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United States today¹⁰ and underscore the importance of maintaining a DoD force that is ready and

able to respond to these specialized threats.

B. CBRN Consequence Management (CM) Overview and Authorities

A CBRN incident is any occurrence resulting from the use of CBRN weapons or devices, or the

release of CBRN hazards, to include toxic industrial materials from any source.¹¹ Any action taken

to address the consequences of any inadvertent or deliberate release of a chemical, biological,

radiological, or nuclear agent constitutes a CBRN CM operation.¹² As a general proposition, a

catastrophic CBRN event would quickly exceed the capabilities of local, state, and tribal

governments; consequently, CBRN CM is normally managed at the federal level, with DoD in a

supporting role.¹³ Although an LFA leads and coordinates the overall federal response to an

emergency, supporting DoD entities remain under the command and control of the supported

Combatant Commander (NORTHCOM or PACOM). Similarly, state governors, through their

Adjutants General, control National Guard forces when performing duty in a state status or in

accordance with Title 32 of the United States Code.¹⁴

A request for DoD capabilities from state governors or other federal agencies is called a request for

assistance (RFA). In most cases, these requests for emergency support are written and are

processed through formal RFA process. The processing of an RFA varies depending upon the size

and urgency of the incident, the level of federal involvement, and the originator of the request. For

small scale CBRN incidents, and during the initial stages of larger incidents, a state’s Emergency

Operations Center (EOC) may forward requests to the FEMA region’s Defense Coordinating

Officer (DCO), who, in turn, forwards the RFA to the Assistant Secretary of Defense for Homeland

Defense and Americas’ Security Affairs (ASD(HD&ASA)).¹⁵ If the incident exceeds the

capabilities of the state and local responders, and the President has issued an emergency or disaster

¹⁰ The Homeland Security Council has developed fifteen scenarios depicting “a diverse set of high-consequence threat

scenarios of both potential terrorist attacks and natural disasters.” Two of the scenarios represent natural disasters,

major earthquake and major hurricane; a third highlights economic and social complications resulting from a cyber

attack; the remaining 12 scenarios focus on chemical, biological, radiological, nuclear or high-yield explosive (CBRNE)

incidents. National Preparedness Guidelines, DHS.GOV (last visited Jul. 8, 2013).

¹¹ See JP 3-41, supra note 1, at I-1. An exception to this general classification is the Government’s response to

incidents involving U.S. nuclear weapons within DoD custody or fissionable materials within Department of Energy

custody. See generally EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, p.

10-11 (May 2013), available at FEMA.gov; OFFICE OF THE ASSISTANT TO THE SECRETARY OF DEFENSE FOR NUCLEAR

AND CHEMICAL AND BIOLOGICAL DEFENSE PROGRAMS, DEPT. OF DEFENSE MANUAL 3150.8-M, NUCLEAR WEAPON

ACCIDENT RESPONSE PROCEDURES (NARP) (22 Feb. 2005).

¹² CBRN CM includes having plans, policies, procedures, training, and equipment necessary to effectively respond to

CBRN incidents. CBRN CM provides the operational framework for authorized DoD measures in preparation for

anticipated CBRN incidents to mitigate the loss of life and property and to assist with the response and short-term

recovery that may be required. JP 3-41, supra note 1, at I-5.

¹³ For example, 10 U.S.C. § 382 (2012) authorizes the Attorney General to request DoD support when an emergency

situation involving a biological or chemical weapon of mass destruction exists. Additionally, as an exception to the

Posse Comitatus Act, 18 U.S.C. § 831 (2011) authorizes the Attorney General—during an emergency situation—to

request DoD support in enforcing laws against the unlawful dispersal of nuclear material or nuclear byproducts.

JP 3-41, supra note 1, at x, xvii, GL-9.

¹⁵ The ASD(HD/ASA) is the DoD Executive Agent responsible for approving and monitoring DoD assistance for

federal, state, and local officials in responding to domestic threats or events involving nuclear, chemical, and biological

weapons. See 50 U.S.C. § 2313 (2011).

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declaration at the Governor’s request, the LFA will establish a Joint Field Office (JFO), and a

Federal Coordinating Officer (FCO) will be designated.

Following the establishment of the JFO, the FCO will forward RFAs from civil authorities to the

Office of the Executive Secretary of the Department of Defense, who forwards them to the

ASD(HD&ASA) and the Joint Director of Military Support (JDOMS) for validation and order

processing. If a DCO is on-site, RFAs are submitted directly to ASD (HD & ASA). Once SecDef

approves a request for DOD assistance, JDOMS prepares an order and coordinates with necessary

force providers, legal counsel, and ASD(HD&ASA) to ensure asset priority and concurrence. The

order is then issued to the appropriate combatant command to execute the mission.¹⁶ The

Combatant Commander then orders the Commander, Joint Task Force -Civil Support (JTF-CS), to

conduct consequence management operations.

Every RFA must undergo a legal review. All requests by civil authorities for DoD military

assistance shall be evaluated by DoD approval authorities against the following criteria (the

CARRLL” factors discussed in other chapters, including chapter 1, infra):¹⁷

• Cost (who pays, impact on DOD budget)

• Appropriateness (whether the requested mission is in the DOD’s interest)

• Risk (safety of DOD forces)

• Readiness (impact on the DOD’s ability to perform its primary mission)

• Legality (compliance with laws)

• Lethality (potential use of lethal force by or against DOD forces)

Military missions require legal authority. DoD’s CBRN CM operations are generally executed

under the provisions of The Robert T. Stafford Disaster Relief and Emergency Assistance Act.¹⁸

The Stafford Act is the primary authority for the Federal Government to assist local and state

governments with emergencies and disasters.¹⁹

JP 3-28, supra note 3, at II-9, 11, 12.

¹⁷ DODD 3025.18, supra note 7, at. 4.

¹⁸ The Robert T. Stafford Disaster Relief and Emergency Assistance Act, (Public Law 93-288) (42 U.S.C. § 5121, et

seq.) (as amended) [hereinafter Stafford Act].

¹⁹ The Stafford Act is outlined in Chapter 2. The Secretary of Homeland Security is responsible for overall

coordination of Federal Stafford and non-Stafford incident management activities. Requests for DoD assistance may

occur under Stafford Act or non-Stafford Act conditions. In general, a Stafford Act incident is one in which state and

local authorities declare an emergency or disaster but require and consequently request federal assistance to adequately

manage the incident.

42 U.S.C. 5122 (1) defines an emergency as:

[A]ny occasion or instance for which, in the determination of the President, Federal assistance is

needed to supplement State and local efforts and capabilities to save lives and to protect property

and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the

United States.

42 U.S.C. § 5122(2) defines a major disaster as:

[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

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Occasionally, the legal authority to use DoD forces for CBRN incidents arises from other sources.

Three examples are:

• DoDD 3025.18 delegates Immediate Response Authority to Heads of DoD Components,

Federal military commanders, and/or DoD civilian officials (collectively “DoD officials”). 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 may provide

assistance to authorities to save lives, prevent human suffering, or mitigate great property

damage. This is subject to any supplemental direction provided by higher headquarters. It is

important to note that this authority is extremely fact-specific and expires immediately when the

facts no longer meet the threshold.²⁰

• DoDD 3025.18 also provides federal military commanders with emergency authority to engage

temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.²¹

See Military Support to Civilian Law Enforcement, chapter 4, infra, for an in-depth discussion

of this authority.

• Executive Order 13527, “Establishing Federal Capability for the Timely Provision of Medical

Countermeasures Following a Biological Attack,” provides authority for designated federal

agencies (including DoD) to provide support to operations that leverage the U.S. Postal Service

to distribute “medical countermeasures” to the general population.²²

C. DoD Entities Responsible for CBRN CM Operations

The National Defense Authorization Act of Fiscal Year 2003²³established what later became the

Office of The Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs

(ASD(HD/ASA)). The ASD(HD/ASA) assumed responsibilities as DoD’s Executive Agent

responsible for approving and monitoring DoD assistance to Federal, state, and local officials

responding to domestic threats or events involving nuclear, chemical, and biological weapons. As a

result, this office oversees defense support of civilian authorities (DSCA), including CBRN CM.²⁴

The Joint Director of Military Support (JDOMS) is an action agency subordinate to ASD(HD/ASA)

that is located at the Pentagon. For DSCA missions, JDOMS plans, coordinates, and monitors DoD

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.

A CBRN incident clearly falls into the definition of emergency. Technically, a fire, flood, or explosion would have to

occur to trigger a major disaster declaration for a CBRN incident.

²⁰ DoDD 3025.18, supra note 7, para. 4.g. Within 72 hours of receipt of the request for assistance, a review of the need

to continue DoD involvement in the response shall occur.

Id., para. 4.i.

²² Exec. Order No. 13257, 75 Fed. Reg. 737 (Jan. 6, 2010).

²³ The Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, § 902, 116 Stat.

2458 (2002).

²⁴ DEP’T OF DEFENSE, DIR. 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND AMERICAS’

SECURITY AFFAIRS (ASD(HD&ASA)) (16 Jan. 2009).

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support within the U.S. and territories in response to requests from federal agencies. Accordingly,

JDOMs produces military orders for DSCA, including consequence management operations.²⁵ For

Special Events, e.g. National Special Security Events (such as international sport competitions)

JDOMS plans, coordinates, and facilitates DoD support to federal, state, and local agencies and

organizers.

In 2002, DoD also established USNORTHCOM. The specific mission of USNORTHCOM,

headquartered in Colorado Springs, Colorado, is to “conduct homeland defense, civil support, and

security operations within the assigned area of responsibility to defend, protect, and secure the

United States and its interests.”²⁶ USNORTHCOM is designated as the command to conduct

CBRN CM operations in support of an LFA in the forty-eight contiguous states, the District of

Columbia, Alaska, and U.S. territorial waters.²⁷

In 2008, USNORTHCOM designated U.S. Army North (ARNORTH) as the Joint Force Land

Component Commander (JFLCC) for domestic CM operations.²⁸ ARNORTH, located at Fort Sam

Houston, Texas, is responsible for developing and unifying the military response capability for

CBRN incidents.²⁹

D. Specialized DoD CBRN Responders

Joint Task Force Civil Support³⁰

Joint Task Force Civil Support (JTF-CS) will be involved in domestic emergencies, law

enforcement support,³¹ and other civil support activities.³² Although Joint Task Force Civil Support

JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION CJCSI 5711.02C, DELEGATION

APPROVAL AUTHORITY, 5.d. (30 Nov. 2012).

²⁶ About USNORTHCOM,USNORTHCOM, http://www.northcom.mil/About/index.html (last visited July 22, 2013).

²⁷ CDRUSNORTHCOM CONPLAN 3500-08 (CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR AND HIGH-YIELD

EXPLOSIVES CONSEQUENCE MANAGEMENT OPERATIONS (CBRNE CM), para. 1b(1) and 1e(1) (22 Oct. 08)(U).

JOINT PUB. 3-41, supra note 1, at II-5.

²⁹ About USNORTHCOM,USNORTHCOM, http://www.northcom.mil/AboutUSNORTHCOM.aspx (last visited July

22, 2013).

³⁰ See infra, Chapter 8, Military Support Operations, for more examples of non-emergency or law enforcement support

JTF-CS may assist with.

³¹ When situations are beyond the capability of the state, the governor requests federal assistance through the President.

DoD support or assistance to restore public services and civil order may include augmentation of local first responders

and equipment. It may include law enforcement support, continuity of operations/continuity of government measures to

restore essential government services, protect public health and safety, and provide emergency relief to affected

governments, businesses, and individuals. Responses occur under the primary jurisdiction of the affected state and local

government, and the federal government provides assistance when required. See JOINT PUB. 3-28, supra note 3, at x.

³² These other activities include support to special events designated by the DHS Special Events Working Group

(SEWG). “National special security event” (NSSE) is a designation given to certain special events that, by virtue of

their political, economic, social, or religious significance, may be the target of terrorism or other criminal activity. The

Secretary of Homeland Security, after consultation with the Homeland Security Council, shall be responsible for

designating special events as NSSEs. Usually, other military operations will have priority over these missions, unless

directed otherwise by the SecDef. These events will be assigned a priority by the SEWG and will normally be

monitored by the combatant command responsible for the area in which they are conducted.

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(JTF-CS) is nominally linked to broader mission areas, the organization’s focus is far narrower:

JTF-CS’ specific mission is CBRN CM.³³

JTF-CS is a standing joint task force headquarters located at Fort Eustis, Virginia. An Army or Air

Force National Guard General on federal active duty status commands JTF-CS. The staff consists

of active and reserve component military from all five services, government service personnel, and

civilian contractors. Collectively, the command possesses expertise in a wide range of functional

areas including operations, logistics, intelligence, planning, communications, and medical services.

Created by the Unified Command Plan for 1999,³⁴JTF-CS provides both an operational capability

and an oversight mechanism that can anticipate support requirements for responding to a

catastrophic CBRN incident, undertake detailed analysis, conduct exercises, and ultimately respond

in support of civil authorities. USNORTHCOM has command authority over JTF-CS, and

ARNORTH has OPCON over the unit. It is a deployable command and control headquarters for

DoD units and personnel executing CM operations in response to CBRN incidents, and a source of

response plans for essential DoD support to the LFA. When directed, JTF-CS will deploy to the

incident site and establish command and control of designated DoD forces, providing defense

support of civil authorities to save lives and prevent further injury. JTF-CS may deploy in support

of a USPACOM incident as well. The NRF provides the coordinating framework under which JTF

CS performs its mission.³⁵

On October 1, 2008, JTF-CS received operational control over various units assigned to the

CCMRF, or CBRNE Consequence Management Response Force. The CCMRF transitioned to the

Defense CBRNE Response Force (DCRF) in 2011, and now has approximately 5,000 personnel in

88 units at 35 installations across the U.S.³⁶ DCRF units are used to support lead federal agencies

in the event of a CBRN incident and operate under the National Response Framework when

deployed to assist.³⁷

JTF-CS employs a three-fold process that enables the command to gain and maintain situational

awareness prior to an execution order. First, JTF-CS staffs an around-the-clock operations center

tasked with gaining and maintaining situational awareness. Second, the command has liaison

officers who routinely interact with interagency partners to ensure familiarity with their operations,

facilitate interagency communications and operations, and gain first-hand understanding of their

emergency response plans. Third, when an incident actually occurs but prior to the receipt of an

Joint Task Force Civil Support Fact Sheet, JOINT TASK FORCE CIVIL SUPPORT,

http://www.jtfcs.northcom.mil/JTFCS.aspx (last visited July 22, 2013).

³⁴ Even though the Unified Command Plan for 1999 doesn’t specifically mention JTF-CS, the SECDEF memo

accompanying the plan when forwarded to the President notified the President that the SECDEF intended to establish a

standing Joint Task Force for Civil Support. The unit would report to the SECDEF through the U.S. Joint Forces

Command and the Chairman of the Joint Chiefs of Staff. Its principle focus would be to plan for and integrate DoD’s

support to the lead federal agency with the responsibility to manage the consequences of a domestic weapons of mass

destruction (WMD) event. The SECDEF felt that, due to the catastrophic nature of a WMD terrorist event that would

quickly overwhelm state and local authorities, the structure that existed for providing DoD support needed to be

expanded.

JOINT PUB. 3-41, supra note 1, at II-5, II-6.

³⁶ Kelley Vlahos, Public Safety Today: CBRN Protection - From CCMRF to DCRF: Changing Letters for Better

Results, HOMELAND SECURITY TODAY (Jul. 3, 2012)

http://www.hstoday.us/index.php?id=483&cHash=081010&tx_ttnews%5Btt_news%5D=24557.

³⁷ DCRF, JOINT TASK FORCE CIVIL SUPPORT, http://www.jtfcs.northcom.mil/DCRF.aspx (last visited July 22, 2013).

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execution order, JTF-CS is prepared to send an assessment element to the incident area. This

element is referred to as the NORTHCOM Situational Awareness Team (NSAT). The NSAT’s

purpose is to establish the “ground truth” concerning what emergency assets and capabilities are

either at-hand or available to emergency managers through intrastate or interstate compacts. The

NSAT provides this information to the Commander, USNORTHCOM, to assist in his decision-

making. Additionally, the information enables JTF-CS planners to perform predictive analysis

regarding the types of missions that the LFA may ask DoD to perform. These extensive planning

efforts enable DoD to organize a timely flow of appropriate assets to the incident area upon request.

Upon receipt of an execution order, JTF-CS has the ability to reconfigure into two command posts

to ensure continuity of operations at home station, while deploying forward to the incident site. The

magnitude of the CBRN incident determines the size of the deploying command post.

Additionally, JTF-CS routinely provides support to other commands during real-world events with

Joint Planning Augmentation Cells (JPACs). JPACs consist of five to fifteen individuals with

extensive consequence management planning skills that can help other staffs plan for and respond

to CBRN or other incidents in their immediate area of responsibility. JPACs are tailored to fit the

type of support requested by the supported organization.

National Guard Weapons of Mass Destruction Civil Support Teams (CSTs)

Pursuant to 10 U.S.C. § 12310(c), and additional authorizations by Congress and through SECDEF

validation, DoD is authorized a total of 57 WMD-CSTs.³⁸ Recognizing that the National Guard is

“forward-deployed for civil support,”³⁹the Secretary of Defense determined that the CSTs would be

most effective if established in the National Guard. Consequently, each WMD-CST is composed of

twenty-two full-time National Guard Soldiers and Airmen and contains five elements: command,

operations, administrative/logistics, medical, and survey.

The teams are designed to deploy rapidly to assist local first responders in the event of a CBRN

incident.⁴⁰ Specifically, the mission of each state National Guard WMD-CSTs is to deploy to an

area of operations and:

• Assess a suspected event in support of a local incident commander;

• Advise the local incident commander and civilian responders; and

• Facilitate requests for assistance to expedite arrival of additional state and federal assets to help

save lives, prevent human suffering, and mitigate great property damage.

³⁸ The number of authorized CSTs is the culmination of legislative actions during the last decade. Most recently, the

National Defense Authorization Act for Fiscal Year 2013, Pub. L. 112-239, 126 Stat. 1632 (2012) amended 10 U.S.C.

12310 leading to the establishment of two additional CSTs for a current total of 57. For a general overview of CSTs,

see 2009 Army Posture Statement, http://www.army.mil/aps/09/information_papers/national_guard_weapons.html (last

visited July 22, 2013).

³⁹ U.S. Secretary of Defense Report to Congress pursuant to FY00 National Defense Authorization Act § 1036, 2 (Feb

24, 2000).

Id.

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WMD-CSTs are specially equipped and trained. Special equipment includes the Mobile Analytical

Laboratory System (MALS)⁴¹ for nuclear, biological, and chemical (NBC) detection and the

Unified Command Suite (UCS) vehicle for communications.⁴²

WMD-CST capabilities are specifically designed to complement civilian responders.⁴³ Community

and state emergency management plans may directly incorporate WMD-CST capabilities.

WMD-CSTs operate under the command and control of the state governor and the Adjutant

General. Individual team members serve in a full-time, Title 32 National Guard status.⁴⁴ If the

teams are called to federal active duty, they will normally be attached to JTF-CS.⁴⁵

In addition, WMD-CSTs assigned to one state are authorized to operate in another state pursuant to:

• State-to-State Emergency Management Assistance Compacts (EMACs);

• State-to-State Memoranda of Agreement; or,

• Activation under Title 10.⁴⁶

3. National Guard CBRNE Enhanced Response Force Package (CERFP)

The CERFP is a response capability comprised of 186 traditional and five Title 32 Active Guard

and Reserve (AGR) National Guard members. CERFP can be utilized in state active duty, Title 32,

or Title 10 status. There are currently 17 CERFPs in the United States. CERFP’s mission is to

respond to CBRN incidents and assist local, state, and federal agencies in conducting consequence

management by providing capabilities to effect patient and mass casualty decontamination,

emergency medical services, and casualty search and extraction. CERFP teams function as either as

follow-on or pre-positioned forces and work closely with CSTs.⁴⁷

4. National Guard Homeland Response Force (HRF)

DoD, based on recommendations from the Quadrennial Defense Review (QDR), directed the

National Guard to create 10 Homeland Response Forces (HRFs): two in FY11 and eight in FY12.

Each HRF is essentially a CERFP with security and a regional command and control element. They

are composed of approximately 566 personnel and bring capabilities including search and

Id. at 3. MALS is based on system used by the Marine Corps’ Chemical Biological Incident Response Forces with

enhanced biological detection capability.

Id. The UCS, built by the Navy, provides communication interface across the ICS frequencies, military command

and control elements, and technical support assets.

Id. at 4.

Id. at 5; 10 U.S.C. § 12310(c)) (2012).

⁴⁵ U.S. Secretary of Defense Report to Congress pursuant to FY00 National Defense Authorization Act § 1036, 5 (Feb

24, 2000).

Id. at 6. See infra Chapter 3 for a detailed discussion of EMACs. A recent example of this was the deployment of

the 24^thCST from Fort Hamilton, NY to Boston, MA in support of post-Boston Marathon bombing operations. See

Paula Katinas, Fort Hamilton Anti-Terror Unit Sent to Boston Bombing Site, BROOKLYN DAILY EAGLE, July 22, 2013,

available at: http://www.brooklyneagle.com/articles/fort-hamilton-anti-terror-unit-sent-boston-bombing-site-2013-04

17-163000.

⁴⁷ National Guard CERFP Teams, UNITED STATES ARMY NATIONAL GUARD (Dec. 20, 2010),

http://www.arng.army.mil/news/publications/fs/2010/Subject_papers/National%20Guard%20CERFP%20Teams.pdf

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extraction, decontamination, emergency medical service, security, and command and control.

There are ten HRFs (one per FEMA region).⁴⁸

USCG National Strike Force (NSF) Coordination Center and Strike Teams

The NSF deploys specialized capabilities to support lead agency, incident commander, and federal

on-scene coordinator preparation and response to CBRN incidents, hazardous substance releases, oil

discharges, and other emergencies. NSF assets include the NSF Coordination Center in Elizabeth

City, North Carolina, and three strike teams: the Atlantic Strike Team in Joint Base McGuire-Dix-

Lakehurst, New Jersey; the Gulf Strike Team in Mobile, Alabama; and the Pacific Strike Team in

Novato, California. NSF equipment includes CBRN detection; air, water, and soil sampling; Level

A, B, and C personnel protection; self-decontamination equipment; hazardous material packaging;

mobile command posts; and other field operational equipment. NSF equipment is pre-packed for

immediate deployment by truck or aircraft. Additionally, as elements of the Coast Guard, NSF units

have the organic authority to respond domestically to many types of hazardous materials (chemical)

incidents under the National Contingency Plan, either as lead responders in the coastal zone or as an

assisting agency to the Environmental Protection Agency (EPA) in the inland zone.⁴⁹The NSF may

also deploy detachments to support overseas military environmental response operations.⁵⁰

E. Special Legal Considerations During CBRN CM Operations

The parameters under which DoD operates domestically vary greatly from those involved in

traditional military activities. DoD domestic CBRN CM activities raise legal issues not found in

typical non-civil support operations. Depending on the circumstances, and the location of the

incident, the scope and complexity of potential legal issues will greatly vary. Below are four

common legal issues that would likely arise in the context of any CBRN CM operation. As

operations involving these areas are largely driven by policy decisions at the SECDEF level or

higher - and are additionally vetted through the normal mission assignment process - judge

advocates at the should receive primary guidance concerning these issues through appropriate

mission OPORDs, EXORDs, FRAGOs, or relevant service-specific field guidance. Judge

advocates should, however, familiarize themselves beforehand with issues they may encounter in

these areas, as well as primary federal and state authorities discussed below.

Quarantine/Isolation

Quarantine⁵¹ and isolation⁵² enforcement issues may arise most typically in pandemic scenarios.

State and local health authorities are primarily responsible for decisions to impose quarantine or

⁴⁸ National Guard Homeland Response Force, NATIONAL GUARD.MIL (Jan. 2012),

http://www.nationalguard.mil/features/ngps/2013/docs/National_Guard_Homeland_Response_Force_(Jan_2012)end

of-year-review-v1.pdf.

⁴⁹ See Chapter 2, National Framework for Incident Management, infra, for more backg0round on the National

Contingency Plan.

⁵⁰ See JP 3-41, supra note 1, at II-11.

“Quarantine” is defined as the “[s]eparation of individuals who have been exposed to an infection but are not yet ill

from other individuals who have not been exposed to the transmissible infection.” Homeland Security Council,

National Strategy for Pandemic Influenza: Implementation Plan 209 (GPO May 2006).

“Isolation” is defined as the “[s]eparation of infected individuals from those individuals that are not infected.” Id. at

208.

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isolation, and the power to enforce these is generally considered to be part of a jurisdiction’s police

powers.⁵³ Federal power to impose quarantine and isolation measures arises with attempts to halt or

impede the “introduction, transmission, or spread of communicable diseases from foreign countries

into the States or possessions, or from one State or possession into any other State or possession.”⁵⁴

Regardless of whether the quarantine and isolation measures are imposed at the federal, state, or

local level, DoD enforcement actions may be subject to the Posse Comitatus Act (PCA),⁵⁵absent an

alternative statutory or constitutional authority. A potential exception to PCA restrictions is 42

U.S.C. § 97 (involving state quarantine laws), which is listed in DoDI 3025.21 as one of the specific

laws that allows direct DoD participation in law enforcement, subject to applicable limitations.⁵⁶ It

is also possible that a quarantine or isolation actions could lead to conditions necessitating a

Presidential invocation of the Insurrection Act.⁵⁷ Typically, however, any DoD support provided to

quarantine and isolation support will be limited to logistical, communications, medical, and other

support commonly envisioned by the Stafford Act. Measures provided by DoD may or may not

amount to direct participation in law enforcement activity, and, therefore, a strict analysis of PCA

applicability should occur in all cases.⁵⁸

Environmental Compliance

Judge advocates planning for CBRN CM operations should assume that federal, state, and local

environmental laws and regulations will remain in place, at least as they pertain to DoD response

operations. Specific laws that may apply include the Endangered Species Act (ESA), Federal Water

Pollution Control Act (FWPCA), National Historic Preservation Act, and the National

Environmental Policy Act (NEPA), to name a few. For example, the Stafford Act specifically states

that NEPA applies to actions undertaken pursuant to the Act.⁵⁹ There are some laws that streamline

applicability of environmental regulations or exempt their application during a response. For

example, to streamline the application of NEPA, actions performed under certain sections of the

Stafford Act aimed at restoring facilities are not considered “major federal actions” that would

normally trigger more NEPA scrutiny.⁶⁰

⁵³ Kathleen S. Swendiman and Jennifer K. Elsea , Federal and State Quarantine and Isolation Authority 2, U.S.

Congressional Research Service, RL33201, (Jan. 23, 2007).

42 U.S.C. § 264(a) (2011). Additionally, in some situations, the federal government may intervene if it deems state

and local control measures to be inadequate. 42 C.F.R. § 70.2 (2013).

18 U.S.C. § 1385 (2011)

42 U.S.C. § 97 (2011) specifically states “The quarantines and other restraints established by the health laws of any

State, respecting any vessels arriving in, or bound to, any port or district thereof, shall be duly observed by the officers

of the customs revenue of the United States, by the masters and crews of the several Coast Guard vessels, and by the

military officers commanding in any fort or station upon the seacoast; and all such officers of the United States shall

faithfully aid in the execution of such quarantines and health laws, according to their respective powers and within their

respective precincts, and as they shall be directed, from time to time, by the Secretary of Health and Human Services.”

10 U.S.C. §§ 331-335 (2012).

⁵⁸ Chapter 4, Military Support to Civilian Law Enforcement infra has an extensive discussion on how to ensure

compliance with the PCA.

⁵⁹42 U.S.C. § 5170c (2011).

42 U.S.C. § 5159 (2011).

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The handling and disposal of waste from CBRN CM decontamination operations will frequently

implicate environmental compliance issues. In such a scenario, the EPA, operating under ESF #10,

would be the primary agency responsible for hazardous waste management.⁶¹ Additionally,

coordination with state authorities regarding the state’s environmental laws and regulations is

essential. For example, judge advocates should ensure that appropriate staff sections and levels of

command have ascertained whether the decontamination and waste disposal procedures outlined in

FM 3-11.5⁶²are sufficient for a specific CBRN CM operation, or whether those procedures should

be modified pursuant to guidance from appropriate state agencies.

Health Care Licensure

In a domestic CBRN event, non-fatality casualties may range from minimal to overwhelming. The

greater the number of casualties, the more likely that any requested DoD support will include

requests for DoD medical personnel to provide care for the affected populace. Because DoD

caregivers may not necessarily be licensed/credentialed in accordance with appropriate state laws,

judge advocates must be prepared to render advice on federal and state licensure requirements

during emergency support operations. Upon a command’s receipt of any mission assignments

relating to the provision of health-related services (or even prior to receipt, if practicable), judge

advocates on the operational and tactical levels should verify with higher headquarters that any

health care licensure requirements have been met or waived by appropriate authorities, and that

there is a common understanding between the various agencies involved (including DoD, ESF #8,

and state and local agencies) regarding the statutory portability provisions discussed below.

The primary federal statute regarding credentialing of military personnel is 10 U.S.C. § 1094

(Licensure requirement for health care professionals). This law states that an armed forces health

care professional who has a current license and is performing authorized duties for DoD may

practice his or her health care profession in any state, notwithstanding any other health care

licensure laws and regardless of whether the practice occurs in a DoD facility, a civilian facility

affiliated with DoD, or any other location authorized by SECDEF.⁶³ DoD has promulgated

qualification and coordination requirements for this statutory portability provision as it pertains to

off-base duties.⁶⁴ The various qualification/coordination with state licensing board requirements

pertaining to health care personnel involved in off-base duties can be found in DoD 6025.13-R,

para. C.4.2.

10 U.S.C. § 1094 only applies to those “performing authorized duties for the Department of

Defense” and Title 32 forces in a § 502(f) status.⁶⁵ National Guard members in state status may

need to look to state laws for guidance on their status. On the state level, many jurisdictions have

passed emergency management provisions containing portability of licensure provisions. For

⁶¹ FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, p. 10-11 (May

2013), available at FEMA.gov.

⁶² U.S. DEP’T OF ARMY, FIELD MANUAL 3-11.5, MULTISERVICE TACTICS, TECHNIQUES, AND PROCEDURES FOR

CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR DECONTAMINATION (4 Apr. 06).

10 U.S.C. § 1094(d)(1) (2012).

“Off base duties” are “[o]fficially assigned professional duties performed at an authorized location outside a MTF

and any military installation.” U.S. DEP’T OF DEFENSE, REG. 6025.13-R, MILITARY HEALTH SYSTEM CLINICAL

QUALITY ASSURANCE PROGRAM, para. DL1.1.32 (11 Jun. 2004).

10 U.S.C. § 1094(d)(2) and (d)(3).

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example, the Florida Governor’s proclamation of a major or catastrophic disaster provides authority

for a health care practitioner licensed in another state to assist in providing health care in the

disaster area according to the provisions specified in the proclamation.⁶⁶ Similarly, California

permits health care providers licensed in other states to provide health care during a statutorily

defined state of emergency, if the emergency overwhelms California health care practitioners’

response capabilities and California’s Director of the Emergency Medical Service Authority

requests assistance.⁶⁷ Although during a Stafford Act response DoD support will not normally be

provided absent a specific request from State authorities, judge advocates, through their technical

chain, should ensure that all appropriate agencies and levels of command have a common

understanding of the state laws and rules regarding licensure and how those laws complement Title

10 provisions.

Also, at the state level, judge advocates can also look to either the applicable state’s Emergency

Management Assistance Compact (EMAC)⁶⁸or Article VI of the Model EMAC legislation, which

states:

If a person or entity holds a license, certificate or other permit issued by a

participating political subdivision or the state evidencing qualification in a

professional, mechanical or other skill and the assistance of that person or entity

is requested by a participating political subdivision, the person or entity shall be

deemed to be licensed, certified or permitted in the political subdivision

requesting assistance for the duration of the declared emergency or authorized

drills or exercises and subject to any limitations and conditions the chief

executive of the participating political subdivision receiving the assistance may

prescribe by executive order or otherwise.⁶⁹

Even if the state has passed the model EMAC legislation without alteration, however, judge

advocates must be cognizant of the particular state Governor’s limitations on this portability

provision.

4. Mortuary Affairs

As with non-fatality casualties, the number of fatalities in a CBRN event may quickly overwhelm

state and local capabilities. As in other aspects of emergency management, primary responsibility

for mortuary affairs (MA) operations lies at the local level, normally with the local medical

examiner and/or coroner. The National Response Framework gives ESF #8 the responsibility for

mass fatality management in the federal response,⁷⁰but in a catastrophic scenario, it is likely that

DoD will be asked to provide mortuary affairs support. Types of support DoD may be asked to

⁶⁶ Fla. Stat. § 252.36(3)(c)1.

⁶⁷ Cal. Bus. & Prof. Code § 900.

⁶⁸ For more information on EMAC, see EMERGENCY MGMT ASSISTANCE COMPACT, http://www.emacweb.org/ (last

visited Jul. 8, 2013).

⁶⁹See EMAC LEGISLATION,

http://www.emacweb.org/index.php?option=com_content&view=article&id=155&Itemid=271 (last visited Jul. 23,

2013).

⁷⁰ DEPARTMENT OF HEALTH AND HUMAN SERVICES, EMERGENCY SUPPORT FUNCTION #8 - PUBLIC HEALTH AND

MEDICAL SERVICES 8-2 (Jan. 2008), available at FEMA.gov.

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provide, potentially utilizing personnel that are not MA-skilled, may include search and recovery

operations and transportation and storage of remains, among others.⁷¹ DoD personnel who are not

MA-skilled may require training in mortuary affairs (which the civilian agencies responding must

provide) prior to engaging in decedent-related missions or activities.⁷²

During operations, judge advocates should become familiar with the relevant state laws, regulations,

and licensure requirements regarding the handling, transportation, and disposition of human

remains, and ensure that these requirements have either been met or waived by appropriate

authorities. Judge advocates should also be cognizant of the various points of contact involved in

mortuary affairs operations, including the local medical examiner/coroner, local law enforcement,

and the FBI

JOINT CHIEFS OF STAFF, JOINT PUB. 4-06, CIVIL SUPPORT VII-7 (12 Oct. 2011).

Id. at VII-8.

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CHAPTER 7

COUNTERDRUG OPERATIONS

KEY REFERENCES:

•

10 U.S.C. § 124 - Detection and Monitoring of Aerial and Maritime Transit of Illegal Drugs.

•

10 U.S.C. § 371-381 - Military Support for Civilian Law Enforcement Agencies.

•

10 U.S.C. § 379 - Coast Guard Law Enforcement Detachments.

•

14 U.S.C. § 89 - Coast Guard Law Enforcement Authority.

•

18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).

•

32 U.S.C. § 112 - National Guard Funding.

•

National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004 (1991) (as amended).

•

DoD Financial Management Regulation, Vol. 2B, ch. 14, Drug Interdiction and Counter Drug

Activities, June 2004.

•

Deputy Secretary of Defense Memorandum, Department of Defense Counternarcotics Policy,

July 31, 2002.

•

Deputy Secretary of Defense Memorandum, Department of Defense International

Counternarcotics Policy, December 24, 2008.

•

Deputy Secretary of Defense Memorandum, Department Support to Domestic Law Enforcement

Agencies Performing Counternarcotics Activities, October 2, 2003.

•

Deputy Secretary of Defense Memorandum, OSD/SO-LIC Counternarcotics Mission Transfer

Plan, February 13, 2003 (FOUO).

•

Deputy Assistant Secretary of Defense/CN Memorandum, Policy Definition of “Counterdrug

Activities”, October 23, 2002.

•

Deputy Assistant Secretary of Defense /CN Memorandum, Policy Definition of

“Narcoterrorism”, April 12, 2004.

•

Deputy Assistant Secretary of Defense /CN Memorandum, Counter Drug Support to Counter-

Narcoterrorist Activities (Memo to Chief, NGB) August, 26, 2005.

•

Deputy Assistant Secretary of Defense /CN Memorandum, Procedures for Handling Requests

for Counterdrug Narcoterrorist Support, 2006.

•

DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.

•

CNGB Memo, Counter Drug Support to Counter-Narcoterrorist Activities, December 22, 2005.

•

CNGB Memo, Implementation of Procedures for Handling Requests for Counterdrug

Narcoterrorist Support, June 2, 2006.

•

NGR 500-2/ANGI 10-801, National Guard Counterdrug Support, August 28, 2008.

•

CJCSI 3121.01B - Standing Rules of Engagement/Standing Rules for the Use of Force for U.S.

Forces, June 13, 2005.

•

CJCSI 3710.01B, DoD Counterdrug Support, January 26, 2007.

•

Joint Pub 3-07.4, Joint Counterdrug Operations, June 13, 2007.

•

The President’s National Drug Control Strategy (2013).

•

Department of Defense Counternarcotics & Global Threats Strategy, April 27, 2011.

Introduction

In the 1980s, Congress determined that DoD should provide increased support to civilian law

enforcement agencies’ (LEA) counterdrug operations. Over the years, Congress increasingly

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mandated support by DoD for counterdrug operations. This support now includes both active

component and National Guard full-time engagement in the mission. DoD counterdrug operations

are coordinated by the Deputy Assistant Secretary of Defense, Counter Narcotics (DASD/CN),

which is located within the Office of the Assistant Secretary of Defense for Special Operations and

Low Intensity Conflict (ASD(SO/LIC)). The National Guard Counterdrug (CD) program is

administered through the National Guard Bureau J32-CD Division. This chapter examines support

by both the active duty military and the National Guard.

B. Title 10 Support to Counterdrug Operations

In 1981, Congress passed Chapter 18 of Title 10 entitled Military Cooperation with Civilian Law

Enforcement Officials.¹ Although Chapter 18 permits general military cooperation with civilian law

enforcement agencies, Congress passed the Act and its subsequent amendments with the intent of

enabling DoD to provide increased counterdrug support.²

In 1989, Congress took additional steps and assigned specific counterdrug missions to DoD. As

part of the National Defense Authorization Act (NDAA) for Fiscal Years (FY) 1990 and 1991,³

Congress designated DoD as the lead agency for the “detection and monitoring” of the aerial and

maritime transit of illegal drugs into the United States.⁴ Section 1206 of the same act stated that the

“Secretary of Defense shall direct that the armed forces, to the maximum extent practicable,

conduct military training exercises in drug interdiction areas.”⁵ In FY 1991,Congress provided

more specific counterdrug authority to DoD by passing Section 1004 of the NDAA, discussed

further below.⁶

In addition to providing statutory authority for counterdrug support, Congress annually appropriates

funds to DoD specifically for these operations.⁷ The money is disbursed through DASD/CN and it

differs from the funding for most other military support to civilian law enforcement in that

reimbursement is not required.

National Defense Authorization Act of 1991

Section 1004 from the NDAA for FY 1991 created the current primary authority for DoD support to

counterdrug operations. This authority has not been codified and expires every one to three years.

Although originally found in Section 1004 of the NDAA for FY 1991, other NDAA sections have

10 U.S.C.A. §§ 371-382 (2012). See Chapter 4, infra.

² See H.R. Rep. No. 97-71, 1981 U.S.C.C.A.N. 1785. The 1986 amendments to Chapter 18 were contained in the

Defense Drug Interdiction Assistance Act, Pub. L. 99-570, § 3051, 100 Stat. 3207.

³ National Defense Authorization Act of 1990, Pub. L. No. 101-189, 103 Stat. 1563 [hereinafter FY90 NDAA].

10 U.S.C. § 124 (2012).

⁵ FY90 NDAA, supra note 3, § 1206.

⁶ National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004, as amended, 104 Stat. 1629 [hereinafter

FY91 NDAA].

⁷ The Counternarcotics Program is financed through the Drug Interdiction and Counterdrug Activities defense

appropriation, which is a central transfer account (CTA). It is a single line that accounts for all associated counter

narcotics (CN) resources with the exception of those resources for the active components’ military personnel, and

service OPTEMPO. In 2009, Congress appropriated $1.06 billion for counterdrug operations. See Duncan Hunter

National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, 122 Stat. 4356 (2008).

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reauthorized it over the years.⁸ As it is not permanent, judge advocates looking to use this authority

must first check current NDAAs to see if the authority is still in place. Judge advocates should be

particularly cognizant of the status of this authority as the end of a fiscal year approaches. Section

1005 of the FY 2012 NDAA is the current cite for this authority, which extended the original

Section 1004 authority for an additional three years (FY 2012 through 2014).⁹ Types of

counterdrug support under this authority include the following:

• Maintenance and repair of loaned defense equipment to preserve the potential future utility or to

upgrade to ensure compatibility of that equipment § 1004(b)(1) & (2) (as amended))

• Transportation support (§ 1004(b)(3) (as amended))

• Establish and/or operate bases or training facilities (includes engineer support) (§ 1004(b)(4) (as

amended))

• Counterdrug-related training of law enforcement personnel (§ 1004(b)(5) (as amended))

• Detect, monitor, and communicate the movement of air and sea traffic within 25 miles of and

outside United States borders (§ 1004(b)(6)(A) (as amended))

• Detect, monitor, and communicate the movement of surface traffic detected outside US borders

for up to 25 miles within the United States (§ 1004(b)(6)(B) (as amended))

• Engineering support (roads, fences, and lights) at US borders (§ 1004(b)(7) (as amended)).

• Command, control, communications, computer, and intelligence (C4I) and network support (§

1004(b)(8) (as amended)).

• Linguist support (§ 1004(b)(9) (as amended)).

• Intelligence analyst support (§ 1004(b)(9) (as amended)).

• Aerial reconnaissance support (§ 1004(b)(10) (as amended))

• Ground reconnaissance support (reference b, section 1004(b)(10) (as amended))¹⁰

The Secretary of Defense may contract for equipment and services to provide the above types of

support if DoD would normally acquire such equipment and services via contract to support similar

DoD activities.¹¹

Section 1004 also provides statutory exceptions to the Posse Comitatus Act (18 U.S.C. § 1385)

(PCA). It states counterdrug support under that authority is not subject to the requirements of 10

U.S.C., Chapter 18 (with the exception of 10 U.S.C. §§ 375 and 376).¹² Further, the Secretary of

Id. Many of these authorities are also reproduced in the notes following 10 U.S.C.A. § 374 in the annotated codes.

⁹ National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1005, 125 Stat. 1298 (2011). Many

instructions and other guidance continue to refer to this authority as “Section 1004” authority. It is also commonly

referred to as such by DoD and National Guard staff involved in this mission. For the sake of consistency, the authority

is referred to throughout this book as “§ 1004 of the 1991 National Defense Authorization Act (FY91 NDAA), as

amended.”

Id. § 1004(b); JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3710.01B, DOD

COUNTERDRUG SUPPORT (28 Jan. 2008) [hereinafter CJCSI 3710.01B] (which provides a detailed listing and discussion

of approval authorities for certain types of DoD support to counterdrug operations).

¹¹ FY91 NDAA, supra note 6, § 1004 (as amended).

Id. § 1004(f). 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 Corps in a search, seizure, arrest, or other similar

activity unless participation in such activity by such member is otherwise authorized by law. 10 U.S.C. § 376 provides

an overarching restriction in the event “such support will adversely affect the military preparedness of the United

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Defense may provide support that will adversely affect military preparedness in the short term in

contravention of 10 U.S.C. § 376 if the Secretary determines that the importance of providing such

support outweighs the short-term adverse impact.¹³ Lastly, judge advocates should be aware that

the policy limits on assistance to law enforcement agencies set forth in DoDI 3025.21, Defense

Support to Civilian Law enforcement Agencies, do not apply to counternarcotics activities.¹⁴

Detection and Monitoring

10 U.S.C. § 124 makes DoD the lead federal agency for the detection and monitoring of aerial and

maritime transit of illegal drugs into the United States. This statute does not extend to the detection

and monitoring of land transit.¹⁵ Although detection and monitoring is now a DoD mission per §

124, it must still be carried out in support of federal, state, local, or foreign law enforcement

authorities.¹⁶

In order to perform the detection and monitoring mission, DoD personnel may operate DoD

equipment to intercept a vessel or an aircraft detected outside the land area of the United States for

the purposes of:

• Identifying and communicating with that vessel or aircraft; and

• Directing that vessel or aircraft to go to a location designated by appropriate civilian officials.¹⁷

In cases where a vessel or aircraft is detected outside the land area of the United States, DoD

personnel may begin, or continue, pursuit of that vessel or aircraft over the land area of the United

States.¹⁸ Notably, the DoD detection and monitoring mission does not authorize DoD personnel to

conduct searches or make seizures or arrests—which are prohibited under 10 U.S.C. § 375.

Chairman of the Joint Chiefs of Staff Implementation (CJCSI)

Authority to approve counterdrug operational support to LEAs under the statutes discussed above

has been delegated by the Secretary of Defense (SECDEF), through the Chairman of the Joint

Chiefs of Staff, to the Commanders of the Unified Combatant Commands (with the authority to

further delegate to flag and general officers within their chains of command).¹⁹

States.” Sec. 1004 of the 1991 NDAA allows the SECDEF to waive this requirement in the short term if he or she

determines the importance of providing such support outweighs any adverse effect on preparedness. Id. § 1004(d).

Id. § 1004(e).

¹⁴ U.S. DEP’T OF DEFENSE, INSTR.. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES 2.f.(1) (27

Feb. 2013) [hereinafter DoDI 3025.21].

¹⁵ But, note that § 1004(a)(6) authorizes “[a]erial and ground reconnaissance outside, at, or near the borders of the

United States” in support of other agencies and in accordance with other provisions § 1004. See FY91 NDAA, supra

note 6, § 1004(a)(6).

10 U.S.C. § 124(a)(2) (2012).

Id. § 124(b) (2012).

¹⁸ The term “United States,” as used in 10 U.S.C. § 124, means the land area of the several states and any territory,

commonwealth, or possession of the United States. 10 U.S.C. § 124(c) (2012).

¹⁹ See CJCSI 3710.01B, supra note 10, Encl. A, paras. 1 & 8.g. U.S. Northern Command (USNORTHCOM) further

delegated its authority to the Joint Force Land Component Commander (JFLCC), who further delegated this authority to

Commander, Joint Task Force-North (JTF-N).

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CJCSI 3710.01B provides a specific list of the types of counterdrug missions that may be approved,

such as certain types of aerial reconnaissance, transportation support, intelligence analyst support,

and engineering support, among others. Authority to approve counterdrug support missions

involving ground reconnaissance, detection and monitoring operations, and deployments for longer

than 179 days or involving more than 400 personnel is specifically withheld from this delegation.

These missions require specific SECDEF approval. CJCSI 3710.01B should be consulted whenever

reviewing a proposed operation.

On July 31, 2002, the Deputy Secretary of Defense published the DoD Counternarcotics Policy.

This policy states that DoD will focus its counternarcotics activities on programs that: enhance the

readiness of the DoD; satisfy DoD’s statutory detection and monitoring responsibilities; contribute

to the war on terrorism; advance DoD’s security cooperation goals; or enhance national security.

On October 2, 2003, the Deputy Secretary of Defense published the policy on domestic

counternarcotics activities. This policy established the goals of reducing the operational stress on

Title 10 forces that conduct domestic counternarcotics activities through utilization of Title 32

National Guard forces; concentrating DoD’s support in areas of unique military skills and

capabilities that domestic law enforcement agencies lack or cannot practically replicate; and

employing those measures designed to detect, interdict, disrupt, or curtail any activity reasonably

related to narcotics trafficking. This policy directed that the Under Secretary of Defense for Policy

shall be responsible for reviewing and approving Title 10 counternarcotics support, except where

that authority was delegated pursuant to CJCSI 3710.01B.

This policy also dictates that all requests for department support must satisfy the following criteria:

• there must be a valid counterdrug activities nexus;

• there must be a proper request;²⁰

• the support must improve unit readiness or mission capability;

• the support must provide a training opportunity that contributes to combat readiness; and

• Title 10 forces will not be used for continuing, on-going, long-term operational support

commitments at the same location.

USNORTHCOM reviews all domestic counternarcotics support requests. Commander,

USNORTHCOM, will first ensure a National Guard unit cannot provide the support. If the NGB

determines that Title 32 National Guard forces cannot provide the support, USNORTHCOM will

determine whether the requested support is feasible, supportable, and consistent with DoD policy.

If approval is authorized under CJCSI 3710.01B, Commander, USNORTHCOM, or his or her

delegated authority, may approve the request and will request Title 10 forces through the Joint Staff

from the appropriate service. All other requests will be forwarded through the Joint Staff

²⁰ A proper request must be from an appropriate official of a federal, state, or local government agency who has

responsibility for counternarcotics activities. First, federal law must authorize DoD to provide the requested support.

Second, the support must assist the requesting agency with accomplishing its counternarcotics activities within the

United States. Third, the support must be consistent with DoD’s implementation of the National Drug Control Strategy.

Finally, the support must be limited to those activities that are militarily unique and significantly benefit the DoD or are

essential to national security goals. See, e.g. Memorandum, Deputy Secretary of Defense, Department Support to

Domestic Law Enforcement Agencies Performing Counternarcotics Activities (2 Oct. 2003).

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deployment order process, to the DASD/CN and Under Secretary of Defense for Policy for

consideration.

Detailed rules governing the use of force by military forces engaged in counterdrug support

operations within the United States are provided in CJCSI 3121.01B, Standing Rules of

Engagement/Standing Rules for the Use of Force for U.S. Forces, Appendices L and O.

Counterdrug Support Task Forces

Counterdrug support operations are planned, coordinated, and controlled primarily via three

headquarters: Joint Interagency Task Force (JIATF) South, located in Key West, Florida, (under

the command and control of Southern Command (USSOUTHCOM)), JIATF West, located in

Hawaii, (under the command and control of Pacific Command (USPACOM)), and Joint Task Force

North (JTF-N), located in El Paso, Texas (under the command and control of USNORTHCOM.)

While the two JIATFs do provide some support to LEAs in their Areas of Responsibility (AORs),²¹

their primary focus is on detection and monitoring of illicit traffic in the source and transit zones of

South and Central America, Southeast and Southwest Asia, and in international waters and airspace.

This enables interdiction by law enforcement in the source and transit zones consistent with

priorities outlined in the President’s National Drug Control Strategy.²²

To deconflict and identify interim and long-term solutions for command and control arrangements

between USNORTHCOM, USSOUTHCOM, and USPACOM, the ASD (SO/LIC) established

specific areas of responsibility for JIATF-S, JIATF-W and JTF-N.²³ While the JIATFs focus their

attention on international AORs, the bulk of domestic counterdrug support is provided by JTF-N.

Joint Task Force Six, activated on November 13, 1989, was designated as the lead DoD

organization responsible for planning and coordinating all DoD support to civilian drug law

enforcement agencies in the continental United States (CONUS). Joint Task Force Six’s original

AOR, composed of the four southwest border states of Texas, New Mexico, Arizona, and

California, was expanded in 1995 to cover all of CONUS.²⁴ On 28 September 2004, Joint Task

Force Six was officially renamed Joint Task Force North (JTF-N). JTF-N’s mission includes

synchronizing and integrating DoD operational, technological, training, and intelligence support to

domestic law enforcement agency counterdrug efforts in CONUS to reduce the availability of

illegal drugs.

Located at Fort Bliss, Texas, there are approximately 175 personnel assigned to JTF-N, including

civilians, contractors, and service members from all five services. Unlike the JIATFs, JTF-N has no

LEA representatives assigned to or working in the command. Joint Task Force North has no

assigned units and no tasking authority. It solicits volunteer units from all four DoD branches to

²¹ For example, Hawaii falls within PACOM’s AOR, and Puerto Rico and the Virgin Islands fall within

NORTHCOM’s AOR.

2013 National Drug Control Strategy, available at http://www.whitehouse.gov//sites/default/files/ondcp/policy-and

research/ndcs_2013.pdf.

²³ Memorandum, Assistant Secretary of Defense (Special Operations/Low Intensity Conflict) Joint Interagency Task

Force (JIATF) Area Responsibilities (1 Aug 2003).

²⁴ History of Joint Task Force North, JOINT TASK FORCE NORTH, http://www.jtfn.northcom.mil/subpages/history.html

(last visited Aug. 5, 2013).

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execute the support missions requested by the Department of Justice and Department of Homeland

Security. From its inception as JTF-6, JTF-N has completed over 6,000 counterdrug support

missions throughout CONUS. These included aerial and ground reconnaissance missions, detection

and monitoring, use of mobile training teams, and engineer support missions.

Co-located with JTF-N is Operation Alliance, a headquarters comprised of representatives from

federal law enforcement agencies. Operation Alliance serves as the single point of contact for all

law enforcement agencies (federal, state, and local) to request DoD counterdrug support. Operation

Alliance verifies the counterdrug nexus, prioritizes LEA support requests, and then forwards their

requests to JTF-N for review and consideration.

JIATF-S and JIATF-W are both under the direction of Coast Guard Rear Admirals with senior

representatives from DoD, DHS, and DOJ components in other senior leadership positions. JIATF

S conducts detection & monitoring operations in the Caribbean and Eastern Pacific source and

transit zones.²⁵ JIATF-W combats drug-related transnational organized crime to reduce threats in

the Asia-Pacific region in order to protect U.S. national security interests and promote regional

stability.

5. Coast Guard Law Enforcement Detachments

As the primary enforcer of U.S. maritime law, the U.S. Coast Guard plays a critical role in drug

enforcement. The Coast Guard has the lead role in maritime drug interdiction and shares the lead

role in air interdiction with the U.S. Customs and Border Protection agency. The Coast Guard

conducts extensive maritime counterdrug operations year-round. These operations range from

enforcing drug possession and use laws during routine recreational and other vessel boardings in all

areas where the Coast Guard operates, to conducting sustained multi-unit operations targeting major

drug traffickers far from U.S. shores. Since the PCA does not apply to the Coast Guard,²⁶the PCA

restrictions on arrest, search, seizure, and the interdiction of vessels and aircraft are inapplicable to

Coast Guard operations and personnel. Moreover, the Coast Guard has broad law enforcement

authority under 14 U.S.C. § 89 to enforce U.S. laws in waters subject to U.S. jurisdiction and over

vessels subject to U.S. jurisdiction wherever they may be located.²⁷

²⁵ When JIATF-S locates suspect vessels it transfers TACON of surface assets to the U.S. Coast Guard Seventh District

(Caribbean operations) or Eleventh District (Eastern Pacific operations), at which point the U.S. Coast Guard conducts

interdiction operations. In cases in which evidence of maritime drug trafficking or other illegal activity is discovered,

JIATF-S and the Coast Guard coordinate case disposition with DOJ and with foreign partners as appropriate. JIATF-S

works closely with ongoing DOJ Organized Crime Drug Enforcement Task Force investigations such as Operation

Panama Express to synthesize and evaluate available information about suspected maritime and aerial drug movement

to detect, monitor and facilitate the interdiction of suspect vessels and aircraft.

²⁶ United States v. Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982), cert. denied, 459 U.S. 1156 (1982).

14 U.S.C. § 89(a) (2011) states:

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas

and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of

violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any

time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States,

address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the

vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or

search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has

been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued

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To capitalize on the Coast Guard’s expertise and uniquely broad maritime law enforcement

authority, 10 U.S.C. § 379 requires the Secretary of Defense and the Secretary of Homeland

Security to assign Coast Guard law enforcement detachments (LEDETs) to every appropriate naval

surface vessel operating at sea in a drug interdiction area.²⁸

Coast Guard personnel assigned to LEDETs are trained in law enforcement and have the powers of

arrest, search, and seizure in accordance with 14 U.S.C. § 89. Coast Guard personnel assigned to

U.S. Navy vessels under § 379 will perform functions which are agreed to by the Secretary of

Defense and Secretary of Homeland Security and which are otherwise within the Coast Guard’s

jurisdiction.²⁹ No fewer than 500 active duty Coast Guard personnel will be assigned duties under

10 U.S.C. § 379, unless the Secretary of Homeland Security, after consulting with the Secretary of

Defense, determines that there are not enough naval surface vessels to support this number of

personnel. If this is the case, these Coast Guard personnel may be assigned duties to enforce the

laws listed under 10 U.S.C. § 374(b)(4)(A).³⁰ U.S. Navy ships transporting Coast Guard LEDETs

under TACON of the Coast Guard will follow the Use-of-Force Policy issued by the Commandant,

USCG regarding use of warning shots and disabling fire.³¹

Specific rules governing the use of Coast Guard LEDETs are provided in Commandant, United

States Coast Guard Instruction (COMDTINST) M16247.1D, Maritime Law Enforcement Manual.³²

The primary federal statute that the Coast Guard enforces in counterdrug operations is the Maritime

Drug Law Enforcement Act (MDLEA).³³ The MDLEA prohibits any person on board an U.S.

and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the

laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof,

on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel

liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both,

shall be seized.

10 U.S.C. § 379(a) (2012). A “drug interdiction area” is defined as an area outside the land area of the United States

in which the Secretary of Defense, after consulting with the Attorney General, determines that activities involving

smuggling of drugs into the United States are ongoing.

10 U.S.C. § 379(b) (2012).

Id. § 379(c) (2012).

JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, STANDING RULES OF

ENGAGEMENT, Encl. H, Counterdrug Support Operations Outside the U.S. Territory, para. 1(b) (13 June 2005). CJCSI

3121.01B is classified in part. Enclosure H is confidential in part. The provision cited is unclassified. See also 10

U.S.C. § 637 (2012), Stopping Vessels; Immunity from Firing at or Into Vessels.

³² U.S. COAST GUARD, U.S. COAST GUARD MARITIME LAW ENFORCEMENT MANUAL, COMDTINST M16247, series

(2010) (FOUO) (copy on file with CLAMO) [hereinafter MLEM]. The MLEM is also available at the Maritime

Operations Resources web portal at the CLAMO website (AKO account required). See also Memorandum,

Commander, Atlantic Area, U.S. Coast Guard, to Commanding Officers, Regional TACLETs North, South, and Gulf,

Memorandum of Agreement Concerning Deployment of Law Enforcement Detachment (5 Aug. 1993) (on file with

CLAMO).

46 U.S.C. §§ 70501-70508 (2011). In 2010 Congress passed the Drug Trafficking Vessel Interdiction Act, 18

U.S.C. § 2285 (the DTVIA) at the urging of the Coast Guard and DOJ. This law makes the operation of or embarkation

in a stateless self-propelled semi-submersible or submersible vessel beyond any State’s territorial sea (or having crossed

from one State’s territorial sea into another) a felony punishable by up to fifteen years in prison. Although not an anti-

drug-trafficking statute per se, the Coast Guard uses this new law to combat the threat posed by maritime drug

traffickers who have increasingly resorted to the use of semi-submersible vessels to avoid detection while transporting

multi-ton loads of cocaine. Many of the jurisdictional provisions and definitions in the MDLEA are included in the

DTVIA as well.

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vessel, or a vessel subject to the jurisdiction of the U.S., from knowingly or intentionally

manufacturing or distributing, or possessing with the intent to manufacture or distribute, a

controlled substance.³⁴ The term “U.S. vessel” includes:

• Federally documented or state numbered vessels;

• Vessels owned in whole or in part by:

• the U.S. or a territory, commonwealth, or possession of the U.S.;

• a state or political subdivision thereof;

• a citizen or national of the U.S.; or

• a corporation created under the laws of the U.S. or any state, the District of Columbia, or

any territory, commonwealth, or possession of the U.S.; and

• U.S. documented vessels sold or registered in a foreign country in violation of U.S. law.³⁵

“Vessel subject to U.S. jurisdiction” includes a foreign vessel if located:

• In U.S. customs waters;

• On the high seas and the flag State has consented or waived objection to the enforcement of

U.S. law; or

• In the territorial waters of another nation and that coastal State consents to the enforcement of

U.S. law.³⁶

In addition to placing LEDETs on U.S. Navy ships, the Coast Guard also relies on extensive

bilateral and multilateral agreements between the United States and other nations to place LEDETs

on the ships of foreign countries. These agreements can take various forms—from standing formal

memoranda of agreements to ad hoc verbal agreements.³⁷

The United States and most countries in South America, Central America and the Caribbean are

parties to the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances. Article 17 of that Convention requires parties to cooperate with each other to suppress

illicit trafficking by sea. Pursuant to this mandate, the United States has entered into dozens of

bilateral agreements or understandings with partner states in the region. These standing bilateral

maritime counterdrug agreements typically address various aspects of enforcement including:

deployment of shipriders from foreign navies and coast guards on U.S. surface assets, over flight by

U.S. air assets within the territory or territorial seas of foreign partners, patrols and pursuit of

suspect vessels in the territorial seas of foreign partners, combined operations, and flag State

authorization to board, search, seize, or make arrests, and procedures by which foreign partners may

waive jurisdiction over vessels and persons in favor of prosecution in the United States when

46 U.S.C. App. § 1903 (2011)

Id. § 1903(b) (2011).

Id. § 1903(c) (2011).

³⁷ For a list of current counterdrug bilateral agreements, see USCG OPLAW FAST ACTION REFERENCE MATERIALS,

series (2009) (For Official Use Only manual) (copy on file with CLAMO) [hereinafter FARM]. The FARM is also

available at the Maritime Operations Resources web portal at the CLAMO website (AKO account required).

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appropriate. As with all international agreements, these bilateral and multilateral agreements can

only be negotiated by following Department of State approval procedures.

C. National Guard Support to Counterdrug Operations

National Guard forces are authorized by 32 U.S.C. § 112(a) to use CD funds for “drug interdiction

and counterdrug activities.” This includes:

• Pay, travel, allowances, clothing, subsistence, gratuities, travel, and related expenses, as

authorized by state law, for National Guard personnel used for drug interdiction and

counterdrug activities while not in federal service;

• The operation and maintenance of National Guard equipment and facilities used for drug

interdiction and counterdrug activities; and

• The procurement of services and equipment, and the leasing of equipment, by the National

Guard for the purpose of drug interdiction and counterdrug activities.³⁸

Funds provided by the Secretary of Defense under 32 U.S.C. § 112 are part of the DoD counterdrug

appropriation and cannot be used for purposes other than the National Guard counterdrug support

program. Authority to spend CD funds depends on whether the primary purpose of the mission is to

conduct CD activities. Evidence that CD is a purpose, but not the primary purpose, is insufficient

to justify the expenditure. For example, a Purpose Act violation occurred when the Texas National

Guard used counterdrug funds in January 1993 in support of the joint ATF-FBI operation

concerning the Branch Davidians near Waco, Texas. The finding was returned despite evidence

that a former Branch Davidian had stated to the ATF that there was a methamphetamine lab in the

compound, and David Koresh had stated to an undercover ATF agent that the compound would be

an ideal location for a meth lab. The ADA violation was based on the fact that the operation’s

primary purpose was to investigate potential federal firearms violations—not narcotics violations.³⁹

CD funds may also be used for the purpose of drug interdiction and counterdrug activities in which

(1) drug traffickers use terrorism to further their aims of drug trafficking, or (2) terrorists benefit

from or use drug trafficking to further their aims of drug trafficking.⁴⁰

In order to qualify for federal funding under 32 U.S.C. § 112(a), the Governor of the state

requesting such funding must submit a state drug interdiction and counterdrug activities plan to the

Secretary of Defense.⁴¹ A state drug interdiction and counterdrug activities plan shall:

³⁸ Procurement of equipment cannot exceed $5,000 per purchase order unless approval is granted by the Secretary of

Defense. 32 U.S.C.A. § 112(a)(3) (2006). Further, equipment purchased, loaned, leased, or otherwise obtained using

32 U.S.C. § 112 funds will only be used for the Counterdrug Support Program except in very limited circumstances.

NATIONAL GUARD BUREAU, REG. 500-2/ANGI 10-801, NATIONAL GUARD COUNTERDRUG SUPPORT (28 Aug. 2008),

paras. 7-10, 7-11 (28 August 2008) [hereinafter NGR 500-2].

³⁹ Department of the Army (FM&C), Report of Antideficiency Act Violation Case # 95-09 (11 Mar. 1997).

JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINT COUNTERDRUG OPERATIONS (13 Jun. 2007) (defining

narcoterrorism); NGR 500-2, supra note 38, glossary (defining counternarcoterrorism); Memorandum, Chief of the

National Guard Bureau, Implementation of Procedures for Handling Requests for Counterdrug Narcoterrorist Support

(2 Jun. 2006).

⁴¹ State drug interdiction and counterdrug support plans must be submitted through the Counterdrug Office of the

National Guard Bureau. NGR 500-2, supra note 38, para. 2-5.

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• Specify how personnel of the National Guard of that state are to be used in drug interdiction and

counterdrug activities;

• Certify that those operations are to be conducted at a time when the personnel involved are not

in federal service;

• Certify that participation by National Guard personnel in those operations is service in addition

to training required under 32 U.S.C. § 502;⁴²

• Certify that any engineer-type activities (as defined by the Secretary of Defense) under the plan

will be performed only by units and members of the National Guard;

• Include a certification by the State Attorney General that the use of the National Guard for the

activities proposed under the plan is authorized by, and is consistent with, state law; and

• Certify that the Governor or a civilian law enforcement official of the state designated by the

Governor has determined that any activities included in the plan that are carried out in

conjunction with federal law enforcement agencies serve a state law enforcement purpose.⁴³

The National Guard Counterdrug Coordinators for each state or territory must submit their State

Plan to the National Guard Bureau for review. The National Guard Bureau submits the State Plan,

complete with original certifying signature from the respective Adjutant General, Attorney General,

and Governor, to DASD/CN. DASD/CN reviews the State Plan and, in coordination with the

Comptroller, ASD (HD & ASA), the Joint Staff, the Commander, NORTHCOM, and other

appropriate offices within the department, recommends approval or rejection to the Secretary of

Defense.⁴⁴

To ensure that the use of National Guard units and personnel participating in counterdrug operations

does not degrade training and readiness, the following requirements apply in determining what

activities National Guard personnel may perform:

• The performance of the activities may not adversely affect the quality of that training or

otherwise interfere with the ability of a member or unit of the National Guard to perform the

military functions of the member or unit;

• National Guard personnel will not degrade their military skills as a result of performing the

activities;

• The performance of the activities will not result in a significant increase in the cost of training;

and,

• In the case of drug interdiction and counterdrug activities performed by a unit organized to serve

as a unit, the activities will support valid unit training requirements.⁴⁵

The Secretary of Defense will examine the state drug interdiction and counterdrug activities plan in

consultation with the Director of National Drug Control Policy. If the Governor of a state submits a

plan substantially similar to the one submitted the prior fiscal year, and funds were provided to the

state under the prior plan, consultation by the Secretary of Defense with the Director of National

⁴² See 32 U.S.C. § 502 (2011) (addressing annual drill and field exercise requirements of National Guard personnel).

Id. § 112(c) (2011).

⁴⁴ Memorandum, Deputy Secretary of Defense, Department Support to Domestic Law Enforcement Agencies

Performing Counternarcotics Activities (2 Oct 2003).

32 U.S.C. § 112(b)(2)(C) (2011).

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Drug Control Policy is not required. National Guard units can execute only those missions

approved by the Secretary of Defense in the state drug interdiction and counterdrug activities plan.

Although federally funded, National Guard members performing counterdrug missions under 32

U.S.C. § 112 are under State command and control. In fact, 32 U.S.C. § 112(c)(2) specifically

requires the state drug interdiction and counterdrug activities plan to certify that “operations are to

be conducted at a time when the personnel involved are not in federal service.” 32 U.S.C. § 112(b)

also requires that CD personnel serve in a full-time National Guard duty (FTNGD) status pursuant

to 32 U.S.C. § 502(f). As with all National Guard personnel performing duties pursuant to 32

U.S.C. §§ 115, 316, 502, 503, 504, or 505, National Guard members performing CD activities in

FTNGD status are employees of the federal government for purposes of Federal Tort Claims Act⁴⁶

coverage.⁴⁷ If the appropriate United States Attorney determines that a Title 32 National Guard

member was acting within the scope of employment when an alleged tort occurred, then the

plaintiff’s exclusive remedy would be against the United States, which would accordingly be

substituted as the defendant in any FTCA litigation.⁴⁸ Conversely, for actions not cognizable under

the FTCA, such as a constitutional or Bivens⁴⁹action against a National Guard member in his or her

individual capacity, the United States could not be substituted as the defendant in the action. In

such cases, the National Guard member may request representation from the Department of Justice

pursuant to 32 C.F.R. § 516.30 and AR 27-40, chapter 4 or AFI 51-301, chapter 1. The process of

determining representation is separate and distinct from the determination of FTCA coverage. If

representation is granted, National Guard personnel remain individually-named defendants in the

action and are responsible for any criminal convictions, fines or civil judgments. The Department

of Justice is not obligated to indemnify National Guard personnel for any adverse monetary

judgments or sanctions in these cases, but may, in its sole discretion, do so upon request.⁵⁰

The PCA does not apply to National Guard counterdrug missions performed under 32 U.S.C. § 112,

even though these units are performing missions using federal funds and operating under federal

fiscal oversight.⁵¹ This allows Title 32 National Guard personnel more flexibility than Title 10

forces in conducting domestic counterdrug missions. Nonetheless, the National Guard Bureau has

imposed several policy restrictions on National Guard counterdrug operations in NGR 500-2.⁵² As

28 U.S.C. §§ 2671-2680 (2011).

⁴⁷See id. § 2671 (defining “employee of the government”).

⁴⁸See id. § 2679(b) (2011). See also NGR 500-2, supra note 38, para. 2-4a (“National Guard members acting within

the scope of their authority and performing approved support (listed in the Governor's State Plan and approved by the

SECDEF) are immune from suit except for certain constitutional torts, i.e., when a negligent act or omission constitutes

a violation of the constitutional rights of the injured party, including persons suspected of criminal activity, and certain

intentional torts, such as assault and battery, false arrest and imprisonment.”).

⁴⁹Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

⁵⁰ See 32 C.F.R. § 50.516.30(a)(8) (2013).

⁵¹ Gilbert v. United States, 165 F.3d 470, 473-474 (6th Cir. 1999) (Where a state used National Guardsmen for purpose

of carrying out drug interdiction and counterdrug activities, in accordance with federal statute, the Guardsmen were

found to be exempt from the Posse Comitatus Act); United States v. Benish, 5 F.3d 20, 25-26 (3rd Cir. 1993) (The use

of a National Guard unit that was not in federal service for civilian law enforcement involving surveillance of possible

drug operation was not a violation of federal law, where under Pennsylvania law the Governor could place members of

National Guard on special state duty to support drug interdiction programs).

⁵² This regulation does not address National Guard counterdrug activities performed under the authority of Title 10,

United States Code.

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a matter of policy, National Guard personnel will not directly participate in the arrest of suspects,

conduct searches which include direct contact of National Guard members with suspects or the

general public, or become involved in the chain of custody for any evidence, except in exigent

circumstances, or when otherwise authorized.⁵³ Exigent circumstances are defined as situations

where immediate action is necessary to: protect police officers, National Guard personnel, or other

persons from death or serious injury; prevent the loss or destruction of evidence; to prevent the

escape of a suspect already in custody.⁵⁴

The following missions have been approved for federal funding by the Secretary of Defense under

32 U.S.C. § 112:

•

Counterdrug Coordination, Liaison, and Management - Planning and coordinating state

counterdrug supply and demand reduction support;

•

Linguist Support - Providing transcription/translation of audio/video tapes, seized documents

and other information media (active/real-time conversation monitoring or direct participation in

interrogations is not allowed);

•

Investigative Case and Analyst Support - Assisting law enforcement agencies (LEAs) in the

establishment of counterdrug intelligence systems/databases and providing intelligence analysis

support;

•

Communications Support - Providing personnel to establish, operate and maintain

communications stations, bases, and equipment in support of LEA counterdrug operations;

•

Operational/Investigative Case Support - Providing assistance to LEAs in developing

investigations and cases for prosecution;

•

Engineer Support - Providing engineer support to LEAs and community organizations where

the project has a counterdrug nexus;

•

Subsurface/Diver Support - Conducting subsurface inspections of commercial vessel hulls

within U.S. territorial waters or maritime ports of entry through the use of sidescan sonobuoys

or divers to detect alien devices or containers attached to vessel hulls, or other underwater

activities;

•

Domestic Cannabis Suppression/Eradication Operations Support - Supporting LEA domestic

cannabis suppression and eradication operations;⁵⁵

•

Transportation Support - Providing transportation (aerial, ground, or maritime) of LEA

personnel/equipment, persons in LEA custody, seized property or contraband as part of on

going time-sensitive counterdrug operations, when security or other special circumstances

reasonably necessitate National Guard support and there is a counterdrug nexus;

•

Training LEA/Military Personnel - Training LEA/military personnel in military subjects and

skills useful in the conduct of counterdrug operations or in the operation of equipment used in

counterdrug operations;

•

Surface Reconnaissance - Reconnoitering or performing area observation by land or water to

detect and report illegal drug activities that include, but are not limited to, cultivated marijuana,

⁵³ NGR 500-2, supra note 38, para. 2-1e.

Id.

⁵⁵ Note that the destruction of contraband portion of the marijuana eradication mission is no longer authorized. See

Memorandum, Assistant Secretary of Defense (SO/LI-C), Counternarcotics Mission Transfer Plan (13 Feb. 2003).

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suspected isolated drug trafficking airstrips, drug drop zones, drug trafficking corridors, illegal

drug laboratories, suspicious aircraft, watercraft, or motor vehicles;

• Aerial Reconnaissance - Conducting reconnaissance/observation of airspace, maritime or

surface areas (land and internal waterways of the U.S. and territories) for illegal drug activities

which include, but are not limited to, cultivation of marijuana or delivery of illegal drugs;⁵⁶

• Drug Demand Reduction Support - Providing support to community based activities primarily

designed to educate, train, or otherwise prevent drug abuse among youth, and providing

information about drug abuse or drug abuse programs;

• Drug Demand Reduction Education and Programs - Supporting community based activities that

focus on educational institutions, or otherwise have an educational institution as the primary

sponsor, and are primarily designed to educate, train, or otherwise prevent drug abuse;

• Leadership Development - Supporting camps, retreats, seminars and programs, not primarily

associated with educational institutions that focus on developing drug abuse prevention

leadership skills in youth and adults; and

• Coalition Development - Assisting in the development of functioning community-based

coalitions organized to reduce the illegal use of legitimate drugs and the use of illegal drugs.⁵⁷

National Guard personnel carrying out the above missions serve in a support role to LEAs and will

not be directly involved in law enforcement duties. Consequently, National Guard members will

only be armed at the request of the supported law enforcement agency and after meeting certain

criteria. A mission risk analysis will be conducted by The Adjutant General (TAG) of that State to

determine whether National Guard personnel should be armed as a force protection measure.⁵⁸

Since National Guard personnel providing counterdrug support under 32 U.S.C. § 112 are acting

under State command and control, they operate under their own state Rules for the Use of Force

(RUF). CJCSI 3121.01B, Encl. O, Counterdrug Support Operations Within U.S. Territory, is not

applicable to the National Guard unless they are in federal service (Title 10 status). Sample

National Guard RUF cards are on file with CLAMO. Consequently, judge advocates must be aware

of the application of the law of the state in which operations are being conducted.⁵⁹

If National Guard personnel are armed, NGR 500-2 requires the State’s TAG to consider the

following:

• All personnel authorized to carry firearms must have received qualification training and testing

on the type of firearm to be carried, in accordance with current regulations. Training will

include instruction on safety functions, security, capabilities, limitations, and maintenance of the

firearms. Testing will include qualification firing in accordance with current qualification

standards;

⁵⁶ An additional requirement for aerial reconnaissance (otherwise known as “Mission 5a”) is that at least one person

involved in either the operation or training of the mission must attend the National Counterdrug Civil-Military Institute

(NICI) Mission 5a course. NGR 500-2, supra note 38, para. 5-16.

⁵⁷ See id., para. 2-7 for a detailed description of what each mission entails.

Id. para. 3-6. This authority may be delegated in accordance with para. 3-6(b) of NGR 500-2.

⁵⁹ See, e.g. Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the

Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1.

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•

Arms and ammunition will be secured at all times in accordance with appropriate regulations

and policies. Rounds will be chambered only on order of the commander/senior officer/senior

noncommissioned officer present, in coordination and in conjunction with the supported LEA,

except in cases of exigent circumstances;

•

Firearms will not be discharged from moving vehicles (except in self-defense or to defend other

persons);

•

Pilots in command of aircraft have the authority to override an order to chamber rounds while

on board an aircraft;

•

Possession or use of non-issued or personally owned firearms and/or ammunition during

counterdrug support operations is prohibited. National Guard personnel will not accept offers of

weapons or ammunition from LEAs except for use on LEA operated ranges for training

purposes only. The only weapons used for counterdrug support operations will be federally

owned military weapons listed on the unit’s property books;

•

Federally owned military weapons will not be secured in private dwellings at any time;

•

The counterdrug coordinator will direct additional weapons training when, in his judgment, it is

advisable, regardless of the level of training indicated by training and qualification records;

•

National Guard units may use minimum force for the following purposes:

• To defend themselves or other persons;

• To protect property, or prevent loss/destruction of evidence;

• To make arrests if they have arrest powers pursuant to state law and exigent circumstances

require such action.

•

The discharge of any firearm is always considered deadly force; and

•

National Guard members will be thoroughly briefed on the Rules of Engagement and Use of

Force prior to the commencement of any operation.⁶⁰

⁶⁰ NGR 500-2, supra note 38, para. 3-6.

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CHAPTER 8

MILITARY SUPPORT OPERATIONS

KEY REFERENCES:

•

10 U.S.C. § 422 - Use of Funds for Certain Incidental Purposes

•

10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside DoD

•

10 U.S.C. § 2554 - Equipment and other services: Boy Scout Jamborees

•

32 U.S.C. § 508 - Assistance for Certain Youth and Charitable Organizations

•

50 U.S.C. § 404e - National Mission of National Geospatial-Intelligence Agency

•

HSPD-7 - Critical Infrastructure, Identification, Prioritization, and Protection, December 17,

2003

•

PDD-62 - Protection Against Unconventional Threats to the Homeland and Americans

Overseas, May 22, 1998.

•

HSPD 15/NSPD 46 - U.S. Strategy and Policy in the War on Terror (Classified), March 6, 2006

•

National Oil and Hazardous Substances Contingency Plan, 40 C.F.R. § 300

•

EO 12333 - United States Intelligence Activities (as amended by EO 13355 and 13470)

•

EO 12580 - Superfund Implementation (as amended by EO 12777, 12580, 13286, and 13308)

•

EO 12656 - Assignment of Emergency Preparedness Responsibilities (as amended by EO

13074, 13286)

•

EO 12657 - Federal Emergency Management Agency Assistance In Emergency Preparedness

Planning At Commercial Nuclear Power Plants

•

DoDD 1100.20 - Support and Services for Eligible Organizations and Activities Outside the

Department of Defense, April 12, 2004

•

DoDD 3020.26 - Department of Defense Continuity Programs, January 9, 2009

•

DoDI 3025.20 - Defense Support of Special Events, April 6, 2012

•

DoDD 3025.13 - Employment of Department of Defense Resources in Support of the United

States Secret Service, October 8, 2010

•

DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012

•

DoDD 3150.08 - DoD Response to Nuclear and Radiological Accidents, January 20, 2010

•

DoD 3150.8-M - Nuclear Weapon Accident Response Procedures (NARP), February 22, 2005

•

DoDD 4500.9E - Transportation and Traffic Management, September 11, 2007

•

DoDD 5105.60 - National Geospatial-Intelligence Agency (NGA), July 29, 2009

•

DoDD 5230.16 - Nuclear Accident and Incident Public Affairs (PA) Guidance, December 20,

1993

•

DoDD 6000.12E - Health Services Operations and Readiness, January 6, 2011

•

National Military Strategy to Combat Weapons of Mass Destruction (CJCS), February 13, 2006

•

AR 95-1 - Flight Regulations, November 12, 2008

•

AR 500-3 - U.S. Army Continuity of Operations Program Policy and Planning, April 18, 2008

•

NGR 500-1/ANGI 10-8101, National Guard Domestic Operations, June 13, 2008

•

Defense Threat Reduction Agency, Preliminary Report on Literature Search for Legal Weapons

of Mass Destruction Seminars, March 26, 2002

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Introduction - Military Support to Special Events

The Department of Defense (DoD) supports a wide variety of special events held within the United

States. Judge advocates must carefully analyze requests, approvals, and types of support when

advising commanders on these kinds of operations. In addition to the sources cited within, the

Center for Law and Military Operations (CLAMO) at the Judge Advocate General’s Legal Center

and School has numerous after action reports providing lessons learned from support provided to

domestic events that judge advocates will find very helpful.

There are two general types of DoD support to special events: support to designated special events

under statutory authority, and community support as part of Innovative Readiness Training (IRT).

Designated special events include the Boy Scout Jamboree and “National Special Security Events”

(NSSEs)¹ such as major sporting events (e.g. the Olympics, Presidential inaugurations, and

international meetings like the 2012 NATO Summit). The IRT program allows commanders to

conduct training in the civilian community, but the benefit to the community must be incidental to

the training, and the training must provide benefit to the participating unit or individual.²

A. Support to Special Events or Organizations

Congress has specifically authorized military support to certain events, such as the Olympics or

World Cup soccer.³ Additionally, support to a variety of unspecified designated National Special

Security Events may be approved in accordance with DoDI 3025.20.⁴

Types of Events and Support from DoD/National Guard

a. Sporting Events

Support for certain sporting events is specifically authorized by 10 U.S.C. § 2564. The authorizing

legislation specifically mentions the World Cup Soccer Games, the Goodwill Games, and the

32 C.F.R. § 183.3 defines National Special Security Event as “An event of national significance as determined by the

Secretary of Homeland Security. These national or international events, occurrences, contests, activities, or meetings,

which, by virtue of their profile or status, represent a significant target, and therefore warrant additional preparation,

planning, and mitigation efforts. The USSS, FBI, and FEMA are the Federal agencies with lead responsibilities for

NSSEs; other Federal agencies, including DoD, may provide support to the NSSE if authorized by law.”

² Memorandum from Office of the Assistant Secretary of Defense, Innovative Readiness Training (IRT) Requirements

for Certification of Non-Competition, (Apr. 30, 2002) [hereinafter DoD IRT Policy]; Memorandum from the Assistant

Secretary of the Army (Manpower and Reserve Affairs), Innovative Readiness Training (IRT) (Mar. 28, 2000)

[hereinafter Army IRT Policy].

10 U.S.C. § 2564 (a) (2012) states:

Security and Safety Assistance. At the request of a federal, state, or local government agency responsible for

providing law enforcement services, security services, or safety services, the Secretary of Defense may authorize

the commander of a military installation or other facility of the Department of Defense or the commander of a

specified or unified combatant command to provide assistance for the World Cup Soccer Games, the Goodwill

Games, the Olympics, and any other civilian sporting event in support of essential security and safety at such event,

but only if the Attorney General certifies that such assistance is necessary to meet essential security and safety

needs.

⁴ U.S. DEP’T OF DEFENSE, INST. 3025.20, DEFENSE SUPPORT OF SPECIAL EVENTS, Encl. 2, para. 2.c. (6 Apr. 2012)

[hereinafter DoDI 3025.20].

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Olympics, but other events may be authorized when special security and safety needs exist.⁵ Other

sporting events previously supported include the World Alpine Ski Championships and the Special

Olympics. Military forces provided extensive support during the 1996 and 2002 Olympic Games

held in Atlanta, Georgia and Salt Lake City, Utah, respectively.⁶ With the establishment of U.S.

Northern Command (USNORTHCOM) on September 11, 2003, coordination for similar future

support missions is now assigned to USNORTHCOM.

b. Non-athletic Events

The Secretary of Defense may also direct that non-athletic events receive support. Non-athletic

events include large events such as Presidential Inaugurations and International Summits hosted

domestically. Many of these events are designated as National Special Security Events (NSSEs).

(1) Boy Scout Support

10 U.S.C. § 2554 permits support for Boy Scout Jamborees.⁷ This provides the Secretary of

Defense authority to lend or otherwise provide the Boy Scouts of America (BSA) with a variety of

equipment to include cots, flags, tents, and other equipment such as expendable medical supplies

without reimbursement. This support may be provided to the BSA in support of both national and

world scout jamborees.⁸ Further, if the Jamboree is conducted on a military installation, the

Secretary may authorize logistical and personnel support on the military installation.⁹ Certain

expenses such as those associated with transportation must be reimbursed and in some cases a

payment bond must be secured before the support is rendered.¹⁰

c. National Guard Assistance for Certain Youth and Charitable Organizations

National Guard members and units, in conjunction with required military training,¹¹ may provide

services to certain eligible youth and charitable organizations.¹² The eligible organizations are:

• Boy and Girl Scouts of America;

• Boys and Girls Clubs of America;

• Young Men’s and Young Women’s Christian Associations (YMCA/YWCA);

• Civil Air Patrol;

• U.S. Olympic Committee;

• Special Olympics;

• Campfire Boys and Girls;

10 U.S.C. § 2564(a) (2012).

⁶ See U.S. Forces Command, Slide Presentation, 2001 Winter Olympic Games, Joint Task Force-Olympics FORSCOM

Augmentation (22 Feb. 2001) [hereinafter FORSCOM Presentation].

10 U.S.C. § 2554 (2012). Note that the section previously numbered as 2554 has been changed to 10 U.S.C. § 2564

and relates to the provisioning of DoD support to certain athletic events.

10 U.S.C. § 2554(a.) (2012).

10 U.S.C. § 2554(g) (2012).

10 U.S.C. § 2554(b-f) (2012).

32 U.S.C. § 502 (2011).

¹² Id. § 508 (2011).

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•

4-H Clubs; and

•

Police Athletic Leagues.¹³

Authorized services include ground transportation, administrative support, technical training,

emergency medical assistance, and communications services. The Special Olympics are

specifically authorized air transportation.¹⁴

In providing authorized services, National Guard facilities and equipment including vehicles leased

to the National Guard and the DoD may be used.¹⁵ As with other types of domestic support

operations, the provision of services must not adversely affect the quality of National Guard training

or otherwise interfere with the member or unit’s ability to perform military functions. Further,

training costs should not significantly increase as a result, and National Guard personnel should

enhance their military skills as a result of their participation. Lastly, the requested services must not

be commercially available. If services are available commercially, the commercial entity affected

can waive this requirement in writing.¹⁶

(1) National Guard Civilian Youth Opportunities Program

The SECDEF, acting through the Chief, National Guard Bureau, conducts a National Guard civilian

youth opportunities program, known as the “National Guard Challenge Program.”¹⁷ Intended to

improve the life skills and employment potential of civilian youth, the Challenge Program is a youth

program directed at helping children attain a high school diploma, providing job training and

placement, improving personal and social skills, and providing health and hygiene education and

physical training.¹⁸ Soldiers work with civilian leaders to provide a comprehensive support package

ranging from choosing appropriate clothing to attending residential training facilities.

The Challenge Program uses National Guard personnel to provide military-based training, including

supervised work experience in community service and conservation projects, to civilian youth who

have not graduated from a secondary school.¹⁹ To carry out the Program, the SECDEF enters into

an agreement with a state governor or, in the case of the District of Columbia, with the commanding

general of the District of Columbia National Guard.²⁰ Usually, the governor will delegate the

establishment, organization and administration of the Program to the state Adjutant General (TAG).

The Challenge Program is not cost-free.²¹ Beginning in 2001, a state must now provide at least 40

percent of the annual Challenge Program operating costs. National Guard equipment and facilities,

including U.S. military property issued to the Guard, may be used to carry out the Challenge

Id. § 508(d) (2011).

Id. § 508(b) (2011).

Id. § 508(c) (2011).

Id. § 508(a) (2011).

32 U.S.C. § 509 (2011).

Id. § 509(a) (2011).

Id. § 509(g) (2011).

Id. § 509(c) (2011).

Id. § 509(d) (2011).

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Program.²² A state may supplement its cost-share out of other resources, including gifts. It is also

permissible for the Program to accept, use, and dispose of gifts or donations of money, other

property, or services.²³

Individuals selected for training in the National Guard Challenge Program may receive the

following benefits: allowances for travel, personal and other expenses; quarters; subsistence;

transportation; equipment; clothing; recreational services and supplies; and, a temporary stipend

upon the successful completion of the training (GS-2 minimum rate of pay under 5 U.S.C. §

5332).²⁴ A person receiving training under the Challenge Program is considered a U.S. employee

for the purposes of Title 5 (relating to compensation of Federal employees for work injuries) and

Title 28, and any other provision of law relating to federal liability for tortious conduct of

employees.²⁵

d. National Special Security Events

Pursuant to Homeland Security Presidential Directive 7 (HSPD-7), the Secretary of the Department

of Homeland Security (DHS) makes the final determination as to whether to designate an event as a

national special security event (NSSE).²⁶ This determination is made after consultation with the

Homeland Security Council.²⁷ Other events may be categorized through the use of the Special

Events Assessment Rating (SEAR) process used by the Department of Homeland Security to

address events that do not rise to the level of an NSSE.²⁸ Military assets provided in support of

NSSEs may include explosive ordnance disposal (EOD) teams, technical escort units (TEU),²⁹

geospatial intelligence support,³⁰and chemical, biological, radiological, and nuclear threat

identification and response forces.³¹

The designation of an NSSE by the Secretary, DHS, is based upon an analysis of several factors.

These factors include: the anticipated attendance of United States and foreign officials, the size of

the event, and the significance of the event.³² Certain events not designated as NSSEs may still

receive DoD support in accordance with DoDD 3025.20. The G-8 meeting of 2004 is an example

of an event approved for support but not designated as an NSSE.

Id. § 509(h) (2011).

Id. § 509(j) (2011).

Id. § 509(g) (2011).

Id. § 509(h) (2011).

²⁶ HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 7, CRITICAL INFRASTRUCTURE IDENTIFICATION, PRIORITIZATION,

AND PROTECTION para. 26 (Dec. 17, 2003) [hereinafter HSPD-7], available at:

http://emilms.fema.gov/IS700aNEW/NIMS0102040t1.htm.

Id.

²⁸ DHS, DHS RISK LEXICON 52 (Sept. 2008), available at: http://www.dhs.gov/xlibrary/assets/dhs_risk_lexicon.pdf.

²⁹ TEU teams are capable of detecting, rendering safe, and transporting chemical and biological devices.

10 U.S.C. § 442 (2012), National Geospatial-Intelligence Agency, Missions.

³¹ DoDI 3025.20, Encl. 3, 2.b.(7).

³² Thesaurus Index, UNITED STATES ARMY COMBINED ARMS CENTER,

http://usacac.army.mil/cac2/call/thesaurus/toc.asp?id=21432 (last visited July 15, 2013).

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For a list of designated NSSEs in recent years, see Table 7-1 below.

Event

Location

Date

2009 Presidential Inauguration

Washington, DC

Jan. 20, 2009

2009 Presidential Address to Congress

Washington, DC

Feb. 24, 2009

2009 G-20 Pittsburgh Summit

Pittsburgh, PA

Sep. 24-Sep. 25, 2009

2010 State of the Union Address

Washington, DC

Jan. 27, 2010

2010 Nuclear Security Summit

Washington, DC

Apr. 12-13, 2010

2011 State of the Union Address

Washington, DC

Jan. 25, 2011

Asia Pacific Economic Coop Summit

Honolulu, HI

Nov. 12-Nov.13, 2011

2012 State of the Union Address

Washington, DC

Jan. 24, 2012

38^thG8 Summit

Chicago, IL

May 19-21, 2012

NATO 2012 Chicago Summit

Chicago, IL

May 19-21, 2012

2012 Republican National Convention

Tampa, FL

Aug. 27-31, 2012

2012 Democratic National Convention

Charlotte, NC

Sep. 3-6, 2012

2013 Presidential Inauguration

Washington, DC

Jan. 20, 2013

Table 7-1 Recent Designated NSSEs

Requests for Support and Coordination

a. Processing Requests for Support

Requests for assistance (RFAs) to a special event may be made to DoD by Federal, State, or local

authorities, or a qualifying entity.³³ Often, this means that local police or a FBI field office requests

the military support.

If the initial engagement is not a written RFA, representatives of the Assistant Secretary of Defense

for Homeland Defense and Americas’ Security Affairs (ASD (HD & ASA)) and the Joint Staff will

confer to determine actual requirements. This may involve meetings between DoD representatives

and event organizers, civil authorities, or qualifying entities. Once an RFA is received, it will be

sent to the ASD (HD&ASA) and the CJCS simultaneously for staffing and recommendation.

Additional engagement with the requestor may be required to quantify the scope of the support

requested.³⁴ If the authority for the event is 10 U.S.C. § 2564 (sporting event support), and safety

and security support is sought, the Attorney General must certify that the DoD assistance is

necessary to meet “essential security and safety needs” (unless an event excepted under the statute,

such as the Special Olympics, is involved).³⁵

³³ DoDI 3025.20, Encl. 3. A qualifying entity is a non-governmental organization that DoD can assist by virtue of a

statute, regulation, policy, or other approval by SECDEF or an authorized designee.

Id.

10 U.S.C. § 2564 (2012).

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For NSSEs and events that may require the employment of military forces and centralized

command and control, the Chairman, Joint Chiefs of Staff (CJCS) will issue a planning order

requesting a Combatant Commander initiate planning and notify potential supporting commands

and the Chief, NGB, as appropriate. When possible, established CJCS-directed planning procedures

will be used by the Combatant Commander to provide an assessment and request for forces. The

NSSE designation process generally is initiated by a formal written request to the Secretary of

Homeland Security by the State or local government hosting the event. In other situations where the

event is Federally sponsored, an appropriate Federal official will make the request. As stated

above, the Secretary of Homeland Security makes the final determination to designate an event as

an NSSE pursuant to Homeland Security Presidential Directive 7.³⁶

b. Types of Support³⁷

Support that the DoD can provide includes, but is not limited to:

• Aviation

• Communications

• Security equipment

• Operations and command centers

• Explosive ordnance detection and disposal

• Logistics (transportation, temporary facilities, food, lodging)

• Ceremonial support (in coordination with the ASD(PA))

• Chemical, biological, radiological, and nuclear threat identification, reduction, and response

capabilities

• Incident response capabilities (in coordination with the Department of Justice, DHS, the

Department of Health and Human Services, and in consultation with appropriate State and local

authorities)

c. Funding Support

Military support may be provided on a reimbursable or non-reimbursable basis depending on the

authority involved. Logistical and security support for certain international sporting competitions

may be paid, in part, from the support for international sporting competitions (SISC) defense

account.³⁸ Events which may be funded out of the SISC account include the Special Olympics, the

Paralympics, and other events meeting the criteria of paragraph 2.b.(5)(d) of Enclosure 3 in DoDI

3020.25.

If there is no separate funding or authority for the DoD to provide the type of support requested, the

support must be approved by the Secretary of Defense and must be provided on a reimbursable

basis in accordance with the Economy Act or other applicable reimbursement authorities.³⁹ Note

³⁶ DoDI 3025.20, supra note 4, Enc. 3.

Id.

Id.; Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996).

³⁹ DoDI 3025.20, supra note 4, Encl. 3. See also 10 U.S.C. § § 372-374, 377, 2012, 2553-2555, and 2564 (2012); 31

U.S.C. §§ 1535, 1536 (2011).

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that for a single event, certain types of support may require reimbursement, and other types of

support may not. For example, essential safety and security support to the Olympics need not be

reimbursed, but other logistical support provided to the same event must be reimbursed.⁴⁰

Congress has provided specific appropriations to fund support to NSSEs. In addition to general

funding for NSSEs that began in FY2006, Congress has also designated funds for specified NSSEs

since 2004. Examples of NSSEs receiving specific appropriations include the Presidential

Nominating Conventions for both parties in 2004 and 2008.

B. Innovative Readiness Training

Through innovative readiness training (IRT), military units and personnel can sometimes be used to

assist eligible organizations and activities in “addressing community and civic needs” in the United

States, to include U.S. territories and possessions.⁴¹ The purpose of IRT is to build upon the long-

standing tradition of the Armed Forces of the United States, acting as good neighbors at the local

level, in applying military personnel to assist worthy community needs.⁴² Although IRT missions

simultaneously support the unit and the local community, regulations require that steps be taken to

ensure that IRT activities do not impermissibly compete with local commercial enterprises. This is

accomplished by either a determination that there is no reasonably available commercial alternative,

or, by providing a certification of non-competition from the requesting official that “the commercial

entity that would otherwise provide the services agrees to the provision of such services by the

armed forces.”⁴³

IRT projects include, but are not limited to, constructing rural roads, providing medical and dental

care to medically underserved communities, and performing small building and warehouse

construction or re-assembly. While active components may conduct IRT programs, the National

Guard and Reserve elements primarily provide this support.

Innovative Readiness Training Procedures

Military units may provide this support to certain eligible organizations in the United States, its

territories and possessions, and the Commonwealth of Puerto Rico.⁴⁴ Such assistance must be

provided incidental to training or be otherwise authorized by law.⁴⁵ Assistance is primarily

10 U.S.C. §§ 2564(a), 2564(b) (2012).

⁴¹ U.S. DEP’T OF DEFENSE, DIR. 1100.20, SUPPORT AND SERVICES FOR ELIGIBLE ORGANIZATIONS AND ACTIVITIES

OUTSIDE THE DEPARTMENT OF DEFENSE para. 4.1 (12 Apr. 2004) [hereinafter DoDD 1100.20]. DoDD 1100.20

implements 10 U.S.C. § 2012.

Id. See Lieutenant Commander W. Kent Davis, Innovative Readiness Training Under 10 U.S.C. § 2012:

Understanding the Congressional Model for Civil-Military Projects, ARMY LAW., Jul. 2001, at 21, for additional

backg0round. Military training in support of certain community and charitable organizations can also be accomplished

through 32 U.S.C. § 508 and U.S. DEP’T OF DEFENSE, DIR. 3025.17, CIVIL-MILITARY ASSISTANCE FOR CERTAIN YOUTH

AND CHARITABLE ORGANIZATIONS (16 Dec. 2004).

⁴³ DoDD 1100.20, supra note 41, paragraph 4.4.1.2.

10 U.S.C. § 2012 (2012); DoDD 1100.20, supra note 41.

10 U.S.C. § 2012(a) (2012).

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provided by combat service support units, combat support units, and personnel serving in the areas

of health-care services, general engineering and infrastructure support, and assistance services.⁴⁶

a. Requests for Assistance

Requests for assistance must come from a “responsible official” of an “eligible organization.”⁴⁷ A

responsible official is “an individual authorized to represent the organization or activity regarding

the matter of assistance to be provided.”⁴⁸ There are three categories of eligible organizations. Any

federal, regional, state, or local government entity is an eligible organization.⁴⁹ Eligible

organizations also include youth and charitable organizations as specified in 32 U.S.C. § 508.

Finally, an entity can be approved as an eligible organization by the Secretary of Defense on a case-

by-case basis.⁵⁰

The request for IRT assistance must specify that the requested assistance is not reasonably available

from a commercial entity.⁵¹ An organization may request Innovative Readiness Training assistance

from a military unit or individual members. In determining whether assistance from a commercial

entity is reasonably available, it is permissible to consider whether the requesting organization

“would be able, financially or otherwise, to address the specific civic or community need(s) without

the assistance of the Armed Forces.”⁵² If commercial assistance is reasonably available, the

requesting individual must certify the commercial entity agrees to the provision of such services by

the military.⁵³ A good resource for materials related to IRT is http://irt.defense.gov/. This site

maintains current forms and other items of interest to those seeking to file or process an IRT

application.

b. IRT Provision Requirements

Requested IRT assistance must meet three requirements. First, it must be related to military

training. In the case of a military unit, the requested assistance must accomplish valid unit training

requirements (there is an exception to this particular requirement discussed below). In the case of

assistance provided by an individual military member, the requested assistance must involve tasks

directly related to the individual’s military occupational specialty (MOS). Second, the provision of

assistance cannot adversely affect the quality of training or otherwise interfere with a unit or its

members’ abilities to perform military functions. Third, the provision of assistance cannot result in

a significant increase in training costs.⁵⁴

There is one exception to the requirement that requested IRT assistance must accomplish valid unit

training requirements. In cases where the assistance consists primarily of military manpower and

⁴⁶ DoDD 1100.20, supra note 41, para. 4.2.

10 U.S.C. § 2012(c)(1) (2012).

⁴⁸ DoDD 1100.20, supra note 41, para. 4.4.1.1.

10 U.S.C. § 2012(e)(1) (2012).

10 U.S.C. § 2012(e)(3) (2012).

10 U.S.C. § 2012(c)(2) (2012).

⁵² DoDD 1100.20, supra note 41, para. 4.4.1.2.

10 U.S.C. § 2012(c)(2); DoDD 1100.20, supra note 41, para. 4.4.1.2.

10 U.S.C. § 2012 (d)(1)(C) (2012).

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will not exceed 100 man-hours, the assistance need not accomplish unit training requirements.⁵⁵

The second and third requirements discussed above must still be met. In such cases, volunteers will

meet manpower requests, and assistance other than manpower will be extremely limited.⁵⁶ Military

vehicles may only be used, for example, to provide transportation of personnel to and from the work

site.⁵⁷

Legal Considerations for IRT Projects

a. Approval Authority for IRT Projects⁵⁸

All IRT submission packets must be approved by a general officer. IRT projects that seek

additional funding from OSD, seek support for any non-governmental organization not specified in

32 U.S.C. § 508, or seek to reallocate IRT funds to another IRT project require approval by the

Office of the Assistant Secretary of Defense for Reserve Affairs (OASD/RA). Major Commands

(MACOMs) otherwise have the authority to approve Army-funded IRT projects not meeting the

criteria above submitted by qualifying entities. This approval authority may be delegated to

commanders of major subordinate commands.

b. Processing Requests for IRT Projects

(1) How the IRT Project Request Process Begins

First, a representative from an eligible organization will approach a commander or command

representative with a concept for a project. The project concept must address a need that is not

otherwise being met. The commander will evaluate the project to determine whether it is

compatible with unit or individual training requirements. If the project is compatible, the

commander then must determine the feasibility of using the project as a training exercise.

(2) Contents of IRT Project Requests

If the commander determines the proposed IRT project is feasible as a training exercise, the

commander works with the requestor to assemble the IRT project request. An IRT project request

must contain a cost analysis of the proposed project. The cost analysis includes total program costs

and identifies whether the costs are borne by military department accounts or defense-wide

accounts. The requesting commander must certify that the proposed project will not increase the

cost of the training above the amount it would cost if conducted independent of an IRT project. The

IRT project request must contain a certification of non-competition. The certification of non-

competition must determine that the requested assistance is not reasonably available from a

commercial entity, or the existing commercial entities agree to the provision of such services by the

military. The IRT project request must also contain an environmental assessment.⁵⁹

10 U.S.C. § 2012 (d)(2) (2012).

⁵⁶ DoDD 1100.20, supra note 41, para. 4.4.2.1.3.

Id. (note that the use of military aircraft is prohibited in these instances).

⁵⁸ Army IRT Policy, supra note 2, at 2.

⁵⁹ See Army IRT Policy, supra note 2, at. 2. IRT medical project proposals have additional submission requirements.

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(3) IRT Request Review

All IRT project requests must be reviewed for full compliance with applicable guidelines and law.

All IRT project requests must be reviewed and endorsed by a Staff Judge Advocate or legal officer,

a U.S. Property and Fiscal Officer or Federal Budget Officer, and Plans, Operations and Training

officials.⁶⁰ Depending on the nature of assistance requested, additional endorsements may be

required from medical, dental, or nursing officials.⁶¹ If applicable, the command may request

endorsement from the State Adjutant General of the project state or intergovernmental agencies.⁶²

c. Claims Arising From IRT Projects

Claims involving Active Duty, Reserve, or National Guard Soldiers that arise from IRT projects are

cognizable under the Federal Tort Claims Act (FTCA) despite the fact that a non-DoD or private

entity derives a benefit from the project. IRT projects are conducted in a federally funded training

status under Title 10 or Title 32 status.⁶³ Community assistance undertaken by National Guard

units is accomplished in a state active duty (SAD) status and is not IRT. Therefore, claims

generated incident to projects accomplished in SAD status are solely a state responsibility.

II. Miscellaneous Domestic Support Operations

Domestic support operations supplement the efforts and resources of state and local governments,

and can include a variety of lesser-known types of support. This chapter will address these areas

that may not frequently arise in domestic support operations, but nonetheless contain significant

legal implications and thus are worthy of discussion.

A. Disaster and Domestic Emergency Assistance

1. Military Assistance to Safety and Traffic

The Military Assistance to Safety and Traffic (MAST) program is designed to “assist civilian

communities in providing medical emergency helicopter services beyond the capability of the

community.”⁶⁴ The Secretary of the Army serves as the DoD Executive Agent for the MAST

program.⁶⁵ In response to a request from civilian authorities, military medical helicopter units may

provide emergency air evacuation and recovery assistance if local civilian resources are not

available or are not sufficient for response to emergencies.⁶⁶ Circumstances for which military

support is envisioned are:⁶⁷

• Those of a life-saving nature;

Id. at 1.

Id. at 2.

Id.

Id. at 1.

⁶⁴ U.S. DEP’T OF DEFENSE, DIR. 4500.9E, TRANSPORTATION AND TRAFFIC MANAGEMENT, E4.2.1 (11 Sept. 2007)

[hereinafter DoDD 4500.9E].

Id. para. 1.4.

Id. para. E.4.2.1.

Id. para. E.4.3.1.

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• Those specifically authorized by statute;

• Those in direct support of a DoD Mission;

• Those requested by an Agency head pursuant to 31 U.S.C. §§ 1535-36;

• Medical evacuations pursuant to the provisions of DoDI 6000.11, “Patient Movement,” May 4,

2012;⁶⁸ and,

• As authorized and funded pursuant to DoDR 7000.14-R, “Department of Defense Financial

Management Regulations (FMRs), Volumes 11A, 11B, and 15.⁶⁹

Military support is subject to the following limitations:

• Assistance may be provided only in areas where military units able to provide such assistance

regularly are assigned.

• Military units shall not be transferred from one area to another to provide such assistance.

• Assistance may be provided only to the extent that it does not interfere with the performance of

military missions.

• The provision of assistance shall not cause any increase in funds required for DoD operation.

• The Secretary of Defense, or designee, shall be the final decision authority for commitment of

DoD resources to the MAST program.

• DoD costs incurred in the program shall be funded by the Military Departments within their

annual training program.⁷⁰

Additionally, military units shall not perform emergency medical evacuation missions if support can

be provided by civilian contractors.⁷¹

DoD assets will provide interim support until civilian assets become available.⁷² Medical helicopter

units must operate within their allocated training hour program.⁷³ The Secretary of Defense or his

or her designee is the final decision authority for commitment of resources to the MAST program.⁷⁴

Search and Rescue Operations (SAR)

The U.S. Air Force, U.S. Pacific Command (USPACOM), and U.S. Coast Guard all have

significant day-to-day SAR responsibilities. For typical SAR cases, the USAF is the recognized

SAR coordinator for the continental U.S. aeronautical SAR Region, USPACOM is the recognized

SAR coordinator for the Alaskan aeronautical SAR Region, and the U.S. Coast Guard is the

recognized SAR coordinator for all other aeronautical and maritime SAR regions. This section

Id. para. E.4.3.3.1.

Id. para. E.4.3.2.

Id. paras. E.4.2.3.1 - E4.2.3.6.

Id. para. E.4.2.1.

Id. E.4.2.2.

Id. E.4.2.3.6.

Id. E.4.2.3.5.

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addresses when DoD resources may be applied in a Stafford Act or other civil support event,

outside these normal day-to-day SAR operations. ⁷⁵

If Emergency Support Functions (ESFs) have been activated (typically during a Stafford Act

response), DoD may have a large role in land-based search and rescue. ESF #9 identifies DoD as a

primary agency for land SAR. During a Stafford Act or other civil support incident, DoD may

provide SAR support following a request by FEMA as directed by JDOMS and approved by

SECDEF.⁷⁶ In this capacity, under the National Response Framework DoD assists civil authorities

by conducting SAR missions on a reimbursable basis (pursuant to the Stafford Act or Economy Act

as appropriate).⁷⁷ Note that local commanders may also provide SAR support when an

“imminent[ly] serious” threat to “public health and safety” exists and time does not permit prior

approval.⁷⁸

When requested, DoD, through U.S. Northern Command (USNORTHCOM) and/or USPACOM,

coordinates facilities and resources according to applicable directives, plans, guidelines, and

agreements. Per the National SAR Plan and as mentioned above, the U.S. Air Force and

USPACOM provide resources for the organization and coordination of civil SAR services and

operations within their assigned SAR regions and, when requested, to assist Federal, State, tribal,

and local authorities.⁷⁹

If DoD SAR capabilities deploy at the direction of an Air Force Rescue Coordination Center in

support of the National SAR Plan (during a typical SAR mission as mentioned above), and the

Stafford Act is subsequently invoked,⁸⁰those capabilities will then be administered under the

National Response Framework and ESF #9. As soon as practical, a DHS/FEMA or other

department/agency mission assignment will then be submitted to DoD for those capabilities’

continued support.⁸¹

3. Employment of DoD Resources in Support of the U.S. Postal Service

When a postal work stoppage disrupts mail service on a national, regional, or local basis, DoD may

be directed to support the U.S. Postal Service (USPS) through an interdepartmental transfer of

services.⁸² When ordered by the President, DoD may be called upon to provide materials, supplies,

⁷⁵ See National Search and Rescue Plan of the United States, para. 22 (2007), available at:

http://www.uscg.mil/hq/cg5/cg534/sar_manuals.asp#NSP.

⁷⁶ U.S. DEPARTMENT OF DEFENSE, DoDD 4515.13-R AIR TRANSPORTATION ELIGIBILITY, (Nov. 1994) [hereinafter

DoDD 4515.13-R], through change 3, April 9, 1998, para. C5.7; see also FEMA, EMERGENCY SUPPORT FUNCTION #9 -

SEARCH AND RESCUE, (Feb. 2011), available at FEMA.gov.

⁷⁷ FEMA, EMERGENCY SUPPORT FUNCTION #9 - SEARCH AND RESCUE, (Feb. 2011), available at: FEMA.gov.

⁷⁸ See DoDD 4515.13-R, supra note 76, at C.10.11.

⁷⁹ FEMA, EMERGENCY SUPPORT FUNCTION #9 - SEARCH AND RESCUE, (Feb. 2011), available at: FEMA.gov

⁸⁰ This could occur in the case of a large airline crash or large vessel casualty, requiring the need for a mass rescue.

Id.

⁸² U.S. DEP’T OF DEFENSE, DIR. 5030.50, EMPLOYMENT OF DEPARTMENT OF DEFENSE RESOURCES IN SUPPORT OF THE

UNITED STATES POSTAL SERVICES, para. 1 (13 Apr. 1972) [hereinafter DoDD 5030.50].

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equipment, services, and personnel to enable the USPS to safeguard, process, and deliver the mail in

areas affected by postal work stoppages.⁸³

Authority to support the USPS rests in the President’s authority to use the armed forces to prevent

interference with transporting the mail⁸⁴and the authority for interdepartmental transfer of services

and equipment prescribed by the Economy Act,⁸⁵ as implemented by DoD Instruction 4000.19,

Support Agreements.⁸⁶ Upon Presidential declaration of a national emergency, selective

mobilization of reserve components to support the USPS would occur under 10 U.S.C. § 12301.⁸⁷

Army and Air National Guard units would be called under authority granted in 10 U.S.C. § 12406.

Note also that, consistent with this use of authority, EO 13527, Establishing Federal Capability for

the Timely Provision of Medical Countermeasures Following a Biological Attack (Dec. 30, 2009)

directs the integration of DoD into plans to provide support to the USPS delivery of medical

countermeasures in the event of biological attack.⁸⁸

Public Health or Medical Emergencies

In a large-scale public health or medical response, DoD will likely provide civil support to the

Department of Health and Human Services (HHS), which is the primary agency responsible for this

mission under ESF #8. DoD may be asked to provide support for casualty clearing and staging,

patient treatment, and services such as laboratory diagnostics. DoD resources may be needed to

assist with the protection of food and water, the provision of medical supplies, coordination of

patient processing, and/or the management of human remains, among other items. All activities

would be coordinated through the mission assignment process under ESF #8.⁸⁹

The new Public Health Emergency Medical Countermeasures Enterprise (PHEMCE)

Implementation Plan (December 2012) is another part of the response framework for public health

emergencies. It establishes the PHEMCE as an interagency coordinating body led by the HHS

Assistant Secretary for Preparedness and Response (ASPR), and comprises the Centers for Disease

Control (CDC), the National Institutes of Health (NIH), the Food and Drug Administration (FDA),

as well as interagency partners at the Department of Veterans Affairs (VA), Defense (DoD),

Homeland Security (DHS), and Agriculture (USDA). It coordinates the development, acquisition,

stockpiling, and use of medical products that are needed to effectively respond to a variety of

potential high-consequence public health emergencies, whether naturally occurring or intentional.⁹⁰

Id. para. 4., noting that legal authority for the employment of military resources at the direction of the President to

reestablish and maintain essential postal service may be found in Section 686 of Title 31, U.S. Code, and Section 411 of

Title 39, U.S. Code.

In re Debs, 158 U.S. 564 (1895).

31 U.S.C. § 1535 (2011), implemented by 39 U.S.C. § 411 (Cooperation with other Government Agencies).

⁸⁶ U.S. DEP’T OF DEFENSE, INSTR. 4000.19, SUPPORT AGREEMENTS (25 Apr. 2013).

10 U.S.C. §§ 12301-12304 (2012); see also DoDD 5030.50, supra note 82, para. 4.4.1.

⁸⁸ Exec. Order No. 13527, 75 Fed. Reg. 737 (Jan. 6, 2010).

⁸⁹ FEMA, EMERGENCY SUPPORT FUNCTION #8 - PUBLIC HEALTH AND MEDICAL SERVICES, (Jan. 2008), available at:

FEMA.gov [hereinafter ESF #8]. The mission assignment process is discussed further at Chapter 2, infra.

⁹⁰ See U.S. Department of Health and Human Services, Public Health Emergency Medical Countermeasures Enterprise

(PHEMCE) Implementation Plan (Dec. 2012), available at:

http://www.phe.gov/Preparedness/mcm/phemce/Documents/2012-PHEMCE-Implementation-Plan.pdf.

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5. Animal and Plant Disease Eradication

Under ESF #8, USDA is responsible for providing the resources to control and eradicate an

outbreak of highly contagious or economically devastating animal disease.⁹¹ DoD’s role under ESF

#8 is to support this function when requested by providing available military medical personnel for

the protection of public health (to include food and water supplies), and for the support of the

medical treatment of animals.⁹² The National Guard maintains National Guard Expeditionary

Medical Support (EMEDS) Fatality & Services Recovery Response Team packages that can

support these missions with proper approvals.⁹³

6. Mass Migration Emergency

The Department of Homeland Security (DHS) is charged with enforcing the laws of the United

States regarding immigration.⁹⁴ The majority of this responsibility is fulfilled by the routine daily

operations of U.S. Immigration and Customs Enforcement (ICE)⁹⁵ under DHS. When individuals

enter the United States illegally, they are subject to apprehension by law enforcement authorities.

ICE then takes action to deport or resettle these immigrants. If the number of illegal immigrants

exceeds the capacity of the ICE, the President may declare a Mass Immigration Emergency and

DoD may be called on to provide support to DHS.⁹⁶

DoD may be tasked to assist in initial migrant reception, transportation, housing, and the full range

of support services associated with those tasks. At no time is DoD expected to engage in law

enforcement activities or in the processing of immigrants. FORSCOM, operating with DoD Lead

Operational Authority, is charged by JFCOM to develop and coordinate detailed planning and

execution of DoD support mass migration operations in the continental United States. The National

Guard supports domestic emergencies such as mass migration emergencies in a civil support role

while in a Title 10 status.⁹⁷

7. Nuclear and Radiological Incidents

Nuclear/Radiological incidents are defined as an “unexpected event involving the release or

potential release of radioactive material that poses an actual or perceived hazard to public health,

⁹¹ ESF # 8, supra note 89, 8-10,11.

Id. at 8-11.

⁹³ See NATIONAL GUARD REGULATION 500-1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS, para. 5-11a,

11b (13 Jun. 08) [hereinafter NGR 500-1].

⁹⁴ See 6 U.S.C. § 101B, Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified

primarily at 6 U.S.C. §§ 101-557) [hereinafter HSA 2002].

ICE is the investigative arm of the Department of Homeland Security (DHS). The agency is comprised of several

components from the former Immigration and Naturalization Service (INS), the U.S. Customs Service, and the Federal

Protective Service (FPS). The agency combines the investigative, detention and removal, and intelligence functions of

the former INS with the investigative, intelligence, and air & marine functions of the former Customs Service. All the

functions of the former FPS are also part of ICE.

⁹⁶ For example, during the Mariel Boatlift approximately 124,000 Cuban migrants entered the United States between

April and September of 1980. See Alien Migrant Interdiction, U.S. COAST GUARD,

http://www.uscg.mil/hq/cg5/cg531/amio/amio.asp (last visited Aug. 30, 2013).

⁹⁷ NGR 500-1, supra note 93, para. 4-2.d.

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safety, national security, or the environment.”⁹⁸The Nuclear/Radiological Incident Annex of the

National Response Framework provides national policy for and assigns responsibility to designated

federal departments for the release of nuclear or radiologic materials, whether purposeful or

inadvertent, and whether the incident involves government or privately owned materials.⁹⁹ Per this

policy, DoD is the coordinating agency for incidents occurring on all DoD owned or operated

facilities, and for incidents involving a nuclear weapon, special nuclear material, or nuclear

components under DoD custody.¹⁰⁰ In the event of a deliberate attack in the United States, DHS is

the coordinating agency and DOJ is the lead law enforcement authority.¹⁰¹ DoDD 3150.08, DoD

Response to Nuclear and Radiological Incidents, establishes additional policy in accordance with

the National Response Framework regarding DoD consequence management response to U.S.

nuclear weapon incidents and other nuclear or radiological incidents involving DoD materials.¹⁰²

DoD Support to Wildfires

State and local governments have the primary responsibility to prevent and control wildfires.¹⁰³

DoD policy is to provide emergency assistance to federal agencies in the form of personnel,

equipment, supplies, or fire protection service in cases where a fire emergency is beyond the

capabilities of available resources.¹⁰⁴ DoD provides support pursuant to a memorandum of

understanding (MOU) between DoD, the U.S. Department of Agriculture (USDA), and the

Department of the Interior (DOI).¹⁰⁵

The primary federal entity responsible for coordinating the federal response to wildfires is the

National Interagency Fire Center (NIFC). The NIFC, located in Boise, Idaho,¹⁰⁶ is the nation’s

support center for wildland firefighting¹⁰⁷ and is a joint operation of the DOI and USDA.¹⁰⁸ Seven

federal agencies operate from the NIFC and work together to coordinate and support fire disaster

operations. These agencies are:

• Bureau of Indian Affairs (BIA);

• Bureau of Land Management (BLM);

• Forest Service (USFS);

⁹⁸ U.S. DEP’T OF DEFENSE, DIR. 3150.08, DOD RESPONSE TO NUCLEAR AND RADIOLOGICAL INCIDENTS (10 Jan. 2010)

[hereinafter DoDD 3150.08].

⁹⁹ FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Jun 2008) 1,4,7, available at:

http://www.fema.gov/pdf/emergency/nrf/nrf_nuclearradiologicalincidentannex.pdf.

100

Id. at 8.

101

Id. at 9.

¹⁰² DoDD 3150.08, supra note 98, para. 1.

¹⁰³ U.S. DEP’T OF DEFENSE, 3025.1-M, MANUAL FOR CIVIL EMERGENCIES, ch. 1 para. E.8, and ch. 3 para. B.3.a. (Jun.

1994) [hereinafter DoD 3025.1-M]; Memorandum of Understanding Between the Department of Defense and the

Departments of Agriculture and the Interior, III (Policy) (1975) [hereinafter MOU-USDA/DOI]; see also FEMA,

EMERGENCY SUPPORT FUNCTION #4 - FIREFIGHTING ANNEX (Jan. 2008), available at: FEMA.gov.

¹⁰⁴ DoDD 3025.1-M, supra note 103, ch. 3, para C3.

¹⁰⁵ MOU-USDA/DOI, supra note 103.

¹⁰⁶ ESF #4, supra note 103.

¹⁰⁷ DoDD 3025.1-M, supra note 103, para. C3; MOU-USDA/DOI, supra note 103, at II.D, and IV.A1; see also

National Interagency Fire Center (NIFC), available at: http://www.nifc.gov/aboutNIFC/about_mission.html.

¹⁰⁸ DoDD 3025.1-M, supra note 103, para. B.3.b.

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• Fish and Wildlife Service (USFWS);

• National Park Service (NPS);

• National Weather Service (NWS); and,

• Office of Aircraft Services (OAS) ¹⁰⁹

The NIFC evolved from the “Boise Interagency Fire Center” which was established in 1965. The

Boise Interagency Fire Center began as an effort to consolidate fire planning and response among

the Bureau of land Management, U.S. Forest Service, and National Weather Service. In 1993, the

name was changed to the National Interagency Fire Center to reflect a national mission. ¹¹⁰

If a national fire situation becomes severe, the National Multi-Agency Coordinating (NMAC)

Group is activated. This group consists of representatives of each of the federal wildland firefighting

agencies. Representatives from the General Services Administration, the U.S. military, and state

forestry services may also participate. The federal and state representatives of this group are

responsible for responding to wildland fires and other emergency events. Depending on the

national fire situation, the NMAC group helps set priorities for critical, and occasionally scarce,

equipment, supplies, and personnel. ¹¹¹

The National Interagency Coordination Center (NICC) is located within the NIFC. The NICC was

established in 1975 to provide logistical support and intelligence for wildland fires across the

nation. Because NICC is an “all-risk” coordination center, it can also provide support in response

to other emergencies such as floods, hurricanes, and earthquakes. The NICC coordinates supplies

and resources across the United States and provides support to incidents in foreign countries. The

NICC is staffed jointly by BLM and USFS.¹¹²

Subordinate to the NICC are eleven “Geographic Area Coordination Centers” (GACCs). Each

GACC is composed of federal and state wildland fire agencies. See Figure 8-1.¹¹³

¹⁰⁹ See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last

visited Aug. 19, 2013).

¹¹⁰ See NIFC History, Mission, NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/aboutNIFC/about_mission.html (last visited Aug. 20, 2013). Note that “Boise Interagency Fire

Center” is the phrase referred to MOU-USDA/DOI, supra note 103, rather than NIFC.

¹¹¹ See NATIONAL INTERAGENCY FIRE CENTER, THE NATIONAL MULTI-AGENCY COORDINATING GROUP 2013

NATIONAL STRATEGY (2013), available at: http://www.nifc.gov/nicc/administrative/nmac/index.html.

¹¹² See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last

visited Aug. 19, 2013).

¹¹³ See Welcome to the National Interagency Coordination Center NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/nicc/index.htm (last visited Aug. 20, 2013).

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Figure 8-1. Map of Geographical Area Coordination Centers.

The NICC uses a three-tiered coordination system to respond to wildland fires.¹¹⁴ First, a wildland

fire is initially managed by the local agency that has fire protection responsibility for that area.

Engines, ground crews, smokejumpers, helicopters with water buckets, and air tankers may all be

used for initial suppression. Various local agencies may work together, sharing personnel and

equipment, to fight new fires and those that escape initial action. If a wildland fire grows to the

point where local personnel and equipment cannot contain the fire, the responsible agency contacts

one of the eleven GACCs, which is the second tier of response. The GACC will locate and dispatch

additional firefighters and support personnel throughout the geographic area. The third tier is

triggered when GACCs can no longer meet requests because they are supporting multiple incidents,

or GACCs are competing for resources. When this occurs, requests for equipment and supplies are

referred to NIFC. ¹¹⁵

NIFC can request DoD assistance in one of two ways.¹¹⁶ First, for wildland fires outside federal

land (on state or private lands), state officials submit their requests for suppression assistance to the

FEMA Regional Director or FCO. The FEMA Regional Director or FCO then requests military

assistance. Alternately, NIFC can request military assistance under its own authority by contacting

the Joint Director of Military Support (JDOMS). Second, if the response is to an emergency under

the Stafford Act,¹¹⁷NIFC requests military assistance from FEMA, which coordinates with

JDOMS. JDOMS notifies the supported COCOM, who in turn tasks the appropriate component

¹¹⁴ See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last

visited Aug. 19, 2013).

115

Id.

¹¹⁶ DoDD 3025.1-M, supra note 103, para. B.3.a; MOU-USDA/DOI, supra note 103, III. POLICY, paras. A-B.

¹¹⁷ Under the Stafford Act, an “emergency” is defined as “any occasion or instance for which, in the determination of

the President, federal assistance is needed to supplement State and local efforts and capabilities to save lives and protect

property and public health and safety, or to lesson or avert the threat of catastrophe in any part of the United States. The

Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., as amended [hereinafter

The Stafford Act]. See Chapter 2 infra for an extensive discussion on Stafford Act Emergency and Disaster

declarations.

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command or supporting Combatant Command. All requests for military support will then be

handled by the command designated by the supported COCOM.¹¹⁸ NIFC normally requests a

specific number of firefighters and/or items of equipment. NIFC taskings will provide the

necessary information, such as incident name, location, agency representation, and duration of

assignment.

Normally, as part of the efforts of state and local governments to prevent and control wildfires, the

National Guard (NG) will respond in state active duty (SAD) status.¹¹⁹ For example, during the

summer of 2000, ten states provided more than 1,500 National Guard soldiers and airmen who

served in SAD status. The National Guard personnel provided law enforcement support for traffic

control, transportation and aviation support, and firefighters. The Air National Guard (ANG) and

Air Force Reserve (AFR) provided eight C-130 aircraft equipped with the modular airborne

firefighting system (MAFFS). Additionally, federal firefighting officials at NIFC formally

requested assistance from DoD. More than 4,600 active duty mmembers were committed to

augment federal and local firefighters and law enforcement officials. NIFC instituted a

“Preparedness Level 5” indicating that all federal firefighting resources were fully committed. ¹²⁰

The ANG and AFR use the USFS-owned Modular Airborne Fire Fighting System (MAFFS), when

requested, to assist with wildland firefighting during extreme conditions.¹²¹ Congress established

the MAFFS Program in the early 1970s as a wildland fire program, not a military program. The

objective of the MAFFS program is to provide emergency capability to supplement the existing

commercial air tanker support on wildfires. The NICC can activate the MAFFS when all other

contract air tankers are committed, or are otherwise unable to meet requests for air operations. The

request for MAFFS activation is approved by the national MAFFS liaison officer, who is the USFS

director at NIFC. This request is then formally submitted to JDOMS. Governors of states where

NG MAFFS units are stationed may activate MAFFS missions within their state boundaries when

covered by a memorandum of understanding with the USFS. In accordance with military

requirements for initial qualification and recurrent training, MAFFS crews are trained every year

with Forest Service national aviation operations personnel.

There are currently eight MAFFS units in the system. Two are positioned at each of the following

Air National Guard and Air Force Reserve locations:

¹¹⁸ DoD 3025.1-M, supra note 103, ch.3, para. C3.

¹¹⁹ This is different from Title 32 or Title 10 status for National Guard personnel. See infra Chapter 3, Reserve

Components, for further information on National Guard member status.

¹²⁰ See More Troops Tabbed to Battle Montana Wildfires, AMERICAN FORCES INFORMATION SERVICE (Aug. 23, 2000),

http://osd.dtic.mil/news/Aug2000/n08232000_20008231.html.

¹²¹ DoD 3025.1-M, supra note 103, ch. 3, para. C3.; see also Aviation, U.S. FOREST SERVICE FIRE & AVIATION

MANAGEMENT, http://www.fs.fed.us/fire/aviation (last visited Aug. 20, 2013). A MAFFS is a self-contained and

pressurized, reusable 3,000 gallon aerial fluid dispersal system that allows Lockheed C-130 cargo/utility aircraft to be

converted to wildland firefighting air tankers without structural modification to the aircraft. The 3,000 gallons of

retardant are discharged in about five seconds through two tubes exiting the rear ramp of the plane. Most MAFFS are

“single-shot” systems, meaning the full load is discharged at one time. One load may lay down a “line” about one

quarter-mile-long and sixty feet wide. The units are loaded with either water or retardant—a chemical that inhibits the

combustion potential of vegetation on the ground. This allows firefighters on the ground to rapidly take advantage of

the retardant effect, which helps in line-building efforts. The retardant’s bright red or fuchsia color helps pilots observe

the accuracy of their drops on the edge of the fire.

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•

153rd Airlift Wing (AW), Cheyenne, WY (ANG);

•

146th AW, Port Hueneme, CA (ANG);

•

145th AW, Charlotte, NC (ANG); and,

•

302nd AW, Peterson AFB, Colorado Springs, CO (AFR)

The mobilization of MAAFS resources requires a pre-deployment analysis. Prior to deployment of

these assets, local foresters are responsible for ensuring that regional, commercially-available assets

are unavailable or already committed to a mission. Similarly, if assets are sought by the NICC,

commercial assets must be unavailable at the national level. Payments are governed by the

appropriate Memorandum of Understanding-Collection Agreements. These agreements are among

the military authority and the Forestry Service.¹²²

B. Environmental Missions¹²³

Military services carry out environmental compliance programs focused internally on DoD

facilities. DoD may also be called upon to provide assistance during domestic contingency

operations involving a major federal response to an environmental disaster. DoD has representation

on the national and regional response teams that oversee response planning for oil and hazardous

materials incidents under the Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA) and the Federal Water Pollution Control Act or Clean Water Act of

(1972).¹²⁴ The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40

C.F.R. § 300, sets forth the responsibilities of all state and federal entities with a role in

environmental response under these laws.¹²⁵

Executive Order 12580 directs creation of a National Response Team (NRT) for national planning

and coordination of preparedness and response actions. The NRT is composed of representatives of

appropriate federal departments and agencies, including DoD.¹²⁶ Regional Response Teams

(RRTs), the regional counterpart to the NRT, plan and coordinate regional preparedness and

response actions. The EPA chairs the standing NRT, and the EPA, U.S. Coast Guard, and regional

states chair the RRTs. RRTs coincide geographically with FEMA and EPA regions. At the local

level in the coastal zones are the Area Committees, co-chaired by Coast Guard Captains of the

Port¹²⁷and their geographic state counterparts.

¹²² See DoD 3025.1-M, supra note 103, ch. 3, para. C3; see also Aviation, U.S. FOREST SERVICE FIRE & AVIATION

MANAGEMENT, http://www.fs.fed.us/fire/aviation (last visited Aug. 20, 2013).

¹²³ Chapter 2, infra, contains additional information on environmental response and how this mission fits within the

National Response Framework.

¹²⁴ Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9605 - 9675

(2011); The Federal Water Pollution Control Act (Clean Water Act) , 33 U.S.C. § 1251 et. seq. (1972), as amended by

the Oil Pollution Act of 1990 (OPA 90) (1991).

¹²⁵40 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.

¹²⁶ Exec. Order No. 12580, 3 C.F.R. 193 (1987).

¹²⁷ Per 33 C.F.R. § 1.01-30 Coast Guard “Captains of the Port and their representatives enforce within their respective

areas port safety and security and marine environmental protection regulations, including, without limitation,

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The NCP is the federal government’s plan for emergency response to discharges of oil into the

navigable waters of the United States or releases of chemicals into the environment.¹²⁸ Under the

National Response Framework, the Environmental Protection Agency (EPA) is the coordinator for

ESF #10 - Oil and Hazardous Materials Response Annex.¹²⁹

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 and provides the OSC. States typically

have concurrent jurisdiction with the EPA/USCG, and will provide a state OSC with significant

authority granted under the NCP and state law. DoD provides the Federal On-Scene Coordinator or

FOSC (person who directs and supervises the response) for all hazardous substance releases, except

oil spills, that originate from DoD facilities or vessels.¹³⁰

For incidents where it is not the OSC, DoD typically provides hazardous materials or oil spill

incident response expertise and resources through the Navy and/or Army Corps of Engineers

(USACE), both of whom have a representative attending NRT, RRT, and/or Area Committee

meetings. USACE support capabilities in oil spill cleanup activities include recovery of oil using

USACE reserve fleet vessels, contracting, construction management, real estate support services,

engineering, environmental review and monitoring, and regulatory permitting, among other items.

The Navy's Supervisor of Salvage has an extensive array of specialized equipment and personnel

for use in ship salvage, shipboard damage control, and diving - all of which may be critical needs

during a spill occurring from a large oil-carrying cargo vessel.¹³¹ With the exception of support

provided under Immediate Response Authority, the use of DoD resources to support requests for

assistance is subject to the approval of the Secretary of Defense.¹³² JDOMS will then coordinate

any DoD support under the NCP. Such support will typically be requested through the RRT by the

U.S. Coast Guard or EPA OSC overseeing the response.

1. The Deepwater Horizon Oil Spill - Use of the NCP vs. Stafford Act

Major environmental contingency operations within the United States are addressed exclusively

under the NCP without a Presidential declaration of a major disaster under the Stafford Act. During

the Deepwater Horizon crisis in 2010, there was substantial confusion in the public and in press

regulations for the protection and security of vessels, harbors, and waterfront facilities; anchorages; security zones;

safety zones; regulated navigation areas; deepwater ports; water pollution; and ports and waterways safety.”

128

It is important to note that the NCP is a separate response regime from the National Response Framework and the

Stafford Act, yet there can be overlap between them. Large oil or hazardous materials incidents will be addressed under

the NCP, and not the Stafford Act, because this allows for the government to direct the “responsible party” (entity

responsible for the incident) to take response action in addition to government efforts (thus meeting Congressional

intent of the “polluter pays” under CERLA and the FWPCA). Nonetheless, elements of the National Response

Framework (in particular ESF #10) can be activated in addition to the NCP to address the response. See the discussion

of the Deepwater Horizon Oil Spill, infra, as an example.

¹²⁹ FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (May 2013),

available at: FEMA.gov.

130

40 C.F.R. § 300.120 (2013).

¹³¹ DoDD 3025.1-M, supra note 103, ch. 3, para. C3.2.1.6.4.5.3.

¹³² FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX 11 (May

2013), available at: FEMA.gov.

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reports regarding the applicability of the Stafford Act to response operations. There was never a

Stafford Act declaration during the Deepwater Horizon response.

Despite the magnitude of that emergency, all operations were conducted under the President’s

delegable authorities under the Clean Water Act¹³³ and the NCP. Those authorities specifically

provide mechanisms by which the “Responsible Parties” for the discharge¹³⁴directly pay all

removal costs and certain damages arising from the discharge.¹³⁵ Consequently, a Stafford Act

declaration was not necessary during Deepwater Horizon because the primary responsible party,

BP, directly funded all removal costs. The National Incident Commander,¹³⁶ Admiral Thad Allen,

U.S. Coast Guard, and the FOSC (a position occupied during 2010 by several Coast Guard flag and

senior-level officers) managed the response and directed BP’s activities in close coordination with

state and local leaders.

If other events caused or exacerbated damage to the Gulf Coast during the Deepwater Horizon

clean-up efforts, e.g., a hurricane or similar event, a Stafford Act response could have been directed

for those contingencies in addition to the environmental response already ongoing pursuant to the

Clean Water Act and the NCP.

C. Miscellaneous Missions in Support of Law Enforcement

Support of United States Secret Service

DoDD 3025.13, Employment of DoD Capabilities in Support of the U.S. Secret Service (USSS),

Department of Homeland Security (DHS), provides for reimbursable support for the Secret Service

and identifies reimbursement accounting procedures.¹³⁷ Requests for assistance are routed through

the White House Military Office or DoD Executive Secretary.¹³⁸

Imagery Intelligence and Geospatial Support

The National Geospatial-Intelligence Agency (NGA) is tasked with organizing, directing, and

managing NGA and all assigned resources to provide peacetime, contingency, crisis, and combat

geospatial intelligence support to the operational military forces of the United States.¹³⁹ Although

the use of intelligence assets are subject to extensive regulation, NGA capabilities can provide

appropriate federal agencies access to real-time and near real-time imagery and geospatial support.

133

33 U.S.C. §1321(c) (2011).

¹³⁴ Among the Responsible Parties in DEEPWATER HORIZON were BP and Transocean.

135

33 U.S.C. § 2702(a) (2011). In oil discharge situations, the federal government may use the Oil Spill Liability Trust

Fund to pay costs related to oil spill removal activities. Responsible Parties reimburse the fund for these costs. The

statute recognizes that reimbursement may not be available when a Responsible Party is insolvent or cannot be

identified.

136

40 C.F.R. § 300.323(c) (2013) provides that a National Incident Commander (NIC) may be appointed for a “Spill of

National Significance.” The NIC assumes the role of the FOSC in communicating with effected parties and the public

and coordinating federal, state, local and international resources at the national level.

¹³⁷ U.S. DEP’T OF DEFENSE, DIR. 3025.13, EMPLOYMENT OF DOD CAPABILITIES IN SUPPORT OF THE U.S. SECRET

SERVICE (USSS), DEPARTMENT OF HOMELAND SECURITY (DHS), (8 Oct. 2010).

138

Id. para. 3.4.2.

¹³⁹ U.S. DEP’T OF DEFENSE, DIR. 5105.60, NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY, para. 6 (July 2009).

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Intelligence activities in the United States are governed broadly by Executive Order 12333. EO

12333 prohibits directed collection on U.S. persons through the use of overhead reconnaissance by

intelligence agencies.¹⁴⁰ EO 12333, however, grants broad authority to U.S. intelligence agencies to

provide direct support to other federal agencies. This support may be extended to local law

enforcement in circumstances where lives are at risk.¹⁴¹ Such support, however, requires approval

of the General Counsel of the Supporting Agency. Chapter 9, infra, contains much more specific

guidance regarding the use of intelligence during domestic operations.

3. Critical Asset Assurance Program

EO 12656 requires that every federal department and agency identify and develop plans to protect

facilities and resources essential to the nation’s defense and welfare, in order to minimize

disruptions of essential services during national security emergencies. Such security emergencies

could result from natural disasters, military attack, or any other event that seriously degrades the

security of the United States.¹⁴²

4. Continuity of Operations Policies and Planning

EO 12656 requires heads of federal agencies to ensure the continuity of essential functions during a

national security emergency.¹⁴³ DoDD 3020.26, Department of Defense Continuity Programs,

implements EO 12656 by tasking all DoD components to prepare plans for the continuity of its

operations and of government during an emergency.¹⁴⁴ Continuity of Operations (COOP) is

defined as “an internal effort within individual DoD Components to ensure uninterrupted, essential

DoD Component functions across a wide range of potential emergencies, including localized acts of

nature, accidents, and technological and/or attack related emergencies.”¹⁴⁵ All Defense continuity-

related activities, programs, and requirements of the DoD Components, including those related to

COOP, continuity of government, and maintaining a constitutional government, must ensure the

continuation of current approved DoD and DoD Component mission essential functions under all

circumstances across the spectrum of threats. Minimum requirements for continuity planning are

outlined in DoDD 3020.26.¹⁴⁶

5. Explosive Ordnance Disposal

DoDD 5160.62, Single Manager Responsibility for Military Explosive Ordnance Disposal

Technology and Training, establishes the Under Secretary of Defense for Policy (USD(P)) as the

single agency for service support of the non-nuclear explosive ordnance disposal (EOD)

program.¹⁴⁷ Army Regulation 75-14/OPNAVINST 8027.1E/ARF 136-8/MCO 8027.1B,

¹⁴⁰ See Exec. Order No. 12333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401.

141

Id. at para. 2.6(c).

¹⁴² Exec. Order No. 12656, 3 C.F.R. 585 (1988), sec. 204.

143

Id., sec. 202.

¹⁴⁴ U.S. DEP’T OF DEFENSE, DIR. 3020.26, DEPARTMENT OF DEFENSE CONTINUITY PROGRAMS (Jan. 2009).

145

Id., at para. 3.

146

Id. at paras. 3, 4.

¹⁴⁷ U.S. DEP’T OF ARMY, REG. 75-15, RESPONSIBILITIES AND PROCEDURES FOR EXPLOSIVE ORDNANCE, para. 1-7 (22

Feb. 2005). AR 75-15 does not apply to the Army Reserves or Army National Guard.

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Interservice Responsibilities for Explosive Ordnance Disposal, delineates EOD areas of

responsibilities for the Army, Navy, Marine Corps, and Air Force.¹⁴⁸

The EOD mission within the Department of the Army is defined in AR 75-15, Responsibilities and

Procedures for Explosive Ordnance. The mission includes providing “assistance to public safety

and law enforcement agencies” and conducting “explosive ordnance disposal ‘bomb and sabotage’

training for civil preparedness, law enforcement, fire protection[,] and other public officials.”¹⁴⁹ It

also includes providing “explosive ordnance disposal support to the Departments of Energy and

Justice in the neutralization of improvised nuclear devices in accordance with current agreements

and directives.”¹⁵⁰ The Army should primarily provide training or advice, rather than physical

assistance. AR 75-15 provides:

The Department of the Army is not responsible for responding to, or disposing of,

nonmilitary commercial-type explosives, chemicals, or dangerous articles in the

possession of, or controlled by commercial concerns or civilian agencies. Assistance

may be provided, when requested by federal agencies or civil authorities, in the

interest of preserving public safety. Where a delay in responding to a request for

assistance from other activities would endanger life or cause injury, commanders

may authorize assistance to that extent necessary, to prevent injury or death. EOD

personnel may act as technical consultants or advisors, or they may render safety and

disposal procedures if requested.

Thus, EOD forces should only provide physical assistance when the explosive is a DoD munition or

when necessary under immediate response authority to save lives.

D. Pandemic Influenza

In response to growing concerns about the potential for an H5N1 pandemic, the Homeland Security

Council issued the National Strategy for Pandemic Influenza during November 2005.¹⁵¹ Although

H5N1 has not emerged as a pandemic, the World Health Organization declared on June 11, 2009

that the H1N1 influenza had become a pandemic.¹⁵² This was followed by statements by the

Secretaries of HLS and HHS indicating that the United States had already activated their pandemic

148

Id. paras. 1-1, 2-1. The Army has EOD responsibility on Army installations and on landmass areas not specifically

assigned as the responsibility of the Navy, Marine Corps, or the Air Force. The Department of the Navy is responsible

for: EOD activities on Navy installations; explosive ordnance in the physical possession of the Navy; in assigned

operational areas; within the oceans and contiguous waters, up to the high water mark of sea coasts, inlets, bays,

harbors, and rivers; in any rivers, canals or enclosed bodies of water; and for the rendering safe and disposal of

underwater explosive ordnance. The Department of the Air Force and the Marine Corps have EOD responsibility on

their own installations, for explosive ordnance in their physical possession, and in assigned operational areas.

149

Id. para. 1-4.

150

Id.

¹⁵¹ HOMELAND SECURITY COUNCIL, NATIONAL STRATEGY FOR PANDEMIC INFLUENZA (November 2005), available at:

http://www.flu.gov/planning-preparedness/federal/pandemic-influenza.pdf.

¹⁵² The end of this 2009 Pandemic was declared by the World Health Organization (WHO) International Health

Regulations Emergency Committee on 10 August 2010. See 2009 H1N1 Flu, CTRS. FOR DISEASE CONTROL AND

PREVENTION, http://www.cdc.gov/h1n1flu/ (last visited Aug. 30, 2013).

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response plans in anticipation of such a declaration.¹⁵³ Although easily transmissible, the H1N1

influenza has not shown a high mortality rate. Nonetheless, leaders and planners are concerned that

a more virulent and deadly strain could present itself in the future. Accordingly, Judge advocates

advising commanders need to be prepared to confront the myriad of legal challenges that a

pandemic could bring. This section provides an overview of the support DoD anticipates providing

in the event of a severe pandemic.

The DoD issued the Department of Defense Implementation Plan for Pandemic Influenza during

August 2006.¹⁵⁴ This “Implementation Plan” includes several planning assumptions that trigger

scenarios of interest to the domestic operational lawyer. These assumptions include:

• There will be interagency requests for assistance with mortuary affairs (MA);

• The spread of H1N1 will start from multiple points of entry in the United States and spread

rapidly throughout the Nation;

• State, tribal, and local governments will not be able to ensure the provision of essential

commodities and services;

• Interstate transportation will be restricted to contain the spread of the virus;

• The security of critical infrastructure will require “Federal augmentation;”

• Both military and civilian MTFs will be overwhelmed;

• Under existing agreements, DoD will provide support to local communities medical efforts to

include the provisioning of personnel, supplies, and materiel;

• DoD will support civil authorities consistent with applicable authorities;

• DoD will support and perhaps staff key aspects of the National Critical Infrastructure; and,

• U.S. Army Reserve forces will be mobilized.¹⁵⁵

Based upon these and other assumptions, the Implementation Plan outlines nineteen planning

categories informed by the Homeland Security Council’s (HSC) five planning priorities and thirteen

priority areas. DoD support in the following fifteen categories will require legal analysis prior to

execution:

• Category 1: Intelligence;

• Category 2: Force Protection;

• Category 4: Interagency Planning Support;

• Category 5: Surge Medical Capability to Assist Civil Authorities;

• Category 7: Patient Transport and Strategic Airlift;

• Category 8: Installation Support to Civilian Agencies;

• Category 10: Security in Support of Pharmaceutical/Vaccine Production (Critical Infrastructure

Protection (CIP));

• Category 11: Security in Support of Pharmaceutical/Vaccine Distribution;

• Category 12: Communications support to Civil Authorities;

¹⁵³ Statements by HHS Secretary Kathleen Sebelius and DHS Secretary Janet Napolitano on WHO Decision to Declare

H1N1 Virus Outbreak a Pandemic, CTRS. FOR DISEASE CONTROL AND PREVENTION,

http://www.cdc.gov/h1n1flu/statement061109.htm (last visited Aug. 20, 2013).

¹⁵⁴ ASD, HD, MEMORANDUM FOR SECRETARIES OF MILITARY DEPARTMENTS, DEPARTMENT OF DEFENSE

IMPLEMENTATION PLAN FOR PANDEMIC INFLUENZA (12 Sept. 2006) [hereinafter “Implementation Plan”].

155

Id. at 8-9.

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• Category 13: Quarantine Assistance to U.S. Authorities;

• Category 14: Military Assistance for Civil Disturbances;

• Category 15: Military Assurance: Defense Industrial Base;

• Category 16: Mortuary Affairs;

• Category 17: Continuity of Operations & Continuity of Government; and,

• Category 19: Public Affairs support to Civil Authorities.¹⁵⁶

The Congressional Research Service has also developed a CRS Report for Congress that outlines

key legal issues raised by Pandemic Influenza outbreak.¹⁵⁷ The authors note that the federal

authorities authorizing federal support for a pandemic influenza contingency include the Public

Health Service Act and the Stafford Act. These authorities involve the establishment of quarantines

and isolation facilities at borders, or of an interstate nature.¹⁵⁸ As discussed above, DoD planning

guidance directs consideration be given to the potential for DoD to provide quarantine support to

U.S. authorities.¹⁵⁹ This would be in support of HHS’s authority “to prevent the introduction,

transmission, or spread of communicable diseases from foreign countries into the States or

possessions, or from one State or possession into any other State or possession.”¹⁶⁰ These foreign

and interstate quarantine authorities are administered by the Director of the CDC and executed as

necessary by the Division of Global Migration and Quarantine.¹⁶¹ Further, DHS provides support

to the CDC through three of its agencies: U.S. Customs & Border Protection; U.S. Immigration and

Customs Enforcement; and, the United States Coast Guard.¹⁶²

This authority provided to DoD will be secondary to the States, which have primary quarantine and

isolation authorities under state law.¹⁶³ Upon request, or upon the determination that local efforts

are inadequate, the federal government may assume primary responsibility for such activity.¹⁶⁴ To

the extent that state and local efforts prove ineffective, the likelihood of federal intervention and a

corresponding request for support to the DoD increases. Request for support could be necessary in

some cases because of outdated state laws¹⁶⁵ that do not reflect a modern understanding of disease

and could hamper efforts to contain outbreaks.¹⁶⁶ The situation in affected areas may trigger broad

requests or directions of DoD support to other federal or non-federal entities.¹⁶⁷ Such requested

support may prove unpopular. It could also involve the detailing of military law enforcement

personnel to augment civilian federal law enforcement pursuant to the Emergency Federal Law

156

Id. at 10-11.

¹⁵⁷ KATHLEEN S. SWENDIMAN & NANCY LEE JONES, The 2009 Influenza A (H1N1) Outbreak: Selected Legal Issues,

CRS REP’T TO CONG. (May 4, 2009) [hereinafter “CRS REP’T”].

158

Id. summary.

¹⁵⁹ See Implementation Plan, supra note 154, at 11, Category 13.

160

42 U.S.C. § 264(a) (2011).

¹⁶¹ See CRS REP’T, supra note 157 at 6-7.

162

Id. at 7.

163

Id.

¹⁶⁴ See id. at 8, n.41; see also 42 U.S.C. § 264(c) (2011); 42 C.F.R. § 70.2 (2013).

¹⁶⁵ For a survey of state quarantine and isolation authorities, see State Quarantine and Isolation Studies, NAT’L

CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/?TabId=17104 (last visited Aug. 30, 2013).

¹⁶⁶ KATHLEEN S. SWENDIMAN & JENNIFER K. ELSEA, Federal and State Quarantine and Isolation Authority, CRS REP’T

TO CONG. at CRS-9 (August 16, 2006) [hereinafter “CRS QUARANTINE REP’T”].

¹⁶⁷ See Implementation Plan, supra note 154 at 10-11, Categories 1, 2, 4-5, 7-8, 10-17 & 19.

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CHAPTER 9

INTELLIGENCE OVERSIGHT AND INFORMATION HANDLING

DURING DOMESTIC SUPPORT OPERATIONS

REFERENCES:

•

National Security Act of 1947 (as amended), codified throughout 50 U.S.C. § 401 et seq. and 50

U.S.C. § 3001 et seq.

•

Foreign Intelligence Surveillance Act (as amended), 50 U.S.C. § 1801 et seq.

•

Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 [S. 2845],

December 17, 2004.

•

The Immigration and Nationality Act (as amended), 8 U.S.C. §§ 1101 et seq.

•

EO 12333 - U.S. Intelligence Activities, December 4, 1981, as amended by EO 13284 (2003),

EO 13355 (2004) and EO 13470 (2008).

•

EO 13526, Classified National Security Information, December 23, 2009.

•

DODI 3115.15, Geospatial Intelligence (GEOINT), December 6, 2011 (Incorporating and

cancelling DODI 5210.52, May 18, 1989).

•

DoDD 5143.01, Undersecretary of Defense for Intelligence (USD(I)), November 23, 2005.

•

DoDD 5240.01, DoD Intelligence Activities, August 27, 2007.

•

DoD 5240.1-R , Procedures Governing the Activities of DoD Intelligence Components That

Affect U.S. Persons, December, 1982.

•

Defense Intelligence Agency Regulation (DIAR) 50-30 - Security Classification of Airborne

Sensor Imagery, June 25, 1997.

•

Agreement Governing the Conduct of Defense Department Counterintelligence Activities in

Conjunction with the Federal Bureau of Investigation, (FOUO) April 5, 1979.

•

Supplement to 1979 FBI/DoD Memorandum of Understanding: Coordination of

Counterintelligence Matters Between the FBI and DoD, (S) June 20, 1996.

•

Joint Publication 2-0, Joint Intelligence, June 22, 2007.

•

Joint Publications Intelligence series 2-0.

•

AFPD 14-1 - ISR Planning, Resources, and Operations, April 2, 2004.

•

AFI 14-104 - Oversight of Intelligence Activities, April 23, 2012.

•

AFI 14 series on Intelligence.

•

AR 381-10 - Army Intelligence Activities, May 3, 2007.

•

AR 381-20 - The Army Counterintelligence Program, May 26, 2010.

•

AR 381-xx series on Intelligence.

•

SECNAVINST 3820.3E - Oversight of Intelligence Activities Within the Dep’t of the Navy,

September 21, 2005.

•

SECNAVINST 3850.2C - Dep’t of the Navy Counterintelligence, July 20, 2005.

•

Marine Corps Warfighting Pub 2-1 - Intelligence Operations, September 10, 2003.

•

Marine Corps Warfighting Pub 2-6 - Counterintelligence, July 13, 2004.

•

Marine Corps Warfighting Pub 2-x series on Intelligence.

•

National Guard Joint Force Headquarters State J2 Incident Awareness and Assessment

Handbook, February 27, 2009.

•

Chief National Guard Bureau Instruction (CNGBI) 2000.01, National Guard Intelligence

Activities, September 17, 2012.

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• Chief National Guard Bureau Manual (CNGBM) 2000.01, National Guard Intelligence

Activities, November 26, 2012.

• DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not

Affiliated with the Department of Defense, January 7, 1980.

•

5 U.S.C. § 552a - The Privacy Act (as amended).

•

DoDD 5400.11-R - DoD Privacy Program, May 17, 2007.

A. Introduction

With the ever-increasing number of domestic military missions conducted in the homeland, there

has been a concurrent search for appropriate assets and capabilities to best perform those missions.

Domestic missions are no different than overseas missions in that a key requirement for mission

success is situational awareness—the commander must be aware of the situation on the ground and

have a complete picture of the “battle space” within which the unit is operating. Overseas,

intelligence assets normally provide such a picture. How, then, can these same assets be used in the

homeland to support DoD missions while at the same time complying with applicable U.S. laws and

policies? The judge advocate’s role is especially important during domestic operations utilizing

intelligence assets and components. Judge advocates must recognize that collecting domestic

intelligence by necessity entails collecting information on U.S. persons. Therefore, the rules

regarding intelligence collection in the United States must comply with constitutional protections

against unlawful search and seizure. As a result, policies and procedures for the collection of

intelligence in the United States require careful application to ensure the protection of the rights of

U.S. persons.

As noted above, military commanders’ need for information and intelligence within the homeland is

on the rise—they expect force protection information and intelligence to be integrated into domestic

operations due to a heightened awareness of potential terrorist threats. These needs and

expectations pose unique issues in the information and intelligence-gathering arena. This chapter

provides a broad overview of the rules for collection of information on U.S. persons. If you are

addressing an issue involving the collection of information in the homeland, you should seek out

additional expertise to assist you in this complicated area.

Before discussing the details of collecting information or intelligence on U.S. persons, it is

important to understand first that there are two distinct groups of people that collect information in

the homeland.

• The first group is DoD intelligence components, as defined in EO 12333. In simple terms these

are the Title 10 intelligence specialists—J2s, G2s, A2s, etc. This group of people—and the

assets they use—are subject to one set of rules referred to as intelligence oversight.¹ (Title 32

National Guard intelligence specialists—though not technically members of the intelligence

community—follow National Guard policies concerning intelligence oversight.²)

¹ See U.S. DEP’T OF ARMY, REG. 381-10 ARMY INTELLIGENCE ACTIVITIES (3 May 2007) [hereinafter AR 381-10].

²See NATIONAL GUARD BUREAU, CHIEF NATIONAL GUARD BUREAU INSTRUCTION 2000.01, NATIONAL GUARD

INTELLIGENCE ACTIVITIES (17 Sept. 2012) [hereinafter CNGBI 2000.01].

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• The second group of people is everyone else in DoD, including various security and police

forces. This group is subject to a different set of rules governed by DoDD 5200.27.

Therefore, the commander must direct his need for information or intelligence to the right

component—the component with the capability and authority to achieve the commander’s intent.

Intelligence is the domain of the DoD intelligence component; information comes from non-

intelligence DoD components. Figuring out the nature of the data and the right unit to gather it are

areas that often require judge advocate input. Therefore you must ensure that the very first question

you ask when discussing collection in the homeland is “who is doing the collecting? Intelligence

assets or non-intelligence assets?” Once you answer this question, you will know what rules to

apply.

Section B of this chapter examines the proper use of DoD intelligence components during domestic

support operations. Section C examines collection of information on U.S. persons by DoD non-

intelligence components. Section D briefly addresses the policies and restrictions applicable to the

National Guard when collecting information on U.S. persons during domestic operations.

B. The Role of DoD Intelligence Components in Domestic Support Operations

DoD intelligence components³are governed by four primary references. The National Security Act

of 1947 establishes a comprehensive program for national security and defines the roles and

missions of the intelligence community and accountability for intelligence activities. Executive

Order (EO) 12333, United States Intelligence Activities, lays out the goals and direction of the

³ DoD intelligence components are defined in DoD 5240.1 as all DoD Components conducting intelligence activities

(defined as foreign intelligence or counterintelligence), including the following:

a. The National Security Agency/Central Security Service (NSA/CSS).

b. The Defense Intelligence Agency (DIA).

c. The offices within the Department of Defense for the collection of specialized national foreign intelligence

through reconnaissance programs.

d. The Office of the Deputy Chief of Staff for Intelligence (ODCSINT), U.S. Army.

e. The Office of Naval Intelligence (ONI).

The Office of the Assistant Chief of Staff, Intelligence (OACSI), U.S. Air Force.

Intelligence Division, U.S. Marine Corps.

The Army Intelligence and Security Command (USAINSCOM).

The Naval Intelligence Command (NIC). [No longer in existence]

The Naval Security Group Command (NSGC).

The Air Force Intelligence Agency (AFIA).

The Electronic Security Command (ESC), U.S. Air Force.

m. The counterintelligence elements of the Naval Security and Investigative Command (NSIC). [Now called the

Naval Criminal Investigative Service (NCIS)]

n. The counterintelligence elements of the Air Force Office of Special Investigations (AFOSI).

o. The 650th Military Intelligence Group, Supreme Headquarters Allied Powers Europe (SHAPE).

p. Other intelligence and counterintelligence organizations, staffs, and offices, or elements thereof, when used for

foreign intelligence or counterintelligence purposes. The heads of such organizations, staffs, and offices, or

elements thereof, shall, however, not be considered as heads of the DoD intelligence components for purposes of

this Directive.

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national intelligence effort, and describes the roles and responsibilities of the different elements of

the U.S. intelligence community.⁴ Presently, DoD Directive (DoDD) 5240.1, DoD Intelligence

Activities⁵ and DoD Regulation 5240.1-R⁶ implement the guidance contained in EO 12333 as it

pertains to DoD. Finally, each Service has its own regulation and policy guidance.

These authorities establish the operational parameters and restrictions under which DoD intelligence

components may conduct “intelligence activities,” defined in 5240.01 as “the collection, analysis,

production, and dissemination of foreign intelligence and counterintelligence pursuant to [DoDD

5143.01 and EO 12333].” Therefore intelligence activities are limited to those including foreign

intelligence (FI) and counterintelligence (CI).⁷ In general, this translates to a requirement that such

intelligence relate to the activities of international terrorists or, foreign powers, organizations,

persons, and their agents. Moreover, to the extent that DoD intelligence components are authorized

to collect FI or CI within the United States, they may do so only in coordination with the Federal

Bureau of Investigation (FBI), which has primary responsibility for intelligence collection within

the United States.⁸

When DoD Intelligence Components are conducting FI or CI, intelligence oversight (IO) rules

apply. These rules govern the collection, retention, and dissemination of information concerning

U.S. persons.⁹ A U.S. person includes many unincorporated associations and U.S. corporations

(e.g., “Joe’s Diner”).¹⁰ Special emphasis is given to the protection of the constitutional rights and

privacy of U.S. persons, so the IO rules generally prohibit the acquisition of information concerning

the domestic activities¹¹ of any U.S. person. Although not stated specifically in DoD 5240.1-R, in

practice any person in the U.S. is presumed to be a U.S. person absent evidence to the contrary.

The revision of DoD 5240.1-R is expected to capture this in the definition of U.S. person.

Id.

⁵ U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].

⁶ U.S. DEP’T OF DEFENSE, REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE

COMPONENTS THAT AFFECT U.S. PERSONS (Dec. 1982) [hereinafter DoD 5240.1-R]. As of July 2011, DoD 5240.1-R is

undergoing major revisions; thus, practitioners citing DoD 5240.1-R must ensure that the 1982 regulation is in effect.

“Foreign intelligence” means information relating to the capabilities, intentions, and activities of foreign powers,

organizations, or persons, but not including counterintelligence except for information on international terrorist

activities. Exec. Order No. 12333, U.S. Intelligence Activities, para. 3.4(d) (Dec. 4, 1981) [hereinafter E.O. 12333].

“Counterintelligence” means information gathered and activities conducted to protect against espionage, other

intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or

persons, or international terrorist activities, but not including personnel, physical, document, or communications

security programs. Id., para. 3.4(a).

Id., para 1.14(a); Agreement Governing the Conduct of Defense Department Counterintelligence Activities in

Conjunction with the Federal Bureau of Investigation (5 Apr. 1979); and Supplement to 1979 FBI/DoD Memorandum

of Understanding: Coordination of Counterintelligence Matters Between the FBI and DoD (20 Jun. 1996).

Judge advocates must read these authorities before advising a commander on the collection of information in a

domestic support operation. Further, AR 381-10 should be consulted when advising members of the intelligence

community or if a questionable intelligence activity is identified.

“United States person” means a United States citizen, an alien known by the intelligence agency concerned to be a

permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent

resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a

foreign government or governments. E.O. 12333, supra note 7, para. 3.4(i).

“Domestic activities” refers to activities that take place within the United States that do not involve a significant

connection with a foreign power, organization, or person. DoD 5240.1-R, supra note 6, Procedure 2, para. B3.

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Questionable intelligence activities that run afoul of these and other restrictions must be reported in

accordance with Procedure 15 of DoDD 5240.1-R.¹²

DoD 5240.1-R is divided into fifteen separate procedures that govern the collection, retention, and

dissemination of intelligence. Collection of information on U.S. persons must be necessary to the

functions (FI or CI) of the DoD intelligence component concerned.¹³ Procedures 2 through 4

provide the sole authority by which DoD components may collect, retain, and disseminate

information concerning U.S. persons. Procedures 5 through 10 set forth the applicable guidance for

the use of certain collection techniques to obtain information for foreign intelligence and

counterintelligence purposes. Procedures 11 through 15 govern other aspects of DoD intelligence

activities, including the oversight of such activities. In addition to the procedures themselves, the

Defense Intelligence Agency, has published an instructive manual entitled The Intelligence Law

Handbook (September 1995), to provide additional interpretive guidance to assist legal advisers,

intelligence oversight officials, and operators in applying DoD 5240.1-R. In the absence of any

foreign nexus, DoD intelligence components generally perform non-intelligence activities. A non-

intelligence activity would be any activity that is conducted by or with a DoD Intelligence

Component asset or capability, but which does not involve FI or CI; for example, the collection,

retention, production, and dissemination of maps, terrain analysis, and damage assessments for a

DSCA mission. When intelligence assets fly planned or disaster support missions, such as post-

hurricane operations, they are termed “incident awareness and assessment” (IAA) missions. When

a Title 10 DoD intelligence component asset or capability is needed for a non-intelligence activity,

specific authorization from the Secretary of Defense is required for both the mission and use of the

DoD intelligence component capability or asset. The intelligence oversight (IO) rules do not apply

to non-intelligence activities so the SECDEF authorization must be sure to include any restrictions

placed upon the assets or capabilities used in a domestic support operation.

Whether DoD Intelligence Components are conducting an intelligence activity or a non-intelligence

activity, certain rules universally apply to data and imagery collected from overhead and airborne

sensors. Geospatial data, commercial imagery, and data or domestic imagery collected and

processed by the National Geospatial-Intelligence Agency (NGA) is subject to specific procedures

covering the request for geospatial data or imagery and its use. Judge advocates should ensure that

they are familiar with NGA policy on requests for geospatial data or imagery and its authorized use.

Additionally, DODI 3115.15, Geospatial Intelligence, and DIA Regulation (DIAR) 50-30, Security

Classification of Airborne Sensor Imagery, provide specific guidance on mandatory security

classification review of all data collected by airborne sensor platforms to determine whether it can

be disseminated.

In providing guidance to commanders on authorized use of DoD Intelligence Component

capabilities and assets, and the products derived from the data collected, it is also important for

judge advocates to understand the various platforms, their sensors, and how they operate. Issues to

consider include: whether the sensor is fixed or moveable, whether the platform with the sensor can

have its course altered during a mission, how is the data collected, transmitted, and processed, and

¹² Procedure 15 states “Each employee shall report any questionable activity to the General Counsel or Inspector

General for the DoD intelligence component concerned, or to the General Counsel, DoD, or ATSD(IO).” Army policy

provides several approved channels for reporting the information to include the DoD General Counsel. See paragraphs

15-2 through 15-4 of AR 381-10.

Id. at 4.2.1.

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the specific purpose of its mission. For example, a UAV may transmit data by live feed only to a

line-of-sight receiver, or by satellite to a remote location.

Evidence of a criminal act “incidentally” collected during an authorized mission using DoD

Intelligence Component capabilities can be forwarded to the appropriate law enforcement agency

(LEA); however, altering the course of an airborne sensor (such as an UAV) from an approved

collection track to loiter over suspected criminal activities would no longer be incidental collection,

and could result in a Posse Comitatus Act (PCA) violation unless specifically approved in advance.

Certain data contains classified metadata which may need to be stripped at a remote site before it

can be disseminated in an unclassified manner. Different platforms require different operational

support, which requires planning on positioning, considering the intended use. A domestic support

operation using DoD Intelligence Component capabilities which includes support to law

enforcement agencies (LEAs) will probably require a separate mission authority approval by

SECDEF, and those planning the mission will need to consider whether the data is to be exclusively

transmitted to the LEA, and where the LEA agents are located to control or direct use of the assets.

Whether the collection platform and data transmission is wholly owned, operated, and received by a

DoD Intelligence Component, a DoD non-Intelligence Component, or a combination of both will

require careful consideration by judge advocates of the applicable rules and operational parameters

and restrictions applicable for the mission.

C. Information Handling and the Role of DoD Non-Intel Components

DoD non-intelligence components also have restrictions. These restrictions relate to the acquisition

of information concerning the activities of persons and organizations not affiliated with DoD. This

type of information is needed every day for force protection missions, to include force protection in

domestic support operations. Within the DoD, the Military Criminal Investigative Organizations

(MCIOs) have primary responsibility for gathering and disseminating information about the

domestic activities of U.S. persons that threaten DoD personnel or property.

DoD components, other than the intelligence components, may acquire information concerning the

activities of persons and organizations not affiliated with the DoD only in the limited circumstances

authorized by DoD 5200.27, Acquisition of Information Concerning Persons and Organizations Not

Affiliated with the Department of Defense. DoDD 5200.27 provides limitations on the types of

information that may be collected, processed, stored, and disseminated about the activities of

persons and organizations not affiliated with DoD. Those circumstances include the acquisition of

information essential to accomplish the following DoD missions: protection of DoD functions and

property, personnel security, and operations related to civil disturbances.

The most commonly used exception in the Directive deals with the circumstance of protection of

DoD functions and property. Initially this seems like a broad exception that would allow for the

collection of information on U.S. persons in many situations; however, the Directive further defines

an activity that threatens defense personnel, activities, and installations as “direct” threats to DoD

personnel in connection with their official duties. Understanding the difference is crucial, and an

example may assist in that understanding. It is not uncommon for protests to occur outside the main

gate of an installation. Under the broad brush of “protecting” DoD property, it might seem

appropriate to report the name of the protesting group to installation personnel; however, further

analysis is required in order to determine if this group poses a direct threat to the installation. If the

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group is quietly and calmly protesting, it’s unlikely they are a direct threat, and therefore

information should not be collected on them by name.¹⁴

Finally, note that it is a very rare situation when relevant information cannot be collected in some

form by some entity. If an intelligence component cannot collect information because it is not FI or

CI, then it may be possible for a non-intelligence component, such as the military police to collect

the information. Therefore when analyzing the collection of information concerning U.S. persons,

ensure that you consider both avenues of authorized collection.

D. The National Guard

The National Guard presents a different set of challenges for the judge advocate as the NG’s

mission regularly focuses on domestic threats. Notwithstanding, the National Guard does not

generally conduct domestic intelligence operations. Primarily, domestic intelligence involving U.S.

persons is a law enforcement matter and is the responsibly of state/local law enforcement and the

FBI. The Joint Force Headquarters at the State (JFHQ-State) will have an Intelligence officer (J2)

that is responsible for coordinating intelligence requirements for intelligence preparation of the

environment (IPE) in support of state and federal missions. The J2 serves as the state’s executive

agent for foreign threat information sharing between the local, state, and the national levels to

ensure situational awareness and a common operating picture (COP). The J2 also interprets,

develops, and implements intelligence and security guidance and policy for the JFHQ-State. The

National Guard judge advocate must work in conjunction with the J2, and the Inspector General for

Intelligence Oversight (IG-IO) in reviewing all intelligence plans, proposals and concepts, to

include Proper Use Memoranda (PUMs - the use of which is explained in D.3. below), for legality

and propriety. The state Provost Marshal (PM) also plays a vital role in developing the situational

picture by being the lead liaison to the civilian law enforcement community. Thus in this area, NG

judge advocates need to determine four facts: 1) the status of the person doing the collecting; 2)

whether that person is operating as part of an intelligence activity; 3) how the information is being

collected; and, 4) the purpose behind the collection.

1. Status: Title 32 or Title 10

National Guard Soldiers can serve in three statuses, State Active Duty, Title 32, or Title 10, as

explained in detail in Chapter 3, infra. A Soldier’s status has a direct impact on the authorities at

issue regarding the collection of information on a U.S. person. This determination is therefore the

first that must be made.

The National Guard may be called up for active duty by state governors or territorial Adjutants

General to help respond to domestic emergencies and disasters, such as those caused by hurricanes,

floods, and earthquakes. This status is commonly referred to as “state active duty” or SAD. The

National Guard may also be called up for active duty by the Federal Government under Title 32 of

the U.S. Code to perform training or other duties with or without the consent of the State. This

¹⁴ Note that while it would be counter to DoD 5200.27 to collect information on the activities of the group by stating

“Group Against the Military (GAM) is protesting outside the front gate,” one could report all the necessary information

without naming the group and therefore collecting on its activities. One could report that “a group who is not in support

of the military is protesting outside the front gate” without losing relevant information.

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status is traditionally referred to as Title 32. Finally, the National Guard may be federalized and fall

under federal command and control, a status referred to as Title 10.

Members of the NG intelligence community serving in a SAD or Title 32 status are not included in

the definition of DoD intelligence component and as such are technically not regulated by

intelligence oversight. The Chief of the National Guard Bureau established intelligence oversight

policy that applies to all members of the National Guard serving in a SAD or Title 32 status. This

intelligence oversight policy requires that National Guard intelligence personnel operating in a Title

32 status comply with all federal IO rules without exception. Furthermore, the policy recognizes

that while National Guard intelligence personnel operating in a State Active Duty status are not

members of the DoD intelligence community, they are limited by their State law—to include state

privacy laws—and are prohibited from engaging in what would be a DoD intelligence or

counterintelligence mission while in a SAD status. In most states the collection, use, maintenance,

and dissemination of information related to individuals by state agencies is strictly regulated;

therefore, the practical affect is that even in a SAD status NG members cannot collect information

on U.S. Persons.¹⁵

Additionally, SAD personnel are prohibited from using DoD intelligence resources and equipment

while in a SAD status. National Guard personnel in a SAD status are not authorized to engage in

DoD intelligence operations nor are they authorized to access DoD classified systems

(SIPRnet/JWICS -Joint Worldwide Intelligence Communication System) or equipment (MQ-1,

border sensors) for a SAD mission without authorization from Secretary of Defense (SECDEF) or

his designee.¹⁶

Collection via an Intelligence Activity

The responsibilities of the Soldier, not the MOS or duty title per se, determine whether the Soldier

is part of an “intelligence activity.” Many states will either reassign intelligence personnel to a non-

intelligence mission to assist the J34 force protection section, or will assign them to a unit that is

specifically tasked to assist local law enforcement and authorized to provide intelligence support—

such as the NG Counter Drug Units operating under 32 U.S.C. § 112 authority. While serving in a

non-intelligence role, these individuals should not have access to intelligence-related equipment.

If the person collecting the information is a part of the intelligence activity and is conducting

missions as a member of an intelligence activity without separate special authority, then the person

must follow the rule for Intelligence Oversight as provided in section B. If the person is not

collecting the information as part of, or for, an intelligence activity then the person must follow

rules for the handling of U.S. person information as provided in section C.

An example of this latter group would be military law enforcement personnel. They are governed

by the provisions of DoDD 5200.27. They are responsible for tracking and analyzing criminal

threats to DoD and domestic threats to DoD. LE personnel liaise with other law enforcement

agencies to develop the criminal threat situational picture.

¹⁵ See CNGBI 2000.01, supra note 2.

Id.

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3. Method of Collecting

Military Intelligence Equipment may only be used to conduct foreign intelligence related missions

unless separate authorizations have been granted. This equipment therefore may only be operated

by NG intelligence personnel serving in a Title 10 or Title 32 status. States wishing to utilize this

equipment for other than foreign intelligence purposes must request authorization from SECDEF or

his designee. Legal review by a NGB JA is required prior to such authorizations. Military

Intelligence Equipment includes, but is not limited to, JWICS (Joint Worldwide Intelligence

Communication System) and ASAS-L (All Source Analysis System-Light).

The National Guard has a variety of Incident Awareness and Assessment¹⁷tools within its arsenal,

many of which are not DoD Intelligence Assets. Some of the tools are considered to be both an

intelligence asset and a non-intelligence asset and therefore a thorough analysis will look at not only

the capability of the asset but also the sourcing and the authorized use to determine whether or not it

is a true intelligence asset subject to IO and limitations applicable to Intelligence Equipment. A

perfect example of this is the RC-26 fixed wing aircraft used by the National Guard. The RC-26 in

most states is a counter-drug asset, not an intelligence asset, even though it is capable of collecting

imagery of U.S. persons. In accordance with each respective state counter-drug plan, RC-26’s

mission is to assist law enforcement in the capture of personnel involved in drug activities. When

disaster strikes RC-26 is often called upon to assist in life-saving situations. RC-26 provides an

aerial surveillance capability that enables a commander to understand their area of operations.

While conducting damage assessments, obstacle and hazard assessments, and other such non-

intelligence missions the incidental collection of information on U.S. persons is not a per se

violation. Commanders must be reminded that this information should not be retained and must be

purged from military records as soon as possible. Likewise, a platform that uses a fixed or movable

camera may limit incidental collection, and the careful planning of aerial surveillance routes when

possible (such as to avoid populated areas) may accomplish this as well. Any incidental collection

of U.S. person information along the planned route that is criminal in nature can be passed along to

the appropriate law enforcement officials, but information should be purged from the retention

platform as soon as possible.

Domestic imagery collected by National Guard aerial imagery sensor platforms must be properly

documented and approved via a Proper Use Memorandum (PUM). These PUMs must be in

accordance with applicable Defense Intelligence Agency (DIA) policy, “Proper Use Statements for

Domestic Imagery.” The NGB-J2 publishes a PUM handbook to assist JFHQ-J2s on the protocol

for submitting a PUM. National Guard judge advocates are responsible for reviewing these PUMs

for compliance with federal and state law and National Guard policy.

4. Purpose of the Collection

A judge advocate must also determine whether information is being collected for an intelligence

purpose or whether it is being collected to help the commander gain situational awareness. As

mentioned earlier, information is often acquired in response to a National Guard commander’s need

to establish a common operating picture. If the information is for situational awareness, then the

Incident assessment and awareness (IAA) is the use of intelligence, surveillance and reconnaissance (ISR) DoD

intelligence capabilities for domestic non-intelligence activities approved by the Secretary of Defense, such as search

and rescue (SAR), damage assessment and situational awareness.

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judge advocate should assist the command by helping shape the collection such that it is limited to

the information actually needed to accomplish the mission. For example, if the mission requires

imagery of ingress and egress routes, it is unnecessary for cameras to collect information regarding

the license plate numbers of those individuals traveling on the roads; but it is necessary to carefully

document the roads. Therefore, the recommendation can be to remind the collector not to focus on

specific personal identifying information.

The chart below illustrates the proper flow of information to remain compliant with intelligence

oversight regulations. It depicts how the J2 and Provost Marshall share and handle sensitive

information in accordance with both Intelligence Oversight regulations and DoDD 5200.27.

Sensitive Information Handling JFHQ States

J34

Legend

NGB

LE Community

LES info

DoD PM

Community

Intel Community

Intel Data

REDACT

(unless Foreign

(unless Threat)

Nexus)

REDACT

FPSUMS

Warnings

(Criminal

J34 / PM

INTSUMS

Stats, issues,

AT/FP

etc)

Intel Brief

Driven by

Foreign threat data

Driven by

Domestic

FBI

TAG CCIRs

Counterintelligence

Threats to DoD

TAG CCIRs

JTTF FIG

SLFC

J34 Can & Should:

Intel Can & Should:

- Pass relevant data to J2/LE without

- Pass relevant data to LE/J34 without

redaction

- Redact data when putting in FPSUM or

- Pass incidental data to LE/J34 without

briefing

redaction

- Redact or delete records within 90 days

- Review incoming data for intel value within

90 days; purge unneeded USPER data ASAP

- Redact data when putting in INTSUM or

briefing

E. Judge Advocate Responsibilities

Judge advocates are responsible for the following: advising the commander and staff on all

intelligence law and oversight matters within their purview; advising on the permissible acquisition

and dissemination of information on non-DoD affiliated persons and organizations; recommending

legally acceptable courses of action; establishing, in coordination with the Head Intelligence Officer

(J-2/G-2/S-2/N-2) and the Inspector General (IG), an intelligence oversight program that helps

ensure compliance with applicable law and policy; reviewing all intelligence plans, proposals, and

concepts for legality and propriety; and training members of the command who are engaged in

intelligence activities on all laws, policies, treaties, and agreements that apply to their activities.

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In order to properly perform these duties, judge advocates advising commanders on collecting

intelligence and information should know and understand a variety of key types of information.

Judge advocates must be familiar with the missions, plans, and capabilities of subordinate

intelligence units, and all laws and policies (many of which are classified) that apply to their

activities. At a minimum, judge advocates should be familiar with the restrictions on the collection,

retention, and dissemination of information about U.S. persons and non-DoD persons and

organizations, the approval authorities for the various intelligence activities performed by

subordinate units, and the requirement to report and investigate questionable activities and certain

federal crimes.¹⁸Judge advocates must also be familiar with the jurisdictional relationship between

intelligence and counterintelligence activities as well as the parallel jurisdictions of force protection

and law enforcement activities. Finally, judge advocates should establish close working

relationships with the legal advisors of supporting intelligence agencies and organizations, all of

whom can provide expert assistance.

¹⁸ DoD 5240.1-R, supra note 6, Procedure 15.

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CHAPTER 10

RULES FOR THE USE OF FORCE (RUF) FOR FEDERAL

FORCES

KEY REFERENCES:

•

U.S. CONST. art. II, § 1-3 (Executive, Commander in Chief, and Execution of the Laws

Clauses, respectively).

•

U.S. CONST. amend. IV.

•

U.S. CONST. amend. V.

•

U.S. CONST. amend. VIII.

•

10 U.S.C. §§ 331-335 - The Insurrection Act.

•

10 U.S.C. § 12301 - Reserve Components Generally.

•

18 U.S.C. § 242 - Deprivation of Rights Under Color of Law.

•

18 U.S.C. § 1385 - Posse Comitatus Act.

•

50 U.S.C. § 2301 et seq. - Defense Against Weapons of Mass Destruction Act.

•

Pub. L. No. 105-277 (Omnibus Consolidated and Emergency Appropriations Act 1999), Section

101(h), as amended by Pub. L. No. 106-58, Title VI, Section 623, Sept. 29, 1999.

•

CJCSI 3121.01B - Standing Rules of Engagement/Standing Rules for the Use of Force for U.S.

Forces, June 13, 2005 (S). *** NOTE: As of the publishing of this handbook, the current

SROE/SRUF remains under revision. Judge Advocates should check to see if the 2005

SROE/SRUF have been updated.***

•

AR 190-14, Carrying of Firearms and the Use of Force for Law Enforcement and Security

Duties, March 12, 1993.

•

U.S. Department of Justice, Office of Investigative Agency Policies, Resolution 14, Concerning

the Use of Deadly Force, October 16, 1995.

•

FORSCOM Augmentation Forces to Designated AMC and ATEC Sites.

•

FORSCOM and USARC Force Protection OPORDs.

•

EXORD ISO Consequence Management Operations in New York City and Military District of

Washington.

•

CJCS CONPLAN 0500-98, Military Assistance to Domestic Consequence Management

Operations in Response to a Chemical Biological Radiological, Nuclear or High-Yield

Explosive Situation.

•

DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, Encl. 4 (DoD Support

of Civil Disturbance Operations), February 27, 2013.

Introduction

CJCSI 3121.01B, which contains the Standing Rules for the Use of Force (SRUF), provides

operational guidance and establishes fundamental policies and procedures governing actions taken

by DoD forces performing civil support missions and routine service functions (including AT/FP)

within the United States and its territories. The instruction is classified overall Secret, however the

portions discussed and referenced in this chapter are unclassified.

Per CJCSI 3121.01B, the SRUF also apply to land-based homeland defense missions within the

United States and its territories. With respect to personnel, the SRUF apply to DoD forces,

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civilians, and contractors performing law enforcement and security duties at all DoD installations

worldwide, unless otherwise directed by the Secretary of Defense.

The SRUF apply to Title 10 forces performing missions both for homeland defense and defense

support to civil authorities. These rules do not apply to National Guard forces in either state active

duty or Title 32 status. For information concerning National Guard rules for the use of force (RUF),

see Chapter 11, infra. Judge advocates should coordinate with the National Guard when operating

in a joint environment to review the RUF the National Guard is using and ensure compatibility if

joint missions are contemplated.

Before beginning any discussion on the use of force in an operational setting, members need to

understand the basic legal, policy, and practical limitations for the use of force. The use of force for

domestic mission accomplishment is constrained by federal law and the Standing Rules for the Use

of Force. Members should also always be aware of the practical ramifications their actions may

have on the greater mission; they must understand the commander’s intent and ensure they

understand specific limitations that apply to a specific mission in addition to normal policy and

legal limitations.

Overall, the SRUF provide the template for training on RUF for domestic operations. The

development of hypothetical scenarios will assist in posing the ultimate question of whether the

service member may use force, up to and/or including deadly force. While there are some very

significant differences between the Standing Rules of Engagement (SROE) and SRUF, SROE

training concepts for overseas operations can be useful in developing training for SRUF

application.¹

It is imperative to ensure commanders, as well as the service members who execute the

commander’s plans, understand the potential limits on self-defense when operating as part of a unit.

Unit commanders always retain the inherent right and obligation to exercise unit self-defense in

response to a hostile act or demonstrated hostile intent. Unless otherwise directed by the unit

commander, service members may exercise individual self-defense in response to a hostile act or

demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual

self-defense becomes a subset of unit self-defense and the unit commander may limit individual

self-defense by members of the unit.²

Use of force practice is one of the few areas in which the legal competence of judge advocates can

have potential life or death consequences for service members and civilians. Therefore, it is vital

that judge advocates understand and apply appropriate legal and practical considerations when

practicing in this area.

¹ For a comprehensive discussion on the development, training, and application of the ROE that can be applied to the

RUF, see CENTER FOR LAW AND MILITARY OPERATIONS, RULES OF ENGAGEMENT (ROE) HANDBOOK FOR JUDGE

ADVOCATES (2000).

² See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, STANDING RULES OF

ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES, Enclosure L (U) para. 4.a. (13 June 2005)

[hereinafter CJCSI 3121.01B]. Note that the SRUF supersede CJCSI 3121.02, RUF for DoD Personnel Providing

Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States.

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This chapter will provide the reader with an introduction to use of force and its key legal references.

It will discuss the role of judge advocates in use of force training and implementation, the practical

realities involved in use of force incidents that are often not included in legal references, the legal

standard for federal use of force, the existing Army policies on use of force, and the potential legal

liability involved in use of force.

B. The Judge Advocate’s Role in the Use of Force

Judge advocates are frequently called upon to practice domestic use of force law in routine legal

duties as well as in domestic operations. This need commonly arises when attorneys advise on

routine force protection and installation law enforcement activities. Many judge advocates will

need to train service members on domestic operational RUF or use of force policies for law

enforcement and security operations. Judge advocates advise units executing domestic operations,

and will also advise on or review investigations into incidents involving the use of force by a

service members. Judge advocates may be involved in civil or criminal proceedings for a use of

force incident as a trial counsel, trial defense counsel, Special Assistant U.S. Attorney, or as an

attorney assisting in defensive federal litigation involving his or her respective service.

Judge advocates may also be called upon to draft mission-specific RUF. There are differing

opinions as to whether judge advocates should be tasked with directly drafting RUF, or if they

should simply handle their review. The fact remains, commanders may task an attorney to draft

RUF directly, so judge advocates should be prepared to do so.

In drafting or reviewing RUF, judge advocates have to understand both the substantive law that

governs the use of force, as well as the procedures necessary to modify the SRUF. Efforts to either

augment or restrict the current SRUF must follow precise staffing requirements, and, in the case of

augmentation, require advanced planning and should be initiated (if not already done by higher

headquarters) as soon as the need is identified.³

Judge advocates performing these duties must know the controlling law for domestic use of force.

For operations in areas subject to U.S. jurisdiction, the appropriate constitutional law standards as

interpreted by the courts and the executive branch regulate the use of force. As important, the

policies or RUF issued by higher headquarters further define the legal requirements for use of force.

RUF drafters involved in planning or executing a domestic operation should consider critical factors

that are similar to those involved in SROE development. These factors include the following.

• What is your mission and your commander’s concept of operation?

• What type of unit is involved, what weapons and equipment, if any, will be deployed, and what

is the level of training of members with the assigned weapons?

• What threat could your command face?⁴

³ See CJCSI 3121.01B, supra note 2, Enclosure L (U) para. 3.a.-3.b. and Enclosure P (U). The SRUF requires

Combatant Commanders desiring to augment the SRUF to staff such actions through the CJCS to the Secretary of

Defense for approval. Restrictions to the SRUF require notification although limited flexibility is provided for time

critical situations. Enclosure P provides the template for requests for mission specific SRUF.

Judge advocates should base their draft SRUF and legal guidance on the worst feasible scenario. For example,

attorneys often advise on detention or migrant and refugee camp operations. In most cases, no one expects the detainees

to violently riot. Unfortunately, rioting can occur in extended detention operations. Structuring your SRUF assuming

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• What kind of interaction and exposure to the general public will your service members face?

• What training resources are available for pre-deployment RUF training?

• Does the training program properly address the issues involved with RUF or do training deficits

raise the potential for misapplication of the rules?

• Does the mission being planned fit well with the existing SRUF or should the local commander

initiate a process to seek augmentation of the SRUF by submitting a request for a mission

specific RUF?⁵

C. Practical Realities of Use of Force Situations

Judge advocates need to understand practical aspects of deadly force confrontations in order to be

competent in use of force law. Understanding the law and policy of use of force is not enough.

Judge advocates must recognize that the real world does not always allow for dispassionate,

reflective, and judicious decision making on whether to use force. Thus, judge advocates should

consider a number of critical factors when advising on civil support missions. These include: the

capabilities and limitations service members bring to a potential deadly force confrontation; what is

known about potential attackers; and, what physical reactions may affect service members during

and after use of force incidents.

Capabilities and Limitations

a. Soldier Equipment

Compared to civilian law enforcement personnel, most service members are not as well-equipped

for potential confrontations with civilians involving use of force. When drafting RUF for a

particular mission, commanders must decide if the mission requires service members to be issued

firearms or other non-lethal weapons. Further, if non-lethal weapons or non-standard weapons or

ammunition are authorized for the mission, it is critical that soldiers be well-trained in the proper

employment of these systems.

b. Skill and Training

Most service members do not receive extensive training on the types of confrontations that are

involved in domestic operations.⁶ Because service members receive little training on tactical

marksmanship and close quarters confrontations, they may not understand how to shoot accurately

under stress or how to employ lesser means of force competently.

Many service members have not been trained on domestic law applicable to the use of force and, as

a consequence, do not understand many of the policy requirements imposed by DoD their service.⁷

the detainees will passively comply will leave your security force without adequate guidance on how to respond to an

emergency situation should they face one.

If such a need is identified, staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a

template. As this must be staffed to the Combatant Commander for staffing through the CJCS to the Secretary of

Defense for approval, it is imperative that this action be initiated upon the identification of the need.

⁶ An exception to this is the U.S. Coast Guard. Coast Guard members often operate in a law enforcement environment

and have extensive RUF training.

⁷ Military police and special operations Soldiers are probably the only general population in the Army that routinely

learn and understand these rules.

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Additionally, service members may also not be sufficiently experienced in applying deadly vs. non-

deadly techniques. Judge advocates should assist commands in ensuring members not only get the

right legal and policy training but also the right operational training if they see a gap.

2. Potential Threat

Judge advocates must also consider the nature of the threat that service members might face since

this can factor into advice given for an operation. Service members must be able to correctly apply

force and distinguish between threats and innocent civilians. Judge advocates should be aware of

any backg0round information on a threat in an operating area to better inform advice given to

commanders.

3. Physical and Psychological Effects

It is also important to keep in mind that physical and psychological effects on a member resulting

from a life or death situation can be critical. The stress of a life or death encounter will often trigger

the “fight, flight, or freeze” response. Accompanying this, the body and mind undergo a number of

changes that can affect performance. Judge advocates may have to research these reactions and

consider their effects if tasked to investigate a use of force incident.

D. SRUF and Areas of Confusion and Concern

Most RUF practitioners will be called to advise and train on either the SRUF or mission specific

RUF crafted and approved by higher headquarters and the Secretary of Defense. RUF practitioners,

whether being asked to propose mission specific RUF, advise on existing RUF, or to train RUF

need to be sensitive to several areas that often become the source of confusion or error.

Example areas include the concept of use of “minimum force,” the general prohibition on the use of

warning shots by land forces, the use of warnings to include verbal warnings, and the introduction

of restrictions that go beyond what is required by the SRUF, any of which may have the inadvertent

effect of depriving a member of otherwise valid defenses available to federal officers acting in their

official capacities. For example, state law may impose a duty to retreat as it relates to the use of

force by private citizens. Judge advocates should ensure federal forces and their RUF are not

improperly limited by concepts that are not applicable to federal RUF.

Another potential source of confusion for the Army can specifically flow from an effort to reconcile

portions of AR 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security

Duties⁸ with the SRUF. The SRUF applies broadly both on and off installations and specifically

provides that its provisions apply to “DoD forces, civilians and contractors performing law

enforcement and security duties at all DoD Installations.”⁹

AR 190-14, Chapter 3, was revised in 1993 to synchronize with the use of force guidance contained

in DOD Directive 5210.56. Subsequently, the use of force guidance contained in DoDD 5210.56

⁸ U.S. DEP’T OF ARMY, REG. 190-14, CARRYING OF FIREARMS AND USE OF FORCE FOR LAW ENFORCEMENT AND

SECURITY DUTIES (12 Mar. 1993).

⁹ CJCSI 3121.01B, supra note 2, para. 1.a.

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was specifically superceded by the SRUF.¹⁰ Judge advocates advising in a variety of areas related

to law enforcement and security missions to include the development of provisions for contract

security forces need to be aware of this disconnect between AR 190-14 and the SRUF. When the

provisions of the two cannot be reconciled, the SRUF will control as its provisions cannot be

augmented without the approval of the Secretary of Defense and cannot be further restricted without

providing notice to the same.

E. Legal Authority and Standard for U.S. Military Use of Force in Domestic Operations

The underlying legal authorities for use of force are grounded in the constitutional role of the

Executive Branch, and are tempered by the constitutionally protected civil rights as listed in the Bill

of Rights. Against this backdrop, Congress has imposed a number of statutory provisions that help

define and limit this authority.

The competent use of force practitioner must understand these underlying authorities.¹¹ This is

similar to the duty of the competent SROE practitioner to understand the underlying public

international law and law of war authorities guiding their actions. The use of force practitioner and

SROE practitioner must also understand the differences between these two bodies of law and resist

the temptation to confuse and meld terms and concepts from one to the other.

Domestic use of force authority flows from the powers of the President as granted under the

Constitution. The underlying authority of the President to order routine installation force protection

and law enforcement is justified under the President’s executive powers.¹² The authority to order

the military to defend the homeland against overt international aggression can be found in the

President’s authority as the Commander in Chief.¹³ Finally, the President’s authority to order the

military to execute DSCA operations (Defense Support of Civil Authorities)¹⁴to enforce federal

law is based on the President’s duty to execute the laws.¹⁵ As officers of the Executive Branch,

service members conduct operations and derive authority from the President’s constitutional

authorities.¹⁶ Whenever the military uses force to execute the orders of the President or those he

appoints, that use of force must be based on constitutional authority.

All Executive Branch uses of force are balanced against the civil rights of the public. While three

primary provisions of the Bill of Rights limit federal use of force in domestic operations, the main

focus is on the Fourth Amendment.¹⁷ The constitutional standard is whether the use of force

¹⁰ CJCSI 3121.01B, supra note 2, para. 1.b.

¹¹ Since domestic operations have generated very few reported cases involving service members, we must look to

civilian agency law enforcement cases to help define the limits of military use of force.

¹² U.S. CONST., art. II, § 1.

Id. § 2.

¹⁴ U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb.

2013).

¹⁵ U.S. CONST., art. II, § 3.

¹⁶ See e.g., In Re Neagle, 135 U.S. 1 (1890).

¹⁷ The other two are the Fifth Amendment Due Process Clause, which limits the ability of federal officers to use force

after an arrest has occurred, and the Eighth Amendment, which defines the rights of a prisoner when corrections

personnel use force.

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violates the Fourth Amendment prohibition against unreasonable seizures.¹⁸ The U.S. Supreme

Court has described this standard as an objective measurement based on the facts and circumstances

known to the service member at the time of the use of force.¹⁹ This rule is the very heart of the

standard for governmental use of force.

The “reasonableness” of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight

The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation. As in other Fourth Amendment

contexts, however, the “reasonableness” inquiry in an excessive force case is an

objective one: the question is whether the officers’ actions are “objectively

reasonable” in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.²⁰

The courts have long recognized the authority to use force, including deadly force, in the

performance of federal governmental duties.²¹ Judge advocates must know the limits of the mission

and how the commander intends to execute this mission in order to advise on the RUF that support

the operation. This makes the mission analysis portion of planning critical. The phrasing of

Operations Orders or other directives that define the mission and operation are vital to defining the

limits of this authority.

Judge advocates involved in drafting mission specific RUF should carefully consider where to

balance the interests of force protection and the lives of service members against the important

interest of not risking an excessive use of force incident involving the military. Further, judge

advocates involved in the development of RUF training must be careful that the training does not

introduce procedures that introduce tactically dangerous or unsound practices.

Such errors can occur because judge advocates are mistaken in their understanding of the law or

uncomfortable with the application of the RUF. Specifically, judge advocates should never apply

Law of War to the domestic law on the use of force.²² Likewise, judge advocates should not

confuse the law of individual self-defense of a private individual with the authority of self-defense

for government officials.²³

¹⁸ U.S. CONST., Amend. IV, provides that “[t]he right of the people to be secure in their persons…against unreasonable

searches and seizures, shall not be violated

”

¹⁹ Graham v. Connor, 490 U.S. 386, 296 (1989).

Id. (emphasis added).

In Re Neagle, 135 U.S. 1 (1890).

²² As discussed above, the underlying substantive law applicable to domestic governmental use of force is the

Constitution, not the Law of War. A common example is use of language of “proportionality of response” by a Soldier

defending against an attack.

²³ While related, these legal standards are significantly different. A common example of this confusion is a

requirement to retreat. Government officials using force in the performance of their duty have no duty to retreat and in

some instances could be in breach of their duty if they do retreat. It is also possible to inadvertently lose the authority to

use force under governmental authority by wording the RUF to invoke the law of individual right of self-defense of the

state law or federal common law. For example, a provision that says, “Service members retain their right to use force in

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Minimum Force Necessary or Deadly Force as a Last Resort

The SRUF states “Normally, force is to be used only as a last resort, and the force used should be

the minimum necessary.”²⁴ The SRUF further states that, “Deadly force is to be used only when all

lesser means have failed or cannot be reasonably employed.”²⁵ Lastly, the SRUF imposes a

reasonableness requirement stating that the force used must be “reasonable in intensity, duration

and magnitude” based on the totality of the circumstances to counter the threat.²⁶

Federal courts, however, do not require that service members employ “minimum force necessary”

or that they employ deadly force as only a “last resort.” The courts have generally held that the

issue is solely whether deadly force was reasonably necessary. They have declined to impose a

requirement to use minimum force.²⁷ Nor do courts require the use of feasible lesser force

alternatives to avoid the use of justified deadly force.²⁸ Judge advocates involved in planning

domestic operations that carry a significant risk of potentially lethal encounters with armed or

dangerous elements should evaluate whether the SRUF meets the task or whether augmented

mission specific RUF that more closely resembles the standards of case law (and therefore may

provide more flexibility) should be developed and staffed for approval by the Secretary of

Defense.²⁹

Mandatory Verbal Warnings

Federal courts require the issuance of a verbal warning, where feasible, in the case of using deadly

force against a fleeing criminal. This is clearly required in the seminal case of Tennessee v.

Garner.³⁰ The SRUF does not specifically require a verbal warning but does state that “[w]hen

time and circumstances permit, the threatening force should be warned and given the opportunity to

withdraw or cease threatening actions.³¹ Although the type of warning that should be given is not

specifically established, it cannot take the form of a warning shot.³²

self-defense as defined by local and state law” reduces the service member’s right to use force in self-defense to the

level of a private citizen under state law. This is a significant (and unnecessary) concession of otherwise lawful

defensive authority.

²⁴ CJCSI 3121.01B, supra note 2, Encl. L, para. 5.b.1.

Id. para. 5.c.

Id. para. 5.b.1.

²⁷ See e.g., O’Neal v. DeKalb County, Ga., 850 F.2d 653, 666 (11th Cir. 1988).

²⁸ See e.g., Deering v. Reich, 183 F.3d 645, 652-53 (7th Cir. 1999).

²⁹ Staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a template. As this must be

staffed to the Combatant Commander for staffing through the CJCS to the Secretary of Defense for approval; it is

imperative that this staffing process be initiated upon the identification of the need.

³⁰ Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Garner provides a three prong analysis under the Fourth

Amendment for the evaluation of whether the use of deadly force is reasonable. These prongs include: whether there is

probable cause to believe that the individual suspect is dangerous; whether the use of deadly force is necessary to

prevent the suspect’s escape; and, whether, if feasible under the circumstances, a verbal warning was given.

³¹ CJCSI 3121.01B, supra note 2, Encl. L para. 5.a.

Id. para. 5.b(3). There are some limited exceptions to this restriction, but these exceptions are unlikely to be

encountered by most U.S. Army personnel.

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3. Denial of Deadly Force in Self-Defense

Federal courts do not require that service members who are not armed in the course of their duties

be denied the authority to use deadly force in their own defense. Some commanders and judge

advocates believe that if there is no authority to arm service members, then there is no authority to

use deadly force. This presumption is not imposed by federal law. In reference to self-defense,

however, judge advocates must ensure that service members, acting as part of a unit, understand

that the SRUF specifically provides that the individual right of self-defense may be restricted. This

is rationalized by stating that when “individuals are assigned and acting as part of a unit, individual

self-defense should be considered a subset of unit self-defense. As such, commanders may limit

individual self-defense by members of their unit.”³³

4. Operational Orders/Execution Orders

For those operations that have not been thoroughly anticipated, attorneys may find that the RUF are

disseminated through message traffic with an OPORD or EXORD. Often judge advocates will have

to wait for RUF guidance from higher headquarters because the decision on whether to draft new

RUF or adopt an existing template has not yet been announced.

5. SRUF Authority to Use Deadly Force

In RUF, the authority to use deadly force exists for limited purposes. The SRUF provides uniform

guidance on domestic use of force. It also provides a consistent training template to avoid the ad

hoc approach previously used in domestic operations RUF practice.

a. Inherent Right of Self-defense

As discussed above, unit commanders always retain the inherent right and obligation to exercise

unit self-defense in response to hostile acts or demonstrated hostile intent. Unless otherwise

directed by the unit commander, service members may use deadly force when it appears reasonably

necessary to respond to a hostile act or demonstrated hostile intent. Individual self-defense is a

subset of unit self-defense and as such may be limited by the unit commander when an individual

service member is acting as part of a unit. Unit self-defense includes the defense of other DoD

forces in the vicinity.

b. Defense of Others

The use of deadly force extends to the use of force to defend other non-DoD persons in limited

circumstances. Service members may use deadly force in defense of non-DoD persons who 1) are

in the vicinity, and 2) when the use of force is directly related to the assigned mission.³⁴

c. Protection of Assets Vital to National Security

Service members may use deadly force when it appears reasonably necessary to prevent the actual

theft or sabotage to assets vital to national security. The SRUF defines assets vital to national

Id. para. 4.a.

Id. para. 5.c.2.

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security as President-designated non-DoD and/or DoD property, the actual theft or sabotage of

which the President determines would seriously jeopardize the fulfillment of a national defense

mission and would create an imminent threat of death or serious bodily harm.³⁵ The SRUF

provides a list of potential examples: nuclear assets, nuclear command and control facilities, other

designated areas that contain sensitive codes or involve special access programs. Planners and

commanders need to determine the existence of assets in their anticipated area of operations to

apply the SRUF properly so as to safeguard these designated assets.

d. Protection of Inherently Dangerous Property

Service members may use deadly force when reasonably necessary to prevent the actual theft or

sabotage of inherently dangerous property. The SRUF defines “inherently dangerous property” as

property that, in the hands of an unauthorized individual, would create an imminent threat of death

or serious bodily harm.³⁶ Examples include portable missiles, rockets, arms, ammunition,

explosives, chemical agents, and special nuclear material. On-scene DoD commanders are

authorized to classify property as inherently dangerous.³⁷ Command guidance in this area is

critical. Without clear and proper guidance, the commander’s intent could easily be frustrated. For

example, a commander may not want to have lethal force deployed against looters who steal small

arms ammunition. Failure to provide guidance on this could lead to an engagement that was proper

under a strict reading of the SRUF but is inconsistent with the on-ground commander’s intent.

Likewise, a commander may consider all crew-served weapons as “inherently dangerous,” but a

failure to make such designations may lead to confusion over what is “inherently dangerous

property” by members on the ground.

e. National Critical Infrastructure³⁸

Service members may use deadly force when reasonably necessary to prevent the sabotage of

national critical infrastructure. National critical infrastructure for DoD purposes is President-

designated public utilities, or similar critical infrastructure, vital to public health or safety, the

damage to which the President determines would create an imminent threat of death or serious

bodily injury. Commanders and planners need to identify the existence of such infrastructure when

preparing for a domestic operation.

Other Mission-Related Circumstances for Use of Deadly Force

As with the circumstances described above, deadly force may be used, under limited circumstances,

when directly related to the assigned mission. Further, such force may only be used “when all

lesser means have failed or cannot reasonably be employed.”³⁹ These additional circumstances,

where such force may be used when directly related to the assigned mission, are discussed below.

Id. para. 4.e.

Id. para. 4.f.

Id.

Id. para. 4.g.

Id., paras. 5.c & 5.d.

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a. Prevention of Serious Offenses against Persons

Service members may use deadly force when it appears reasonably necessary to prevent a serious

offense involving the threat of imminent death or serious bodily harm. Examples of such crimes

include murder, armed robbery, and aggravated assault. Further, attempting to set fire to an

inhabited building or sniping would constitute offenses that involve the threat of imminent death.⁴⁰

b. Escape⁴¹

Service members may use deadly force when it appears reasonably necessary to prevent the escape

of a prisoner, provided there is probable cause to believe that the prisoner committed or attempted

to commit a serious offense. Serious offense is defined as one that involves an imminent threat of

death or serious bodily harm, or an offense that would pose an imminent threat of death or serious

bodily harm to DoD forces or others in the vicinity.

c. Arrest/Apprehension of Persons Believed to have Committed a Serious Offense⁴²

Service members may use deadly force when it appears reasonably necessary to arrest or apprehend

a person who they have probable cause to believe has committed a serious offense as defined above.

7. Augmentation of the RUF

A unit commander that desires to augment the SRUF must staff the action to the appropriate

Combatant Commander. The Combatant Commander must then staff the request through the CJCS

to the Secretary of Defense for approval.⁴³ Requests for augmentation must be prepared using the

template provided at Enclosure P, RUF Messaging Process, to CJCSI 3121.01B. Unit commanders

may further restrict the SRUF without prior approval; however, if a restriction is implemented by a

unit commander on a Secretary of Defense-approved RUF, the Secretary must be notified through

the Joint Staff. When confronted with time critical situations, commanders can notify the CJCS and

the Secretary of Defense concurrently, or if not possible, may notify the CJCS as soon as possible

after the Secretary of Defense notification.⁴⁴

F. Liability for Service Members, Leaders, and RUF Drafters in Use of Force Situations

Service members, their leaders, and the planners who draft the RUF for domestic operations face

potential personal liability for any unlawful use of force by a service member during a domestic

operation. This includes federal or state civil or criminal proceedings after an incident. In addition,

such incidents are often accompanied by a variety of investigations that could result in adverse

administrative consequences. Therefore, it is important that judge advocates be aware of this

liability as they draft RUF, disseminate the RUF, and participate in training for and the execution of

domestic operations under RUF. Appropriate attorney involvement can reduce the risk a member is

unnecessarily exposed to the financial and emotional burdens of litigation.

Id., para. 5.d.1.

Id., para. 5.d.2.

Id., para. 5.d.3.

Id., para 3.a.

Id., para. 3.b.

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Federal Civil Liability

A person injured by a service member’s use of force could seek damages in a federal civil suit

against the service member and others involved in the RUF. If the person is dead, the family

members of the decedent could file the suit. This private cause of action for damages—caused by a

service member’s use of force—is based on deprivation of a Constitutional right. In most cases,

this will involve the Fourth Amendment standard of objective reasonableness. The seminal case

that created this cause of action is Bivens v. Six Unknown Agents of the Federal Bureau of

Narcotics,⁴⁵a civilian law enforcement case. There is caselaw in the DoD civil support realm. One

reported Supreme Court case (discussed below) involves an Army soldier and use of force against a

civilian.⁴⁶

Litigation can also occur in situations where force was not used and an innocent civilian is killed or

injured as a result. A soldier’s decision not to use force, or a commander’s decision to limit the use

of deadly force would most likely be found to be within the “discretionary function” defense to

claims made under the Federal Tort Claims Act (FTCA).⁴⁷ But if the decision not to engage an

otherwise lawful target was a result of a failure to train or the use of ill-conceived training materials,

the U.S. Government could be found liable for negligence under the FTCA.

a. The Application of Qualified Immunity

Judge advocates serving as advisors, investigators or litigators should understand that qualified

immunity is a critical dispositive measure to forestall unnecessary burdens on the government and

its representatives, and it can serve as a bar to trial. Recent caselaw provides guidance on how

courts apply qualified immunity.

Saucier v. Katz, a 2001 Supreme Court decision, is a noteworthy case in the context of military

support to domestic operations. Saucier, a Military Police officer assigned to protect the Vice

President, was accused by Katz of using excessive force. Pursuant to Bivens, Katz filed suit against

Saucier on the grounds that Saucier had violated Katz’ Fourth Amendment rights. Pearson v.

Callahan, a 2009 Supreme Court decision, is now the key case from which to analyze issues of

qualified immunity.⁴⁸ (Pearson involved an accusation of a Fourth Amendment violation for a

warrantless search and seizure conducted by Utah state law enforcement officers.). Both cases are

relevant for judge advocates and discussed below.

For judge advocates vis-à-vis their roles as RUF practitioners, it is first necessary to understand the

analysis handed down in Saucier as it may still be used by lower courts. In Saucier, the Court

⁴⁵ Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In that case, the Court held

that the warrantless entry of Federal agents into the petitioner’s apartment, under color of federal authority, provided a

federal cause of action for damages under the Fourth Amendment.

⁴⁶ See Saucier v. Katz, 533 U.S. 194 (2001). In Saucier, Katz attempted to unfurl a protest banner in close proximity to

Vice President Gore’s speaking stand on the Presidio of San Francisco. Katz brought a Bivens action against the

military police that apprehended him. Katz alleged that the military police violated his Fourth Amendment rights by use

of excessive force in forcibly removing him from the immediate vicinity of the podium and in placing him into a van.

The Court held the military police member was entitled to qualified immunity.

⁴⁷ United States v. Gaubert, 499 U.S. 315 (1990).

Pearson v. Callahan, 555 U.S. 223 (2009). The Court held that the officer’s entry into a home, based on the consent

of an informant, did not violate clearly established law, and they were thus entitled to qualified immunity.

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