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b. Types of Support33
Types of support that the Department of Defense 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; and
• Incident response capabilities.34
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.35
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 Department of Defense 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.36 It is important to note that for a single event, certain types of support may require
reimbursement, while 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
33 Id.
34 This is done in coordination with the Department of Justice, DHS, the Department of Health and Human Services, and in
consultation with appropriate State and local authorities.
35 Id.; see also 10 U.S.C. § 2564, and Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat.
3009 (1996).
36 DoDI 3025.20, supra note 1, Encl. 3; see also 10 U.S.C. §§ 272-274, 277 (sections 372-384 were amended to 271-284 in
2016), 2012, 2553-2555, and 2564; 31 U.S.C. §§ 1535, 1536.
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event must be reimbursed.37 In some cases, Congress has provided specific appropriations to fund
support to NSSEs, like the Presidential Nominating Conventions.
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.38 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.39 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.”40
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. The scope of IRT projects is open to all career fields and can include cybersecurity
projects.41 While active components may conduct IRT programs, the NG and Reserve elements
primarily provide this support.
1.
Innovative Readiness Training Procedures
Military units may provide IRT support to certain eligible organizations in the United States, its
territories and possessions, and the Commonwealth of Puerto Rico.42 Such assistance must be
provided incidental to training or be otherwise authorized by law.43 Assistance is primarily provided
by combat service support units, combat support units, and personnel serving in the areas of health-
care services, general engineering and infrastructure support, and assistance services.
37
10 U.S.C. §§ 2564(a), 2564(b).
38 U.S. DEP’T OF DEF., INSTR. 1100.24, INNOVATIVE READINESS TRAINING (IRT): SUPPORT AND SERVICES FOR ELIGIBLE
ORGANIZATIONS AND ACTIVITIES OUTSIDE DOD para. 1.2 (5 May 2020) [hereinafter DoDI 1100.24] (implementing 10
U.S.C. § 2012).
39 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 background. 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, INST. 3025.17, CIVIL-MILITARY ASSISTANCE FOR CERTAIN YOUTH AND CHARITABLE
ORGANIZATIONS (14 Dec. 2002).
40 DoDI 1100.24, supra note 38, para. 3.3.
41 See infra Chapter 12: Cyberspace Operations in the National Guard.
42
10 U.S.C. § 2012; DoDI 1100.24, supra note 39.
43
10 U.S.C. § 2012(a).
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a. Requests for IRT Assistance
Requests for IRT assistance must come from a “responsible official” of an “eligible organization.”44
Each request must include certification that the requestor has authority to commit resources and enter
into binding agreements on behalf of the organization.45 There are three categories of eligible
organizations:
• Any Federal, regional, State, or local government entity;46
• Youth and charitable organizations as specified in 32 U.S.C. § 508; and
• Any entity that the Secretary of Defense may determine is an eligible organization.47
An organization may request IRT 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 needs without the assistance of the military.”48 If commercial assistance
is reasonably available, the requesting individual must certify the commercial entity agrees to the
provision of such services by the military.49
b. IRT Provision Requirements
Requested IRT assistance must meet three requirements. First, it must relate to military training. In
the case of a military unit, the requested assistance must accomplish valid unit training requirements,
unless there is a specific exemption. In the case of assistance provided by an individual Service
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.50
2.
Legal Considerations for IRT Projects
a. Approval Authority for IRT Projects
All IRT applications must be approved by an O-6 or above with training responsibilities for the
participants. IRT projects that seek additional funding from OSD require additional 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 submitted by
44
10 U.S.C. § 2012(c)(1).
45 DoDI 1100.24, supra note 39, para. 5.1.a.
46
10 U.S.C. § 2012(e)(1).
47 Id. § 2012(e)(3).
48 DoDI 1100.24, supra note 39, para. 5.3.
49
10 U.S.C. § 2012(c)(2); DoDI 1100.24, supra note 39, para. 5.3.
50
10 U.S.C. § 2012 (d)(1)(C).
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qualifying entities that do not meet the above criteria. This approval authority may be delegated to
commanders of major subordinate commands.51
b. Processing Requests for IRT Projects
(1) How the IRT Project Request Process Begins
First, a representative from an eligible organization will submit an application for an IRT mission
before 30 September of each fiscal year. Military commanders who wish to use IRT to satisfy a
training requirement may then review community applications and submit an application to support the
proposed IRT. The proposed IRT is then reviewed at the appropriate level to ensure it complies with
policy and satisfies a valid training requirement for the military unit.
(2) Contents of IRT Community Applications
Community applications are completed by eligible entities, and at a minimum must contain
information on the organization requesting the partnership and the requested activity. This includes:
• Information on the organization requesting the partnership;
• The expected community contributions and resources to support the activity;
• A hold harmless agreement that releases DoD from any liability or claim arising in connection
with the IRT mission
• Certification of authority to commit resources and enter into binding agreements
• Adherence to noncompetition requirements; and
• Organizational eligibility information.52
(3) IRT Selection
Once a community application is complete, military participants may then identify their training
requirements and determine if the proposed support meets a valid training need. The military
application includes information on whether the component will fund the training or request OSD
funding.53
c. Claims Arising From IRT Projects
Claims involving Active Duty, Reserve, or NG 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. Community applications, however, must contain a hold harmless agreement
that releases the DoD, its subordinate units, Service members, employees, and agents from any claim,
51 DoDI 1100.24, supra note 38, Table 1.
52 Id. para 5.1.
53 Id.
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demand, action, liability, or suit of any nature in connection with military support; excluding those
arising solely from intentional torts or gross negligence.54 Community assistance undertaken by NG
units is accomplished in a State Active Duty (SAD) status and is not IRT. Therefore, the State is
responsible for any claims incident to projects accomplished solely by members in a SAD status.
C. 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 section will address the areas that may not
frequently arise in domestic support operations, but nonetheless contain significant legal implications
and thus are worthy of discussion.
1. Disaster and Domestic Emergency Assistance
Search and Rescue Operations (SAR)
USNORTHCOM and INDOPACOM have day-to-day SAR responsibilities. 55 For typical SAR cases,
the 1st Air Force is the recognized as the single Federal agency coordinating SAR for the continental
U.S. Aeronautical SAR Region; 11th Air Force 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. The following paragraphs in this section address when DoD
resources may be applied in a Stafford Act or other civil support event, outside these normal day-to-
day SAR operations.
If the Federal Government has activated the Emergency Support Functions (ESFs) (typically during a
Stafford Act response), the Department of Defense typically has a large role in land-based search and
rescue as ESF #9 identifies it as a primary agency for land SAR. During a Stafford Act or other civil
support incident, the Department of Defense may provide SAR support following a request by FEMA
as directed by Joint Director of Military Support (JDOMS) and approved by Secretary of Defense.56 In
this capacity, under the NRF, DoD personnel assist civil authorities by conducting SAR missions on a
reimbursable basis (pursuant to the Stafford Act or Economy Act as appropriate).57 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.58
When requested, DoD personnel, through U.S. Northern Command (USNORTHCOM) and/or
USINDOPACOM, coordinates facilities and resources according to applicable directives, plans,
54 Id.
55 See National Search and Rescue Plan of the United States, para. 22 (2016), https://www.dco.uscg.mil/Portals/9/CG-
5R/manuals/National_SAR_Plan_2016.pdf 9 (last visited May 2, 2021).
56 U.S. DEPARTMENT OF DEF., INSTR. 4515.13, AIR TRANSPORTATION ELIGIBILITY, (22 Jan. 2016) [hereinafter DoDI
4515.13], through change 4, Aug. 31, 2018, para. 12.3.; see also FEMA, EMERGENCY SUPPORT FUNCTION #9 - SEARCH
AND RESCUE, (June 2016), [hereinafter FEMA, ESF #9] https://www.fema.gov/pdf/emergency/nrf/nrf-esf-09.pdf (last
visited May 2, 2021).
57 FEMA, ESF #9, supra note 56.
58 See DoDI 4515.13, supra note 56, para. 12.3.
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guidelines, and agreements. Per the National SAR Plan, the Combatant Commands 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.59
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) and the Stafford Act is subsequently
invoked,60 those capabilities will then be administered under the NRF and ESF #9. As soon as
practical, a DHS/FEMA or other department/agency mission assignment will then be submitted to the
Department of Defense for continued support of those capabilities.61
2.
Employment of DoD Resources in Support of the U.S. Postal Service (USPS)
When ordered by the President, the Department of Defense may be called upon to provide materials,
supplies, equipment, services, and personnel to enable the USPS to safeguard, process, and deliver the
mail in areas affected by postal work stoppages. Authority to support the USPS rests in the President’s
authority to use the Armed Forces to prevent interference with transporting the mail62 and the authority
for interdepartmental transfer of services and equipment prescribed by the Economy Act,63 as
implemented by DoD Instruction 4000.19, Support Agreements.64 Upon Presidential declaration of a
national emergency, selective mobilization of reserve components to support the USPS would occur
under 10 U.S.C. § 12302.65 Army and Air NG units would be called under authority granted in 10
U.S.C. § 12406. Note also that, consistent with this use of authority, E.O. 13527 directs the integration
of DoD into plans to provide support to the USPS delivery of medical countermeasures in the event of
biological attack.66
3.
Public Health or Medical Emergencies
In a large-scale public health or medical response, the Department of Defense will likely provide civil
support to the Department of Health and Human Services (DHHS), which is the primary agency
responsible for this mission under ESF #8. The Department of Defense 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 #8.67
59 FEMA, ESF #9. supra note 56.
60 This could occur in the case of a large airline crash or large vessel casualty, requiring the need for a mass rescue.
61 FEMA, ESF #9. supra note 56.
62 In re Debs, 158 U.S. 564 (1895).
63
31 U.S.C. § 1535 (2012), implemented by 39 U.S.C. § 411 (Cooperation with other Government Agencies).
64 U.S. DEP’T OF DEFENSE, INSTR. 4000.19, SUPPORT AGREEMENTS (25 Apr. 2013), incorporating Change 2, August 31,
2018.
65
10 U.S.C. §§ 12301-12304 (2018).
66 Exec. Order No. 13527, 75 Fed. Reg. 737 (Jan. 6, 2010).
67 FEMA, EMERGENCY SUPPORT FUNCTION #8 - PUBLIC HEALTH AND MEDICAL SERVICES, (Jun. 2016) [hereinafter ESF
#8], https://www.fema.gov/sites/default/files/2020-07/fema_ESF_8_Public-Health-Medical.pdf (last visited on May 2,
2021).
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The Public Health Emergency Medical Countermeasures Enterprise (PHEMC) is another element of
the response framework for public health emergencies. The PHEMCE as an interagency coordinating
body led by the DHHS 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 Departments of Veterans Affairs (VA),
Defense (DoD), Homeland Security (DHS), and Agriculture (USDA). It coordinates the development,
acquisition, stockpiling, and use of medical products to effectively respond to a variety of potential
high-consequence public health emergencies.68
4.
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.69 The 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.70
5.
Mass Migration Emergency
The Department of Homeland Security is charged with enforcing the laws of the United States
regarding immigration.71 The majority of this responsibility is fulfilled by the routine daily operations
of U.S. Immigration and Customs Enforcement (ICE)72 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 call upon the
Department of Defense to provide support to DHS.73
6.
DoD Support to Wildfires
State and local governments have the primary responsibility to prevent and control wildfires.74 DoD
support for wildland firefighting operations are the same as those for other natural disasters and
68 See U.S. Department of Health and Human Services, Public Health Emergency Medical Countermeasures Enterprise
(PHEMCE) Implementation Plan (Dec. 2012), http://www.phe.gov/Preparedness/mcm/phemce/Documents/2012-
PHEMCE-Implementation-Plan.pdf.
69 ESF # 8, supra note 87, 8-10, 11.
70 Id. at 8-11.
71 See 6 U.S.C. § 202 (2018).
72 ICE is the investigative arm of the DHS. It 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.
73 For example, during the Mariel Boatlift approximately 124,000 Cuban migrants entered the United States between April
and September of 1980. See Mariel Boatlift GLOBALSECURITY.ORG, https://www.globalsecurity.org/military/ops/mariel-
boatlift.htm (last visited Aug. 22, 2018).
74 U.S. DEP’T OF DEF. MANUAL, 3025.01, DEFENSE SUPPORT OF CIVIL AUTHORITIES: DOD INCIDENT RESPONSE, Vol. 2, Sec
7, para. 7.1.b. and table 6 (Aug. 2016)(C1 12 Apr 2017) [hereinafter DoDM 3025.01]; see also FEMA, EMERGENCY
07/fema_ESF_4_Firefighting.pdf [hereinafter ESF #4].
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emergencies.75 DoD provides disaster and emergency support of FEMA pursuant to approved FEMA
mission assignments (MAs)..76
The primary Federal entity responsible for coordinating the Federal response to wildfires is the
National Interagency Fire Center (NIFC), located in Boise, Idaho,77 The NIFC evolved from the
“Boise Interagency Fire Center,” 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 changed to the National Interagency Fire
Center to reflect a national mission. 78
The NIFC sits on 55 acres and “has areas for refurbishment of firefighting equipment, aircraft ramp
operations, aircraft retardant tanker operations, as well as administrative functions serving the mission
of wildland fire and other emergencies.”79 Eight agencies and organizations are in the NIFC:
• U.S. Department of the Interior Bureau of Indian Affairs (BIA);
• U.S. Department of the Interior Bureau of Land Management (BLM);
• U.S. Department of Agriculture Forest Service (USFS);
• U.S. Fish and Wildlife Service (USFWS);
• National Park Service (NPS);
• National Oceanic and Atmospheric Administration (NOAA);
• Department of Homeland Security United States Fire Administration;
• National Association of State Foresters; and
• Department of Defense. 80
These agencies use interagency cooperation concept, as the NIFC does not fall under a single director.
Together, the NIFC not only responds to wildland fires, but other types of emergency responses to
include floods, hurricanes, earthquakes, riots, terrorist attacks (9/11 and Oklahoma City bombing). If a
national fire situation escalates, the National Multi-Agency Coordinating (NMAC) Group is activated,
which comprises of members from each of the agencies. Depending on the national fire situation, the
75 DoDM 3025.01, supra note 74, Sec. 4, para. 4.4.
76 Id.
77 ESF #4, supra note 74. See also DoDM 3025.01, supra note 78, Sec. 7, para. 7.1; NATIONAL INTERAGENCY FIRE
CENTER (NIFC), https://www.nifc.gov/about-us/what-is-nifc [hereinafter NIFC] (last visited May 3, 2021).
78 NFIC supra note 77.
79 Id.
80 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last visited
July 15, 2020).
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NMAC group helps set priorities for critical, and occasionally scarce, equipment, supplies, and
personnel. 81
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
includes the National Multi-Agency Coordination Group (NMAC).82
Subordinate to the NICC are ten “Geographic Area Coordination Centers” (GACCs). Each GACC is
composed of Federal and State wildland fire agencies. See Figure 8-1.83
Figure 8-1. Map of Geographical Area Coordination Centers.
81 See NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/administrative/nmac/index.html (last
visited May 3, 2021).
82 Id.
83 See Welcome to the National Interagency Coordination Center, NATIONAL INTERAGENCY COORDINATION CENTER,
http://www.nifc.gov/nicc/index.htm (last visited May 3, 2021).
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The NICC uses a three-tiered coordination system to respond to wildland fires.84 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 ten
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.85
NIFC can request DoD assistance through several key authorities.86 Requests for DoD assistance is
coordinated with the FEMA Region 10 DCO or the DoD Liaison at NIVC headquarters with the
NICC.87 Only the NIFC Director, Deputy Director, or the NICC Director may sign a request for DoD
assistance.88 All requests for DoD assistance to support wildland firefighting operations are submitted
to the Combatant Commander.89 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 NG
will respond in SAD status.90 However, when State resources are exhausted, neighboring States may
send NG assistance. The Department of Defense may also send Title 10 resources to assist local
firefighting efforts. For example, during the fall of 2020, approximately 1400 NG Service members
from several States mobilized to assist local fire departments battle wildfires burning across
Washington, Oregon, and California. Service members performed many services to include hand
crews to support the Department of Natural Resources, assisted with SAR, aircraft fire retardant drops,
and brush and debris removal. 91 Additionally, at the request of the NIFC, and in support of the USDA
Forest Service, USNORTHCOM’s Joint Forces Land Component Command (JFLCC) provided
approximately 250 Marines and Sailors to respond to the Creek Fire in Central California and 250
Soldiers to support to the Augusta Complex Fire Response in Northern California.92
84 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last visited
May 4, 2021).
85 See id.
86 DoDM 3025.01, supra note 74, Sec. 7, para. 7.2.
87 Id. para. 7.4.
88 Id.
89 DoDM 3025.01, supra note 74, Sec. 7.
90 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.
91 See ASSOCIATION OF THE UNITED STATES ARMY, National Guard Continues Wildfire Operations, available at
https://www.ausa.org/news/national-guard-continues-wildfire-operations (last visited May 4, 2021).
92 See WASHINGTON HEADQUARTERS SERVICES, ARNORTH Concludes Military Wildland Fire Ground Response
Operations in California, https://www.whs.mil/News/News-Display/Article/2389489/arnorth-concludes-military-wildland-
fire-ground-response-operations-in-californ/ (last visited May 4, 2021).
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The Department of Defense can provide Modular Airborne Fire Fighting System (MAFFS) capable C-
130 aircraft, MAFFS-certified aircrews, and appropriate support personnel to conduct aerial dispersal
of fire retardant on a reimbursable basis when requests for this type of assistance comply with the
requirements of the June 2010 interagency agreement.93 Congress established the MAFFS Program in
the early 1970s as a joint effort between U.S. Forest Service and the Department of Defense.94 The
objective of the MAFFS program is to provide emergency capability to supplement the existing
commercial air tanker support on wildfires.95 The NICC can activate the MAFFS when all other
contract air tankers are committed, or are otherwise unable to meet requests for air operations.96
Approval for use of MAFFS equipment must be obtained from the FS Assistant Director for
Operations, NIFC, prior to this activation.97 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 eight MAFFS units for operational use.98 There are currently four airlift wings (AW) that
provide MAFFS-equipped C-130s and certified crews:
•
146th Airlift Wing (AW), Channel Islands, CA (ANG);
•
152nd AW, Reno, NV (ANG);
•
153rd AW, Cheyenne, WY (ANG); and
•
302nd AW, Peterson AFB, Colorado Springs, CO (AF Reserve).99
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. A Memorandum of Understanding-
93 DoDM 3025.01, supra note 74, Sec. 7.3; see also Aviation, U.S. FOREST SERVICE, https://www.fs.usda.gov/managing-
land/fire/aviation (last visited May 3, 2021). 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.
land/fire/planes/maffs, (last visited May 3, 2021).
95 NATIONAL INTERAGENCY COORDINATION CENTER, NATIONAL INTERAGENCY MOBILIZATION GUIDE 65-67 (2020)
96 Id.
97 Id.
98 Modular Airborne Fire Fighting Systems, supra note 98.
99 DoDM 3025.01, supra note 78, para. 7.3(b).
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Collection Agreements governs payments. These agreements are between the military authority and
the Forestry Service.100
B. Environmental Missions101
Military services carry out environmental compliance programs focused internally on DoD facilities.
The Department of Defense may provide assistance during domestic contingency operations involving
a major Federal response to an environmental disaster. It 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 1972.102 The National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), 40 C.F.R. pt. 300, sets forth the responsibilities of all
State and Federal entities with a role in environmental response under these laws.103
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 the Department of Defense.104 Regional
Response Teams (RRTs), the regional counterpart to the NRT, plan and coordinate regional
preparedness and response actions. The Environmental Protection Agency (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 Port105 and their geographic State
counterparts.
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.106 Under the
NRF, the EPA is the coordinator for ESF #10 - Oil and Hazardous Materials Response Annex.107
100 Id.; see also Modular Airborne Fire Fighting Systems, supra note 98.
101 Chapter 2, infra, contains additional information on environmental response and how this mission fits within the
National Response Framework.
102 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9605 - 9675
(2018); The Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 et. seq. (2018).
103 40 C.F.R. pt. 300 (2020). The NCP is required by section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended. See also 40 C.F.R. § 300.2 (2020). E.O.s 12580 and 12777
delegated to the EPA responsibility to revise the NCP, as necessary.
104 Exec. Order No. 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987).
105 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, 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.”
106 It is important to note that the NCP is a separate response regime from the NRF 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 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 NRF (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.
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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. The Department of Defense provides the OSC, who directs and
supervises the response for all hazardous substance releases, except oil spills, that originate from DoD
facilities or vessels.108
For incidents where the Department of Defense does not provide an OSC, it will normally provide
hazardous materials, or oil spill-incident response, expertise and resources from the Navy and/or Army
Corps of Engineers (USACE), both of whom have a representative attending NRT, RRT, and/or Area
Committee meetings. USACE oil spill cleanup capabilities 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 Sea
System Command’s Supervisor of Salvage and Diving (SUPSALV) 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.109
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.110
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 Stafford Act Presidential declaration. Because the President did not issue an
emergency or major disaster declaration during the Deepwater Horizon crisis in 2010, there was
substantial confusion regarding the applicability of the Stafford Act to respond to the crisis.
Despite the magnitude of the emergency, all operations were conducted under the President’s
delegable authorities under the Clean Water Act111 and the NCP. Those authorities specifically
provide mechanisms by which the “Responsible Parties” for the discharge112 directly pay all removal
costs and certain damages arising from the discharge.113 Consequently, a Stafford Act declaration was
not necessary during Deepwater Horizon because the primary responsible party, British Petroleum
107 FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (June 2016)
[hereinafter ESF #10] available at https://www.fema.gov/sites/default/files/2020-07/fema_ESF_10_Oil-Hazardous-
Materials.pdf (last visited May 4, 2021).
108
40 C.F.R. § 300.120.
110 ESF #10, supra note 107.
111
33 U.S.C. §1321(c).
112 Among the Responsible Parties in DEEPWATER HORIZON were BP and Transocean.
113
33 U.S.C. § 2702(a) (2018). 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.
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(BP), directly funded all removal costs. The National Incident Commander,114 Admiral Thad Allen,
U.S. Coast Guard, and the FOSC 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
1.
Support to United States Secret Service
DoDD 3025.13 provides and identifies procedures for reimbursable support for the employment of
DoD capabilities in support of the U.S. Secret Service.115 Requests for assistance are routed through
the White House Military Office or DoD Executive Secretary.116 Note that, under the Presidential
Protection Assistance Act of 1976, DoD support to the Secret Service to protect the President, Vice
President, or other officer immediately next in order of succession is provided without reimbursement.
2.
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.117 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.
Intelligence activities in the United States are governed broadly by E.O. 12333, which prohibits
directed collection on U.S. persons through the use of overhead reconnaissance by intelligence
agencies.118 E.O. 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.119 Such support requires approval of the General Counsel of the
Supporting Agency. Chapter 9, infra, contains specific guidance regarding intelligence oversight
during domestic operations.
114
40 C.F.R. § 300.323(c) (2017) 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.
115 U.S. DEP’T OF DEF., DIR. 3025.13, EMPLOYMENT OF DOD CAPABILITIES IN SUPPORT OF THE U.S. SECRET SERVICE
(USSS), DEPARTMENT OF HOMELAND SECURITY (DHS), (8 Oct. 2010) Incorporating Change 1, May 4, 2017.
116 Id. at Encl. 3.
117 U.S. DEP’T OF DEF., DIR. 5105.60, NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY, para. 6 (29 July 2009).
118 See Exec. Order No. 12,333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401.
119 Id. para. 2.6(c).
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3.
Critical Asset Assurance Program
E.O. 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.120
4.
Continuity of Operations Policies and Planning
E.O. 12656 requires heads of Federal agencies to ensure the continuity of essential functions during a
national security emergency.121 DoDD 3020.26, tasks DoD components to prepare plans for the
continuity of its operations and of government during an emergency.122 Continuity of Operations
(COOP) is defined as, “[a]n internal effort within each DoD Component to ensure that essential
functions continue to be performed during disruption of normal operations.”123 DoD and OSD
Component heads will develop, coordinate, and maintain a DoD Component continuity program in
accordance with this directive to ensure the continuation of Component essential functions across the
spectrum of threats. DoDD 3020.26 outlines the minimum requirements for continuity planning.124
5.
Explosive Ordnance Disposal
DoDD 5160.62 establishes that the explosive ordnance disposal (EOD) program is under the authority
of the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, under the
authority of the Under Secretary of Defense for Policy (USD(P)).125 Army Regulation 75-
14/OPNAVINST 8027.7/AFI 32-3002-O/MCO 8027.1E, Inter-Service Responsibilities for Explosive
Ordnance Disposal, delineates EOD areas of responsibilities for the Army, Navy, Marine Corps, and
Air Force.126 The Army has EOD responsibility on Army installations and on landmass areas not
specifically assigned to the Navy, Marine Corps, or the Air Force. The Navy is responsible for EOD
activities on Navy installations and in assigned operational areas, within the oceans and contiguous
waters, up to the high water mark of sea coasts, inlets, bays, harbors, rivers, canals and enclosed bodies
of water, and for explosive ordnance in the Navy’s possession. 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.127
120 Exec. Order No. 12,656, 3 C.F.R. 585 (1988), sec. 204.
121 Id., sec. 202.
122 U.S. DEP’T OF DEFENSE, DIR. 3020.26, DEPARTMENT OF DEFENSE CONTINUITY POLICY (14 Feb. 2018).
123 Id., at Glossary.
124 Id. para. 2.13.
125 U.S. DEP’T OF DEFENSE, DIR. 5160.62, SINGLE MANAGE RESPONSIBILITY FOR MILITARY EXPLOSIVE ORDNANCE
DISPOSAL TECHNOLOGY AND TRAINING, (3 Jun. 2011) Incorporating ch 2, 24 Sep. 2018). U.S. DEP’T OF ARMY, REG. 75-
15, POLICY FOR EXPLOSIVE ORDNANCE DISPOSAL, para. 3-1 (17 Dec, 2019).
126 Army Regulation 75-14/OPNAVINST 8027.7/AFI 32-3002-O/MCO 8027.1E, Inter-Service Responsibilities for
Explosive Ordnance Disposal [hereinafter AR 75-14]. Id. paras. 1-1, 2-1.
127 AR 75-14, supra note 126.
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D. Public Health Emergencies (PHE)
1. Background
The scientific community and the Federal Government first recognized a need for a national response
to pandemics in 1976 when a novel swine-origin influenza emerged. National, State and local public
health authorities began planning efforts to respond to future pandemics. Several events since then
have stimulated progress in the PHE planning realm.
In 1997, avian influenza A(H5N1) viruses first spread from poultry directly to infect humans in Hong
Kong. The virus had a high mortality rate among affected persons. Concerned about the possibility
that this virus could be widespread, the World Health Organization (WHO) and the Federal
Government, amplified pandemic preparedness planning.128 In the decade that followed, there were
several outbreaks of novel influenza A viruses. These outbreaks increased concern that an influenza
pandemic would place extraordinary demands on public health and health care systems, as well as on
essential community services, across the globe.129
In response to the potential threat, the Homeland Security Council issued the National Strategy for
Pandemic Influenza in November 2005.130 Several years later, on June 11, 2009, the WHO declared
that the H1N1 influenza had become a pandemic.131 Despite failing to manifest as a serious pandemic
threat in the United States, the threat of a H1N1 pandemic in the United States emphasized the need for
the Nation to be prepared to support efforts to respond to pandemic threats.132
The Department of Defense issued the DoD Implementation Plan for Pandemic Influenza in August
2006.133 This “Implementation Plan” included several assumptions that manifested in 2020 due to the
Coronavirus 19 (COVID-19), including civilian medical facilities becoming overwhelmed with
patients, the Department of Defense receiving interagency requests for mortuary affairs, and local
authorities becoming overwhelmed and unable to provide essential services—all requiring DoD
augmentation of civilian response efforts.
The Implementation Plan outlines nineteen planning categories recognized by the Homeland Security
Council’s (HSC) five planning priorities and thirteen priority areas. DoD support in the following
fifteen categories requires legal analysis prior to execution:
• Category 1: Intelligence;
128 See PANDEMIC INFLUENZA PLANNING, UNITED STATES 1978-2008, https://wwwnc.cdc.gov/eid/article/19/6/12-
1478_article (last visited May 5, 2021)
129 Id.
130 HOMELAND SECURITY COUNCIL, NATIONAL STRATEGY FOR PANDEMIC INFLUENZA (2005),
131 The end of this 2009 Pandemic was declared by the World Health Organization (WHO) International Health
Regulations Emergency Committee. See THE 2009 H1N1 PANDEMIC: SUMMARY HIGHLIGHTS, APRIL 2009-APRIL 2010,
https://www.cdc.gov/h1n1flu/cdcresponse.htm (last visited May 5, 2021).
132 Id.
133 ASD, HD, MEMORANDUM FOR SECRETARIES OF MILITARY DEPARTMENTS, DEPARTMENT OF DEFENSE
IMPLEMENTATION PLAN FOR PANDEMIC INFLUENZA (12 Sept. 2006) [hereinafter “Implementation Plan”].
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•
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;
•
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.134
Ultimately, the DoD’s first major effort to support the nation’s response to a pandemic was the result
of the COVID-19 global pandemic rather than pandemic flu. Nevertheless, the guidance laid out in the
National Strategy for Pandemic Influenza and the Department of Defense Implementation Plan for
Pandemic Influenza remains the framework for how the United States and the Department of Defense
responded to the challenges presented by the COVID-19 pandemic.
2.
Authorities
Congress has granted the Federal Government a variety of legal statutory authorities designed to
restrict modes of transportation, control immigration, close borders, and manage plant and animal
infections in response to threats to public health. Federal authorities authorizing Federal support for a
pandemic influenza contingency include the Public Health Service Act and the Stafford Act. For
example, in response to COVID-19, the Secretary of the HHS relied on Section 319 of the Public
134 Id. at 10-11.
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Health Service Act (PHSA)135 to issue a PHE Declaration for the entire United States to aid the
nation’s healthcare community in responding to COVID-19.
Under section 319 of the PHSA, HHS may determine that: (a) a disease or disorder presents a PHE; or
(b) that a PHE, including significant outbreaks of infectious disease or bioterrorist attacks, otherwise
exists.136 The declaration lasts for the duration of the emergency or 90 days, whichever occurs first,
and the Secretary may extend the declaration. Congress must be notified of the declaration within 48
hours, and relevant agencies, including the Department of Homeland Security, Department of Justice,
and Federal Bureau of Investigation, must be kept informed.
The PHE Declaration gives State, tribal, and local health departments more flexibility to request that
HHS authorize them to temporarily reassign State, local, and tribal personnel to respond to a PHE if
their salaries normally are funded in whole or in part by PHSA programs. These personnel may assist
with public health information campaigns and other response activities.
3. Quarantines and Isolation (Q&I)
These authorities also involve the establishment of quarantines and isolation facilities at borders or of
an interstate nature.137 DoD planning guidance directs consideration be given to the potential for the
Department of Defense to provide quarantine support to other U.S. agencies.138 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.”139 The Director of the Center for Disease Control (CDC) administers the
foreign and interstate quarantine authorities and the Division of Global Migration and Quarantine
executes them, as necessary.140 Further, DHS supports the CDC through three of its agencies: U.S.
Customs & Border Protection; U.S. Immigration and Customs Enforcement; and, the United States
Coast Guard.141
a. Primary Responsibilities for Q&I
A quarantine is a restriction of individuals exposed to a disease or agent, but who are not yet ill.
Isolation is restriction of individuals who are infected. State and local authorities have primary
responsibility for establishing and enforcing intrastate Q&I restrictions. Similarly, Federal authorities
have primary responsibility for Q&I restrictions on Federal property and foreign and interstate
situations. The lead individual responsible for a Federal Q&I is the Secretary of HHS.142 Q&I orders
135
42 U.S.C. § 247d.
136 Id.
137 Id. at summary.
138 See Implementation Plan, supra note 134, at 11, Category 13.
139
42 U.S.C. § 264(a).
140 KATHLEEN S. SWENDIMAN & NANCY LEE JONES, The 2009 Influenza Pandemic: Selected Legal Issues, CRS
REP’T TO CONG. (October 29, 2009) [hereinafter “CRS REP’T”].
141 Id. at 7.
142 Communicable diseases over which Secretary, HHS, and the Director, CDC, have authority are listed in Executive
Order (E.O.) 13295, dated 4 April 2003: Cholera, Diphtheria, Infectious Tuberculosis, Plague, Smallpox, Yellow Fever,
Viral Hemorrhagic Fevers, and Severe Acute Respiratory Syndrome (SARS). On 1 April 2005, E.O. 13375 added
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issued by SHHS may be enforced by the “Federal law enforcement community,” which does not
include the DoD.143
b. DoD Support to Enforce Q&I during PHE
DoD assistance to State and local PHEs is a DSCA mission, and therefore subject to the restrictions of
the Posse Comitatus Act (PCA) and DoD policy related to assisting law enforcement agencies.144
Thus, DoD forces may support a Q&I, but the PCA prevents DoD forces from enforcing Q&I
restrictions.145
Congress has resisted several attempts to enact legislation that would authorize either the President or
the Secretary of Defense to employ DoD forces to enforce a quarantine, as an exception to the PCA.
In the absence of specific quarantine enforcement authority from Congress, if circumstances justify it,
the President may rely on the following authorities to order DoD forces to enforce a Q&I: (1) the
President’s inherent authority; or (2) statutory authority under the Insurrection Act, the Weapons of
Mass Destruction Act, or the Emergency Federal Law Enforcement Assistance Act.146
Influenza caused by novel or re-emergent influenza viruses that are causing, or have the potential to cause, a pandemic.
COVID-19 is a “severe acute respiratory syndrome (SARS). Thus, it qualifies as a “communicable disease.”
143 In accordance with 34 U.S.C. § 50102, the community of Federal law enforcement agencies is composed of 110,000
agents and officers in the following organizations: U.S. Coast Guard; Federal Bureau of Investigation; Drug Enforcement
Administration; Criminal Division of the Department of Justice; Internal Revenue Service; U. S. Custom Service;
Immigration and Naturalization Service; U.S. Marshals Service; National Park Service; U.S. Postal Service; U.S. Secret
Service; National Security Division of the Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives;
and other Federal agencies with specific statutory authority to investigate violations of Federal criminal laws.
144 See supra Chapter 4.
145
18 U.S.C. § 1385; Department of Defense Instruction (DoDI) 3025.21, Defense Support of Civilian Law Enforcement
Agencies (27 Feb. 2013, inc. Ch. 1, 8 Feb. 2019). When a request is submitted to DoD to “assist” Federal or State
authorities with its isolation or quarantine of groups of people in order to minimize the spread of a disease, great care
should be taken to understand what is meant by “assist.” The PCA prohibits DoD personnel from enforcing a
quarantine/isolation order, but it does not prohibit providing logistical and administrative support. As long as DoD
“assistance” is limited to logistical and administrative support, there would be no violation of the PCA. DoD support for a
Q&I may include medical screening and monitoring the health of civilians; providing medical treatment, ground and air
transportation of medical supplies and personnel, and technical and advisory assistance; distributing food and consumable
supplies; building temporary shelters and roadways; and disseminating public information.
146 See 10 U.S.C. §§ 251-255; 10 U.S.C. § 282. Currently, there is no Act of Congress that specifically authorizes DoD
personnel to enforce any type of quarantine/isolation restriction as an exception to the PCA. Congress has been reluctant to
pass such legislation. Before relying on the Emergency Federal Law Enforcement Assistance Act (EFLEAA) (34 U.S.C. §
50101 et seq.) to employ DoD forces to enforce a State quarantine order, a Governor must first request the Attorney
General provide Federal law enforcement assistance to his State. Under the EFLEAA, the Attorney General would request
the SECDEF “detail” DoD personnel to a Federal law enforcement agency, which would have the effect of not only
removing them from the restrictions of the PCA, but also from the command and control of the DoD. Upon detail, such
DoD personnel would be deputized as a State law enforcement official with specific instructions to assist State law
enforcement authorities to enforce a State Q&I order. State laws and regulations governing the use of force would apply.
See U.S. Department of Justice, U.S. Attorney General Memorandum for the President, Subject: “Summary of Legal
Authorities for Use in Response to an Outbreak of Pandemic Influenza,” 25 April 2009.
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4. Department of Defense PHE Authorities
DoDI 6200.03 governs how military commanders address PHEs on Federal installations under their
control. It is DoD policy that all persons and property on a military installation be protected against
communicable diseases associated with biological warfare, terrorism, or a PHE. Situations that may
constitute a PHE include the occurrence or imminent threat of an illness or health condition with a high
probability of significant deaths or serious, long-term disabilities; widespread exposure to an infectious
agent that poses a significant risk of future harm; health care needs that exceed available resources;
and/or severe degradation of mission capabilities or normal operations.147
DoDI 6200.03 authorizes DoD installation commanders to declare a DoD PHE, and subsequently
exercise certain emergency health powers, to protect lives, property, and infrastructure and enable DoD
installations and military commands to sustain mission-critical operations and essential services.148
Notification procedures following a PHE Declaration are set forth in Section 3.3 of the instruction.
DoDI 6200.03 also requires DoD installation commanders to designate in writing a Public Health
Emergency Officer (PHEO), who must be a uniformed or DoD civilian clinician with specific
qualifications and training.149 The PHEO, in coordination with their judge advocate, advises the
installation commander on the declaration of a PHE and the implementation of emergency health
powers in accordance with relevant public health laws, regulations, and policies. When the
commander and PHEO determine that a PHE Declaration is necessary, the commander will complete a
written declaration, with the support and guidance of the SJA and in consultation with the PAO, which
outlines the situation and specific actions to be taken. The PHEO is responsible for developing the
HPCON framework150 for a specific health threat, and updating recommended HPCON measures as a
situation evolves based on guidance from DoD and appropriate civilian public health sources.
Although the PHEO develops the HPCON framework, the installation commander, in consultation
with the PHEO and MTF commander, makes the decision to change the HPCON level for his or her
installation.151
The installation commander’s emergency health powers, described in Section 3.2 of DoDI 6200.03,
apply to Service members and other persons on a DoD installation, including DoD civilian personnel,
147 Id. para. 3.1.
148 U.S. DEP’T OF DEF., INSTR. 6200.03, PUBLIC HEALTH EMERGENCY MANAGEMENT (PHEM) WITHIN THE DOD (28 Mar.
2019) [hearinafter DoDI 6200.03].
149 In joint basing and tenant organization situations, the installation commander will designate the PHEO. On
installations where a joint medical center is a tenant, the commander of the joint medical center will make a qualified
individual available to serve as PHEO for the host installation.
150 DoDI 6200.03 establishes the framework for setting DoD HPCON Levels (Fig. 8). HPCON Levels provide a
framework to inform decisions by installation commanders charged with implementing appropriate force health protection
(FHP) measures for the installation population in response to specific health threats The HPCON framework includes
categories (0, A, B, C, D), category descriptions, and specific FHP measures associated with each HPCON level, based on
the scope and severity of the threat in question. HPCON levels should be synchronized with the installation FPCON level,
and can include installation access, appropriate FHP measures, and limitation of non-critical activities. DoDI 6200.03,
Figure 8 provides a conceptual framework for HPCON levels, and examples of FHP measures associated with each level.
To supplement this general guidance, OUSD(P&R) issued a memorandum (“FHP Supplement 2”) on 25 February 2020,
which provides COVID-19 specific guidance for HPCON levels and associated FHP measures. This document is available
151 DoDI 6200.03, supra note 168, para 4.1.
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contractors, beneficiaries, and any other person within the scope of the installation commander’s
authority. Examples of the commander’s powers include:
•
Directing Service members to submit to medical examinations or testing necessary for
diagnosis or treatment;
•
Persons other than Service members may be required as a condition of exemption or release
from restrictions of movement to submit to a physical examination or testing, as necessary, to
diagnose and prevent the transmission of a communicable disease and enhance public health
and safety;
•
Using facilities, materials, and services for purposes of communications, transportation,
occupancy (e.g., emergency shelters or quarantine/isolation), fuel, food, clothing, health care,
and other purposes, and controlling or restricting the distribution of commodities as reasonable
and necessary for emergency response;
•
Taking measures as reasonable and necessary, pursuant to applicable law, to obtain and control
the use and distribution of needed health care supplies. Closing, directing the evacuation of, or
decontaminating any asset or facility that endangers public health; decontaminating or
destroying any material that endangers public health; including quarantine and isolation of
animals on the installation;
•
Controlling evacuation routes on, and ingress and egress to and from, the affected DoD
installation or military command;
•
Restricting movement to prevent the introduction, transmission, and spread of communicable
diseases or any other hazardous substances that pose a threat to public health and safety; and
•
Detaining any person who refuses to obey or otherwise violates an order during a declared
PHE. Violators of procedures, protocols, provisions, or orders issued in conjunction with a
PHE may be charged under the UCMJ or under 42 U.S.C. § 271. Those not subject to military
law may be detained until civil authorities can respond.
In areas outside the United States, PHE declarations may be limited to U.S. personnel and subject to
the requirements of applicable treaties, agreements, and other arrangements with foreign governments
and allied forces, particularly in the case of non-U.S. installations and field activities.152
5.
Executing the Federal Mission During a PHE
The question often arises whether State-level restrictions apply to military members of Federal
employees while executing their Federal missions. In general, these State-level orders do not prevent
Federal employees from carrying out their Federal missions. For example, in response to the COVID-
19 pandemic, the governors of several States issued public health quarantine orders restricting the
travel and movement of personnel within their jurisdictions. The U.S. Constitution’s Supremacy
152 Id. para. 3.5.
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Clause prohibits State quarantine laws and related travel restrictions from interfering with Federal
agency missions and the acts, duties, travel, and movement of federal personnel engaged in official
business.153 In accordance with the Supremacy Clause, both the U.S. Attorney General and the
Secretary of Defense affirmed that despite State quarantine restrictions, Federal employees must be
allowed to travel and conduct Federal business in response to the COVID-19 pandemic.154
In conclusion, State quarantine restrictions on movement and similar “stay-at-home” orders do not
prevent DoD and Federal employees from executing their Federal missions. They may continue
mission-essential activities without fear of violating state quarantine, travel, and movement restrictions
or similar “stay at home” orders.
153 See U.S. Const. Art VI, Cl. 2 (“This Constitution, and the laws of the United States which shall be made in pursuance
thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of
the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding.”).
154 On 20 March 2020, the U.S. Attorney General confirmed that State and local coronavirus quarantine restrictions do not
hinder Federal employees in the conduct of official business and ordered the U.S. Attorneys to “ensure that local law
enforcement officials enforcing travel restrictions are aware of the fact that Federal employees must be allowed to travel
and commute to perform law enforcement and other functions and should not be prevented from doing so, even when travel
restrictions are in place.” U.S. Department of Justice, U.S. Attorney General Memo, Subject: “Memorandum for All United
States Attorneys,” 20 March 2020; see also Secretary of Defense Memorandum, “Travel Restrictions for DoD Components
in Response to Corona virus Disease 2019” March 11 , 2020; Office of the Under Secretary of Defense for Personnel and
Readiness Memorandum, "Force Health Protection Guidance (Supplement 2) “Department of Defense Guidance for
Military Installation Commander' Risk Based Measured Responses to the Novel Coronavirus Outbreak” February 25, 2020;
see also DoDI 6200.03 supra note 168, para. 1.2.e (noting military commanders will act in accordance with the applicable
provisions of public health emergency declarations made by U.S. public health officials while maintaining operational
effectiveness).
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CHAPTER 9
INTELLIGENCE AND INFORMATION ACQUISITION AND
HANDLING DURING DOMESTIC 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.
•
The Privacy Act (as amended), 5 U.S.C. §552a
•
Executive Order (E.O.) 12333, U.S. Intelligence Activities, December 4, 1981, as amended by E.O.
13284 (2003), E.O. 13355 (2004) and E.O. 13470 (2008).
•
E.O. 13526, Classified National Security Information, December 23, 2009.
•
DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components That Affect
U.S. Persons, December 1982, Incorporating Change 2, Effective April 26, 2017.
•
Department of Defense Directive (DoDD) 3025.18, Defense Support of Civil Authorities (DSCA),
December 29, 2010, Incorporating Change 2, March 19, 2018.
•
DoDD 5143.01, Undersecretary of Defense for Intelligence (USD(I)), October 24, 2014,
Incorporating Change 2, April 6, 2020.
•
DoDD 5148.13, Intelligence Oversight, April 26, 2017.
•
DoDD 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated
with the Department of Defense, January 7, 1980.
•
DoDD 5240.01, DoD Intelligence Activities, August 27, 2007, Incorporating Change 2, March 22,
2019.
•
Department of Defense Instruction (DoDI) 3025.21, Defense Support of Civilian Law Enforcement
Agencies, February 27, 2013.
•
DoDI 3115.15, Geospatial Intelligence (GEOINT), December 6, 2011.
•
DoDI 5400.11, DoD Privacy and Civil Liberties Programs, January 29, 2019.
•
DoDM 5240.01, Procedures Governing the Conduct of DOD Intelligence Activities, August 8,
2016.
•
Secretary of Defense Policy Memorandum, Guidance for the Domestic Use of Unmanned Aircraft
Systems in U.S. National Airspace, 18 August 2018.
•
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 Publications Intelligence series 2-0.
•
AFPD 14-4 - Management of the Air Force Intelligence Surveillance, Reconnaissance and Cyber
Effects Operations Enterprise, July 11, 2019.
•
AFI 14-404 - Intelligence Oversight, September 3, 2019.
•
AFI 14 series on Intelligence.
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• AR 380-13 - Acquisition and Storage of Information Concerning Non-Affiliated Persons and
Organizations, September 30, 1974
• AR 381-10 - U.S. Army Intelligence Activities, May 3, 2007.
• AR 381-20 - Army Counterintelligence Program, May 25, 2010 (classified).
• AR 381-xx series on Intelligence.
• SECNAVINST 3820.3F - Intelligence Oversight Within the Department of the Navy, January 2,
2020.
• SECNAVINST 3850.2E - Department of the Navy Counterintelligence, January 3, 2017.
• MCWP 2-10 - Intelligence Operations, May 2, 2016.
• MCRP 2-10A.2 - Counterintelligence and Human Intelligence, November 21, 2019.
• MCWP 2-x series on Intelligence.
• NG Joint Force Headquarters State J2 Incident Awareness and Assessment Handbook, February
27, 2009.1
• Chief NG Bureau Instruction (CNGBI) 2000.01C, NG Intelligence Activities, August 14, 2018.
• CNGBI 7500.00, Domestic Use of NG Unmanned Aircraft Systems, 13 October 2016.
• Chief NG Bureau Manual (CNGBM) 2000.01A, NG Intelligence Activities, April 11, 2019.
• U.S. NORTHERN COMMAND Instruction 14-3, Domestic Imagery, June 22, 2020.
• U.S. NORTHERN COMMAND Instruction 14-103, Intelligence Oversight, June 14, 2017.
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.
Although domestic military missions are no different than overseas missions in that a key requirement
for mission success is maintaining a commander’s situational awareness, the operating environments
are completely different. In a deployed or overseas location, 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, the Department of Defense has the lead for U.S. personnel, and is in charge of
most operational activities. The intelligence assets available to the commander normally provide him
or her with the common operating picture that will establish situational awareness.
On the other hand, the domestic operational domain is complicated by Federal statutory and
constitutional restrictions and protections, which effectively preclude, or in a best-case scenario, limit
use of intelligence assets, capabilities and platforms, and even the use of intelligence personnel. In the
absence of a homeland defense scenario or otherwise directed from the President, the Department of
Defense will not be the lead Federal agency conducting operations.2 Further, in the absence of a
homeland defense initiation order, there is no “battlespace” in the homeland; to the contrary, the
domain is called the “operational environment.” Due to subtle distinctions such as these, the conduct
of domestic military operations can be extremely challenging, and in some cases, fraught with legal or
political peril.
1 The National Guard Incident Awareness and Assessment Handbook was undergoing rewrite as of the date of publication
of this handbook.
2 See U.S. DEP’T. OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 13.d (29 Dec. 2010)
(C2,19 Mar. 2018) [hereinafter DoDD 3025.18].
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In this regard, the judge advocate is critical to the conduct of domestic operations utilizing intelligence
assets and components. Judge advocates must recognize that collecting domestic intelligence, may
include collecting information on U.S. persons,3 or persons not affiliated with the Department of
Defense.4 Therefore, DoD oversight program rules regarding information and intelligence collection
in the United States are quite strict and more than a little complex. This is because these rules are
designed to strike a balance between the rights of U.S. persons and the Government’s legitimate need
for essential information. In so doing, protection of an individual’s constitutional rights and privacy
remains paramount while enabling collection of authorized information by the least intrusive means,
and by restricting dissemination of this information for lawful government purposes only.
As a result, balancing the commander’s need for information against this domestic framework of
protections can 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, seek out additional
expertise to assist you in this complicated area.
Before discussing the details of collecting information or intelligence on U.S. persons and non-DoD-
affiliated persons, it is important to understand first that there are two distinct DoD activities which are
involved in the collection of information in the homeland:
• The first endeavor consists of collecting data that will be processed into intelligence.5 These
are intelligence activities, which are comprised of the collection, production and dissemination
of foreign intelligence and counterintelligence in accordance with E.O. 12333 and E.O. 13470,
as implemented by DoDD 5240.01, (policy documents governing collection, retention and
dissemination by DoD intelligence components of information that identifies U.S. persons).
This activity is accomplished by members of the DoD Intelligence Community (DoDIC), as
defined in E.O. 12333, and amended by E.O. 13470. In simple terms these are the Title 10
intelligence specialists—J2s, G2s, A2s, etc. This activity is governed by one set of rules
referred to as Intelligence Oversight (IO). (Title 32 NG intelligence specialists—though not
technically members of the intelligence community—follow NG policies concerning
intelligence oversight.6)
• The second activity deals with the acquisition of information necessary for the conduct of
domestic military missions, for other than intelligence purposes. Those persons involved in
3 U.S. DEP’T OF DEF., MANUAL 5240.01, PROCEDURES GOVERNING THE CONDUCT OF DOD INTELLIGENCE ACTIVITIES 54 (8
Aug. 2016) [hereinafter DoDM 5240.01].
4 See U.S. DEP’T OF DEF., DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS NOT
AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980) [hereinafter DoDD 5200.27]; see also U.S. DEP’T OF ARMY,
REG. 380-13, ACQUISITION AND STORAGE OF INFORMATION CONCERNING NON-AFFILIATED PERSONS AND ORGANIZATIONS
(30 Sept. 1974) [hereinafter AR 380-13].
5 Raw data by itself has relatively limited utility. However, when data is collected from a sensor and processed into an
intelligible form, it becomes information and gains greater utility. In other words, raw data is collected from the
operational environment. Raw data that is processed and exploited turns into information. Information that is analyzed and
undergoes production into a product turns into intelligence.5 See U.S. DEP’T OF ARMY, REG. 381-10, ARMY INTELLIGENCE
ACTIVITIES (3 May 2007) [hereinafter AR 381-10].
6 See CHIEF, NAT’L GUARD BUREAU, INST. 2000.01C, NATIONAL GUARD INTELLIGENCE ACTIVITIES (14 Aug. 2018)
[hereinafter CNGBI 2000.01C].
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this activity consist of everyone else in the Department of Defense, including various force
protection, investigative units and police forces, who are not part of the DoDIC. Equally
important however, is that with a growing increase in other-than-traditional military missions
such as the provision of humanitarian aid, disaster assistance, and disaster consequence
management within the United States, the demand for information has significantly increased
to ensure effective and timely mission accomplishment. This activity is subject to a different
set of rules known as “Sensitive Information” (SI) program rules, which are governed by
DoDD 5200.27, and AR 380-13.
Commanders must direct their need for information or intelligence to the right component—the
component with the mission and authority to achieve the commander’s intent. To do so effectively, the
commander must not only determine for what purpose the information or intelligence will be used, but
also the context under which it will be used.7 Determining the nature of the data and the right unit to
gather it often requires judge advocate input. Therefore, you must ensure that two questions are asked
and answered when considering collection in the homeland: 1) Who is collecting the information or
data? (intelligence assets or non-intelligence assets); and 2) What is the purpose of the information or
data needed? (for intelligence or non-intelligence purposes). The analysis will then lead to the
oversight rules that govern the collection effort.
Section B of this chapter examines the proper use of DoD intelligence components during domestic
support operations. Section C examines collection of information on non-DoD-affiliated persons
(NDAPs) by DoD components that are not part of the DoDIC, and are not involved in intelligence
operations. Section D discusses Title 10 Domestic Imagery (DI) activities and restrictions. Section E
briefly addresses the policies and restrictions applicable to the NG when collecting information on U.S.
persons during domestic operations.
B. The Role of DoD Intelligence Components in Domestic Support Operations
DoD intelligence components8 are 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
7 For example, a task force commander charged with supporting civil authorities during a natural disaster may identify the
need for domestic imagery of the ingress and egress routes to determine if the roadways are congested with the civilian
population fleeing the disaster zone, or seeking medical aid, food, and water. While intelligence surveillance and
reconnaissance (ISR) platforms and packages may afford the most effective means of acquiring situational awareness,
military commanders are prohibited from using intelligence assets for such purposes absent SecDef authorization. In a
Defense Support of Civil Authorities (DSCA) event, a limited set of ISR platforms and capabilities have been approved for
use. ISR conducted for DSCA purposes is called Incident Awareness and Assessment (IAA). When IAA is conducted, it
must still be employed consistent with Intelligence Oversight program rules, and still requires authorization by the
Commander, U.S. Northern Command (USNORTHCOM) or the Secretary of Defense. The same products may, however,
be available commercially or from other Federal agencies. In this example, the commander was not seeking “intelligence.”
The commander was seeking “information” to enhance situational awareness and establish a common operating picture
(COP). The value of this distinction is discussed further in this chapter.
8 DODM 5240.01, supra note 3, at 46-47 (defining the DoD intelligence components are as the NSA/CSS,
the DIA, the NGA, the NRO, the intelligence and CI elements of the Army, the Navy, the Air Force, and the Marine Corps,
the Intelligence and Counterintelligence elements of the Coast Guard when operating within the Department of the Navy,
and the other offices within the DoD for the collection of specialized national foreign intelligence through reconnaissance
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the intelligence community and accountability for intelligence activities. Executive Order (E.O.)
12333, United States Intelligence Activities, lays out the goals and direction of the national intelligence
effort, and describes the roles and responsibilities of the different elements of the U.S. intelligence
community.9 E.O. 12333 was further amended by E.O. 13470 and refined to provide a more uniform
approach to the conduct of U.S. government intelligence activities. This was achieved by forming of
the Office of the Director of National Intelligence (ODNI), and addressing each facet of intelligence
responsibilities respective members of the Intelligence Community (IC) now hold.10 Pursuant to
paragraph 1.7.(f)(1), the DoDIC is limited to conducting “defense and defense-related” foreign
intelligence and counterintelligence activities, thereby necessitating a DoD nexus for all foreign
intelligence (FI) and counterintelligence (CI) activities conducted.11 This limitation is further
buttressed by paragraph 4 of DoDD 5240.01, Procedures Governing the Conduct of DoD Intelligence
Activities.
Presently, DoDD 5240.01,12 DoD 5240.1-R,13 DoDM 5240.01,14 and DoDD 5148.1315 implement the
guidance contained in E.O. 12333, as amended, pertaining to the Department of Defense (see Diagram
1). Further, each Service also has its own regulations and policy guidance. These authorities establish
the operational parameters and restrictions under which DoD intelligence components may conduct
intelligence activities.
“Intelligence activities” are defined in DoDD 5240.01 as, “the collection,
analysis, production, and dissemination of foreign intelligence and counterintelligence pursuant to
[DoDD 5143.01 and E.O. 12333].”16 Therefore DoD intelligence activities are limited to the conduct
of defense-related foreign intelligence (FI)17 and counterintelligence (CI)18 activities. FI and CI are the
only authorized intelligence mission sets for the Department of Defense.
programs). See also, U.S. DEP’T OF DEF., DIR. 5148.13, INTELLIGENCE OVERSIGHT (26 Apr. 2017) [hereinafter DoDD
5148.13].
9 See, Exec. Order No. 12333, 22 Fed. Reg. 59941 (Dec. 4, 1981) (as amended by Exec. Order No. 13470, July 30, 2008)
[hereinafter E.O. 12333].
10 Exec. Order No. 13470 sec. 2 pt. 1. (July 30, 2008) [hereinafter EO 13470].
11 E.O. 12333, supra note 9, at para. 1.7.f.1.
12 U.S. DEP’T OF DEF., DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) (incorporating change 2, March 22,
2019) [hereinafter DoDD 5240.01].
13 U.S. DEP’T OF DEF., 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS THAT
AFFECT U.S. PERSONS (26 Apr. 2017) [hereinafter DoD 5240.1-R].
14 DoDM 5240.01, supra note 3.
15 DoDD 5148.13, supra note 8.
16 DoDM 5240.01, supra note 3, at 49 (defining intelligence activities as “[a]ll activities that the DoD Components conduct
pursuant to E.O. 12333.” This definition reflects a more liberal approach to the conduct of intelligence activities than in the
past.).
17 Id. at 48 (defining foreign intelligence as, “[i]nformation relating to the capabilities, intentions, or activities of foreign
governments or elements thereof, foreign organizations, foreign persons, or international terrorists.”).
18 Id. at 45 (defining counterintelligence (CI) is as, “[i]nformation gathered and activities conducted to identify, deceive,
exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on
behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities.”).
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Diagram 1
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Judge advocates may find use of the “Legality Formula” instructive when assisting their clients,
especially those in leadership roles, by helping them to shift their respective paradigms from outside
the continental United States (OCONUS) to Domestic Operations (DOMOPS).
Legal Intelligence Activity = Lawful DoD Mission + General/Technical Intelligence Authority
to perform that mission.
Simply, to conduct a legal intelligence activity in the homeland, the activity must be rooted in a lawful
DoD mission, and supported by authority granting intelligence policies.
As stated in E.O. 12333 (as amended by E.O. 13470), unless otherwise directed by the Secretary of
Defense, the only authorized DoD intelligence activities (lawful missions) are defense-related foreign
intelligence (FI) and counterintelligence (CI) activities.19 Further, all lawfully-assigned DoDIC
missions must be based on the existence of a DoD nexus, a relationship between the intelligence or
information sought and the performance of national defense responsibilities assigned to the DoD.
General authorities to conduct intelligence activities are rooted in Articles I and II of the U.S.
Constitution, Titles 5, 10, and 50 of the U.S. Code, and Presidential EOs assigned to the SecDef as
further delegated to service secretaries, military departments, and combatant commanders (CCDRs).
Finally, Technical Intelligence Authority (TIA) is based on authority bestowed by the office or agency
involved, such as the Secretary of Defense, relevant Service Secretary, or CCDR. TIA is also derived
from the legal authority to conduct missions assigned and managed by the agency or office that is
responsible for conducting or overseeing the particular mission(s). For example, The National
Security Agency (NSA)/Central Security Service (CSS) has primary statutory TIA for the conduct of
signals intelligence (SIGINT).
Overall, these intelligence mission sets address 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 upon
coordination with the Federal Bureau of Investigation (FBI), which has primary responsibility for
intelligence and counterintelligence collection within the United States.20
In short, whenever DoD Intelligence Components are conducting defense-related FI or CI, Intelligence
Oversight (IO) rules apply.21 These rules govern the collection, retention, and dissemination of
information concerning U.S. persons.22 A U.S. person includes any unincorporated associations and
U.S. corporations (e.g., “Joe’s Diner”).23 Special emphasis is given to the protection of the
19 E.O. 12333, supra note 9, at paras. 1.7.f, 1.10.
20 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).
21 DoDD 5240.01, supra note 12, at para 2; DoDM 5240.01, supra note 3, at para. 1.2(a).
22 Judge advocates should consider reading these authorities before advising a commander on the collection of information
in a domestic support operation. Further, DoDD 5240.01 and DoD 5240.1-R should be consulted when advising members
of the intelligence community or if a questionable intelligence activity is identified.
23
“United States person” is a term of art for the Intelligence Oversight program which consists of 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 9,
para. 3.4(i). A person or organization in the United States is presumed to be a U.S. person, unless specific information to
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constitutional rights and privacy of U.S. persons, thus the IO rules generally prohibit the acquisition of
information concerning the domestic activities24 of any U.S. person. Questionable intelligence
activities (QIA) that run afoul of these and other restrictions must be reported in accordance with
DoDD 5148.13.25
For many DoD personnel who have been deployed OCONUS, these CONUS restrictions may be
somewhat challenging considering the broad range of intelligence and information support available
through DoDIC channels overseas. Upon returning to assignments and operations within the United
States, many may be unaware of the restrictions placed upon DoD personnel while operating within the
homeland; this is especially true when considering collection activities of any sort. While oversight
rules are the same whether used OCONUS or CONUS, impacts and effects, and more importantly,
applications, are quite different between the two locations. This is because intelligence, information,
and data collection conducted overseas are foreign by nature and definition.
On the other hand, all such activities conducted within the homeland and its territories, are, by
definition, “domestic.” Therefore, unless otherwise directed by the Secretary of Defense, such
activities conducted within the homeland do not normally fall within the authorized foreign
intelligence and counterintelligence mission sets. Further, since the purpose of DoD intelligence and
information collection oversight rules is to protect the constitutional and privacy rights of U.S. and
non-DoD-affiliated persons, the likelihood of inadvertently (or intentionally) collecting information on
such persons in violation of these rules within the U.S. is significantly higher than would be the case
overseas.26 This likelihood is due to the relatively few non-DoD-affiliated U.S. persons encountered
overseas. For these reasons, application and enforcement of these rules domestically is much more
stringent.
The key regulatory authority for the IO program is DoDM 5240.01. This manual defines ten 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.27 Procedure 1 establishes the scope and administrative provisions for
implementing DoDM 5240.01. 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. Additionally, DoD 5240.1-R
contains procedures 11 through 13, which govern other aspects of DoD intelligence activities including
classified contracting, assistance to law enforcement authorities, and prohibitions on experimentation
the contrary is obtained. Conversely, a person or organization outside the United States, or whose location is not known to
be in the United States, is presumed to be a non-U.S. person, unless specific information to the contrary is obtained. DoDM
5240.01, supra note 3, at 54.
24 The term “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. DoDM 5240.01, supra note 3, at 48.
25 DoDD 5148.13, supra note 8, at para. 4.1(a) (stating that “DoD personnel must identify any QIA or S/HSM to their
chain of command or supervision immediately. If it is not practical to report a QIA or S/HSM to the chain of command or
supervision, reports may be made to the DoD Component legal counsel or IG; the GC DoD; the DoD SIOO; the Joint Staff
IG or intelligence oversight officer; the Legal Counsel to the CJCS; the IG DoD; or the Intelligence Community IG.”).
26 E.O. 13470, supra note 10, at pt. 1 para. 1.1(b); DoDD 5240.01, supra note 12, at para. 4.1; DoDM 5240.01, supra note
3, at para. 1.2.b.2.
27 DoDM 5240.01, supra note 3, at sec. 3.2.
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on human subjects for intelligence purposes. Finally, DoDD 5148.13 contains Procedures 14 and 15
governing employee conduct, questionable intelligence activities (QIAs), and significant or highly
sensitive matters (S/HSMs), respectively. See Diagram 2 for an overview of these procedures.
In addition to the procedures themselves, the Defense Intelligence Agency (DIA) 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.28 In the absence of any foreign nexus, DoDICs generally perform non-intelligence
activities. A non-intelligence activity would be any activity that is conducted by or with a DoDIC
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. [see Section D below for a
more complete discussion of Domestic Imagery (DI) and IAA missions.]
When Title 10 DoDIC personnel, assets or capabilities are needed for a non-intelligence activity,
specific authorization from the Secretary of Defense is required for both the mission and use of the
DoDIC capability or asset.29 Depending on the mission undertaken, and whether intelligence
platforms, packages personnel or capabilities are used, IO rules may or may not apply to DoD non-
intelligence activities. For this reason, requests for SecDef authorization must be sure to include
whether intelligence capabilities are sought and what additional restrictions shall be placed upon the
assets or capabilities used in the domestic support operation.
C.
Information Handling and the Role of DoD Non-Intelligence Components
DoD organizations that are not part of the DoDIC must also comply with strict procedural restrictions.
These restrictions relate to the acquisition of information concerning the activities of persons and
organizations not affiliated with the Department of Defense. This type of information is needed every
day for force protection missions, to include force protection in domestic support operations. Within
the Department of Defense, 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 units, other than the intelligence components, may only acquire information concerning the
activities of persons and organizations not affiliated with the Department of Defense only in the
limited circumstances authorized by DoD 5200.27, Acquisition of Information Concerning Persons
28 The DIA Handbook was published well before the new DoDM 5240.01 was written, and is therefore based solely on
DoD 5240.1-R. Although it is an outstanding resource, it is somewhat dated. Judge advocates are therefore cautioned to be
aware of the changes that occurred moving from the latter Regulation to the new Manual. However, the content of the
explanatory information remains quite useful. See also Kevin W. Kapitan, An Introduction to Intelligence Oversight and
Sensitive Information: The Department of Defense Rules for Protecting Americans’ Information and Privacy, THE ARMY
LAW. 3, 3-42 (Apr. 2013) (providing more in-depth explanations and practice tips based on pre-DoDM 5240.01 policies).
29 Deputy Secretary of Defense Policy Memorandum 15-002 should be consulted before use of any Unmanned Aircraft
Systems (UASs).
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and Organizations Not Affiliated with the Department of Defense.30 Unlike the Intelligence Oversight
Program, programs affiliated with DoDD 5200.27 are premised on the concept of collection by
exception. By policy, DoD may only collect, report, process, or store information on individuals or
organizations affiliated with the Department of Defense. To collect information on others, the
information must be essential to the accomplishment of a specific DoD mission, and a clear DoD
nexus must exist which permits the use of an exception. Non-DoD-affiliated person information
(NDAPI) is information (including data and imagery/likenesses) on identified or identifiable NDAPs,
that is acquired for non-intelligence purposes by DoD elements or organizations not part of the DoDIC
nor performing intelligence tasks.31
While the term, “collection” is not defined by DoDD 5200.27, it is defined by AR 380-13 as “[t]he
acquisition of information in any manner, including, direct observation, liaison or solicitation from
official, unofficial or public services.”32 Also, the term “information” is not defined by DoDD 5200.27
nor AR 380-13. However, current custom and practice in this regard at U.S. Northern Command
(USNORTHCOM), Headquarters, Department of the Army (HQDA), and OSD is consistent with IO
Program rules. IO Program rules protect any information, data, personally identifying information
(PII), or imagery33 of the individual or individuals that identifies or could reasonably lead to the
identification of an NDAP. In this regard, the Privacy Act and related analogous legal parameters
provide the requisite standard.
So, what exactly is an NDAP? An NDAP is anyone who has no affiliation whatsoever with the DoD.
Thus, the NDAP classification is not exclusive to U.S. citizens in the homeland. Basically, an NDAP
has no relationship, professional, personal, or otherwise, with the DoD or the Armed Forces.
The basic DoDD 5200.27 analysis may be useful to judge advocates unfamiliar with this area of law
and policy. The questions to be asked:
• Has a collection gathering or acquisition of information occurred, and by whom?
• Who/what is the target of collection? (DoD or NDAP?)
• Is the collection authorized or sanctioned?
• Is the NDAP’s information essential to the accomplishment of specific DoD missions?
• Is there a DoD nexus, or a relationship between the info, the NDAP collected on, and a
reasonable and articulable threat or impact upon the DoD, its missions, personnel or resources?
30 U.S. DEP’T. OF DEF., DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS NOT
AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980) [hereinafter DoDD 5200.27].
31 Id. at para. 3.1.
32 AR 380-13, supra note 4, at 7.
33 As of the publication of this Handbook, debate continues at the Service and OSD levels as to whether unidentified
imagery or likenesses of persons constitutes a form of PII. DoDD 5400.11, The DoD Privacy Program, defines PII as
“[i]nformation used to distinguish or trace an individual’s identity, such as name, social security number, date and place of
birth, mother’s maiden name, biometric records, home phone numbers, other demographic, personnel, medical, and
financial information. PII includes any information that is linked or linkable to a specified individual, alone, or when
combined with other personal or identifying information. For purposes of this issuance, the term PII also includes personal
information and information in identifiable form.”
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• Is there an applicable exception permitting collection?
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.34
As a result, there are only three possible mission exceptions that will permit the acquisition of NDAP
information.35 These mission exceptions consist of the acquisition of information essential to
accomplish the following DoD missions: 1) protection of DoD functions and property; 2) personnel
security; and 3) civil disturbance operations (CDOs). If the collection on an identified or identifiable
NDAP does not fall within one of these exceptions, it is not authorized under DoDD 5200.27 nor AR
380-13.
The most commonly used exception in DoDD 5200.27 falls under circumstances protecting DoD
functions and property. Initially this seems like a broad exception that would allow for the collection
of information on U.S. persons in multiple situations. However, DoDD 5200.27 further defines an
activity that threatens defense personnel, activities, and installations as “direct threats” to DoD
personnel in connection with their official duties.36 Understanding the difference is crucial. For
instance, 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. Yet, further analysis is required to determine whether the
group poses a direct threat to the installation. If the group is quietly and calmly protesting, it is
unlikely that they pose a direct threat. Therefore, information should not be collected on them by
name.37
Judge advocates must also be aware of a series of restrictions that are imposed by both DoDD 5200.27
and AR 380-13, which are otherwise absent in intelligence oversight programs. Specifically, there are
no exceptions available for publicly available information, which permit collection or acquisition of
information on NDAPs because the information is readily available from public sources. Similarly,
there is no stated exception for information provided by NDAP consent. Further, unlike the new IO
rules,38 there is no DSCA exception or exclusion. However, the Department of Defense may acquire
information on NDAPs if that information consists of contact lists of Federal, State, and local officials
with responsibilities related to the control of civil disturbances; e.g., public officials’ emergency
contact info or business cards,39 and information on geospatial physical data relating to vital public or
34 See also AR 380-13, supra note 4 (implementing the original and early versions of DoDD 5200.27).
35 DoDD 5200.27, supra note 30, at sec. 4.
36 The challenge of understanding exactly what constitutes a “threat” versus a “direct threat” is further complicated by not
only the lack of a definition of the term “direct threat” in DoDD 5200.27, but also the numerous definitions of the term
“threat” found in various DoD polices. See, e.g, U.S. DEP’T. OF DEF., INST. 5505.17, COLLECTION, MAINTENANCE, USE,
AND DISSEMINATION OF PERSONALLY IDENTIFIABLE INFORMATION AND LAW ENFORCEMENT INFORMATION BY DOD LAW
ENFORCEMENT ACTIVITIES 6 (19 Dec. 2012) (C1, 29 Nov. 2016) [hereinafter DoDI 5505.17] and U.S. DEP’T. OF DEF.,
INST. 5525.18, LAW ENFORCEMENT CRIMINAL INTELLIGENCE IN DOD (18 Oct. 2013) (C2, 9 Aug. 2019) [hereinafter DoDI
5525.18].
37 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 (the name of the group) is protesting outside the front gate,” one could report all the necessary
information without naming the group and therefore collecting on its activities. For example, one could report that “a
group not in support of the military is protesting outside the front gate” without losing relevant information and without
violating the DoD policy.
38 See DoDM 5240.01, supra note 3, at para. 3.1.a.3.b.
39 DoDD 5200.27, supra note 30, at para. 6.2.1.
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private installations, facilities, highways, and utilities necessary to carry out an assigned DoD mission
where geographical reference points or staging areas are necessary.40
Judge advocates should also be mindful of historical problem areas that have led to specific
prohibitions under DoDD 5200.27.41 The directive specifically prohibits acquisition of information
about a person or organization solely because they protest government policy, or support racial
interests or civil rights.42 The directive also prohibits covert or deceptive surveillance of civilian
organizations without specific authorization from the Service Secretary or the Secretary’s designee.43
Finally, the directive does not permit assignment of Army military or civilian personnel to attend an
organization’s public or private meetings, demonstrations, or other similar activities held off-post,
without approval by the Service Secretary or the Secretary’s designee.44
Similar caution should be exercised when considering such activities in the context of the cyber
domain. Both DoDD 5200.27 and AR 380-13 impose prohibitions on the maintenance of
“computerized data banks,” similarly indicating that none “shall be maintained relating to individuals
or organizations not affiliated with the Department of Defense, unless authorized
”45 In like
fashion, infiltration or surveillance of chat room groups, or other forms of social, by failing to disclose
one’s DoD affiliation, or other similar acts, cannot occur without proper authorization.46
D. Title 10 Domestic Imagery Activities and Restrictions
1. Domestic Operations
Whenever the DoDIC is providing support in the homeland, special care must be taken to comply with
IO program rules and the Posse Comitatus Act (PCA). Unless otherwise directed by the President or
SecDef, anytime an aspect of the DoDIC is used in an information gathering capacity, even for non-
intelligence purposes, IO rules apply whether the usage is for DSCA or homeland defense (HD).47
These rules are complemented by Domestic Imagery (DI) program rules, which are quite similar since
DI rules are derived from IO program rules. Understanding the interplay of these procedures and
restrictions is critical when intelligence assets are used for non-intelligence purposes.
Whether DoDIC Components (DoDICC) 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
40 Id. at para. 6.
41 Id. at para. 5.
42 Id. at para. 5.1.
43 Id. at paras. 5.3, 5.4., and 5.5.
44 Id. at para. 5.6.
45 DoDD 5200.27, supra note 30, at para. 5.7; AR 380-13, supra note 4, at para. 9.g.
46 Activities like failure to disclose one’s DoD affiliation in an attempt to infiltrate a chat group is under scrutiny at the
HQDA and OSD levels in an effort to develop effective policy to ensure that NDAP constitutional and privacy rights are
adequately protected, while at the same time fulfilling DoD mission and force protection requirements.
47 CHAIRMAN, JOINT CHIEFS OF STAFF, STANDING DSCA EXECUTE ORDER (EXORD) paras. 3.C.4.J.1., 3.I.10.A. (30 July
2019) [hereinafter DSCA EXORD].
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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 provides specific guidance on mandatory security classification
review of all data collected by airborne sensor platforms to determine whether it can be disseminated.48
In providing guidance to commanders on authorized use of DoDIC capabilities and assets, and the
products derived from the data collected, it is important for judge advocates to understand the various
platforms, their sensors, and how they operate. Whether an activity is subject to IO is determined by
the “5 P’s”: process, people, pipelines, platforms, and purpose. 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 the specific purpose of its mission.
For example, an Unmanned Aircraft System (UAS) may transmit data by live feed only to a line-of-
sight receiver, or by satellite to a remote location.
In this example, evidence of a criminal act “incidentally” collected during an authorized mission using
DoDIC capabilities should be forwarded to the appropriate civilian law enforcement agency (CLEA).
However, altering the course of an airborne sensor (such as an UAS) from an approved collection track
to loiter over suspected criminal activities would no longer be incidental collection. Thus, unless
specifically authorized in advance, such an act could result in a PCA violation.49 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
preposition planning as well as intended use consideration.
A domestic support operation using DoDIC capabilities, which includes support to CLEAs,50 requires
a separate mission review and authorization by SecDef. Those planning the mission should consider
whether the data is to be exclusively transmitted to the CLEA, and whether the CLEA personnel are
properly located to control or direct use of the assets. To determine whether the collection platform
and data transmission are wholly owned, operated, and received by a DoDIC, a DoD non-IC, or a
combination of both, judge advocates will need to carefully consider the applicable rules and
operational restrictions for the mission.
2. Domestic Imagery and Intelligence Oversight Programs
There are complexities inherent in the domestic operating environment (OE) regarding the use of
intelligence assets. Any use of intelligence capabilities for purposes other than “traditional
intelligence” uses (support of combat operations) must be approved by the SecDef. “Traditional
intelligence activities” include the collection, retention and dissemination of defense-related foreign
intelligence (D-FI) and counterintelligence (D-CI) products by the DoDIC. The exception to permit
use of intelligence assets, personnel and capabilities for other than traditional intelligence purposes
first became prevalent in the DSCA context.51 In an effort “to save lives, prevent human suffering, or
48 See generally U.S. DEP’T. OF DEF., INST. 3115.15, GEOSPATIAL INTELLIGENCE (GEOINT) (6 Dec. 2011) (C1, 10 May
2018) [hereinafter DoDI 3115.15].
49 U.S. DEP’T. OF DEF., INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (26 Feb. 2013)
(Incorporating Change 1, February 8, 2019) (hereinafter DoDI 3025.21]; DODD 3025.18, supra note 2.
50 DoD 5240.1-R, supra note 13, at proc. 12.
51 DSCA EXORD, supra note 47, at para. 4.D.2.
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mitigate great property damage within the United States . . . ,” the Secretary of Defense permitted the
use of DoD intelligence assets for other than traditional intelligence activities.52 In so doing, DI
capabilities were among the first to be considered for such uses.53 However, immediate challenges
followed these decisions due to the complexities involved in employing DI assets in the homeland.
There are two core regulatory authorities that provide structure and procedure with regard to DI:
National Geospatial-Intelligence Agency, National System for Geospatial Intelligence Functional
Manager for Foreign Affairs 1806 (NSGM FA 1806)54 and related series of policies; and, when
operating in support of USNORTHCOM, or within the USNORTHCOM area of operations (AO),
North American Aerospace Defense Command/U.S. Northern Command Instruction 14-3 (NNCI 14-
3).55 These policies are straightforward, but somewhat complicated procedurally. The complications
become exacerbated due to the necessity to include IO program rules into the mix. Together, the
interplay of all these rules may be summarized by the following:
DI captured in the homeland, and/or processed, exploited, analyzed or disseminated by
any component or element of the DoDIC must comply with IO program restrictions,
unless otherwise directed by the President, SecDef or his designee; this compliance is
certified by executing a Proper Use Memorandum (PUM).
The PUM is an integral part of the DI mission process, arguably as equally important as the platform
and packages used to capture imagery. A PUM is a memorandum submitted by an organization’s
Certifying Government Official and reviewed by its legal advisor.56 The Imagery user organization
will submit this PUM to NORAD and USNORTHCOM Collection Management (N-NC/J23M) for
approval. The PUM “defines their requirements, intended use, and contains a proper use statement
which acknowledges their awareness of the legal and policy restrictions regarding domestic
imagery.”57 What a PUM is not is an authorization to collect DI. However, a PUM will specify the
authority to collect imagery, the location, intended use, analysis or exploitation of the imagery,
retention, security and declassification (DCLAS) review, and authorized recipients of the DI captured.
The core purpose of the PUM is to certify compliance with IO program rules by providing a statement
of compliance by the Certifying Intelligence Official. The PUM also contains a legal opinion as to
whether compliance is certifiable and legally sufficient, which helps to ensure that the DI to be
collected will be used for proper and lawful purposes consistent with law and policy.58
52 Id. at paras. 10.L.2., 4.D.2.
53 Id. at para 4.D.2.
54 NAT’L GEOSPATIAL-INTELLIGENCE AGENCY, NAT’L SYS. FOR GEOSPATIAL INTELLIGENCE FUNCTIONAL MANAGER FOR
FOREIGN AFFAIRS 1806, DOMESTIC IMAGERY (Mar. 2009), https://nsarchive2.gwu.edu/NSAEBB/NSAEBB527-Using-
overhead-imagery-to-track-domestic-US-targets/documents/EBB-Doc17.pdf [hereinafter NSGM FA 1806].
55 N. AM. AEROSPACE DEF. COMMAND/U.S. N. COMMAND, INS’T 14-3, DOMESTIC IMAGERY (22 June 2020) [hereinafter
NNCI 14-3]. The instructions for the North American Aerospace Defense Command (NORAD) and U.S. Northern
Command (USNORTHCOM) are on the intranet for those commands. However, NNCI 14-3 is also on file with the Center
for Law and Military Operations (CLAMO).
56 NNCI 14-3, supra note 55, at 23.
57 Id.
58 Id.
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3. Incident Awareness and Assessment versus Intelligence, Surveillance, and
Reconnaissance
DI and related data are most frequently captured during the course of DSCA missions. Since, by
definition, DSCA only occurs within the U.S. and its territories,59 DoD personnel must carefully
review and adhere to IO rules, DoDD 5200.27, Federal laws, DoD policy, and the U.S. Constitution.
DoD (Title 10) forces involved in DSCA operations may conduct incident awareness and assessment
(IAA). IAA is similar to intelligence, surveillance, and reconnaissance (ISR) operations used by DoD
forces in combat. However, the differences are material as expressed through the next several
paragraphs.
ISR is “an integrated operations and intelligence activity that synchronizes and integrates the planning
and operation of sensors, assets, and processing, exploitation, and dissemination systems in direct
support of current and future operations.” 60 Therefore, ISR is an integrated intelligence and operations
function that is conducted by using intelligence assets, systems, resources, or capabilities consisting of
platforms and packages.
Incident awareness and assessment (IAA) is a subset of ISR because it constitutes the domestic use of
ISR assets and capabilities for DSCA purposes. Based on the same concepts as ISR, IAA differs in its
geographic scope, governing laws, and regulations. Further, IAA is a term of art used only during
domestic operations. Because IAA only occurs domestically, it is also a subset of Domestic Imagery
(DI), and subject to all DI rules and policies. IAA is the DoD’s term for ISR-type operations
conducted during DSCA operations in the homeland. Therefore, when you read “IAA,” think ISR in
CONUS, employed only for DSCA purposes. National ISR resources are limited and allocated among
the combatant commands. In like fashion, IAA assets are limited as well. For this reason, IAA assets
should only be used when necessary. Finally, because IAA is only employed to support DSCA, and is
not used in homeland defense (HD) operations, when intelligence activities are conducted during HD,
those activities are considered to be ISR, not IAA. For this reason, ISR conducted within the United
States is strictly regulated and requires specific SecDef approval on a case-by-case basis.
Since, by definition, IAA uses intelligence assets, platforms, capabilities and databases,61 it is subject
to IO restrictions, and any additional limitations imposed by SecDef or the combatant commander. In
the instances when there is no intelligence interface, then IAA does not exist. Instead, there is only DI
capture subject to Sensitive Information rules, the Privacy Act, civil liberties considerations, and the
Fourth Amendment. ISR, IAA, and DI are different tools for different missions.
Because IAA and its relationship to ISR can be confusing, the following formulaic explanations and
are offered:
• Intelligence, Surveillance, & Reconnaissance (ISR) = Collection of foreign intelligence (FI)
+ counterintelligence (CI) information/imagery:
59 DoDD 3025.18, supra note 2, at para. 2.c.; see also U.S. DEP’T. OF DEF., DIR. 5100.46, FOREIGN DISASTER RELIEF (6
July 2012) [hereinafter DoDD 5100.46]; and JOINT CHIEFS OF STAFF, JOINT PUB. 3-29, FOREIGN HUMANITARIAN
ASSISTANCE (3 Jan. 2014) [hereinafter JP 3-29].
60 U.S. DEP’T OF DEF., DOD DICTIONARY OF MILITARY AND ASSOCIATED TERMS 116 (June 2020) [hereinafter DOD
TERMS].
61 NNCI 14-3, supra note 55, at 22.
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o ISR is conducted outside the U.S. and its territories, or inside the U.S. in support of
homeland defense operations;
o Any domestic use of ISR requires SecDef approval of each mission and all assets used;
o Any DI missions including ISR require a Proper Use Memorandum (PUM) approved by
Higher Headquarters (HHQ);
o All domestic ISR missions are subject to Intelligence Oversight (IO) limitations on
collection of information on U.S. persons.62
•
Domestic Imagery (DI) = Collection of Imagery within the U.S. and its territories that
may or may not involve use of DoDICC:
o A Domestic Imagery Legal Review (DILR) is required if no DoDICC are used;
o All DI is subject to limitations on collection of information on persons not affiliated
with DoD (NDAPs), the Privacy Act, civil liberties considerations, and Fourth
Amendment rules. 63
•
Incident awareness and assessment (IAA) = DI using DoDICC for DSCA missions:
o To determine applicability of IO Program rule sets, use the “5 Ps” test: People, Pipes
(uplink, downlink), Process, Platforms, and Purpose;
o All IAA missions require SecDef approval;64
o All IAA missions require a Proper Use Memorandum (PUM) approved by HHQ;65
o All IAA missions are subject to IO limitations on collection of information on U.S.
Persons.66
4. Domestic Imagery and Sensitive Information Programs (DoDD 5200.27 and AR 380-13)
Consider this scenario:
Your operations center is full of people passing reports and DI around various
workstations. Some individuals are intelligence technicians and analysts, some are
operations personnel, and others are DoD law enforcement. All personnel have been
mobilized under the DSCA EXORD. The intelligence personnel are using their
technical expertise to assist in the interpretation of DI captured in a disaster zone, and
62 E.O. 12333, supra note 9.
63 DoDD 5200.27, supra note 30.
64 DSCA EXORD, supra note 46, at paras. 3.C.4.J.1, 3.B.5., and 3.I.10.C.
65 NNCI 14-3, supra note 55, at para. 2.2.
66 DSCA EXORD, supra note 46, at paras. 3.C.4.J.1., and 3.I.10.A.
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they are doing so in non-intelligence capacities for other than traditional intelligence
purposes.
Which Oversight Rules will apply, and to whom, with respect to DI?
If DI is being captured, processed, exploited and disseminated by the DoD for non-intelligence
purposes, and the activities are conducted by personnel not within the command and control of an
intelligence organization or unit, then DoDD 5200.27 and all related regulatory authorities apply.
Therefore, non-DoDIC produced DI, or DI produced for non-intelligence purposes, is always subject to
DoDD 5200.27 and AR 380-13.
Another real-world example of this situation may be illustrative:
During DSCA operations after a natural catastrophe, ingress and egress routes to
establish lines of communication are critical to relief efforts. The joint operating area
(JOA) commander, an active component officer, desires to get an aerial view of the
routes. To do so, the commander wants to use rotary wing platforms from Title 10
assets. Rotary wing assets available with the NG are another alternative. The chief of
staff and the operations officer are available to advise the commander. However, they
are not intelligence personnel. Once airborne, the JOA commander wants to use a U.S.
Government smartphone to take photographs of possible routes and of the general area
for purposes of situational awareness and damage assessment. The commander turns to
you and asks your opinion. What do you say?
As long as the photographs are not used for intelligence purposes (FI or CI), and no intelligence assets,
personnel or databases are used to process any images or reports, only DoDD 5200.27 and AR 380-13
will come into play. However, if the DSCA mission is being conducted in support of, or under
direction by, USNORTHCOM, a Domestic Imagery Legal Review (DILR) will be required to be
accomplished before the mission is flown.67
Specifically, a DILR is a memorandum submitted by an organization’s Certifying Government Official
and reviewed by its legal advisor for proper use of domestic imagery collection that does not include
use of DOD intelligence component capabilities. The imagery user organization should submit the
DILR to NORAD and USNORTHCOM Collection Management (N-NC/J23M) for approval that
defines their requirements, the intended use of the imagery, and contains a proper use statement, which
acknowledges awareness of the legal and policy restrictions regarding domestic imagery.68 In so
doing, DILRs certify compliance with basic DI rules IAW DoDD 5200.27, and other pertinent
regulatory authority. Recall also that a DILR does not constitute authority to collect domestic
imagery; there it should specify what the authority is to collect the imagery, the location of the imagery
and its intended use, analysis or exploitation of the imagery, retention of the imagery, security and
declassification review of the imagery (if required), authorized recipients of the imagery, and any
further restrictions on dissemination of the imagery, and it will certify compliance with legal and policy
requirements.69 Whenever possible, the DILR should state whether the imagery will be used in
67 NNCI 14-3, supra note 55, at paras. 2.5, 2.5.3, 2.6 -2.8, 2.11, 3.1-3.3, and Attachment 4.
68 Id. at Attachment 1.
69 Id. at para. 2.5.3
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briefings or publications and identify the likely audiences.70 The proper completion and filing of a
DILR is necessary to create accurate and timely audit trails ensuring the DI captured and its
dissemination does not violate DoDD 5200.27 or AR 380-13, while conforming to a proper use
statement, which acknowledges awareness of the legal and policy restrictions regarding capture of the
domestic imagery.
5. Domestic Imagery Summary
While DI rules, regulations and procedures may seem complex, and at times, counterintuitive, they are
formulated to ensure that the maximum protection of privacy and constitutional rights is afforded to
U.S. Persons and NDAPs during the conduct of domestic imagery capture missions within the United
States and its territories. Here are some tips to keep it all straight:
Any time any form of air or space-borne imagery is captured within the United States, its territories or
protectorates, the imagery and/or data is considered Domestic Imagery (DI), and certain pertinent
program rules will apply. Depending on who is conducting the DI capture, how it is collected,
processed, exploited, analyzed or disseminated and for what purpose, will indicate which oversight
program(s) and legal restrictions must be followed. When DoDIC resources are involved in the DI
production process, Intelligence Oversight rules will apply. If the DI capture does not involve the
DoDIC, then Sensitive Information program rules apply.
As a general rule, whenever members of the DoD are involved in the collection of intelligence for
intelligence purposes that could affect the privacy or Constitutional rights of U.S. persons, Intelligence
Oversight rules apply. Whenever members of the DoD are involved in the acquisition of information
for non-intelligence purposes that could affect the privacy or Constitutional rights of NDAPs (for non-
intelligence purposes), Sensitive Information Program rules (DoDD 5200.27 and AR 380-13) will
apply. Regardless of situation, unless otherwise authorized by law, whenever a DoD action involves
collection of intelligence, one of the programs will apply.71
E. The NG
The NG presents a different set of challenges for the judge advocate as the NG’s mission regularly
focuses on domestic threats or providing situational awareness. Notwithstanding, the NG does not
generally conduct domestic intelligence operations. Primarily, domestic intelligence involving U.S.
persons is a law enforcement matter and is the responsibility 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
70 Id. at para. 2.6.
71 Conflict has arisen between the new DoDM 5240.01 and the CJCS 2013 Standing DSCA EXORD. The new manual has
created an exclusion for DSCA operations. Specifically, it states that DoDM 5240.01 is inapplicable to such activities
because DoDIC resources and personnel used during a DSCA operation are not being used for intelligence purposes (see
Section 3, paragraph 3.1.a.(3)(b)). However, the CJCS 2018 Standing DSCA EXORD consistently orders that Intelligence
Oversight program rules are applicable to all IAA activities. (see, e.g., paragraphs 3.A.7., and 3.l.).
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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 NG 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 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: State Active Duty, Title 32 or Title 10
NG personnel can serve in three statuses: State Active Duty (SAD), Title 32, or Title 10, as explained
in detail in Chapter 3. A Soldier’s status has a direct impact on the authorities at issue regarding the
collection of information on a U.S. Person. Therefore, this determination must be made first.
Members of the NG perform their normal “drills” and “annual training” under Section 502(a) of Title
32.72 When an emergency or disaster occurs within a State, the State’s NG may be called upon to
provide civil support (NG Civil Support (NGCS); not to be confused with DSCA). Because the
disaster or emergency is first the State’s responsibility, versus that of the Federal government, the
Governor may not initially call up the NG in their T-32 status without the approval of SecDef.73
Instead, the State’s Governor or The Adjutant General (TAG) may call up members of the NG to
provide civil support by placing them in State Active Duty (SAD) status. With that said, there is
another option under Title 32. Pursuant to Section 502(f) of Title 32, the NG may perform “additional
training other duty” for their Federal mission or provide “operational support” as directed by POTUS
or SecDef but with the concurrence of the State’s Governor.74 In this status, and subject to the proper
authorities, the NG may be called upon to support a Federal DSCA mission.75 The State’s Governor
retains command and control authority. NG status under Section 502(f) should not be improperly
referred to using the blanket term “Title 32 status” because such a reference is misleading and often
leads to confusion. Instead, the proper sections of Title 32 should be used. As noted above, status
under Section 502(a) is materially different from status under Section 502(f) in both purpose and
approval authority.
72
32 U.S.C. § 502(a) (2018) (“(a) under regulations to be prescribed by the Secretary of the Army or the Secretary of the
Air Force, as the case may be, each company, battery, squadron, and detachment of the National guard, unless excused by
the Secretary concerned, shall (1) assemble for drill and instruction, including indoor target practice, at least 48 times each
year; and (2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days
each year.”).
73 U.S. DEP’T OF DEF., INST. 3025.22 THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL AUTHORITIES
para. 3.f.1. (26 July 2013) (C1, 15 May 2017) [hereinafter DoDI 3025.22].
74
32 U.S.C. § 502(f) (2012) (“(f)(1) Under regulations to be prescribed by the Secretary of the Army or Secretary of the
Air Force, as the case may be, a member of the National Guard may (A) without his consent, but with the pay and
allowances provided by law; or (B) with his consent, either with or without pay and allowances; be ordered to perform
training or other duty in addition to that prescribed under [section 502(a)]. (f)(2) The training or duty ordered to be
performed under paragraph (1) may include . . . (A) Support of operations or missions undertaken by the member’s unit at
the request of the President or Secretary of Defense.”).
75 DoDI 3025.22, supra note 73, at paras. 3.d., and 3.e.
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Finally, the NG may be called into the service of the United States under Title 10 of the United States
Code. In this instance, NG personnel fall under Federal command and control. As stated previously,
USNORTHCOM has separate IO rules and processes in place that must be considered for Title 10
missions.
Members of the NG intelligence community serving in a SAD or Title 32 status are not included in the
definition of DoDIC, and therefore are technically not regulated by IO. The Chief of the NGB
established an IO policy that applies to all members of the NG serving in Title 32 status.76 This IO
policy requires that NG intelligence personnel operating in a Title 32 as members of the DoD
intelligence component, must also “comply with all DoD guidance and Federal laws applicable to the
component, including all intelligence oversight (IO) rules.”77 Furthermore, the NG’s Inspector
General Intelligence Oversight policy recognizes that while NG intelligence personnel operating in a
SAD status are not members of the DoDIC, they are limited by their State law—to include State
privacy laws—and are “prohibited from engaging in DoD intelligence and CI activities” as well as
“using DoD intelligence and ISR equipment.”78 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, and unless authorized by law, members of the NG
cannot collect information on U.S. Persons.79
In addition to being prohibited from using DoD intelligence resources and equipment while in a SAD
status, unless authorized by SecDef or SecDef’s designee, NG personnel in a SAD status are also
prohibited from: 1) engaging in DoD intelligence operations; and 2) gaining access to DoD classified
systems (SIPRnet/JWICS - Joint Worldwide Intelligence Communication System) or equipment (MQ-
1, border sensors).80 Further, NG personnel while in a SAD status may only access classified
information if sponsored by a Federal executive agency pursuant to E.O. 13549. This includes NG
personnel with a DoD security clearance.
2.
Collection via an Intelligence Activity
The responsibilities of the NG member, not the AFSC/MOS or duty title per se, determine whether
they are 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 IO as provided in section B of this chapter. If the person is not collecting the information
76 CNGBI 2000.01C, supra note 6; CHIEF, NAT’L GUARD BUREAU, MANUAL 2000.01 NATIONAL GUARD INTELLIGENCE
ACTIVITIES para. 2 (26 Nov. 2012) [hereinafter CNGBM 2000.01C].
77 Id. at para. 4.
78 Id. at para 4.d.
79 Id. at para. 4.e.
80 Id. at para 4.d.
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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 of this chapter.
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 and
domestic threats to DoD and domestic threats to DoD. LE personnel liaise with other law enforcement
agencies to develop the criminal threat situational picture.
3.
Method of Collecting
Military Intelligence Equipment may only be used to conduct counter- and 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 counter-and foreign-intelligence purposes must request authorization
from SecDef or his designee. Legal review by the Office of the General Counsel at NGB 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).81
The NG has a variety of incident awareness and assessment82 tools 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 NG. 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, the RC-26’s mission is to assist law enforcement in the
capture of personnel involved in drug activities. When disaster strikes the RC-26 is often called upon
to assist in life-saving situations. The 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 NG aerial imagery sensor platforms must be properly documented and
approved via a PUM prior to collection.83 These PUMs must be in accordance with applicable
Defense Intelligence Agency (DIA) policy, “Proper Use Statements for Domestic Imagery.” The
81 Id.
82 Incident awareness and assessment (IAA) is the use of intelligence, surveillance and reconnaissance (ISR) DoD
intelligence capabilities for domestic non-intelligence activities approved by the SecDef, such as search and rescue (SAR),
damage assessment and situational awareness.
83 Note CNGM 2000.01C allows an exception for SAR whereby the PUM is filed after mission conclusion.
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NGB-J2 publishes a PUM handbook to assist JFHQ-J2s on the protocol for submitting a PUM. NG
judge advocates are responsible for reviewing these PUMs for compliance with Federal and State law
and NG policy (Diagram 2 outlines determination process as to whether a PUM is required).
Diagram 2
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
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mentioned earlier, information is often acquired in response to a NG commander’s need to establish a
common operating picture. If the information is for situational awareness, then the 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. Therefore, the recommendation can be to remind
the collector not to focus on specific PII.
The chart below illustrates the proper flow of information to remain compliant with IO regulations. It
depicts how the State’s J2 and provost marshal share and handle sensitive information in accordance
with both IO regulations and DoDD 5200.27.
Sensitive Information Handling JFHQ States
J34
J2
Legend
NGB
LE Community
LES info
DoD PM
Community
Intel Community
Intel Data
REDACT
REDACT
(unless Foreign
(unless Threat)
Nexus)
REDACT
FPSUMS
Warnings
(Criminal
J34 / PM
J2
INTSUMS
Stats, issues,
AT/FP
etc)
Intel Brief
Driven by
Foreign threat data
Driven by
Domestic
FBI
TAG CCIRs
Threats to DoD
Counterintelligence
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
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
5.
Dissemination
DoDM 5240.01, Sec 3, Procedure 4 governs the dissemination of USPI collected or retained by an
intelligence component. Generally, information may be disseminated to a variety of organizations if it
was properly collected or retained. Dissemination to “Other DoD Elements,” “Other Federal
Government Entities,” and “State, Local, Tribal, or Territorial Governments” is permissible if the
recipient is reasonably believed to have a need to receive such information for the performance or its
lawful missions or functions.
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F.
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.
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.84 Judge 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.
G.
Conclusion
This chapter has but scratched the surface of Intelligence Oversight and Sensitive Information
processes and authorities. The two programs are separate and independent, although in an era of
domestic operational up-tempo, the lines between the two are becoming blurred because the
distinctions between intelligence and information have become equally blurred. Which program
applies depends on the user, the user’s mission, the type of information or intelligence being used,
whether U.S. persons or NDAPs are identified, and what will be done with the information. Judge
advocates must be aware of these distinctions and know where answers may be found to the difficult
questions posed by commanders. Familiarity with, and understanding of, this chapter is a good start,
but it is only the beginning. A careful review of all referenced materials is therefore suggested. See
Table 1 for a summary of the applicable DoD policies referenced in this chapter.
84 DoD 5240.1-R, supra note 13, Procedure 15.
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Table 1
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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. §§ 251-255 - 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).
•
DoD Directive 5210.56, Arming and the Use of Force, November 18, 2016, Incorporating Change
1, Effective November 6, 2020.
•
AR 190-14, Carrying of Firearms and the Use of Force for Law Enforcement and Security Duties,
March 12, 1993.
•
FORSCOM and USARC Force Protection OPORDs.
•
DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, Encl. 4 (DoD Support of
Civil Disturbance Operations), February 27, 2013, Incorporating Change 1, Effective February 8,
2019.
A. Introduction
The Chairman of the Joint Chief of Staff Instruction (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 U.S. military forces performing civil support
missions and routine service functions (including AT/FP) within the States.1 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 U.S. military forces, civilians, and contractors
performing law enforcement and security duties at all DoD installations worldwide, unless otherwise
directed by the Secretary of Defense. The document is classified overall Secret, however the portions
discussed and referenced in this chapter are unclassified.
1 CJCSI 3121.01B - Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces, (13 Jun 2005) (S).
As of the publishing of this Handbook, the current SROE/SRUF remains under revision. Judge advocates should ensure
they check for updates.
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The SRUF apply to Title 10 forces performing both homeland defense (HD) and defense support to
civil authorities (DSCA) missions. These rules do not apply to NG forces in either State Active Duty
(SAD) or Title 32 status. For information concerning NG rules for the use of force (RUF), see Chapter
11, infra. When operating in a joint environment, Title 10 judge advocates should coordinate with
their NG judge counterparts to ensure compatibility in joint operations.
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 SRUF. Members should also
be aware of the practical ramifications their actions may have on the overall mission; they must
understand the commander’s intent and ensure they understand specific limitations that apply to the
mission, in addition to normal policy and legal limitations.
Overall, the SRUF provide the template for training on the RUF for domestic operations. The
development of hypothetical scenarios will assist in posing the ultimate question of whether Service
members may use force, up to and 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.
A Service member may exercise individual self-defense in response to a hostile act or demonstrated
hostile intent unless a unit commander otherwise directs. Individual self-defense is a subset of unit
self-defense; thus, a commander may limit individual self-defense as they retain the inherent right and
obligation to exercise unit self-defense.2 It is imperative to ensure commanders, as well as the Service
members who execute the commander’s plans, understand any limitations on individual self-defense.
Use of force practice is one of the 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.
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 frequently 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
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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and law enforcement activities on military installations. Judge advocates should be prepared to advise
commanders and train units on use of force policies for law enforcement and security operations. They
often advise on investigations and disciplinary matters regarding use of force violations.
There are differing opinions as to whether judge advocates should be primarily responsible for drafting
mission-specific RUF, or if the drafting is a function of the operations personnel requiring a review by
a judge advocate. The fact remains, commanders may directly task an attorney to draft RUF, so judge
advocates should be prepared to do so. Drafting RUF should be a coordinated effort among unit staff,
to include law enforcement professionals (when applicable) and higher headquarters.
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? What is the level of training of members
with the assigned weapons?
• What threat could your command face?4
• 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 existing RUF suit the planned mission or should the commander initiate a process to seek
augmentation of the SRUF by submitting a request for a mission specific RUF?5
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 to higher headquarters, although there is a provision for limited
flexibility for time critical situations. Enclosure P provides the template for requests for mission-specific SRUF.
4 Judge advocates should consider basing 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 the
detainees will remain passive will leave your security force without adequate guidance on how to respond to a potentially
dangerous situation.
5 If such a need is identified, Enclosure P to CJCSI 3121.01B should be used as a template. The request must be staffed to
the appropriate Combatant Commander via the CJCS to the Secretary of Defense for approval. It is imperative that this
action be initiated upon the identification of the need.
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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.
1.
Capabilities and Limitations
a. Soldier Equipment
When drafting RUF for a particular mission, commanders must decide whether to issue members
firearms or other non-lethal weapons for the mission. Further, if the commander authorizes non-lethal
weapons or non-standard weapons or ammunition, it is critical that the members be well-trained in the
proper employment of this equipment.
b. Skill and Training
Due to Posse Comitatus Act (PCA) restrictions, and the DoD’s implementation of the PCA, many Title
10 Service members have limited exposure to domestic operations. Consequently, they may be
unfamiliar with DoD and Service policy requirements.6 In addition, they may have limited experience
with the types of confrontations their units may encounter in these missions. Service members may
require focused training on RUF in order to effectively and appropriately respond to domestic threats.
Specifically, judge advocates should ensure Service members receive training on de-escalation
techniques and the employment of lesser means of force, to include non-deadly force, prior to a
domestic operation. Judge advocates should assist commands in ensuring members not only get the
right legal and policy training, but also the appropriate operational training specific to the mission.
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. In order to provide accurate legal advice, Judge
advocates should be aware of any background information on a threat in an operating area in order.
3. Physical and Psychological Effects
It is also important to keep in mind that the physical and psychological effects 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
6 Military police and members of the special operations community are exceptions as they routinely learn and understand
these rules due to the nature of their missions.
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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
In a domestic operation response, judge advocates will advise and train on the SRUF and mission-
specific RUF that higher headquarters has approved. Judge advocates should be cognizant of common
issues that often are a source of confusion or error. 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
military forces and their RUF are not improperly limited by concepts that are not applicable to Federal
RUF. Other topics that often lead to confusion are, but not limited to: the concept of “minimum
force,” the general prohibition on the use of warning shots by land forces, and the use of warnings to
include verbal warnings.
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
Duties7 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.”8 AR 190-14, Chapter 3, was revised in 1993
to synchronize with the use of force guidance contained in a contemporary publication of DOD
Directive 5210.56. Subsequently, the use of force guidance contained in DoDD 5210.56 was
superseded by the SRUF.9 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. They also must do due diligence to
ensure that the most updated regulations, directives, and authorities are used. When two or more
provisions 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 domestic use of force authority is ingrained in the constitutional role of the Executive branch, and
are tempered by the Bill of Rights. Against this backdrop, Congress has imposed a number of
statutory provisions that help define and limit this authority. Judge advocates must understand these
underlying authorities,10 just as the judge advocate needs have a working knowledge of public
international law and law of war authorities to understand rules of engagement. It is imperative to
7 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).
8 CJCSI 3121.01B, supra note 2, para. 1.a.
9 CJCSI 3121.01B, supra note 2, para. 1.b.
10 Since domestic operations have generated very few reported cases involving Service members, we must look to civilian
agency law enforcement case law to help define the limits of military use of force.
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have an understanding of the differences between these two distinct bodies of law in order to avoid
transposing terms and concepts, which may confuse Service members.
The President has a constitutional duty to execute the laws and to protect the States against domestic
violence.11 As Commander-in-Chief, the President has the authority to enforce Federal law, order
installation force protection, and order the military to execute DSCA operations.12 Service members
conduct operations and derive their authority from the President’s constitutional authorities.13
Whenever the military uses force to execute the orders of the President or those he appoints, that use of
force must derive from these constitutional authorities.14
The authority to use force by personnel under must be balanced against the civil rights of the public.
While three primary provisions of the Bill of Rights limit the use of force by Federal military
personnel in domestic operations, the focus is on the Fourth Amendment.15 The constitutional
standard is whether the use of force violates the Fourth Amendment prohibition against unreasonable
seizures.16 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.17 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.18
The courts have long recognized the authority to use force, including deadly force, in the performance
of Federal Governmental duties.19 Judge advocates must how the commander intends to execute the
mission and any limitations on execution of the 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
11 U.S. CONST., art. II and IV.
12 U.S. CONST., art. II.
13 See e.g., In Re Neagle, 135 U.S. 1 (1890).
14 See DoDI 3025.21; See also, DoDD 3025.18.
15 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.
16 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
”
17 Graham v. Connor, 490 U.S. 386 (1989).
18 Id. (emphasis added).
19 In Re Neagle, 135 U.S. 1 (1890).
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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 less
familiar with the application of the RUF. Specifically, judge advocates should never apply Law of
War to the domestic law on the use of force.20 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.21
1.
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.”22 The SRUF further states that, “Deadly force is to be used only when all lesser
means have failed or cannot be reasonably employed.”23 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.24
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.25 Additionally, courts have not imposed a requirement for the use of feasible
lesser force alternatives to avoid the use of justified deadly force.26 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-
20 As discussed above, the underlying substantive law applicable to domestic governmental use of force is the Constitution,
not the Law of War.
21 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 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.
Conversely, as of the publishing of this documents, some States have pending litigation regarding the application of so-
called “stand your ground” laws and whether they apply to law enforcement.
22 CJCSI 3121.01B, supra note 2, Encl. L, para. 5.b.1.
23 Id. para. 5.c.
24 Id. para. 5.b.1.
25 See e.g., O’Neal v. DeKalb County, Ga., 850 F.2d 653, 666 (11th Cir. 1988).
26 See e.g., Deering v. Reich, 183 F.3d 645, 652-53 (7th Cir. 1999).
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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.27
2.
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.28
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.”29 Although the type of warnings that Service members may employ is not
specifically established, it cannot take the form of a warning shot.30 Exceptions to this restriction on
warning shots general apply to Naval vessels. Judge advocates should consult Navy, as well as Coast
Guard authorities, to determine the application, if any, of such exceptions apply to their current
mission.
3.
Denial of Deadly Force in Self-Defense
There is a common misunderstanding that if there is no authority to arm Service members, then there is
no authority to use deadly force. Current law does not support this presumption. Federal courts have
not denied unarmed Service members to use deadly force in self-defense situation. 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, as discussed above.
4.
Operational Orders/Execution Orders
For those operations that were not thoroughly planned or anticipated, the judge advocate may first see
the RUF 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 yet to be 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.
27 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.
28 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.
29 CJCSI 3121.01B, supra note 2, Encl. L para. 5.a.
30 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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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 non-DoD persons in limited
circumstances. Service members may use deadly force in defense of non-DoD persons who 1) are in
the vicinity when there is probable cause to believe the target of that force poses an actual or imminent
threat of death or bodily harm, and 2) when the use of force is directly related to the assigned
mission.31
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 security as
President-designated non-DoD 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.32 The SRUF provides a list of potential examples:
nuclear assets, nuclear command and control facilities, and other designated areas that contain
sensitive codes or involve special access programs. Planners and commanders need to determine the
existence of such assets in their anticipated area of operations in order to apply the SRUF properly and
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.33 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.34 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 consistent with 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. As a reminder, if
31 Id. para. 5.c.2. See also, U.S. DEP’T OF DEFENSE, DIRECTIVE 5210.56, ARMING AND THE USE OF FORCE (18 Nov. 2016).
32 Id. para. 4.e.
33 Id. para. 4.f.
34 Id.
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a subordinate commander chooses to emplace restrictions that go beyond the mission-specific RUF
issued by higher headquarters, notification of these restrictions to the Secretary of Defense is required
per the SRUF.
e. National Critical Infrastructure35
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.
6.
Other Mission-Related Circumstances for Use of Deadly Force
As with the circumstances described above, commanders may authorize deadly force under limited
circumstances, and 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.”36 These additional
circumstances, where such force may be used when directly related to the assigned mission, are
discussed below.
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.37
b. Escape38
Service members may use deadly force when it appears reasonably necessary to prevent the escape of a
prisoner, provided there is: 1) probable cause to believe that the prisoner committed or attempted to
commit a serious offense involving the infliction or threatened infliction of serious physical injury or
death; and 2) that escape of the subject would pose an actual or imminent threat of death or serious
bodily harm to DoD personnel or others in the vicinity. 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 Offense39
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.
35 Id. para. 4.g.
36 Id., paras. 5.c & 5.d.
37 Id., para. 5.d.1.
38 Id., para. 5.d.2.
39 Id., para. 5.d.3.
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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.40 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 unit commander implements a restriction on a Secretary of
Defense-approved RUF, the Secretary of Defense 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.41
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 and/or criminal proceedings after an incident. In
addition, incidents of unlawful use of force often result in a variety of investigations that could justify
adverse administrative consequences for Service members. 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 of the burdens of litigation.
1.
Federal Civil Liability
A person who is injured by unlawful use of force could seek damages in a Federal civil suit against the
Service member and others involved in the RUF incident. 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 unlawful 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,42 a
civilian law enforcement case. There is caselaw concerning DoD civil support that addresses this
issue. One reported Supreme Court case (discussed below) involves an Army soldier and use of force
against a civilian.43
40 Id., para 3.a.
41 Id., para. 3.b.
42 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.
43 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.
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Litigation can also occur in situations where a Service member’s decision not to use force resulted in a
death or injury to a civilian. A Service members’s decision not to use force, or a commander’s
decision to limit the use of deadly force, would likely be a “discretionary function” defense to claims
made under the Federal Tort Claims Act (FTCA).44 However, 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 Federal Government may be liable 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. Pertinent case law 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. Donald Saucier, who was a military police officer assigned to protect the Vice
President, apprehended Katz during a speech by the Vice President. Elliott Katz later accused Saucier
of using excessive force. Pursuant to Bivens, Katz filed suit against Saucier on the grounds that
Saucier had violated Katz’ Fourth Amendment rights. The Court held that the military police officer
was entitled to qualified immunity. Pearson v. Callahan, a 2009 Supreme Court decision, is now the
key case from which to analyze issues of qualified immunity.45 (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
mandated a two-prong analysis to determine whether an official was entitled to qualified immunity.
First, a court was required to decide: 1) “whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right, and (2) if so, whether that right was ‘clearly established’ at the time
of the defendant’s alleged misconduct.”46 This analysis was to be strictly applied and provided an
analytical paradigm that often served to direct early disposition of cases in favor of the official without
the need for extensive and costly pretrial discovery and litigation.
In Pearson however, the Supreme Court effectively reversed its position in Saucier by holding that
lower courts were no longer bound to the rigid two-prong analysis. The Court noted, however, that the
Saucier case could still be used as an appropriate analytical paradigm by lower courts in their
discretion, but that lower courts were no longer required to use the Saucier procedure.47
Saucier remains an important qualified immunity case; however, in light of Pearson and the
difficulties lower courts have had with the Saucier analysis, it is uncertain how effective its analysis
will be for those attempting to assert its procedure to establish qualified immunity.
44 United States v. Gaubert, 499 U.S. 315 (1990).
45 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.
46 Saucier, 533 U.S. at 194.
47 Pearson, 555 U.S. at 223.
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b.
42 U.S.C. § 1983 as the Basis of State and Local Government Use of Force Civil
Causes of Action
42 U.S.C. Section 1983 has evolved into an effective basis for citizens to seek damages for alleged
violations of their rights by governmental organizations or their employees under the Fourteenth
Amendment. Section 1983 also extended liability so it is applicable to those who are involved in use
of force policy and training decisions. This resulted in civil liability if official decisions and actions
contributed to an improper use of force by an individual law enforcement or security person.48 As the
SRUF specifically directs that commanders at all levels must train their subordinates on the use of both
deadly and non-deadly force,49 failure to do so may expose commanders, their Soldiers, their advisors,
and the U.S. Government to a host of legal consequences as discussed below.
2.
Federal Criminal Liability
Service members could be held criminally liable for unconstitutional or illegal use of force before a
court-martial, a Federal district court, and in some cases, State courts. A Federal statute prohibits use
of force under the color of law that deprives any person of their constitutional or legal rights.50
Accordingly, DOJ has investigated use of force during a domestic military operation with a view
toward seeking a grand jury indictment for violation of this statute.51
3.
State Civil and Criminal Liability
Immunity from Federal liability (under the Supremacy Clause) will not always prevent a Service
member from having to face trial in state civil or criminal proceedings. In fact, in the “Ruby Ridge”
use of force incident, a Federal officer was not granted immunity from a state criminal proceeding for
the shooting of a civilian involved in an armed confrontation with the FBI.52
48 A supervisor who causes a constitutional violation by a “deliberate indifference” to constitutional standards in proper
training for officers may be liable under a Section 1983 cause of action. City of Canton v. Harris, 489 U.S. 378, 388-89
(1989). While agencies can be found liable for a lack of proper training on deadly force, agency officials have also been
found liable for a lack of training on non-deadly force (Davis v. Mason County, 927 F.2d 1473, 1483 (9th Cir. 1991)) and
for training conducted that was insufficient (e.g., Berry v. city of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994)). The judge
advocate advising a commander on RUF for a domestic operation should compare the difference in effort and attention to
law between military RUF practice and the comparable efforts of Federal law enforcement agencies. While Section 1983
may provide plaintiffs with a compensable claim after a use of force encounter as a result of a failure to train, the FTCA
could also provide a potential remedy when a training requirement existed and it was either not accomplished or it can be
demonstrated that the training was inadequate or failed to apply the proper standards. Ironically, it is conceivable that a
third party that could have been covered under “defense of others” could argue the government failed to protect him or her
from other civilians and attempt to bring a claim under the FTCA alleging that the Government was negligent in its training
of RUF and it contributed to the injury suffered.
49 CJCSI 3121.01B, supra note 2, Encl. L para. 1.b.
50
18 U.S.C. § 242 (2011).
51 For a comprehensive overview of the liability issues resulting from a Marine shooting that was authorized and proper
under the ROE (the correct term at the time, now RUF) for JTF-6, see Lieutenant Colonel W.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.
52 State of Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000). Interestingly, one of the critical factors in the Court’s analysis
was the fact that a supervisor had published unlawful use of force guidance. This became an issue, even though Special
Agent Horiuchi based his decision to shoot on the lawful pre-existing RUF, rather than the flawed rules published by his
team commander.
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G. Other Trial or Litigation Issues
Judge advocates involved in post-use of force procedures and litigation should be prepared to address a
number of other issues. First, be prepared to advise commanders on the many investigations that could
occur. Second, be aware of their Service’s procedures on civilian litigation. Finally, know that
Service members potentially have less legal protection against use of force liability than a Federal law
enforcement agent due to potential charges under the Uniform Code of Military Justice and Service
administrative options.
Judge advocates should know that if a Service member kills or injures a civilian during a domestic
operation, a number of agencies could initiate investigations of the incident that would affect both the
Service and the Service member. The various units involved, their parent services, any joint
command, and the NG Bureau or State NG authorities could initiate an administrative investigation or
Rules for Courts-Martial (RCM) 303 inquiries.53 Commanders and judge advocates should be aware
that the following investigations could occur in addition to their own Service’s criminal or
administrative investigation:
• An investigation by DOJ or the U.S. Attorney for potential Federal civil or criminal disposition;
• An investigation by state, county, or municipal law enforcement authorities for state criminal
disposition; and
• An administrative investigation by an inspector general or internal investigative element of a
federal law enforcement agency, if the command was providing support to that federal agency.
Judge advocates also need to know the procedures and considerations involved when dealing with
potential civil litigation. Army Regulation 27-40 (Litigation),54 Air Force Instruction 51-301, (Civil
Litigation),55 and Navy Instruction 5800.7G (Manual of the Judge Advocate General (JAGMAN))56
outline Service guidelines on civil litigation matters. These Service instructions provide guidance on
issues such as whether a Service member will be entitled to Government-provided representation,
investigation of potential litigation cases, whether the Government will indemnify the Service member
for damages in civil cases, and the key points of contact when the Service may be involved in
litigation. Further, Army Pamphlet 27-162, Claims Procedures,57 provides guidance on the
management of potential claims against the U.S. Government under a variety of theories and statutory
authorities.58 Finally, they should contact the litigation divisions of their respective Services for
further information.
53 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 303 (2012).
54 U.S. DEP’T OF ARMY, REG. 27-40, LITIGATION (19 Sep. 1994).
55 U.S. DEP’T OF AIR FORCE, INSTR. 51-301, CIVIL LITIGATION (2 Oct. 2018).
56 U.S. DEP’T OF NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL INSTR. 5800.7G, MANUAL OF THE JUDGE ADVOCATE
GENERAL (JAGMAN) (15 Jan. 2021).
57 U.S. DEP’T OF ARMY, PAM. 27-162, CLAIMS PROCEDURES (21 Mar. 2008).
58 Claims have been paid in recent history for shootings by U.S. military personnel engaged in the performance of their
duties. For example, in 1997 U.S. Marines were sent to support the U.S. Border Patrol in Texas along the Mexican border
during a period of escalating border violence and drug related activity. Although the facts are disputed, a U.S. person of
Hispanic ancestry was under observation by U.S. Marines. The Marines claimed that the individual under surveillance
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Finally, judge advocates need to recognize that Service members and commanders involved in use of
force incidents may have less legal and practical protection than their counterparts in Federal law
enforcement. Case law defining the role of Service members using force during Homeland Security
operations is extremely limited. Many of the cases interpreting governmental use of force have
expressly or impliedly based their interpretations of the “reasonableness” of the force on the law
enforcement status of the federal officers involved. These were qualified and credentialed law
enforcement officers with clear statutory investigative jurisdiction and duties to uphold federal law and
confront criminals. Service members performing non-traditional Homeland Security operations may
not have the benefit of this well-defined case law. Finally, Congress has not extended immunity that is
routinely applied to Federal law enforcement to military domestic operations.59
H. Training of Judge Advocates
Ideally, attorney training should include the study of executive, congressional, and judicial authorities
and constraints on the use of force by government and military personnel, and tactical skills training
using both lethal and non-lethal measures. Leaders should seek opportunities for their judge advocates
to obtain basic training in the deployment of weapons in tactical engagements under the RUF as
compared to the rules and training for ROE/LOAC.60 If available, training with police may provide
them with great insight into the challenges confronted by a member in a use of force situation.
Although training such as this is resource intensive and time consuming, it is difficult for judge
advocates, who have limited or no exposure to tactical scenarios involving the use of weapons, to
provide comprehensive advice and support to training the force.
If resources or time do not allow for “hands on” training, the development of scenario training packets
can assist in developing better appreciation for application of the RUF. An analysis of likely scenarios
done in conjunction with a robust discussion of controlling legal authority can help illuminate the
challenges that members may face during the use of force, and thus better inform judge advocates.
Further, these scenarios can be developed to highlight the challenges that often face RUF drafters, and
thus improve upon their ability to understand and apply the RUF.
fired at them with a .22 caliber rifle that he had in his possession. The Marine claimed that he returned fire when fired upon
and he killed the individual with one shot from his M-16 rifle. There was immediate controversy that surrounded the
incident and the Navy agreed to settle the claim for an amount reported to be between $1.3 and $1.9 million dollars. See
U.S. Settles with Family in Fatal Border Shooting, NY TIMES (August 12, 1998), available at
http://www.nytimes.com/1998/08/12/us/national-news-briefs-us-settles-with-family-in-fatal-border-shooting.html.
59 Congress, recognizing that the scope of duties for Federal law enforcement officers does not typically extend to
enforcing laws against simple assaults, homicides, and other types of violent crime, extended the scope of employment for
Federal officers having to use force to prevent such violent crimes. The language of this statute does not make it applicable
to the majority of service-members engaged in domestic operations. See Pub. L. 105-277, Section 101(h), as amended by
Pub. L. No. 106-58, Title VI, sect. 623, Sept. 29, 1999, often referred to as the Federal Good Samaritan Statute.
60 Although the law that governs RUF is different than that which governs ROE, this training will assist judge advocates
that are called to assist in the development or training of either RUF or ROE, as an appreciation of the tactical use of small
arms and other lethal and non-lethal weapons will improve a judge advocate’s ability to support members and the command
significantly.
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CHAPTER 11
RULES FOR THE USE OF FORCE FOR THE NG
KEY REFERENCES:
•
10 U.S.C. §§ 251-255 - The Insurrection Act.
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
•
28 U.S.C. §§ 1346, 2671 - 2680 - The Federal Tort Claims Act (FTCA).
•
32 U.S.C. § 502 - Required drills and field exercises.
•
Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321, 110 Stat. 3877
(1996).
• Chief, National Guard Bureau 3000.04, National Guard Bureau Domestic Operations, January 24,
2018.
• National Guard Regulation 500-5/ANGI 10-208 - NG Domestic Law Enforcement Support and
Mission Assurance Operations, August 18, 2010.
A. Introduction
The National Guard (NG), or organized militia, is a Federally-recognized State1 government entity,
except when called or ordered2 to Federal active duty as an element of the NG of the United States.3
The effect of this constitutionally-derived4 status is perhaps the most apparent on the rules for the use
of force (RUF) for the NG.5 Some DoD policies and Service regulations apply to the NG when they
are in Federal status, but not when they are commanded by State authorities.6 As a result, the law that
1
“State,” as indicated in the introduction to this Handbook, and used here includes the fifty States, the District of
Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands, all of which have National Guard (NG) organizations headed
by an Adjutant General (or a Commanding General in the case of the District of Columbia National Guard) governed by
State law. For example, the New York National Guard is governed by NY Consolidated Laws Service, Military Law and
the Virginia National Guard is governed by the Code of Virginia, Title 44.
2 Members of the NG are called to duty under 10 U.S.C. §§ 331-333 and are ordered to duty under 10 U.S.C. §§ 12301-
12304.
3 See Perpich v. Department of Defense, 496 U.S. 334 (1990).
4 The NG derives its State status from the Militia Clauses of the U.S. Constitution. U.S. CONST., art. I, § 8, cl. 15, 16.
5 The law forming the bases for the RUF by the NG is the general criminal law of the States. There is, therefore, no single
term used to describe those rules as States have referred to them variously as rules of engagement (ROE), rules for the use
of force (RUF), rules on the use of force (ROUF), and rules of interaction (ROI). “RUF,” as used in this chapter, is used as
a generic term intended to encompass those rules of the 54 NG jurisdictions, which are based upon the criminal laws of
those individual jurisdictions. Compare this to the standing rules on the use of force (SRUF) in 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 (13 Jun. 2005) [hereinafter CJCSI 3121.01B]. CJCSI 3121.01B is classified
overall secret; the portions regarding SRUF discussed herein are unclassified.
6 For example, CJCSI 3121.01B SRUF applies to the National Guard only when called or ordered to active duty in a
Federal status under the provisions of Title 10, U.S.C. See, e.g., U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT
OF CIVIL AUTHORITIES (29 Dec. 2010) (C2, 19 Mar. 2018); U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF
CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb. 2013) (C1, 8 Feb. 2019). CHIEF, NAT’L GUARD BUREAU, INST. 3000.04,
NATIONAL GUARD BUREAU DOMESTIC OPERATIONS (24 JAN. 2018) [hereinafter CNGBI 3000.04].
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is the basis for NG RUF is the criminal law of the State in which a NG unit is performing the mission.7
The drafting and application of State NG RUF, derived from State law and NG Bureau policy,8 is the
subject of this chapter.9
B. RUF and State Criminal Laws
1.
State Law Applicable to Both Title 32 and SAD Statuses
Most NG operations in support of civil authorities are in support of State civil authorities and are
undertaken on a State-funded basis, usually referred to as “State Active Duty” (SAD).10 These
operations include response to natural disasters, providing security during civil disturbances, and
assistance to civil authorities during other State emergencies, such as strikes at State institutions. The
notable operational exceptions include National Special Security Events (NSSE) as discussed in
Chapter 8 infra,11 the 2001-2002 NG airport security mission (hereinafter airport security mission), 12
the 2012 NATO Summit in Chicago, and the Democratic and Republican National Conventions of
2016. These operations were performed in Title 32 status.13 As explained in Chapter 3 infra, both
7 See NATIONAL GUARD REGULATION 500-5/ANGI 10-802 - National Guard Domestic Law Enforcement Support
and Mission Assurance Operations (18 Aug. 10) [hereinafter NGR 500-5], para. 4-4. A more in-depth explanation is that
the criminal law of the States applies to both members of the National Guard operating in a State status and to off-post
operations (and in some instances, some on-post activities) of the active components of the U.S. armed forces (including
the NG called or ordered to active Federal service). See 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. The active component, because of its Federal mission, is however largely protected from the impact of State
criminal law by the doctrine of Federal Supremacy Clause immunity. Judicial opinions dealing with the application of that
doctrine to the military are discussed in the text infra at subparagraph C.2.
8 National Guard Bureau (NGB) policy states that use of force is governed by State law. NGR 500-5, supra note 7, para.
4-4.b.
9 This chapter does not include consideration of State rules for the use of force applied as part of the NG counter-drug
program, for that see infra Chapter 7, Counterdrug Operations.
10 See NGR 500-5, supra note 7, para. 4-1. DEP’T OF DEFENSE, DIR. 5101.83, NATIONAL GUARD JOINT FORCE
HEADQUARTERS-STATE (NG JFHQS-STATE) (5 Jan. 2011) (C2, 31 MAR. 2020). State active duty [SAD] is a status pursuant
to State law only and is funded by the State, unlike the status in which the NG trains for its Federal mission pursuant to
Title 32 of the United States Code [Title 32 status], which is Federally funded and regulated. The NG in an SAD status
may, however, use certain Federal equipment, subject to a requirement for reimbursement for that use. In SAD status,
many NGB and Active Army regulations may not apply unless the State has adopted those regulations as a matter of State
law; for more information, see Chapter 3 infra.
11 For example, the NG provided security support for the 1996 Summer Olympics in Atlanta, Georgia, and the 2002 Winter
Olympics in Salt Lake City, Utah.
12 The airport security mission was served as “other duty,” pursuant to 32 U.S.C. § 502(f). On September 27, 2001, the
President made a request to all of the State Governors that they call their NG personnel to duty, to be paid for by the United
States, according to a White House press release. Between four and five thousand NG personnel served at approximately
450 commercial airports around the United States in response to the President’s request. Additionally, New York National
Guard personnel in a Title 32 status after the 9/11 terrorist attacks performed another mission in the form of armory
security. See Transcript of After Action Review Conference, Office of the Staff Judge Advocate, State Area Command
(STARC), New York Army National Guard, and the Center for Law and Military Operations, at 17-18 (17-18 May 2002)
[hereinafter NYARNG Transcript] (on file with CLAMO).
13 NATIONAL GUARD REG. 350-1, ARMY NATIONAL GUARD TRAINING, para. 3-9.j.4 Aug. 2009) [hereinafter NGR 350-1]
(providing that Title 32 status may be used by an Adjutant General for what would otherwise be a State (SAD) mission if
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SAD and Title 32 statuses are non-Federal and State law applies.14 As such, it is criminal law of the
States hosting the events (i.e. the Olympics, convention, etc.) that govern the RUF. In the case of
airport security, the NG executes missions in many of the 54 NG jurisdictions. Each jurisdiction in
which NG personnel secured an airport, applied its own criminal law.15 Consequently, multiple sets of
RUF were used during the airport security mission. Although most rules addressed similar subjects,
the specific implementation of these rules varied depending on the jurisdiction.16 Examples of State
RUF referred to throughout this chapter are, unless otherwise indicated, the RUF of the airport security
mission.
2.
Subjects for Inclusion in State RUF for the NG
When the NG executes a Title 32 or SAD mission that utilizes RUF, the subjects appropriate for the
RUF are derived from the mission operation plan or operation order (OPLAN/OPORD). The RUF
covers core State criminal law subjects such as the right of self-defense (including the retreat doctrine)
necessary warning, proportionality, and location issues (for instance the defender’s home or
workplace). The RUF should also address the right to carry and discharge firearms, the authority of
NG personnel as peace officers, and the authority for apprehension, search, and seizure. Whether, and
the extent to which, these basic RUF subjects are included in a given OPLAN/OPORD are mission-
dependent decisions.17
a. Subjects Appropriate for Inclusion in All RUF
(1) RUF Change Authority
A vital element appropriate for virtually all State NG RUF is an explanation of the authority to modify
the RUF. If Adjutants General have delegated that authority to subordinate commanders, then the
RUF must clearly state which part(s) of the RUF may be changed, in what manner and by whom. If
the RUF contains no delegation of authority, either the Adjutant General or State level task force
commander retains the authority. If the authority to change the RUF is wholly denied, including the
authority to further restrict the RUF, then that should also be made clear.
(2) Right of Self-Defense
the Adjutant General determines that the mission will provide a training benefit for NG personnel in their Federal role). At
least one State, New York, chose to exercise all or part of the airport security mission in SAD status.
14 See infra Chapter 3. Note that this may not always be the case in Federal use of force law liability. For example, if NG
personnel in a Title 32 or SAD status are inadvertently made subject to the orders and authority of a Federal commander,
they could be held to a use of force standard as defined by applicable Federal law.
15 The 1996 Summer Games in Georgia and the 2002 Winter Games in Utah are two examples.
16 In 2003, the Operational Law and Counterdrug Team of the Chief Counsel’s Office, NGB, collected and reviewed
virtually all of the State RUFs used in the airport security mission. All these RUFs are retained by that office in both paper
and electronic format. The Operational Law and Counterdrug Team has continued to collect and review the State RUFs
since 2003, including those used in hurricane responses such as Hurricanes Harvey, Irma and Nate in 2018.
17 For example, if the mission includes the security of certain real property, then the right to search and seize and amount of
force necessary to undertake the inspection of persons and personal property entering and leaving that location should be
included in the OPLAN/OPORD or RUF.
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Another element appropriate for inclusion in all RUF, even for unarmed security missions, is the right
to exercise reasonable and necessary force in self-defense.18 Mission analysis19 and State law20 will
determine whether, as part of the general right of self-defense, NG personnel will be armed. Judge
advocates should help determine that appropriate procedural requirements regarding the carriage of
weapons have been met well before a mission. One of the early concerns for New York Army NG
judge advocates after the 11 September 2001 terrorist attacks was the New York National Guard
personnel’s authority to carry weapons. Under New York law “[p]ersons in the military service of the
State of New York when duly authorized by regulation issued by the adjutant general” are authorized
to carry firearms.21 Unfortunately, such regulations were not previously promulgated. Consequently,
the judge advocates drafted Department of Military and Naval Affairs (DMNA) Regulation 27-13,
Carrying of Firearms and Use of Force, which the Governor’s Counsel Office approved on 29
September 2001.22
The RUF must also address State law topics such as the right to defend others,23 the duty to retreat,24
the use of deadly force to prevent escapes,25 the requirement or limit on the use of warnings before the
employment of deadly force in self-defense,26 the requirement for the use of proportionality,27 and
whether the place where the right of self-defense is exercised imposes additional legal implications.28
18 See CJCSI 3121.01B, supra note 5, Encl. L(U), para. 4.a. It provides that service-members may exercise individual self-
defense in response to a hostile act or demonstrated hostile intent, except as limited by a commander as part of unit self-
defense. The SRUF provide that a unit commander may limit the use of individual self-defense by members of their unit.
Whether State National Guard RUF may, like the SRUF, deny the right of individual self-defense in some instances, is
open to question, especially because many States have statutes applicable to all persons within the State, including National
Guard personnel, providing for the right of self-defense. See, e.g., MONT. CODE ANN. § 45-3-102. It is likely that NG
commanders could lawfully place restrictions on the use, for self-defense purposes, of weapons issued by the NG; however,
if a weapon is issued for the purposes of mission accomplishment, it may make little tactical sense to deny the use of the
same weapon for purposes of individual self-defense.
19 As used herein, “mission analysis” refers to the commander’s vision of the execution of the mission, a determination of
the amount of force necessary for mission accomplishment, and a determination, in light of known factors such as
intelligence on the nature of the threat presented to State forces, of whether NG personnel could be the subject of any type
of physical attack in executing the mission.
20 It is important to distinguish between the citizen’s individual right of self-defense from the right of a government official
to use force in self-defense. The rights and duties for these two different legal theories are similar, but contain critical
differences. RUF drafters must decide which legal authority they wish to invoke, and then ensure that the description of
this authority remains consistent. Ambiguities created by confusing the two authorities could lead to confusion by
members. Almost all of the topics listed in this section will allow for different conduct by a member acting in self-defense
under the two theories.
21 N.Y. PENAL LAW § 265-20.
22 NYARNG Transcript, supra note 12, at 51.
23 The right to defend others is frequently the subject of the same State statutes that provide for an individual’s right to
defend him or herself. See, e.g., CONN. GEN. STAT. § 53a-19(a); COLO. REV. STAT. § 18-1-704(1).
24 The laws of several States require the duty to retreat, so, for the airport security mission, those States included the duty
in the RUF. See, e.g., Connecticut airport security mission RUF para. IIIC(b) and CONN. GEN. STAT. § 53a-19(b).
25 For a detailed discussion of the Fourth Amendment aspects of this topic in the context of FBI RUF, see Harris v.
Roderick, 126 F.3d 1189 (9th Cir. 1997).
26 Many, if not most, States included the necessity for a warning (if possible) before resorting to the use of deadly force in
the airport security mission RUF.
27 Some State RUF used for the airport security mission specifically required that action taken in self-defense must be
proportional to the force used in the attack necessitating the defense. It is unclear whether this duty was imposed in the
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(3) Special Orders
Many RUF include discussion of issues not directly related to the use of force. These issues are called
“special orders” and cover such matters as: training (including training scenarios), military bearing and
appearance, immunity, standards of conduct and treatment of civilians, safety, handling news media,
discussion of the mission with others, and handling of suspicious persons, vehicles, and activities.
Usually, The Adjutant General (TAG) of the State or the task force commander will decide whether to
include them in the RUF or in the OPLAN/OPORD.
b. Role of State Law in Determining RUF for Law Enforcement, Law Enforcement
Support, and Security Missions
There are variations between the States regarding NG authority to apply force during law enforcement
response,29 law enforcement support,30 or security operation. For example, some States by statute give
the NG the full authority of peace officers.31 In other States, the NG has only those peace officer-type
powers enjoyed by the population at large.32 While others provide that the NG has certain specific
authorities in limited situations.33 Depending upon the State statutes, the NG’s authority to act as
peace officers may apply to operations in a Title 32 status or SAD status.34 Regardless, the NG judge
RUF as a result of a State law requirement, or whether it was an inadvertent carryover from the law of war rule of
proportionality that is reflected in the SROE.
28 In some States, the right of self-defense is greater when exercised in the defender’s home or place of work. In those
places there is often no duty to retreat. See, e.g., CONN. GEN. STAT. § 53a-19(b); N. D. CENT. CODE § 12.1-05-07.
29 Because the Posse Comitatus Act, 18 U.S.C. § 1385 (2016) [hereinafter PCA] does not apply to the NG when not in
Federal status or under Federal control, there is no Federal law prohibiting the NG from participating in direct law
enforcement actions. Whether the NG forces of any State may otherwise participate in such actions therefore depends upon
the law of the individual States. Concerning application of the PCA to the NG, see also infra subparagraph C.2.
30 For the purposes of the NG, “law enforcement support” usually means assistance provided to civilian law enforcement
agencies at their direction or request - a meaning which may differ for purposes of the PCA regarding Federal military
forces.
31 For example, Arkansas law at ARK. CODE ANN. § 12-61-112(a) provides the following:
(a) Whenever such forces or any part thereof shall be ordered out for service of any kind, they shall have all powers,
duties, and immunities of peace officers of the State of Arkansas in addition to all powers, duties, and immunities now
otherwise provided by law.
32 See, e.g., Iowa RUF for the airport security mission “Task Force Freedom Flight - Airport Security Instructions,” para. 4
and its reliance, for the purposes of arrest of civilians committing crimes in the presence of National Guard personnel, on
Iowa Code § 804.9, granting ordinary citizens the power of arrest; Nebraska Rules of Interaction (ROI) #02, 2 Oct. 2001,
para. 7 (“You must apply the use of force rules that apply to a private citizen under State law”); and Use of Force and
Arrest Powers of New York National Guard Soldiers, para. 5 (“a National Guardsman’s power and authority under New
York State law are the same as any other citizen”). When conducting SAD missions in the wake of the 11 Sept. 2001
terrorist attacks, the NYARNG had no greater power than the normal citizen regarding arrest authority. Although a New
York State Emergency Act provided a mechanism for the NYARNG to be designated as peace officers, the provision was
not used because the Act also required a lengthy training period. See NYARNG Transcript, supra note 12, at 52.
33 See, e.g., GA. CODE ANN. § 38-2-6-38-2-6.1.
34 For example, Ark. Code Ann. § 12-61-112 applies “Whenever” NG forces are ordered to “service of any kind,” but Ga.
Code Ann. § 38-2-6 to 38-2-6.1, when read in toto, provide that the Governor has the power “in case of invasion, disaster,
insurrection, riot, breach of the peace, combination to oppose the enforcement of the law, or imminent danger thereof” to
declare an emergency ordering the National Guard into “the active service of the State” and granting the National Guard the
authority to “quell riots, insurrections, or a gross breach of the peace or to maintain order.”
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advocate must participate in the effort to tailor the RUF to the particular mission, State law, and
policies of the TAG.35
c. Subjects Appropriate for Inclusion in Law Enforcement, Law Enforcement
Support, and Security Mission RUF
(1) Use of Force and Level of Force Generally
If the NG mission is law enforcement, law enforcement support, or security the mission
OPLAN/OPORD or its RUF must specify what type of government weapons, if any, may be used to
accomplish the mission. Additionally, the mission OPLAN/OPORD or its RUF should include
instructions on self-defense, the use of weapons, what law enforcement-type actions (such as search
and seizure) may be taken, and the degree of force authorized to address incidents that may arrive
during the mission. If authority is not granted for any law enforcement-type action, the RUF or
mission OPLAN/OPORD should expressly deny the use of force for that specified purpose.
Conversely, if NG personnel are allowed to take law enforcement-type actions as a last resort, such as
the power to detain and question and/or search persons when civilian law enforcement personnel are
unavailable or where NG personnel have been directed to do so by civilian law enforcement personnel,
this should be stated.
For example, if a law enforcement support or security mission includes guarding buildings or real
property, the RUF must address whether persons entering or leaving the property may be detained,
questioned, or searched by NG personnel. If detention, and questioning and/or search are authorized,
then the RUF must state whether and to what degree force may be used to enforce the action.
Moreover, for missions that include guarding buildings or real property, the RUF must address whether
force, up to and including deadly force, may be used to defend the property. Some airport security
mission RUF, for instance, provided that deadly force could only be used to defend specially
designated property.36 When this device is used, NG judge advocates must ensure that a statutory or
other system exists for the designation of such property.
(2) Definitions
Definitions may be appropriate for inclusion in all RUF but they are particularly necessary for armed
law enforcement, law enforcement support, or security operations. Using law enforcement-type terms
that NG personnel may not be familiar with may create confusion and may have unintended
consequences. Terms commonly defined include: deadly weapon; firearm; reasonable, necessary, or
minimum force; peace officer; probable cause; reasonable suspicion; reasonable belief; deadly and
non-deadly force; arrest (civilian or military term); apprehension; detention; property vital to public
health or safety (or other similar phrases); forcible felony (when defense is predicated on commission
of a forcible felony); hostile act; hostile intent; proportionality or proportional force; felony; and
misdemeanor.
35 For the purposes of the airport security mission, some States adopted more restrictive RUF than State law allowed.
36 On the other hand, the NYARNG RUF did not allow the use of deadly force to protect property. Deadly force was only
authorized in self-defense “if there was a threat of death or grievous bodily harm.” See NYARNG Transcript, supra note
12, at 70.
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(3) Arming Orders
If firearms or other weapons with the capability to kill or severely injure another will be issued, then
the RUF should provide for positive control by experienced NCOs or officers. One method of
accomplishing this is to specify how members will carry their weapons, ammunition, and other
ancillary equipment, expressed through arming orders. Arming orders are a state of preparedness to
use force. They should not be confused with the authority to use force once a member is faced with a
threat. Arming orders are typically written in a chart or matrix format, specifying where or how the
weapons will be carried and where ammunition will be kept, including when and where loaded
magazines should be carried and when rounds should be chambered. The use of weapons other than
firearms should also be addressed if those weapons will be issued.37 Below is an example of arming
orders used by the Indiana NG for the airport security mission.
Arming
Rifle or
Pistol
Baton
Chamber
Ammo
Bayon
Weapon/
Order
Shotgun
et
Safety
Not
AO-1
Sling
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-2
Port
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-3
Sling
Holster
Hand
Empty
In Pouch
ON
issued
Not
AO-4
Port
Holster
Hand
Empty
In Pouch
ON
issued
In
Not
AO-5
Port
Holster
Hand
Empty
ON
Weapon
issued
Locked &
In
Not
AO-6
Port
In Hand
Belt
ON*
Loaded
Weapon
issued
* Leave safety on until ready to fire
(4) Special Orders
Other potential subjects appropriate for inclusion in NG RUF for armed law enforcement, law
enforcement support, or security missions concerning use of force include: the relationship of NG
personnel to civilian law enforcement personnel,38 acting at the direction of civilian law enforcement,39
37 Other weapons may include use of water, batons, pepper spray, or tasers (electric stun guns). In airport security mission
RUF, some States began their use of force matrix at a much lower level than would usually be the case, such as with an
unarmed member first attempting verbal persuasion, then using “unarmed defensive techniques,” then using non-deadly
physical force to restrain the aggressor, then stating that a weapon would be drawn if the aggressor continued his or her
aggression, then drawing and displaying the weapon, then stating that a round would be chambered, etc. Commanders
using this technique must of course explain that in a true tactical situation, the command does not expect that each service-
member must always use each and every incremental increase in the use of force; in some instances, it would be futile and
could risk injury to do anything except for, drawing and firing a weapon.
38 In a mission supporting civil authorities, NG personnel are typically instructed to rely upon civilian law enforcement
personnel to detain and question persons, conduct searches and seizures, and to apprehend offenders, and to take any of
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defense of others, pursuit of suspects, retention of evidence,40 use of restraints, reports of firearm
discharge,41 or other use of deadly force, accountability of weapons and ammunition, and a prohibition
against use of non-issued weapons and ammunition.
C. Specific RUF Issues
1.
RUF in Interstate (Cross Border) Operations
NG forces may cross State borders both for training in a Title 32 status for their Federal mission and
for assisting neighboring States in SAD status. Naturally, for many of these operations, the units carry
their organic weapons. In some States, however, State code or constitutions may complicate this
practice. For example, § 33 of the Montana Constitution provides that no “armed persons . . . shall be
brought into this State for the preservation of the peace . . . except upon application of the legislature . .
.” and § 437.209 of Texas Statutes provides that a “military force from another State . . . may not enter
the State without the permission of the Governor.” Statutes or constitutional provisions like these can
impede the timely flow of NG forces from one State to another.
Federal Supremacy Clause immunity42 may be a viable defense should a violation of State law arise in
the case of a NG force crossing a State border for Federal training purposes (this concept is discussed
more below). If Federal Supremacy Clause immunity is successful in defense of a violation of State
law, then the use of one State’s RUF would not be an issue in cross-border operations (unless the RUF
themselves are unconstitutional),43 unless operations undertaken in an SAD status are involved.44
The best approach is to work and obtain the proper approval to enter a State border in advance of a
cross-operation. Cross-border operations by State NG units in a SAD status for the purposes of
disaster relief or other State emergencies within a second State have typically been accomplished
these steps themselves only when requested or directed by those civilian law enforcement personnel or only in the most
exigent of other circumstances. See NGR 500-5, supra note 7; and, for the purposes of the airport security mission, 29
Sept. 2001 ARNG Airport Security Instructions, para. 2-1, 3-6b [hereinafter ARNG Airport Security Instructions] (limiting
the NG to a law enforcement support role during the airport security mission).
39 Actions taken at the direction of Federal personnel will help support the argument that NG members are shielded by
Federal Supremacy Clause immunity from State criminal charges. See text infra, subparagraph C.2.; also see, West
Virginia v. Laing, 133 F. 887 (4th Cir. 1904) and James River Apartments, Inc. v. Federal House. Admin., 136 F. Supp. 24
(D. Md. 1955), in which persons who otherwise had no Federal or other governmental status were given Federal
Supremacy Clause immunity by judicial opinion because they acted at the behest of Federal officials. Note also that NG
members taking law enforcement-type action at the express request or direction of law enforcement personnel may be
provided with State immunity from civil or criminal prosecution. See, e.g., UTAH CODE ANN. § 76-2-404; CONN. GEN.
STAT. § 53a-22(d)-(e).
40 DA Form 4237-R (Detainee Personnel Record) may be used to inventory items taken from detainees.
41 ARNG Airport Security Instruction, supra note 41, para. 3-17a(3), required that the discharge of firearms, among other
matters, by NG personnel serving in that mission be reported to the NGB as a serious incident.
42 See text infra subparagraph C.2.
43 For an example of unconstitutional RUF, see Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997).
44 It is even more likely that an armed National Guard force would be seen as a threat if entering the State in a SAD status
to control civil unrest, rather than under a pure training mission pursuant to 32 U.S.C. § 502(f). Also note that some civil
support missions undertaken for State purposes may be counted as training; however, under NGR 350-1, supra note 13,
para. 3-9.j., and Federal Supremacy Clause, immunity may be available to protect that mission or part of that mission.
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pursuant to the several disaster-related or “NG-only” interstate compacts.45 The latest of these
compacts available for use during disaster relief or other State emergencies by the NG, and most
recently approved by Congress, is the Emergency Management Assistance Compact (EMAC).46 As
table 11-1 demonstrates below, all States now have codified the EMAC, most without change. Since
its approval by Congress in 1996, many States have used EMAC for various State emergencies.
EMAC, like all congressionally-approved interstate compacts, is Federal law.47 As such, it is applied
in the same manner as other Federal legislation.48 This position in the legal hierarchy provides a basis
to overcome State constitutional provisions that would otherwise serve to prohibit the entry of NG
members from other States.49 Further, requesting States may grant sending state NG forces peace
officer powers (in accordance with requesting State’s statutes) via EMAC supplemental agreements.50
Under most situations, NG cross border operations are usually limited to providing law enforcement
support to civil authorities, rather than providing direct law enforcement service.51 However, NG can
in some instances be used for domestic law enforcement operations.52
45 The Emergency Management Assistance Compact (EMAC); the Interstate Civil Defense and Disaster Compact; the
Interstate Emergency Management Compact; the Interstate Mutual Aid Compact; and the National Guard Mutual
Assistance Compact. This on-line list includes neither the Massachusetts Compact with New York for Military Aid in an
Emergency nor the New England States Emergency Military Aid Compact.
46 The Emergency Management Assistance Compact (EMAC) was approved by Congress in October of 1996, see Pub. L.
No. 104-321, 110 Stat. 3877 (1996) [hereinafter EMAC]. At the time of the 9/11 terrorist attacks, New York was not a
member of the EMAC. New York did, however, have a 1951 Mutual Aid Compact with New Jersey, Vermont, and
Massachusetts. A major issue that arose was what State would have command and control over service-members from
other States. NYARNG Transcript, supra note 12, at 35-6.
47 See, e.g., Texas v. New Mexico, 462 U.S. 554 (1983).
48 See, e.g., Skamania County v. Woodall, 16 P.3d 701 (Wash. 2001).
49 The EMAC provides that a request by one party State for mutual aid from a second State is mandatory in that the request
must be honored, subject only to the second State’s right to retain within that State those resources as are necessary for self-
protection. EMAC, supra note 49, art. IV, para.1.
50 The EMAC provides that the power of arrest is granted to the emergency forces of the sending State if that power is
“specifically agreed to” by the receiving State. EMAC, supra note 49, art. IV, para. 2. If the statutes of the receiving State
grant only the NG forces of that State the authority of a peace officer, that limitation might be overcome by providing for
the expanded authority of those forces from the sending State into one or more supplementary agreements pursuant to
EMAC Article VII. Including this authority in a supplemental agreement could overcome the limitations to a State’s own
National Guard units because an agreement implementing an interstate compact that has been approved by Congress has
been held also to have the force and effect of Federal law. See Tahoe Reg’l Planning Agency v. McKay, 769 F.2d 534, 536
(9th Cir. 1985). A related issue is whether the executive branch emergency forces of two States whose legislative branches
have granted no peace officer authority to either of their respective NG forces can nevertheless give themselves those
powers and their supporting RUF by the inclusion of those powers in an EMAC Article VII supplementary agreement.
51 See NGR 500-5, supra note 7, para. 4-2. The National Guard instruction governing the airport security mission
contemplated cross border operations but provided that NG forces were not to participate in law enforcement operations
unless in exigent circumstances. ARNG Airport Security Instructions, supra note 41, paras. 2- 1e, 2-8.
52 See generally, NGR 500-5, supra note 7, Chapter 5.
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State
EMAC Legislation
Alabama
Ala. Code § 31-9-40
Alaska
Alaska Stat. § 26.23.135
Arizona
Ariz. Rev. Stat. § 26-402
Arkansas
Ark. Code § 12-49-402
California
Cal. Gov’t Code §§ 179-179.9
Colorado
Colo. Rev. Stat. § 24-60-2901
Connecticut
Conn. Gen. Stat. § 28-23a
Delaware
Del. Code tit. 20, § 3401
District of
D.C. Code § 7-2331
Columbia
Florida
Fla. Stat. §§ 252.921-933
Georgia
Ga. Code § 38-3-81
Guam
Guam Pub. L. 29-29
Hawaii
Haw. Rev. Stat. § 128F-2
Idaho
Idaho Code § 46-1018A
Illinois
45 Ill. Comp. Stat. 151
Indiana
Ind. Code §§ 10-14-5-1 to 16
Iowa
Iowa Code § 29C.21
Kansas
Kan. Stat. § 48-9a01
Kentucky
Ky. Rev. Stat. § 39a.950
Louisiana
La. Stat. § 29:733
Maine
Me. Rev. Stat. tit. 37-B, § 921-933
Maryland
Md. Code, Pub. Safety § 14-702
Massachusetts
2000 Mass. Acts ch. 339
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Michigan
Mich. Comp. Laws § 3.991
Minnesota
Minn. Stat. § 192.89
Mississippi
Miss. Code § 45-18-3
Missouri
Mo. Rev. Stat. § 44.415
Montana
Mont. Code 10-3-1001
Nebraska
Neb. Rev. Stat. § A1-124
Nevada
Nev. Rev. Stat. § 415. 010
New
N.H. Rev. Stat. §§ 108:1-3
Hampshire
New Jersey
N.J. Stat §§ 38A:20-4, 20-5
New Mexico
N.M. Stat. §§ 12-10-14, 15
New York
N.Y. Exec. Law § 29-g
North
N.C. Gen. Stat. § 166A-40 to 53
Carolina
North Dakota
N.D. Cent. Code §37-17.1-14.5
Ohio
Ohio Rev. Code § 5502.40
Oklahoma
Okla. Stat. tit. 63, §§ 684.1-13
Oregon
Or. Rev. Stat. § 402.105
Pennsylvania
35 Pa. Cons. Stat §§ 7601-7604
Puerto Rico
P.R. Laws tit. 1, §§ 621-633
Rhode Island
30 R.I. Gen. Laws §§ 30-15.9 to 14
South
S.C. Code §§ 25-9-410, 25-9-420
Carolina
South Dakota
S.D. Codified Laws §34-48A-53
Tennessee
Tenn. Code § 58-2-403
Texas
Tex. Health & Safety Code § 778.001
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Utah
Utah Code §§ 53-2a-401 to 403
Vermont
Vt. Stat. tit. 20, §§ 101-112
Virgin Islands
V.I. Code tit. 23, §§ 1051-1064
Virginia
Va. Code § 44-146.28:1
Washington
Wash. Rev. Code § 38.10.010
West Virginia
W. Va. Code § 15-5-22
Wisconsin
Wis. Stat. § 323.80
Wyoming
Wyo. Stat. §§ 19-13-401 to 414
Table 11-1. State EMAC Legislation
2.
State Criminal Liability of NG Members for Use of Force
Immunity from State criminal charges for wrongful use of force by NG personnel was addressed by
some NG RUF for the airport security mission.53 The subject is addressed here in the context of NG
personnel on active duty for the purpose of Federal domestic law enforcement support or Federal
security mission,54 for both Title 3255 and SAD status, for the purposes of a State emergency.
a. Active Duty Federal Mission
Although the early history of the doctrine of Federal Supremacy Clause immunity56 began before the
case was decided,57 the opinion of the Supreme Court in In Re Neagle, 135 U.S. 1 (1890), is regarded
as the seminal Federal Supremacy Clause immunity case. It established the theory that employees of
the United States cannot be limited by prosecution under State criminal laws, by the States in their
good faith, rightful, and proper execution of their Federal duties.
Mr. David Neagle, who served as a Deputy U.S. Marshal and bodyguard to Mr. Justice Stephen Field,
then a sitting member of the U.S. Supreme Court, was charged with murder by the State of California
after killing another individual, Mr. David Terry. At the time of the incident, Mr. Neagle thought Mr
Terry was reaching for a weapon in an attempt to kill Mr. Justice Field. Neagle successfully argued
that in killing Mr. Terry, he (Neagle) did no more than was required of him by his Federal position as
53 See, e.g., Airport security mission RUF for the States of Nevada, New Jersey, and New York.
54 Such as during the 2002-2003 Air Force security mission, in which approximately 8,100 Army National Guard Soldiers
were mobilized under 10 U.S.C. § 12302 for the purposes of providing security at U.S.A.F. and Air National Guard
installations.
55 This was the case in the airport security mission.
56 See U.S. CONST. art. VI, cl. 2 (Supremacy Clause).
57 A U.S. Supreme Court case predating Neagle is Tennessee v. Davis, 100 U.S. 257 (1880).
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Deputy Marshal and bodyguard and that California should not be allowed to proceed in its prosecution
lest that State by implication be allowed to control the proper execution of his Federal duties.
Since that case, the defense that proved so valuable to Mr. Neagle has been applied successfully
numerous times in judicial opinions on behalf of Federal employees and other persons carrying out
Federal missions, including Federal military personnel carrying out Federal military missions. Those
Federal active duty military defendants have successfully employed the “Neagle defense” of Federal
Supremacy Clause immunity against State criminal charges for improper operations of a motor
vehicle,58 defamation,59 assault,60 and murder in the course of guarding prisoners of the U.S. Army.61
There is no limitation expressed in any of those opinions as to the type or character of the State offense
to which the doctrine might be applied on a service-member’s behalf.62
In only one reported military-related case has anything like Federal military RUF been clearly the
subject of a Federal Supremacy Clause defense to State criminal charges. In United States v. Lipsett,
156 F. 65 (W.D. Mich. 1907), a case involving the shooting of an innocent bystander by a military
guard, the Court examined the manual of guard duty used for training guards assigned to military
prisoners. The Court found that per the manual, the guard’s duty in response to an attempted escape
was to first call for the escapee to halt, and if the escapee did not halt, to then fire upon the prisoner.63
In this case, based largely on the court’s understanding of the guard’s Federal duties, the guard was
acquitted of manslaughter.
The only case involving Federal RUF is a non-military civil case involving the RUF used by the FBI
during the standoff between alleged weapons trafficker Randy Weaver and the FBI at Ruby Ridge,
Idaho, in 1992. In Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), the Court held the “shoot any
armed male” FBI RUF to have been overly broad and to have deprived the plaintiff of his
constitutional rights under the Fourth Amendment of the Constitution. Thus, not only may a Federal
officer, in the performance of his duties under a set of rules unlawfully deny the victim his
constitutional rights, but the RUF at issue may be considered unconstitutional on their face as well.
b. Title 32 or SAD Status and Mission
The holding of Perpich v. Dep’t of Defense,64 supra, stated that NG personnel in a Federal training or
“other duty” status under 32 U.S.C. 502 are a State military force, and consequently, their RUF are
58 See Montana v. Christopher, 345 F. Supp. 60 (D. Mont. 1972) (operating a vehicle without lights); Commonwealth v.
Thomas, 612 F. Supp. 14 (W.D. Pa. 1984) (violation of State weight limits).
59 Howard v. Sikula, 627 F. Supp. 497 (S.D. Ohio 1986).
60 See Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945); Commonwealth v. Johnson, 297 F.Supp. 877 (W.D. Pa. 1969).
61 See In re Fair, 100 F. 149 (C.C.D. Neb. 1900) and United States v. Lipsett, 156 F. 65 (W.D. Mich. 907).
62 The only limitation is that the act in question be taken in good faith and that the act be truly necessary for the purposes of
the Federal mission. Thus, the defense has not been judicially applied in defense to State charges of unintentional death
where the particular maneuver of a government vehicle was not required by the Federal military mission. See State v.
Ivory, 906 F.2d 999 (4th Cir. 1990).
63 United States v. Lipsett, 156 F. 65 (W.D. Mich. 1907).
64 Perpich v. Department of Defense, 496 U.S. 334 (1990).
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derived from State criminal and civil law. Under this analysis, the best defenses to the possibility of a
State criminal charge65 resulting from good faith compliance with State RUF include:
• A State statute providing criminal immunity for NG personnel.66
• An agreement with the State Attorney General (possibly at the time the State Attorney General
gives any approval of the RUF67) that NG personnel will not be prosecuted criminally for good
faith compliance with the NG RUF.68
• Extension of the doctrine of Federal Supremacy Clause immunity to NG personnel acting under
Federal control.
The application of Federal Supremacy Clause immunity to a State military force may rest upon the
accumulation of indicia of a Federal mission such as: Federally-funded orders, use of Federal
equipment, governance by Federal regulations, execution of the mission on a Federally-owned or
governed facility, application of the State RUF through execution of supplemental agreements under
EMAC,69 execution of the mission details at the direction of Federal authorities such as Department of
Homeland Security personnel, contracts or memoranda of agreement (MOAs) with Federal officials, or
orders to Title 32 duty at the request of Federal Government officials. Case law clearly indicates that
Federal Supremacy Clause immunity should be applied to cases involving a Federal mission whether
or not the subject of that protection is a Federal employee.70
3.
RUF in Mixed NG and Active Component Operations
Given the doctrine of Federal Supremacy Clause immunity, Federal active duty Soldiers have less
reason to consider themselves bound by the exact restrictions of a State’s criminal law and more reason
to follow the requirements of the SRUF than do NG personnel in Title 32 or SAD status. For this
reason, in domestic law enforcement support or security operations involving both active component
65 Of course, because the subject is the possibility of State criminal charges, there is no value to tort law “hold harmless”
agreements or the possible application of both the Federal Tort Claims Act and State tort claims laws.
66 New York, for example, has a statute that grants civil and criminal immunity to members of the New York National
Guard ordered into active service of the State for “any act or acts done by them in the performance of their duty.” N.Y.
PENAL LAW § 235. See also, NEV. REV. STAT. 412.154(1). In the case of the statutory immunity predicate for NG missions
for which firearms are issued, the most basic statute providing for use of force may be a statute providing for immunity for
the carrying of firearms. See, e.g., N.J. REV. STAT. § 2C: 39-6(1).
67 The ARNG airport security instruction required the National Guard RUF used for that mission be reviewed by the State
Attorney General. ARNG Airport Security Instructions, supra note 41, para. 3-6a.
68 This type of agreement would have to be predicated upon the approval of the NG RUF by the State Attorney General. It
also must be based upon the Attorney General’s statutory or common law powers of supervision over county or district
prosecutors; the more independent the local prosecutor, the less value of any agreement with the State Attorney General.
Where local prosecutors are mostly independent, assurance can only come from the agreement(s) of the local prosecutor(s).
69 Thus making the supplemental agreement and the RUF contained therein a matter of Federal law. See, e.g., Tahoe
Regional Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985).
70 For cases in which defendants, who had no Federal employee status, were subject to State criminal charges successfully
argued the application of Federal Supremacy Clause immunity based upon a Federal mission, see, e.g., West Virginia v.
Lang, 133 F. 887 (4th Cir. 1904) (member of U.S. Marshal’s posse made of ordinary citizens charged with murder);
Connecticut v. Marra, 528 F. Supp. 381 (D. Conn. 1981) (informer cooperating with FBI charged with attempting to bribe a
city policeman).
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and NG members, judge advocates must pay close attention to their RUF (in particular to ensure
compatibility with Federal SRUF) if each group has similar duties. The RUF applicable to NG
personnel must respect State limitations on law enforcement-type activities by the NG (such as
searches and seizures) and the use of force to support those activities.71
D. Role of the NG Judge Advocate
1.
Drafting RUF
While RUF are an S-3/G-3 and commander responsibility, judge advocates should assist in drafting
them (and may be tasked directly to draft them nonetheless). In addition, judge advocates should be
directly involved in the production of RUF-related documents, such as information papers, memoranda
of law, and memoranda of agreement with supported civil authorities.72 Some MOAs may contain
hold harmless provisions, which the judge advocates should review, negotiate, and advise upon. If the
RUF used by the NG in a law enforcement, law enforcement support, or security mission refers the
reader to, or adopts the RUF currently used by a State law enforcement agency, judge advocates must
review the documents relied upon for the RUF. The documents should be carefully reviewed to ensure
compatibility with member skills, training, capabilities, weapons, and mission. It may be necessary to
add provisions specifically applicable to the NG.
2.
Negotiating RUF with State Agencies
Judge advocates will want to determine whether the RUF, MOA, OPLAN/OPORD, training
documents, and other matters relating to the RUF are comprehensive, legally accurate, and well
understood by the drafters and commanders. At times, other State officers or agencies, such as the
Attorney General, district attorneys, or State law enforcement agencies may be involved in drafting or
approving the RUF. In such cases, judge advocates may find it necessary to educate and negotiate
issues that meld legal requirements with operational imperatives. For example, in New York after
September 11th, New York Army NG judge advocates assisted in drafting the Governor’s airport
security plan, including RUF. The plan and RUF were staffed through the Adjutant General and the
Governor’s Counsel Office, and approved by the Governor on 29 September 2001.73
3.
Providing Legal Advice on Liability
Counseling decision makers on the legal requirements necessary to protect members from civil and
criminal liability can be a complicated task. The primary focus of the judge advocate’s counseling will
71 This does not necessarily imply that State RUF will always be more restrictive than the SRUF. For example, in civil
disturbance support operations in which NGR 500-5 applies. See NGR 500-5, supra note 7, para. 404. In contrast, the
analogous provision of the draft SRUF, CJCSI 3121.01B supra note 5, Encl. L para. 5.c.(2), authorizes the use of deadly
force to protect president-designated assets vital to national security, which by definition is property the theft or sabotage of
which must create an “imminent threat of death or serious bodily harm.”
72 The National Guard Bureau Instruction governing the airport security mission required that States execute memoranda of
understanding or memoranda of agreement (MOU/MOA) with supported airports for missions longer than thirty days. See
ARNG Airport Security Instructions, supra note 41, para. 2-8a.
73 NYARNG Transcript, supra note 12, at 184.
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