguably this also applies to
Guardsmen who are in a Title 32 status; however, Guardsmen in a Title 32 status must also be
acting within the scope of their employment to receive FTCA protections. Thus, an analysis of their
authority to accomplish assigned tasks or duty is necessary. For example, federal law and directives
allow Title 10 personnel to provide medical treatment to civilians (not otherwise entitled to military
113
28 U.S.C. § 2671 (2011). Title 32 Guardsmen are also provided limited administrative remedies under the National
Guard Claims Act, 32 U.S.C. § 715 (2011).
114 A congressionally sanctioned interstate compact is a federal law subject to federal construction. New York v. Hill,
528 U.S. 110, 111 (2000). Chapter 11, infra, contains a discussion on the impacts of the EMAC on rules for the Use of
Force for the National Guard.
115 See e.g., 44 OKL. ST. § 229.
116 See e.g., KY CONST. § 225; MON. CONST., art. II, § 33; IDAHO CODE § 46-110; KAN. STAT.ANN. § 48-203.
117 See e.g., CONN. GEN. STAT. § 27-16; MISS. CODE ANN. § 33-7-7; NY CLS MIL § 22.
118 DoDI 6025.13 MEDICAL QUALITY ASSURANCE (MQA) AND CLINICAL QUALITY MANAGEMENT IN THE MILITARY
HEALTH SYSTEM (MHS) (17 Feb. 2011).
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medical care) during emergency situations.119 The Stafford Act does not provide that same
authority to National Guardsmen in a state status. Moreover, if, as discussed earlier, National
Guard personnel cannot perform operations in a Title 32 status, it is possible that such “operational”
activities would not be within their scope of employment. Thus, it is unclear if Title 32 Guardsmen
would receive FTCA coverage if treating civilians not otherwise entitled to military medical care.
120
Although Article VI of EMAC states that parties agree to recognize the licenses, certificates, or
other permits issued by any other party to the compact for “professional, mechanical, or other
skills,” some opine that this section does not extend to the authority to practice medicine because
the medical credentialing process is not a license or permit.
c. The District of Columbia National Guard
In 1802, the Congress of the United States enacted legislation officially establishing the District of
Columbia (D.C.) Militia, which today is known as the D.C. National Guard (DCNG). The mission
of the DCNG is to protect life, property, and the interests of the District of Columbia during civil
emergencies; to provide ceremonial support on national occasions (e.g., state funerals,
inaugurations, and parades); and, when federalized, to serve as an integral component of the
Nation's military forces. The DCNG supports both the District and Federal governments.
In accordance with (IAW) D.C. Code Title 49 § 49-409 passed by Congress, the President of the
United States is at all times the Commander-in-Chief of the DCNG.121 Executive Order (E.O.)
11485 delegated presidential authority to command, supervise, administer, and control the DCNG to
the Secretary of Defense (SECDEF).122 By memorandum , the SECDEF further delegated this
authority, as it pertains to the D.C. Army National Guard (DCARNG) to the Secretary of the Army,
and as it pertains to the D.C. Air National Guard (DCANG) to the Secretary of the Air Force.123
Both Secretaries may, but have not, further delegated this authority to their respective Assistant
Secretary for Manpower and Reserve Affairs. As an exception to this delegation of authority,
whenever any part of the DCNG, be it the DCARNG or DCANG, is used to support civil
authorities, the Secretary of the Army commands and controls the DCNG.
In accordance with E.O. 11485 and D.C. Code Title 49 § 49-301, command of DCNG military
operations is exercised through the Commanding General of the DCNG rather than through an
Adjutant General as is the practice in all of the States and Territories. The Commanding General of
the DCNG is appointed by the President; an officer appointed to serve as the Commanding General
must be federally recognized by the Senate in a general officer grade to serve.
119 E.g., 42 U.S.C. § 5121 (2011) et seq.
120
Individual state laws might provide protections to those in a SAD status depending on the jurisdiction and
circumstances. Also note that, because SAD military members are not “federal employees” under the FTCA, FTCA is
not applicable to torts committed in this status. Rather, state laws relating to claims would apply.
121 D.C. Code Title 49 § 49-409 (2013).
122 Exec. Order No. 11485, 34 Fed, Reg. 15411, (3 Oct. 2001).
123 SECRETARY OF DEFENSE, MEMORANDUM, SUPERVISION AND CONTROL OF THE NATIONAL GUARD OF THE DISTRICT
OF COLUMBIA (10 Oct. 1969).
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In accordance with D.C. Code Title 49 § 49-304, an Adjutant General may also be assigned by the
President. The Adjutant General is subordinate to and subject to the orders of the Commanding
General.
The Mayor of the District of Columbia has no formal command authority over the DCNG. As a
matter of practice, whenever the Mayor desires civil support from the DCNG, he submits a request
to the Commanding General of the DCNG, who notifies the Secretary of the Army. Pursuant to
E.O. 11485, the law enforcement policies to be used by DCNG military forces when aiding the civil
authority of the District are established by consultation between the Department of Defense and the
Attorney General.
In his advice to the SECDEF and the Secretary of the Army regarding employment of the DCNG in
support of civil authority, the Attorney General routinely refers to D.C. Code Title 49 § 49-404, as
authority for the DCNG to aid civil authority in its status as a subset of the enrolled militia as
defined by the D.C. Code.
The DCNG performs all missions in either a Title 10 or Title 32 status. Title 49 of the D.C. Code
implements the District of Columbia Militia Act of 1889. It authorizes the Mayor to request the
President to order out the militia to aid the civil authorities in suppressing a public disturbance.
When the DCNG is mobilized under these circumstances it acts in a “militia status” on behalf of the
District. Although this Title 49 duty status is similar to State Active Duty (SAD) status, it has never
been used because the Congress, until recently, has never provided funds in the D.C. budget to pay
DCNG personnel serving in this status. Although the D.C. Act 16-389 (June 2, 2006), "Fiscal Year
2007 Budget Request Act" provided funds, the current D.C. Code is functionally obsolete in that it
does not provide a mechanism to pay DCNG personnel for duty, to reimburse expenses, or to
provide any coverage for injury, death, or disability while in a Title 49 duty status.
Historically, the DCNG has always provided civil support to the District in a Title 32 training
status. The Secretary of the Army has broad authority to determine what constitutes appropriate
“training” for credit and compensation under Title 32 U.S.C. § 502(d)(3). In his role of rendering
decisions on questions involving the use of, and accountability for, public funds, the Comptroller
General has previously opined that in view of the Secretary’s broad discretion in this regard, there
would be no objection should the Secretary consider a State’s use of the National Guard for disaster
relief as annual training under Title 32.124 The Comptroller General’s opinion suggests, however,
that the Secretary must first determine that the duty in question constitutes proper and adequate
training for the units involved, so that the execution of such duties in a Title 32 status and the
payment of participating guardsmen from Title 32 appropriated funds, is appropriate. The fact that
the DCNG’s performance of such a “training” mission produces a collateral “operational” benefit
does not, in itself, render the mission objectionable.
Whenever service in a Title 32 status in support of the District civil authority may involve the
exercise of law enforcement-like functions, the Secretary of the Army and the Attorney General
consent to the provision of such support is subject to the Mayor’s designation of members of the
DCNG as “special privates” pursuant to D.C. Code Title 5 § 5-129.03. This provision of the law
124 National Guard - Pay, Etc., Entitlement - Disaster Relief Duty by State, B-176491, 52 Comp. Gen. 35 (1972).
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allows the Mayor, upon “any emergency of riot, pestilence, invasion, insurrection, or during any
day of public election, ceremony, or celebration” to appoint from among the citizens “special
privates without pay;” who while so serving possess the powers and privileges, and perform the
duties of a District of Columbia Metropolitan Police Officer. When performing such duties, DCNG
personnel wear an emblem authorized by the Mayor, which is a special brassard. Title 32 orders
issued to DCNG personnel include authority to act under the provisions of Title 5 of the D.C. Code.
Although they have “special private” status, DCNG Guardsmen remain under the command and
control of their superior military officers at all times. The Commanding General of the DCNG and
the Chief of the District of Columbia Metropolitan Police Department coordinate their respective
command structures and personnel with a view towards maximizing unity of effort.
Although the chain-of-command of the DCNG, whether operating in a Title 10 or Title 32 status,
always runs through the Department of Defense to the President, the applicability of the
proscriptions of the PCA, 18 U.S.C. § 1385, depends on the status of each individual DCNG service
member and his chain-of-command within the DCNG. If the service member and his DCNG chain
of command are serving in a Title 10 status, they are considered part of the “Army or Air Force” for
PCA purposes and are subject to the PCA’s prohibition on participation in the execution of civil
laws. On the other hand, if the service member and his DCNG chain of command are in a Title 32
status, they are not considered part of the “Army or Air Force” and thus are not subject to PCA
restrictions. Whether in a Title 10 or Title 32 status, all members of the DCNG must comply with
all Department of Defense directives.
Pursuant to Title 10 U.S.C. § 12302, the DCNG has been federalized in support of operations such
as Operations Desert Storm, Desert Shield, Enduring Freedom, Iraqi Freedom, and Noble Eagle. In
addition, the Insurrection Act was employed to order the DCNG into active federal service to
complement federal troops deployed to quell the disorder associated with the rioting that ensued
after the death of Dr. Martin Luther King in April 1968.
d.
“Hip-Pocket” Activation
Pursuant to 10 U.S.C. § 12301, 1st Air Force (a numbered Air Force in Air Combat Command)
developed a process to instantaneously “federalize” Air National Guard (ANG) members who, upon
the occurrence of a specified event, are called upon to perform North American Aerospace Defense
Command (NORAD) missions. This process automatically converts consenting guard members
into a Title 10 status upon the occurrence of a “triggering” event known in 1st AF as an “air
sovereignty event.” On 11 June 2003, authority “to order into federal service . . . those members of
the Air National Guard who have volunteered to perform federal active service in furtherance of the
federal mission” was delegated to the Chief of Staff of the Air Force, who has the authority to re-
delegate this authority to a MAJCOM Commander who can also re-delegate his authority.125 This
“hip pocket” process is now used for other Air Force missions. This process has been examined as
a model for some ARNG missions, but at present is not applicable to any ARNG missions. Instead,
ARNG missions such as Ground-based Mid-course Defense (GMD) have used a paradigm where
Title 32 AGR members convert to Title 10 status upon arrival at the duty location for that day’s
duty and revert to Title 32 status when released from that duty by their commander.
125
10 U.S.C. § 12301(d); MEMORANDUM: SECRETARY OF AIR FORCE DELEGATION OF AIR NATIONAL GUARD RE-CALL
AUTHORITY, dated 11 June 2003; DoDD 1235.10, supra note 70.
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f.
Rules for the Use of Force (RUF)
State law will govern the rules for the use of force for National Guardsmen in a state status. Thus
state law must be followed when the rules for the use of force are drafted. In some states, National
Guard forces have the same authority as peace officers, meaning that certain National Guard forces
in their home state may follow RUF established for peace officers within the state. A more detailed
discussion of the RUF may be found in Chapters 10 and 11, infra.
H. Civil Air Patrol (CAP)
The Civil Air Patrol, a volunteer organization, is a federally chartered nonprofit corporation under
36 U.S.C. § 40301. It also functions as an auxiliary of the USAF in accordance with 10 U.S.C. §
9442.126 Although the CAP is not a military organization, as the USAF auxiliary it performs non
combat missions on behalf of DoD pursuant to statute and a Cooperative Agreement. The USAF
provides policy and oversight of the CAP in its auxiliary status and can also provide personnel,
logistical, and financial support and assistance. CAP missions are limited by internal and FAA
regulations as well as by those statutes that restrict activities of military organizations (e.g. PCA).
Missions accomplished by CAP in its auxiliary role normally include disaster relief, search and
rescue and counter-drug, although changes to statutes, doctrine and policy are contemplated to
better incorporate the CAP into the USNORTHCOM MACA force structure and thereby allow the
CAP to become more active in a broader range of homeland security missions.
The CAP is organized into eight geographical regions and performs three primary programs:
Emergency Services (assisting federal, state, and local agencies), aerospace education, and cadet
education. Although the USAF has overall responsibility for the CAP when it performs search and
rescue missions, the USA provides oversight for disaster relief missions.
Civil Air Patrol-United States Air Force (CAP-USAF) is located at Maxwell AFB in Montgomery,
Alabama; an Air Force JA provides legal support to the Commander of CAP-USAF.
126 See also U.S. DEP’T OF AIR FORCE, INSTR. 10-2701, ORGANIZATION AND FUNCTION OF THE CIVIL AIR PATROL (29
Jul. 2005, with Chg. 1, 29 Sep. 2006); U.S. DEP’T OF AIR FORCE, INSTR. 10-2702, BOARD OF GOVERNORS OF THE CIVIL
AIR PATROL (27 Feb. 2001), U.S. DEP’T OF AIR FORCE, PD 10-27, CIVIL AIR PATROL (27 Feb. 2001). CIVIL AIR
PATROL-UNITED STATES AIR FORCE, INSTRUCTION 10-2701, CIVIL AIR PATROL OPERATIONS AND TRAINING (3 Aug.
2007, Incorporating Interim Change 1, 13 Jun. 2008).
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CHAPTER 4
MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT
KEY REFERENCES:
•
10 U.S.C. §§ 371 - 382 - Military Support for Civilian Law Enforcement.
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
•
DoDI 3025.21 - Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.
•
DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012.
•
DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not
Affiliated with the Department of Defense, January 7, 1980.
• DoDD 5240.01 - DoD Intelligence Activities, August 27, 2007.
• AFI 10-801 - Defense Support of Civil Authorities (DSCA), September 19, 2012.
• SECNAVINST 5820.7C - Cooperation with Civilian Law Enforcement Officials, January 26,
2006.
A. Introduction
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 involving 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. As it is a large DoD mission, separate information
relating specifically to counterdrug support in this context is discussed in the Chapter 7, infra.
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:
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.
1 Posse Comitatus Act, 18 U.S.C. § 1385 (2011). 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 United States v. Hartley, 796 F.2d 112, 114, n.3 (5th Cir.
1986).
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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. Hayes won the electoral votes of
these hotly contested states, possibly as a result of President Grant’s actions.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. The PCA is a criminal statute and violators are
subject to fine and/or imprisonment.5 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.
10 U.S.C. Chapter 18 (§§ 331-334, 371-382 of Title 10 U.S.C.), 32 C.F.R. § 182, and DoDI
3025.21 (Defense Support of Civilian Law Enforcement Agencies),6 discussed below, provide
guidance regarding restrictions the PCA places on the military when supporting civilian law
enforcement agencies.7
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 PCA to limit its
application to these two services.8 10 U.S.C. § 375 directed the Secretary of Defense to promulgate
regulations that prohibit “direct participation by a member of the Army, Navy, Air Force, or Marine
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 Although there are harsh penalties for violators of the PCA, courts have not yet found reason to allow for the
exclusion of evidence seized during a PCA violation. Courts have not found PCA violations pervasive enough to
necessitate the application of this sanction. See U.S. v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979); U.S. v. Al-Talib, 55
F.3d 923, 930 (4th Cir 1995); U.S. v. Griley, 814 F.2d 967, 976 (4th Cir. 1987).
6 U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb.
2013) [hereinafter DoDI 3025.21].
7 U.S. DEP’T OF NAVY, SEC’Y 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, INSTR. 10-801, DEFENSE SUPPORT OF
CIVIL AUTHORITIES (DSCA) (19 Sept. 2012) [hereinafter AFI 10-801] implement DoDI 3025.21.
8 See 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).
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Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by
such member is otherwise authorized by law.”9 The Secretary of Defense promulgated DoDD
5525.5, DoD Cooperation with Civilian Law Enforcement Officials (Jan. 15, 1986) to comply with
this requirement. This directive, along with DoDD 3025.12, Military Assistance for Civil
Disturbances (MACDIS), has been superseded by DoDI 3025.21, Defense Support of Civilian Law
Enforcement Agencies (27 Feb. 2013),10 In accordance with DoDI 3025.21, the restrictions placed
on Army and Air Force activities through the PCA apply to the Navy and Marine Corps.11 The
PCA does not apply to the Coast Guard unless it is operating under the command and control of the
Department of Defense.12
The PCA also applies to Reserve13 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,14 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 may also perform duties in a State Active Duty (SAD) status and
are not subject to PCA in that capacity.15 Civilian employees of DoD are only subject to the
prohibitions of the PCA and DODI 3025.21 if they are under the direct command and control of a
military officer.16
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 if
assistance is rendered to civilian law enforcement officials under the direction or control of DoD
authorities.17
9 See 32 C.F.R. § 182.6 (2013); See also Hayes v. Hawes, 921 F.2d 100, 102-103 (10 U.S.C. § 375 makes the
proscriptions of 18 U.S.C. § 1385 applicable to the Navy). See also Yunis, 924 F.2d at 1094 (“Regulations issued under
10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act
”). 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 DoDI 3025.21, supra note 6, Encl. 3, para.3.
10 See DoDI 3025.21, supra note 6.
11 See DoDI 3025.21, supra note 6, Encl. 1, and SECNAVINST 5820.7C, supra note 7, para. 8(b).
12 See 14 U.S.C. §§2, 89 (2012) which describe the Coast Guard’s role as a domestic law enforcement agency. More
information on the specific authorities of the Coast Guard can be found infra in Chapter 3, Reserve Components, Civil
Air Patrol, U.S. Coast Guard - Status and Relationships.
13 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. 10 U.S.C. § 10142 (2012). 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. 10 U.S.C. §§ 10142-10144.
14 As per 32 U.S.C. § 502(f) (2011).
15 See infra Chapter 3, Reserve Components, Civil Air Patrol, U.S. Coast Guard - Status and Relationships for a
detailed discussion of National Guard and Reserve status.
16 DoDI 3025.21, supra note 6, Encl. 3, para. 2.
17
Id.
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2.
Where Does the PCA Apply?
a. What the Law Says
There is no definitive statement of the scope of the Posse Comitatus Act.18 Federal courts have
generally held that the PCA places no restrictions on the use of the armed forces to enforce the law
abroad.19 The courts, noting that Congress intended to preclude military involvement in domestic
law enforcement activities, have been unwilling to apply the PCA extraterritorially.20 In addition, 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
b. What Policy Says
Nevertheless, DoD implementing policy contained in DoDI 3025.21 states that the prohibitions on
direct civilian law enforcement assistance apply to all actions of DoD personnel worldwide.22
Therefore, PCA restrictions must be considered even when contemplating military assistance in law
enforcement overseas. In cases 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.23
3.
When 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. Under these statutes, regulation of military activity
is divided into three major categories: (1) use of information, (2) use of military equipment and
facilities, and (3) use of military personnel.
18 United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994)
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). Commentators agree. See
H.W.C. Furman, Restrictions Upon the Use of the Army Imposed by the Posse Comitatus Act, 7 MIL L. REV. 85, 107
(1960).
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, Extraterritorial Effect of
the Posse Comitatus Act (3 Nov. 1989). But see United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994). 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 evidence of limitations placed on the use of the armed forces abroad. While recognizing that several
courts held the PCA only applies within the territory of the United States, the Kahn court maintained that the law
contained evidence of PCA restrictions applying outside the United States. The court in Kahn ultimately held there was
no PCA violation because the Navy only provided indirect assistance to the Coast Guard during the operation leading to
the arrest of the defendant. Thus, Navy involvement in Coast Guard drug interdiction operations is an area for PCA
challenges. See United States v. Rasheed, 802 F.Supp. 312 (D. Hawai’i 1992) as another example of this type of
challenge. Although this is an area for potential challenge, Congress has explicitly authorized the Navy to assist in the
enforcement of the Maritime Drug Law Enforcement Act (46 U.S.C. Chapter 705) and these operations are conducted
frequently.
22 DoDI 3025.21, supra note 6, at 3.
23
Id. (note that only the Secretary of Defense or Deputy Secretary of Defense may grant such exceptions).
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DoDI 3025.21 contains several enclosures discussing areas of permissible DoD activity, including:
Participation in Law Enforcement (Enclosure 3), Support of Civil Disturbance Operations
(Enclosure 4), Domestic EOD Support for Law Enforcement (Enclosure 5), Domestic Terrorism
Incident Support, Use of Information Collected During Military Operations (Enclosure 7), and the
Use of DoD Equipment and Facilities (Enclosure 8).24 Figure 4.1 summarizes PCA restrictions in
10 U.S.C. §§ 371-375 and major areas of guidance from DoDI 3025.21:
Provision of
Use of DoD
Use of Military
Information to
Personnel
Equipment
Civilians
10 U.S.C. §§
and Facilities
10 U.S.C. §
373-375
by Civilians
371
10 U.S.C. §
372
Direct Assistance Prohibited
Unless Authorized by DoDI
3025.21
“Indirect” Expert
Other
Advice, Training, and
Permissible
Equipment Operation
Indirect
Permissible
& Maintenance
Assistance
Direct
DoDI 3025.21 Encl. 3
DoDI 3025.21
Assistance
para. 1.d., e., f.
Encl. 3, para.
DoDI 3025.21
1.g.
Encl. 3, para.
1b
Military or
Emergency
Civil
Other Express
Transfer of
Foreign
Authority*
Disturbance
Statutory or
Info to Law
Affairs
Statutes
Policy
Enforcement
Purpose
Authority
Examples: Execution of Quarantine, Assistance with Nuclear Materials Crimes,
Assistance with Crimes Against Congress, Protection of National Parks and
Certain Federal Lands, Actions Under the National Search and Rescue Plan
*See DoDD 3025.18 (U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL
AUTHORITIES (21 Sept. 2012) to distinguish Emergency Authority from Immediate Response
Authority.
Figure 4-1
In addition to the above categories, 10 U.S.C. §§ 376-377 provide further limitations on the
provision of military support to civilian law enforcement. 10 U.S.C. § 376 provides an overarching
24 DoDI 3025.21, supra note 6.
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restriction in the event “such support will adversely affect the military preparedness of the United
States.”25
10 U.S.C. § 377 requires civilian law enforcement agencies to reimburse DoD for support provided
as required by the Economy Act26 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.27 Waiver authority for reimbursement 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.28
For a brief overview of PCA scenarios and the applicability of the PCA to each scenario, see Figure
4-2 on the next page. Please note that Figure 4-2 is merely a beginning point in any potential legal
analysis of DoD support to civilian law enforcement.
25
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.
26
31 U.S.C. § 1535.
27
10 U.S.C. § 377 (2012).
28 See, e.g. SECNAVINST 5820.7C, supra note 7, para. 9; AFI 10-801, supra note 7, ch. 5.
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US ARMY & AIR FORCE, TITLE 10
APPLICABILITY OF THE PCA
Normal Status
PCA applies. Title 10 personnel in normal status
may not engage in direct law enforcement activities
to include: Interdiction of vehicles, vessels or
aircraft; search or seizure of civilian personnel and
effects; arrest or detention of civilians; or as
undercover investigators or to conduct surveillance
for law enforcement purposes.
In execution of a Military Purpose
The PCA does not apply. This is a narrowly
construed exception to the PCA that exempts
activity conducted to further a military interest.
Detailed to another federal agency subject to
PCA does not apply as these personnel are not
receiving agencies control (for example: Special
considered part of the Army or Air Force for PCA
Assistant United States Attorney; Special Deputy
purposes.
U.S. Marshal)
Protection of federal property
Constitutional exception to the PCA.29
Response pursuant to the Insurrection Act
Statutory exception to PCA.
Support to other Federal, state and local entities
The PCA prohibits engaging in direct law
that are engaged in direct law enforcement
enforcement activities. Subject to DoD regulations
activities
and approvals, technical, and logistical assistance
may be rendered.
Response to a CBRN attack or threat
Subject to Presidential directives, DoD regulations
and approvals, constitutional, or statutory
exceptions to the PCA exist.
Transfer of information regarding potential
PCA does not apply, but the dissemination of
criminal activity obtained during military
information must be conducted in accordance with
operations.
applicable regulations.
Off-duty Title 10 personnel
PCA does not apply unless acting under the
direction of DoD authorities.
Homeland Defense Operations
PCA does not apply to Homeland Defense
operations.
NATIONAL GUARD
APPLICABILITY OF THE PCA
State Active Duty (SAD)
The PCA does not apply.
Title 32 Status
The PCA does not apply.
Federalized National Guard in Title 10 Status
PCA Applies, see Title 10.
OTHER UNIFORMED SERVICES
APPLICABILITY OF THE PCA
United States Navy
PCA does not apply by statute, but by regulation.
United States Marine Corps
PCA does not apply by statute, but by regulation
United States Coast Guard
PCA does not apply, unless USCG under DoD
United States Public Health Service
PCA does not apply.
National Oceanic & Atmospheric Administration
PCA does not apply.
Figure 4-2
29 See 32 C.F.R. § 215.4 (2013) for backg0round on this Constitutional exception.
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4.
Statutory Categories of PCA Application and Policy Implementation
a. Use of DoD Information Collected During Military Operations
10 U.S.C. § 371 regulates the use of information collected during military operations. For DoD, the
requirements of 10 U.S.C. § 371 are implemented by the Secretary of Defense in Enclosure 7 of
DoDI 3025.21. 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 within the jurisdiction of these
officials. Under 10 U.S.C. § 371(b), the Secretary of Defense is required, to the maximum extent
possible, take into account the needs of civilian law enforcement officials for information when
planning and executing military training and operations. Lastly, 10 U.S.C. § 371(c) 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.30
Enclosure 7 of DoDI 3025.21 implements 10 U.S.C. § 371 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 violation of the law. Information may not be transferred if its acquisition violated
applicable law protecting privacy or constitutional rights, or if it would have been illegal for the
civilian agency to obtain the information or use the procedures employed by DoD to obtain the
information.31 While the Secretary of Defense shall take into account the needs of civilian law
enforcement officials to obtain intelligence when planning and executing military training and
operations in accordance with 10 U.S.C. § 371, the planning or creation of missions or training for
the primary purpose of aiding civilian law enforcement official intelligence-gathering efforts is
prohibited.32 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.33 Additionally, the handling of all such information must comply with
DoDD 5240.01, DoD Intelligence Activities;34 DoDD 5200.27, Acquisition of Information
Concerning Persons and Organizations not Affiliated with the Department of Defense;35 DoD
5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that Affect United
States Persons,36 and DoDD 5400.11-R, Department of Defense Privacy Program37 (for additional
30
10 U.S.C. § 371 (2012).
31 See DODI 3025.21, supra note 6, Encl. 3, para. 1.g.(2).
32 See id., Encl. 7, para. 1.e. Training or missions for the purpose of routinely collecting information about U.S.
citizens is prohibited as well. Id.
33 See U.S. DEP’T OF DEFENSE, REG. 4515.13-R, AIR TRANSPORTATION ELIGIBILITY (1 Nov. 1994) for guidance on this
type of assistance. Flights related to counter-drug operations are allowed and are covered by this regulation. See infra
Chapter 7, Counterdrug Operations.
34 U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].
35 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).
36 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]. (As of July 2013
DoDD 5240.1-R is undergoing revision; consequently, practitioners citing this reference should first ensure DoDD
5240.1-R is still in effect.).
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information concerning the use of DoD information collected during domestic operations, see
Intelligence Oversight and Information Handling During Domestic Support Operations, Chapter 9
infra).
b. Use of DoD Military Equipment and Facilities
10 U.S.C. § 372 and Enclosure 8 of DoDI 3025.21 address the use of military equipment and
facilities by civilian law enforcement authorities (not to be confused with the separate provisions
under Enclosure 3 regarding the use of DOD personnel to operate or maintain equipment discussed
below). 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 8 of DoDI 3025.21 implements this statute 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
military preparedness.38
Approval authority under DoDI 3025.21 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
• Requests for equipment or facilities outside the U.S. (other than arms, ammunition, combat
vehicles, vessels and aircraft) shall be in accordance with procedures established by the
applicable DoD component
• Requests from other Federal agencies to purchase equipment may be submitted directly to the
DoD component at issue
• Requests for training, expert advice, and personnel to operate and maintain equipment shall be
made in accordance with Enclosure 3 of DoDI 3025.21
• For loans pursuant to Reference 31 U.S.C. § 1535 (the Economy Act) or 31 U.S.C. §§ 6501
6508 (the Intergovernmental Cooperation Act), which are limited to agencies of the Federal
Government, and for leases pursuant to 10 U.S.C. § 2667, which may be made to entities
outside the Federal Government, this guidance applies:
¾ Requests for arms, ammunition, combat vehicles, vessels, and aircraft shall be submitted to
the Secretary of Defense for approval.
¾ Requests for loan or lease or other use of equipment or facilities are subject to approval by
the heads of the DoD Components, unless approval by a higher official is required by statute
or DoD issuance applicable to the particular disposition.42
37 U.S. DEP’T OF DEFENSE, REG. 5400.11-R, DOD PRIVACY PROGRAM (14 MAY 2007).
38 DoDI 3025.21, supra note 6, Encl. 8, para. 3.
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 (2012) may be made to entities outside the Federal Government.
41 DoDI 3025.21, supra note 6, Encl. 8.
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Judge advocates must be aware that other policies and statutes overlap with DoDI 3025.21 and 10
U.S.C. §§ 371-375 with regard to authorities and approvals in this area. For example, DoDD
3025.18 also discusses the approval authority of the Secretary of Defense for the assistance with
assets with potential lethality, e.g. arms, vessels or aircraft, or ammunition.43 As discussed,
approval authority for assistance from DoD intelligence components is governed by DoDD 5240.01
and other relevant authorities discussed above. 10 U.S.C. § 382 provides additional authority for
the provision of certain types of equipment; it states DoD may provide resources to the Department
of Justice in a weapons of mass destruction situation.44 Further, E.O. 13527 Establishing Federal
Capability for the Timely Provision of Medical Countermeasures Following a Biological Attack
provides additional authority for DoD integration into plans to support the delivery of “medical
countermeasures” as part of a response to a biological attack.45
Aside from authorities and approvals, the provision of military equipment to civilians is further
complicated by specific procedures needed to accomplish the transfer. The Army Regulation on
point is AR 700-131.46 In non-emergency situations, AFI 23-119, Exchange, Sale, or Temporary
Custody of Non-Excess Personal Property and AFI 32-9003, Granting Temporary Use of Air Force
Real Property set forth the Air Force process in this area.47 Judge advocates will not only need to
ensure that the proper authority has approved the transaction, but that the proper service-specific
procedures are followed to effect the transaction.
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
active, or direct, use of military personnel to enforce the laws is a violation of the PCA.50
42 This authority of the Secretaries of the Military Departments and the Directors of the Defense Agencies may be
delegated. See, e.g SECNAVINST 5820.7C, supra note 7, para. 6(b); AFI 10-801, supra note 7, ch.3.
43 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (21 Sept. 2012) [hereinafter DoDD
3025.18].
44
10 U.S.C. § 382 (2012).
45 Exec. Order No. 13257, 75 Fed. Reg. 737 (Jan. 6, 2010). E.O. 13527 provides that the Secretaries of Homeland
Security, Defense, and Health and Human Services shall develop a plan to support the U.S. Postal Service in its
distribution of efforts, to 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.”
46 U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL (23 Aug. 2004). Since
many of the applicable military regulations predate their corresponding DoD Directives, judge advocates must exercise
care in applying their procedures.
47 AFI 10-801, supra note 7.
48 United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991).
49 United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).
50 United States v. Rasheed, 802 F. Supp. 312, 324-25, (D. Hawai’i. 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); United States v. Red Feather, 392 F. Supp.
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• 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 force.52 Note
that under DoDD 3025.21, Immediate Response Authority may not be used when it may subject
civilians to military power that is “regulatory, prescriptive, proscriptive, or compulsory.” Thus,
Immediate Response Authority may not be used to circumvent the PCA.53
In implementing the guidance contained in 10 U.S.C. Chapter 18 (§§ 331-334, 371-382) DoDI
3025.21 divides the PCA regulation of the use of military personnel to assist civilian law
enforcement into five categories: (1) permissible direct assistance; (2) use of DoD personnel to
operate or maintain equipment; (3) expert advice; (4) training; and (5) other permissible assistance.
DoD personnel involvement in support to civilian law enforcement will often be subject to intense
scrutiny, for example: the 3d U.S. Army and the 82d Airborne Division’s support in the aftermath
of Hurricane Katrina, and the National Guard and the Special Forces assistance provided to the
Bureau of Alcohol, Tobacco, and Firearms during its standoff with the Branch Davidians in Waco,
Texas were both scrutinized heavily. When advising commanders on the permissible use of
916, 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, 35 F.3d 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 v. Hawes, 921 F.2d 100, 103-104 (7th Cir. 1990)
(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 Yunis, 924 F.2d 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).
53 DoDD 3025.18, supra note 43, para. 4.
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military personnel in support of civilian law enforcement activities, judge advocates must not only
consider possible legal ramifications of PCA violations, but also potential negative public
perception that may result from certain types of legal, but controversial assistance.
(1) Direct Assistance
(a) Prohibited Direct Assistance
The first category of PCA regulation of military activity with civilian law enforcement agencies
addresses 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 The restrictions
on 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 DoDI 3025.21, Enclosure 3.55 Direct assistance
is prohibited (unless authorized in enclosure 3 or 4 of DoDI 3025.21) as follows:
• Interdiction of a vehicle, vessel, aircraft, or other similar activity
• A search or seizure
• An arrest, apprehension, stop and frisk, interview, interrogation, canvassing, questioning
potential witnesses, or similar activities
• Using force violence, brandishing or using a weapon, or threatening to discharge or use a
weapon (except in self-defense, in defense of other DoD persons in the vicinity, or in defense of
non-DoD persons, including civilian law enforcement personnel in the vicinity when directly
related to an assigned activity or mission)
• Evidence collection, security functions, crowd and traffic control, and operating, manning, or
staffing checkpoints.
• Surveillance or pursuit of individuals, vehicles, items, transactions, or physical locations, or
acting as undercover agents, informants, investigators, or interrogators.
• Forensic investigations or other testing of evidence obtained from a suspect for use in a civilian
law enforcement investigation in the United States unless there is a DoD nexus or the
responsible civilian law enforcement official requesting such testing declares in writing that the
evidence to be examined was obtained by consent. SECDEF may authorize exceptions to this
policy.
(b) Permissible Direct Assistance
(i) Military Purpose Doctrine
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
54 Red Feather, 392 F. Supp. at 923 (W.D.S.D. 1975) (“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 DoDI 3025.21, supra note 6, Encl. 3, para 1.c.
56
Id., Encl. 3.
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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 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 or controlled unclassified information
• Protection of DoD personnel, DoD equipment, and official guests of the DoD
• Such other actions that are undertaken primarily for a military or foreign affairs purpose57
It is important to note that use of military forces in the national 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. When authorized under
the provisions of DoDD 3025.18, Federal military commanders have the authority, in extraordinary
emergency circumstances where prior authorization by the President is impossible and duly
constituted local authorities are unable to control the situation, to engage temporarily in activities
that are necessary to quell large-scale, unexpected civil disturbances because:
• Such activities are necessary to prevent significant loss of life or wanton destruction of property
and are necessary to restore governmental function and public order; or,
• When duly constituted Federal, State, or local authorities are unable or decline to provide
adequate protection for Federal property or Federal governmental functions. Federal action,
57
Id.
58 See 32 C.F.R. § 215.4 (2013), which notes the Constitution authorizes “prompt and vigorous Federal action,
including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental
functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger
life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are
unable to control the situations.”
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including the use of Federal military forces, is authorized when necessary to protect Federal
property or functions.59
Presidential approval for quelling civil disturbances is not a prerequisite to the use of military forces
in these two limited circumstances.60
(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 Insurrection Act, 10 U.S.C. §§ 331-334. This
statute contains express exceptions to the Posse Comitatus Act that allow for the use of military
forces to repel 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
3025.21. The Insurrection 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;61
• A rebellion makes it impracticable to enforce the federal law through ordinary judicial
proceedings;62 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.63
10 U.S.C. § 334 requires the President to issue a proclamation ordering the insurgents to disperse
within a certain time before use of the military to enforce the laws. The President issued such a
proclamation during the Los Angeles riots in 1992.
(iv) Other Authority
There are several statutes and authorities, other than the Insurrection Act, that allow for direct DoD
participation in civil law enforcement.64 They permit direct military participation in civilian law
enforcement, subject to the limitations within each respective statute. This section does not contain
detailed guidance; therefore, specific statutes and other references must be consulted before
determining whether military participation is permissible. A brief listing of these statutes includes:
• Prohibited transactions involving nuclear material (18 U.S.C. § 831)
59 DoDI 3025.21, supra note 6, Encl. 3, para. 1.b.(3).
60 DoDD 3025.18, supra note 43, para. 4 (which provides specific guidance on when emergency authority may be
used).
61
10 U.S.C. § 331.
62
10 U.S.C. § 332.
63
10 U.S.C. § 333 (2012).
64 DoDI 3025.21, supra note 6, Encl. 3, para. 1.b.(5).
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•
Emergency situations involving chemical or biological weapons of mass destruction (10 U.S.C.
§ 382) (see also 10 U.S.C. §§ 175a, 229E and 233E which authorizes the Attorney General or
other DOJ official to request SECDEF to provide assistance under 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 Magnuson-Stevens Fishery and Conservation Management Act (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)
•
Actions in support of certain customs laws (50 U.S.C. § 220)
•
Actions taken to provide search and rescue support domestically under the authorities provided
in the National Search and Rescue Plan
(2) Training
The second main category of regulation on DoD personnel assistance to civilian law enforcement
involves training.
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 authorized the use of this authority in
DoDI 3025.21, Enclosure 3.65
DoDI 3025.21 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 unfeasible or 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 not reasonably likely.66
65 DoDI 3025.21, supra note 6, Encl. 3, para. 1.f.
66
Id.
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DoD is prohibited from providing advanced military training to civilian law enforcement
agencies.67
“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.68
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.69
(3) Expert Advice
The third main category of regulation on DoD personnel assistance to civilian law enforcement 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., Chapter 18. This does not permit direct assistance with activities that are
fundamentally civilian law enforcement operations, except as otherwise authorized in DoDI
3025.21.70
(4) Use of DoD Personnel to Operate or Maintain Equipment
10 U.S.C. § 374 and DoDI 3025.21, Enclosure 3, address the use of DoD personnel for the
operation or maintenance of equipment, including but not limited to equipment provided under
§ 372 and DoDI 3025.21 Enclosure 8, for federal, state, or local law enforcement officials. DoDI
3025.21 largely mirrors 10 U.S.C. § 374, with a few additional restrictions and differences that will
be highlighted as the statute provisions are set forth below.71
67 DoD Training Support to U.S. Civilian Law Enforcement Agencies, June 29, 1996, (available from the Office of the
Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD(HD&ASA)), room 3D247,
2600 Defense Pentagon, Washington D.C. 20301) [hereinafter Training Memorandum].
68 DoD may allow local police organizations and other civic organizations to use military ranges. See 10 U.S.C. § 4309
(1998).
69 Training Memorandum, supra note 67.
70 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d
71 The operation or maintenance of equipment for a civilian agency, or the assistance in operating or maintaining such
equipment, is subject to the following general restrictions from DoDI 3025.21: The 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 or unfeasible to use non-DoD personnel for this purpose. The use of DoD personnel under these provisions
must not compromise military preparedness. The assistance cannot involve DoD personnel in a direct law enforcement
role unless otherwise authorized, and the assistance should be provided at a location where there is not a reasonable
likelihood of a law enforcement confrontation. Lastly, military aircraft for point-to-point transportation and training
flights for civilian law enforcement personnel may only be provided in accordance with DoD 4515.13-R.
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10 U.S.C. § 374(a) allows the Secretary of Defense to make DoD personnel available for the
maintenance of equipment for Federal, state, and local civilian law enforcement officials, including
equipment made available under 10 U.S.C. § 372.72 The statute does not specify who a request for
maintenance must come from. Request specifics for maintenance and operation under DoDI
3025.21 are discussed further below.
10 U.S.C. § 374(b)(1) allows the Secretary of Defense to make DoD personnel available to operate
equipment under certain laws and operations as follows:
• A criminal violation of certain specified laws;73
• 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.
These categories are best understood as “areas” the DoD can operate in with respect to 10 U.S.C. §
374. DoDI 3025.21 repeats these areas almost verbatim, with minor changes or additions.74
10 U.S.C. § 374(b)(2) states DoD personnel made available under 10 U.S.C. § 374(b) may operate
equipment for the certain purposes. This is best understood as what functions DoD personnel can
perform when operating under the areas above. The following purposes are authorized under the
statute:75
• 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(a)(4)(1);
72 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d
73 Controlled Substances Act, 21 U.S.C. §§ 801-904 (2011); Controlled Substances Import and Export Act, 21 U.S.C.
§§ 951-971 (2011); Immigration and Nationality Act, 8 U.S.C. §§ 1324-1328 (2012); 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; Chapter 705 of Title 46 (The Maritime Drug Law Enforcement Act (46 U.S.C. §§ 70501-70508) (2012));
or any foreign or domestic law prohibiting terrorist activities.
10 U.S.C. § 374(b) (2012).
74 For example, DoDI 3025.21 adds “including support of FBI Joint Terrorism Task Forces” to the provision of 10
U.S.C. discussing operation of equipment in the case of foreign or domestic terrorism missions. DoDI 3025.21, supra
note 6, para. 1.d.(5).
75 DoDI 3025.21 reiterates all of these approved purposes virtually identically, including those subject to joint approval.
DoDI.21 adds one other authorized purpose - the detection, monitoring, and tracking of the movement of weapons of
mass destruction under the circumstances described in para. 1.d. of Enclosure 3 and when outside the United States.
DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.(5)(b)7.
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• 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):
¾ 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;
¾ the operation of a base of operations for civilian law enforcement and supporting personnel;
and
¾ 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 purposes 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
DoDI 3025.21 contains the additional provisions that 1) nothing in its guidance prohibits the use of
emergency action authority under DoDD 3025.18, and 2) When DoD personnel are otherwise
assigned to provide assistance with respect to the laws specified in subparagraph 1.b.(5) of DoDI
3025.21 Enclosure 3, the participation of such personnel shall be consistent with the limitations in
such laws, if any, and such restrictions as may be established by policy or the DoD Components
concerned.78
The process for requests for operation and maintenance of equipment differ slightly between the
statute and DoDI 3025.21. No specific guidance is given regarding requests for equipment
maintenance under 10 U.S.C. § 374(a). Under 10 U.S.C. § 374(b) requests for equipment operation
must come from the head of a Federal law enforcement agency.
DoDI 3025.21 states that a request for DoD personnel to operate or maintain equipment (or assist
with these actions) must be made pursuant to section 10 U.S.C. § 374 or other applicable law that
permits DoD personnel to provide such assistance to civilian law enforcement officials. It goes on
to state a request that is made pursuant to section 10 U.S.C. § 374 of must be made by the head of a
civilian agency empowered to enforce any of the laws listed in footnote 75 above.79 Note that,
76
10 U.S.C. § 374(b)(3) (2012). DoDI 3025.21 differs slightly and states that personnel may operate equipment for
both the detection, monitoring, and communication of the movement of air and sea traffic and the interception of
vessels or aircraft in accordance with 10 U.S.C. 374(b)(2)(D).
77
10 U.S.C. § 374(c) (2012). DoDI 3025.21 contains this provision at Encl. 3, para. 1.d.(7).
78 DodI 3025.21, supra note 6, Encl. 3, para. 1.d.(9).
79
Id., para. 1.d.(4).
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unlike 10 U.S.C. § 374, this appears to limit the circumstances under which maintenance (for 10
U.S.C. § 374 purposes) can be approved to these categories.80
(5) Other Permissible Assistance
The last main category of regulation over DoD personnel assistance to civilian law enforcement
under DoDI 3025.21 is the overarching category of “other permissible assistance.” The transfer of
information acquired in the normal course of military operations to civilian law enforcement
agencies under 10 U.S.C. § 371 is not a violation of the PCA and falls into this category.81 Criteria
for the provision of this information are discussed infra, above.
80 Note also the difference in request language for operation assistance - the statute uses the term “Federal agency” and
DoDI 3025.21 uses the term “civilian agency empowered” to enforce certain laws.
81
Id., Encl. 3, para. 1.g.
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CHAPTER 5
CIVIL DISTURBANCE OPERATIONS
KEY REFERENCES:
•
10 U.S.C. § 331 - 335 - 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.
•
Executive Order 13527 - Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack, December 30, 2009.
•
DoDD 3025.18 - Defense Support of Civil Authorities, December 29, 2010.
•
DoDD 5111.13 - Assistant Secretary of Defense for Homeland Defense and Americas’ Security
Affairs, January 16, 2009.
•
DoDI 3025.21 Defense Support of Civilian Law Enforcement Agencies, Febuary 27, 2013.
•
DoDD 5525.13 Limitation of Authority to Deputize DoD Uniformed Law Enforcement
Personnel by State and Local Governments, September 28, 2007.
•
CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules For the Use of Force for U.S.
Forces (S), June 13, 2005.
•
CJCSI 3110.07C, Guidance Concerning Chemical, Biological, Radiological, and Nuclear
Defense and Employment of RIOT Control Agents and Herbicides (S), November 22, 2006.
•
Joint Pub 3-28 - Civil Support, September 14, 2007.
•
Army Regulation 700-131 - Loan and Lease of Army Materiel, August 23, 2004.
•
National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June
13, 2008.
•
FM 3-07 - Stability Operations and Support Operations, October 6, 2008.
•
FM 3-19.15 - Civil Disturbances, April 18, 2005.
•
USNORTHCOM CONPLAN 3502 (S).
•
USNORTHCOM CONPLAN 3600 (S).
•
USPACOM CONPLAN 7502 (S).
A.
Introduction
Within civilian communities in the United States, the local governments and the states have the
primary responsibility for protecting life and property and maintaining law and order.1 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 rule reflects the Founding Fathers’ hesitancy to raise a standing army and their desire to
1
32 C.F.R. § 182.6(b)(1)(ii)(2013); U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW
ENFORCEMENT AGENCIES Encl. 4, para. 1.b. (27 Feb. 2013) [hereinafter DoDI 3025.21].
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render the military subordinate to civilian authority.2 It is rooted in the Constitution3 and laws of
the United States,4 and allows for exception only under extreme emergency conditions. But the
Constitution also guarantees to the states that the Federal Government will aid in suppressing civil
disturbances and empowers Congress to create laws that provide Federal forces for that purpose.5
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. DoD and the courts use one phrase, “civil
disturbance,” to encompass the various situations allowing the use of military assistance under the
Insurrection Act.
DoD policy no longer contains an official definition of civil disturbance, but it previously definied it
as “group acts of violence and disorders prejudicial to public law and order.”7 Courts use similar
language when defining “insurrection.”8
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 when the Insurrection Act is utilized.9
The Insurrection Act permits the commitment of U.S. forces by the President under three
circumstances:
2 Among the several grounds stated in the Declaration of Independence for severing ties with Great Britain includes the
fact 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), 1 DEBATES IN THE SEVERAL
STATES CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (ELLIOT’S DEBATES) 344, 372 (Jonathan
3 The Constitution divides authority over the Armed Forces between the President as Commander in Chief, 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.” U.S. CONST. art. I, § 8, para. 11; art. II, § 2, para. 1.
4 See, e.g., Posse Comitatus Act, 18 U.S.C. § 1385. The Posse Comitatus Act is discussed fully infra in Chapter 4,
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 (2012).
7
JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT GL-5 (31 Jul. 2013) [hereinafter JOINT PUB. 3-28]. The
previous edition of JP 3-28 contained this definition, the newest edition removed this definition.
8 See 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 render success probable.)
9 Posse Comitatus Act, 18 U.S.C. § 1385 (2011), makes it unlawful to use any part of the Army or Air Force to act 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 infra Chapter 4, Military Support to Civilian Law Enforcement.
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• To support a request from a state or territory;
• To enforce federal authority; or
• To protect constitutional rights.10
1. Supporting a State or Territorial Request
The Federal Government has an obligation to protect every state in the union, upon request, from
domestic violence.11 Pursuant to this obligation, Congress included in the Insurrection Act a
provision allowing the President to use federal forces to assist state governments. 10 U.S.C. § 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
necessary to suppress the insurrection.12
Responsibility for the coordination of the federal response to civil disturbances rests with the
Attorney General.13 In the case of state requests for assistance, the Attorney General is responsible for
receiving the state requests for military assistance, coordinating the requests with SECDEF and other
appropriate Federal officials, and presenting the requests to the President, who will determine what
Federal action will be taken.14 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.
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,15 should have been brought to
bear on the civil disturbance.16
One recent example of a state requesting such assistance was the response to the Los Angeles riots
of 1992. On May 1, 1992, pursuant to the Insurrection Act, 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
10
10 U.S.C. §§ 331-335 (2012).
11 U.S. CONST. art. IV, § 4.
12
10 U.S.C. § 331 (2012).
13 See DoDI 3025.21, supra note 1, Encl. 4, at para. 1.c.
14 See DoDI 3025.21, supra note 1, Encl. 4, at para. 1.c. See also Exec. Order No. 12656, 3 C.F.R. 585, 53 Fed. Reg.
47491, § 1101(8) (Nov. 18, 1998) [hereinafter E.O. 12656].
15 See infra Chapter 3, which discusses the mobilization and activation of National Guard forces.
16 See NATIONAL GUARD BUREAU, REG. 500-1/ANGI 10-8101, NATIONAL GUARD DOMESTIC OPERATIONS, PARA. 4
(2)(d (13 June 2008) [hereinafter NGR 500-1] (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).
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mobilized a day earlier.17 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.18
2.
Enforcing Federal Authority
The President has a constitutional duty to see that the laws of the United States are faithfully
executed.19 Within the Insurrection Act, Congress gave the President the authority to commit the
U.S. military to enforce federal law.20 10 U.S.C. § 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.21
During the 1950s and 1960s, this statute was used to enforce public school desegregation in
Arkansas22 and Alabama23 and to control civil rights protests in Mississippi24 and Alabama.25
3.
Protecting Constitutional Rights
Citizens of the United States are guaranteed equal protection under the law.26 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.27
10 U.S.C. § 333 states:
17 Proclamation No. 6427, 57 Fed. Reg. 19359 (May 5, 1992).
18 Exec. Order No. 12804, 57 Fed. Reg. 19361 (May 5, 1992). See also JOINT CHIEFS OF STAFF, JOINT PUB 3-08,
INTERORGANIZATIONAL COORDINATION DURING JOINT OPERATIONS, III-10 (24 Jun 2011).
19 U.S. CONST. art. II, § 3.
20
10 U.S.C. § 332 (2012).
21
Id.
22 See Exec. Order No. 10730, 22 Fed. Reg. 7628 (Sept. 24, 1957) (Army and Air National Guard units were
federalized to remove obstructions to justice in respect to enrollment and attendance at public schools in Little Rock,
Arkansas.).
23 See Exec. Order No. 11118, 28 Fed. Reg. 9863 (Sept. 10, 1963) (Army and Air National Guard units were
federalized to remove obstructions to justice in respect to enrollment and attendance at public schools in Alabama.).
24 See Proclamation No. 3497, Exec. Order No. 11053, 27 Fed. Reg. 9681 (Sept. 30, 1962) (Army and Air National
Guard units federalized to enforce federal court orders issued in Mississippi.).
25 See Exec. Order No. 11111, 28 Fed. Reg. 5709 (Jun. 11, 1963) (Army and Air National Guard units federalized to
remove obstructions to justice and to suppress unlawful assemblies, conspiracies, and domestic violence that opposed
the laws of Alabama.).
26 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.”
27
10 U.S.C. § 333 (2012).
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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.28
10 U.S.C. § 333 was used as an authority by President Kennedy to send military troops to Alabama
in April 1963 during the civil rights protests in Birmingham, Alabama.29
C. Procedural Issues
Prior to utilizing the federalized militia or 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.30 10 U.S.C. § 334 states,
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.
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.31 Decisions of the President to issue Presidential Proclamations and
Executive Orders pursuant to the Insurrection Act are made solely at the discretion of the
Executive32 and cannot be compelled by the courts.33 Recent examples of a proclamation and
28
Id.
29 See Alabama v. U.S., 373 U.S. 545 (1963).
30
10 U.S.C. § 334) (2012).
31 See Exec. Order No. 10703, 22 Fed. Reg. 7,628 (Sept. 24, 1957) (order authorizing use of military forces for
desegregation in Arkansas); Exec. Order No. 11053, 27 Fed. Reg. 9,681 (Sept. 30, 1962) (order authorizing use of
military forces during riots in Mississippi); Exec. Order No. 11111, 28 Fed. Reg. 5,709 (June 11, 1963) (order
authorizing use of military forces during riots in Alabama); Exec. Order No. 11118, 28 Fed. Reg. 9,863 (Sept. 10, 1963)
(order authorizing use of military forces for desegregation in Alabama).
32 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).
33 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).
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follow-on order are Proclamation No. 6427 and Executive Order 12804, cited above, used during
the Los Angeles riots of 1992.
D. DoD Considerations concerning the Insurrection Act
Department of Defense Directive (DoDD) 3025.18, Defense Support of Civil Authorities, requires
all requests for military support be evaluated against six criteria prior to the decision to employ
forces.
• Cost - Who pays and the impact on DoD budget.
• Appropriateness - Whether it is in the interest of DoD to provide the requested support.
• Readiness - Impact on DoD’s ability to perform its primary mission.
• Risk - Safety of DoD forces.
• Legality - Compliance with the law.
• Lethality - Potential use of lethal force by or against DoD forces..34
The decision to employ armed forces for Civil Disturbance Operations (CDO) is made in
coordination between the President, the Secretary of Defense, and the Attorney General. Although
the Secretary of Defense retains approval authority for all military support in response to civil
disturbances,35 the above-criteria may be helpful to local commanders and their judge advocates as
they may advise on formal assistance requests routed to higher headquarters for consideration.
E. Other Authority
In addition to the Insurrection Act, authority to use federal troops in a law enforcement capacity to
address civil disturbances can be found in two other major areas.
1.
Emergency Authority
Under DoDD 3025.18, federal military commanders are provided emergency authority in unique
circumstances. Federal military commanders have the authority, in extraordinary emergency
circumstances where prior authorization by the President is impossible and local authorities are
unable to control the situation, to engage temporarily in activities that are necessary to quell large-
scale, unexpected civil disturbances either because:
• Such activities are necessary to prevent significant loss of life or wanton destruction of
property and are necessary to restore governmental function and public order; or,
• if duly constituted Federal, State, or local authorities are unable or decline to provide
adequate protection for Federal property or Federal governmental functions, then Federal
action, including the use of Federal military forces, is authorized when necessary to protect
the Federal property or functions.
34 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4 (21 Sept. 2012) [hereinafter
DoDD 3025.18].
35 Id., para. 4.j.1, states approval authority for civil disturbance operations is no lower than the Secretary of Defense
level.
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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 expeditiously. 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.
2. Barment or Removal Authority
A military installation commander, exercising “inherent authority” may take such actions that are
reasonably necessary and lawful to protect military installations. This is outside of emergency
authority or insurrection act authority discussed above, and is not exercised in concert with the type
of force that may occur in those situations. Although it can involve civil unrest situations, it
involves non-emergency situations where there is time to apply authority allowing for the removal
or barment of a person from an installation to remedy a situation. Violations of such orders to stay
off an installation carry civil and criminal penalties.36
F. Responsibilities and Relationships of Parties Involved in Civil Disturbance Operations
1. Attorney General
The Department of Justice is the primary federal agency responsible for coordinating the Federal
Government response to restore law and order.37 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. 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.
36 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.”).
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).
37 DoDI 3025.21, supra note 1, Encl. 4, para. 1.c; 32 C.F.R. § 182.6(b)(5) (2013).
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2.
Senior Civilian Representative of the Attorney General (SCRAG)
Pursuant to 32 C.F.R. § 182.6, the Attorney General may appoint a SCRAG for a civil disturbance.
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.
Note that the appointment of such an official does not replace the military chain of command.38
DoD forces employed in civil disturbance operations must remain under military authority at all
times.39
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 DoD and the Department of
Justice for Civil Disturbance Operations.40 ASD(HD&ASA) is also responsible for the
development, coordination, oversight of DoD policy for DSCA plans and activities regarding civil
disturbances.41
4.
Joint Director of Military Support (JDOMS)
JDOMS is the action agent within DoD 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 CDO, and releases the
execute order (EXORD) designating supported and supporting Combatant Commanders and tasking
force providers to give the ordered support.42
5.
Combatant Commanders, U.S. Northern Command and U.S. Pacific Command
The Commanders of USNORTHCOM, USPACOM, and USSOCOM, as the DoD planning agents
for CDO, lead the CDO planning activities of the DoD Components in these areas:
• USNORTHCOM - The 48 contiguous States, Alaska, the District of Columbia, the
Commonwealth of Puerto Rico, and the U.S. Virgin Islands.
• USPACOM - Hawaii and the U.S. possessions and territories in the Pacific area.
• USSOCOM - CDO activities involving special operations forces.43
38
32 C.F.R. § 182.6(b)(5) (2013).
39
JP 3-28, supra note 7, at III-3, 4.
40 DoDI 3025.21, supra note 1, Encl. 2, para. 2.b.
41 U.S. DEP’T OF DEFENSE, DIRECTIVE 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND
AMERICAS’ SECURITY AFFAIRS (ASD(HD&ASA)), para. 4.b.(1) (16 Jan. 2009).
42 See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION CJCSI 5711.02C, DELEGATION
APPROVAL AUTHORITY (30 Nov. 2012). See also JP 3-28, supra note 7, at Ch. III, V.
43 DoDD 3025.21, supra note 1, Encl. 4, p. 26.
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6. Commander, U.S. Army North
U.S. Army North (ARNORTH) is currently the lead operational authority for federal civil
disturbance support response within the continental United States. The Commander, ARNORTH,
designates a Commander, Joint Civil Disturbance Task Force in the event of CDO, receives civil
disturbance units, ensures their 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 an appointed Commander for all
federal forces, including National Guard forces in Title 10 status, in a civil disturbance area of
operations. He or she will be the DoD representative in the civil disturbance area and performs civil
disturbance missions assigned.
8. National Guard Bureau
The Chief of the National Guard Bureau (CNGB) is the channel of communication for all National
Guard matters between Federal military elements (including 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 the States.44 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.45 The NGB maintains a 24/7 National Guard Coordination Center providing situational
awareness and common operating picture for any CDO.
9. The National Guard
National Guard units have the primary responsibility to respond to a civil disturbance, initially
deploying in a State Active Duty (SAD) status or under Title 32.46 In either capacity, they are not
subject to the prohibitions of the PCA and can freely support state or federal law enforcement
missions.47 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. In
extreme circumstances, National Guard units may be federalized under Title 10 pursuant to a
Presidential order.48 Once federalized, the NG conducts its mission in accordance with DoD
regulations, federal law and under federal control.
The NG’s use of force while in SAD or Title 32 status is governed by the laws of the state where the
operation occurs. State operations therefore involve separate “Rules for the Use of Force” (RUF)
for each state.
44 U.S. DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) para. 4.3 (21 May 2008) [hereinafter
DODD 5105.77].
45
Id. para. 5.1.11.2.
46 With SecDef approval, the National Guard may conduct operational missions under 32 U.S.C. § 502(f)(2)
“operational support” authority. See DoDD 3025.18, supra note 34, para. 4.h.
47 See infra Chapter 4, Military Support to Civilian Law Enforcement, for a complete discussion on the Posse
Comitatus Act.
48 See infra Chapter 3 for a complete discussion of National Guard status.
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G. The Department of Defense Civil Disturbance Plans
DoD’s Civil Disturbance Operations (CDO) plan was formerly known as “GARDEN PLOT.”49
Since the creation of the Department of Homeland Security and USNORTHCOM, DoD has
delegated to geographic combatant commanders responsibility for developing CDO Contingency
Plans (CONPLANs). “GARDEN PLOT” has since been replaced by the respective COCOM Plans.
These geographic commander CONPLANs provide guidance and direction for planning,
coordinating, and executing military operations during domestic civil disturbances.
1.
Civil Disturbance Operations Mission
The CDO mission is conducted to restore order or enforce federal law after a major public
emergency (e.g., natural disaster, serious public health emergency, or terrorist attack) when
requested by the state governor or when the President determines that the authorities of the state are
incapable of maintaining public order.50 The restoration of law and order must be distinguished
from the preservation of law and order.51 CDO mission statements do not normally allow for
commanders to undertake preservation missions.52 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.53 Judge advocates should assist their commanders in ensuring they do not assume missions
involving the routine maintenance of civil order unless absolutely necessary.
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.54
49 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. GARDEN PLOT has been replaced by COCOM CONPLANs for respective
theaters. CONPLANs are classified Secret, contact the respective combatant commander SJA to review them.
50 See JP 3-28, supra note 7, at III-3,4.
51 The preservation of law and order is the responsibility of state and local governments and law enforcement
authorities. DODI 3025.21, supra note 1, Encl. 4, para. 1.b.
52 See id., Encl. 4, para. 2.e. 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.”
53 DEPARTMENT OF THE ARMY, FM 3-19.15, CIVIL DISTURBANCE OPERATIONS B-11 (Apr. 2005) [HEREINAFTER FM 3
19.15).
54
It is important to remember that any employment of Federal military forces in a CDO must maintain the primacy of
civilian authority. See 32 C.F.R. 182.6(b) (2013). 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.”).
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During the employment of military forces, the Commander will maintain liaison with the SCRAG,
state law enforcement representatives, and municipal authorities.55 Normally, this liaison is through
the Defense Coordinating Officer. The liaison will be maintained until termination of the civil
disturbance mission. The Joint Civil Disturbance Task Force Commander (or COCOM) will accept
missions, and if reasonably possible within the framework of orders, comply with requests from
civil authorities.56
Unless in a direct support relationship approved and ordered through the military chain of
command, units should not accept tasking 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.
3. The Standing Rules for the Use of Force for U.S. Forces
Civil disturbance operations 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).57 Guidance on how and
when forces can use 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. In addition to the CJCS
Instruction, as part of operating in an inter-agency environment in support of civil authorities, judge
advocates must make themselves familiar with state and local laws regarding the use of force. This
is particularly important if joint patrols or other missions are conducted. Judge advocates should
review the RUF of other agencies in these situations to ensure compatibility with DoD procedures
and consistency in the application of force. If RUF policies are not consistent, commanders should
consider maintaining operations separate from other agencies.
4. Constitutional Legal Considerations
State and federal law govern search, seizure, arrest, detention, and confinement occurring during a
CDO. The Attorney General is responsible for setting overall guidelines governing the conduct of
civil disturbance operators and judge advocates should familiarize themselves with any policies and
procedures set forth by the Department of Justice. Members should be trained in advance on proper
legal procedures for search, seizure, arrest, and detention, and should be aware that actions not
conforming to Constitutional standards could jeopardize prosecution of criminal actors or subject
the member to civil or criminal liability.
a. Detention and Confinement
Whenever possible any arrest or apprehension should be made by the civil police force unless they
are not available or require assistance. If it is necessary for military forces to make an
apprehension, they should do so with the approval of civil authorities and should ensure civilian
55 The Attorney General may assign another Dept. of Justice entity, such as a representative of the FBI or ATF, to lead
CDO on the part of the Federal civilian authorities. See 32 C.F.R. 182.6(b)(5) (2013).
56 See DoDI 3025.21, supra note 1, Encl. 4.
57
JP 3-28, supra note 7, at B-1.
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authorities are present to supervise. Civilians taken into custody should be transferred to civilian
law enforcement authorities as soon as possible.58
Military Forces should not operate detention facilitiesy.59 Civil authorities have the responsibility
to provide adequate detention facilities for all subjects. Large-scale arrests may be delayed until
sufficient detention facilities have been set up. If military forces are committed to support local
authorities with arrests, commanders should coordinate with them to ensure that adequate detention
facilities are available and to learn their locations and capacities. If there are
more detainees than civil detention facilities can handle, civil authorities may ask the military to
provide support by setting up and operating temporary facilities. Service policies and combatant
commander guidance, in addition to Task Force Commander approval, will govern whether such a
facility may be established.60 Existing army correctional facilities cannot be used to detain
civilians. Use of the temporary military facility must end as soon as civil authorities can take
custody of the detainees.61
b. Searches
Federal forces should not be involved in warrant-backed or warrantless searched for evidence of a
crime (i.e. searches of houses, crime scenes, etc.). Nonetheless, as they work to restore order, they
may need to conduct searches of personnel, whether or not they are involved in arrest or detention
operations. The need for a frisk of an individual as part of a lawful stop may arise (known as a
Terry stop) as forces patrol an area. Regardless of the circumstances, every effort should be made
to have civilian authorities conduct these searches (as well as detentions) or at least be present to
observe such activity.62
5.
Other 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.
58 See FM 3-19.15, supra note 53, Ch. 3.
59
Id., paras. 3-38-3-40; see generally, DODI 3025.21, supra note 1, Encl. 4 (“DoD Components shall not take charge
of any function of civil government unless absolutely necessary under conditions of extreme emergency.”).
60 For example, Army policy states that a temporary military detention facility can be set up if Federal troops have been
employed according to provisions; the TF commander has verified that available civilian detention facilities can no
longer accommodate the number of prisoners awaiting arraignment and trial by civil courts; and The Army Chief of
Staff has granted prior approval. FM 3-19.15, supra note 53, Ch. 3.
61
Id.
62 See FM 3-19.15, supra note 53, Ch. 3.
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b. Intelligence
See Chapter 11, Intelligence Law and Policy Considerations During Domestic Support Operations
for information regarding the proper use of intelligence elements and collection of information
during domestic civil support.
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).63 In order for claims
under the FTCA to be compensable, the 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 U.S. 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.
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.64 The ACO in whose
geographical area a claims incident occurs is primarily responsible for investigating and processing
the claim.65 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.66 For a major CDO senior judge advocates should consider requesting a claims team
from ACO.
Even though primary claims investigating responsibilities fall to the ACO, judge advocates
deployed as part of a civil disturbance task force can assist in investigations by ensuring that
potential claims are documented and available information concerning the claims is collected.
Judge advocates can also assist by collecting information concerning the status of National Guard
troops operating within the area.67
d. Medical Support
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 grievous bodily harm is a possibility. Civilians admitted to
military treatment facilities should be transferred to a civilian hospital as soon as medically feasible.
63
28 U.S.C. §§ 1346, 2671-2680.
64 U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11k (8 Feb. 2008).
65
Id. para. 2-2.
66
Id. para. 1-17(c).
67 Detailed information on claims arising during disasters can be accessed at http://www.jagcnet.army.mil/Claims.
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e. Interference with Federal Forces
Federal law makes it a crime to interfere with law enforcement officers engaged in controlling civil
disorders.68 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.69
f.
Loan and Lease of Military Equipment
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.70 Equipment for non-federal law enforcement agencies must be
leased under the leasing statute, which requires both a lease agreement and a surety bond. The
leasing statute also includes the requirement for the payment of a lease fee, which in the case of the
Army may be waived by the Assistant Secretary of the Army (Installation, Logistics and
Environment) (ASA(I, L&E)).71
Approval authorities for the loan and lease of DoD materiel to federal, state, and local law
enforcement authorities are 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, body armor, clothing, searchlights and use of DoD
facilities can be approved by garrison, installation, or task force commanders.72 See U.S. Army
Reg. 700-131, Loan and Lease of Army Materiel (23 Aug. 2004), for more specific guidance on the
loan and lease of material.
f.
Funding
DoD 7000.14-R, Department of Defense Financial Management Regulation, the USNORTHCOM
CONPLAN 3501, Defense Support of Civil Authorities, and the USNORTHCOM CONPLAN
3502, Civil Disturbance Operations, require operating agencies and supported combatant
commanders to recover all costs for civil disturbance operations. The operating agency and
supported commander are responsible for collecting costs for civil disturbance operations of all
68
18 U.S.C. §§ 231-233.
69
Id. § 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.
70
31 U.S.C. § 1535.
71
10 U.S.C. § 2667; see also U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF ARMY MATERIEL, para. 2-7, 2
8 (23 Aug. 2004) [hereinafter AR 700-131] (discussing loan/lease agreements and surety bonds).
72 AR 700-131, supra note 71, paras. 2-6b. NGR 500-1, supra note 16, Chap. 3-1, governs the loan or lease of National
Guard property.
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components and DoD agencies, preparing cost reports for the executive agency, consolidating
billings, forwarding bills to DOJ, and distributing reimbursements.73
73
JP 3-28, supra note 7, E-3.
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CHAPTER 6
DOD RESPONSE FOR CHEMICAL, BIOLOGICAL,
RADIOLOGICAL, AND NUCLEAR (CBRN)1 INCIDENTS
KEY REFERENCES:
• Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288, 42
U.S.C. § 5121, et seq., as amended.
• The Defense Against Weapons of Mass Destruction Act, 50 U.S.C. §§ 2301-2371 (2011).
• E.O. 13527 Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack, December 30, 2009.
• National Response Framework, May 2013.
• DoDD 3025.18, Defense Support of Civil Authorities (DSCA), September 21, 2012.
• DoDD 3150.08, DoD Response to Nuclear and Radiological Incidents, January 20, 2010.
• CJCSI 3125.01C, Defense Response to Chemical, Biological, Radiological, and Nuclear
(CBRN) Incidents in the Homeland, June 4, 2012.
• Joint Pub 3-26, Counterterrorism, November 13, 2009.
• Joint Pub 3-28, Civil Support, September 14, 2007.
• Joint Pub 3-41, Chemical, Biological, Radiological and Nuclear Consequence Management,
June 21, 2012.
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 was originally 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 This acronym used to include the term “high yield explosive” and was stated “CBRNE.” Current policies have
shifted to the CBRN term and eliminated “high yield explosives.” See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT
CHIEFS OF STAFF INSTRUCTION 3125.01C, DEFENSE RESPONSE TO CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND
NUCLEAR (CBRN) INCIDENTS IN THE HOMELAND (4 Jun. 2012) [hereinafter CJCSI 3125.01C], para. 4.a. (noting that a
high-yield explosive incident is not addressed in CJCSI 3025.01C because those incidents do not generate similar initial
or residual hazards. Responses to high yield explosive incidents without CBRN elements will be provided in
accordance with DoDD 3025.18, Defense Support of Civil Authorities, and the current year CJCS Defense Support of
Civil Authorities (DSCA) EXORD. CJCSI 3125.01C Encl. 3, para. 3.f. Note however that some publications still
discuss high explosives (albeit separately from CBRN) because they may be tied to or part of the delivery for CBRN
elements. See, e.g. JOINT CHIEFS OF STAFF, JOINT PUB. 3-41, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR
CONSEQUENCE MANAGEMENT, at I-15 (21 Jun. 2012) [hereinafter JP 3-41].
2 DHS, NATIONAL RESPONSE FRAMEWORK, Second Edition (May 2013) 3 [hereinafter NRF], available at
3 The term “incident management” is designed to eliminate the prior distinction between crisis and consequence
management with respect to domestic incidents. HSPD-5 states that the objective of the United States government is to
ensure that all levels of government across the nation have the capability to work efficiently together using a national
approach to domestic incident management, and in these efforts, the United States government treats crisis management
and consequence management as a single integrated function. See Homeland Security Presidential Directive 5,
Management of Domestic Incidents (Feb. 28, 2003) [hereinafter HSPD-5], available at
http://www.gpo.gov/fdsys/pkg/PPP-2003-book1/pdf/PPP-2003-book1-doc-pg229.pdf. Judge advocates should be
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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
NRF and NIMS address the needs that must be met when the responding jurisdiction’s capabilities
are overwhelmed by the magnitude of a catastrophic incident.5
The NRF is designed to ensure timely and effective federal support in response to state, tribal,
and/or local requests. 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, 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,6 and its activities are referred to as Defense Support to Civilian Authorities (DSCA),
or simply “civil support.”7
The NRF and NIMS provide broad direction for any type of disaster, in what is characterized as an
all-hazards approach.8 Consequently, the framework applies equally to natural disaster relief, the
handling of an unintentional or negligent industrial accident, or the Federal government’s response
to a terrorist’s potential domestic employment of a Chemical, Biological, Radiological, or Nuclear
weapon of mass destruction (WMD).9 Although the various levels of government have experience
in responding to natural disasters, CBRN events pose some of the greatest challenges facing the
aware the terms crisis and consequence management may still be found in policies addressing incident management.
For example, JOINT PUB 3-28 addresses CBRN response in terms of consequence management. See JOINT CHIEFS OF
STAFF, JOINT PUB. 3-28, CIVIL SUPPORT II-10 (31 Jul. 2013) [hereinafter JP 3-28].
4 DHS, NATIONAL INCIDENT MANAGEMENT SYSTEM (Dec. 2008), available at
http://www.fema.gov/pdf/emergency/nims/NIMS_core.pdf [hereinafter NIMS]. The National Incident Management
System (NIMS) is a doctrinal framework for incident management designed to provide consistency at all jurisdictional
levels. 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. Chapter 2, National Framework for Incident Management,
infa, contains more discussion on NIMS.
5 National Incident Management doctrine and policy has expanded significantly since the publication of the first NRF.
The NRF is now part of the National Preparedness System, which includes four other Frameworks designed to achieve
the National Preparedness Goal. Chapter 2, National Framework for Incident Management, infa, contains an extensive
discussion of this new model.
6
JP 3-28, supra note 3, at viii.
7 DEP’T OF DEFENSE, DIR. 3025.18, MILITARY DEFENSE SUPPORT OF CIVIL AUTHORITIES (21 Sept. 2012) [hereinafter
DoDD 3025.18] defines “DSCA” as:
Support provided by U.S. Federal military forces, DoD civilians, DoD contract personnel, DoD Component assets,
and National Guard forces (when the Secretary of Defense, in coordination with the Governors of the affected
States, elects and requests to use those forces in title 32, U.S.C. status) in response to requests for assistance from
civil authorities for domestic emergencies, law enforcement support, and other domestic activities, or from
qualifying entities for special events. Also known as civil support.
8 See NRF, supra note 2, at i (noting the NRF describes specific authorities and best practices for managing incidents
that range from the serious but purely local to large scale terrorist attacks or catastrophic natural disasters).
9
It is important to note that not all CBRN incidents may be the result of a WMD. A domestic accident on the scale of
the radiation release in Chernobyl, Ukraine; Fukushima, Japan; or the pesticide release in Bhopal, India in the U.S.
would most likely result in DoD-assisted CBRN CM operations.
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