UNCLASSIFIED

**[FOR RECORD]{.underline}**

**STATEMENT BY**

**MAJOR GENERAL TIMOTHY LOWENBERG**

**THE ADJUTANT GENERAL -- WASHINGTON NATIONAL GUARD**

**AND**

**DIRECTOR, WASHINGTON MILITARY DEPARTMENT**

**BEFORE THE**

**SENATE JUDICIARY COMMITTEE**

**ON**

**'THE INSURRECTION ACT RIDER'**

**AND**

**STATE CONTROL OF THE NATIONAL GUARD**

**\
APRIL 24, 2007**

**UNCLASSIFIED**

**STATEMENT BY**

**MAJOR GENERAL TIMOTHY J. LOWENBERG**

**ADJUTANT GENERAL, STATE OF WASHINGTON**

Thank you for the opportunity to appear before you today. I want to
emphasize at the outset that I am testifying on behalf of the State of
Washington and the Adjutants General Association of the United States
(AGAUS). Although I am a federally recognized and U.S. Senate-confirmed
General Officer of the U.S. Air Force, I appear before you today as a
state official in pure state status and at state expense. My formal
testimony, oral statement and responses to your questions should
therefore be understood as independent expressions of states' sovereign
interests. Unlike other military panelists who typically appear before
you, nothing I am about to say has been previewed, edited or otherwise
approved by anyone in the Department of Defense.

In a majority of the states and territories, including the State of
Washington, the Adjutant General is responsible for all state emergency
management functions in addition to command and control of the state's
Army and Air National Guard forces. In addition, I am responsible for
Washington's statewide Enhanced 911 telecommunications system and for
development and execution of our statewide Homeland Security Strategic
Plan and administration of all Homeland Security grant programs.
Washington has averaged more than one Robert T. Stafford Relief and
Emergency Assistance Act (the Stafford Act, 42 U.S.C. sections 5121
*et.seq.*) Presidential Disaster declaration each year for the past 40
years and our National Guard forces, acting under the command and
control of the Governor and the Adjutant General, have been an
indispensable response force in nearly every one of these disasters. The
Governor's use of the Washington National Guard was especially
instrumental in helping civil authorities restore public order during
the World Trade Organization riots in Seattle in November 1999.

I speak to you, therefore, as my state's senior official responsible for
military support to civil authorities. I have experience as both a
supported state commander (the WTO riots referenced above) and
supporting state commander (I deployed more than 1,000 National Guard
soldiers and airmen to Gulf Coast states in 2005 in response to
Hurricanes Katrina and Rita). S.513 is not an esoteric, "academic" or
"technical" subject for Governors and Adjutants General. Section 1076 of
the 2007 National Defense Authorization Act (Public Law 109-364;
hereafter referred to as the 2007 NDAA) has very negative and
destructive implications for the state, local and federal unity of
effort called for in Homeland Security Presidential Directive 5 (HSPD 5)
and in the comprehensive emergency management plans of the several
states and territories. Under the U.S. Constitution, states retain the
primary responsibility and authority to provide for civil order and
protection of their citizens' lives and property. Passage of S.513 is
critical to restoration of historic state-federal relationships and to
the states' ability to carry out their constitutional responsibilities

**Applicable Federal Statutes**

The Posse Comitatus Act (18 U.S.C. 1385) punishes those who, "except in
cases and under circumstances expressly authorized by the Constitution
or Act of Congress, willfully use \[\] any part of the Army or the Air
Force as a posse comitatus or otherwise to execute the laws...." The
Posse Comitatus Act does not apply to the National Guard when in state
active duty or federal Title 32 service because the Guard is under the
command and control of the Governor and the Adjutant General in both
statuses. It does apply to the Guard when in Title 10 service, however,
because when the Guard is federalized under Title 10 it becomes an
indistinguishable part of the federal forces and is under federal as
opposed to state control.

The Robert T. Stafford Act (cited above) authorizes the President to
make a wide range of federal services available to states that have
become victims of natural or human-caused disasters. The Stafford Act
authorizes the use of federal military forces for the widest possible
range of domestic disaster relief but not for maintaining law and order
and not as an exception to the Posse Comitatus Act. Some other
independent authority is required if federal military forces are to be
used to enforce the laws.

The Insurrection Act (enacted in 1807) delegates authority to the
President to federalize and deploy the National Guard domestically
during an insurrection or civil disturbance (10 U.S.C. Sections
331-335). Section 331 authorizes the President to use federal military
forces to suppress an insurrection at the request of a state government.
Section 332 authorizes the President to use armed forces in such manner
as he deems necessary to enforce the laws or suppress a rebellion.
Section 333 authorizes the President to use federal military forces to
protect individuals from unlawful actions that obstruct the execution of
federal laws or which impede the course of justice under federal laws.
Section 333 was enacted to implement the Fourteenth Amendment and does
not require the request or consent of the governor of the affected
state.

Prior to the 2007 National Defense Authorization Act, therefore, there
were carefully crafted statutes that delegated authority to the
President to federalize the National Guard and to employ the Title 10
National Guard forces and other Title 10 active duty military forces for
domestic purposes in response to domestic emergencies (Stafford Act)
and/or violence (Insurrection Act). The Insurrection Act's martial law
authority has been used sparingly. In fact, it has been invoked only 10
times in the past half-century. In every instance in which it has been
used in the past 40 years, the President has acted at the request and
with the concurrence of the governor of the state whose National Guard
forces were federalized.

**2007 National Defense Authorization Act**

**Expansion of Federal Martial Law**

The House-passed version of the 2007 National Defense Authorization Act
(NDAA) proposed to fundamentally expand the circumstances in which the
President could seize control of the National Guard (i.e. "federalize"
the Guard) for domestic purposes. As noted above, the Stafford Act
already permits the President to use active duty military forces for
emergency response operations including debris removal and road
clearance; search and rescue; emergency medical care and shelter;
provision of food, water and other essential needs; dissemination of
public information and assistance regarding health and safety measures;
and the provision of technical advice to state and local governments on
disaster management and control. Since the Stafford Act authority does
not constitute an exception to the Posse Comitatus Act, however, active
duty military forces cannot be used for law enforcement purposes unless
circumstances permit the President to independently invoke the
Insurrection Act. Similarly, the President lacked authority to
federalize the National Guard unless he was doing so under the
Insurrection Act to suppress an "insurrection, domestic violence,
unlawful combination, or conspiracy...." 10 U.S.C. 333.

Section 511 of the House-passed version of the 2007 NDAA would have
delegated to the President authority to involuntarily seize control of
the National Guard in the event of any "serious natural or manmade
disaster, accident or catastrophe". The effect of Section 511,
therefore, would have been to authorize the President to involuntarily
take control of the Guard for emergency response purposes but not for
law enforcement operations unless circumstances independently justified
the President's invocation of the Insurrection Act.

As the 2007 NDAA went to conference, the National Governors Association
(NGA) sent letters to the ranking majority and minority members of the
U.S. Senate and House of Representatives and to the Secretary of Defense
(see attached August 1, 2006 letters) protesting the provisions of
Section 511. The governors noted that Section 511 and similar provisions
in the Senate bill would represent "a dramatic expansion of federal
authority during natural disasters that could cause confusion in the
command-and-control of the National Guard and interfere with states'
ability to respond to natural disasters within their borders". They
reiterated that any such fundamental change in law should be considered
only in consultation and coordination with the governors and "The role
of the Guard in the states and to the nation as a whole is too important
to have major policy decisions made without full debate and input from
the governors throughout the policy process."

In conference, the chairs dropped the House version (Section 511) but
substituted an even broader provision that simultaneously amended the
federal Insurrection Act and authorized the President to take control of
the Guard in response to any "natural disaster, epidemic or other
serious public emergency, terrorist attack or incident, or other
condition in any State or possession of the United States....." Because
this was done under an expansion of the President's Insurrection Act
powers, military forces operating at the President's direction in such
circumstances are not subject to the Posse Comitatus Act and can be used
to force compliance with laws by any rules for use of lethal force (RUF)
or rules of engagement (ROE) authorized by the President or those acting
under his delegated authority.

The conference report was agreed to in the House on the same day as its
filing (September 29, 2006) and in the Senate the following day
(September 30, 2006).

Without any hearing or consultation with the governors and without any
articulation or justification of need, Section 1076 of the 2007 NDAA
changed more than 100 years of well-established and carefully balanced
state--federal and civil -military relationships. One hundred years of
law and policy were changed without any publicly or privately
acknowledged author or proponent of the change. As written, the Act does
not require the President to contact, confer or collaborate in any way
with a governor before seizing control of a state's National Guard
forces. It requires only notice to Congress that the President has taken
the action but no explanation, justification or consent of congress is
required.

If these provisions had been in effect during the 2005 Hurricane Katrina
response, the President could have unilaterally seized control of the
National Guard forces of all 54 states, territories and the District of
Columbia as they were engaged in recovery operations in the Gulf Coast
states. He could have done so by a unilateral determination that state
authorities were incapable of preventing public violence and maintaining
public order. Ironically, the President's unilateral assumption of
control over the Guard might well be the very act that would preclude a
state from having the resources to maintain or restore public order.

In the event of such a federal take-over, governors of supporting state
forces would be unable to withdraw their units or exercise any control
or influence over their personnel even if they were needed in response
to an unexpected emergency in their own state.

The Adjutants General Association of the United States (AGAUS) urges
Congress to restore the historic balance of state and federal interests
by swiftly passing S.513. AGAUS believes that, with the exception of the
two circumstances noted below, governors should control any and all
domestic use of military force within their state (regardless of whether
the domestically employed forces are Active, Reserve or National Guard
forces) and should retain control over their own National Guard forces
wherever and whenever they are employed within the United States or its
territories or the District of Columbia. The two exceptions are: (1) if
National Guard lethal force is required under the direction of national
command authorities to repel an attack or invasion against the United
States or (2) if National Guard units or personnel are being used in
state status to resist a lawful order of the judicial, legislative or
executive branches of the federal government (e.g., the school
desegregation and civil rights cases of 1957-1965).

**Impact on Essential State Interests**

The National Guard is the only organized, trained and equipped military
force a governor can call upon to restore or sustain public safety in
the event of a state or local emergency, including enforcement of state
declarations of martial law (see, for example, RCW 38.08.030,
authorizing the governor's "Proclamation of complete or limited martial
law"). With the exception of the two circumstances noted above, the
domestic use of military force within any state without the governor's
consent, supervision and ultimate control and the imposition of federal
control over a state's National Guard units or personnel for domestic
purposes without the governor's prior knowledge and consent are
infringements of state sovereignty and deprive states of the means of
carrying out the core functions of state government, including
protection of a state's citizens under the state's existing laws or as
part of a state's imposition and enforcement of its own martial law
provisions.\
\
Further, imposing Presidential control over the National Guard for
domestic purposes without notice to the governor and without the
governor's consent negates the unity of local-state-federal effort
needed in times of domestic peril and would undermine the speed and
efficiency with which the National Guard responds under the Governor's
control to in-state emergencies and in support of other states through
state-to-state mutual aid agreements such as the Emergency Management
Assistance Compact (EMAC)

**Federal Plans for Implementing Expanded Martial Law Authority**

US Northern Command (USNORTHCOM) has been engaged for some time in
deliberative planning for implementation of Section 1076 of the 2007
National Defense Authorization Act (the law was effective October 17,
2006). The formal NORTHCOM CONPLAN 2502-05 was approved by Secretary of
Defense Gates on March 15, 2007. The final approved plan states "This
document is classified UNCLASSIFIED to ensure ease of use by both
military and interagency organizations and personnel whose officials
duties require specific knowledge of this plan, including those required
to develop supporting plans. Information in USNORTHCOM CONPLAN 2502 may
be disseminated to all interagency, National Guard Bureau, federal,
tribal, state and local governments."

Although the 2007 NDAA provisions could be used to compel National Guard
forces to engage in civil disturbance operations under federal control,
states have had no notice of the development of these operational plans
nor have governors or their Adjutants General had any opportunity to
present their concerns or to synchronize their plans during the
development and coordination of this USNORTHCOM plan.

The UNCLASSIFIED plan I have seen says National Guard forces conducting
civil disturbance operations in the affected state(s) \[both National
Guard forces from the affected or supported states and National Guard
forces from supporting states operating therein\] "will likely be
federalized (T10)" upon execution of the plan. Further, the plan
requires the Joint Forces Headquarters of each state and territory to
develop the very plans under which the federal government would assume
control over their state's National Guard forces.

One key USNORTHCOM planning assumption is that the President will invoke
the new Martial Law powers if he concludes state and/or local
authorities no longer possess either the capability [or the
will]{.underline} to maintain order. This highly subjective operational
assumption has been developed without any notice, consultation or
collaboration with the governors of the several states and territories.

**All States and Territories and numerous national associations join in
urging Congress to swiftly enact S. 513**

The Adjutants General Association of the U.S. (AGAUS) joins the
following institutions and national organizations in urging Congress to
repeal Section 1076 of the 2007 NDAA through swift enactment of S. 513:
the Washington State Legislature, the National Governors Association
(NGA), the National Lieutenant Governors Association (NLGA), the
National Conference of State Legislatures (NCSL), the Enlisted
Association of the National Guard of the United States (EANGUS), the
National Sheriffs Association (NSA), the National Emergency Management
Association (NEMA) and the International Association of Emergency
Managers (IAEM).

**Conclusion**

It is imperative that we have unity of effort at all levels -- local,
state and federal -- when responding to domestic emergencies and
disasters. Section 1076 of the 2007 National Defense Authorization Act
is a hastily conceived and ill-advised step backward. It openly invites
disharmony, confusion and the fracturing of what should be a united
effort at the very time when states and territories need federal
assistance -- not a federal take over \-- in responding to state and
local emergencies.

Thank you for this opportunity to express the concerns of the State of
Washington, the Adjutants General Association of the United States and
the other national associations referenced herein.

**[EXHIBITS]{.underline}**

1.  State of Washington Substitute Senate Joint Memorial 8012

2.  National Governors Association (NGA) letter -- February 6, 2007

3.  NGA letter -- February 5, 2007

4.  NGA letter -- August 31, 2006

5.  NGA letter (signed by all governors) -- August 6, 2006

6.  National Lieutenant Governors Association Resolution -- March 16,
    2007

7.  National Conference of State Legislatures (NCSL) letter -- March 27,
    2007

8.  NCSL Policy Statement

9.  Adjutants General Association of the U.S. letter -- February 7, 2007

10. Enlisted Association of the National Guard of the U.S. letter --
    February 6, 2007