CENTER FOR LAW AND MILITARY

OPERATIONS (CLAMO)

600 MASSIE ROAD

CHARLOTTESVILLE, VIRGINIA

22903-1781

CLAMO@HQDA.ARMY.MIL

CLAMO@HQDA-S.ARMY.SMIL.MIL

WWW.JAGCNET.ARMY.MIL/CLAMO

DOMESTIC

OPERATIONAL LAW

(DOPLAW)

HANDBOOK

FOR

JUDGE

ADVOCATES
CENTER FOR LAW AND MILITARY OPERATIONS

(CLAMO)

Director

COL David E. Graham

Deputy Director

LTC Sharon E. Riley

Director, Domestic Operational Law

LTC Gordon W. Schukei

Director, Training & Support

CPT Alton L. Gwaltney, III

Marine Representative

Maj William H. Ferrell, USMC

Automation Technician

Mr. Ben R. Morgan

Training Centers

LTC Richard M. Whitaker Battle Command Training Program

MAJ Phillip W. Jussell Battle Command Training Program

CPT Michael L. Roberts Combat Maneuver Training Center

MAJ Paul S. Wilson Joint Readiness Training Center

CPT Rodney R. LeMay Joint Readiness Training Center

CPT Peter R. Hayden Joint Readiness Training Center

SFC Rod Celestaine Joint Readiness Training Center

CPT Stephen L. Harms National Training Center

CPT Jonathan Howard National Training Center

Contact the Center

The Center’s mission is to examine legal issues that arise during all phases of military operations

and to devise training and resource strategies for addressing those issues. It seeks to fulfill this mission in

five ways. First, it is the central repository within The Judge Advocate General's Corps for all-source

data, information, memoranda, after-action materials and lessons learned pertaining to legal support to

operations, foreign and domestic. Second, it supports judge advocates by analyzing all data and

information, developing lessons learned across all military legal disciplines, and by disseminating these

lessons learned and other operational information to the Army, Marine Corps, and Joint communities

through publications, instruction, training, and databases accessible to operational forces, world-wide.

Third, it supports judge advocates in the field by responding to requests for assistance, by engaging in a

continuous exchange of information with the Combat Training Centers and their judge advocate

observer-controllers, and by creating operational law training guides. Fourth, it integrates lessons

learned from operations and the Combat Training Centers into emerging doctrine and into the curricula

of all relevant courses, workshops, orientations, and seminars conducted at The Judge Advocate

General’s School. Fifth, in conjunction with The Judge Advocate General’s School, it sponsors

conferences and symposia on topics of interest to operational lawyers

The contents of this Handbook are not to be construed as official positions, policies, or decisions

of the U.S. Army, The Judge Advocate General, the U.S. Marine Corps, or the Staff Judge Advocate to

the Commandant of the Marine Corps. The Center welcomes and solicits suggestions and contributions

of relevant operational law materials from the field.
DOMESTIC OPERATIONAL LAW

(DOPLAW)

HANDBOOK

FOR

JUDGE ADVOCATES

2001

CENTER FOR LAW AND MILITARY OPERATIONS

15 April 2001

i

PREFACE

The Domestic Operational Law (DOPLAW) Handbook for Judge

Advocates is a product of the Center for Law and Military Operations

(CLAMO). The first publication of its kind, it is designed as a resource

for operational lawyers involved in domestic support operations and

meets a long existing need for greater understanding of the legal issues

inherent in such operations. The publication of this Handbook would

not have been possible without the tireless efforts of countless active,

reserve, and National Guard judge advocates who participate in these

unique operations on an ongoing basis.

The contents of this Handbook are based on statutes, DOD

Directives, Army Regulations and Field Manuals, other service

regulations, and lessons learned by judge advocates. The Handbook is

not a substitute for complete references. The information contained

herein is not doctrine (with the exception of footnoted doctrinal

material). The Handbook is designed to serve as a working reference

and training tool for judge advocates.

The information and samples provided in this Handbook are

advisory only. Content and the opinions expressed do not represent the

official position of the US Army, the US Marine Corps, the Office of

the Judge Advocate General, the Staff Judge Advocate to the

Commandant of the Marine Corps, or The Judge Advocate General's

School, Army.

This Handbook is also available in electronic format from the

CLAMO databases at www.jagcnet.army.mil\clamo\publications. The

Center welcomes your suggestions, comments, and work products for

incorporation into the next edition of this Handbook. You may contact

the Center at (804) 972-6448/6339, via email, at

CLAMO@hqda.army.mil or CLAMO@hqda-s.army.smil.mil, or at

600 Massie Road, Charlottesville, Virginia 22903-1781.
DOPLAW HANDBOOK

ii
TABLE OF CONTENTS

iii

TABLE OF CONTENTS

CHAPTER 1. INTRODUCTION ................................................ 1

A. GENERAL OVERVIEW OF DOMESTIC SUPPORT OPERATIONS. ............... 1

B. THE DEVELOPMENT OF MILITARY SUPPORT TO DOMESTIC

OPERATIONS.................................................................................... 2

C. MILITARY ASSISTANCE TO CIVIL AUTHORITIES (MACA)................... 3

CHAPTER 2. MILITARY SUPPORT TO CIVILIAN LAW

ENFORCEMENT.......................................................................... 7

A. INTRODUCTION ..................................................................................... 7

B. THE POSSE COMITATUS ACT................................................................. 8

1. To Whom Does the PCA Apply? ..................................................... 9

2. Where Does the PCA Apply?......................................................... 11

3. To What Does the PCA Apply? ..................................................... 12

a. Use of Information Collected During Military Operations...... 14

b. Use of Military Equipment and Facilities................................ 15

c. Participation of DOD Personnel in Civilian Law

Enforcement Activities ....................................................... 17

(1) Direct Assistance................................................................................ 18

(2) Training.............................................................................................. 23

(3) Expert Advice .................................................................................... 24

(4) Use of DOD Personnel to Operate or Maintain Equipment.............. 25

(5) Other Permissible Assistance............................................................ 29

CHAPTER 3. COUNTERDRUG OPERATIONS................... 31

A. INTRODUCTION ................................................................................... 31

B. NATIONAL GUARD SUPPORT TO COUNTERDRUG OPERATIONS............ 32

C. TITLE 10 SUPPORT TO COUNTERDRUG OPERATIONS........................... 38

1. 1991 National Defense Authorization Act Provisions .................. 39

2. Detection and Monitoring.............................................................. 42

3. CJCS Implementation.................................................................... 42

4. Counterdrug Support Task Forces................................................. 44

5. Coast Guard Law Enforcement Detachments ............................... 46
DOPLAW HANDBOOK

iv

CHAPTER 4. MILITARY ASSISTANCE FOR CIVIL

DISTURBANCES........................................................................ 51

A. INTRODUCTION....................................................................................51

B. CIVIL DISTURBANCE STATUTES ..........................................................52

1. Support a State Request ..................................................................53

2. Enforce Federal Authority ..............................................................55

3. Protect Constitutional Rights..........................................................56

4. Procedural Issues ............................................................................57

C. OTHER AUTHORITY.............................................................................58

1. Protection of Federal Property........................................................59

2. Emergency ......................................................................................59

D. RESPONSIBILITIES AND RELATIONSHIPS OF PARTIES INVOLVED IN

CIVIL DISTURBANCE OPERATIONS.................................................60

1. Attorney General.............................................................................60

2. Senior Civilian Representative of the Attorney General................61

3. Secretary of the Army.....................................................................61

4. Director of Military Support...........................................................61

5. Commanders in Chief, U.S. Joint Forces Command,

U.S. Southern Command, and U.S. Pacific Command................62

6. Commander, U.S. Army Forces Command....................................62

7. Commander, Civil Disturbance Task Force ...................................62

8. National Guard................................................................................63

E. THE DEPARTMENT OF DEFENSE CIVIL DISTURBANCE PLAN

(GARDEN PLOT)........................................................................65

1. GARDEN PLOT Mission...............................................................66

2. GARDEN PLOT Plan.....................................................................66

3. GARDEN PLOT Rules of Engagement .........................................70

a. Minimum Necessary Force.......................................................70

b. Use of Deadly Force.................................................................70

c. Arming Orders..........................................................................72

d. Custody and Detention .............................................................73

e. Search and Seizure....................................................................74

(1) Stop and Frisk ................................................................................... 74

(2) Incident to Apprehension .................................................................. 74

(3) Exigent circumstances....................................................................... 75

(4) Emergency......................................................................................... 75

(5) Hot pursuit......................................................................................... 75

(6) Plain View......................................................................................... 75
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v

f. Confinement Facilities.............................................................. 76

g. Riot Control Agents ................................................................. 77

4. Other Legal Considerations............................................................ 77

a. Billeting of Troops ................................................................... 77

b. Intelligence............................................................................... 77

c. Claims....................................................................................... 77

d. Medical Support....................................................................... 78

e. Civil Law, Ordinances, Restrictions, and Interference with

Federal Forces ..................................................................... 79

f. Loan and Lease of Military Equipment.................................... 80

CHAPTER 5. DISASTER ASSISTANCE ............................... 81

A. INTRODUCTION ................................................................................... 81

B. AUTHORITY TO PROVIDE DISASTER ASSISTANCE ................................ 82

1. The Robert T. Stafford Disaster Relief And Emergency

Assistance Act of 1974 ................................................................ 82

a. Presidential Order to Perform Work Essential for the

Preservation of Life and Property....................................... 83

b. Presidential Declaration of a Major Disaster........................... 84

c. Presidential Declaration of an Emergency............................... 84

2. Department of Defense Directives ................................................. 85

a. DODD 3025.1, Military Support to Civil Authorities and

DOD 3025.1-M, Manual for Civil Emergencies ................ 85

b. DODD 3025.15, Military Assistance to Civil Authorities ...... 89

c. Draft Joint Publication 3-07.7, Joint Tactics, Techniques,

and Procedures for Domestic Support Operations.............. 90

3. Service Regulations ........................................................................ 91

a. Army Regulation 500-60, Emergency Employment of

Army and Other Resources, Disaster Relief....................... 91

b. Chief of Naval Operations Instruction 3440.16c, Navy

Civil Emergency Management Program............................. 92

c. Air Force Instruction 10-802, Military Support to

Civil Authorities.................................................................. 93

4. Federal Response Plan.................................................................... 93

a. Major Provisions of the Federal Response Plan ...................... 94
DOPLAW HANDBOOK

vi

b. Major Participants ....................................................................96

(1) Federal Coordinating Officer ............................................................ 96

(2) Director of Military Support ............................................................. 96

(3) Defense Coordinating Officer........................................................... 96

(4) Defense Coordinating Element ......................................................... 98

(5) FRP Components .............................................................................. 98

c. Processing RFAs.......................................................................98

5. ROLE OF THE JA IN FEDERAL DISASTER ASSISTANCE....................100

a. FEMA/Defense Coordinating Element Level ........................100

b. Installation Level....................................................................100

c. Task Force Level ....................................................................101

d. Common Issues ......................................................................102

(1) Fiscal Law .......................................................................................102

(2) Use of Force ....................................................................................104

(3) DOD Aircraft ..................................................................................107

(4) Environmental Issues ......................................................................107

(5) Chaplain Activities..........................................................................108

(6) Medical Treatment ..........................................................................109

(7) Donated Goods................................................................................110

(8) Loan or Lease of Equipment...........................................................110

(9) Debris Removal...............................................................................112

(10) Volunteers .....................................................................................113

(11) Claims ...........................................................................................114

C. NATIONAL GUARD AND RESERVE COMPONENT RESPONSE ..............119

CHAPTER 6. CONSEQUENCE MANAGEMENT 123

A. INTRODUCTION..................................................................................123

B. THE EVOLUTION OF FEDERAL CONSEQUENCE MANAGEMENT ..........124

1. Presidential Decision Documents .................................................124

a. PDD-39, U.S. Policy on Counterterrorism.............................124

b. PDD-62, Protection Against Unconventional Threats...........125

2. The Defense Against Weapons of Mass Destruction Act ............125

3. Federal Response Plan Terrorism Incident Annex .......................128

4. Interim DOD Policy on CBRNE-CM...........................................130

C. CBRNE RESPONDERS.......................................................................133

1. Joint Task Force Civil Support .....................................................133

2. National Guard Weapons of Mass Destruction Civil

Support Teams............................................................................134

3. Response Task Forces...................................................................136
TABLE OF CONTENTS

vii

CHAPTER 7. MILITARY SUPPORT TO SPECIAL

EVENTS ..................................................................................... 139

A. INTRODUCTION ................................................................................. 139

B. DESIGNATED SPECIAL EVENTS ......................................................... 139

1. Types of Events ............................................................................ 140

a. Sporting Events ...................................................................... 140

b. Non-athletic Events................................................................ 141

(1) Events Not Declared National Security Events ..............................141

(2) National Security Events.................................................................142

2. Requests for Support .................................................................... 143

a. Processing Requests for Support............................................ 143

b. Types of Support.................................................................... 143

c. Funding Support..................................................................... 143

C. INNOVATIVE READINESS TRAINING .................................................. 144

1. Background................................................................................... 144

2. Innovative Readiness Training Procedures .................................. 145

a. Requests for Assistance.......................................................... 146

b. IRT Program Assistance-Nature and Requirements.............. 146

3. Legal Considerations for IRT Projects......................................... 147

a. Approval Authority for IRT Projects ..................................... 147

b. Processing Requests for IRT Projects.................................... 148

(1) How the IRT Project Request Process Begins ................................148

(2) Contents of IRT Project Requests...................................................148

(3) IRT Project Requests-The Review Process.....................................149

c. Claims Arising From IRT Projects ........................................ 149

CHAPTER 8. MISCELLANEOUS DOMESTIC SUPPORT

OPERATIONS........................................................................... 151

A. INTRODUCTION ................................................................................. 151

B. DISASTER AND DOMESTIC EMERGENCY ASSISTANCE ....................... 152

1. Military Assistance to Safety and Traffic..................................... 152

2. Search and Rescue Operations ..................................................... 154

3. Employment of DOD Resources in Support of

U.S. Postal Service..................................................................... 156

4. National Disaster Medical System ............................................... 157

5. Animal and Plant Disease Eradication ......................................... 158

6. Mass Immigration Emergency ..................................................... 159
DOPLAW HANDBOOK

viii

7. Improvised Nuclear Device Incidents ..........................................160

8. DOD Response to Radiological Accidents...................................161

9. DOD Support to Wildfires............................................................162

C. ENVIRONMENTAL MISSIONS..............................................................166

D. MISSIONS IN SUPPORT OF LAW ENFORCEMENT.................................168

1. Support of United States Secret Service.......................................168

2. Critical Asset Assurance Program ................................................169

3. Continuity of Operations Policies and Planning...........................169

4. Explosive Ordnance Disposal.......................................................170

E. COMMUNITY ASSISTANCE .................................................................171

1. National Guard Assistance for Certain Youth and

Charitable Organizations............................................................172

2. Support and Services for Eligible Organizations and

Activities Outside DOD .............................................................173

3. National Guard Civilian Youth Opportunities Program...............173

4. Additional Assistance Programs...................................................174

CHAPTER 9. INTELLIGENCE LAW AND POLICY

CONSIDERATIONS DURING DOMESTIC SUPPORT

OPERATIONS........................................................................... 175

A. INTRODUCTION..................................................................................175

B. THE ROLE OF MILITARY INTELLIGENCE UNITS DURING

DOMESTIC SUPPORT OPERATIONS ...............................................176

C. INTELLIGENCE COLLECTION WITHIN THE UNITED STATES ...............177

D. JUDGE ADVOCATE INTELLIGENCE LAW AND OVERSIGHT

RESPONSIBILITIES ........................................................................179

CHAPTER 10. RESERVE COMPONENTS - SPECIAL

ISSUES........................................................................................ 181

A. INTRODUCTION..................................................................................181

B. STATUS OF PERSONNEL .....................................................................182

1. National Guard..............................................................................182

a. Dual Status..............................................................................182

(1) Non-Federal Status..........................................................................182

(2) Federal Status-Title 10....................................................................184

b. Duty Status .............................................................................184
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ix

c. Full-time National Guard Personnel ...................................... 185

(1) National Guard Technicians............................................................185

(2) State civilian employees..................................................................186

(3) Active Guard and Reserve and Full Time National Guard Duty....187

2. U.S. Army Reserve....................................................................... 187

a. Categories of U.S. Army Reserve Forces .............................. 187

b. Full-time U.S. Army Reserve Personnel................................ 187

3. Active Guard and Reserve and Full Time National Guard Duty. 188

4. Miscellaneous Title 10 Service .................................................... 188

a. National Guard Bureau........................................................... 188

b. U.S. Property and Fiscal Officers .......................................... 189

C. RESERVE COMPONENT JUDGE ADVOCATES ...................................... 189

1. National Guard Judge Advocates ................................................. 189

2. U.S. Army Reserve Judge Advocates .......................................... 190

a. Active Guard Reserve Judge Advocates................................ 190

b. Embedded Judge Advocates .................................................. 190

c. Table of Organization and Equipment Legal Units ............... 191

(1) Legal Support Organizations ..........................................................191

(2) Legal Services Teams .....................................................................191

d. Individual Ready Reserve Augmentees................................. 192

e. Individual Ready Reserve (Control Group) ........................... 192

APPENDICES............................................................................ 193

1-1. Domestic Support Operations. ...................................................... 195

2-1. Laws Governing Support to Law Enforcement. ........................... 197

2-2. Loan and Lease of DOD Equipment............................................. 207

2-3. DOD Law Enforcement Training Support ................................... 215

2-4. DOJ Opinion on Extraterritorial Application of PCA . ................ 217

2-5. Support to Capitol Police Order.................................................... 245

2-6. Support to DOJ ............................................................................. 248

3-1. California National Guard Counterdrug Task Force

Standing Rules of Engagement ................................................. 251

3-2. Delegation of Authority for Approving Operational

Support to Drug Law Enforcement Agencies ........................... 253
DOPLAW HANDBOOK

x

3-3. CJCSI 3710.01, Rules on the Use of Force by DOD

Personnel Providing Support to Law Enforcement

Agencies Conducting Counterdrug Operations in the

United States ..............................................................................269

3-4. DOD Counterdrug Support Policy . ..............................................282

3-5. Military Support to Counternarcotics Activities . .........................289

3-6. Statutes Governing DOD Support to Counterdrug

Operations ..................................................................................292

3-7. Air Transport Support to Federal Drug LEAs ..............................299

3-8. JP 3-07.4, Appendix E, LEDETS .................................................301

3-9. Sample LEDET MOA . ................................................................303

4-1. Presidential Declaration and Decision Document

Activating the ARNG for the LA Riots. ....................................311

4-2. Army Orders to Execute and Terminate Military Operations

During the LA Riots ..................................................................314

4-3. JTF LA Report ..............................................................................316

4-4. Appendix 1 to Annex C (Concept of Operations) to

Garden Plot - Rules of Engagement ..........................................320

4-5. Special Orders for Military Personnel Engaged in

Civil Disturbance Operations . ..................................................327

4-6. Sample AAR Format . ..................................................................329

4-7. Area Claims Offices .....................................................................331

4-8. Sample NG Civil Disturbance Readiness Checklist . ..................338

4-9. EO 10,730: Desegregation Order . ...............................................341

4-10. EO 11,053: Presidential Order Enforcing the

 Laws of the U.S. ......................................................................343

4-11. EO 11,111: Presidential Order to Remove

 Obstruction of Justice .............................................................345

4-12. EO 11,118: Removal of Unlawful Obstruction of Justice . ........347

4-13. EO 12,656: Emergency Preparedness (Parts 1-2, 5, 29).............349

5-1. Request for Federal Assistance (RFA) Form . ..............................361

5-2. FCO Structure and FCO Operations Section Structure ................362

5-3. Draft Rules for the Use of Force ..................................................363

5-4. Hurricane Floyd Order . ...............................................................364
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xi

5-5. FRP Components ......................................................................... 369

5-6. Presidential Disaster Declaration ................................................. 374

5-7. Tornado Relief Order . .................................................................. 376

5-8. EMAC .......................................................................................... 379

5-9. Status of National Guard .............................................................. 386

6-1. PDD-39 Extract (Unclass) ............................................................ 389

6-2. PDD-62 Extract (Unclass) . .......................................................... 393

6-3. Interim DOD CBRNE Policy........................................................ 395

7-1. IRT Policy ................................................................................... 415

8-1. PDD-67 . ....................................................................................... 429

8-2. Critical Asset Assurance Program . ............................................. 431

8-3. EO 12,580 ..................................................................................... 434

8-4. EO 12,657 . ................................................................................... 442

8-5. NG Domestic Program Costs ...................................................... 446

8-6. EO 12,241. .................................................................................... 450

8-7. Wildfire MOU .............................................................................. 451

8-8. NIFC Area Coordination Centers. ................................................ 456

8-9. PDD-63: Critical Infrastructure Protection .................................. 457

9-1. Policy Guidance for Intel Support in CONUS ............................. 471

10-1. Role of the NG in Domestic Support Operations . ..................... 479
DOPLAW HANDBOOK

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3
INTRODUCTION

1

CHAPTER 1.

INTRODUCTION

A. GENERAL OVERVIEW OF DOMESTIC SUPPORT OPERATIONS

Domestic support operations are "[t]hose activities and

measures taken by the Department of Defense to foster mutual

assistance and support between the Department of Defense and

any civil government agency in planning or preparedness for, or

in the application of resources to, the consequences of civil

emergencies or attacks, including national security

emergencies.1

The primary mission of the U.S. military is to fight and win the

nation’s wars.2

 Even though this is the Department of Defense (DOD)'s

primary mission, DOD will sometimes be called upon to assist civil

authorities. In these instances, DOD's role is one of support—civilian

authorities retain primary responsibility for domestic operations. U.S.

domestic law, Presidential Decision Directives (PDDs), Executive Orders

(EOs), and military departmental regulations provide the framework for, and

set limits on the use of military forces to assist civil authorities.

Judge advocates (JAs) advise commanders on the legality of all

aspects of military support to civil authorities. The scope of advice JAs are

called upon to provide is broad. Domestic support operations encompass a

wide range of missions, from counterdrug operations to community

assistance activities, such as a static display at a local fair. All domestic

support operations share the common characteristic of using DOD human

and physical resources to support the local community.

Domestic support operations are conducted in the continental United

States (CONUS), Alaska, Hawaii, the District of Columbia, the

Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American

Samoa, and the Commonwealth of the Northern Mariana Islands.3 

 

1 THE JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND

ASSOCIATED TERMS, 146 (as amended 1 Sept. 00).

2

 National Military Strategy 1997, available at The Joint Chiefs of Staff Link, Library and Research,

Publications and Reports, http://www.dtic.mil/jcs/ [hereinafter National Military Strategy].

3 Locations where military support to domestic operations is permitted may change based on the type of

support to be provided.
DOPLAW HANDBOOK

2

B. THE DEVELOPMENT OF MILITARY SUPPORT TO DOMESTIC

OPERATIONS

Military domestic support operations are neither new nor limited to

the Army. The military has long provided assistance in times of disaster and

has routinely provided support to state and territorial governors, occasionally

administering governmental affairs until local governance was established.4

During the final year of the Civil War, Army officers provided disaster relief

through the Freedman’s Bureau. In the late Nineteenth Century, the Army

played a direct role in many disaster relief operations including the great

Chicago fire, the Johnstown Flood, and the earthquake at Charleston, South

Carolina.5

National Guard (NG) units, under the control of state Governors and

The Adjutants General (TAGs), have traditionally been the primary military

responders in domestic operations and emergencies. Using federal forces to

support state and local governments has been the exception rather than the

norm. Federal forces were generally used only after state resources were

exhausted.

However, DOD consists of trained, disciplined personnel and

organizations capable of rapidly responding to a broad spectrum of

emergencies on a short-notice basis. Military personnel and their associated

equipment, although organized to conduct combat operations, can be

employed in domestic support operations. For example, the assets organic to

military units provide extremely useful, highly mobile, self-contained

systems when deployed to the “bare base” environment created by

catastrophic disasters.

In the summer of 1993, more than 7,000 NG personnel from

Arkansas, Illinois, Iowa, Kansas, Missouri and Wisconsin provided domestic

support to Mississippi River flood victims. The support included providing

fresh water, maintaining security, assisting evacuations, conducting

reconnaissance and traffic control, filling sandbagging, hauling debris and

reinforcing dikes.6

 

4 U.S. DEP’T OF ARMY, FIELD MANUAL 100-19/U.S. MARINE CORPS, FLEET MARINE FORCE MANUAL 7-10,

DOMESTIC SUPPORT OPERATIONS, viii (1 July 1993)[hereinafter FM 100-19].

5 Id. at 1-2.

6 Id. at 1-6.
INTRODUCTION

3

Congress has enacted laws allowing federal agencies to obtain support

from the military during domestic operations. These laws emphasize DOD's

supporting role when providing assistance. Further, these laws acknowledge

that the NG, while in state status,7 has primary responsibility for providing

initial support to state and local civil authorities.8

When federal forces respond in this support role, they operate under

the direction of a designated lead federal agency. Federal laws recognize the

importance of interdepartmental and interagency coordination and planning.

For example, the Federal Response Plan (FRP) is designed to achieve unity

of effort when federal agencies work together to respond to domestic

emergencies.

In summary, DOD provides federal military assistance only when

civil resources are insufficient and when requested to do so by appropriate

civil authorities. In domestic support operations, NG units and personnel, in

non-federal status9

 and under the command of their respective Governors,

have the primary responsibility for providing military assistance to local

governments. Only when state and local government resources are

exhausted or deemed inadequate, will the federal government provide

support. The U.S. military’s primary mission remains the responsibility to

fight and win the nations wars.10 

C. MILITARY ASSISTANCE TO CIVIL AUTHORITIES (MACA)

The primary reference for all DOD support to domestic operations is

DOD Directive (DODD) 3025.15, Military Assistance to Civil Authorities.

11

This umbrella directive governs the provision of all DOD military assistance

 

7 In “state status,” National Guard personnel are under the control of the particular Governor and TAG.

“State status” includes “state active duty (SAD)” and Title 32—traditional Guard status. See infra Chapter

10, Reserve Components - Special Issues, for further discussion of National Guard status.

8 FM 100-19, supra note 4, at 1-1, 1-5.

9 See infra Chapter 10, Reserve Components - Special Issues, for further discussion of National Guard

status.

10 National Military Strategy, supra note 2.

11 U.S. DEP’T OF DEFENSE, DIR. 3025.15, MILITARY ASSISTANCE TO CIVIL AUTHORITIES (18 Feb. 1997),

available at www.doncio.navy.mil/y2k/DoDD3025-15p.pdf.
DOPLAW HANDBOOK

4

to U.S. civil authorities (MACA), and encompasses a variety of specific

types of support.12 See figure 1-1, below.

Figure 1-1, Military Assistance to Civil Authorities

DODD 3025.15 provides criteria against which all requests for

support must be evaluated. The criteria are addressed to approval

authorities, but commanders at all levels should be cognizant of these

requirements when forwarding a recommendation for military support

through the chain of command. The criteria are:

• Legality - compliance with the law.

• Lethality - potential use of lethal force by or against DOD forces.

• Risk - safety of DOD forces.

• Cost - who pays, impact on DOD budget.

• Appropriateness - whether it is in the interest of DOD to provide the

requested support.

 

12 The types of military support to domestic operations include military support to civil authorities

(MSCA), military assistance for civil disturbances (MACDIS), military support to civil law enforcement

(MSCLEA), continuity of operations plan (COOP), sensitive support (SS), counter drug (CD), counterterrorism (CT) and consequence management (CM).

Military Assistance to Civil Authorities (MACA)

MACA

Umbrella Policy

DODD 3025.15

MSCA

Military Support to Civil

Authorities (Disasters)

DODD 3025.1

Sensitive

Support

DODD S-5210.36

Counter Drug

CJCSI 3710.01

CBRNE

Chem, Biological, Radiol.,

Nuclear, High-Yield Expl.

Interim DODD

Support to Law

Enforcement

DODD 3025.1

MACDIS

Military Assistance for Civil Disturbance

DODD 3025.12
INTRODUCTION

5

• Readiness - impact on DOD’s ability to perform its primary mission.

DODD 3025.15 also outlines the roles and responsibilities of each

DOD component and establishes approval authorities for each type of

domestic support operation. DODD 3025.15 changes the approval authority,

in certain cases, from that set forth in older directives, but the older

directives have not been changed and are otherwise applicable. The

Secretary of Defense has reserved approval authority of DOD support for

civil disturbances and for responses to acts of terrorism.

The various types of domestic support are covered in more detail in

specific Directives and Instructions. Because the authorities, roles, and

responsibilities of military forces change depending upon the type of

domestic support operation, this Handbook addresses domestic support

operations by category in the chapters that follow.
DOPLAW HANDBOOK

6
SUPPORT TO CIVILIAN LAW ENFORCEMENT

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CHAPTER 2.

MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT

KEY REFERENCES:

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

• 10 U.S.C. § 371-381 - Statutory Implementation of the PCA

• DODD 5525.5 - DOD Cooperation with Civilian Law Enforcement

Officials

• DODD 3025.12 - Military Assistance for Civil Disturbances

• DODD 5240.1 - Activities of DOD Intelligence Components that Affect

U.S. Persons

• DODD 5200.27 - Acquisition of Information Concerning Persons and

Organizations not Affiliated with the Department of Defense

• DOD 5240.1-R - Procedures Governing the Activities of DOD

Intelligence Components that Affect U.S. Persons

• AR 500-51 - Support to Civilian Law Enforcement

• SECNAVINST 5820.7B - Cooperation with Civilian Law Enforcement

Officials

• AFI 10-801 - Assistance to Civilian Law Enforcement Agencies

A. INTRODUCTION

Military support to civilian law enforcement agencies has undergone

significant growth in recent years, primarily due to the U.S. war on drugs.

The U.S. military has specialized personnel, equipment, facilities, and

training, which are of great benefit to civilian law enforcement agencies, and

thus the demand for Department of Defense (DOD) support has increased.

However, this demand must be balanced with the limits Congress placed on

military support to civilian law enforcement through the Posse Comitatus

Act and other laws. Judge advocates should also weigh the political

sensitivity of employing U.S. military forces against U.S. civilians.

This chapter will begin with a discussion of the Posse Comitatus Act.

The chapter will then discuss the applicable provisions of the United States

Code addressing military support to civilian law enforcement and the DOD
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regulations that implement this guidance. The following chapter discusses

counterdrug support. 

B. THE POSSE COMITATUS ACT

The primary statute restricting military support to civilian law

enforcement is the Posse Comitatus Act (PCA).1 The PCA states:

Whoever, except in cases and under circumstances expressly

authorized by the Constitution or Act of Congress, willfully

uses any part of the Army or Air Force as a posse comitatus or

otherwise to execute the laws shall be fined under this title or

imprisoned not more than two years, or both.

The PCA was enacted in 1878, primarily as a result of the military

presence in the South during Reconstruction following the Civil War.2

 This

military presence increased during the bitter presidential election of 1876,

when the Republican candidate, Rutherford B. Hayes, defeated the

Democratic candidate, Samuel J. Tilden, by one electoral vote. Many

historians attribute Hayes’ victory to President Grant’s decision to send

federal troops to be used by U.S. Marshals as a posse comitatus at polling

places in the states of South Carolina, Louisiana, and Florida. Hayes ended

up winning the electoral votes of these three hotly contested states, possibly

as a result of President Grant’s use of the military in these states.3

 This use

of the military by a sitting President during a presidential election led

Congress to enact the PCA in 1878.4

 

1

 Posse Comitatus Act, 18 U.S.C.A. § 1385 (2000). The phrase “posse comitatus” is literally translated

from Latin as the “power of the county” and is defined in common law to refer to all those over the age of

15 upon whom a sheriff could call for assistance in preventing any type of civil disorder. See generally

United States v. Hartley, 796 F.2d 112, 114, n. 3 (5th Cir. 1986).

2

 Matthew C. Hammond, The Posse Comitatus Act: A Principle in Need of Renewal, 75 WASH. U. L.Q.

953, 954 (1997)[hereinafter HAMMOND]; H.W.C. Furman, Restrictions Upon Use of the Army Imposed by

the Posse Comitatus Act, 27 MIL. L. REV. 85, 94-95 (1960).

3

 HAMMOND, supra note 2, at 954. The states of South Carolina, Louisiana, and Florida sent in double

returns. The electoral boards of these three states, which were dominated by Republicans, certified that the

states had voted for Hayes even though it was widely believed that each state had a majority of Democrats.

The Democrats sent in their own returns which showed that Tilden won each of the three states. Congress,

which held a Republican majority, eventually appointed an electoral commission to recount the entire vote.

Hayes was declared the winner by one electoral vote. Tilden won the popular vote with 51% over Hayes’

48%.

4 Id.
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Congress enacted the PCA to prevent the military from being used to

enforce the laws of the United States absent Congressional or Constitutional

authorization.5

 The PCA is a criminal statute and violators are subject to

fine and/or imprisonment.

The PCA was enacted to prevent direct military involvement with

civilian law enforcement activities. Judge Advocates must remember that

the PCA does not prohibit all military involvement with civilian law

enforcement. A considerable amount of military participation with civilian

law enforcement authorities is permissible.

In addition to the PCA, Judge Advocates must also consult 10 U.S.C.

Chapter 18, Military Support for Civilian Law Enforcement Agencies6

 and

Department of Defense Directive (DODD) 5525.5, DOD Cooperation with

Civilian Law Enforcement Officials, when providing legal advice in this

area.7

 Both authorities, discussed below, provide additional guidance

regarding the restrictions the PCA places on the military.8

1. To Whom Does the PCA Apply?

On its face, the PCA appears to apply to active duty members of the

Army and the Air Force only. In fact, federal courts have consistently read

the plain language of the Act to limit its application to these two services.9

However, 10 U.S.C. §375 directed the Secretary of Defense to promulgate

 

5

 United States v. Red Feather, 392 F. Supp. 916, 922 (W.D.S.D. 1975).

6 See Hayes v. Hawes, 921 F.2d 100, 103 n.3 (7th Cir. 1990) (noting that 10 U.S.C.A. Chapter 18

specifically incorporates 18 U.S.C.A. §1385 and provides the primary restriction on military participation

in civilian law enforcement activities).

7

 U.S. DEP'T OF DEFENSE, DIR. 5525.5, DOD COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS,

(15 Jan. 1986) [hereinafter DODD 5525.5].

8

 Service regulations that implement DODD 5525.5 are U.S. DEP’T OF ARMY, REG. 500-51, SUPPORT TO

CIVILIAN LAW ENFORCEMENT (1 Aug. 1983) [hereinafter AR 500-51]; U.S. DEP’T OF NAVY, SECRETARY

OF THE NAVY INSTR. 5820.7B, COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS (28 Mar.

1988) [hereinafter SECNAVINST 5820.7B]; and U.S. DEP’T OF AIR FORCE, SECRETARY OF THE AIR FORCE

INSTR. 10-801, ASSISTANCE TO CIVILIAN LAW ENFORCEMENT AGENCIES (15 Apr. 1994) [hereinafter AFI

10-801].

9 See, e.g., United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991) (citing congressional record that

earlier version of measure expressly extended PCA to Navy but final version deleted any mention of

application to the Navy); United States v. Roberts, 779 F. 2d 565 (9th Cir. 1986), cert. denied, 479 U.S. 839

(1986).
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regulations that prohibit “... direct participation by a member of the Army,

Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other

similar activity unless participation in such activity by such member is

otherwise authorized by law.”10 The Secretary of Defense subsequently

prohibited these activities in DODD 5525.5,11 and, as a result, the

restrictions placed on Army and Air Force activities in the PCA now apply

to the Navy and Marine Corps.12 The PCA does not apply to the Coast

Guard in peacetime.13

The PCA also applies to Reserve members of the Army, Navy, Air

Force, and Marine Corps who are on active duty, active duty for training, or

inactive duty training. Members of the National Guard are subject to the

PCA only when they are in federal service (Title 10 status). Civilian

employees of the Department of Defense are only subject to the prohibitions

of the PCA if they are under the direct command and control of a military

officer.14

Conversely, the PCA does not apply to Reserve members of the

Army, Navy, Air Force and Marine Corps when they are not on active duty,

active duty for training, or inactive duty training. Members of the National

Guard are not subject to the PCA when they are in a Title 32 or state active

duty status. See Chapter 10, Reserve Components - Special Issues, for a

detailed discussion of National Guard and reserve status. Finally, the PCA

does not apply to a member of the Army, Navy, Air Force, or Marine Corps

when they are off duty and in a private capacity. A service member is not in

a private capacity when assistance is rendered to civilian law enforcement

officials under the direction or control of DOD authorities.15

 

10 Hayes, 921 F.2d at 102-103 (10 U.S.C.A. §375 makes the proscriptions of 18 U.S.C.A. §1385 applicable

to the Navy). See also Yunis, 924 F.2d at 1094 (“Regulations issued under 10 U.S.C.A. §375 require Navy

compliance with the restrictions of the Posse Comitatus Act....”).

11 See DODD 5525.5, supra note 7, at Encl. 4, para. E4.3; AR 500-51, supra note 8, at §2-1(d);

SECNAVINST 5820.7B, supra note 8, at para. 9(a)(3); AFI 10-801, supra note 8, at Ch. 2.1. Exceptions to

this prohibition as it applies to the Navy or Marine Corps may be granted by the Secretary of Defense or

the Secretary of Navy on a case by case basis. See also Yunis, 924 F.2d at 1094, where court affirms that

DODD 5525.5 requires the Navy to comply with the restrictions of the Posse Comitatus Act.

12 SECNAVINST 5820.7B, supra note 8, at para. 9(a)(3).

13 14 U.S.C.A. § 2 (1990). See also Jackson v. Alaska, 572 F.2d 87 (D. Alaska 1987).

14 DODD 5525.5, supra note 7, at para. E4.2.

15 Id.
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2. Where Does the PCA Apply?

Federal courts have generally held that the PCA places no restrictions

on the use of the armed forces abroad.16 The courts, noting that Congress

intended to preclude military involvement in domestic affairs, have been

unwilling to read any extraterritorial application into the PCA.17 However,

in United States v. Kahn the court indicated that the extraterritorial

application of the PCA is an open question.18 While recognizing that several

courts have held that the PCA only applies within the territory of the United

States, the Kahn court maintained that the issue has not been definitively

resolved, because through 10 U.S.C. §§371-380, the PCA imposes

restrictions on the use of the armed forces abroad.19

A 1989 Department of Justice Office of Legal Counsel Opinion

concluded that the PCA and the restrictions in 10 U.S.C. §§371-381 have no

extraterritorial application.20 DOD implementing policy in DODD 5525.5,

however, applies to all members of the armed forces wherever they may be

located. Therefore, judge advocates must consider the restrictions of the

PCA when contemplating military assistance to law enforcement overseas.

In case of compelling or extraordinary circumstances, the Secretary of

Defense may consider exceptions to the prohibition against direct military

assistance to law enforcement outside the territorial jurisdiction of the

United States.21

 

16 Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949);

D’Aquino v. United States, 192 F.2d 338, 351 (9th Cir. 1951), cert. denied, 343 U.S. 935 (1952).

17 Chandler, 171 F.2d at 936 (the court stated that the PCA was “the type of criminal statute which is

properly presumed to have no extraterritorial application in the absence of statutory language indicating a

contrary intent.”).

18 United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994).

19 Id. The Kahn court cites 10 U.S.C.A. § 374(b)(2)(F) (mentioning “law enforcement operations outside

of the land area of the United States”), § 379(a) (mentioning “naval vessels at sea”), and § 379(d)

(mentioning “area outside the land area of the United States”) as examples of limitations placed on the use

of the armed forces abroad.

20 Memorandum from Office of the Assistant Attorney General to General Brent Scowcroft, subject:

Extraterritorial Effect of the Posse Comitatus Act (3 Nov. 1989). A copy of the memorandum is at

Appendix 2-4.

21 DODD 5525.5, supra note 7, at para. 8.1 provides “...With regard to military actions conducted outside

the territorial jurisdiction of the United States, however, the Secretary of Defense or the Deputy Secretary

of Defense will consider for approval, on a case by case basis, requests for exceptions to the policy

restrictions against direct assistance by military personnel to execute the laws. Such requests for

exceptions to policy outside the territorial jurisdiction of the United States should be made only when there

are compelling and extraordinary circumstances to justify them.”
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3. To What Does the PCA Apply?

10 U.S.C. §§371-375 outline the restrictions of the PCA as they apply

to participation by the military in civilian law enforcement activities. These

restrictions are divided into three major categories: (1) use of information,

(2) use of military equipment and facilities, and (3) the use of military

personnel. DODD 5525.5 further divides the restrictions on the use of DOD

personnel in civilian law enforcement activities into categories of direct

assistance, training, expert advice, operation or maintenance of equipment,

and other permissible assistance.22

In addition to the above categories, 10 U.S.C. §§376 and 377 provide

further limitations on the provision of military support to civilian law

enforcement. 10 U.S.C. §376 provides an overarching restriction that

prohibits the provision of military support to civilian law enforcement if

“...such support will adversely affect the military preparedness of the United

States.”23 The Secretary of Defense directed the Secretaries of the Military

Departments and the Directors of the Defense Agencies to ensure that

approval authority for the disposition of equipment to civilian law

enforcement agencies is vested in those officials who can properly assess the

impact the disposition will have on military preparedness and national

security.24

10 U.S.C. §377 requires civilian law enforcement agencies to

reimburse DOD for support provided as required by the Economy Act25 or

other applicable law. Civilian law enforcement agencies do not have to

provide reimbursement for support under this statute if the support: (1) is

provided in the normal course of military training or operations, or (2)

results in a benefit to DOD that is substantially equivalent to that which

 

22 DODD 5525.5, supra note 7, at Encl. E, para. E.4.1; AR 500-51, supra note 8, at §§ 3-1 to 3-10;

SECNAVINST 5820.7B, supra note 8, at para. 9; AFI 10-801, supra note 8, at Chap. 2.1.

23 10 U.S.C.A. §376 (1998). This statute reflects congressional concern over the potential dilution of

military readiness and capabilities by complying with requests for assistance from civilian law enforcement

agencies.

24 DODD 5525.5, supra note 7, at Encl. E, para. E4.4; AR 500-51, supra note 8, at §2-5; SECNAVINST

5820.7B, supra note 8, at para. 9(e); AFI 10-801, supra note 8, at Ch.3.

25 31 U.S.C.A. §1535 (1983).
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would otherwise be obtained through military training or operations.26

Waiver authority for reimbursements not required by law resides with the

Assistant Secretary of Defense (Force Management and Personnel). This

authority may be delegated to the Secretaries of the Military Departments

and the Directors of the Defense Agencies (or designees) on matters within

their approval authority.27

a. Use of Information Collected During Military Operations

The use of information collected during military operations is codified

in 10 U.S.C. §371 and implemented by the Secretary of Defense in enclosure

2 of DODD 5525.5. Under §371, the Secretary of Defense may provide

information collected during the normal course of military operations to

federal, state, and local law enforcement agencies if the information is

relevant to a violation of federal or state law under the jurisdiction of these

officials. The Secretary of Defense shall, to the maximum extent possible,

take into account the needs of civilian law enforcement officials when

planning and executing military training and operations. Further, §371

provides that the Secretary of Defense shall ensure, to the extent consistent

with national security, that intelligence information held by DOD and

relevant to drug interdiction and other civilian law enforcement matters is

promptly provided to the appropriate civilian law enforcement officials. 10

U.S.C. § 371, et seq., are included at Appendix 2-1, Statutes Governing

Support to Law Enforcement.

Enclosure 2 of DODD 5525.5 implements the above guidance with

some additional restrictions. Military Departments and Defense Agencies

are generally encouraged to provide law enforcement officials any

information collected during the normal course of military operations that

may be relevant to a criminal violation. The planning or creation of

missions or training for the primary purpose of aiding civilian law

enforcement officials is prohibited. Law enforcement officials may

accompany regularly scheduled training flights as observers, but point to

point transportation and training flights for civilian law enforcement officials

 

26 10 U.S.C.A. §377 (1998).

27 DODD 5525.5, supra note 7, at Encl. 5, para. E5.2; AR 500-51, supra note 8, at §4-1; SECNAVINST

5820.7B, supra note 8, at para. 10; AFI 10-801, supra note 8, at Ch. 5.
SUPPORT TO CIVILIAN LAW ENFORCEMENT

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are not authorized.28 Additionally, judge advocates must ensure that the

collection and release of information complies with DODD 5240.1,

Activities of DOD Intelligence Components that Affect U.S. Persons;29

DODD 5200.27, Acquisition of Information Concerning Persons and

Organizations not Affiliated with the Department of Defense;30 and DOD

5240.1-R, Procedures Governing the Activities of DOD Intelligence

Components that Affect United States Persons.31 See Chapter 9, Intelligence

Law and Policy Considerations During Domestic Support Operations, for

additional information.

b. Use of Military Equipment and Facilities

The loan or lease of military equipment to civilians is a difficult legal

area. Judge advocates must consult their own service regulations in addition

to DODD 5525.5. 10 U.S.C. §372 and Enclosure 3 of DODD 5525.5

address the use of military equipment and facilities by civilian law

enforcement authorities. Section 372(a) allows the Secretary of Defense to

make available equipment (including associated supplies and spare parts),

base facilities, and research facilities of the Department of Defense to any

federal, state, or local civilian law enforcement official for law enforcement

purposes.32 The provision of equipment and facilities must be made in

accordance with all other applicable law. Enclosure 3 of the DODD

implements this guidance and allows Military Departments and Defense

Agencies to make equipment, base facilities, or research facilities available

to federal, state, or local law enforcement authorities so long as this

assistance does not adversely affect national security or military

preparedness.

 

28 See DEP’T OF DEFENSE, REG. 4515.13-R, AIR TRANSPORTATION ELIGIBILITY (Jan. 1980) for guidance on

this type of assistance. This rule does not apply to counter-drug operations. See infra Chapter 3,

Counterdrug Operations.

29 DEP’T OF DEFENSE, DIR. 5240.1, ACTIVITIES OF DOD INTELLIGENCE COMPONENTS THAT AFFECT U.S.

PERSONS (5 Apr. 1998).

30 DEP’T OF DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND

ORGANIZATIONS NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980).

31 DEP’T OF DEFENSE, REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE

COMPONENTS THAT AFFECT UNITED STATES PERSONS (Dec. 1982).

32 See also U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF ARMY MATERIEL (1 Sept. 96); AR

500-51, supra note 8; and SECNAVINST 5820.7B, supra note 8 for Army, Navy, and Marine Corps

service requirements.
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Approval authority under DODD 5525.5 varies based on the type of

equipment requested, the reason for the request, and whether the equipment

will be loaned33 or leased.34 The following is a listing of the approval

authorities for various types of equipment and facilities:

• Approval authority for military assistance in civil disturbances is

governed by DODD 3025.12, Military Assistance for Civil Disturbances

(MACDIS);35

• Approval authority for assistance to the government of the District of

Columbia is governed by DODD. 5030.46, Assistance to the District of

Columbia Government in Combating Crime;

36

• Approval authority for training, expert advice, and personnel to operate

and maintain equipment shall be made in accordance with Enclosure 4 of

DODD 5525.5;

• Approval authority for assistance from DOD intelligence components is

governed by DODD 5240.1 and DOD 5240.1-R;

• DODD 5525.5 places approval authority for arms, ammunition, combat

vehicles, vessels, and aircraft are the Secretaries of the Military

Departments and the Directors of the Defense Agencies; however,

DODD 3025.15 subsequently reserved approval authority to the

Secretary of Defense;

• Approval authority for loan or lease of other equipment or facilities are

the Secretaries of the Military Departments and the Directors of the

Defense Agencies unless this authority has been retained at a higher

level. The authority of the Secretaries of the Military Departments and

the Directors of the Defense Agencies may be delegated.37

Service regulations supply additional guidance. For example, security

bonds are often required before the loan or lease of equipment. Approval

 

33 Transfers under the Economy Act (31 U.S.C.A. §1535 (1983)) are limited to executive branch agencies

of the Federal Government. The Economy Act does not govern loans.

34 Leases under 10 U.S.C.A. §2667 (1998) may be made to entities outside the Federal Government.

35 DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (MACDIS) (4 Feb.

1994)[hereinafter DODD 3025.12].

36 DEP’T OF DEFENSE, DIR. 5030.46, ASSISTANCE TO THE DISTRICT OF COLUMBIA GOVERNMENT IN

COMBATING CRIME (26 Mar. 1971).

37 DODD 5525.5, supra note 7, at Encl. 3, para. E3.4; AR 500-51, supra note 8, at §2-5; SECNAVINST

5820.7B, supra note 8, at para. 8(c); AFI 10-801, supra note 8, at Ch.3. See also DEP’T OF DEFENSE, DIR.

3025.15, MILITARY ASSISTANCE TO CIVIL AUTHORITIES (18 Feb. 1997) which withholds approval

authorities for some types of support.
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authorities may vary depending upon the implementing service regulation.

A chart depicting Army and National Guard approval authorities for the loan

or lease of military equipment is included at Appendix 2-2, Loan and Lease

of DOD Equipment.

10 U.S.C. §372 provides additional guidance for chemical and

biological incidents. Under §372(b), the Secretary of Defense may make

training facilities, sensors, protective clothing, antidotes and similar items

available to federal, state, or local law enforcement or emergency response

agencies to prepare for or respond to an emergency involving chemical or

biological agents. However, before making these materials available, the

Secretary of Defense must make a determination that the items are not

reasonably available from another source.38 

c. Participation of DOD Personnel in Civilian Law Enforcement

Activities

The federal courts have enunciated three tests which are generally

used to determine whether the use of military personnel violates the PCA.39

If any one of these three tests is met, the assistance may be considered a

violation of the PCA.40 The first test is whether the actions of military

personnel were “active” or “passive.” Only the direct, active use of military

personnel to enforce the laws is a violation of the PCA.41 The second test is

whether the use of military personnel pervaded the activities of civilian law

enforcement officials. To be a violation of the PCA under this test, military

personnel must fully subsume the role of civilian law enforcement

 

38 See also 10 U.S.C.A. §382 (1998) for further guidance on emergency situations involving chemical or

biological weapons of mass destruction.

39 United States v. Yunis, 681 F. Supp. 891 (D.D.C. 1988) aff’d, 924 F.2d 1086 (D.C.Cir. 1991).

40 United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).

41 United States v. Rasheed, 802 F. Supp. 312, 324-325, (D.Haw. 1992) (court finding that Navy’s

providing of aerial reconnaissance, and intercepting ship, as well as providing back up security while the

ship was searched and defendants arrested, was passive involvement, and consequently did not violate

PCA); United States v. Red Feather, 392 F. Supp. 916, 925 (W.D.S.D. 1975 )(Activities which constitute

active role in law enforcement by military are: arrest, seizure of evidence, search of a person, search of a

building, investigation of crime, interviewing witnesses, pursuit of an escaped prisoner, search of an area

for a suspect, and other like activities. Activities which constitute a passive role are: mere presence of

military personnel under orders to report on necessity for military intervention, preparation of contingency

plans to be used if military intervention is ordered, advice or recommendations given to civilian law

enforcement officials regarding tactics or logistics, presence of military personnel to deliver military

equipment and supplies, training civilian law enforcement officials on the use and maintenance of

equipment, aerial reconnaissance flights, and similar activities).
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officials.42 The third test is whether the military personnel subjected citizens

to the exercise of military power that was regulatory, proscriptive, or

compulsory in nature. A power "regulatory in nature" is one which controls

or directs. A power "proscriptive in nature" is one that prohibits or

condemns. A power "compulsory in nature" is one that exerts some coercive

force. 43

As mentioned above, in implementing the guidance contained in 10

U.S.C., Chapter 18, DODD 5525.5 divides the PCA restrictions regarding

the use of military personnel to assist civilian law enforcement into 5

categories: direct assistance, training, expert advice, use of DOD personnel

to operate or maintain equipment, and other permissible assistance.

Use of DOD personnel in support to civilian law enforcement will

often be subject to intense scrutiny, such as occurred following the events in

Waco, Texas following federal activities involving the Branch Davidian

complex. In advising a commander, judge advocates must also consider

possible legal ramifications of PCA violations. Evidence may be excluded

from use at trial and the military may be sued.

(1) Direct Assistance

(a) Prohibited Direct Assistance

Direct assistance and participation by military personnel in the

 

42 Kahn, 35 F.3d at 431-432 (court held that Navy’s involvement in apprehension, arrest, and detention of

defendant in international waters was passive and thus did not violate PCA because the FBI was in charge

of operation at all times, and Navy merely provided necessary support services); Hayes v. Hawes, 921 F.2d

100, 103-04 (actions of undercover NIS agent in acting as a drug buyer and signaling civilian law

enforcement officers when the transaction was complete, was not so pervasive as to violate the PCA since

the NIS agent did not become involved in the arrest and search of the defendant or the seizure and

transportation of evidence); United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986) (Air Force allowing

a U.S. Customs Service officer to ride aboard an AWACS aircraft, tracking defendant’s aircraft, and

reporting its location to U.S. Customs Service agents on the ground was not so pervasive as to violate the

PCA. The court further noted that these actions are specifically allowed by 10 U.S.C. §§371 and 374(b)).

43 Yunis, 681 F. Supp. at 895-96 (Navy’s involvement in apprehension, arrest, and transportation of

defendant was not regulatory, proscriptive, or compulsory use of military power because defendant was

under exclusive custody and control of FBI at all times); United States v. Casper, 541 F.2d 1275, 1278 (8th

Cir. 1976) (use of by civilian law enforcement officers of military equipment, presence of military

personnel ordered there to observe and report whether Federal military intervention would be required,

drafting of contingency plans by military personnel for intervention of military, and aerial reconnaissance

by military aircraft, was not regulatory, proscriptive, or compulsory use of military power which would

result in violation of PCA).
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execution and enforcement of the law is the heart of the prohibition of the

PCA.44 Impermissible direct assistance by military personnel in civilian law

enforcement activities is codified in 10 U.S.C. §375 and is implemented as

DOD policy by DODD 5525.5.45 Prohibited direct assistance by military

personnel include:

• Interdiction of a vehicle, vessel, aircraft, or other similar activity;

• A search or seizure;

• An arrest, apprehension, stop and frisk, or similar activity; or

• Use of military personnel for surveillance or pursuit of individuals, or as

undercover agents, informants, investigators, or interrogators.

(b) Permissible Direct Assistance

(i) Military Purpose Doctrine

Conversely, there are several forms of direct assistance by military

personnel that are permitted under the PCA. The first type of permitted

direct assistance is action taken for the primary purpose of furthering a

military or foreign affairs function of the United States.46 This category is

often referred to as the “Military Purpose Doctrine” and covers actions

whose primary purpose is to further a military interest. While civilian

agencies can receive an incidental benefit, this section should be construed

narrowly and cannot be used as a subterfuge to the PCA. For example, the

scheduling of a military exercise for the sole purpose of benefiting a civilian

law enforcement agency is contrary to the intent of the military purpose

doctrine. Military actions under the military purpose doctrine include:

• Investigations and other actions related to enforcement of the Uniform

Code of Military Justice (UCMJ);

• Investigations and other actions that are likely to result in administrative

proceedings by DOD, regardless of whether there is a related civil or

criminal proceeding;

 

44 Red Feather, 392 F. Supp. at 923 (Clear from the legislative history that Congress intended 18 U.S.C.

§1385 to prevent the direct, active use of Federal troops to execute the laws).

45 DODD 5525.5, supra note 7, at Encl. 4, para. E4.1.3; AR 500-51, supra note 8, at §3-5; SECNAVINST

5820.7B, supra note 8, at para. 9(a)(3); AFI 10-801, supra note 8, at Ch.2.

46 DODD 5525.5, supra note 7, at Encl. E4, para. E4.1.2; AR 500-51, supra note 8, at §3-4(a),

SECNAVINST 5820.7B, supra note 8, at para. 9(a)(2); AFI 10-801, supra note 8, at Ch.2.
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• Investigations and other actions related to the commander’s inherent

authority to maintain law and order on a military installation or facility;

• Protection of classified military information or equipment;

• Protection of DOD personnel, DOD equipment, and official guests of the

Department of Defense; and

• Such other actions that are undertaken primarily for a military or foreign

affairs purpose. 47

(ii) Emergency Authority

A second type of direct assistance permitted by statute is action that

falls under the “emergency authority” of the United States. These actions

are taken under the inherent right of the U.S. Government as a sovereign

national entity under the U.S. Constitution. Actions taken under this

authority are intended to preserve public order and to carry out governmental

operations within U.S. territorial limits, or otherwise in accordance with

applicable law. Force may be used if necessary.

This “emergency authority” is reserved for extremely unusual

circumstances. AR 500-50, § 2-4, states “...in view of the availability of

rapid communications capabilities, it is unlikely that action under this

authority would be justified without prior Department of the Army approval

while communications facilities are operating.”

Further, this authority will only be used under the guidance of DODD

3025.12, Military Assistance for Civil Disturbances (MACDIS).48 DODD

3025.12 states: “Military Forces shall not be used in MACDIS unless

specifically authorized by the President, except in the following emergency

circumstances:”49

• When the use of Military Forces is necessary to prevent loss of life or

wanton destruction of property, or to restore governmental functioning

and public order. That "emergency authority" applies when sudden and

 

47 DODD 5525.5, supra note 7, at Encl. E4, para. E4.1.2; AR 500-51, supra note 8, at §3-4(a),

SECNAVINST 5820.7B, supra note 8, at para. 9(a)(2); AFI 10-801, supra note 8, at Ch.2.

48 DODD 3025.12, supra note 35.

49 Id. at para. 4.2.2.
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21

unexpected civil disturbances (including civil disturbances incident to

earthquake, fire, flood, or other such calamity endangering life) occur, if

duly constituted local authorities are unable to control the situation and

circumstances preclude obtaining prior authorization by the President,50

or

• When duly constituted state or local authorities are unable or decline to

provide adequate protection for federal property or federal governmental

functions, federal action (including the use of military forces) is

authorized, as necessary, to protect the federal property or functions.51

As previously stated, Presidential approval is not a prerequisite to the

use of military forces in these two limited circumstances. However, DOD

officials and military commanders must use all available means to obtain

Presidential authorization through their appropriate chains of command

while applying emergency authority.52

(iii) Civil Disturbance Statutes

The third type of permitted direct assistance by military forces to

civilian law enforcement is action taken pursuant to DOD responsibilities

under 10 U.S.C. §§331-334. See Chapter 4, Military Assistance for Civil

Disturbances (MACDIS) for a more detailed discussion. These statutes

contain exceptions to the Posse Comitatus Act.53 These statutes are

sometimes referred to as the “Insurrection Statutes,” and they relate to the

use of military forces with respect to insurgency, domestic violence, or

conspiracy that hinders the execution of state or federal law in specified

circumstances. Actions under this authority are governed by DODD

3025.12. The Insurrection Statutes permit the President to use the armed

forces to enforce the law when:

• There is an insurrection within a state, and the state legislature (or

governor if the legislature cannot be convened) requests assistance from

the President;54

 

50 Id. at para. 4.2.2.1.

51 Id. at para. 4.2.2.2.

52 Id. at para. 4.2.2.

53 Insurrection Act, 10 U.S.C.A. §§ 331-334 (1998).

54 10 U.S.C.A. §331.
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22

• A rebellion makes it impracticable to enforce the federal law through

ordinary judicial proceedings;55

• An insurrection or domestic violence opposes or obstructs federal law, or

so hinders the enforcement of federal or state laws that residents of that

state are deprived of their Constitutional rights and the state is unable or

unwilling to protect these rights.56

10 U.S.C. §334 requires the President to issue a proclamation ordering

the insurgents to disperse within a certain time before he can use the military

to enforce the laws. The President issued such a proclamation during the

Los Angeles riots. See Chapter 4, Military Assistance for Civil

Disturbances, for more information.

(iv) Other Statutory Authority

There are several laws that provide statutory authority for the military

to provide assistance to civilian law enforcement agencies in executing the

laws. 57 These statutes permit direct military participation in civilian law

enforcement, subject to applicable limitations within the respective statutes.

This section does not contain detailed guidance, and judge advocates must

consult the statutes and other references before determining military

participation is permissible. These statutes include the following:

• Protection of national parks and certain other federal lands (16 U.S.C.

§23, §78, and §593);

• Enforcement of the Fishery Conservation and Management Act of 1976

(16 U.S.C. §1861(a));

• Assistance in the case of crimes against foreign officials, official guests

of the United States, and other internationally protected persons (18

U.S.C. §112 and §1116);

• Assistance in the case of crimes against members of Congress (18 U.S.C.

§351);

• Assistance in the case of crimes involving nuclear materials (18 U.S.C.

§831);

 

55 10 U.S.C.A. §332.

56 10 U.S.C.A. §333.

57 DODD 5525.5, supra note 7, at Encl. 4, para. E4.1.2.5; AR 500-51, supra note 8, at §3-4(d);

SECNAVINST 5820.7B, supra note 8, at para. 9(a)(2)(f).
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23

• Protection of the President, Vice President, and other designated

dignitaries (18 U.S.C. §1751 and the Presidential Protection Assistance

Act of 1976);

• Actions taken in support of the neutrality laws (22 U.S.C. §408 and

§§461-462);

• Removal of persons unlawfully present on Indian lands (25 U.S.C. §180);

• Execution of quarantine and certain health laws (42 U.S.C. §97);

• Execution of certain warrants relating to enforcement of specified civil

rights laws (42 U.S.C. §1989);

• Removal of unlawful inclosures from public lands (43 U.S.C. §1065);

• Protection of the rights of a discoverer of a guano island (48 U.S.C.

§1418);

• Support of territorial governors if a civil disorder occurs (48 U.S.C.

§1422 and §1591); and

• Actions in support of certain customs laws (50 U.S.C. §220).

(2) Training

The second category of restrictions on military involvement in civilian

law enforcement is training. DOD will not provide advanced military

training to civilian law enforcement agencies. 58 Advanced military training

is defined as high intensity training which focuses on the tactics, techniques,

and procedures required to apprehend, arrest, detain, search for, or seize a

criminal suspect when the potential for violent confrontation exists.

Examples of advanced military training include: advanced marksmanship

and sniper training, military operations in urbanized terrain (MOUT), close

quarters battle/close quarters combat (CQB/CQC) training, and other similar

training. Advanced military training does not include basic military skills

such as basic marksmanship, patrolling, mission planning, medical, and

survival skills.59

A single general exception to the above policy is provided to the U.S.

Army Military Police school which can continue to train civilian law

 

58 Memorandum, Deputy Secretary of Defense, subject: DoD Training Support to Civilian Law

Enforcement Agencies (29 June 1996)[hereinafter Training Memorandum]. A copy of the memorandum is

at Appendix 2-3.

59 DOD may allow local police organizations and other civic organizations to use military ranges. See 10

U.S.C.A. § 4309 (1998) and DEP’T OF DEFENSE, DIR. 1025.1, DOD CIVILIAN RIFLE AND PISTOL

MARKSMANSHIP TRAINING PROGRAM (31 Jan. 1984).
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enforcement agencies in the Counterdrug Special Reaction Team Course, the

Counterdrug Tactical Police Operations Course, and the Counterdrug

Marksman/Observer Course. Additionally, the Commander-in-Chief, U.S.

Special Operations Command (USCINCSOC) may approve similar training

by special operations forces on an exceptional basis.60

10 U.S.C. §373 permits the Secretary of Defense to make DOD

personnel available for the training of federal, state, and local civilian law

enforcement personnel in the operation and maintenance of equipment,

including equipment provided to civilian law enforcement by DOD under 10

U.S.C. §372. The Secretary of Defense has implemented this guidance in

DODD 5525.5.61

DODD 5525.5 allows the Military Departments and Defense

Agencies to provide training that is not "large scale or elaborate" and does

not result in a direct or regular involvement of military personnel in

activities that are traditionally civilian law enforcement operations. Training

assistance shall be limited to situations where the use of non-DOD personnel

would be impractical because of time or cost. Training assistance cannot

involve military personnel in a direct role in a law enforcement operation,

unless otherwise authorized by law, and this assistance will only be rendered

at locations where law enforcement confrontations are unlikely.62

(3) Expert Advice

The third category of military assistance to civilian law enforcement

under DODD 5525.5 is the provision of expert advice. 10 U.S.C. §373

allows the Secretary of Defense to make DOD personnel available to

provide civilian law enforcement agencies with expert advice relevant to the

purposes of 10 U.S.C., Chapter 18. The Secretary of Defense has directed

that Military Departments and Defense Agencies may provide expert advice

in accordance with this statute as long as military personnel are not directly

 

60 Training Memorandum, supra note 58.

61 DODD 5525.5, supra note 7, at Encl. 4, para. E4.1.4; AR 500-51, supra note 8, at §3-6; SECNAVINST

5820.7B, supra note 8, at para. 9(a)(4).

62 DODD 5525.5, supra note 7, at Encl. 4, para. E4.1.4; AR 500-51, supra note 8, at §3-6; SECNAVINST

5820.7B, supra note 8, at para. 9(a)(4).
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25

involved in activities that are fundamentally civilian law enforcement

operations.63

(4) Use of DOD Personnel to Operate or Maintain

Equipment

10 U.S.C. §374 addresses the provision of DOD personnel to operate

or maintain equipment for federal, state, or local law enforcement officials.

10 U.S.C. §374(a) allows the Secretary of Defense to make DOD personnel

available for the maintenance of equipment for federal, state, and local law

enforcement agencies. 10 U.S.C. §374(b) allows the Secretary of Defense,

upon the request of the head of a federal law enforcement agency, to make

DOD personnel available to operate equipment with respect to:

• A criminal violation of certain specified laws;64

• Assistance that such agency is authorized to provide to a state, local, or

foreign government involved with enforcement of a similar law;

• A foreign or domestic counter-terrorism operation; or

• A rendition of a suspected terrorist from a foreign country to the United

States to stand trial.

DOD personnel made available to a civilian law enforcement agency

under 10 U.S.C. §374(b) may operate equipment for the following purposes:

• Detection, monitoring, and communication of the movement of air and

sea traffic;

• Detection, monitoring, and communication of the movement of surface

traffic outside of the geographic boundary of the United States and within

the United States not to exceed 25 miles of the boundary if the initial

detection occurred outside of the boundary;

• Aerial reconnaissance;

• Interception of vessels or aircraft detected outside the land area of the

United States for the purposes of communicating with such vessels and

 

63 DODD 5525.5, supra note 7, at Encl. E, para. E4.1.5; AR 500-51, supra note 8, at §3-7; SECNAVINST

5820.7B, supra note 8, at para. 9(a)(5).

64 Controlled Substances Act, 21 U.S.C.A. §801-§904 (1999); Controlled Substances Import and Export

Act, 21 U.S.C.A. §951-§971 (1999); Immigration and Nationality Act, 8 U.S.C.A. §§1324-1328 (1999); a

law relating to the arrival or departure of merchandise (as defined in section 401 of the Tariff Act of 1930)

into or out of the customs territory of the United States; Maritime Drug Law Enforcement Act, 46 U.S.C.A.

App. §1901 (2000); or any foreign or domestic law prohibiting terrorist activities.
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26

aircraft to direct such vessels and aircraft to go to a location designated

by appropriate civilian officials;

• Operation of equipment to facilitate communications in connection with

law enforcement programs specified in 10 U.S.C. §374(4)(b)(1);

• Subject to joint approval by the Secretary of Defense and the Attorney

General (and the Secretary of State in the case of a law enforcement

operation outside of the land area of the United States) –

! the transportation of civilian law enforcement personnel along with

any other civilian or military personnel who are supporting, or

conducting, a joint operation with civilian law enforcement personnel;

! the operation of a base of operations for civilian law enforcement and

supporting personnel; and

! the transportation of suspected terrorists from foreign countries to the

United States for trial (so long as the requesting federal law

enforcement agency provides all security for such transportation and

maintains custody over the suspect through the duration of the

transportation).

 Additionally, DOD personnel made available to operate equipment

for the purpose stated above may continue to operate such equipment into

the land area of the United States in cases involving the pursuit of vessels or

aircraft where the detection began outside such land area.65 Lastly, 10

U.S.C. §374(c) provides that the Secretary of Defense may make DOD

personnel available to operate equipment for purposes other than those

enumerated in 10 U.S.C. §374(b)(2) so long as such support does not result

in DOD personnel directly participating in a civilian law enforcement

operation, unless direct participation is otherwise authorized by law. See

Appendix 2-6, Support to DOJ.

Not all of the provisions of 10 U.S.C. §374 have been implemented

by the Secretary of Defense through DODD 5525.5.66 Generally, under

DODD 5525.5, use of DOD personnel to operate or maintain, or to assist in

operating or maintaining equipment will be limited to situations where it

would be impractical because of time or cost to use non-DOD personnel.

 

65 10 U.S.C.A. §374(b)(3) (1998).

66 DODD 5525.5, supra note 7, at Encl. E, para. E4.1.6. DODD 5525.5 was last updated in 1989 while 10

U.S.C. §§371-382 is updated yearly through new legislation from Congress. Judge Advocates must be

aware that DODD 5525.5 may not accurately reflect the state of the law regarding military support to

civilian law enforcement as it stands today.
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27

This type of assistance cannot involve DOD personnel in a direct law

enforcement role unless otherwise authorized by law, and the subject

assistance should be provided at a location where there is not a reasonable

likelihood of a law enforcement confrontation. Requests for the use of

personnel to operate or maintain equipment must come from the head of the

law enforcement agency making the request. This is inconsistent with 10

U.S.C. §374, which requires requests for the use of DOD personnel to

operate equipment to specifically come from the head of a federal law

enforcement agency.67 Use of military aircraft for point-to-point

transportation and training flights for civilian law enforcement personnel is

governed by DOD 4515.13-R.

Like 10 U.S.C. §374(b), DODD 5525.5 provides additional guidance

concerning drug, customs, immigration, and other laws. Under the DOD

Directive, DOD personnel made available at the request of the head of a

civilian agency empowered to enforce the laws enumerated in 10 U.S.C.

§374(b)(2) may provide the following assistance:

• Operate or maintain equipment to the extent that the equipment is used

for monitoring and communicating to civilian law enforcement officials

the movement of sea and air traffic with respect to any criminal violation

of a law enumerated in paragraph E4.1.2.5,68 including communicating

information concerning the relative position of civilian law enforcement

officials and other sea and air traffic; or

• Operate equipment (by, or with the assistance of DOD personnel) in an

emergency circumstance outside the land area of the United States (or

any Commonwealth, territory, or possession of the United States) as a

base of operations by federal law enforcement officials to facilitate the

enforcement of a law enumerated in 10 U.S.C. §374(b)(1) and to

transport such law enforcement officials in connection with such

operations subject to the following limitations:

! equipment operated by or with the assistance of DOD personnel may

not be used to interdict or interrupt the passage of vessels or aircraft,

 

67 The U.S. Code does not mention state and local law enforcement agencies. However, under 10 U.S.C.A.

§374(b)(1)(B)(1998), DOD personnel may operate equipment for a state or local law enforcement agency,

but only if the request comes from the head of a Federal law enforcement agency and this support is of the

type the federal law enforcement agency is authorized to provide to the state or local law enforcement

agency.

68 The laws enumerated in E4.1.2.5 are the same laws listed in Other Express Authority, above, regarding

the use of the military to enforce laws under specific statutory authority.
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except when DOD personnel are otherwise authorized to take such

action with respect to civilian law enforcement operations; and

! there must be a joint determination by the Secretary of Defense and

the Attorney General that an emergency situation exists. An

emergency circumstance may be determined to exist for purposes of

this subparagraph only when the size and scope of the suspected

criminal activity in a given situation poses a serious threat to the

United States. This emergency authority may be used only with

respect to large-scale criminal activity at a particular point in time or

over a fixed period. It does not permit use of this authority on a

routine or extended basis.

The key authorities addressing drugs, customs, and immigration are

inconsistent. 10 U.S.C. §374 allows DOD personnel to operate and maintain

equipment. Under this authority, requests for DOD personnel to maintain

equipment may come from federal, state, or local authorities, while requests

for DOD personnel to operate equipment must come from the head of a

federal law enforcement agency.

DODD 5525.5, on the other hand, does not distinguish between

requests for DOD personnel to operate or maintain equipment. Under the

DODD, requests for both must come from the head of a civilian law

enforcement agency charged with enforcing specified federal laws.69

In addition, the purposes listed in 10 U.S.C. §374(b)(2) for which

DOD personnel may operate equipment are far more expansive than those

listed in the DOD Directive. Operations such as aerial reconnaissance and

intercepting vessels outside the land area of the U.S. in order to direct them

to a certain area are permitted under §374, but not under the DOD Directive.

It is unclear whether the Secretary of Defense chose to withhold some of the

authority he was granted under §374, or whether the DOD Directive has not

been updated to reflect the authority granted under §374. Further, the DOD

Directive makes no distinction between maintenance and operation, whereas

§374 specifically limits conduct under §374(b) to operation of equipment

only.

 

69 See supra note 64, for a list of specified federal laws.
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29

(5) Other Permissible Assistance

The last category of military assistance to civilian law enforcement

under DODD 5525.5 is the overarching category of “other permissible

assistance.”70 Under 10 U.S.C. §371, the transfer of information acquired in

the normal course of military operations to civilian law enforcement

agencies is not a violation of the PCA. Transfer of information is discussed

in greater detail in Section B.3.a. Use of Information Collected During

Military Operations, above. Additionally, the DOD Directive provides that

other actions which are approved by the Secretaries of the Military

Departments or the Directors of Defense Agencies that do not subject

civilians to the regulatory, prescriptive, or compulsory use of military power

are not violations of the PCA. See Appendix 2-5, Support to Capitol Police

Order.

 

70 DODD 5525.5, supra note 7, at Encl. 4, para. E4.1.7; AR 500-51, supra note 8, at §3-10; SECNAVINST

5820.7B, supra note 8, at para. 9(a)(7); AFI 10-801, supra note 8, at Ch.4.
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30
COUNTERDRUG OPERATIONS

31

CHAPTER 3.

COUNTERDRUG OPERATIONS

KEY REFERENCES:

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

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

Agencies

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

• 14 U.S.C. § 89 - Law Enforcement (Coast Guard)

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

• National Defense Authorization Act of 1991, Pub. L. No. 101-510, §1004

(1991) (as amended)

• CJCSI 3121.02 - Rules on the Use of Force by DOD Personnel Providing

Support to Law Enforcement Agencies Conducting Counterdrug

Operations in the United States

• CJCSI 3710.01 - Delegation of Authority for Approving Operational

Support to Drug Law Enforcement Agencies and Counterdrug-Related

Deployment of DOD Personnel

• NGR 500-2 - National Guard Counterdrug Support

A. INTRODUCTION

Both Active Component and National Guard personnel support

counterdrug operations. Department of Defense (DOD) support for

counterdrug activities is coordinated through the Office of the Defense

Coordinator for Drug Enforcement Policy and Support (DEP&S), which is

located within the Office of the Assistant Secretary of Defense for Special

Operations and Low Intensity Conflict (ASD(SO/LIC)).

Congress makes specific appropriation for counterdrug support

operations.1

 This money is disbursed to the providers of counterdrug

support through DEP&S. Counterdrug support differs from most other areas

 

1

 In 1999, Congress appropriated $725 million for counterdrug operations. This amount has continuously

grown. In 2001, Congress appropriated $869 million for drug interdiction and counter-drug activities.

National Defense Appropriations Act, 2001, Pub. L. No. 106-259, 114 Stat. 656, 672 (2000).
DOPLAW HANDBOOK

32

of military support to civilian law enforcement because reimbursement is not

required.

B. NATIONAL GUARD SUPPORT TO COUNTERDRUG OPERATIONS

National Guard Forces have become a critical part of military support

to civilian law enforcement agencies in the counterdrug arena. 32 U.S.C.

§112(a) allows the Secretary of Defense to provide federal funding for

National Guard counterdrug activities. Funds provided by the Secretary of

Defense shall be used for:

• Pay, travel, allowances, clothing, subsistence, gratuities, travel, and

related expenses, as authorized by state law, for National Guard

personnel used for drug interdiction and counterdrug activities while not

in federal service;

• The operation and maintenance of National Guard equipment and

facilities used for drug interdiction and counterdrug activities; and

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

equipment, by the National Guard for the purpose of drug interdiction

and counterdrug activities.2

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

part of the DOD counterdrug appropriation and cannot be used for purposes

other than the National Guard counterdrug support program. In order to

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

state requesting such funding must submit a state drug interdiction and

counterdrug activities plan to the Secretary of Defense.3

 A state drug

interdiction and counterdrug activities plan shall:

• Specify how personnel of the National Guard of that state are to be used

in drug interdiction and counterdrug activities;

• Certify that those operations are to be conducted at a time when the

personnel involved are not in federal service;

 

2

 Procurement of equipment cannot exceed $5000 per purchase order unless approval is granted by the

Secretary of Defense. 32 U.S.C.A. §112(a)(3)(1959). Further, equipment purchased, loaned, leased, or

otherwise obtained using 32 U.S.C. §112 funds will only be used for the Counterdrug Support Program

except in very limited circumstances. U.S. DEP’T OF ARMY, NAT’L GUARD BUREAU REG. 500-2, NATIONAL

GUARD COUNTERDRUG SUPPORT, paras. 6-12, 6-14 (31 Mar. 2000)[hereinafter NGR 500-2].

3

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

of the National Guard Bureau. NGR 500-2, supra note 2, at para. 2-5.
COUNTERDRUG OPERATIONS

33

• Certify that participation by National Guard personnel in those operations

is service in addition to training required under 32 U.S.C. §502;4

• Certify that any engineer-type activities (as defined by the Secretary of

Defense) under the plan will be performed only by units and members of

the National Guard;

• Include a certification by the Attorney General of the state that the use of

the National Guard of the state for the activities proposed under the plan

is authorized by, and is consistent with, state law; and

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

state designated by the Governor has determined that any activities

included in the plan that are carried out in conjunction with federal law

enforcement agencies serve a state law enforcement purpose.5

Before funds are provided to the Governor of a state by the Secretary

of Defense, the state drug interdiction and counterdrug activities plan must

be analyzed for adequacy and sufficiency by the Secretary of Defense. To

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

counterdrug operations does not degrade training and readiness, the

following requirements apply in determining what activities National Guard

personnel may perform:

• The performance of the activities may not adversely affect the quality of

that training or otherwise interfere with the ability of a member or unit of

the National Guard to perform the military functions of the member or

unit;

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

of performing the activities;

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

in the cost of training;

• In the case of drug interdiction and counterdrug activities performed by a

unit organized to serve as a unit, the activities will support valid unit

training requirements.6

 

4 See 32 U.S.C.A. §502 (1959) (addressing annual drill and field exercise requirements of National Guard

personnel).

5

 32 U.S.C.A. §112(c)(1959).

6 Id. at §112(b)(2)(C).
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34

The Secretary of Defense will examine the state drug interdiction and

counterdrug activities plan in consultation with the Director of National

Drug Control Policy. However, if the Governor of a state submits a plan

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

were provided to the state under the prior plan, consultation by the Secretary

of Defense with the Director of National Drug Control Policy is not

required. National Guard units can execute only those missions approved by

the Secretary of Defense in the state drug interdiction and counterdrug

activities plan.

National Guard units performing counterdrug missions under 32

U.S.C. §112 are not in federal service (Title 10 status). In fact, §112(c)(2)

specifically requires the state drug interdiction and counterdrug activities

plan to certify that “...operations are to be conducted at a time when the

personnel involved are not in federal service.” Because of this, the Posse

Comitatus Act does not apply to National Guard counterdrug missions

performed under 32 U.S.C. §112, even though these units are performing

missions using federal funds and operating under federal guidance.7

Additionally, National Guard personnel conducting counterdrug missions

under 32 U.S.C. §112 are covered under the Federal Tort Claims Act8 even

though they are not in a federal status.9

National Guard units have greater flexibility than active component

forces in conducting counterdrug missions since the PCA does not apply to

them. However, the National Guard Bureau has imposed several policy

restrictions on National Guard counterdrug operations in National Guard

Bureau Regulation (NGR) 500-2, National Guard Counterdrug Support.

10

As a matter of policy, National Guard personnel will not directly participate

in the arrest of suspects, conduct searches which include direct contact of

 

7

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

purpose of carrying out drug interdiction and counterdrug activities, in accordance with federal statute,

Guardsmen were exempted from Posse Comitatus Act, which generally prohibits use of federal army to aid

civil authorities in the enforcement of civil laws); United States v. Benish, 5 F.3d 20, 25-26 (3rd Cir. 1993)

(Use of National Guard unit that was not in federal service for civilian law enforcement involving

surveillance of possible drug operation was not in violation of federal law, where under Pennsylvania law

governor could place members of National Guard on special state duty to support drug interdiction

programs).

8

 28 U.S.C.A. §§2671-2680 (1994).

9

 NGR 500-2, supra note 2, at para. 2-4.

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

Title 10, United States Code.
COUNTERDRUG OPERATIONS

35

National Guard members with suspects or the general public, or become

involved in the chain of custody of any evidence, except in exigent

circumstances, or when otherwise authorized.11 Exigent circumstances are

defined as situations where immediate action is necessary to protect police

officers, National Guard personnel, or other persons from death or serious

injury; to prevent the loss or destruction of evidence; or to prevent the

escape of a suspect already in custody.12

Only certain counterdrug missions will be funded by the Secretary of

Defense under 32 U.S.C. §112. Some states may not approve all of the

missions authorized by the Secretary of Defense. All missions included in a

Governor’s State Plan must be consistent with, and not prohibited by, state

law. State Attorneys General must ensure all missions in the Governor’s

State Plan are consistent with state law.13

The following missions have been approved for federal funding by the

Secretary of Defense under 32 U.S.C. §112:

• Counterdrug Coordination, Liaison, and Management – Planning and

coordinating state counterdrug supply and demand reduction support;

• Linguist Support – Providing transcription/translation of audio/video

tapes, seized documents and other information media (active/real-time

conversation monitoring or direct participation in interrogations is not

allowed);

• Investigative Case and Analyst Support – Assisting law enforcement

agencies (LEAs) in the establishment of counterdrug intelligence

systems/databases and providing intelligence analysis support;

• Communications Support – Providing personnel to establish, operate and

maintain communications stations, bases, and equipment in support of

LEA counterdrug operations;

• Engineer Support – Providing engineer support to LEAs and community

organizations where the project has a counterdrug nexus;

• Subsurface/Diver Support – Conducting subsurface inspections of

commercial vessel hulls within U.S. territorial waters or maritime ports

of entry through the use of sidescan sonobuoys or divers to detect alien

 

11 NGR 500-2, supra note 2, at para. 2-1e.

12 Id.

13 Id. at para. 2-7.
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devices or containers attached to vessel hulls, or other underwater

activities;

• Domestic Cannabis Suppression/Eradication Operations Support –

Supporting LEA domestic cannabis suppression and eradication

operations;

• Transportation Support – Providing transportation (aerial, ground, or

maritime) of LEA personnel/equipment, persons in LEA custody, seized

property or contraband as part of on-going time-sensitive counterdrug

operations, when security or other special circumstances reasonably

necessitate National Guard support and there is a counterdrug nexus;

• Maintenance/Logistical Support – Providing maintenance/logistical

support of LEA vehicles and equipment to enhance the counterdrug

effectiveness of the supported agency;

• Cargo/Mail Inspection – Assisting LEAs by inspecting cargo and mail;

• Training LEA/Military Personnel – Training LEA/military personnel in

military subjects and skills useful in the conduct of counterdrug

operations or in the operation of equipment used in counterdrug

operations;

• Surface Reconnaissance – Reconnoitering or performing area observation

by land or water to detect and report illegal drug activities that include,

but are not limited to, cultivated marijuana, suspected isolated drug

trafficking airstrips, drug drop zones, drug trafficking corridors, illegal

drug laboratories, suspicious aircraft, watercraft, or motor vehicles;

• Aerial Reconnaissance – Conducting reconnaissance/observation of

airspace, maritime or surface areas (land and internal waterways of the

U.S. and territories) for illegal drug activities which include, but are not

limited to, cultivation of marijuana or delivery of illegal drugs;14

• Community Based Demand Reduction Support – Providing support to

community based activities primarily designed to educate, train, or

otherwise prevent drug abuse among youth;

• Educational Institution Demand Reduction Support – Supporting

community based activities that focus on educational institutions, or

otherwise have an educational institution as the primary sponsor, and are

primarily designed to educate, train, or otherwise prevent drug abuse;

• Informational Demand Reduction Support – Providing information about

drug abuse or drug abuse programs;

 

14 An additional requirement for aerial reconnaissance (otherwise known as “Mission 5a”) is that at least

one person involved in either the operation or training of the mission must attend the National Counterdrug

Civil-Military Institute (NICI) Mission 5a course. Id. at para. 5-17.
COUNTERDRUG OPERATIONS

37

• Leadership Development – Supporting camps, retreats, seminars and

programs, not primarily associated with educational institutions that

focus on developing drug abuse prevention leadership skills in youth and

adults; and

• Coalition Development – Assisting in the development of functioning

community-based coalitions organized to reduce the illegal use of

legitimate drugs and the use of illegal drugs.15

National Guard personnel carrying out the above missions serve in a

support role to LEAs and will not be directly involved in law enforcement

duties. Consequently, National Guard members will only be armed at the

request of the supported law enforcement agency and after meeting certain

criteria. A mission risk analysis will be conducted by The Adjutant General

(TAG) to determine whether National Guard personnel should be armed as a

force protection measure.16

Each state promulgates its own Rules of Engagement (ROE), or Rules

for the Use of Force (RUF) as they are now generally called in domestic

operations. CJCSI 3121.02, Rules on the Use of Force by DOD Personnel

Providing Support to Law Enforcement Agencies Conducting Counterdrug

Operations in the United States, is not applicable to the NG unless they are

in federal service (Title 10 status). A sample NG RUF card is attached at

Appendix 3-1, California National Guard Counterdrug Task Force Standing

Rules of Engagement. Judge advocates must be aware of the application of

the law of the state in which operations are being conducted.17

If National Guard personnel are armed, NGR 500-2 requires the AG

to consider the following:

• All personnel authorized to carry firearms must have received

qualification training and testing on the type of firearm to be carried, in

accordance with current regulations. Training will include instruction on

safety functions, security, capabilities, limitations, and maintenance of

 

15 See NGR 500-2, supra note 2, at para. 2-7 for a detailed description of what each mission entails.

16 Id. at para. 3-6. This authority may be delegated in accordance with para. 3-6(b).

17 Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing

the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW., Nov. 2000, at 1[hereinafter

Stafford].
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the firearms. Testing will include qualification firing in accordance with

current qualification standards;

• Arms and ammunition will be secured at all times in accordance with

appropriate regulations and policies. Rounds will be chambered only on

order of the commander/senior officer/senior noncommissioned officer

present, in coordination and in conjunction with the supported LEA,

except in cases of exigent circumstances;

• Firearms will not be discharged from moving vehicles (except in self

defense or to defend other persons);

• Pilots in command of aircraft have the authority to override an order to

chamber rounds while on board an aircraft;

• Possession or use of non-issued or personally owned firearms and/or

ammunition during counterdrug support operations is prohibited.

National Guard personnel will not accept offers of weapons or

ammunition from LEAs except for use on LEA operated ranges for

training purposes only. The only weapons used for counterdrug support

operations will be federally owned military weapons listed on the unit’s

property books;

• Federally owned military weapons will not be secured in private

dwellings at anytime;

• The counterdrug coordinator will direct additional weapons training

when, in his judgment, it is advisable, regardless of the level of training

indicated by training and qualification records;

• National Guard units may use minimum force for the following purposes:

! To defend themselves or other persons;

! To protect property, or prevent loss/destruction of evidence;

! To make arrests if they have arrest powers pursuant to state law and

exigent circumstances require such action;

• The discharge of any firearm is always considered deadly force; and

• National Guard members will be thoroughly briefed on the Rules of

Engagement and Use of Force prior to the commencement of any

operation.18

C. TITLE 10 SUPPORT TO COUNTERDRUG OPERATIONS

As a result of a series of congressional mandates dating back to 1981,

DOD has assumed an increasingly active role in supporting domestic

 

18 NGR 500-2, supra note 2, at para. 3-6.
COUNTERDRUG OPERATIONS

39

civilian law enforcement agencies (DLEA) to fight the flow of illegal

narcotics into and through the United States. In addition to passing specific

statutory authorities for providing counterdrug support, Congress has

annually appropriated specific funds to DOD to provide counterdrug

support.

In 1981, Congress passed Chapter 18 of Title 10 entitled Military

Cooperation with Civilian Law Enforcement Officials.

19 Although Chapter

18 permits general military cooperation with civilian law enforcement

agencies, Congress passed the Act and its subsequent amendments with the

intent of enabling DOD to provide increased counterdrug support.20 In

1989, Congress took additional steps, assigning specific counterdrug

missions to DOD. As part of the National Defense Authorization Act

(NDAA) for Fiscal Years (FY) 1990 and 1991,21 Congress designated DOD

as the single “lead” agency for the detection and monitoring of aerial and

maritime transit of illegal drugs into the U.S.22 Section 1206 of the same

Act stated that the “Secretary of Defense shall direct that the armed forces,

to the maximum extent practicable, shall conduct military training exercises

in drug interdiction areas.”23 Finally, Congress provided specific

counterdrug authority to DOD by passing Section 1004 of the NDAA for FY

1991.24 See Appendix 3-6, Statutes Governing DOD Support to

Counterdrug Operations.

1. 1991 National Defense Authorization Act Provisions

Congress annually gives DOD authority to support federal, state,

local, and foreign agencies that have counterdrug responsibilities. This

authority has not been codified in the U.S. Code, but can be found in Section

 

19 10 U.S.C.A. §§ 371-382 (2001). See infra Chapter 2, Military Suppot to Civilian Law Enforcement.

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

contained in the “Defense Drug Interdiction Assistance Act.” Pub. L. 99-570, § 3051, 100 Stat. 3207-74.

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

22 10 U.S.C.A. § 124 (1998).

23 NDAA, supra note 21 at § 1206.

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

[hereinafter NDAA 91].
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40

1004 of the National Defense Authorization Act.25 Section 1004 is the

primary authority for DOD support to counterdrug operations.

Under Section 1004, the Secretary of Defense may provide support

for the counterdrug activities of any federal, state, local or foreign law

enforcement agencies if the support is requested by:

• The official with counterdrug responsibilities for the requesting federal

department or agency;

• The appropriate state or local official for state or local support; or

• The appropriate official of a federal department or agency with

counterdrug responsibilities for foreign support.26

The following types of support may be provided by the Secretary of

Defense under §1004:

• The maintenance and repair of equipment made available by DOD for the

purpose of:

! preserving the future utility of the equipment for DOD; and

! upgrading such equipment to ensure the compatibility of such

equipment with other equipment used by DOD.

• The maintenance, repair, or upgrading of equipment, other than

equipment referred to in subsection (a), for the purpose of:

! ensuring that the equipment being maintained or repaired is

compatible with equipment used by DOD; and

! upgrading such equipment to ensure compatibility of that equipment

with equipment used by DOD.

• The transportation of personnel of the United States and foreign countries

(including per diem costs associated with such transportation), and the

transportation of supplies and equipment, for the purpose of facilitating

counterdrug activities within or outside the United States.

• The establishment and operation of bases of operations and training

facilities for the purpose of facilitating counterdrug activities of DOD or

any federal, state, local law enforcement agency within or outside the

 

25 Id. These authorities first appeared in the National Defense Authorization Act of 1991 and this section

has been continuously amended to apply through the year 2002. Many of these authorities are also

reproduced in the notes following 10 U.S.C.A. §374 in the annotated codes.

26 Id. at §1004(a).
COUNTERDRUG OPERATIONS

41

United States, or counterdrug activities of a foreign law enforcement

agency outside the United States.27

• Counterdrug related training of law enforcement personnel of federal,

state, or local governments, or of foreign countries, including associated

support expenses for trainees and the provision of materials necessary to

carry out such training.

• The detection, monitoring, and communication of the movement of:

! air and sea traffic within 25 miles of, and outside the geographic

boundaries of the United States; and

! surface traffic outside the geographic boundary of the United States

and within the United States not to exceed 25 miles of the boundary if

the initial detection occurred outside of the boundary.

• Construction of roads and fences and installation of lighting to block

drug smuggling corridors across international boundaries of the United

States.

• Establishment of command, control, communication, and computer

networks for improved integration of law enforcement, active military,

and National Guard activities.

• The provision of linguist and intelligence analyst services.

• Aerial and ground reconnaissance. 28

The Secretary of Defense may contract for equipment and services to

provide the above types of support if DOD would normally acquire such

equipment and services via contract to support similar DOD activities.29

Section 1004 also provides exceptions to the PCA. Section 1004

counterdrug support is not subject to the requirements of 10 U.S.C., Chapter

18, with the exception of 10 U.S.C. §§375 and 376.30 Further, the Secretary

 

27 Section 1004(h) requires notification by the Secretary of Defense to the congressional defense

committees when military construction under this subsection is to be carried out. The project may not

commence until 21 days after the date written noticed was received by Congress. This requirement only

applies to construction projects that will modify or repair DOD facilities for the purpose set forth in this

subsection, and whose estimated cost is more than $500,000.

28 Id. at §1004(b). CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 3710.01, DELEGATION OF AUTHORITY FOR

APPROVING OPERATIONAL SUPPORT TO DRUG LAW ENFORCEMENT AGENCIES AND COUNTERDRUGRELATED DEPLOYMENT OF DOD PERSONNEL (28 May 1993) [hereinafter CJCSI 3710.01], provides a

detailed listing and discussion of approval authorities for certain types of DOD support to counterdrug

operations.

29 NDAA 91, supra note 24.

30 Id. at §1004(g).
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42

of Defense may provide support that will adversely affect military

preparedness in the short term in contravention of 10 U.S.C. §376 if the

Secretary determines that the importance of providing such support

outweighs the short-term adverse impact.31 For example, §1004(f) allows

the Secretary of Defense to plan and execute otherwise valid military

training and operations for the primary purpose of aiding civilian law

enforcement agencies, which contradicts the guidance contained in

Enclosure 2 of DODD 5525.5.

2. Detection and Monitoring

10 U.S.C. §124 makes DOD the lead federal agency for the detection

and monitoring of aerial and maritime transit of illegal drugs into the United

States. This statute does not extend to the detection and monitoring of land

transit. Although detection and monitoring is now a DOD mission per §124,

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

enforcement authorities.32

In order to perform the detection and monitoring mission, DOD

personnel may operate DOD equipment to intercept a vessel or an aircraft

detected outside the land area of the United States for the purposes of:

• Identifying and communicating with that vessel or aircraft; and

• Directing that vessel or aircraft to go to a location designated by

appropriate civilian officials.33

In cases where a vessel or aircraft is detected outside the land area of the

United States, DOD personnel may begin, or continue, pursuit of that vessel

or aircraft over the land area of the United States.34

3. CJCS Implementation

Authority to approve counterdrug operational support35 to DLEAs

under the statutes discussed above has been delegated by the Secretary of

 

31 Id. at §1004(e).

32 10 U.S.C.A. §124(a)(2)(1998).

33 Id. at §124(b).

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

territory, commonwealth, or possession of the United States. 10 U.S.C.A. §124(c)(1998).
COUNTERDRUG OPERATIONS

43

Defense (SECDEF), through the Chairman of the Joint Chiefs of Staff, to the

Commanders in Chief of the Unified Combatant Commands (with the

authority to further delegate to flag and general officers within their chains

of command).36 The CJCSI 3710.01 provides a specific list of the types of

counterdrug missions that may be approved, such as certain types of aerial

reconnaissance, transportation support, intelligence analyst support,

engineering support and more. Specifically withheld is the authority to

approve counterdrug support missions involving ground reconnaissance,

detection and monitoring operations, and deployments for longer than 179

days or involving more than 400 personnel. These missions require specific

SECDEF approval. CJCSI 3710.01, Delegation of Authority for Approving

Operational Support to Drug Law Enforcement Agencies and CounterdrugRelated Deployment of DOD Personnel, contains significant guidance and

guidelines on permissible counterdrug support to DLEAs and should be

consulted whenever reviewing a proposed operation. CJCSI 3710.01 is

attached at Appendix 3-2, CJCSI 3710.01, Delegation of Authority for

Approving Operational Support to Drug Law Enforcement Agencies.

In 1995, the DEP&S published additional guidance and restrictions on

the use of DOD assets to support counterdrug support operations.37 See

Appendix 3-4, DOD Counterdrug Support Policy. In addition to setting out

support priorities, this policy memorandum sets three support approval

criteria that must be adhered to by all counterdrug approval authorities.

These are:

• There must be a valid counterdrug nexus to all requests for support. Each

request must originate from the proper DLEA official, request support

 

35 Operational support is defined in CJSCI 3710.01, supra note 28, as “CD support involving military

personnel, military personnel with their associated equipment, and training provided by the CINCs from

forces assigned to them or made available to them by DOD components for this purpose.” Non-operational

support, such as pure equipment loans or transfers, are handled and approved through Regional Logistical

Support Offices (RLSO) or through the Service Secretaries.

36 CJCSI 3710.01, supra note 28. U.S. Joint Forces Command (formerly Atlantic Command), further

delegated its authority to Commander, U.S. Army Forces Command (FORSCOM). Memorandum for

Commander, FORSCOM from Commander, Atlantic Command, subject: Delegation of Authority for

Approving Counterdrug Operational Support to Drug Law Enforcement Agencies (1 Oct. 1993).

FORSCOM delegated all of its authority to Commander, Joint Task Force Six. Memorandum from

Commander, FORSCOM to Commander, Joint Task Force Six, subject: Delegation of Authority for

Approving Counterdrug Operational Support to Drug Law Enforcement Agencies (3 Oct. 2000).

37 Memorandum, Office of Department of Defense Coordinator for Drug Enforcement Policy and Support,

subject: Priorities, Policies and Procedures for Department of Defense Counterdrug Support to Domestic

Drug Law Enforcement Agencies (25 Jan. 1995). A copy of the memorandum is at Appendix 3-4.
DOPLAW HANDBOOK

44

that DOD is authorized to provide by statute, solicit support that will

assist the counterdrug activities of the requesting agency within the U.S.,

and request support that will assist or improve DLEA capabilities in

detecting, deterring, or disrupting the production, distribution or transport

of illegal drugs within the U.S., or the dismantling of drug trafficking

organizations.

• There must be military training value associated with the support.

Support should provide DOD units and/or personnel with an opportunity

for training that contributes to military combat readiness. The support

should complement, not conflict with, other training requirements or

contingencies.

• Operational support should enhance DLEA operational capabilities and

should be tied to specific cases or operations, versus augmenting DLEA

staffs. Support is not intended to be a longterm, ongoing, continuing

commitment for missions or operations at the same location.

This policy memorandum also prohibits the assignment of DOD personnel

to perform duty with or augment DLEA federal headquarters. See also

Appendices 3-5, Military Support to Counternarcotics Activities, and 3-7,

Air Transport Support to Federal Drug LEAs.

Detailed rules governing the use of force by military forces engaged

in counterdrug support operations within the U.S. are provided in CJCSI

3121.02, Rules on the Use of Force by DOD Personnel Providing Support to

Law Enforcement Agencies Conducting Counterdrug Operations in the

United States. CJCSI 3121.02 is attached at Appendix 3-3, CJCSI 3121.02.38

4. Counterdrug Support Task Forces

Counterdrug support operations are planned, coordinated and

controlled primarily via three headquarters: Joint Interagency Task Force

(JIATF) East, located in Key West, Florida, (under the command and control

of Southern Command (SOUTHCOM)), JIATF West, located in Alameda,

California, (under the command and control of Pacific Command

(PACOM)), and Joint Task Force Six (JTF-6), located in El Paso, Texas

(under the command and control of Joint Forces Command (JFCOM)).

While the two JIATFs do provide some support to DLEAs in their Areas of

 

38 See Stafford, supra note 17.
COUNTERDRUG OPERATIONS

45

Responsibility (AORs),39 their primary focus is on operations in the source

and transit zones of South and Central America and in international waters

and airspace. The bulk of domestic counterdrug support is provided by

JTF-6.

Joint Task Force Six, activated on November 13, 1989,40 has been

designated the lead DOD organization responsible for planning and

coordinating all DOD support to civilian drug law enforcement agencies in

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

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

Arizona and California, was expanded in 1995 to cover all of CONUS.41 In

June of 1997, a Unified Command Plan change realigned responsibility for

Puerto Rico and the U.S. Virgin Islands to SOUTHCOM. Joint Task Force

Six’s mission is to synchronize and integrate DOD operational,

technological, training, and intelligence support to domestic law

enforcement agency counterdrug efforts in CONUS to reduce the availability

of illegal drugs.

There are approximately 164 personnel assigned to JTF-6, including

civilians, contractors and service-members from all four services. Unlike

the JIATFs, JTF-6 has no DLEA representatives assigned to or working in

the command. Joint Task Force Six has no assigned units and no tasking

authority. The command relies almost entirely on volunteer units to perform

all of its operational support missions. In the year 2000, JTF-6 conducted

over 400 counterdrug support missions throughout CONUS. These included

aerial reconnaissance missions, intelligence analyst and linguist support

missions, mobile training teams, and engineer support.

Co-located with JTF-6 is Operation Alliance, a headquarters

comprised of representatives from federal law enforcement agencies. It

serves as the single point of contact for all law enforcement agencies

(federal, state and local) in requesting DOD counterdrug support. Operation

 

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

SOUTHCOM’s AOR.

40 Message, 152330Z Oct 89, Commander in Chief, Forces Command (CINCFOR), subject: Operations

Order—Counternarcotics Operations (15 Oct. 1989).

41 Message, 212255Z Aug 95, Commander in Chief, Forces Command (CINCFOR), subject: Commander

Joint Task Force Six Expansion of Area of Responsibility for Counterdrug Support for Domestic Drug Law

Enforcement Agencies (21 Aug. 1995). The AOR was expanded to include CONUS, Puerto Rico and the

Virgin Islands.
DOPLAW HANDBOOK

46

Alliance verifies the counterdrug nexus, prioritizes DLEA support requests,

and then forwards their requests to JTF-6 for review and consideration.

5. Coast Guard Law Enforcement Detachments

As the primary enforcer of U.S. maritime law, the United States Coast

Guard (USCG) plays a critical role in the war on drugs. The USCG has the

lead role in maritime drug interdiction, and shares the lead role in air

interdiction with the U.S. Customs Service. The USCG conducts extensive

maritime counterdrug operations, ranging from enforcing drug possession

and use laws in the course of routine recreational vessel boardings, to

conducting sustained multi-unit operations targeting major drug traffickers

far from U.S. shores. Since the PCA does not apply to the USCG,42 the PCA

restrictions on arrest, search, seizure, and the interdiction of vessels and

aircraft, are inapplicable to USCG operations and personnel. To capitalize

on this expertise and capability, 10 U.S.C. §379 requires the Secretary of

Defense and the Secretary of Transportation to assign Coast Guard law

enforcement detachments (LEDETs) to every appropriate naval surface

vessel operating at sea in a drug interdiction area.43 See Appendix 3-8, JP 3-

07.4, Appendix E, LEDETS.

Coast Guard personnel assigned to LEDETs are trained in law

enforcement and have the powers of arrest, search, and seizure in accordance

with Title 14, United States Code.44 Coast Guard personnel assigned under

§379 will have functions which are agreed to by the Secretary of Defense

 

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

43 10 U.S.C.A. §379(a)(1998). A “drug interdiction area” is defined as an area outside the land area of the

United States in which the Secretary of Defense, after consulting with the Attorney General, determines

that activities involving smuggling of drugs into the United States are ongoing.

44 14 U.S.C.A. §89(a)(1990) (“The Coast Guard may make inquiries, examinations, inspections, searches,

seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the

prevention, detection, and suppression of violations of laws of the United States. For such purposes,

commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the

jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board,

examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary

force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a

breach of the laws of the United States rendering a person liable to arrest is being, or has been committed,

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

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

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

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

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

such merchandise, or both, shall be seized.”).
COUNTERDRUG OPERATIONS

47

and Secretary of Transportation and which are otherwise within the Coast

Guard’s jurisdiction.45 No fewer than 500 active duty Coast Guard

personnel will be assigned duties under §379, unless the Secretary of

Transportation, after consulting with the Secretary of Defense, determines

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

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

duties to enforce the laws listed under 10 U.S.C. §374(b)(4)(A).46

Specific rules governing the use of USCG LEDETs are provided in

Commandant, United States Coast Guard Instruction (COMDTINST)

M16247.1A, Maritime Law Enforcement Manual.

47 Chapter Five of the

Maritime Law Enforcement Manual addresses the roles and responsibilities

of the USCG in counterdrug operations. The primary federal statute used by

the USCG in counterdrug operations is the Maritime Drug Law Enforcement

Act (MDLEA).48 The MDLEA prohibits any person on board an U.S.

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

intentionally manufacture or distribute, or to possess with the intent to

manufacture or distribute, a controlled substance.49 The term “U.S. vessel”

includes:

• Federally documented or state numbered vessels;

• Vessels owned in whole or in part by –

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

! a state or political subdivision thereof;

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

! a corporation created under the laws of the U.S. or any state, the

District of Columbia, or any territory, commonwealth, or possession

of the U.S.; and

• U.S. documented vessels sold or registered in a foreign country in

violation of U.S. law.50

 

45 10 U.S.C.A. §379(b).

46 10 U.S.C.A. §379(c).

47 U.S. DEP'T OF COAST GUARD, COMMANDANT OF THE COAST GUARD INSTR. M16247.1A, MARITIME LAW

ENFORCEMENT MANUAL (1 Feb. 1994)[hereinafter COMDTINST M16247.1A]. See also Memorandum

from Commander, Atlantic Area, U.S. Coast Guard, to Commanding Officers, Regional TACLETs North,

South, and Gulf, subject: Memorandum of Agreement Concerning Deployment of Law Enforcement

Detachment (5 Aug. 93)(On file with CLAMO).

48 46 U.S.C.A. App. §1901-1904 (2000).

49 Id. at §1903.

50 Id. at §1903(b).
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“Vessel subject to U.S. jurisdiction” includes a foreign vessel if located:

• In U.S. Customs waters;

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

the enforcement of U.S. law; or

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

to the enforcement of U.S. law.51

U.S. Navy ships with USCG LEDETs aboard remain under the

operational control (OPCON) of the Unified Commander in whose area of

responsibility the DOD asset is operating. OPCON is defined as “the

authority to direct the activities of a unit in the performance of its

operational mission and such additional tasks as may be assigned by

competent authority; the organizational element with OPCON of a unit is the

operational commander of that unit.”52 When an U.S. Navy ship enters the

boarding phase of a law enforcement operation, it shifts tactical control

(TACON) to the USCG until the boarding phase is complete. TACON is

defined as “the temporary authority to direct activities of a specific unit on a

specific mission for a specific period of time; this authority is assigned by

the operational commander and an organizational element with TACON of a

unit is the tactical commander of that unit.” 53 U.S. Navy ships transporting

USCG LEDETs under TACON of the USCG will follow the Use-of-Force

Policy issued by the Commandant, USCG regarding use of warning shots

and disabling fire.54

In addition to placing LEDETs on U.S. Navy ships, the USCG also

relies on extensive bilateral and multilateral agreements between the U.S.

and other nations to place LEDETs on the ships of foreign countries. These

agreements can take various forms – from standing formal memoranda of

agreements to ad hoc verbal agreements. Standing agreements typically

address various aspects of enforcement including: shipriders, overflight,

 

51 Id. at §1903(c).

52 COMDTINST M16247.1A, supra note 47, at Ch. 2, §E(1)(e).

53 Id.

54 CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 3121.01A, STANDING RULES OF ENGAGEMENT, Enclosure H,

Counterdrug Support Operations, para. 1(c) (15 Jan. 2000). CJCSI 3121.01A is classified in part.

Enclosure H is confidential in part. The provision cited is unclassified. See also 10 U.S.C.A. § 637 (1998),

Stopping vessels; immunity from firing at or into vessels.
COUNTERDRUG OPERATIONS

49

access to territorial waters, combined operations, and flag State authorization

to board, search, seize, and arrest. As with all international agreements,

these bilateral and multilateral agreements can only be negotiated with

authorization from the U.S. Department of State.55 See Appendix 3-9,

Sample LEDET MOA, for a sample bilateral agreement.

 

55 COMDTINST M16247.1A, supra note 47, at Ch. 5, sec. B and Encl. 4.
DOPLAW HANDBOOK

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CIVIL DISTURBANCES

51

CHAPTER 4.

MILITARY ASSISTANCE FOR CIVIL DISTURBANCES

KEY REFERENCES:

• 10 U.S.C. § 331 et seq. - The Insurrection Act

• 10 U.S.C. § 332 - Use of Militia and Armed Forces to Enforce Federal

Authority

• 10 U.S.C. § 333 - Interference with State and Federal Law

• 10 U.S.C. § 2667 - Leases: Non-Excess Property of Military

Departments

• 18 U.S.C. § 231 - Civil Disorders

• 18 U.S.C. § 1382 - Entering Military, Naval, or Coast Guard Property

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

• 28 U.S.C. § 1346, 2671-2680 - Federal Tort Claims Act

• 31 U.S.C. § 1535 - Agency Agreements

• DODD 3025.12 - Military Assistance for Civil Disturbances

• DODD 3025.15 - Military Assistance to Civil Authorities

• DODD 5525.5 - DOD Cooperation with Civilian Law Enforcement

Officials

• Executive Order 12656 - Assignment of Emergency Preparedness

Responsibilities

• AR 500-50 - Civil Disturbances

• AR 700-131 - Loan and Lease of Army Materiel

• NGR 500-1/ANGI 10-8101 - Military Support to Civil Authorities

• FM 19-15 - Civil Disturbances

• FM 100-19 - Domestic Support Operations

• Department of Defense Civil Disturbance Plan (GARDEN PLOT)

A. INTRODUCTION

Within civilian communities in the United States, the primary

responsibility for protecting life and property and maintaining law and order

is vested in state and local governments. Generally, federal armed forces are

employed to enforce civil law and order only when circumstances arise

beyond the control of state and local authorities. This basic policy reflects

the Founding Fathers’ hesitancy to raise a standing army and their desire to
DOPLAW HANDBOOK

52

render the military subordinate to civilian authority.1

 The basic policy is

rooted in the Constitution2

 and laws of the United States,3 and allows for

exception only under extreme, emergency conditions.

Exceptions to the restrictions on employment of federal armed forces

to assist state and local civil authorities are also grounded in the

Constitution,4

 which provides the basis for federal legislation allowing

military assistance for civil disturbances (MACDIS). Other emergency

conditions, which are outside the Constitutionally and Congressionally

prescribed conditions, may also allow for MACDIS.

B. CIVIL DISTURBANCE STATUTES

Title 10, Chapter 15 of the United States Code,5 entitled

“Insurrection,” allows the use of federal forces to restore order during times

of civil disturbance. The Department of Defense and the courts use one

phrase, “civil disturbance,” to encompass the various situations allowing the

use of military assistance under the Insurrection Act.

“Civil disturbance” has been defined in a variety of ways. The

Department of Defense states that civil disturbances are “group acts of

violence and disorders prejudicial to public law and order in the 50 States,

the District of Columbia, the Commonwealth of Puerto Rico, U.S.

 

1

 Among the several grounds stated in the Declaration of Independence for severing ties with Great Britain

includes that the King “has kept among us, in times of peace, Standing Armies without the consent of our

Legislature . . . [and] has affected to render the Military independent of and superior to the Civil power.”

THE DECLARATION OF INDEPENDENCE, para. 13, available at

http://www.house.gov/house/Declaration.html. This feeling resurfaced during the Constitutional

Convention where Maryland Delegate Luther Martin recorded the general sentiment, “When a government

wishes to deprive its citizens of freedom and reduce them to slavery, it generally makes use of a standing

army.” Luther Martin’s Letter on the Federal Convention of 1787 (1787), in 1 DEBATES IN THE SEVERAL

STATES CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (ELLIOT’S DEBATES), 344, 372

(Jonathan Elliot ed., 1836) available at http://memory.loc.gov/ammem/amlaw/lwed.html.

2

 The Constitution divides authority over the Armed Forces between the President as Commander in Chief,

U.S. CONST. art. II, § 2, para. 1, and Congress, which has the authority to “raise and support Armies . .

.provide and maintain a Navy, . . . [and] make Rules for the Government and Regulation of the land and

naval Forces.” Id. at art. I, § 8, para. 11.

3 See, e.g., Posse Comitatus Act, 18 U.S.C.A. § 1385 (2000). The Posse Comitatus Act is discussed fully,

supra, Chapter 2, Military Support to Civilian Law Enforcement.

4

 U.S. CONST. art. I, § 8, para. 14, and art. IV, § 4.

5

 10 U.S.C.A. §§ 331-335 (1998).
CIVIL DISTURBANCES

53

possessions and territories, or any political subdivision thereof.”6

 Courts

have used similar language when defining “insurrection.”7

 The phrase “civil

disturbance” includes all circumstances requiring the use of force under the

conditions set out in the Insurrection Act.

Under the Insurrection Act, federal forces may be used to restore law

and order. As the use of federal forces to quell civil disturbances is

expressly authorized by statute, the proscriptions of the Posse Comitatus Act

(PCA) are inapplicable.8

 However, the exception to the PCA is not

unlimited. See discussion below in Section E.1, Garden Plot Mission. The

Insurrection Act permits the commitment of U.S. forces by the President

under three circumstances: to support a request from an U.S. state or

territory; to enforce federal authority; or to protect Constitutional rights.9

1. Support a State Request

The Federal Government has a Constitutional obligation to protect

every state in the union, upon request, from domestic violence.10 Pursuant to

this obligation, Congress included in the Insurrection Act a provision

allowing the President to use federal forces to assist state governments. Title

10, United States Code, section 331 provides:

 

6

 U.S. DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (MACDIS),

para. E2.1.4 (4 Feb. 1994)[hereinafter DODD 3025.12]. See also U.S. DEP’T OF ARMY, REG. 500-50,

CIVIL DISTURBANCES, para. 1-2b (12 Apr. 1972)[hereinafter AR 500-50].

7 E.g., In re Charge to Grand Jury, 62 F. 828 (N.D. Ill. 1894)(The open and active opposition of a number

of persons to the execution of the laws of the United States, of so formidable a nature as to defy for the time

being the authority of the government, constitutes an insurrection, though not accompanied by bloodshed,

and not of sufficient magnitude to render success probable.)(An insurrection is a rising against civil or

political authority; the open and active opposition of a number of persons to the execution of law in city or

state.).

8

 Posse Comitatus Act, 18 U.S.C.A. at § 1385 makes it unlawful to use any part of the Army or Air Force in

a civilian law enforcement capacity to execute local, state, or federal laws. The language of the act itself

specifies that activities expressly authorized by the Constitution or by statute are exempt from the act’s

restrictions. For a more complete discussion of the Posse Comitatus Act, see supra Chapter 2, Military

Support to Civilian Law Enforcement.

9

 U.S. DEP’T OF DEFENSE, DIR. 5525.5, DOD COOPERATION WITH CIVILIAN LAW ENFORCEMENT

OFFICIALS, para. E4.1.2.4 (15 Jan. 1986)[hereinafter DODD 5525.5].

10 U.S. CONST. art. IV, § 4 (“The United States shall guarantee to every State in this Union a Republican

Form of Government, and shall protect each of them against Invasion; and on Application of the

Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence.”).
DOPLAW HANDBOOK

54

Whenever there is an insurrection in any state against its

government, the President may, upon the request of its

legislature or of its governor if the legislature cannot be

convened, call into federal service such of the militia of the

other states, in the number requested by that state, and use such

of the armed forces, as he considers necessary to suppress the

insurrection. 11

A formal request by a state for the assistance of federal armed forces should

be made to the President. The President has designated the Attorney

General of the United States to receive and coordinate preliminary requests

from the states for federal military assistance under this provision.12 See

Appendix 4-13, EO 12656, Emergency Preparedness. Should a request for

assistance be presented to a local commander, the commander should inform

the person making the request to address the request to the Attorney General.

The commander must also inform the Chief of Staff of the Army of the

request and all known material facts pertaining to the request.13

Prior to a state requesting assistance in the form of federal military

forces, all local and state resources, including the National Guard when not

in Title 10 status,14 should have been brought to bear on the civil

disturbance.15

On 1 May 1992, pursuant to this statute, California Governor Pete

Wilson requested federal military support from President George Bush to

assist with restoring law and order in Los Angeles. Governor Wilson

advised President Bush that the domestic violence exceeded the capabilities

of available law enforcement resources, including National Guard forces

 

11 10 U.S.C.A. § 331(1998).

12 See Exec. Order No. 12,656, 53 Fed. Reg. 47,491, § 1101(8) (18 Nov. 1998)[hereinafter EO 12,656];

DODD 3025.12, supra note 6, at para. 4.6.1; AR 500-50, supra note 6, at para. 2-3a. A copy of the Exec.

Order is at Appendix 4-13.

13 AR 500-50, supra note 6, at para. 2-3.

14 See supra, Chapter 10, Reserve Components - Special Issues, which discusses the mobilization and

activation of National Guard forces.

15 See DODD 3025.12, supra note 6, at para. 4.5.1; see also, U.S. DEP’T OF DEFENSE CIVIL DISTURBANCE

PLAN (GARDEN PLOT), Annex C (Concept of Operation) para. 1b, (15 Feb. 1991)[hereinafter GARDEN

PLOT], available at http://freddie.forscom.army.mil/MACA/Word/GardenPlot.doc, or at

http://www.jagcnet.army.mil/CLAMO-DomesticOps.
CIVIL DISTURBANCES

55

mobilized a day earlier.16 President Bush ordered the federalization of the

California National Guard and the deployment of soldiers of the 7th Infantry

Division from Fort Ord and Marines from Camp Pendleton to assist in

restoring order in Los Angeles.17 See Appendices 4-1, Presidential

Declaration and Presidential Decision Document Activating the ARNG for

the LA Riots; 4-2, Army Orders to Execute and Terminate Military

Operations During the LA Riots; and 4-3, JTF LA Report.

 2. Enforce Federal Authority

The President of the United States has a Constitutional duty to see that

the laws of the United States are faithfully executed.18 Within the

Insurrection Act, Congress gave the President the authority to commit the

U.S. military to enforce federal law.19 Title 10, United States Code, Section

332 provides:

Whenever the President considers that unlawful obstructions,

combinations, or assemblages, or rebellion against the authority

of the United States, make it impracticable to enforce the laws

of the United States in any state or territory by the ordinary

course of judicial proceedings, he may call into federal service

such of the militia of any state, and use such of the armed

forces, as he considers necessary to enforce those laws or to

suppress the rebellion.20

The provisions of this statue were used to enforce public school

desegregation in Arkansas21 and Alabama.22 The same provisions were used

to control civil rights protests in Mississippi23 and Alabama.24 See

 

16 Proclamation No. 6427, 57 Fed. Reg. 19,359 (May 5, 1992).

17 Exec. Order No. 12,804, 57 Fed. Reg. 19,361 (May 5, 1992).

18 U.S. CONST. art. II, § 3.

19 10 U.S.C.A. § 332 (1998).

20 Id. See AR 500-50, supra note 6, at para. 2-1b.

21 See Exec. Order No. 10,730, 22 Fed. Reg. 7,628 (Sept. 24, 1957).

22 See Exec. Order No. 11,118, 28 Fed. Reg. 9,863 (Sept. 10, 1963).

23 See Exec. Order No. 11,053, 27 Fed. Reg. 9,681 (Sept. 30, 1962).

24 See Exec. Order No. 11,111, 28 Fed. Reg. 5,709 (June 11, 1963).
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Appendices 4-9, EO 10730; 4-10, EO 11053; 4-11, EO 11111; and 4-12, EO

11118.

3. Protect Constitutional Rights

Citizens of the United States are guaranteed equal protection under the

law.25 The final congressional grant of authority to the President for the use

of the U.S. military during times of insurrection is for the protection of

citizens in states that cannot protect the Constitutional rights of its citizens.26

Title 10, United States Code, section 333 states:

The President, by using the militia or the armed forces, or both,

or by any other means, shall take such measures as he considers

necessary to suppress, in a state, any insurrection, domestic

violence, unlawful combination, or conspiracy, if it –

(1) so hinders the execution of the laws of that state, and

of the United States within the state, that any part or class of its

people is deprived of a right, privilege, immunity, or protection

named in the Constitution and secured by law, and the

constituted authorities of that state are unable, fail, or refuse to

protect that right, privilege, or immunity, or to give that

protection; or

(2) opposes or obstructs the execution of the laws of the

United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the state shall be

considered to have denied the equal protection of the laws

secured by the Constitution.27

Under 10 USC § 333, President Kennedy sent military troops to Alabama in

April 1963 during the civil rights protests in Birmingham, Alabama.28

 

25 U.S. CONST. amend. XIV, § 1 which states in part “No State shall make or enforce any law which shall

abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction

equal protection of the laws."

26 10 U.S.C.A. § 333 (1998).

27 Id. See AR 500-50, supra note 6, at para. 2-1c.

28 See Alabama v. U.S., 373 US 545 (1963).
CIVIL DISTURBANCES

57

4. Procedural Issues

Prior to committing federal troops under the Insurrection Act, the

President must issue a proclamation demanding that the insurgents cease and

desist all acts of violence and retire peaceably within a prescribed time.29 If

the Presidential Proclamation does not end the disturbance, the President

will issue an Executive Order to the Secretary of Defense directing the

Secretary to use such of the armed forces as are necessary to restore order. 30

Decisions of the President to issue proclamations and Executive Orders in

this area are final31 and cannot be compelled by the courts.32 Copies of the

Presidential Proclamation and Executive Order for the deployment of

military forces to Los Angeles along with the Executive Orders for enforcing

school desegregation and controlling civil rights protests in the 1960s are

included at Appendices 4-1 and 4-9 through 4-12.

Department of Defense Directive (DODD) 3025.15, Military

Assistance to Civil Authorities, requires all requests for military support be

evaluated against six criteria prior to the decision to employ forces.

• Legality—compliance with the law.

• Lethality—potential use of lethal force by or against DOD forces.

• Risk—safety of DOD forces.

• Cost—who pays, impact on DOD budget.

 

29 10 U.S.C.A. §334 (1998) which states in full, “Whenever the President considers it necessary to use the

militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents

to disperse and retire peaceably to their abodes within a limited time." See AR 500-50, supra note 6, at

para. 2-3b.

30 See Exec. Order No. 10,703, 22 Fed. Reg. 7,628 (Sept. 24, 1957)(Order authorizing use of military forces

for desegregation in Arkansas); Exec. Order No. 11,053, 27 Fed. Reg. 9,681 (Sept. 30, 1962)(Order

authorizing use of military forces during riots in Mississippi); Exec. Order No. 11,111, 28 Fed. Reg. 5,709

(June 11, 1963)(Order authorizing use of military forces during riots in Alabama); Exec. Order No. 11,118,

28 Fed. Reg. 9,863 (Sept. 10, 1963)(Order authorizing use of military forces for desegregation in

Alabama).

31 See e.g., Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp. 1249 (D.D.C. 1973), aff’d, 497

F.2d 683, aff’d, 497 F.2d 684 (D.C. Cir. 1977), cert. denied, 419 U.S. 1021 (1974), aff’d, 497 F.2d 685

(D.C. Cir. 1974)(decision whether to use troops or militia to quell civil disorder is exclusively within the

province of the President, and presidential discretion in exercising powers granted in U.S. Constitution Art

2, §2 and Art. 4, § 4, and the Insurrection Act is not subject to judicial review).

32 See Consolidated Coal and Coke Co. v. Beale et al., 282 F. 934 (S.D. Ohio 1922)(Ruling that court could

not compel President to issue Proclamation or exercise discretion under Insurrection Act).
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• Appropriateness—whether the requested mission is in the interest of

DOD to conduct.

• Readiness—impact on DOD’s ability to perform its primary mission.33

The decision to employ armed forces is made at the DOD level in

coordination with the President and the Chairman of the Joint Chiefs of

Staff. The criteria are helpful to local commanders and legal advisors when

forwarding formal assistance requests to higher headquarters for

consideration.

The Secretary of Defense has reserved the authority to approve all

military support in response to civil disturbances.34 Pre-commitment

approvals and requirements do not prevent federal military forces from

alerting troops, conducting planning, preparing orders, or pre-positioning

forces at the direction of the Secretary of the Army.35 If more than a

battalion-sized unit is to be pre-positioned, the President must approve the

pre-positioning.36 The Department of the Army will not issue employment

orders prior to the Presidential direction to the Secretary of Defense.37

C. OTHER AUTHORITY

In addition to the Insurrection Act, authority to use federal troops in a

law enforcement capacity to quell civil disturbances can be found in two

other major areas.38

 

33 U.S. DEP’T OF ARMY, DIR. 3025.15, MILITARY ASSISTANCE TO CIVIL AUTHORITIES, para. 4.2 (18 FEB.

1997)[hereinafter DODD 3025.15].

34 Id. at para. 4.4. The Secretary of Defense delegated all authority for civil disturbance operations to The

Secretary of the Army in DODD 3025.12. Though not explicitly stated, this delegation included the

authority to approve the use of military forces in civil disturbance operations. DODD 3025.15 was

promulgated three years later, and the Secretary of Defense withheld approval authority for civil

disturbance operations at the Secretariat level. DODD 3025.12 has not been updated to reflect the change

in approval authority.

35 AR 500-50, supra note 6, at para. 2-3b

36 Id. See also, DODD 3025.12, supra note 6, at para. 4.2.6; 32 CFR § 215.5(g) (2000); See also United

States v. Alabama, 373 U.S. 545 (1963)( No justiciable issue when President alerts and stations troops in

the vicinity of an area of civil disturbance foreseeing need to exercise powers under the Insurrection Act).

37 AR 500-50, supra note 6, at para. 2-3b. See also Garden Plot, supra note 15, at Annex C (Concept of

Operations) paras. 2d-2e.

38 In addition to these two additional major areas, there are other numerous statutory authorizations that

allow the use of troops in a law enforcement capacity to quell various civil disturbances. See supra,

Chapter 2, Military Support to Civilian Law Enforcement, which discusses the Posse Comitatus Act and its

exceptions.
CIVIL DISTURBANCES

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1. Protection of Federal Property

The United States has the right to protect federal property or functions

through the use of federal armed forces. The use of federal armed forces in

this manner is warranted only where the need for protection exists, and the

local civil authorities cannot or will not give adequate protection.39 A

military installation commander, exercising “inherent authority,”40 may take

such actions as are reasonably necessary and lawful to protect military

installations. This could include ejection from the installation or denial of

access to an installation of those who threaten or are involved in civil

disturbances.41

2. Emergency

Responsible DOD officials and commanders may approve the use of

military forces in a law enforcement capacity to support civilian authorities,

during sudden and unexpected civil disturbances beyond the control of local

civilian authorities when circumstances preclude seeking prior approval

from the President. The use of military forces must be necessary to prevent

the loss of life or wanton destruction of property, or to restore governmental

functioning and public order.42 This emergency provision should be used

with great caution. The authority granting the use of federal forces in this

 

39 DODD 3025.12, supra note 6, at 4.2.2.2; AR 500-50, supra note 6, at 2-8; DODD 5525.5, supra note 9,

at para. E4.1.2.3.2.

40 The courts have approved the theory of a commander’s inherent authority, that is, authority not found in

statute or regulation. See, Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 893

(1961)(commanders have “historically unquestioned power” to exclude persons from their installations);

Greer v. Spock, 424 U.S. 828, 840 (1976)(“There is nothing in the Constitution that disables a military

commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale

of troops on the base under his command.”).

41 18 U.S.C.A. § 1382 (2000) states “Whoever, within the jurisdiction of the United States, goes upon any

military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose

prohibited by law or lawful regulation; or Whoever reenters or is found within any such reservation, post,

fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by

any officer or person in command or charge thereof - Shall be fined under this title or imprisoned not more

than six months, or both.” From this federal trespass statute, courts have inferred military power of

apprehension of civilians trespassing on federal installations. See United States v. Banks, 539 F.2d 14 (9th

Cir. 1976), cert. denied, 429 U.S. 1024 (1976). For a complete analysis of law enforcement authority over

civilians, see Major Matthew Gilligan, Opening the Gate?: An Analysis of Military Law Enforcement

Authority over Civilian Lawbreakers on and off the Federal Installation, 161 Mil. L. Rev. 1 (1999).

42 DODD 3025.12, supra note 6, at para. 4.2.2.1; DODD 5525.5, supra note 9, at para. E4.1.2.3.1.
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manner clearly states that it would be difficult to justify such action, without

prior approval, while communications facilities are operating.43

Authority in these circumstances is granted to officers of the “active

Army in command of troops” allowing them to take prompt and vigorous

action designed to preserve law and order and to protect life and property

until they receive instruction from a higher headquarters.44 Verbal requests

from local officials to a Commander should be reduced to writing as soon as

possible. An officer exercising emergency authority must report the facts

surrounding the request, the Command’s response, and any other relevant

information through the chain of command to the Director of Military

Support (DOMS) by the most expeditious means of communication

available. If the commander has not received a written request at the time he

forwards the request to DOMS, the written request should be forwarded to

DOMS as soon as it is available.45

D. RESPONSIBILITIES AND RELATIONSHIPS OF PARTIES INVOLVED IN

CIVIL DISTURBANCE OPERATIONS

1. Attorney General

The Department of Justice is the primary federal agency for

coordinating the Federal Government response to restore law and order.46

As the head of the Department of Justice, the Attorney General is the chief

civilian official responsible for the Federal Government’s activities in civil

disturbances. The Attorney General provides early threat assessments and

warnings to the Department of Defense to support civil disturbance

planning. States request the assistance of federal forces through the

Attorney General, who also advises the President on the use of federal

military forces to restore law and order. The Attorney General coordinates

the activities of federal law enforcement agencies with those of the local and

state agencies in an area faced with a civil disturbance. Finally, the Attorney

General appoints the Senior Civilian Representatives of the Attorney

 

43 DODD 3025.12, supra note 6, at para. 4.2.2.1.

44 AR 500-50, supra note 6, at para. 2-4a.

45 DODD 5525.5, supra note 9, at para. 4.7.1.

46 EO 12,656, supra note 12, at § 1101(7) and (8).
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General (SCRAG), who will be located in each city where federal forces are

committed.47

2. Senior Civilian Representative of the Attorney General

Appointed by the Attorney General, the SCRAG is the Attorney

General’s on-scene agent. The SCRAG is responsible for the coordination

of effort of all federal agencies involved in the civil disturbance operation

with the efforts of state and local agencies engaged in restoring law and

order.48 The SCRAG has the authority to assign missions to federal military

forces and the authority to resolve disputes arising between local law

enforcement agencies and the military task force commander concerning the

types of missions military forces may undertake.

3. Secretary of the Army

The Secretary of the Army is designated the executive agent and acts

as the principal point of contact between the Department of Defense and the

Department of Justice for MACDIS.49 The Secretary of the Army is

responsible for all training, planning, and operations relating to the

employment of any military resources in the event of a civil disturbance.50

4. Director of Military Support

The Director of Military Support (DOMS) is the action agent within

the Department of the Army with responsibility for planning, coordinating

and directing the commitment of all designated federal military resources

during civil disturbance operations. DOMS is responsible for designating

the supported CINC for a civil disturbance operation. DOMS is the point of

contact within the Department of Defense for civil disturbance matters.51

 

47 U.S. DEP’T OF ARMY, FIELD MANUAL 100-19, DOMESTIC SUPPORT OPERATIONS, 7-12 (1 July

1993)[hereinafter FM 100-19].

48 Id.

49 DODD 3025.12, supra note 6, at paras. 1.2, 5.9.

50 See Id. at para. 5 for a complete list of the MACDIS duties of the Secretary of the Army. See also, 32

CFR § 215.6 (2000).

51 DODD 3025.12, supra note 6, at para. 5.6.4; see also, AR 500-50, supra note 6, at para. 3-1b which

provides a complete list of the responsibilities of DOMS.
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5. Commanders in Chief, U.S. Joint Forces Command, U.S. Southern

Command, and U.S. Pacific Command

The Commanders in Chief (CINCs), U.S. Joint Forces Command,

U.S. Southern Command, and U.S. Pacific Command have responsibility for

planning and executing civil disturbance plans within their areas of

operation. In total, these areas cover the 48 contiguous states, Alaska,

Hawaii, Puerto Rice, U.S. Virgin Islands, Guam, American Samoa and all

United States territories, possessions, and territorial waters.52 The CINC, in

coordination with the SCRAG, will determine the organization and forces

required to accomplish the civil disturbance mission.

CINC, U.S. Joint Forces Command, is responsible for civil

disturbance operations in the 48 contiguous states and the District of

Columbia. CINC, U.S. Southern Command, is responsible for civil

disturbance operations in Puerto Rico and the U.S. Virgin Islands. CINC,

U.S. Pacific Command, is responsible for civil disturbance operations in

Alaska, Hawaii, and U.S. possessions and territories in the Pacific.53

6. Commander, U.S. Army Forces Command

U.S. Army Forces Command (FORSCOM) is currently the lead

operational authority for civil disturbance response within the 48 contiguous

states. The Commander, FORSCOM nominates a Commander, Civil

Disturbance Task Force, designates civil disturbance units, ensures

preparedness, and deploys forces to the objective area. The responsible

CINC designates the Commander.

7. Commander, Civil Disturbance Task Force

The Commander of the Civil Disturbance Task Force is the

Commander for all federal forces, including National Guard forces in Title

 

52 DODD 3025.12, supra note 6, at para. 4.3.3.

53 Id. DODD 3025.12 was promulgated in 1994 and assigned responsibilities based on the geographical

responsibilities of the Combatant Commands applicable at the time of promulgation. Pursuant to

CHAIRMAN, JOINT CHIEFS OF STAFF, UNIFIED COMMAND PLAN 1999 (7 Oct. 1999)(classified

Secret)[hereinafter UCP 99], the Commander, Joint Chiefs of Staff (CJCS), reassigned geographical

responsibilities for the Commanders of the Combatant Commands. This change is not reflected in DODD

3025.12, which has not been updated. In UCP 99, the CJCS also renamed Atlantic Command as Joint

Forces Command. DODD 3025.12 refers to Atlantic Command. References in this handbook reflect both

the geographical changes and the name change made by the CJCS.
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63

10 status, in a civil disturbance area of operations. He is the DOD

representative in the civil disturbance area and performs civil disturbance

missions assigned by the SCRAG.

8. National Guard

National Guard units will often be the first military units to respond to

a civil disturbance under state activation procedures, and will initially deploy

in a State Active Duty (SAD) status. In this capacity, they are not subject to

the prohibitions of the PCA,54 and can freely support state law enforcement

missions. The National Guard is employed only after all state and local

resources have been fully utilized, or when the situation is beyond the

 

54 See supra, Chapter 2, Military Support to Civilian Law Enforcement, for a complete discussion on the

Posse Comitatus Act.

Figure 4-1, Relationships of Parties Involved in Civil

Disturbance Operations
DOPLAW HANDBOOK

64

capabilities of state and local civil authorities.55 NG forces remain under the

command of NG officers, and missions are conducted through the NG chain

of command, after coordination with civil authorities. In extreme

circumstances, National Guard units may also be federalized under Title 10

pursuant to a Presidential order.56 Once federalized, the NG conducts its

mission in accordance with Garden Plot, as discussed in the next section.

Only NG personnel who have received civil disturbance training will

be employed in civil disturbance operations. NG personnel who have not

received this training will be used only in a supporting role.57 NG units

assigned an “on the street” civil disturbance mission will initially conduct

training in accordance with FM 19-15, Civil Disturbances.

58 Subsequent

annual refresher training will be conducted in accordance with guidance

issued by the respective state Adjutant General and National Guard

commander.59 Training will be as realistic as possible and will cover topics

such as: use of force; riot batons; apprehension and detention; media

relations; and standards of conduct. Personnel authorized to carry firearms

must receive qualification training and testing on the firearm to be carried

before being issued the firearm.60 In addition, commanders must ensure that

personnel are adequately trained on assigned specialized equipment such as

shotguns, riot control dispensers/agents, and other civil disturbance unique

equipment.61 A sample NG Civil Disturbance Readiness Checklist is

included at Appendix 4-8.

Use of force by NG personnel while in SAD status is governed by

state law.62 NG personnel using federal property or equipment during a civil

disturbance operation while in SAD status will comply with the following

 

55 U.S. DEP’T OF ARMY, NATIONAL GUARD BUREAU REG. 500-1, MILITARY SUPPORT TO CIVIL

AUTHORITIES, para. 4-1 (1 February 1996)[hereinafter NGR 500-1].

56 See supra, Chapter 10, Reserve Components - Special Issues, for a complete discussion of National

Guard status.

57 NGR 500-1, supra note 55, at para. 4-4.

58 U.S. DEP’T OF ARMY, FIELD MANUAL 19-15, CIVIL DISTURBANCES, (25 Nov. 1985) [hereinafter FM 19-

15].

59 NGR 500-1, supra note 55, at para. 4-5.

60 Id. at para. 4-4.

61 Id. at para. 4-5.

62 Id. at para. 4-6.
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65

guidelines, unless state law is more restrictive, in which case state law will

control:

• The use of force must be restricted to the minimum degree consistent

with mission accomplishment;

• The use of deadly force can be justified only by extreme necessity. It is

authorized only where all three of the following circumstances are

present:

! lesser means have been exhausted or are not available;

! the risk of death or serious bodily harm to innocent persons is not

significantly increased by its use;

! the purpose of its use is one or more of the following:

♦ self-defense to avoid death or serious bodily harm, including the

defense of other persons;

♦ prevention of a crime that involves a substantial risk of death or

serious bodily harm (for example, setting fire to an inhabited

dwelling or sniping);

♦ prevention of the destruction of property vital to public health or

safety;

♦ detention or prevention of the escape of a person who, during the

detention or on the act of escaping, presents a clear threat of loss of

life or serious bodily harm to another person.63

Apprehension of civilians will be left to civilian law enforcement

authorities as much as possible. If apprehension of a civilian person by NG

personnel is necessary, NG personnel will use guidelines issued by the state

Attorney General in accordance with state law.64 A sample After Action

Review Format for NG Civil Disturbance missions is included at Appendix

4-6.

E. THE DEPARTMENT OF DEFENSE CIVIL DISTURBANCE PLAN (GARDEN

PLOT)

The Department of Defense Civil Disturbance Plan, named

“GARDEN PLOT,” provides guidance and direction for planning,

 

63 Id.

64 Id. at para. 4-6(d).
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66

coordinating, and executing military operations during domestic civil

disturbances.

1. GARDEN PLOT Mission

Broadly stated, the GARDEN PLOT mission is to conduct civil

disturbance operations throughout the United States and its territories and

possessions to assist civil authorities in restoring law and order.65 This

mission statement, while not duplicating the language in the Insurrection Act

allowing for the use of federal forces to “suppress” insurrection, provides

wide latitude to a commander to use federal forces to assist civil law

enforcement in “restoring” law and order.

The restoration of law and order must be distinguished from the

preservation of law and order.66 The GARDEN PLOT mission statement

does not allow the civil disturbance task force commander to undertake

preservation missions.67 It is generally agreed that missions to restore law

and order include dispersing unauthorized assemblages, patrolling disturbed

areas, maintaining essential transportation and communications systems,

setting up roadblocks, and cordoning off areas.68 Care should be taken

before a military commander accepts missions that are routine maintenance

of civil order.

2. GARDEN PLOT Plan

The GARDEN PLOT plan provides the basis for all preparation,

deployment, employment, and redeployment of designated forces, including

National Guard forces called to active federal service, for use in domestic

civil disturbance operations as directed by the President. The concept of a

civil disturbance operation is three phased: Phase I, Deployment; Phase II,

Employment; and Phase III, Redeployment. Prior to deployment, military

 

65 Garden Plot, supra note 15, at Basic Plan para. 3.

66 The preservation of law and order is the responsibility of state and local governments and law

enforcement authorities. DODD 3025.12, supra note 6, at para. 4.1.3; FM 19-15, supra note 58, at 1-3.

67 See DODD 3025.12, supra note 6, at para. 4.2.7 which states, “The DoD Components shall not take

charge of any function of civil government unless absolutely necessary under conditions of extreme

emergency. Any commander who is directed, or undertakes, to control such functions shall strictly limit

military actions to the emergency needs, and shall facilitate the reestablishment of civil responsibility at the

earliest time possible.”

68 FM 19-15, supra note 58, at 1-3.
CIVIL DISTURBANCES

67

forces maintain five preparedness postures, called Civil Disturbance

Conditions (CIDCONS) in order to alert and react to potential civil

disturbance operations. Changes in the CIDCON level are directed by the

DOMS.69

CIDCON 5 is a state of normal preparedness that is sustainable

indefinitely. Forces may be designated for a civil disturbance operation.

CIDCON 4 is declared once a civil disturbance has developed. The

Civil Disturbance Task Force Commander may establish reconnaissance and

intelligence requirements and may initiate detailed planning. Upon attaining

CIDCON 4, designated units are prepared to cross the Start Point at home

station in 12 hours.

CIDCON 3 represents an increase in preparedness. Military forces

may be pre-positioned. The President or SECARMY issues orders to be

prepared to deploy within six hours.

CIDCON 2 reflects that deployment of federal forces is probable. All

designated units will be moved to airfields and will have completed

movement planning. CIDCON 2 is fully attained when units are prepared to

deploy in one hour.

CIDCON 1 is directed one hour prior to time for deployment (Hhour). CIDCON 1 is attained simultaneously with H-hour, when the first

units have deployed.

Once military forces are within the civil disturbance area of

operations, they fall under the operational control of the Task Force

Commander. No active duty military forces may fall under civilian

command and control, nor may active military forces fall under the

command and control of National Guard forces in non-federal status.

 

69 A Commander cannot unilaterally increase the CIDCON of forces under his operational control above

CIDCON 4. A commander cannot decrease the CIDCON posture without approval from DOMS. See

Garden Plot, supra note 15, at (Annex A)(Appendix 1) para. 5.
DOPLAW HANDBOOK

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CIVIL DISTURBANCES

69

The Joint Task Force Commander receives missions from the SCRAG and is

responsible for accomplishing the Task Force mission.70

Throughout the employment of military forces, the Commander will

maintain liaison with the SCRAG, state law enforcement representatives,

and municipal authorities. This liaison will be maintained until termination

of the civil disturbance mission. The Task Force Commander will accept

missions from the SCRAG, and, if reasonably possible, within the

framework of his orders, comply with requests from civil authorities.71

The SCRAG designates a single state or federal law enforcement

coordinating officer, through whom requests are typically passed. Validated

requests are transmitted to the Task Force Commander for staffing.

Approved missions are assigned through the military chain of command to

the appropriate unit for execution. The supported CINC or SCRAG resolves

discrepancies when the Task Force Commander is unable to fulfill requests

from the civil authorities.

Except in a direct support relationship approved and ordered through

the military chain of command, units should not accept taskings directly

from law enforcement or civilian officials.72 Even though the Task Force

Commander may direct subordinate elements to assist designated civil

authorities or officials, military personnel will not be placed under the

command of civilians. This requirement does not preclude the establishment

of joint patrols or jointly manned operations.73

On order of the SECARMY, commitment of federal forces will be

terminated at a specified date and time. Forces redeploy to home station

where they return to the control of their respective commands.

 

70 It is important to remember that civilian authorities retain primary authority over the employment of

military forces. See notes 1-4, supra, and accompanying text. See DODD 3025.12, supra note 6, at para.

4.1.5. See also 9 Op. Att’y Gen. 517 (1860)(“Under [the Insurrection Act] the President may employ the

militia and the land and navel forces for the purpose of causing the laws to be executed; but when a military

force is called into the field for that purpose, its operations must be purely defensive, and the military

power on such occasion must be kept in strict subordination to the civil authority.”).

71 AR 500-50, supra note 6, at para. 3-3b.

72 FM 100-19, supra note 47, at 7-13.

73 AR 500-50, supra note 6, at para. 3-3b.
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3. GARDEN PLOT Rules of Engagement74

The CJCS SROE do not apply to civil disturbance missions. Rules of

Engagement (often called “Rules for the Use of Force” in domestic

operations) for GARDEN PLOT operations are contained in Appendix 1 to

Annex C (Concept of Operations) to GARDEN PLOT.75 These rules are

reprinted in their entirety at Appendix 4-4 of this publication. Special

instructions to guide the conduct of military forces involved in civil

disturbance operations are issued in Appendix 8 to Annex C to GARDEN

PLOT. Included in these special instructions, at Tab A, is a pocket card that

should be reprinted and issued to all participating forces. A copy of the

pocket card is at Appendix 4-5 of this publication. General principles

guiding the use of force are discussed below.

a. Minimum Necessary Force

In carrying out the Task Force mission, the Commander must ensure

that all operations adhere to the minimum necessary force principle. This

principle should guide the Task Force in all actions from selection of

appropriate operational techniques to the choice of options for arming the

troops.76 For example, riot control agents, crowd control formation and riot

batons should not be used if saturation of an area with military forces will

accomplish the mission.77

b. Use of Deadly Force

Commanders are authorized to use non-deadly force to control

disturbances, to prevent crimes, and to apprehend or detain persons who

have committed crimes. The level of force used must be that which is

reasonably necessary under the circumstances.78

 

74 Although Garden Plot stills uses the phrase “Rules of Engagement,” it is common to refer to such rules in

a domestic setting as “Rules for the Use of Force.”

75 The rules for the use of force in Garden Plot were modified by message. Message, 161639Z Jul 96,

Director of Military Support, subject: Changes to DOD Civil Disturbance Plan—“Garden Plot,” (16 July

1996.).

76 Garden Plot, supra note 15, at C-1-6.

77 FM 19-15, supra note 58, at 7-1.

78 Garden Plot, supra note 15, at C-1-6; FM 19-15, supra note 58, at 7-4.
CIVIL DISTURBANCES

71

The use of deadly force is justified only by extreme necessity.

Accordingly, its use is not authorized for the purpose of preventing activities

that do not pose a significant risk of death or serious bodily harm (e.g.,

curfew violations or looting). If a mission cannot be accomplished without

the use of deadly force, and deadly force is not permitted under the

guidelines authorizing its use, accomplishment of the mission must be

delayed until sufficient non-deadly force can be brought to bear.

The use of deadly force is authorized only where all three of the

following circumstances are present:

• Lesser means have been exhausted or are unavailable;

• The risk of death or serious bodily harm to innocent persons is not

significantly increased by use; and

• The purpose of its use is one or more of the following:

! self- defense against a hostile person or force to avoid imminent death

or serious bodily injury posed by the hostile person;

! prevention of a crime which involves an imminent danger of death or

serious bodily harm (for example, setting fire to an inhabited dwelling

or sniping), including the defense of other persons;

! prevention of the destruction of public utilities or similar critical

infrastructure vital to public health or safety, damage to which would

imperil life;79 or

! detention or prevention of the escape of persons who have committed

or attempted to commit one of the serious offenses referred to in the

sub-bullets above, but only if escape of the persons would pose an

imminent danger of death or serious physical injury to military or law

enforcement personnel or to any other person.

Military personnel have the right under law to use reasonably

necessary force to defend themselves against violent and dangerous personal

attack. The limitations above are not intended to infringe this right, but to

prevent the unauthorized or indiscriminate firing of weapons and the

indiscriminate use of other types of deadly force.

GARDEN PLOT requires three policies regarding the use of deadly

force be observed. First, "[w]hen firing ammunition, the marksman should,

 

79 Troops assigned to security missions must know if a particular facility or activity is so vital to the health

and safety of the public that the use of deadly force would be justified to protect it.
DOPLAW HANDBOOK

72

if possible, aim to wound rather than to kill." Judge advocates should be

aware that the concept of "aiming to wound" is controversial, requires

extensive training, and is considered by the FBI to be an ineffective law

enforcement technique. Judge advocates should emphasize the inherent

right of self-defense when addressing this matter. Second, GARDEN PLOT

requires that when possible, "a clear warning to the individual or group that

use of such force is contemplated or imminent" should precede the use of

deadly force. Third, GARDEN PLOT prohibits warning shots.

Soldiers must be cautioned that if they are issued live ammunition,

they are authorized to load and fire their weapon only on order of an officer.

If no officer is present, loading and firing should be in accordance with the

following guidance: “you will load or fire your weapon only when required

to protect your own life or the lives of others; to protect specific property

designated as vital to public health or safety damage to which would imperil

life; or to prevent the escape of persons endangering life or vital facilities;

you are not authorized to use firearms to prevent offenses which are not

likely to cause death or serious bodily harm nor endanger public health or

safety.”80

Even when deadly force is authorized, the use of the full firepower of

a unit to produce extensive casualties is only authorized as a last resort when

the failure to use such firepower would result in the imminent overthrow of

the government, continued mass casualties, or similar grievous conditions.81

The immediate nature of civil disturbance operations may not allow

for extensive training in the hours prior to deployment. The rules for the use

of force contained in GARDEN PLOT are unclassified and can be widely

disseminated well in advance of a unit being directed to conduct a civil

disturbance operation.

c. Arming Orders

Arming orders can be used by the Task Force Commander to insure

unity of the Task Force’s outward force posture and to prevent unintended

escalations in the show and use of force. The level of force shown by troops

 

80 All information for the use of deadly force comes directly from Garden Plot. These rules are restated in

FM 19-15, supra note 58, at Chapter 7.

81 Garden Plot, supra note 15, at C-8-6.
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73

during civil disturbance operations should be appropriate to the current

threat and the principle of minimum force. Each of the options below

represents escalation in the level of force shown during civil disturbances. If

necessary, the arming orders can be modified to include additional weapons

such as batons and pistols.82 While arming orders may be used to effectively

prevent unintended escalation, JAs should always stress the right to selfdefense when briefing these orders.

Rifle Bayonet Ammunition

Magazine/Clip

Chamber

AO–1 At Sling In scabbard In pouch on belt Empty

AO–2 At Port In scabbard In pouch on belt Empty

AO–3 At Port Fixed In pouch on belt Empty

AO-4 At Port Fixed In weapon Empty

AO-5 At port Fixed In weapon Round chambered

Figure 4-3, Arming Orders

d. Custody and Detention

All apprehensions should be made by the civil police force unless they

are not available or require assistance. Military forces have the authority to

detain rioters, looters or other civilians committing criminal offenses.83

Civilians taken into custody should be transferred to civilian law

enforcement authorities as soon as possible.

All members of the force must remember that state and federal

criminal law and procedure govern apprehension. Apprehension is justified

only on the basis of probable cause to believe that an offense has been

committed and that the person to be apprehended committed the offense.

Soldiers should not question detainees beyond basic personal information

such as name and address. If formal questioning of an offender is necessary,

civilian police should conduct the interrogation. If civilian police are not

available, CID agents or military police may conduct interrogations only if

the interrogation is essential to the civil disturbance mission. Actions taken

 

82 See Arming Orders from deployment to LA Riots, reprinted in International Law Note, Civil Disturbance

Rules of Engagement: Joint Task Force Los Angeles, ARMY LAW., Sept. 1992, at 32.

83 Garden Plot, supra note 15, at C-1-12; AR 500-50, supra note 6, at paras. 1-3d.
DOPLAW HANDBOOK

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by soldiers that do not conform to criminal law constitutional standards

could jeopardize future prosecution.84

e. Search and Seizure

Garden Plot anticipates that military forces will generally not be

involved in searches unless there is "an immediate danger of violence,

destruction of evidence, or escape of violent persons unless the search is

conducted without delay." In all other cases, local authorities should

conduct searches. When required to perform searches, federal armed forces

may conduct warrantless searches under the same constitutional parameters

imposed upon law enforcement officials. These include the following types

of searches.

(1) Stop and Frisk

If there is a reasonable suspicion based upon articulable facts that a

person has committed, is committing, or is about to commit a crime, that

person may be temporarily stopped and questioned about his activities. The

stop must be limited in duration to that which is reasonably necessary to

investigate the suspicion. If there is a reasonable suspicion based on

articulable facts that a person may be armed and dangerous, members of the

armed force may conduct a "frisk" (an external "patdown" of the clothing)

for weapons. Any weapons found during a frisk may be removed from the

inner clothing and seized.85

(2) Incident to Apprehension

A person lawfully detained may be searched for weapons or

destructible evidence. A search for weapons or destructible evidence may

also be conducted in the area where the detained person could reach with a

sudden movement to obtain a weapon or destroy evidence.86

 

84 See FM 19-15, supra note 58, at Chapter 12 for basic procedural guidelines for detention of civilians by

military forces.

85 Garden Plot, supra note 15, at C-8-9; FM 19-15, supra note 58, at 12-3.

86 FM 19-15, supra note 58, at 12-3.
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75

(3) Exigent circumstances

Federal forces assisting law enforcement may make a search without a

warrant when they have reason to believe (probable cause) that weapons,

objects related to criminal activity, or persons believed to have committed an

offense, are in the place to be searched; and they have reason to believe that

the delay necessary to obtain a search warrant would result in removal of the

weapons or destruction of the objects related to criminal activity.87

(4) Emergency

Armed forces in a civil disturbance operation may make an immediate

entry into a building when there is reason to believe that entry is necessary

to prevent injury to persons, serious damage to property, or to render aid to

someone who is in danger.88

(5) Hot pursuit

Military forces pursuing a person who they have reason to believe has

just committed a serious crime, may enter a vehicle or building believed to

be entered by the suspect and search the building or vehicle for the person or

any weapons that might be used to further his escape.89

(6) Plain View

During the course of otherwise lawful activity, military forces may

seize any unlawful weapons or objects related to criminal activity which

they observe in plain view.90 When conducting warrantless searches that

require a probable cause determination, military forces can obtain advice

from a judge advocate; however, the probable cause determination must be

made personally by the individual desiring to conduct the search.

If a search warrant is required, local civil authorities should obtain

judicially issued search warrants. If local civilian authorities are not

 

87 Id.

88 Id.

89 Id.

90 Id.
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available, judge advocates need to be prepared to provide advice on probable

cause to military authorities before they approach a local judge or magistrate

for a search warrant.

When feasible, all searches conducted by military personnel will be

conducted by personnel of the same sex.91 A hand receipt or some similar

document should be prepared when items of personal property are seized

from an individual.92

f. Confinement Facilities

The military Task Force should not operate a detention facility.93 Any

person apprehended should be turned over to the police for detention.

Military correctional facilities cannot be used to detain civilians. If available

civilian detention facilities cannot accommodate the number of prisoners

who are awaiting arraignment,94 the Task Force commander must seek the

approval of the Army Chief of Staff through the supported CINC to set up a

temporary detention facility.95

Should the Task Force be required to operate a detention facility, the

detention facility standards and operations should conform, to the maximum

extent possible, to current Army confinement facility operations.96 The

establishment and operation of military detention facilities is a temporary

expedient and is authorized only until such time as the custody of detained

persons can be transferred to civil authorities.97

 

91 Garden Plot, supra note 15, at C-8-10 encourages same sex searches. FM 19-15, supra note 58, at 12-4

requires same sex searches and recommends any “qualified” person, such as a medical professional, be

called upon to assist with the search when no military member of the same sex is available to conduct the

search.

92 U.S. DEP’T OF ARMY, FIELD MANUAL 19-10, MILITARY POLICE LAW AND ORDER OPERATIONS, Ch. 9 (30

Sept. 1987)[hereinafter FM 19-10] contains extensive information on conducting searches.

93 FM 19-15, supra note 58, at 12-13; Garden Plot, supra note 15, at C-1-12; See generally, DODD

3025.12, supra note 6, at para. 4.2.7 (stating “DoD Components shall not take charge of any function of

civil government unless absolutely necessary under conditions of extreme emergency.”).

94 The Task Force Commander is responsible for verifying the fact that available Federal, State and Local

confinement facilities can no longer accommodate the number of persons apprehended. Garden Plot, supra

note 15, at E-5.

95 Id. at C-1-12, E-5; AR 500-50, supra note 6, at para. 1-3; FM 19-15, supra note 58, at 12-13.

96 E.g., U.S. DEP’T OF ARMY, REG 190-47, THE ARMY CORRECTIONS SYSTEM (15 Sept. 1996). See also,

FM 19-10, supra note 92, at 12-14.

97 Garden Plot, supra note 15, at E-5.
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g. Riot Control Agents

The use of riot control agents is allowed under GARDEN PLOT and

as a matter of U.S. policy.98 However, initial approval authority for its use

may be retained at a level higher than the Task Force Commander and may

require a specific request as a supplemental ROE.99 Aerial riot control

dispensers should not be used where ground dispensers are available and can

accomplish the desired result.100

4. Other Legal Considerations

a. Billeting of Troops

Selection of a location to assemble and billet troops can have

significant legal implications. When possible, assembly and quartering areas

should be on military installations or federal property. If these locations are

not practical, state and other local government property should be sought for

use. Locating assembly areas on public property can reduce property

damage claims, contract costs, and adverse perceptions about the military

operation.

b. Intelligence

See Chapter 9, Intelligence Law and Policy Considerations During

Domestic Support Operations.

c. Claims

Negligent or wrongful acts or omissions of military forces assisting

law enforcement during civil disturbances may be covered under the Federal

Tort Claims Act (FTCA).101 In order for claims under the FTCA to be

 

98 Id. at C-1-11; Exec. Order No. 11,850, 40 C.F.R. 16,187 (Apr. 8, 1975); CHAIRMAN, JOINT CHIEFS OF

STAFF INSTR. 3110.07A, Nuclear, Biological, Chemical Defense; Riot Control Agents; and Herbicides (15

Dec. 1998) (classified Secret); FM 19-15, supra note 58, at Chapter 9.

99 See U.S. COMMANDER IN CHIEF ATLANTIC COMMAND FUNCTIONAL PLAN 2502-97, CIVIL DISTURBANCE

PLAN, Appendix 4 to Annex E (Legal) para. 2m (23 July 1998). Pursuant to UCP 99, supra note 53, the

name of Atlantic Command was changed to Joint Forces Command.

100 Garden Plot, supra note 15, at C-1-11.

101 28 U.S.C.A. §§ 1346, 2671-2680 (1994 ).
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78

compensable, damage or injury must be caused by acts or omissions of

employees of the United States. National Guard troops in Title 10 or Title

32 status, as well as active duty military members are considered United

States employees for the purposes of the FTCA. National Guard forces

activated pursuant to a state activation statue are not considered employees

of the United States, and potential claims arising out of the activities of these

forces should be directed to state authorities.102

The development of disaster and civil disturbance claims plans is the

responsibility of the head of the various Area Claims Offices (ACOs) across

the United States.103 The ACO in whose geographical area a claims incident

occurs is primarily responsible for investigating and processing the claim.104

With the approval of Commander, United States Army Claims Service, the

responsible ACO can appoint a special Claims Processing Office to handle

claims arising from civil disturbance operations.105 A complete list of ACOs

and their geographical responsibilities is reprinted in Appendix 4-7.

Even though primary claims investigating responsibilities fall to the

ACO, JAs deployed as part of a civil disturbance task force can assist in the

investigation by insuring that potential claims are documented and available

information concerning the claims collected. Judge advocates assisting the

Task Force can also assist by collecting information concerning the status of

National Guard troops operating within the area.106

d. Medical Support

The primary mission of medical support personnel deployed with a

civil disturbance task force is to treat military personnel requiring medical

care. Civilian personnel should be seen by the civilian health care system.

Military treatment facilities may be used to treat civilians only in cases of

emergency when the loss of life, limb or eyesight is a possibility.107

 

102 Garden Plot, supra note 15, at E-6.

103 U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11k (31 Dec. 1997).

104 Id. at para. 2-2.

105 Id. at para. 1-17(c).

106 Extensive information on claims arising during civil disturbances can be found in U.S. Army Claims

Service, OTJAG, Disaster Claims Handbook (1998) available at http://www.jagcnet.army.mil/Claims.

107 Garden Plot, supra note 15, at E-1-1.
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79

Civilians admitted to military treatment facilities should be transferred to a

civilian hospital as soon as medically feasible.108

Military personnel should be admitted to civilian hospitals only in an

emergency and should be transferred to a military facility as soon as

medically possible.109 In some locations military and civilian hospitals have

patient sharing agreements which would allow civilians to use the military

facility.

e. Civil Law, Ordinances, Restrictions, and Interference with

Federal Forces

Federal law makes it a crime to interfere with law enforcement

officers engaged in controlling civil disorders.110 Included in the definition

of “law enforcement officers” are members of the National Guard, in both

state and federal status, and members of the armed forces.111

Close coordination with local governmental authorities can assist the

Civil Disturbance Task Force Commander in accomplishing the mission.

Federal forces are unable to impose restrictions on the civil population.

Federal forces may not impose curfews, travel restrictions, or sales

restrictions. Local governments may be able to implement such restrictions.

The Task Force Commander may make recommendations to local

governments concerning the appropriateness of various restrictions.112

 

108 Id.

109 Id.

110 18 U.S.C.A. § 231-233 (2000).

111 Id. § 232 which states, “The term ''law enforcement officer'' means any officer or employee of the

United States, any State, any political subdivision of a State, or the District of Columbia, while engaged in

the enforcement or prosecution of any of the criminal laws of the United States, a State, any political

subdivision of a State, or the District of Columbia; and such term shall specifically include members of the

National Guard (as defined in section 101 of title 10), members of the organized militia of any State, or

territory of the United States, the Commonwealth of Puerto Rico, or the District of Columbia not included

within the National Guard (as defined in section 101 of title 10), and members of the Armed Forces of the

United States, while engaged in suppressing acts of violence or restoring law and order during a civil

disorder.

112 FM 19-15, supra note 58, at 6-11, 6-12.
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f. Loan and Lease of Military Equipment

Approval authorities for the loan and lease of U.S. Army materiel to

federal, state, and local law enforcement authorities and the Army National

Guard is based upon the type of equipment to be provided. The loan or lease

of personnel, arms, ammunition, tactical vehicles, vessels and aircraft, riot

control agents, and concertina wire for expected civil disturbances must be

approved by the Secretary of Defense (SECDEF) after review by the

Assistant Secretary of the Army (Installations, Logistics, and

Environment)(ASA(I, L&E)). The loan or lease of fire fighting resources,

protective equipment, body armor, clothing, searchlights and use of DOD

facilities can be approved by garrison, installation, or task force

commanders.113 All loans or leases of U.S. Army material will be for a

period of 15 days with the possibility of an additional 15-day extension.114

Commanders are authorized to approve the loan and lease of equipment as

required to save human life, prevent human suffering, or reduce property

damage or destruction.

There is no specific statutory authority to loan or lease equipment for

use in civil disturbance situations. Loans to federal agencies are completed

pursuant to the Economy Act and require a loan agreement but no surety

bond.115 Equipment for non-federal law enforcement agencies must be

leased under the leasing statute, which requires both a lease agreement and a

surety bond.116 The leasing statue also includes the requirement for the

payment of a lease fee, which may be waived by the ASA(I, L&E). When

Commanders approve emergency loans or leases, follow-up action will be

taken within 5 days to formalize the action by completing a loan or lease

agreement.117 See Appendix 2-2, Loan and Lease of DOD Equipment.

 

113 U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF ARMY MATERIEL, para. 2-6b (1 Sept.

1996)(hereinafter AR 700-131); AR 500-50, supra note 6, at para. 4-2a. See also NGR 500-1, supra note

55, at Ch. 3-1, which governs the loan or lease of National Guard property.

114 AR 700-131, supra note 113, at Table 2-1.

115 31 U.S.C.A. 1535 (1983).

116 10 U.S.C.A. 2667 (1998); see also AR 700-131, supra note 113, at 2-7, 2-8 (discussing loan/lease

agreements and surety bonds).

117 AR 700-131, supra note 113, at para. 2-7a.
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CHAPTER 5.

DISASTER ASSISTANCE

KEY REFERENCES:

• 42 U.S.C. § 5121, et seq., as amended - The Stafford Act

• 44 CFR Part 206 - Federal Emergency Management Agency.

• Federal Response Plan (FRP), 9230.1 PL

• DODD 3025.1 - Military Support to Civil Authorities

• DOD 3025.1-M - Manual for Civil Authorities

• DODD 3025.15 - Military Assistance to Civil Authorities

• DOD 4515.13-R - Air Transportation Eligibility

• DOD 7000.14-R - Financial Management Regulation

• JP 3-07.7 - Joint Tactics, Techniques, and Procedures for Domestic

Support Operations (Draft)

• AR 27-20 - Claims

• AR 95-1 - Flight Regulations

• AR 165-1 - Chaplain Activities in the U.S. Army

• AR 500-60 - Disaster Relief

• AR 700-31 - Loan and Lease of Army Materiel

• AF Policy Directive 24-1 - Personnel Movement

• AFI 10-802 - Military Support to Civil Authorities

• OPNAV Instruction 3440.16c - Navy Civil Management Program

• OPNAV Instruction 4630.25c - Air Transportation Eligibility

• FM 100-19 - Domestic Support Operations

A. INTRODUCTION

Major disaster means any natural catastrophe (including any

hurricane, tornado, storm, high water, winddriven water, tidal

wave, tsunami, earthquake, volcanic eruption, landslide,

mudslide, snowstorm, or drought), or regardless of cause, any

fire, flood, or explosion, if any part of the United States, which

in the determination of the President causes damage of
DOPLAW HANDBOOK

82

sufficient severity and magnitude to warrant major disaster

assistance. . . .1

Throughout the history of the United States the Department of

Defense (DOD) has provided assistance to the victims of disasters.2

 During

the past decade, U.S. military personnel have repeatedly deployed in support

of domestic disaster relief missions. These disaster relief missions have

varied in type, scope, and size. The one constant in these varied missions is

that judge advocates have provided legal advice at every level of disaster

response.

This chapter will provide a judge advocate the information necessary

to serve as a legal advisor in a disaster relief operation. It will set forth the

applicable statutes and regulations governing disaster relief operations. The

chapter will outline DOD’s responsibilities during disaster relief missions

and discuss a judge advocate’s role in supporting the mission. Finally, it will

identify common issues likely to be encountered in a disaster relief mission.

B. AUTHORITY TO PROVIDE DISASTER ASSISTANCE

1. The Robert T. Stafford Disaster Relief And Emergency Assistance Act

of 1974

The Robert T. Stafford Disaster Relief and Emergency Assistance Act

(Stafford Act), as amended, is the primary legal authority for federal

participation in domestic disaster relief. It applies only within the United

States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam,

American Samoa, the Northern Mariana Islands and the Trust Territories of

the Pacific Islands.3

 The Stafford Act is the Federal Emergency

Management Agency's (FEMA's) statutory basis for providing disaster

relief; DOD has no independent statutory basis to provide disaster

assistance. Under the Stafford Act, the President may direct federal

agencies, including DOD, to provide personnel, equipment, supplies,

facilities, and managerial, technical, and advisory services in support of

 

1

 42 U.S.C.S. § 5122(2) (LEXIS 2000).

2

 U.S DEP’T OF ARMY, FIELD MANUAL FM 100-19, DOMESTIC SUPPORT OPERATIONS, 1-2 (July 1993)

[hereinafter FM 100-19]. During the late nineteenth century, the Army provided disaster assistance in the

aftermath of the great Chicago fire, the Johnstown flood, and the Charleston earthquake.

3

 42 U.S.C.S. §§ 5121-5202 (LEXIS 2000).
DISASTER ASSISTANCE

83

disaster relief.4

 DOD may be directed to provide disaster assistance in one

of three different scenarios: a Presidential declaration of a major disaster; a

Presidential order to perform emergency work essential for the preservation

of life and property; and a Presidential declaration of an emergency.

a. Presidential Order to Perform Work Essential for the

Preservation of Life and Property

The President may direct federal agencies to provide assistance

essential to meeting immediate threats to life and property resulting from a

major disaster.5

 The Stafford Act specifically authorizes the use of

equipment, supplies, facilities, personnel, medicine, food, and other

consumables.6

 Additionally, agency personnel may be directed to provide

work and services such as search and rescue, emergency medical care, and

emergency shelter to disaster victims.7

 This type of support is sometimes

referred to as "pre-incident response."

In contrast to the declaration of a major disaster, this section of the

Stafford Act specifically addresses the utilization of DOD assets in these

essential assistance situations.8

 In order to utilize DOD assets, however, the

Governor of an affected state must request that the President direct the

Secretary of Defense to utilize DOD resources on either public or private

lands to preserve life or property.9

 The President then must decide if the

work is essential for the preservation of life and property.10 If the work is

deemed essential, the President may provide DOD assistance to the extent he

deems practicable.11 The support provided by DOD under this essential

assistance provision cannot exceed 10 days.12

 

4

 42 U.S.C.S. §§ 5170a(1), 5192(a)(1) (LEXIS 2000).

5

 42 U.S.C.S. § 5170 (b) (LEXIS 2000).

6

 Id.

7

 Id.

8

 Id.

9

 Id.

10 Id.

11 Id.

12 Id.
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84

An order to provide essential assistance will only be made for an

emergency or major disaster is declared. However, an emergency or major

disaster may be declared immediately, without invoking the essential

assistance authority.

b. Presidential Declaration of a Major Disaster

Under the Stafford Act, if the President declares a major disaster he

can direct any federal agency, including DOD, to utilize its resources to

provide disaster assistance.13 FEMA is the lead federal agency charged with

directing disaster assistance.

To declare an area a major disaster, the President must first receive a

request from the Governor of an affected state.14 The request must be based

on a finding that the disaster is of such severity and magnitude that an

effective response is beyond the capabilities of the state and local

governments.15 Furthermore, prior to requesting assistance, the Governor

must have taken appropriate response under state law and the State's

emergency plan.16 Finally, at the time of the request, the Governor must

identify the state and local resources which have been or will be committed

to alleviate the results of the disaster and agree to the cost sharing

requirements of the Stafford Act.17 Based on the information provided by

the Governor, the President may declare that a major disaster exists. Once

there is a declaration, federal agencies under the direction of FEMA are

authorized to provide disaster assistance. This authority was invoked after

Hurricane Andrew and the New York ice storm of 1998.18 See Appendix 5-

6, Presidential Disaster Declaration.

 c. Presidential Declaration of an Emergency

The President may also declare an emergency. Under the Stafford

Act, federal agencies may be directed by the President to utilize their

 

13 42 U.S.C.S. § 5170(a) (LEXIS 2000).

14 42 U.S.C.S. § 5170 (LEXIS 2000).

15 Id.

16 Id.

17 Id.

18 See 57 Fed. Reg. 39,684 (Sept. 1, 1992)(LEXIS 2000)(Hurricane Andrew Presidential Declaration of

Major Disaster).
DISASTER ASSISTANCE

85

resources and respond to an emergency that threatens lives, property, public

health and safety or is needed to avert the threat of a catastrophe.19 To

request a Presidential emergency declaration, the Governor must follow the

same procedural requirements required for a major disaster declaration. The

Governor must make a finding that the emergency is of such severity and

magnitude that effective response is beyond the capabilities of the state and

local government.20

Unlike the sections dealing with a major disaster or essential

assistance, this section also contains a provision that allows the President to

unilaterally make an emergency declaration. The President may determine

that the emergency involves a subject area in which the United States

exercise exclusive or predominant responsibility and authority.21 In these

situations, the President is required to consult the Governor of an affected

state if practicable, but is not required to do so prior to making an emergency

declaration.22 Once the President has made an emergency declaration,

federal agencies may provide disaster assistance. This authority was

invoked in response to the Oklahoma City bombing and Hurricane Floyd.23

See Appendix 5-4, Hurricane Floyd Order.

2. Department of Defense Directives

a. DODD 3025.1, Military Support to Civil Authorities and DOD

3025.1-M, Manual for Civil Emergencies

DOD Directive (DODD) 3025.1 and DOD 3025.1-M are the primary

sources governing DOD’s disaster assistance support to civil authorities.

DODD 3025.1 establishes the base line for disaster assistance and DOD

3025.1-M provides the detailed guidance. Judge advocates should read both

in order to provide comprehensive advice to commanders responding to

disasters.

 

19 42 U.S.C.S. § 5192 (a) (LEXIS 2000).

20 Id.

21 Id.

22 Id.

23 See generally, Commander Jim Winthrop, The Oklahoma City Bombing: Immediate Response Authority

and other Military Assistance to Civil Authority (MACA), Army Law., July 1997, at 3. Hurricane Floyd

was declared an emergency in anticipation of landfall. It did not progress to the level of a major disaster.
DOPLAW HANDBOOK

86

Although there is no specific statutory authority to do so, DODD

3025.1 establishing a commander’s "immediate response" authority.24 This

authority allows military commanders to provide disaster relief when

"imminently serious conditions resulting from any civil emergency or

attack" exist which "require immediate action by military commanders" in

order "to save lives, prevent human suffering, or mitigate great property

damage." Such actions may be taken only "when...time does not permit

prior approval from higher headquarters...."25 Judge advocates must be

familiar with the provisions of this directive, specifically the triggers that

authorize immediate response and the limitations upon it, in order to provide

proper legal guidance in the aftermath of disaster.

The authority to act centers around the terms “immediate response

authority,” “imminently serious conditions,” and "when time does not permit

approval from higher headquarters." "Immediate response" is defined as

“any form of immediate action taken by a DOD Component or military

commander... to assist civil authorities or the public to save lives, prevent

human suffering, or mitigate great property damage under imminently

serious conditions...." 26 "Imminently serious condition" is defined as

“conditions in which, in the judgment of the military commander or

responsible DOD official, immediate and possibly serious danger conditions

threaten the public and prompt action is needed to save lives, prevent human

suffering, or mitigate great property damage.”27 The phrase "when time

does not permit approval from higher headquarters" establishes a high bar.

In today's world of nearly instantaneous communications, such instances

will be less frequent. To determine whether immediate response is

authorized, a commander must consider the severity of the disaster in view

of these definitions.

If a military commander determines that the disaster warrants action

under his immediate response authority, there must be contemporaneous

notification to the next higher headquarters.28 DODD 3025.1 requires that

the military commander or DOD official acting under immediate response

 

24 U.S. DEP’T OF DEFENSE, DIR. 3025.1, MILITARY SUPPORT TO CIVIL AUTHORITIES, para. 4.5 (15 Jan.

1993) [hereinafter DODD 3025.1].

25 Id. at para. 4.5.1

26 Id. at E2.1.18.

27 Id. at E.2.1.19.

28 Id. at para. 4.5.3.
DISASTER ASSISTANCE

87

authority shall advise the Director of Military Support (DOMS) through

command channels by the most expeditious means available and shall seek

approval or additional authorization as needed.29

Although a commander has considerable discretion under his

immediate response authority, it is not unlimited. First, this is a local

authority. It does not permit forces to deploy out of the local area. Second,

while action may be taken "to save lives prevent human suffering, or

mitigate great property damage," it is advisable to limit responses to events

that impact human life unless failure to respond would be truly catastrophic

and would greatly impact human life or cause human suffering. Third,

"immediate response" authority is short-lived. It is generally considered to

terminate once FEMA is operating from its deployed command center on the

ground at the location of the disaster. Finally, this authority should only be

used when time truly does not permit prior approval from higher

headquarters. Most support will be provided pursuant to an order from

higher headquarters. See Appendix 5-7, Tornado Relief Order.

DODD 3025.1 requires all requests for assistance be received from

local government officials within 24 hours of the damage assessment.30 The

judge advocate must recognize that the time of damage assessment rarely

equates to the time of the disaster. This is a factual determination that the

judge advocate should assist the commander in making. Factors that a judge

advocate should consider when determining whether a request for assistance

falls within the 24 hour damage assessment window are: the ability of local

officials to survey an affected area; the magnitude of the disaster; the

training and expertise of local responders to conduct an efficient,

comprehensive assessment; and the ability of local and state officials to

communicate such requests for assistance to a DOD organization.

A final concern in all disaster assistance missions is reimbursement.

Although there is a preference under the directive to provide immediate

response on a cost reimbursable basis, the directive clearly states that a

commander should not delay or deny assistance because of the inability or

 

29 U.S. DEP’T OF DEFENSE, MAN. 3025.1-M, MANUAL FOR CIVIL EMERGENCIES (June 1994) [hereinafter

DOD 3025.1-M].

30 Id. 2-2.
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unwillingness of the requester to make a commitment to provide

reimbursement.31

To assist commanders in determining whether a request for assistance

is meritorious, the directive identifies typical missions a military commander

may authorize under immediate response, provided the assistance qualifies

under the immediate response authority described above. Those missions

include:

• Rescue, evacuation, and emergency medical treatment of casualties,

maintenance or restoration of emergency medical capabilities, and

safeguarding the public health;

• Emergency restoration of essential public services (including firefighting,

water, communications, transportation, power, and fuel);

• Emergency clearance of debris, rubble, and explosive ordnance from

public facilities and other areas to permit rescue or movement of people

and restoration of essential services;

• Recovery, identification, registration, and disposal of the dead;

• Monitoring and decontaminating radiological, chemical, and biological

effects; controlling contaminated areas; and reporting through national

warning and hazard control systems;

• Roadway movement control and planning;

• Safeguarding, collecting, and distributing food, essential supplies, and

material on the basis of critical priorities;

• Damage assessment;

• Interim communications; and

• Facilitating the reestablishment of civil government functions.32

These examples are not "pre-approved" immediate response missions.

These are merely examples of support that may be provided if the requested

assistance, under the circumstances, meets the requirements of the

immediate response authority described above.

 

31 DODD 3025.1, supra note 24, at 4.5.2.

32 Id. at paras. 4.5.4, 4.5.4.10.
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b. DODD 3025.15, Military Assistance to Civil Authorities

DODD 3025.15 is the overarching directive that governs all military

assistance to civil authorities within the 50 states, District of Columbia,

Commonwealth of Puerto Rico, U.S. possessions and territories.33 Although

not specific to disasters, judge advocates must read this directive in

conjunction with DODD 3025.1 to ensure the disaster assistance provided

complies with the applicable provisions of both directives. Consistent with

DODD 3025.1, DODD 3025.15 does not limit a commander's immediate

response authority. DODD 3025.15 also requires that, as soon as practical,

the commander report actions taken pursuant to immediate response

authority through command channels to the DOD Executive Secretary.

Furthermore, this Directive establishes six criteria that DOD approval

authorities must use in analyzing any civilian request for assistance, to

include disaster assistance. Those criteria are:

• Legality

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

• Risk (safety to DOD forces)

• Cost (who pays, impact on the DOD's budget)

• Appropriateness (whether the requested mission is in the interest of the

Department to conduct)

• Readiness (impact on the DOD's ability to perform its primary mission)34

A judge advocate should assist a commander in reviewing all these criteria

when submitting requests for approval. Requests have sometimes been

denied based upon a single criterion. For example, requests have been

denied based on criteria 5, appropriateness, alone.

As previously mentioned, DODD 3025.15 requires the appropriate

approval authority to apply these criteria to all requests when deciding

whether to provide assistance. The approval authority for these requests will

differ based on the type of military assistance requested. Judge advocates

should be aware of the appropriate approval authority, which differs in

 

33 U.S. DEPARTMENT OF DEFENSE, DIR. 3025.15, MILITARY ASSISTANCE TO CIVIL AUTHORITIES (18 Feb.

1997) [hereinafter DODD 3025.15].

34 Id. at para. 4.2.
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DODD 3025.15 and DODD 3025.1. DODD 3025.15 is the controlling

authority.

DODD 3025.15 states that the Secretary of the Army has approval

authority to provide emergency support to natural or man-made disasters.35

The Secretary of Defense is the approval authority for support when there is

a civil disturbance, act of terrorism, or planned event with the potential for

confrontation with specifically identified individuals and/or groups could

result in the use of lethal force.36 See Chapter 2, Support To Civilian Law

Enforcement, for additional information. If CINC-assigned forces are

utilized, the Chairman of the Joint Chiefs of Staff must determine whether

the employment of Combatant Command forces or equipment creates a

significant issue that requires Secretary of Defense approval.37 This,

however, does not prevent a commander from exercising his immediate

response authority.38

c. Draft Joint Publication 3-07.7, Joint Tactics, Techniques, and

Procedures for Domestic Support Operations39

Although not final, another resource judge advocates should consult is

Draft Joint Publication (JP) 3-07.7. When final, it will establish the doctrine

for DOD’s response to all domestic support operations. Specifically,

Chapter Two of the Draft addresses DOD support and assistance to natural

and man-made disasters. It establishes requirements for military response,

emergency planning and discusses DOD's responsibility under the Stafford

Act, Federal Response Plan and DODD 3025.1.40 In JP 3-07.7, the analysis

begins with whether the disaster is natural or manmade.41

The Draft Joint Pub divides natural disasters into three broad

categories: geological and atmospheric events, wildfires, and animal and

 

35 Id.

36 Id.

37 Id.

38 Id. at para. 4.5.

39 THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.7 JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR

DOMESTIC SUPPORT OPERATIONS (Final Coordination 3 July 2000) [hereinafter JOINT PUB. 3-07.7].

40 Id. at II-1.

41 Id.
DISASTER ASSISTANCE

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plant diseases.42 The current draft of JP 3-07.7 sets forth four categories of

manmade disasters which have specific disaster plans associated with

them.43 Those categories are oil and hazardous materials, radiological

emergencies, mass immigration emergencies, and postal augmentation.44

See Chapter 8, Miscellaneous Domestic Support Operations, for a

discussion of these topics.

Draft JP 3-07.7 also contains additional sections on specific functional

areas that must be considered during both natural and man-made disaster

relief missions. Those sections include legal considerations; roles and

responsibilities of the participants; command and control; concept of

support, which provides a description of the Emergency Support Functions

(ESFs) under the Federal Response Plan (FRP); and planning

considerations.45

Important planning considerations discussed include assessment,

imagery, information exchange, religious ministry support, communications,

military health service support, civil affairs, psychological operations,

logistics, supplies and equipment, and engineering.46

3. Service Regulations

a. Army Regulation 500-60, Emergency Employment of Army and

Other Resources, Disaster Relief47

Army Regulation (AR) 500-60 is the Army regulation governing

support for disaster relief missions. A 1981 regulation, it is considered

outdated in many respects, but should be read in conjunction with DODD

3025.1 and DODD 3025.15. The regulation reemphasizes DODD 3025.1

and establishes the Army policy for providing disaster relief.48 It further

 

42 Id.

43 Id. at II-7.

44 Id.

45 Id. at II-11.

46 Id. at II-27.

47 U.S. DEP’T OF ARMY, REG. 500-60, EMERGENCY EMPLOYMENT OF ARMY AND OTHER RESOURCES,

DISASTER RELIEF, (1 Sept. 1981) [hereinafter AR 500-60].

48 Id. at para. 2-1.
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delineates the responsibilities for Active, Reserve and National Guard forces

and commanders operating at different levels. 49 In addition to establishing

triggers for when forces will provide disaster assistance, AR 500-60 also

provides specific guidance in the critical functional areas of

communications; resources support; supply; and funding, accounting, and

reimbursement.50

b. Chief of Naval Operations Instruction 3440.16c, Navy Civil

Emergency Management Program51

Chief of Naval Operations (OPNAV) Instruction 3440.16c is the naval

service counterpart to AR 500-60. It provides Navy policy, planning

guidance, operational structure, and assignment of responsibilities for

assistance to civil authorities in the event of domestic natural or manmade

emergency.52 This instruction applies to all U.S. Navy activities and

establishes a commander’s immediate response authority to save lives,

prevent human suffering and/or limit property damage. 53 It assigns

geographical regions of responsibility to the commanders of naval bases.54

Although all the enclosures to OPNAV Instruction 3440.16c provide

some guidance on responding to an emergency, enclosure six provides the

substance of the instruction. Enclosure six sets forth procedures and

describes circumstances under which the Navy may provide assistance to

civil authorities.55 It also provides specific guidance on the execution of

civil emergency operations, loaning and donating property, and funding and

reimbursement.56 Finally, there are six appendices to this enclosure,

discussing the eight specific emergency situations: flood relief; destructive

weather relief; wildfire assistance; earthquake relief; augmentation of the

 

49 Id. at para. 2-2.

50 Id. at para. 3-1.

51 U.S. DEP’T OF NAVY, CHIEF OF NAVAL OPERATIONS INSTR. 3440.16c, NAVY CIVIL EMERGENCY

MANAGEMENT PROGRAM (10 Mar. 1995) [hereinafter OPNAVINST. 3440.16c].

52 Id. at 2.

53 Id. at 3.

54 Id. at 7.

55 Id. at Enclosure 6 pg. 1.

56 Id. at 7.
DISASTER ASSISTANCE

93

U.S. postal service; oil spill cleanup; civil disturbance; and key asset

protection.57

c. Air Force Instruction 10-802, Military Support to Civil

Authorities58

Air Force Instruction (AFI) 10-802 is the Air Force instruction that

implements DOD 3025.1.59 It establishes civil responsibilities for several

organizations with the Department of the Air Force.60 This instruction

provides specific guidance on funding and reimbursement, reporting

requirements and establishes emergency priorities.61 AFI 10-802 also sets

forth the immediate response authority of an installation commander.62

Attachment two of the instruction provides specific guidance on a

commander’s immediate response authority.63

4. FEDERAL RESPONSE PLAN

When the President declares a major disaster, federal agencies will be

directed to provide disaster assistance in support of state and local efforts.

For command and control purposes, FEMA has been designated the lead

federal agency responsible for coordinating federal emergency preparedness,

planning, management, and disaster assistance functions.64 It provides the

Federal Government's response to state and local authorities. FEMA carries

out these responsibilities by implementing the Federal Response Plan which

they are also tasked with developing and maintaining.

 

57 Id. at Enclosure 6 App. A.

58 U.S. DEP’T OF AIR FORCE, SECRETARY OF THE AIR FORCE INST. 10-802, MILITARY SUPPORT TO CIVIL

AUTHORITIES (25 Feb. 1994) [hereinafter AFI 10-802].

59 Id.

60 Id. at page 2.

61 Id. at page 4.

62 Id. at page 11.

63 Id. at page 9.

64 FEDERAL EMERGENCY MANAGEMENT AGENCY, FEDERAL RESPONSE PLAN (FRP) 3 (Apr.

1992)[hereinafter FRP], available from HQ, FEMA, 500 C Street SW, Washington, DC 20472 or available

at http://www.fema.gov/r-n-r/frp/.
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Judge advocates participating in a disaster assistance mission must

understand that FEMA is the lead agency in federal disaster response.

DOD’s role is to support FEMA in providing disaster assistance.

Figure 5-1, The Federal Response Plan

a. Major Provisions of the Federal Response Plan

The Federal Response Plan (FRP) establishes a process and structure

for the systematic, coordinated and effective delivery of federal assistance to

address the consequences of any major disaster or emergency declared under

the Stafford Act.65 The FRP provides federal policies, planning

assumptions, concept of operations, organizational structures, and specific

assignments of responsibility for federal government response assistance.

This assistance augments state and local response efforts to save lives,

protect public health, and aid affected individuals and communities in

rebuilding after a disaster.66

 

65 Id. at 1.

66 Id.

Mayor/County

Executive Governor FEMA

Regional 

Director

President

of the 

United States

Federal 

Coordinating

Officer

Emergency

Response Team

Comprised of 26

Federal Agencies and

the American Red Cross

Emergency Support Functions

#1. Transportation

#2. Communications

#3. Public Works & Engineering

#4. Firefighting

#5. Information & Planning

#6. Mass Care

#7. Resource Support

#8. Health & Medical Services

#9. Urban search & Rescue

#10. Hazardous Materials

#11. Food

#12. Energy

Disaster Field Operations

Requests

Aid from

Informs

Reports 

To

Provides

Disaster

Field Office

Supports Sets Up

State 

Coordinating

Officer Joins

Joint Preliminary Damage and Needs Assessment

Work with 

Volunteer

Organizations

Activates Local

EOC

Activates State

 EOC

Local State Federal

Appoints

Catastrophic Disaster

Response Group

(CDRG)

Emergency Support

Team (EST)

Other Federal Agencies

Local 

First 

Responders

Declares 

Emergency/

Major

Disaster

The Federal Response Plan

Alert

Emergency

Response Team

Advance

Element

(ERT-A)

FEMA Regional Operations Center

(ROC)

Disaster Occurs

Requests Emergency

Major Disaster

Declaration

FEMA

Director

Governor 

Declares

State

Emergency/

Disaster Contacts
DISASTER ASSISTANCE

95

The FRP facilitates delivery of all types of federal assistance to state

and local governments by organizing federal agencies and the American Red

Cross under Emergency Support Functions (ESFs).67 The FRP identifies 12

ESFs and assigns primary responsibility for each function to a federal

agency or the American Red Cross. The mission, policies, concept of

operations, and responsibilities of the primary and support agencies involved

in the implementation of key response functions that supplement State and

local activities are described in the ESF annexes.68

In addition to having primary responsibility under an ESF, a federal

agency may have a supporting role under one or more other ESFs. DOD has

a primary role in one ("public works and engineering") and a supporting role

in 11. The 12 ESFs and the agency with primary responsibility are as

follows:

• ESF 1 - Transportation. (Department of Transportation)

• ESF 2 - Communications. (Office of Science and Technology Policy)

• ESF 3 - Public Works and Engineering. (DOD/Army Corps of Engineers)

• ESF 4 - Firefighting. (Department of Agriculture/Forest Service)

• ESF 5 - Information and Planning. (FEMA)

• ESF 6 - Mass Care. (American Red Cross)

• ESF 7 - Resource Support. (General Services Administration)

• ESF 8 - Health and Medical Care Services. (U.S. Public Health Service)

• ESF 9 - Urban Search and Rescue. (FEMA)

• ESF 10 - Hazardous Materials. (Environmental Protection Agency)

• ESF 11 - Food. (Department of Agriculture)

• ESF 12 - Energy. (Department of Energy).

The FRP recognizes that DOD maintains significant resources that

may be available to support the federal response to a major disaster or

emergency.69 FEMA may request DOD support upon execution of the FRP.

These requests should be made from the federal coordinating officer to the

defense coordinating officer (discussed in more detail below). To ensure

DOD reimbursement, these requests for military source support must be

accompanied by a Request for Federal Assistance (RFA) form, unless the

 

67 Id.

68 Id. at 4.

69 Id. at 13.
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DOD component is responding under either its independent funding

authority or the commander's immediate response authority provided in

DODD 3025.1.70 The RFA should include a mission assignment number

and the signature of the Federal Coordinating Officer (FCO). See Appendix

5-1, Request for Federal Assistance (RFA) Form.

b. Major Participants

(1) Federal Coordinating Officer

To implement the FRP in the aftermath of a disaster, the FEMA

Director appoints a FCO to manage federal disaster assistance within the

disaster area. The FCO is the senior federal official "on the ground" that

coordinates the overall federal disaster response and recovery actions. The

FCO reports directly to the FEMA Director. The FCO has the authority to

task other federal agencies for federal resources and determines which ESFs

should be activated. In carrying out disaster assistance missions, the FCO

works closely with ESF representatives, a State Coordinating Officer and the

Defense Coordinating Officer (DCO). See Appendix 5-2, FCO Structure

and FCO Operations Section Structure.

(2) Director of Military Support

The Secretary of Defense has appointed the Secretary of the Army as

the DOD executive agent for disaster relief.71 The Secretary of the Army

has in turn designated the Director of Military Support (DOMS) as the

action agent and single headquarters element for the Secretary of the

Army.72 The supporting CINC will report to DOMS.73

(3) Defense Coordinating Officer

After activation of the FRP, requests for military support from the

FCO are made through the DCO. The DCO is a military or civilian official

designated by the Executive Agent or responsible DOD Component to

 

70 DODD 3025.1, supra note 24, at para. E.2.1.18.

71 Id. at para. 4.3.1.

72 Id. at para. 5.7.2.

73 Id.
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coordinate MSCA activities in accordance with DODD 3025.1. The DCO is

the DOD on-scene representative who coordinates MSCA requirements with

the Federal Coordinating Officer (FCO).74 The person selected to serve as

the DCO will differ based on the size and scope of the disaster. Typically,

the DCO will be an 0-6 or above.

The authority of each DCO is defined in documentation issued or

authorized by the DOD Executive Agent to be issued by the responsible

DOD command and is limited either to the requirements of a specified

interagency planning process or to a specified geographical area or

emergency. The person to be designated the DCO may be pre-positioned at

an anticipated disaster site as a "liaison." This liaison will not become the

DCO, with authority to approve requests, until FEMA requests appointment,

and the Secretary of the Army issues an order approving activation, of a

DCO. Until this time, all FEMA requests must be approved by DOMS.

Figure 5-2, Disaster Relief Command Structure.

 

74 Id. at 5-1. This section outlines the responsibilities of the DCO.

DCE
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Under the FRP, the DCO is the designated DOD on-scene member of

the Emergency Response Team and the single point of contact in the field

for coordinating and validating the use of DOD resources.75 The DCO

advises the FCO about DOD capabilities and limitations and ensures that

taskings are proper, timely, and effective. The FCO should make all

requests for support through the DCO. The DCO, in turn, will validate

requirements for military support. Upon validation, the DCO will determine

whether the military can and should support the request; forward mission

assignments to the appropriate military organizations; and assign military

liaison officers to provide technical assistance to appropriate ESFs. The

DCO then relays FEMA's request to the appropriate operational unit. If a

DOD asset is available, the DCO will task that particular unit for support.

(4) Defense Coordinating Element

The Defense Coordinating Element (DCE) is a cell of DOD personnel

that deploys in response to a disaster. This cell will typically co-locate with

the FEMA on-site response team and support the DCO in processing

requests for assistance from FEMA. The JA assigned as the legal advisor to

the DCO will be a member of the DCE. The JA Captain may be the only

lawyer on the scene.

(5) FRP Components

When the FRP is activated, FEMA headquarters and regional level

elements establish response components to respond to the emergency. These

components may include a National Emergency Coordination Center, a

Catastrophic Disaster Response Group, a Disaster Field Office, or other

components. The FRP components are discussed in Appendix 5-5, FRP

Components.

c. Processing RFAs

After a major disaster is declared, a RFA should be processed as

outlined in the hypothetical example below:

 

75 Id. at 15.
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RFA Process - Hypothetical Scenario

Local emergency officials need generator support to

provide electricity to sustain the life support capabilities at a

hospital. Local officials determine that the generator support

required is beyond local capabilities. Local officials forward

the request for a generator to the State Coordinating Officer

(SCO). The SCO receives the request for assistance and

determines whether it has a generator that meets the

requirements of the local officials. If a generator is available,

the SCO provides it to the local officials and the action is

complete. If the SCO does not have a generator that meets the

requirements, he forwards the request to the FCO. Requests

must state a requirement or capability; a request may not be

made for a specific item of equipment or specific unit. FEMA

or the supporting agency will determine how to fulfill the

request.

The FCO receives the request and forwards it to the

ESF most capable of filling the response. If two ESFs are

capable of fulfilling the request, the FCO usually elects to

send it to the agency that can provide the assistance for the

lowest cost. Once the FCO selects an ESF, the request is

forwarded to the ESF. The ESF then reviews the request and

determines whether it can be supported. Although this

appears to be a multi-step process, the selection and request to

the ESF occur almost simultaneously. In this example, the

ESF decides to support the request by using DOD resources.

The FCO forwards the request to the DCO for action. If the

DCO can support the request, he tasks the proper unit to

provide the generator. Unit personnel and equipment then

deploy and provide generator support until released by FEMA.

Judge advocates should assist the DCO in reviewing the

request for assistance and must ensure the RFA form is

completed prior to mission execution to ensure

reimbursement.

Figure 5-3, RFA Example
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5. ROLE OF THE JUDGE ADVOCATE IN FEDERAL DISASTER ASSISTANCE

All disasters, and the response required, differ based on size, scope

and location. Likewise, the role of the judge advocate will also differ based

on the organization he is tasked to support. This section discusses three

units/levels a judge advocate may support. It highlights the statutory and

regulatory guidance most often encountered and discusses the judge

advocate’s role at each respective level.

a. FEMA/Defense Coordinating Element Level

Judge advocates may be assigned to the DCE serving with FEMA. As

a member of the DCE, the judge advocate will serve as the primary legal

advisor to the DCO. Judge advocates serving in this capacity must be

familiar with the Stafford Act, FRP, and DOD Directives regarding military

support to civilian authorities. Judge advocates should establish early liaison

with the FEMA legal advisor and subordinate unit legal advisors of units

tasked to provide support.

Similarly, the judge advocate should establish a relationship with the

DCE comptroller to ensure compliance with all fiscal laws and proper

accounting to obtain reimbursement from FEMA. Judge advocates should

review all requests for military support from the FCO. Judge advocates

must ensure that a mission number has been assigned, that the reason for

requesting the mission is valid, and that it is appropriate for DOD to support

the type of mission requested.

b. Installation Level

Judge advocates may be required to provide legal support to their own

commanders if a disaster strikes at or near a JA's own installation. At the

installation level, JAs should be familiar with DODD 3025.1 and the limits

of the commander's immediate response authority. Almost without

exception, a military installation will be in the best position to respond to a

disaster with equipment and personnel. Immediately following the disaster,

the installation will be inundated with requests for assistance from state and

local governments as well as private citizens. The DODD 3025.1 threshold

for immediate response is support necessary "to assist civil authorities or the

public, to save lives, prevent human suffering, or mitigate great property
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damage under imminently serious conditions..." when "...time does not

permit notification of higher headquarters...."76

An Installation Operation Center (IOC) may be established to respond

to the disaster. The IOC will function much like the Emergency Operation

Center (EOC) established prior to a deployment, with 24 hour operations

requiring 24 hour legal support. The JA on shift will probably be required to

brief legal issues during shift change briefings, just like during a field

exercise. The JA must be part of the response cell that receives and reviews

immediate response requests and makes a recommendation to the

commander on whether or not the request should be supported. It is this

objective analysis of the request and application of the DODD 3025.1

standard that ensures commanders do not exceed their immediate response

authority. Similarly, judge advocates should ensure that the installation

comptroller is capturing these immediate response missions and associated

costs in order to seek reimbursement from FEMA at a later date.

Not only must a judge advocate be familiar with the scope of the

commander's immediate response authority, he must be vigilant in

monitoring when there has been a limit placed on the immediate response

authority due to a Presidential declaration of a major disaster. At that point,

FEMA becomes the lead agency responsible providing disaster assistance

and any new requests for assistance coming into the installation must be

forwarded to FEMA for action.

Continuing to provide assistance off the installation without a valid

FEMA tasking under the guise of immediate response authority may result

in adverse ramifications. Funds expended in support of these missions may

not be reimbursed. In addition, continued circumvention of FEMA and the

FRP process may draw admonishment from superior commands. Finally,

judge advocates must be prepared to handle the numerous installation issues

that will arise during the recovery period. Many will be addressed in section

G below, Common Issues, below.

c. Task Force Level

Judge advocates serving at the task force level may face many of the

same issues as their counterparts working with FEMA or on the installation.

 

76 DODD 3025.1, supra note 24, at para. E.2.1.18.
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However, a Task Force JA (TFJA) will face issues that are unique to

deployed forces. If a judge advocate deploys as part of a disaster relief task

force, the deployment is in response to a Presidential declaration of a major

disaster. Thus, the commander's immediate response authority would

generally not be applicable. Judge advocates deployed as part of a large

force directly supporting the relief mission must be prepared for a variety of

deployment-related issues. Some of the most common issues are discussed

below.

d. Common Issues

(1) Fiscal Law

Applicable fiscal laws depend on the size and location of the disaster

and whether there has been a Presidential declaration of a major disaster.

For addition information, see section IX, Fiscal Law.

(a) Disasters Near a DOD installation with No

Presidential Disaster Declaration

When a disaster occurs on or near an installation and there is no

Presidential disaster declaration, the commander will rely on immediate

response authority. Utilization of government resources and personnel

under the commander's immediate response authority will be funded initially

from the installation operations and maintenance account. If operating under

this scenario, a judge advocate should advise the installation comptroller to

capture, from the outset, basic cost information. That information should

include the details surrounding the RFA, resources and personnel dispatched

by the commander in response to the RFA, time required to complete the

RFA, and a firm estimate of the cost, including personnel, equipment, and

fuel.

If there is a subsequent Presidential disaster declaration, the

commander should seek reimbursement from FEMA for the assistance

provided under the immediate response authority. If the commander is

unable to recoup expended funds from FEMA, the Defense Emergency

Response Fund (DERF) may provide an avenue for reimbursement.77 This

 

77 U.S. DEP’T OF DEFENSE, REG. 7000.14-R, DOD FINANCIAL MGM’T REG., VOL. 12, Special Accounts

and Programs, Ch. 23, Contingency Operations (Sept. 1996).
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fund was created primarily to reimburse commands for the costs associated

with providing assistance under DODD 3025.178 The exact procedures for

use of this fund may also be found at DOD 3025.1-M, Chapter 9.79 Under

either reimbursement mechanism, the key is to initiate and maintain a proper

accounting from the outset.

(b) Disaster Near a DOD installation with a

Presidential Disaster Declaration

Once there is a Presidential disaster declaration, the commander

should only undertake missions outside the installation when tasked by the

DCO from FEMA to ensure reimbursement. With a proper tasking, FEMA

will reimburse the unit for these missions. Conducting missions without a

proper tasking and mission authorization from FEMA may result in FEMA

disallowing reimbursement. If FEMA does not authorize reimbursement,

the cost of that mission will probably be funded from the installation

operation and maintenance account. The command may subsequently seek

reimbursement from the DERF, however, it will be more difficult since the

commander has not acted pursuant to a FEMA tasking and the assistance is

probably outside the immediate response authority window.

(c) Disaster Not Near a DOD Installation with a

Presidential Disaster Declaration

Units will not respond to disasters occurring outside of their

geographical area absent a Presidential disaster declaration. If units respond

to disasters outside their geographical area, it will be at the direction of

FEMA/DCO tasking. Prior to executing the mission, the unit should ensure

that the FEMA RFA form is completed. If this form is completed,

reimbursement for carrying out the mission will come from FEMA. The

unit responding should be instructed to keep a detailed accounting of the

personnel and equipment responding and the length of time they are

deployed in order to receive full reimbursement.

 

78 Id. at 6-3.

79 DOD 3025.1-M, supra note 29, at p. 9.
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(2) Use of Force

The use of force during disaster relief missions is an extremely

sensitive issue. Disaster relief operations, by their nature, are assistance

missions and the use of force is generally not required. Active duty military

forces responding to a disaster assistance mission outside the installation

must primarily rely upon local and state law enforcement or National Guard

personnel for protection. This section highlights some common issues in

this area.80

(a) Force Protection

While protection of the force is essential on all military missions,

force protection in disaster assistance is a sensitive issue. The Chairman of

the Joint Chiefs of Staff Standing Rules of Engagement (CJCS SROE) do

not apply to domestic disaster relief operations.81 Soldiers maintain the right

to self-defense on disaster relief missions, but soldiers often will not deploy

with weapons (see sub-section c. Weapons, below). Commanders should

identify threats to soldiers and advise higher headquarters of the threats.

Judge advocates should discuss the issues surrounding rules for the use of

force on disaster assistance missions with their commanders.

A sample, hypothetical "Rules for the Use of Force" card for disaster

assistance missions is included at Appendix 5-3. The following are use of

force issues that a judge advocate should discuss with his Commander prior

to providing disaster assistance.

(b) Weapons

It is unlikely that DOD personnel deployed to provide disaster

assistance in the future will be armed. Although soldiers carried unloaded

weapons during Hurricane Andrew relief operations, current DOD policy in

other areas indicates a trend limiting the arming of DOD personnel in

 

80 For information on the use of force in domestic and counterdrug operations, 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.

81 CHAIRMAN, JOINT CHIEF OF STAFF INSTR. 3121.01A, STANDING RULES OF ENGAGEMENT FOR U.S.

FORCES, (15 Jan. 2000) [hereinafter CJCSI 3121.01A].
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domestic support operations.82 Judge advocates should advise commanders

not to deploy with weapons without CINC approval. The carrying of

firearms by military law enforcement personnel is discussed separately in

section d. Deployment of Law Enforcement and Security Personnel, below.

(c) Protection of Property

Local and state law enforcement personnel are primarily responsible

for maintaining law and order and protecting property. Use of deadly force

for the protection of property will only be permitted under very limited

circumstances, if at all. Although not directly applicable, CJCSI 3121.02

indicates the trend in future DOD policy regarding limitations on the use of

deadly force to protect property.83 Clearly, use of force in a domestic setting

will be tightly controlled. National Guard forces will fall under state law

unless federalized.

(d) Deployment of Law Enforcement and Security

Personnel

Special consideration should be given to the deployment of law

enforcement and security personnel. Since the Posse Comitatus Act restricts

the use of military personnel for civilian law enforcement purposes, judge

advocates must consider whether to recommend deploying law enforcement

and security personnel. See Chapter 2, Military Support to Civilian Law

Enforcement, for a more detailed discussion.

If deployed, security personnel's role in the disaster assistance mission

should be clearly established. DOD law enforcement and security personnel

are granted a continuing authority to carry firearms under DODD 5210.56.

 

82 Memorandum, Deputy Secretary of Defense, subject: Interim Policy Implementing the Draft DOD

Directive on Consequence Management, Support to Civil Authorities for Domestic Chemical, Biological,

Radiological, Nuclear, and High Yield Explosive (CBRNE) Incidents (28 Mar. 2001). Although not

directly applicable, this policy withholds approval authority for arming DOD personnel engaged in

CBRNE-Consequence Management efforts to the Secretary of Defense. Unit commanders may only

deploy with weapons secured in appropriate storage containers with CINC approval. CINCs must inform

the Secretary of Defense and CJCS when units deploy with weapons.

83 CHAIRMAN, JOINT CHIEF OF STAFF INSTR. 3121.02, RULES ON THE USE OF FORCE BY DOD PERSONNEL

PROVIDING SUPPORT TO LAW ENFORCEMENT AGENCIES CONDUCTING COUNTERDRUG OPERATIONS IN THE

UNITED STATES (31 May 2000), limits the property military personnel may defend with deadly force during

counterdrug missions to inherently dangerous property or property designated by the National Command

Authority as vital to national security.
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That authority may be modified by specific use of force rules.84 This

directive instructs law enforcement personnel to avoid the use of force

whenever possible.85 Furthermore if force is required, DOD personnel are

directed to employ the minimum amount of force necessary under the

circumstances.86 Finally, the directive provides specific guidance for the use

of deadly force.87 Remember that these rules apply only to authorized law

enforcement personnel, and not to all military personnel.

The Posse Comitatus Act restricts the use of military personnel to

execute the civil laws of the United States. 88 The Act, however, does not

apply if the actions by active duty troops are furthering a military function of

the United States.89 This authority, sometimes referred to as the military

purpose doctrine, allows civilians to receive an incidental benefit if the

primary purpose of the action is furthering a military interest.

Generally, DOD personnel may provide traffic assistance for federal

disaster relief convoys if necessary. Once the local and state traffic control

infrastructure has been reestablished, military personnel should cease all

traffic assistance. Similarly, DOD personnel may provide security for DOD

assets and personnel. Problems arise when DOD assets are interspersed with

county, state, and private agency assets. If this situation arises, civilian law

enforcement should first provide security. If civilian security is inadequate,

DOD personnel may be used for the security of DOD personnel and

property. Once local and state authorities have established adequate security

measures, DOD officials should relinquish these security missions back to

the local and state authorities.

Finally, the rules regarding intelligence gathering by U.S. personnel

against U.S. citizens are extremely restrictive. See Chapter 9, Intelligence

 

84 U.S. DEPARTMENT OF DEFENSE, DIR. 5210.56, USE OF DEADLY FORCE AND THE CARRYING OF FIREARMS

BY DOD PERSONNEL ENGAGED IN LAW ENFORCEMENT AND SECURTIY DUTIES (25 Feb. 1992) [hereinafter

DODD 5210.56]. See also U.S. DEPARTMENT OF ARMY, REG. 190-14, CARRYING OF FIREARMS AND USE

OF FORCE FOR LAW ENFORCEMENT AND SECURITY DUTIES (12 Mar 1993).

85 DODD 5210.56 supra note 84, at para. 4.2.

86 Id.

87 Id. at para. E.2.

88 18 U.S.C.S §1385 (LEXIS 2000).

89 U.S. DEP'T OF DEFENSE, DIR. 5525.5, DOD COOPERATION WITH CIVILIAN LAW ENFORCEMENT

OFFICIALS, Encl. 4, para. A.2.a. (15 Jan. 1986) [hereinafter DODD 5525.5].
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Law and Policy Considerations During Domestic Support Operations, for a

more detailed discussion.

(3) DOD Aircraft

A major issue facing judge advocates is the use of DOD aircraft in

disaster relief missions. In the initial stages, federal, state, and civil relief

agencies will want to utilize DOD aircraft to conduct damage assessments

and begin transporting disaster relief supplies and personnel to the affected

area. DOD 4515.13-R, Air Transportation Eligibility, outlines the categories

of personnel authorized to fly as passengers on DOD aircraft and the

procedures to process these requests.90 Authorized personnel are specifically

discussed in Chapter Two of DOD 4515.13-R.91

Similarly, any official tasking from FEMA will allow personnel they

designate to fly on DOD aircraft. Individuals requesting to utilize DOD

aircraft that do not fall within one of these categories may be allowed to fly

after obtaining an exception to policy. Exceptions to policy may be obtained

using the procedures set forth in Chapter 10 of 4515.13-R. This chapter

establishes the policy considerations for all requests as well as the approving

official for the requests. Consistent with a commanders immediate response

authority in DODD 3025.1, local commanders may authorize use of DOD

controlled aircraft when danger to public health and safety is of such

imminent seriousness as to preclude obtaining prior approval. Judge

advocates should consult their specific service regulations governing air

assets.92

(4) Environmental Issues

Judge advocates must ensure that disaster assistance missions comply

with all applicable environmental laws and regulations. The Stafford Act

contains an exemption only for the National Environmental Policy Act.93

 

90 U.S. DEP’T OF DEFENSE, REG. 4515.13-R AIR TRANSPORTATION ELIGIBILITY (Nov. 1994), [hereinafter

DOD REG. 4515.13-R.]. See also U.S. DEP'T OF ARMY, REG. 95-1, FLIGHT REGULATIONS (1 Oct. 1997);

U.S. DEP'T OF AIR FORCE, POLICY DIRECTIVE 24-1, PERSONNEL MOVEMENT (1 SEPT. 1995); U.S. DEP'T OF

NAVY, OPNAV INST. 4630.25C, AIR TRANSPORTATION ELIGIBILITY (14 Nov. 1995).

91 DOD REG. 4515.13-R at p. 2-2.

92 U.S. DEP’T OF ARMY. REG. 95-1, FLIGHT REGULATIONS (1 Oct. 97).

93 42 U.S.C.S. § 5159 (LEXIS 2000).
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DODD 3025.1, DODD 3025.15, and AR 500-60 do not specifically address

environmental law issues. However, "legality" is the first criteria set forth in

DODD 3025.15. Judge advocates should consider the nature of the disaster

assistance requested and assess whether any environmental statutes apply.94

If the Commander is providing assistance at or near the installation

under the immediate response authority, the installation environmental law

specialist should assist in analyzing the proposed mission to determine

whether it could violate any environmental laws or regulations. If a JA is

deployed as part of the DCE cell, the JA should still be sensitive to

environmental issues. The JA should ensure that FEMA attorneys have

obtained the requisite permits or waivers from state and federal

environmental officials if the requested mission has environmental law

implications. Judge advocates should also review DOD plans for executing

FEMA requests to ensure proposed courses of action do not violate

environmental laws.

Debris removal is one of the major areas of environmental concern in

disaster relief. Permits may be required prior to burning debris. Debris

comprised of more than yard waste (tree limbs, branches, etc.) may contain

hazardous waste. Regulations proscribe specific disposal methods for

hazardous or mixed waste. Judge advocates should ensure that the proper

environmental permits have been obtained prior to DOD personnel

collecting and disposing of debris.

(5) Chaplain Activities

 The Establishment Clause of the First Amendment to the U.S.

Constitution limits the use of military chaplains.95 There is no provision in

the Stafford Act allowing DOD chaplains to provide services to the civilian

population of an affected area. DOD chaplains may inadvertently exceed

their authority to provide religious support in one of two scenarios.

 

94 See Clean Air Act, 42 U.S.C.A. § 7401 et seq. (1995), Safe Drinking Water Act 42 U.S.C.A. §1441 et

seq. (1994), Resource Conservation and Recovery Act, 42 U.S.C.A. § 6901 et seq. (1995), and The Nation

Environmental Policy Act, 42 U.S.C.A. § 321 et seq. (1994).

95 U.S. CONST. amend. I, and 10 U.S.C.S § 2012 (i)(2)(LEXIS 2000). See also U.S. DEP'T OF ARMY, REG.

165-1, CHAPLAIN ACTIVITIES IN THE UNITED STATES ARMY, para. 1-4 (1 Feb 1998).
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First, in large-scale disasters, military chaplains may deploy to

provide religious services to DOD personnel. Deployed chaplains may be

asked or desire to provide religious support to affected members of the

civilian community. Chaplains are required to limit their religious services to

DOD personnel.

Second, if the disaster occurs at or near an installation the chaplains

may have a similar desire to provide religious support to civilian members of

the surrounding community. The same restrictions that apply to deployed

chaplains also apply in this scenario. Similarly, judge advocates should be

aware that these restrictions extend beyond providing religious support to

people and also apply to requests for other types of assistance from local

churches or religious facilities as well.96

One exception is when FEMA requests DOD chaplains to provide

non-secular counseling services. A judge advocate should closely scrutinize

such requests to ensure that the request does not extend beyond counseling

to providing religious services.

(6) Medical Treatment

DOD personnel may be authorized to provide medical treatment to the

victims of disasters in certain circumstances. If a disaster strikes at or near

an installation, AR 40-3 provides that patients who are ineligible for military

health care may receive medical treatment if the care provider determines

that an emergency exists. Although not specifically addressed in the latest

revision of AR 40-3, previous guidance provided that rendering emergency

care to ineligible patients must comply with the underlying policies of AR

500-60.97 AR 500-60 provides that DA will support FEMA and other

federal agencies by providing aid to state and local governments in the event

of emergencies or major disasters.98 Additionally, AR 500-60 provides

specific guidance on funding and reimbursement.99

 

96 During the 1996 Fort Drum ice storm, installation officials received a request from local officials to

provide a generator to an area church for Sunday religious services.

97 U.S. DEP'T OF ARMY REG. 40-3, MEDICAL, DENTAL, AND VETERINARY CARE, para . 13.3 a (2) (30 July

1999)[hereinafter AR 40-3].

98 AR 500-60, supra note 49, at para. 1-5.

99 Id. at para. 5-2.
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The Stafford Act also provides specific authority for federal agencies

to render medical assistance to meet immediate threats to life resulting from

a major disaster.100 Emergency medical care and emergency mass care are

authorized forms of assistance under this authority.101

(7) Donated Goods

 In the aftermath of a disaster, there is usually an outpouring of donated

goods. From the outset, a judge advocate should be prepared for the

operational and legal challenges that will arise. DOD is frequently tasked

with receipt, storage, and distribution of these goods. This mission is more

appropriately performed by non-governmental organizations; DOD should

only carry out this mission when directed by FEMA.102

Generally, all donated goods should be treated as property of the state.

For example, during Operation Provide Refuge, at Ft. Dix, New Jersey, the

National Guard, in state status, ran the warehouse for donated goods. This

arrangement avoided issues of federal receipt, handling, and distribution of

goods, and simplified post-operation disposition. Early involvement of JAs

in the planning process allowed this issue to be addressed before it became a

problem.

Judge advocates should be aware of memoranda of understanding

(MOU) between FEMA and state and local civilian authorities. These MOU

may clearly establish the responsibilities of the parties and address control

and ownership, security, liability, and accounting, operating, disposal and

transition procedures.103 FEMA should appoint a donation coordinator to

manage donated goods. The JA should contact the donation coordinator to

resolve these issues.

(8) Loan or Lease of Equipment

If a disaster strikes at or near an installation there may be requests for

the loan or lease of military equipment by local and state civil authorities. If

 

100 42 U.S.C.S. § 5170b. (LEXIS 2000).

101 Id. at § 5170b (a)(3)(B).

102 FRP, supra note 64, at DM-1.

103 Domestic Disaster Assistance: A Primer For Attorneys (1992), on file with CLAMO.
DISASTER ASSISTANCE

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there has been a Presidential declaration of a major disaster, requests for the

use of equipment must be made through FEMA. FEMA then will decide

whether to request DOD assets. Commanders should be aware that state and

local authorities might submit direct requests in an attempt to circumvent

FEMA, either as a matter of convenience or following a denial of support by

FEMA. If there is no Presidential declaration, there are a variety of types of

assistance a commander may provide under the commanders' immediate

response authority in DODD 3025.1.

Loan or lease of Army equipment is discussed in AR 700-131.104 This

regulation establishes the policies, procedures, approval authorities, and

accounting for the loan or lease of Army equipment to DOD, non-DOD

federal agencies, and non-federal civilian activities.105 See Appendix 2-2,

Loan and Lease of DOD Equipment. As previously mentioned, loan or lease

requests should be made through FEMA.106 A commander may bypass the

normal request and approval process where the disaster is of such a

magnitude that immediate action is necessary to save human life, prevent

human suffering, or prevent great property damage or destruction when time

does not permit prior approval from higher headquarters.107 If such action is

taken, the commander should report these emergency actions immediately in

accordance with the disaster assistance reporting requirements in AR 700-

131, Section 6-3.108 However, be aware that DODD 5525.15 reserves

approval authority to the Secretary of Defense for loan of certain equipment

to law enforcement officials.109

Accounting is critical in the loan or lease of equipment. Failure to

properly account for items loaned or leased will most certainly result in their

loss. Proper accounting procedures are thoroughly addressed in AR 700-

 

104 U.S. DEP’T OF ARMY, REG. 700-131, LOAN OR LEASE OF ARMY MATERIAL, (1 Sept. 1996)[hereinafter

AR 700-131].

105 Id.

106 Id. at para. 2-6a.

107 Id. at para. 2-12. However, this authority would most likely not justify the provision of certain

equipment where approval authority has been reserved at a high level. See note 109, infra.

108 Id.

109 This became an issue when the Washington National Guard, operating in state status, requested that the

local installation commander supply riot control agents. The local commander did not have authority to

approve this request. "Immediate response" authority would not permit a commander to circumvent this

reservation of authority.
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131, Chapter 3.110 Additionally, a sample agreement for the loan of U.S.

Army materiel is contained in the regulation.

(9) Debris Removal

The removal of debris, especially on roadways, in the wake of a

disaster is an essential part of the assistance mission. Debris removal is

necessary in order to facilitate the movement of personnel and supplies

responding to the disaster and it is one of the first steps in restoring an

affected area. Removal of debris from private property creates difficult

issues which are discussed below.

(a) Absent a Presidential Declaration

In this situation, a commander may authorize “emergency clearance of

debris, rubble, and explosive ordnance from public facilities and other areas

to permit rescue or movement of people and restoration of essential

services” outside the installation.111 The scope of debris removal during this

period, prior to a Presidential declaration, should be limited to actions

necessary to save lives, lessen human suffering or prevent great property

damage. A judge advocate must ensure that the missions requested do not

exceed the scope of the “immediate response" authority requirements.

(b) With a Presidential Disaster Declaration

If there has been a Presidential disaster declaration, debris removal

outside the installation should be undertaken only pursuant to a RFA. The

Stafford Act requires state and local governments to arrange for an

unconditional authorization prior to any agency of the federal government

removing debris from public and private property.112 Additionally, debris

should not be removed from private property unless absolutely necessary. If

the debris removal from private property must occur, the state or local

government must agree to indemnify the federal government against claims

resulting from the removal.113

 

110 AR 700-131, supra note 104, at para. 3-1.

111 DODD 3025.1, supra note 24, at page 9.

112 42 U.S.C.S § 5173 (b)(LEXIS 2000).

113 Id.
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Before a commander authorizes the removal of debris on private

lands, the commander must consider potential claims issues. These issues

include claims by residents that the removal was not authorized and

assertions by private debris removal contractors that the federal government

has exceeded its emergency authority and is infringing on its business. If a

commander decides to provide debris removal on private lands, JAs should

ensure that DOD personnel obtain a release from the landowner to minimize

potential liability.

Judge advocates should also be aware of environmental constraints.

Most environmental statutes remain in effect during disaster assistance

missions. Clean air permits may be required for burning debris and

temporary landfill permits may be required for disposing of debris.

Hazardous waste rules also apply. See sub-section 4. Environmental Issues,

above.

(10) Volunteers

In the aftermath of a disaster, a large number of people will volunteer

to provide disaster relief assistance. Generally, the U.S. Government is

prohibited from accepting volunteer services.114 There are, however, some

exceptions to this general rule. Voluntary services may be accepted for

“emergencies involving the safety of human life or protection of

property.”115 Additionally, under the Stafford Act, the President may utilize

both personnel and facilities of private disaster assistance organizations and

coordinate the use of voluntary disaster relief assistance.116

Judge advocates should be cognizant of certain issues that may arise

with accepting volunteer assistance. Probably the most significant is

potential liability under the Federal Tort Claims Act, discussed more

extensively in the next section. If civilian volunteers are injured due to the

acts or omissions of DOD personnel they may be able to file a claim.

Liability may increase for DOD if military personnel are “directing” these

 

114 31 U.S.C. §1342 (LEXIS 2000).

115 Id.

116 42 U.S.C. §§ 5152 (a) and 5170 (a)(2) (LEXIS 2000).
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volunteers. The best course is to refer civilian volunteers to volunteer

agencies operating in the disaster relief area.

(11) Claims

(a) Claims generally

The claims system will almost always be one of the major focal points

in a disaster relief mission. The claims program promotes the morale of

service members and their families and establishes and maintains positive

relations with citizens affected by the disaster. Claimants during disasters

fall primarily into two groups: service members and their families affected

by the disaster; or members of the public at large that have sustained damage

as a result of U.S. forces' actions while conducting disaster relief operations.

Regardless of category, prompt and fair processing of claims is

essential to a successful mission. For a deploying judge advocate, early

coordination with the SJA office providing area claims support is essential.

See Appendix 4-7, Area Claims Offices. Additionally, the U.S. Army

Claims Service, Disaster Claims Handbook, is an invaluable resource in

handling disaster claims.117 This Handbook is available through the U.S.

Army Claims Service.

(b) Applicable Statutes

Judge advocates should be familiar with the two primary claims

statutes applicable during disaster assistance missions. The Federal Tort

Claims Act (FTCA) and the Personnel Claims Act (PCA) will be utilized the

most during disaster assistance missions. Although both statutes are

applicable, the location of the disaster and individuals affected will dictate

the types of claims that are filed.

(i) Federal Tort Claims Act

The Federal Tort Claims Act provides a limited waiver of sovereign

immunity to compensable eligible claimants for damage to property,

personal injury, or death based on negligent or wrongful acts or omissions of

 

117 See DISASTER CLAIMS HANDBOOK, U.S. Army Claims Service (Nov. 1998).
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service members or federal civilian employees acting within the scope of

employment.118 This statute is often applied in situations where DOD

personnel cause damage, such as through vehicle accidents, to persons or

property during assistance missions off the installation.

(ii) Personnel Claims Act

The Personnel Claims Act applies worldwide and provides limited

protection to service members and certain civilian employees for loss or

damage to personal property that occurs incident to service.119 Items

typically compensable include damage to personal property in government

quarters, clothing and equipment lost or damaged while performing military

duties and personal items and equipment lost or damaged during

transportation.120

(c) Processing Claims on the Installation

If a disaster strikes a military installation, establishing a responsive

system for processing the claims of service members and their dependents is

critical. This may require the installation to expand its current claims

operation or create a special claims processing office. The head of an area

claims office (typically the installation staff judge advocate) may designate a

special claims processing office.121 A prerequisite to establishing and

operating this special claims office is concurrence from the Army Claims

Service Commander.122

Following a disaster on a military installation, many claims offices

take an aggressive approach to processing claims. Some send

representatives into the housing areas with cameras, post notices in barracks,

and conduct other types of outreach to ensure soldiers' claims are filed in a

timely manner and processed expeditiously.

 

118 28 U.S.C.A. §§ 2671-2680 (1994).

119 31 U.S.C.A. § 3721 (1983).

120 Id.

121 U.S. DEP’T OF THE ARMY, REG. 27-20, CLAIMS, para. 1-17c(4)(a)(31 Dec. 1997).

122 Id.
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(d) Processing Claims while Deployed

Judge advocates serving with a force deployed to a disaster site should

be prepared to handle claims under both the PCA and FTCA. Prior to

deployment, the judge advocate must have a system for receiving and

adjudicating these claims. The deploying judge advocate should determine

which SJA office has area claims responsibility over the affected area and

establish liaison with that office in order to facilitate claims processing.

Troops deployed to provide disaster assistance will certainly

encounter claimants. This will increase throughout the mission. Depending

on the size of the deployed force, judge advocates may want to assume

responsibility for supervising claims investigations. Each unit should

appoint a unit claims officer. These officers should conduct the initial

investigation and forward their reports for processing. Units must be

instructed what actions to take if they are involved in an accident that might

result in a claim or if they are approached by a resident seeking to file a

claim.

(e) Additional Issues

(i) Methods of Payment

A disaster on or near an installation may alter traditional methods of

payment.123 In order to ensure timely payment, judge advocates and finance

personnel may find it necessary to pay claimants in cash. If so, close

coordination with the Defense Finance and Accounting Service is required.

(ii) Mobile Claims Teams

In order to provide timely claims service, the installation SJA office

may create mobile claims teams. These teams should consist of a judge

advocate, a claims adjudicator, military police escorts, and finance personnel

(if making payments in cash). These teams can deploy to the various

government owned or leased housing areas and provide the residents timely

claims support. Ensure that rules for the use of force are clear before

beginning a claims mission outside the installation.

 

123 During the 1996 Fort Drum ice storm, area banks could not open and ATM’s were rendered inoperable

so paying claims in cash was the only method available.
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(iii) Multi-Service Claims

The installation claims office may received claims from members of

other branches of service. AR 27-20 does not allow for payment of

personnel claims of other services members. However, in extraordinary

circumstances a judge advocate may obtain an exception from the United

States Army Claims Service.

(12) Gifts to DOD Personnel

During the disaster assistance mission, individuals or organizations

may want to give DOD personnel gifts, reduced-cost services, and other

gratuities as a token of appreciation.124 Judge advocates will find primary

guidance on the acceptance of gifts by DOD personnel in Section 2 of the

Joint Ethics Regulation (JER).125 A judge advocate should start the gift

analysis by determining the source of the gift. Although there are four

potential sources of gifts, during disaster assistance missions judge

advocates should be primarily concerned with gifts from outside sources.

The general rule is that DOD personnel may not solicit or accept,

directly or indirectly, gifts from a prohibited source or gifts given because of

the employee’s official position.126 The term "gift" is broadly defined and

includes almost anything of monetary value.127 The primary exception to the

general rule is that DOD personnel may accept unsolicited gifts with a

market value of $20.00 or less per source, per occasion, provided that the

total value of the gifts received from that one source does not exceed $50.00

in a calendar year.128

Similarly, individuals or organizations may want to provide gifts to

specific units or branches of service as an expression of gratitude for

providing disaster assistance. If this is the case, in addition to analyzing the

 

124 Miami Dolphin football tickets and prime rib dinners from a local restaurant were offered to DOD

personnel deployed in support of Hurricane Andrew.

125 U.S DEP’T OF DEFENSE, REG. 5500.7-R, JOINT ETHICS REGULATION, para. 2 (30 Aug. 1993)

[hereinafter JER].

126 Id. at p. 20-6.

127 Id.

128 Id.
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acceptance of a gift under the JER, judge advocates should also consult their

specific service regulations to determine if a unit or branch of service, as

opposed to an individual, may accept a gift.129 These regulations generally

provide more flexibility and may be a mechanism for branches of service to

accept gifts on behalf of their personnel. Finally, there is authority for

nonappropriated fund instrumentalities to accept gifts in the best interest of

the Army.130

(13) PX Issues

The post commissary, post exchange (PX), and shopette may be

temporarily opened to DOD civilians. This requires approval from the

Defense Commissary Agency. Commanders are likely to receive a wide

variety of requests from non-DOD personnel for commissary, PX, and

shopette access. Post exchange and shopette access is governed by

Army/Air Force Exchange Service (AAFES) Employee Operating Procedure

1-4.131 The AAFES manager, in coordination with the installation

Commanding General, may request authority to expand authorized

patronage. Other federal employees are not permitted to use a PX, unless a

specific exception is granted.

(14) Firefighting Support

DOD forces may be asked to respond to fires while providing disaster

assistance. Commanders may provide firefighting assistance under the

immediate response authority to prevent human suffering, to save lives, or to

mitigate great property damage when time does not permit prior approval

from higher headquarters.132 Generally, however, firefighting support falls

 

129 See U.S. DEP’T OF ARMY, REG. 1-100, GIFTS AND DONATIONS (15 Nov. 1983) [hereinafter AR 1-100]

and U.S. DEP’T OF ARMY, REG. 1-101, GIFTS FOR DISTRIBUTION TO INDIVIDUALS (1 May 1981)

[hereinafter AR 1-101].

130 U.S. DEP’T OF ARMY, REG. 215-1, MORALE, WELFARE, AND RECREATION ACTIVITIES, para. 7-39 (25

Oct. 1995) [hereinafter AR 215-1]. See also U.S. DEP’T OF NAVY, SECRETARY OF THE NAVY INSTR.

1700.12, OPERATION OF MORALE, WELFARE AND RECREATION ACTIVITIES (17 Sept. 1997); U.S. DEP’T OF

AIR FORCE, INSTR. 34-262, AIR FORCE COMMUNITY SERVICE PROGRAMS (1 Mar. 1999); U.S. MARINE

CORPS, ORDER 1700.27, MARINE CORPS MWR POLICY MANUAL, (CHANGE 1) (11 Feb. 1993).

131 ARMY/AIR FORCE EXCHANGE SERVICE EMPLOYEE OPERATING PROCEDURE 1-4, PATRONAGE, CONTROL,

AND IDENTIFICATION, para. 1-7, Emergency Sales to Groups/Individuals Not Usually Authorized.

132 DODD 3025.1, supra note 22, at E.2.1.18.
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under separate authorities, which are discussed in Chapter 8, Miscellaneous

Domestic Support Operations.

(15) Interagency MOUs/MOAs

When military forces conduct disaster assistance operations, they

work with a variety of governmental, non-governmental, and private

voluntary organizations they do not habitually work with. These interagency

operations are critical to the success of the mission, and military units should

work closely with other agencies conducting relief support in the area.

However, judge advocates should carefully review any proposed

memorandum of understanding (MOU) or memorandum of agreement

(MOA) with these agencies. Local commanders may not have authority to

sign such agreements, and may enter into unauthorized arrangements.

"Unkept promises" degrade relationships between agencies. MOUs/MOAs

should commit only to actions over which the commander exercises

approval authority unless the agreement contains a stipulation that the action

may only be performed after receiving proper approval. Judge advocates

should consult their legal technical channel anytime such agreements are

proposed.

C. NATIONAL GUARD AND RESERVE COMPONENT RESPONSE

Historically, National Guard (NG) units, under the control of state

governors and their respective Adjutants General (TAGs), are the

primary military responders in emergencies. State governors are

empowered by the U.S. Constitution and each respective state

constitution to execute the laws of the state and to command the State’s

NG when serving in state status.133 Governors are also responsible for

issuing Executive Orders declaring “states of emergency” and ensuring

that state agencies plan for actions in the event of a disaster. Once a

disaster occurs, a governor determines if local government requests for

assistance should be honored. If appropriate, a governor declares a state

of emergency, activates the state response plan, and may call up the

state's NG. The governor gives the NG its mission and determines when

the NG forces can be withdrawn. NG personnel will normally respond

 

133 U.S. DEP’T OF ARMY, NATIONAL GUARD BUREAU REG. 500-1, MILITARY SUPPORT TO CIVIL

AUTHORITIES, para. 4-1 (1 Feb. 1996)[hereinafter NGR 500-1]. See supra Chapter 10, Reserve

Components - Special Issues, for a discussion of National Guard and Reserve Status.
DOPLAW HANDBOOK

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to domestic emergencies in state active duty (SAD) status, under the

control of the governor of the affected state. See Chapter 10, Reserve

Components - Special Issues. The NG, while in SAD status, has the

primary responsibility for providing initial military support. When the

NG is not in Title 10 status, the governor:

• Is commander-in-chief of the NG units;134

• Has authority to use the NG IAW state law:

• Exercises command through the state Adjutant General.

If a disaster exhausts state resources, a governor may petition the

President for federal assistance. However, numerous states have entered

into mutual assistance compacts, whereby a requesting state may receive the

assistance of NG units from another state. These are commonly referred to

as "interstate compacts". Five general humanitarian compacts are in place:

• Mutual Aide Compact (1952), signed by: Pennsylvania, New York, New

Jersey;

• Southwest Governors Compact (Amended to include NG), signed by

Arizona, California, Colorado, Nevada, New Mexico, Utah;

• Pacific Northwest Emergency Management Arrangement (1996), signed

by Alaska, Idaho, Oregon, Washington, British Columbia, Yukon

Territory;

• Southern Governors Compact (SREMAC) (1993), signed by Alabama,

Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland,

Mississippi, Missouri, North Carolina, Oklahoma, Puerto Rico, South

Carolina, Tennessee, Texas, Virginia, U.S. Virgin Islands, West Virginia;

• Emergency Management Assistance Compact (EMAC) (1999), signed by

Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa,

Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi,

Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina,

North Dakota, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island,

South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West

Virginia.

The Southern Governors Compact was originally named the

“Southern Regional Emergency Management Assistance Compact”

 

134 Id. at para. 1-4.
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(SREMAC). The SREMAC was signed in August 1993 by 19 southern

governors and created the vehicle for a single national compact. The

SREMAC was amended in 1995 and is now referred to as the Emergency

Management Assistance Compact (EMAC). See Appendix 5-8, EMAC. The

104th Congress approved EMAC for national implementation; no further

congressional action is required. Membership in the EMAC is open to any

state or territory. Membership in EMAC requires individual state enabling

legislation.

These compacts constitute a legal agreement between two or more

states. They may be general or specific in nature. The intent of the

compacts is to expedite interstate utilization of emergency response assets.

Benefits of the compacts are:

• They resolve the fiscal and legal issues of crossing state lines;

• They place responding assets under operational control of the requesting

governor;

• They encourage deliberate planning and coordination between states;

• They provide assets for state personnel/equipment shortfalls;

• Some cross-state support is reimbursable;

• The requesting state indemnifies the supporting state.

The use of NG forces across state lines has never been tested in court.

Reserve component (RC) units can contribute substantial manpower

and equipment, as well as unique knowledge of the geographic area affected

and its communities. Engineer, medical, and signal units are especially

capable of providing vital resources and services. Certain unique units, such

as well-drilling detachments, only exist in the RC. Moreover, some key

skills, such as civil affairs, reside predominately in the RC.

Title 10, U.S.C., §§ 12301, et seq., govern the use of reserve

components (RC). Sections 12301, 12302 and 12304 appear to provide a

basis for using reserve component (RC) personnel to respond to natural

disasters. However, Section 12304 contains a specific prohibition against

ordering to active duty RC units or members for disasters, accidents, or

catastrophes, except for incidents involving weapons of mass destruction

(WMD).135 The National Guard Bureau has taken the position that NG

 

135 10 U.S.C.A. § 12304 (1998).
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personnel should be used for MSCA operations in SAD status, not Title 10

or Title 32. See Appendix 5-9, Status of National Guard.

RC units and personnel already in Title 10 status, Title 32 status, or in

SAD status may be used under the inherent authority of their commander to

provide emergency response to disasters in order to prevent death, serious

injury, or wide-spread property damage. This “emergency response”

authority may not be used to order reserve component personnel not already

in federal duty status to perform disaster relief missions, and it does not

include any “inherent” or other authority to order reserve personnel to active

duty for such purposes. RC units and members already on active duty may

be utilized for domestic missions on the same basis as regular army units and

personnel.
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CHAPTER 6.

CONSEQUENCE MANAGEMENT

KEY REFERENCES:

• 50 U.S.C. § 2301-2367 - The Defense Against Weapons of Mass

Destruction Act

• PDD-39 - U.S. Policy on Counterterrorism

• PDD-62 - Protection Against Unconventional Threats to the Homeland

and Americans Overseas

• DEPSECDEF Memo of 28 March 2001 - Interim Policy Implementing

the Draft DOD Directive on Consequence Management Support to Civil

Authorities for Domestic Chemical, Biological, Radiological, Nuclear,

and High Yield Explosive (CBRNE) Incidents

• Interim DODD dated March 28, 2001 - Department of Defense

Consequence Management Support to Domestic Incidents Involving

Chemical, Biological, Radiological, Nuclear and High Yield Explosives

(CBRNE-CM)

A. INTRODUCTION

Increased concern about terrorist attacks within the U.S., spurred by

events like the Oklahoma City bombing and the bombing of the World

Trade Center in New York, has led to a developing concept of homeland

security. A variety of terms, including consequence management (CM),

weapons of mass destruction (WMD), domestic preparedness, and counterterrorism relate to this emerging area. The current, interim policy uses the

term "CBRNE," for "chemical, biological, radiological, nuclear, and high

yield explosive" incidents.

The Deputy Secretary of Defense issued an interim policy on CBRNE

on 28 March 2001 "to ensure that the Department has a clear policy on

Department of Defense (DOD) support in a domestic CBRNE incident."

This interim policy is scheduled to expire in late June 2001.
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This chapter offers an introduction to this emerging area and a

snapshot of current policy. As policy in this area is evolving rapidly, judge

advocates faced with issues in this area should seek current policy guidance.

B. THE EVOLUTION OF FEDERAL CONSEQUENCE MANAGEMENT

1. Presidential Decision Documents

a. PDD-39, U.S. Policy on Counterterrorism

The President issued PDD-39, U.S. Policy on Counterterrorism, on 21

June 1995.1

 This policy calls upon all federal departments and agencies to

reduce vulnerability to terrorism and develop capabilities to “manage the

consequences of terrorist use of nuclear, biological and chemical (NBC)

weapons, including those of mass destruction.”2

 Appendix 6-1 contains an

unclassified abstract of PDD-39.

Figure 6-1, PDD-39 Responsibilities

 

1

 PRESIDENTIAL DECISION DIR. 39, U.S. POLICY ON COUNTERTERRORISM (21 June 1995)(classified

Secret)[hereinafter PDD-39]. See unclassified abstract of PDD-39 by FEMA at Appendix 6-1.

2 Id.

PDD-39 Responsibilities

FBI

Incident

Contingency Plan

FEMA

Federal

Response Plan

FEMA - Consequence Management

FBI - Crisis Management

National Security

Council (NSC)

President
CONSEQUENCE MANAGEMENT

125

PDD-39 requires the establishment of a rapidly deployable

interagency Domestic Emergency Support Team (DEST) to provide onscene assistance in domestic emergencies.3

 The Federal Emergency

Management Agency (FEMA) was directed to ensure that both the Federal

Response Plan (FRP) and state response plans are adequate to meet CM

requirements. The Directive gave FEMA the Lead Federal Agency (LFA)

role for CM, both in Washington, D.C. and on the scene.4

 The Directive

gave the Federal Bureau of Investigation (FBI) the LFA role for contingency

planning. See Figure 6-2, below.

b. PDD-62, Protection Against Unconventional Threats

Presidential Decision Directive-62, Protection Against

Unconventional Threats to the Homeland and American Overseas, issued 22

May 1998, created the National Coordinator for Security, Infrastructure

Protection and Counter-Terrorism. Citing increased risk that adversaries

will “resort to terror instead of conventional military attack,”5

 PDD-62

reinforced and clarified the role of U.S. agencies involved in combating

terrorism and moved toward a “new level of integration in the fight against

terror” through the National Coordinator.6

 The White House Fact Sheet on

PDD-62 is at Appendix 6-2.

2. The Defense Against Weapons of Mass Destruction Act

Congress passed The Defense Against Weapons of Mass Destruction

Act, on 23 September 1996.7

 The Act found that the U.S. lacked

“...adequate planning and countermeasures to address the threat of nuclear,

radiological, biological, and chemical terrorism....”8

 The Act also found

that “State and local emergency response personnel are not adequately

 

3 Id. PDD-39 also created a Foreign Emergency Support Team (FEST) for foreign incidents.

4 Id.

5

 PRESIDENTIAL DECISION DIR. 62, PROTECTION AGAINST UNCONVENTIONAL THREATS TO THE HOMELAND

AND AMERICANS OVERSEAS (22 May 1998), available at http://www.fas.org/irp/offdocs/pdd-62.htm and at

Appendix 6-2.

6 Id.

7

 50 U.S.C.A. §§ 2301-2367 (2000).

8 Id. at § 2301, para. 19.
DOPLAW HANDBOOK

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prepared or trained...” for these emergencies.9

 The Act gave the

Department of Defense significant new responsibilities in this area.

The Act requires the President to take immediate action to:

• Enhance the capability of the Federal Government to prevent and

respond to terrorist incidents involving weapons of mass

destruction; and

• Provide enhanced support to improve the capabilities of state and

local emergency response agencies to prevent and respond to such

incidents at both the national and the local level.10

The Act requires the Secretary of Defense to designate an official within the

Department of Defense as the executive agent for

• The coordination of Department of Defense assistance to federal, state,

and local officials in responding to threats involving biological or

chemical weapons or related materials or technologies, including

assistance in identifying, neutralizing, dismantling, and disposing of

biological and chemical weapons and related materials and technologies;

and

• The coordination of Department of Defense assistance to the Department

of Energy in carrying out that department's responsibilities under...[the

Act].11

The Act also requires the Secretary of Defense to

develop and maintain at least one domestic terrorism rapid

response team” which must be “capable of aiding Federal,

State, and local officials in the detection, neutralization,

containment, dismantlement, and disposal of weapons of mass

 

9 Id. at §2301, para. 21.

10 Id. at § 2311.

11 Id. at § 2312. The Act also required the Department of Defense to “carry out a program to provide

civilian personnel of Federal, State, and local agencies with training and expert advice regarding

emergency responses....” Id. The Act permitted the President to “designate the head of an agency other

than the Department of Defense to assume the responsibility for carrying out the Section 2312 program on

or after October 1, 1999, and relieve the Secretary of Defense of that responsibility upon the assumption of

the responsibility by the designated official.” Id.
CONSEQUENCE MANAGEMENT

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destruction containing chemical, biological, or related

materials.12

The Act provided, however, that

Assistance provided by the Department of Defense to law

enforcement agencies under this section shall be provided under

the authority of, and subject to the restrictions provided in,

chapter 18 of title 10, United States Code [the PCA].13

The Act defines a weapon of mass destruction (WMD) as

any weapon or device that is intended, or has the capability, to

cause death or serious bodily injury to a significant number of

people through the release, dissemination, or impact of (A)

toxic or poisonous chemicals or their precursors; (B) a disease

organism; or (C) radiation or radioactivity.14

The Defense Against Weapons of Mass Destruction Act also gave the

Secretary of Defense additional authority to respond to domestic incidents.

The Secretary of Defense, upon the request of the Attorney

General, may provide assistance in support of Department of

Justice activities relating to the enforcement of section 175 or

2332c of title 18 during an emergency situation involving a

biological or chemical weapon of mass destruction. Department

of Defense resources, including personnel of the Department of

Defense, may be used to provide such assistance if—

• The Secretary of Defense and the Attorney General jointly

determine that an emergency situation exists; and

• The Secretary of Defense determines that the provision of such

assistance will not adversely affect the military preparedness of the

United States.15

 

12 Id. at § 2314.

13 Id. at § 2312.

14 Id. at § 2302.

15 10 U.S.C.A. § 382(a) (1998).
DOPLAW HANDBOOK

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In this case, “emergency situation involving a biological or chemical weapon

of mass destruction” was defined as a circumstance involving a biological or

chemical weapon of mass destruction:

• That poses a serious threat to the interests of the United States; and

• In which--

! civilian expertise and capabilities are not readily available to

provide the required assistance to counter the threat

immediately posed by the weapon involved;

! special capabilities and expertise of the Department of Defense

are necessary and critical to counter the threat posed by the

weapon involved; and

! enforcement of section 175 or 2332c of title 18 would be

seriously impaired if the Department of Defense assistance

were not provided.16

This Section gives the Secretary of Defense and the Attorney General the

authority to jointly promulgate regulations concerning the type of assistance

to be provided, with the limitation that the regulations may not authorize:

• Arrest;

• Any direct participation in conducting a search for or seizure of

evidence related to a violation of section 175 or 2332c of title 18;

• Any direct participation in the collection of intelligence for law

enforcement purposes.17

The actions above may be taken only where necessary for the immediate

protection of human life when civilian law enforcement officials are not

capable of taking the action, or where otherwise authorized under applicable

law.

3. Federal Response Plan Terrorism Incident Annex

Published in April 1999, the Terrorism Incident Annex to the Federal

Response Plan (FRP) ensures that the FRP is adequate to respond to the

 

16 Id. at § 382(b).

17 Id. at § 382(d).
CONSEQUENCE MANAGEMENT

129

consequences of a terrorist event within the U.S.18 The Annex distinguishes

between Crisis Management and Consequence Management. Largely a law

enforcement function, Crisis Management "refers to measures to identify,

acquire, and plan the use of resources needed to anticipate, prevent, and/or

resolve a threat or act of terrorism." The FBI is the LFA for Crisis

Management. Consequence Management "refers to measures to protect

public health and safety, restore essential government services, and provide

emergency relief to governments, businesses, and individuals affected by the

consequences of terrorism." State and local governments exercise primary

authority to respond to the consequences of terrorism; the Federal

Government provides assistance as required. FEMA is the LFA for

Consequence Management. 

Figure 6-2, Crisis and Consequence Management19

 

18 FEDERAL EMERGENCY MANAGEMENT AGENCY, FEDERAL RESPONSE PLAN (FRP) TERRORISM INCIDENT

ANNEX (Apr. 1992)[hereinafter FRP], available from HQ, FEMA, 500 C Street SW, Washington, DC

20472 or available at http://www.fema.gov/r-n-r/frp/.

19 “Military Support for Response to Attacks Using Weapons of Mass Destruction,” LTC Jay Steinmetz,

Program Director, Consequence Management Program Integration Office, slide 15, at

http://www.disasters.org/eplo/briefings/steinmetz/sld015.htm (last visited 16 Apr. 2001).

CRISIS MANAGEMENT

CONSEQUENCE MANAGEMENT

FBI

FEMA

LAW

ENFORCEMENT

THREAT 

ASSESSMENT

 AND CONSULTATION

NBC / WMD 

TECHNICAL SUPPORT

FOLLOW-ON ASSETS

TO SUPPORT THE RESPONSE TO 

CONSEQUENCES ON LIVES AND PROPERTY

Crisis and Consequence Management
DOPLAW HANDBOOK

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Under the terrorism incident response annex, DOD will activate

technical operations capabilities to support the Federal response to threats or

acts of WMD terrorism and will coordinate military operations within the

United States with the appropriate civilian lead agencies for technical

operations.

4. Interim DOD Policy on CBRNE-CM

On March 28, 2001, Deputy Secretary of Defense Paul Wolfowitz

issued Interim Policy Implementing the Draft DOD Directive on

Consequence Management Support to Civil Authorities for Domestic

Chemical, Biological, Radiological, Nuclear, and High Yield Explosive

(CBRNE) Incidents. The March 28, 2001 memorandum is attached at

Appendix 6-3. Deputy Secretary of Defense Wolfowitz implemented the

Draft DOD Directive (DODD), Department of Defense Consequence

Management Support to Domestic Incidents Involving Chemical, Biological,

Radiological, Nuclear and High Yield Explosives (CBRNE-CM) [hereinafter

the Interim DODD] for a 90 day period. The Interim DODD is intended to

establish a clear DOD policy on DOD support to a domestic CBRNE

incident while final policy is staffed. The Interim DODD is attached at

Appendix 6-3. Unless extended, this interim policy will expire in late June

2001.

Chemical, Biological, Radiological, Nuclear, and High Yield

Explosive (CBRNE) incidents are defined as situations that may include

events prior to, during, and after an actual domestic CBRNE release. This

may also include the prepositioning of assets to deter the threat of a

release.20 CM is defined as "preparedness for dealing with, and responding

to, the consequences of an incident" involving CBRNE. CM activities

include measures to alleviate damage, loss of life, hardship or suffering

caused by an incident, and to protect public health and safety, restore

essential government services, and provide emergency relief to affected

governments, businesses and individuals.21

 

20 U.S. DEP’T OF DEFENSE, INTERIM DIR., DEPARTMENT OF DEFENSE CONSEQUENCE MANAGEMENT

SUPPORT TO DOMESTIC INCIDENTS INVOLVING CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR AND

HIGH YIELD EXPLOSIVES, para. E2.1.2 (28 Mar. 2001)(CBRNE-CM) [hereinafter CBRNE-CM].

21 Id. at para. E2.1.3.
CONSEQUENCE MANAGEMENT

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The policy establishes four overarching principles to guide DOD

responses to domestic CBRNE incidents:

• Civilian oversight and accountability "shall be unequivocal;"

• DOD domestic CM efforts will always be in support of a lead federal

agency;

• DOD domestic CM efforts will emphasize DOD roles and skills, such as

mass mobilization and logistical support; and

• Reserve component forces are the forward-deployed units for domestic

CM support, to the maximum extent possible.22

To strengthen our defenses against emerging, domestic CBRNE

threats, DOD is required to maintain an organizational structure that includes

both an operational capability and a clear civilian oversight mechanism.

This operational structure is defined as:

• Joint Task Force Civil Support (JTF-CS). A standing operational JTFCS will be maintained to meet the catastrophic nature of a domestic

CBRNE incident, which overwhelms state and local authorities. Its

principle purpose is to plan for and operationally integrate DOD support

to the lead federal agency.23

• The Assistant Secretary of Defense-Civil Support (ATSD(CS)). The

ATSD(CS) will serve as the civilian oversight mechanism for all DOD

CBRNE-CM activities.24

Local military commanders and responsible officials of other DOD

components retain immediate response authority under DODD 3025.1 when

immediate action is necessary to save lives, prevent human suffering, or

mitigate great property damage and time does not permit prior approval from

higher headquarters.25 Verbal requests for emergency support must be

followed by a written request.26

 

22 Id. at para. 4.1.

23 Id. at para. 4.2.1.

24 Id. at para. 4.2.2.

25 Id. at para. 4.5.1.1.

26 Id. at para. 4.5.1.2.
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When an immediate response is not required, the Secretary of Defense

will determine whether or not an incident involving the deliberate or

inadvertent release of CBRNE warrants "special management procedures

and channels."27 If special management procedures and channels are

warranted, the Secretary of Defense will be the approval authority for all

DOD CM support provided. In that case, the Secretary of the Army will

relinquish DOD Executive Agent authorities.28 The Secretary of Defense

will give guidance to the Chairman of the Joint Chiefs of Staff, and the Joint

Staff will translate the Secretary of Defense's guidance into military orders.29

The deployment of personnel in support of domestic CBRNE-CM special

management missions require deployment orders issued by the Chairman of

the Joint Chiefs of Staff and approved by the National Command

Authority.30

If the Secretary of Defense determines that special management

procedures and channels are not required, the Secretary of the Army will

exercise Executive Agent authority through normal Military Support to Civil

Authorities procedures under DODD 3025.1.

All requests by civil authorities for DOD domestic CM support will

be evaluated by DOD under the following criteria:

• Legality (compliance with law);

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

• Risk (safety of DOD forces);

• Cost (who pays; impact on DOD budget);

• Appropriateness (is the mission in the DOD interest); and

• Readiness (impact on DOD's ability to perform its primary mission).31

DOD personnel engaged in domestic CBRNE-CM efforts may only

be armed with the approval of the Secretary of Defense. Unit commanders

may deploy with weapons in secured containers only with CINC approval.

 

27 Id. at para. 4.5.2.

28 Id. at para. 4.5.2.1.

29 Id. at para. Id.

30 Id. at para. 4.10.

31 Id. at para. 4.5.2.3.
CONSEQUENCE MANAGEMENT

133

When units deploy with weapons, the CINC must notify the Secretary of

Defense and the Chairman of the Joint Chiefs of Staff.32

DOD domestic CBRNE-CM support must be reimbursed by the

requesting agency and requests should be accompanied by a fund cite and

funded order unless the request falls under one of three exceptions.33

Guidelines for processing requests are contained at Enclosure E of the

Interim DODD.

C. CBRNE RESPONDERS

1. Joint Task Force Civil Support

JTF-CS is a standing joint task force headquarters responsible for the

planning and execution of Military Assistance to Civil Authorities (MACA)

for Consequence Management of CBRNE incidents. Assigned to U.S. Joint

Forces Command and located at Fort Monroe, Virginia, JTF-CS began

operations on 1 October 1999. JTF-CS will always operate in support of a

lead federal agency and will not duplicate technical response capabilities

existing elsewhere within DOD.34

The FY 2002-2007 Defense Planning Guidance provides the

following instruction to JTF-CS:

JTF Civil Support at Joint Forces Command will plan and

integrate DOD’s support to the Federal Emergency

Management Agency for WMD events in CONUS. This

support will involve capabilities drawn from throughout the

Department, including detection, decontamination, medical and

logistics assets.

 

32 Id. at para. 4.7.

33 Id. at para. 4.4. When requested by FEMA pursuant to the Stafford Act, the provision of support shall

not be delayed pending the finalization of cost estimates. See id. at para. 4.4.1. When requested by the

Attorney General pursuant to Pub.L. No. 106-259 (2001) Section 1023 (reference (e)), contingent upon a

determination by the Secretary of Defense that DOD special capabilities and expertise are necessary and

critical, see id. para. 4.4.2. When requested by federal civil authorities on a non-reimbursable basis for

large scale key events such as exercises, domestically held international meetings involving several heads

of state, and major conventions, see id. para. 4.4.3.

34 U.S. ATLANTIC COMMAND, JOINT TASK FORCE – CIVIL SUPPORT IMPLEMENTATION PLAN (23 Sept. 1999)

(FOUO)(On file with the Center for Law and Military Operations).
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JTF-CS will conduct operations in five phases:

• Phase I – Situation Assessment and Preparation

• Phase II – Deployment

• Phase III – Assistance to Civil Authorities

• Phase IV – Transition to Civil Authorities

• Phase V – Redeployment

Figure 6-3, JTF-CS Command and Control

JTF-CS provides support to civilian agencies under the Stafford Act,

the Insurrection Act, Immediate Response Authority, and other statutory

authority, all of which are discussed elsewhere in this Handbook. The role

of JTF-CS is still evolving.

2. National Guard Weapons of Mass Destruction Civil Support Teams

In response to the Defense Against Weapons of Mass Destruction Act,

the Department of Defense created National Guard Rapid Assessment and

Initial Detection (RAID) teams to respond to incidents involving WMD.

The RAID teams were created within the National Guard because the

Joint Task Force-Civil Support 

Command and Control Structure

TF

Liaison

TF

MED

TF

LOG

TF

Aviation

Base

Support

Installation(s)

 Chain of Command

 Coordination

 TACON

 Chain of Command

 Coordination

 TACON

TF

Security

TF

Gnd Trans

TF

Geographic

TF

Engr

Subord

Task 

Forces

As 

Needed

TACON

IA

 JOC

CINC

JTF-CS

Commander

 DoD

WMD

Reach-back Labs

Disaster Field Office

SCO FCO DCO TAC Staff

Governor

EOC

TAG

All

RFAs
CONSEQUENCE MANAGEMENT

135

Secretary of Defense recognized that the National Guard is "'forward

deployed' for civil support."35 In October 1998, Congress authorized and

funded the first ten RAID teams. In January 2000, Secretary of Defense Bill

Cohen directed that an additional 17 teams be established and that the name

of the teams be changed to WMD-Civil Support Teams (WMD-CSTs).

The first 10 WMD-CSTs were developed in each of the 10 FEMA

regions, located in Colorado, California, Georgia, Illinois, Missouri,

Pennsylvania, Massachusetts, New York, Texas, and Washington. They are

designed to deploy rapidly to assist local first responders.36 Each WMDCST contains 22 full-time National Guard soldiers and airmen and consists

of five elements: command, operations, administrative/logistics, medical,

and survey.

The mission of the WMD-CSTs is to deploy to an area of operations

and:

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

• Advise the local incident commander and civilian responders; and

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

federal assets to help save lives, prevent human suffering, and mitigate

great property damage.

WMD-CSTs are to be specially equipped and trained. Special

equipment includes the Mobile Analytical Laboratory System (MALS)37 for

NBC detection and the Unified Command Suite (UCS) for

communications.38 WMD-CST capabilities are specifically designed to

complement civilian responders.39 Community and state emergency

management plans may directly incorporate WMD-CST capabilities.

 

35 U.S. Secretary of Defense Report to Congress pursuant to National Defense Authorization Act § 1036, 2

(24 Feb. 2000).

36 Id.

37 Id. at 3. MALS is based on system used by the Marine Corps' Chemical Biological Incident Response

Forces with enhanced biological detection capability.

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

command and control elements, and technical support assets.

39 Id. at 4.
DOPLAW HANDBOOK

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WMD-CSTs will operate under the command and control of the state

Governor and the Adjutant General. Individual team members serve in a

full-time, Title 32 National Guard status.40 If the teams are federalized

under Title 10, JTF-CS assumes operational control.41

WMD-CSTs assigned to one state are authorized to operate in another

state under one of the following:

• State-to-State Compacts

• State-to-State Memoranda of Agreement

• Activation under Title 10.42

3. Response Task Forces

DOD established Response Task Force (RTF) Headquarters within the

military components to support the Defense Coordinating Officer (DCO)

under the Federal Response Plan. See Chapter 5, Disaster Assistance, for a

discussion of the Federal Response Plan and the role of the DCO. Two RTF

headquarters were established within the Army within the Continental U.S.

Armies (CONUSAs): First Army (RTF-East) and Fifth Army (RTF-West).

Figure 6-4, Response Task Force Areas of Responsibility

 

40 Id. at 5.

41 Id.

42 Id. at 6. See supra Chapter 10, Reserve Components - Special Issues, for a discussion of interstate

compacts.

FIFTH ARMY

FIRST ARMY

RTF West

RTF East
CONSEQUENCE MANAGEMENT

137

RTF-East supports FEMA regions I – V (27 states) and the District of

Columbia. RTF-West supports FEMA regions VI – X (21 states). Each

RTF contains a Rapid Assessment Element (RAE) as well as reconnaissance

and decontamination elements. The WMD-CSTs are important components

of RTF plans. The Army RTFs request assets through FORSCOM. The

RTFs work closely with JFCOM and JTF-CS. The relationship between the

RTFs and JTF-CS is still being developed.

.
DOPLAW HANDBOOK

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139

CHAPTER 7.

MILITARY SUPPORT TO SPECIAL EVENTS

KEY REFERENCES:

• 10 U.S.C. § 2012 - Support and Services for Eligible Organizations and

Activities Outside the Department of Defense

• 10 U.S.C.§ 2554 - Provision of Support for Certain Sporting Events

• PDD 62 - Protection Against Unconventional Threats to the Homeland

and Americans Overseas

• DODD 1100.20 - Support and Services for Eligible Organizations and

Activities Outside the Department of Defense

• DODD 2000.15 - Support to Special Events

A. INTRODUCTION

The Department of Defense (DOD) supports a wide variety of special

events held within the United States. There are two general types of

support: support to designated special events under statutory authority and

community support as part of innovative readiness training (IRT).

Designated special events include Olympic Games, Presidential

Inaugurations, and international meetings. The IRT program allows

commanders to conduct training in the civilian community, but benefit to the

community must be incidental to the training.1

 IRT support must provide a

training benefit to the participating unit or individual.

B. DESIGNATED SPECIAL EVENTS

Title 10 of the United States Code § 2554 permits military support to

certain sporting events, such as the Olympics or World Cup soccer.2

 In

 

1

 Memorandum, Assistant Secretary of the Army (Manpower and Reserve Affairs), subject: Innovative

Readiness Training (IRT), Encl. 1 (28 Mar. 2000)[hereinafter IRT Policy].

2

 10 U.S.C.A. § 2554 (1998). ("Security and Safety Assistance. - At the request of a Federal, State, or local

government agency responsible for providing law enforcement services, security services, or safety

services, the Secretary of Defense may authorize the commander of a military installation or other facility

of the Department of Defense or the commander of a specified or unified combatant command to provide

assistance for the World Cup Soccer Games, the Goodwill Games, the Olympics, and any other civilian

sporting event in support of essential security and safety at such event, but only if the Attorney General

certifies that such assistance is necessary to meet essential security and safety needs.").
DOPLAW HANDBOOK

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addition to sporting events, other special events may be designated by the

Secretary of Defense for support.3

 Such support may be provided on a

reimbursable basis or may be funded by specific appropriations.4

Figure 7-1, DOD Support to Special Events5

1. Types of Events

a. Sporting Events

Support to certain sporting events is specifically authorized by 10

U.S.C. § 2554. Sporting events are planned programs of athletic

competition and related activities.6

 The authorizing legislation specifically

mentions the World Cup Soccer Games, the Goodwill Games and the

Olympics.7

 Other sporting events previously supported include the World

 

3

 U.S. DEP’T OF DEFENSE, DIR. 2000.15, SUPPORT TO SPECIAL EVENTS, para. 3.1 (21 Nov. 1994)

[hereinafter DODD 2000.15].

4 Id. at para. 4.4.

5

 Map produced by U.S. Army Forces Command at

http://freddie.forscom.army.mil/maca/images/map_se.gif (last visited 12 Apr. 2001).

6

 DODD 2000.15, supra note 3, at para. 4.4.

7

 10 U.S.C.A. §2554(a)(1998).
SPECIAL EVENTS

141

Alpine Ski Championships and the Special Olympics. Military forces

provided extensive support during the 1996 Olympic Games held in Atlanta,

Georgia.

U.S. Joint Forces Command (JFCOM) and U.S. Army Forces

Command (FORSCOM) are preparing to support the 2002 Olympic Games

in Utah.8

 The Commander in Chief (CINC) JFCOM formed Joint Task

Force-Olympics (JTF-O) on January 16, 2001.9

 Routine support approved

by the Secretary of the Army for this event include aviation,

communications, explosive ordnance disposal, physical security, and

temporary facilities.10 JTF-O has already received requests for assistance

from the U.S. Olympic Planning Command and the Salt Lake Olympic

Planning Committee.11

b. Non-athletic Events

The Secretary of Defense may also designate non-athletic events to

receive support. Non-athletic events include large events, such as the

World's Fairs and Universal Postal Union Congress.12 DOD may also

support designated "national special security events" when tasked to do so.

These events included the Democratic and Republican National Conventions

of 2000.

(1) Events Not Declared National Security Events

The Secretary of Defense may designate "non-athletic international or

national events to receive support."13 The International Monetary Fund and

 

8 See U.S. Forces Command, Slide Presentation, 2001 Winter Olympic Games, Joint Task Force-Olympics

FORSCOM Augmentation (22 Feb. 2001) at http://freddie.forscom.army.mil/maca/Olympics/JTFOaugmentation.ppt (last visited 12 Apr. 2001).

9

 Message, 181815Z Jan 01, Commander in Chief, Joint Forces Command, subject: USCINCJFCOM JTFOlympics Stand Up Announcement (18 Jan. 2001), available at

http://freddie.forscom.army.mil/maca/Olympics/j181815zjan01.doc (last visited 12 Apr. 2001).

10 Message 141555Z Mar 00, Commander in Chief, Joint Forces Command, subject: USCINCJFCOM 2000

XIX Olympics PLANORD Feedback (14 Mar. 2000), available at

http://freddie.forscom.army.mil/maca/Olympics/j141555zmar00.doc (last visited 12 Apr. 2001).

11 U.S. Forces Command, Slide Presentation, 2001 Winter Olympic Games, Requests for Assistance (22

Feb. 2001) at http://freddie.forscom.army.mil/maca/Olympics/Olympics%20RFAs.ppt (last visited 12 Apr.

2001).

12 DODD 2000.15, supra note 3, at para. 3.1.

13 Id.
DOPLAW HANDBOOK

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World Bank Group meeting of April 2000 was a non-athletic event approved

for support but not designated a national security event.14

(2) National Security Events

Presidential Decision Directive (PDD) 62 provides that events may be

designated as national special security events (NSSEs).

 15 The Attorney

General and the Secretary of the Treasury may designate an event as a

national special security event.16 The Secret Service is responsible for

security design, planning and implementation at NSSEs.17 Military assets

provided in support of NSSEs may include explosive ordnance disposal

(EOD) teams, technical escort units (TEU),18 and the US Marine Corps

Chemical/Biological Immediate Response Force (C/BIRF).19

DOD provided support to the NATO 50th Anniversary Summit, the

1999 visit to the U.S. by Pope John Paul II, and the World Trade

Organization (WTO) meeting held in Seattle in 1999.20 All three had been

designated NSSEs. Prior to the WTO conference, the CINCs were directed

to be prepared to provide support in the event of a request from the Lead

Federal Agency (LFA). The Washington National Guard conducted

activities pursuant to the Washington State Comprehensive Emergency

Management Plan.

 

14 U.S. Forces Command, Operational Briefing, International Monetary Fund and World Bank Group

Spring Meeting 11-17 April 2000 (14 Apr. 2000)(classified FOUO) at

http://freddie.forscom.army.mil/maca/Presentations/IMF.ppt (last visited 12 Apr. 2001).

15 PRESIDENTIAL DECISION DIR. 62, COMBATING TERRORISM (22 May 1998) (classified Secret)[hereinafter

PDD-62]. An unclassified abstract of PDD-62 is included at Appendix 6-2.

16 U.S. ATLANTIC COMMAND, JOINT TASK FORCE – CIVIL SUPPORT IMPLEMENTATION PLAN, para. 2.3.1 (23

Sept. 1999) (FOUO)(On file with the Center for Law and Military Operations).

17 U.S. Secret Service statement Before the House Committee on the Judiciary, Subcommittee on Crime (24

June 1999)(Brian L. Stafford, Director, U.S. Secret Service).

18 TEU teams are capable of detecting, rendering safe, and transporting chemical and biological devices.

19 USMC C/BIRF is capable of decontaminating persons affected by chemical or biological hazards.

20 Message, 180715Z Oct 99, Department of the Army, subject: World Trade Organization (WTO)

Ministerial Conference, (18 Oct. 1999) available at

http://freddie.forscom.army.mil/maca/Word/WTOMinisterialConf.doc (lasted visited 12 Apr. 2001).
SPECIAL EVENTS

143

2. Requests for Support

a. Processing Requests for Support

Requests for military support are made by the federal, state, or local

agency responsible for providing law enforcement, security, or safety

services for the event.21 Often, this means that local police or a FBI field

office requests the support. The Attorney General must then certify that the

specific categories of support are "necessary to meet essential security and

safety needs."22 Once a request is certified, the support is coordinated

through the Director of Military Support (DOMS). A 1997 Deputy

Secretary of Defense Memorandum authorizes the Secretary of the Army

(SECARMY) to oversee special events.23

b. Types of Support

In addition to security or safety based assistance, other types of

military support may be authorized.24 Other types of assistance may include

equipment, personnel, technical support, managerial advice or guidance.25

This "logistically focused" assistance is provided only to the extent that such

assistance cannot be reasonably provided by an outside source and such

assistance does not adversely affect military preparedness.26 Security or

safety related support has precedence over logistical assistance.27

c. Funding Support

Military support may be provided on a reimbursable or

nonreimbursable basis. Logistical and security support for international

sporting competitions may be paid, in part, from the support for international

sporting competitions (SISC) defense account.28 Organizations requesting

 

21 10 U.S.C.A. §2554(a)(1998).

22 Id.

23 See Generally, Director of Military Support, Special Events Branch, at

http://www.doms.pentagon.mil/special_events_branch.htm (last visited 12 Apr. 2001).

24 10 U.S.C.A. §2554(b).

25 DODD 2000.15, supra note 3, at para. 3.2.

26 10 U.S.C.A. §2554 (b)(1) & (2).

27 DODD 2000.15, supra note 3, at para. 4.3.

28 Public Law 104-208, div. A, title V, §5802, 110 Stat. 3009-522 (1996).
DOPLAW HANDBOOK

144

logistically focused assistance for other types of special events must agree to

reimburse DOD.29 Such assistance must be reimbursed in accordance with

applicable laws.30

C. INNOVATIVE READINESS TRAINING

The IRT Program is the only avenue for commanders to conduct

military training in the civilian community. IRT is conducted by combat

support units and individuals off base and within communities throughout

the U.S., its territories and possessions. These units and individuals hone

skills required by their mission essential task list (METL) while working in

partnership with the community in a manner that avoids competing with the

private sector.

The IRT program is designed to assist civilians in addressing civic

and community needs. While IRT supports civilian organizations, the

primary goal of IRT is to conduct valuable "hands-on" readiness training

while offering incidental benefit to the community. Secondary goals include

building unit and individual morale, generating positive public support for

the military and its capabilities, and enhancing recruiting and retention

efforts.

IRT projects include, but are not limited to, constructing rural roads,

providing medical and dental care to medically underserved communities,

and small building and warehouse construction or re-assembly. During

fiscal year 1999, the military supported approximately 210 IRT projects.

The program encourages participation by Active, Guard, and Reserve

resources. While Active components may conduct IRT programs, the

National Guard and Reserve elements primarily provide such support.

1. Background

The precursor to today's IRT Program was the 1992 Civil-Military

Cooperative Action Program.31 Under this program, projects were required

to benefit the community, but guidance did not require assessment of a

 

29 10 U.S.C.A. §2554 (b)(3).

30 10 U.S.C.A. § 377 (1998); U.S. DEP’T OF DEFENSE, REG. 7000.14-R, VOLUME 2, DEPART OF DEFENSE

FINANCIAL MANAGEMENT REGULATION (June 2000).

31 Pub. L. 102-484, div. A, title X, § 1081(b)(1), 106 Stat. 2515 (1992).
SPECIAL EVENTS

145

project’s training value. Instead, the assistance provided was required to be

consistent with a unit's military mission. In 1995, DOD created the

Directorate of Civil-Military Programs in the Office of the Assistant

Secretary of Defense for Reserve Affairs (OASD/RA). The Directorate is

primarily responsible for providing policy and program oversight for IRT

Programs. In 1996, the DOD Civil-Military Cooperative Action Program

was repealed and replaced with DOD Directive 1100.20, Support and

Services for Eligible Organizations and Activities Outside Department of

Defense.

32 This is the only authority for conducting activities within a

community in a training status. It does not apply to community relations

activities covered under DOD Directive 5410.19, Armed Forces Community

Relations or volunteer participation in a non-duty status. In response to a

1998 Government Accounting Office report, 33 DoD instituted more

stringent guidelines for determining the total project cost of IRT support and

ascertaining if IRT participation significantly increased training costs.34 See

Appendix 7-1 IRT Policy.

2. Innovative Readiness Training Procedures

Military units may provide support and services to certain eligible

organizations in the US, its territories and possessions, and the

Commonwealth of Puerto Rico.35 Such assistance must be provided

incidental to training or be otherwise authorized by law.36 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 services.37

 

32 Pub. L. 104-106, div. A, title V, § 571(a)(1), 110 Stat. 353 (1996).

33 GOVERNMENT ACCOUNTING OFFICE, REPORT, CIVIL MILITARY PROGRAMS: STRONGER OVERSIGHT OF

THE INNOVATIVE READINESS TRAINING PROGRAM NEEDED FOR BETTER COMPLIANCE (GAO Code

703219/OSD Case 1534) (12 Mar. 1998).

34 IRT Policy, supra note 1.

35 10 U.S.C.A. § 2012 (1998); U.S. DEP’T OF DEFENSE, DIR. 1100.20, SUPPORT AND SERVICES FOR

ELIGIBLE ORGANIZATIONS AND ACTIVITIES OUTSIDE THE DEPARTMENT OF DEFENSE (30 Jan. 1997)

[hereinafter DODD 1100.20].

36 10 U.S.C.A. § 2012 (a).

37 DODD 1100.20, supra note 35, at para. 4.2.
DOPLAW HANDBOOK

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a. Requests for Assistance

Requests for assistance must come from a "responsible official" of an

"eligible organization."38 A "responsible official" is "an individual

authorized to represent the organization or activity regarding the matter of

assistance to be provided."39 There are three categories of "eligible

organizations." Any federal, regional, state or local government entity is an

eligible organization.40 Eligible organizations also include youth and

charitable organizations as specified in 32 USC §508.41 Finally, an entity

can be approved as an eligible organization by the Secretary of Defense on a

case-by-case basis.42

The request for IRT assistance must specify that the requested

assistance is not reasonably available from a commercial entity.43 In

determining whether assistance from a commercial entity is "reasonably

available", it is permissible to consider whether the requesting organization

"would be able, financially or otherwise, to address the specific civic or

community need(s) without the assistance of the Armed Forces."44 If

commercial entity assistance is reasonably available, the requesting

individual must certify the commercial entity agrees to the provision of such

services by the military.45

b. IRT Program Assistance-Nature and Requirements

A requesting organization may request Innovative Readiness Training

assistance of a military unit or individual members. However, the requested

IRT assistance must meet three requirements. First, the requested IRT

assistance must be related to military training. In the case of a military unit,

the requested assistance must accomplish valid unit training requirements

 

38 10 U.S.C.A. § 2012 (c)(1).

39 DODD 1100.20, supra note 35, at para. 4.4.1.1.

40 10 U.S.C.A. § 2012(e)(1).

41 A list of the specified eligible organizations is provided in Chapter 7, Miscellaneous Domestic Support

Operations, Section E.1.

42 10 U.S.C.A. § 2012 (e)(3).

43 10 U.S.C.A. § 2012 (c)(2).

44 DODD 1100.20, supra note 35, at para. 4.4.1.2.

45 10 U.S.C.A. § 2012 (c)(2).
SPECIAL EVENTS

147

(there is an exception to this particular requirement discussed below).46 IRT

projects must support a units' wartime METL. In the case of assistance by

an individual military member, the requested assistance must involve tasks

directly related to the individual's military occupational specialty (MOS).47

Second, the provision of the requested IRT assistance cannot adversely

affect the quality of training or otherwise interfere with a unit or its

members' ability to perform military functions.48 Third, the provision of IRT

assistance cannot result in a significant increase in training costs.49

There is one exception to the requirement that requested IRT

assistance must accomplish valid unit training requirements. In cases where

the assistance consists primarily of military manpower and will not exceed

100 man-hours, the assistance need not accomplish unit training

requirements.50 In such cases, volunteers will meet manpower requests, and

assistance other than manpower will be extremely limited.51 Military

vehicles may only be used, for instance, to provide transportation of

personnel to and from the work site.52 The use of military aircraft is

prohibited in these instances. The second and third requirements still exist

in such cases.

3. Legal Considerations for IRT Projects

a. Approval Authority for IRT Projects53

OASD/RA approval is required of all projects that require additional

funding from OASD/RA and all projects that require Office of the Secretary

of Defense General Counsel’s review of eligibility.54 All IRT project

requests received directly from requestors that lack military unit sponsors

 

46 10 U.S.C.A. § 2012 (d)(1)(A)(i).

47 10 U.S.C.A. § 2012 (d)(1)(A)(ii).

48 10 U.S.C.A. § 2012 (d)(1)(B).

49 10 U.S.C.A. § 2012 (d)(1)(C).

50 10 U.S.C.A. § 2012 (d)(2).

51 DODD 1100.20, supra note 35, at para. 4.4.2.1.3.

52 Id.

53 IRT Policy, supra note 1, at Enclosure 1, p. 2.

54 IRT projects requiring OSD (RA) approval include those which seek additional funding from OSD, seek

to reallocate IRT funds to another IRT project, or involve requesting entities that need to be assessed for

eligibility on a case-by-case basis.
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must also be forwarded to OASD/RA.55 Major Commands (MACOMs)

generally approve other IRT projects. For projects that do not require

additional funding or OSD review, the Office, Chief Army Reserve and the

Army National Guard are considered MACOMs. A general officer or

equivalent approval signature is required for all IRT requests.56 Additional

requirements may exist if the proposed IRT project crosses multiple fiscal

years.57

b. Processing Requests for IRT Projects

(1) How the IRT Project Request Process Begins

A representative from an eligible organization approaches a

commander or command representative with a concept for a project. The

project concept must address a need that is not otherwise being meant. The

commander evaluates the project to determine whether it is compatible with

unit or individual METL training requirements. If the project is compatible,

the commander than must determine the feasibility of using the project as a

training exercise.

(2) Contents of IRT Project Requests

If the commander determines the proposed IRT project is

feasible as a training exercise, the commander works with the requestor to

assemble the IRT project request. An IRT project request must contain a

cost analysis of the proposed project. The cost analysis includes total

program costs and identifies whether the costs are borne by military

department accounts or defense-wide accounts. The requesting commander

must certify that the proposed project will not increase the cost of the

training above the amount the event would cost if it were conducted

independent of an IRT project. The IRT project request must contain a

certification of non-competition. The certification of non-competition states

that the requested assistance is not reasonably available from a commercial

entity, or the existing commercial entities agree to the provision of such

services by the military. The IRT project request must also contain an

 

55 IRT Policy, supra note 1, at Enclosure 1, p. 2.

56 Id. at Enclosure 1, p. 3.

57 Id.
SPECIAL EVENTS

149

environmental assessment. IRT Medical project proposals have additional

submission requirements.58

(3) IRT Project Requests-The Review Process

All IRT project requests must be reviewed for full compliance with

applicable guidelines and law. All IRT project requests must be reviewed

and endorsed by the Staff Judge Advocate, U.S. Property and Fiscal Officer

or Federal Budget Officer, and Plans, Operations and Training officials.59

Depending on the nature of assistance requested, additional endorsements

may be required from medical, dental, or nursing officials. If applicable, the

command may inform and request endorsement from the State Adjutant

General of the project state or intergovernmental agencies.60

c. Claims Arising From IRT Projects

Claims involving Active Duty, Reserve, or National Guard soldiers that arise

from IRT projects are cognizable under the Federal Tort Claims Act (FTCA)

despite the fact that a non-DoD or private entity derives a benefit from the

project. IRT projects are conducted in a federally funded training status

under Title 10 or Title 32 status.61 Community assistance undertaken by

National Guard units that are not IRT projects is accomplished in a state

active duty (SAD) status. Claims generated incident to projects

accomplished in SAD status are solely a state responsibility.

 

58 Id. at Tab A, p. 3.

59 Id. at Enclosure 1, p. 2.

60 Id. at Tab A, p. 4.

61 Id. at Tab A, p. 2.
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MISCELLANEOUS SUPPORT

151

CHAPTER 8.

MISCELLANEOUS DOMESTIC SUPPORT OPERATIONS

KEY REFERENCES

• 10 U.S.C § 2012 - Support and Services for Eligible Organizations and

Activities Outside DOD

• 32 U.S.C § 508 - Assistance for Certain Youth and Charitable

Organizations

• PDD-63, Critical Infrastructure Protection

• EO 12241 - National Contingency Plan (NCP)

• EO 12580 - Superfund Implementation

• EO 12656 - Assignment of Emergency Preparedness Responsibilities

• EO 12657 - Federal Emergency Management Agency Assistance In

Emergency Preparedness Planning At Commercial Nuclear Power Plants

• DODD 3020.26 - Continuity of Operations (COOP) Policy and Planning

• DODD 3020.36 - Assignment of National Security Emergency

Preparedness (NSEP) Responsibilities to DOD Components

• DODD 3025.13 - Employment of Department of Defense Resources in

Support of the United States Secret Service

• DODD 3150.5 - DOD Response to Improvised Nuclear Device (IND)

Incidents

• DODD 3150.8 - DOD Response to Radiological Accidents

• DODD 4500.9 - Transportation and Traffic Management

• DODD 5030.50 - Employment of Department of Defense Resources in

Support of the United States Postal Service

• DODD 5160.54 - Critical Asset Assurance Program (CAAP).

• DODD 6000.12 - Health Services Operations and Readiness.

• AR 500-2, Search and Rescue (SAR) Operations

• AR 500-4/AFR 64-1 - Military Assistance to Safety and Traffic (MAST)

• FM 100-19, Domestic Support Operations, July 1993.

• NGR 500-1/ANGI 10-8101, Military Support to Civil Authorities

A. INTRODUCTION

Domestic support operations include a variety of lesser-known types

of support. FM 100-19 broadly divides domestic support operations into

four categories: disaster and domestic emergency assistance, environmental
DOPLAW HANDBOOK

152

missions, missions in support of law enforcement, and community

assistance.1

 Some of the support missions not previously discussed in this

Handbook are addressed here.

B. DISASTER AND DOMESTIC EMERGENCY ASSISTANCE

Disaster assistance may include any emergency which endangers life

and property, disrupts normal governmental functions, or results in suffering

and damage, of a such a magnitude that state and local resources are

overwhelmed.2

 An emergency is any occurrence, including natural disaster,

military attack, technological emergency, or other emergency that seriously

threatens U.S. national security.3

 Emergencies include man-made

emergencies, such as chemical spills, nuclear incidents, large explosions,

postal strikes, mass immigration, and prison riots or other form of civil

disturbance. Some of these emergencies are discussed below.

1. Military Assistance to Safety and Traffic

The Military Assistance to Safety and Traffic (MAST) program is an

interagency effort among Department of Transportation (DOT), Department

of Health and Human Services (HHS), and the Department of Defense

(DOD).4

 DOD support to MAST is governed by DOD Directive (DODD)

4500.9, Transportation and Traffic Management.

5

 In response to a request

 

1

 U.S. DEP’T OF ARMY, FIELD MANUAL 100-19/U.S. MARINE CORPS, FLEET MARINE FORCE MANUAL 7-10,

DOMESTIC SUPPORT OPERATIONS, 1-2 (1 July 1993)[hereinafter FM 100-19].

2 Id.

3

 Exec. Order 12,656, Assignment of Emergency Preparedness Responsibilities, § 101 (Nov. 18,

1988)(“National Security Emergency Preparedness Policy: (a) The policy of the United States is to have

sufficient capabilities at all levels of government to meet essential defense and civilian needs during any

national security emergency. A national security emergency is any occurrence, including natural disaster,

military attack, technological emergency, or other emergency, that seriously degrades or seriously threatens

the national security of the United States. Policy for national security emergency preparedness shall be

established by the President. Pursuant to the President's direction, the National Security Council shall be

responsible for developing and administering such policy. All national security emergency preparedness

activities shall be consistent with the Constitution and laws of the United States and with preservation of

the constitutional government of the United States.”); See also 42 U.S.C.S. § 5121(2) (LEXIS 2000).

4

 U.S. DEP’T OF ARMY, REG. 500-4/U.S. DEP’T OF AIR FORCE, REG. 64-1, MILITARY ASSISTANCE TO

SAFETY AND TRAFFIC (MAST), para. 3a (15 Jan. 1982)[hereinafter AR 500-4]; see also U.S. DEP’T OF

ARMY, REG. 500-2, SEARCH AND RESCUE (SAR) OPERATIONS, para. 3c (15 Jan. 1980)[hereinafter AR 500-

2].

5

 U.S. DEP’T OF DEFENSE, DIR. 4500.9, TRANSPORTATION AND TRAFFIC MANAGEMENT (26 Jan.

1989)[hereinafter DODD 4500.9].
MISCELLANEOUS SUPPORT

153

from civilian authorities, military medical helicopter units may provide

emergency air evacuation and recovery assistance if local civilian resources

are not available or are not sufficient to respond to emergencies.6

 The

emergencies for which military support is envisioned are:7

• Evacuation of accident victims,

• Interhospital transfer of patients, or

• The transport of key medical personnel or blood and human organ

transfer.

Military support is subject to the following limitations:

• Assistance may be provided only in areas where military units able to

provide such assistance regularly are assigned.

• Military units shall not be transferred from one area to another for

providing such assistance.

• Assistance may be provided only to the extent that it does not interfere

with the performance of the military mission.

• The provision of assistance shall not cause any increase in funds required

for DOD operation.

• The Secretary of Defense, or designee, shall be the final decision

authority for commitment of DOD resources to the MAST program.8

Military units shall not perform emergency medical evacuation

missions if support can be provided by civilian contractors.9 If civil or

commercial ground or air ambulance services are operating in the same

geographic area covered by a MAST program, a letter of operational

agreement, to which the local commander is a signatory, must be negotiated

between state and/or local officials or their representatives and these

operators.10

 

6 Id. at para. 3.11 (“Employment of Military Resources for Military Assistance to Safety and Traffic

(MAST): 3.11.1. Military units shall assist civilian communities in providing medical emergency helicopter

services beyond the capability of that community.”).

7

 AR 500-4, supra note 4, at para. 3a.

8 Id at para. 3-11.3.

9

 DODD 4500.9, supra note 5, at para. 3.11.1; see also AR 500-4, supra note 4, at para. 4e.

10 AR 500-4, supra note 4, at para. 4f.
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DOD assets provide interim support until civilian assets become

available.11 As part of the MAST program, DOD provides air ambulances,

air rescue helicopters, air-crews, medical personnel and equipment.12 Any

support provided must be without adverse impact to the unit's primary

military mission.13 Reimbursement is not required. Medical helicopter

units must operate within their allocated training hour program.14 Final

approval authority for each mission rests with the local commander whose

decision should be based on aircraft availability and military mission

requirements.15

2. Search and Rescue Operations

To the extent possible, the armed forces have traditionally provided

aid to civilians during distress.16 Generally, these missions are coordinated

through the U.S. Air Force (USAF) (in the continental United States), the

U.S. Coast Guard (USCG) (in Hawaii and U.S. territories), and the unified

command (outside the continental United States). The Commanding

General, U.S. Army Forces Command (CG FORSCOM) is responsible for

coordinating Army SAR assistance to civil authorities.17 As the Army

Search and Rescue (SAR) coordinator, CG FORSCOM may task installation

commanders directly to provide SAR resources and assistance as needed.18

Commands/installations providing SAR assistance must absorb costs

incurred in SAR operations from existing funds.19 In addition to SAR

missions in support of natural disasters, SAR missions include:

• Aerial drop of medicine, food, emergency supplies and livestock feed;

• Aeromedical evacuation of sick and injured; rescue of stranded

personnel;

• Transport and guidance of surface rescue parties;

 

11 Id. at para. 3a.

12 Id.

13 DODD 4500.9, supra note 5, at para. 3.11.2.

14 Id.

15 AR 500-4, supra note 4, at paras. 4a, 4e.

16 AR 500-2, supra note 4, at para. 4a.

17 Id. at para. 5c.

18 AR 500-2, supra note 4, at para 5c.

19 Id. at para. 10.
MISCELLANEOUS SUPPORT

155

• Message drop and pick up;

• Courier service and communications;

• Wire-laying for emergency communications;

• Illumination for night operations;

• Photographic and reconnaissance missions;

• Insect control;

• Providing warning or information on:

! areas to be evacuated

! transportation facilities

! available evacuation routes.20

Army aircraft with a primary mission of aeromedical evacuation

normally will not be used to conduct lengthy search operations or recovery

of human remains.21 The recovery of human remains is the responsibility of

civil authorities, and Army assistance in this area should only be considered

when:

• Requested by authorized local authority;

• Military resources represent the only means of recovery (i.e., inaccessible

or remote crash site, non-availability of commercial or civilian

resources); and

• Recovery of human remains can be accomplished concurrently with the

recovery of survivors, if such action does not jeopardize the survivors. 22

The Civil Air Patrol (CAP), a volunteer civilian SAR organization,

provides SAR services as an official auxiliary of the USAF and represents

the primary SAR resource available to the civil sector.23 Under the Federal

Response Plan (FRP), the Federal Emergency Management Agency (FEMA)

is the primary agency for Emergency Support Function (ESF) 9, Urban

Search & Rescue.24

 

20 Id. at para. 7.

21 Id. at para. 4d.

22 Id. at para. 4g.

23 Id. at para. 3a.

24 FEDERAL EMERGENCY MANAGEMENT AGENCY, FEDERAL RESPONSE PLAN (FRP) 14 (Apr.

1992)[hereinafter FRP], available from HQ, FEMA, 500 C Street SW, Washington, DC 20472 or available

at http://www.fema.gov/r-n-r/frp/.
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156

Local commanders may also provide SAR assistance within their area

when immediate assistance is required to save human lives, prevent human

suffering, or to mitigate major destruction or damage to property, and time

does not permit obtaining approval from higher headquarters.25 Authority

for conducting SAR missions also extends to requests from the Federal

Aviation Administration (FAA) air traffic control agencies for in-flight

Army aircraft to provide immediate assistance to aircraft in distress.26 All

other direct requests for SAR assistance from civil authorities will be

referred to the Air Force Rescue Coordination Center (AFRCC) or

appropriate USCG Rescue Coordination Center27 As in any immediate

response operation, such actions should be coordinated with FORSCOM.

3. Employment of DOD Resources in Support of U.S. Postal Service

When a postal work stoppage disrupts mail service on a national,

regional, or local basis, DOD may be directed to support the U.S. Postal

Service (USPS) through an interdepartmental transfer of services.28 When

ordered by the President, DOD may be called upon to provide sufficient

materials, supplies, equipment, services, and personnel to enable the USPS

to safeguard, process, and deliver the mail in areas affected by postal work

stoppages. 29

Authority to support the USPS rests in the President’s authority to use

the armed forces to prevent interference with transporting the mail30 and the

authority for interdepartmental transfer of services and equipment prescribed

by the Economy Act31 and implemented by DOD Instruction (DODI)

4000.19, Interservice and Intragovernmental Support.

32 Upon Presidential

 

25 AR 500-2, supra note 4, at para. 4a.

26 Id. at para. 4c.

27 Id.

28 U.S. DEP’T OF DEFENSE, DIR. 5030.50, EMPLOYMENT OF DEPARTMENT OF DEFENSE RESOURCES IN

SUPPORT OF THE UNITED STATES POSTAL SERVICES, para. 1 (13 Apr. 1972)[hereinafter DODD 5030.50].

29 Id. at para. 4. (“POLICY AND RESPONSIBILITIES; 4.1. Authority. Legal authority for the employment

of military resources at the direction of the President to reestablish and maintain essential postal service

may be found in section 686 of Title 31, U.S. Code, and section 411 of Title 39, U.S. Code.”).

30 In re Debs, 158 U.S. 564 (1895).

31 The Economy Act of 1932, 31 U.S.C.A. § 1535 (1983), implemented by 39 U.S.C.A. § 411 (1980)

(Cooperation with other Government Agencies).

32 U.S. DEP’T OF DEFENSE , INSTR. 4000.19 INTERSERVICE AND INTRAGOVERNMENTAL SUPPORT, para. 4.4

(9 Aug. 1995).
MISCELLANEOUS SUPPORT

157

declaration of a national emergency, selective mobilization of the RC to

support the USPS is authorized by 10 USC § 12301.33 Army and Air

National Guard units may be called under authority granted in 10 USC §

12406.

4. National Disaster Medical System

A major natural disaster can produce casualties far beyond the treatment

capability of local medical support. Additionally, medical and health facilities

and assets may not escape the effects of a catastrophic natural disaster. The

National Disaster Medical System (NDMS), a national medical response

system to supplement and assist state and local medical resources during

disasters, is outlined in DODD 6000.12, Health Services Operations and

Readiness.

34 The NDMS is a joint partnership sponsored by DOD, the

Department of Veterans Affairs (DVA), HHS, and FEMA. Responsibilities of

each member are spelled out in an MOU between the agencies. DODD

6000.12 defines the role of the military health care system in joint federal,

state, and local mutual medical aid.35 Major components of NDMS include

medical response, patient evacuation, and definitive medical care in

participating non-federal hospitals throughout CONUS. DODD 6000.12

requires annual exercises of NDMS and assigns specific responsibilities to

Services, CINCs, and Defense Agencies.

Under the FRP, ESF 8, Health & Medical Services, HHS is the

primary agency. 36 The Public Health Service (PHS), an agency of the

DHHS, leads this effort by directing the activation of the NDMS.37 HHS is

responsible for assisting with the assessment of health hazards at a response

site and the health protection of both response workers and the general

public. Support is categorized as follows:

• Assessment of health and medical needs;

• Health surveillance;

 

33 10 U.S.C.A. §§ 12301-12304 (1998); see also DODD 5030.50, supra note 28, at para. 4.4.1.

34 U.S. DEP’T OF DEFENSE, DIR. 6000.12, NATIONAL DISASTER MEDICAL SYSTEM (NDMS), Enclosure 1,

References, E1(m) (28 Dec. 1988)[hereinafter DODD 6000.12] (DODD 6000.12 superseded DODD

6010.17).

35 Id. at para. 4.

36 FRP, supra note 24, at 14.

37 FRP, supra note 24, at Health and Medical Services Annex ESF #8.
DOPLAW HANDBOOK

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• Medical personnel, equipment and supplies;

• Patient evacuation;

• In-hospital care;

• Food/drug/medical device safety, worker health and safety;

• Radiological, chemical and biological hazards;

• Mental health care, public health information, vector control, potable

water and waste disposal;

• Victim identification/mortuary services;

• Veterinary services.38

The NDMS may be activated by the Director, FEMA, or the Assistant

Secretary of Health, HHS, in response to a U.S. domestic disaster.39 The

federal government will respond to the crisis by using the NDMS to

supplement state and local medical resources. DOD components participate

to the extent compatible with U.S. national security. The NDMS Operations

Support Center (OSC), once activated, responds to medical tasks from the

Federal Coordinating Officer (FCO) at the Disaster Field Office (DFO). The

DFO includes the Continental United States Army Defense Coordinating

Officer, along with the regional point of contact from the PHS and the

NDMS Liaison Officer. The NDMS OSC assigns Disaster Medical

Assistance Teams (DMATs) to the disaster site to help local authorities with

medical management of casualties.40

5. Animal and Plant Disease Eradication

In the event of an actual or imminent outbreak of a foreign plant or

animal disease or invasion of a foreign pest, DOD provides assistance to the

U.S. Department of Agriculture (USDA), Administrator for Animal, Plant, and

Health Inspection Service (APHIS). Although there is no military directive

governing this type of support, there is a memorandum of agreement with the

Department of Agriculture for such support.41 The Secretary of the Army, as

DOD’s executive agent, has designated the Commander in Chief (CINC) Joint

 

38 Id.at para. Ib1.

39 DODD 6000.12, supra note 34, at para. 4.9.

40 FRP, supra note 24, at Health and Medical Services Annex ESF #8.

41 See U.S. DEP’T OF DEFENSE, REG. 5030.49-R, CUSTOMS INSPECTION (27 May 1977).
MISCELLANEOUS SUPPORT

159

Forces Command (JFCOM) as the supported CINC for DOD support to

USDA.42

COMFORSCOM, as directed by CINCJFCOM, provides personnel,

equipment, supplies, and services to support the Regional Emergency Animal

Disease Eradication Organization (READEO) task force. The READEO is the

USDA organization responsible for completing both animal and plant

eradication missions. USDA reimburses DOD for actual cost, less pay and

allowances.

6. Mass Immigration Emergency

The Attorney General of the United States is charged, in addition to

other responsibilities, to enforce the laws of the United States dealing with

immigration.43 The majority of this responsibility is fulfilled by the routine

daily operations of the Immigration and Naturalization Service (INS) of the

Department of Justice (DOJ).44 When individuals enter the United States

illegally, they are subject to apprehension by law enforcement authorities.

INS then takes action to deport or resettle these immigrants. If the number

of illegal immigrants exceeds the capacity of the INS, the President may

declare a Mass Immigration Emergency. DOD may be called on to provide

support to DOJ/INS, in accordance with the DOJ Mass Immigration

Emergency Plan (MIEP), Operation DISTANT SHORE.45 Although not

addressed in the FRP, the policies and procedures for a mass immigration

emergency are very similar to FRP emergencies

DOD may be tasked to assist in initial reception, transportation, housing,

and the full range of support services required. At no time is DOD expected to

engage in law enforcement activities or in the processing of immigrants.

FORSCOM, operating with DOD Lead Operational Authority, is charged by

 

42 The Secretary of the Army is also the Executive Agent for Customs Inspections. Id. at para. 3002.

43 U.S. COMMANDER IN CHIEF, ATLANTIC COMMAND, FUNCTIONAL PLAN 2503-97, SUPPORT OF DOJ/INS

MASS IMMIGRATION EMERGENCY (U), Plan Summary, para. 2C(3) (30 Nov.1997); see also Memorandum

from Deputy Assistant U.S. Attorney to United States Attorney Southern District of California, subject:

Assistance by State and Local Police in Apprehending Illegal Aliens, para. II F (5 Feb. 1996) available at

http://www.usdoj.gov/olc/immstopo1a.htm.

44 See Generally 8 U.S.C.S.§ 1103 (LEXIS 2001)(Powers of the Attorney General); 8 C.F.R. § 2.1 (LEXIS

2001)(Authority of the Commissioner, Immigration and Natralization Service).

45 U.S. DEP’T OF JUSTICE, MASS IMMIGRATION EMERGENCY PLAN OPERATION DISTANT SHORE, Annex

A (TASK ORGANIZATION), para. 1a, (14 June 1995) (Limited Official).
DOPLAW HANDBOOK

160

JFCOM to develop and coordinate detailed planning and execution of DOD

support operations in the continental U.S. (CONUS). After a surge of initial

support, DOJ/INS and other federal agencies will begin assuming

responsibility for support. At the end of thirty days, DOJ/INS should be in a

host-tenant relationship with the installations.

7. Improvised Nuclear Device Incidents

DODD 3150.5, DOD Response to Improvised Nuclear Device (IND)

Incidents, provides DOD policy for military assistance to the FBI during an

improvised nuclear device (IND) incident.46 An IND is a device

incorporating radioactive materials designed to result in the dispersal of

radioactive material or in the formation of a nuclear-yield reaction.47 In the

Continental United States (CONUS) and in U.S. territories and possessions,

the FBI is the Lead Federal Agency (LFA) for addressing IND incidents.

Outside CONUS and U.S. territories and possessions, the Department of

State (DOS) is the LFA.48 The Assistant Secretary of Defense (International

Security Affairs) acts as the DOD Executive Agent.49 DODD 3150.5

establishes responsibilities for command and control (C2), operational

response, research and development, and EOD policy.50 DODD 3150.5

directs the Secretary of the Army to:

• Provide a trained response team of EOD personnel and other required

support for responding to IND incidents on Army installations in CONUS,

the CONUS land mass (except for those installations specifically assigned

as a responsibility of the Navy, Air Force, or Marine Corps), and other areas

as directed by the National Command Authority (NCA) through the Joint

Chiefs of Staff (JCS);

• Submit IND countermeasures technology and training requirements to the

Executive Manager for DOD Explosive Ordnance Disposal Technology and

Training (EODT&T) in accordance with DOD 5160.62; and

• Fund Army IND response team training, exercises, and operations.51

 

46 U.S. DEP’T OF DEFENSE, DIR. 3150.5, DOD RESPONSE TO IMPROVISED NUCLEAR DEVICE (IND)

INCIDENTS, paras. 1 and 4 (24 Mar. 1987).

47 Id. at para. E.2.1.6.

48 Id. at para. E2.1.8.

49 Id. at para. 5.2.1.

50 See id. at para. 5.

51 Id. at para. 5.8.
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The DOD response team must be prepared to deploy within four hours

of notification of an IND incident.52 The DOD response team will be under

the command and control of the DOD senior representative, provided by the

responsible Service or CINC, who shall establish coordination with the LFA.

The FBI Special Agent in Charge (SAC) will be the senior U.S. Government

official and will coordinate and communicate with local authorities.53

8. DOD Response to Radiological Accidents.

Radiological accidents are defined as a "loss of control over radiation

or radioactive material that presents a hazard to life, health, or property or

that may result in any member of the general population exceeding exposure

limits for ionizing radiation."54 These accidents are not included in DODD

3025.1, Military Support to Civil Authorities. DODD 3150.8, DOD

Response to Radiological Accidents, outlines DOD support for the FEMA

Federal Radiological Emergency Response Plan (FRERP).55 The FRERP

establishes an organized and integrated capability for timely, coordinated

response by Federal agencies to peacetime radiological emergencies.56 The

Defense Nuclear Agency is assigned the lead role in coordinating plans with

other federal agencies.57 CINCJFCOM provides assistance to an affected

area in support of the LFA and under the overall coordination of a Senior

Federal Official, such as a FCO.

The President, through Executive Order (EO) 12241, instructed the

Director of FEMA to publish a plan to protect public health and safety in the

event of an accident at a nuclear power plan as part of the National

Contingency Plan.58 EO 12241 is attached at Appendix 8-6. Pursuant to EO

12657, FEMA is required to provide assistance in emergency preparedness

 

52 Id. at para. 6.4.

53 Id. at para. 6.3.

54 U.S. DEP’T OF DEFENSE, DIR. 3150.8, DOD RESPONSE TO RADIOLOGICAL ACCIDENTS, E2.1.5 (24 Mar.

87)[hereinafter DODD 3150.8].

55 Id. at para. 1.2.

56 U.S. COMMANDER IN CHIEF, JOINT FORCES COMMAND, FUNCTIONAL PLAN 2504-00, RESPONSE TO

CBRNE INCIDENTS/ACCIDENTS, Annex A (TASK ORGANIZATION), para. 1a(3) (U)(1 May 2000).

57 DODD 3150.8, supra note 54, at para. 5.1.1.

58 Exec. Order No. 12,241, National Contingency Plan (Sept. 29, 1980).
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planning at commercial nuclear power plants.59 EO 12657 is attached at

Appendix 8-4. FEMA is to ensure that plans and procedures are in place to

respond to radiological emergencies at commercial nuclear power plants in

operation. FEMA is also charged with coordinating the use of Veterans Affairs

and military medical facilities. In the event of an accident, DOD may be

required to provide medical and other support.

9. DOD Support to Wildfires

State and local governments have the primary responsibility to

prevent and control wildfires.60 DOD policy is to provide emergency

assistance to federal agencies in the form of personnel, equipment, supplies,

or fire protection service in cases where a forest or grassland fire emergency

is beyond the capabilities of available resources.61 DOD provides support

pursuant to a memorandum of understanding (MOU) between DOD, the

USDA, and the Department of the Interior (DOI).62 A copy of the MOU is

attached at Appendix 8-7.

The primary federal agency responsible for coordinating the federal

response to wildfires is the National Interagency Fire Center (NIFC), which

is located in Boise, Idaho.63 The NIFC is the nation’s support center for

wildland firefighting64 and is a joint operation of the DOI and USDA.65

 

59 Exec. Order No. 12,657, Nuclear Facility Accidents, Contingency Planning (Nov. 18, 1988).

60 U.S. DEP'T OF DEFENSE, 3025.1-M, MANUAL FOR CIVIL EMERGENCIES, Ch. 1 (General) para. E.8, and

Ch. 3 (Disasters) para. B.3.a. (June 1994), [hereinafter DOD 3025.1-M]; MEMORANDUM OF

UNDERSTANDING BETWEEN THE DEPARTMENT OF DEFENSE AND THE DEPARTMENTS OF AGRICULTURE AND

THE INTERIOR, III (Policy) (1975)[hereinafter MOU-USDA/DOI]; see also FRP, supra note 24, at

Emergency Support Function #4 (Firefighting Annex), I. Introduction, para. B. (Scope), IV. Concept of

Operations, A (General), para. 1, and C (Other Organizations); U.S. COMMANDER IN CHIEF, FORCES

COMMAND, FUNCTIONAL PLAN 2501-00, MILITARY SUPPORT TO CIVIL AUTHORITIES (MSCA), Annex C

(OPERATIONS), Appendix 27 (WILDFIRE FIGHTING PLAN), para. 1d(1)(U)(1 May 2000)[hereinafter

COMFORSCOM Func Plan 2501-00]; Federal Wildland Fire Management Policy and Program Review, 21

(18 Dec. 1995) available at http://www.fs.fed.us/land/wdfirex.html.

61 DOD 3025.1-M, supra note 60, at Chap 3 (Disasters), para. B3a.

62 MOU-USDA/DOI, supra note 60; see also U.S. DEP’T OF ARMY, REG. 500-60, EMERGENCY

EMPLOYMENT OF ARMY AND OTHER RESOURCES, App. B (1 Aug. 1981) [hereinafter AR 500-60];

COMFORSCOM Func Plan 2501-00, supra note 60, at App. 27, para. 1e(1).

63 FRP, supra note 24, at Emergency Support Function #4 (Firefighting Annex), II. Policies, para. B, VII.

Terms and Definitions, para. D; see also COMFORSCOM Func Plan 2501-00, supra note 60, at App. 27,

para. 1c(1).

64 DOD 3025.1-M, supra note 60, at para. B.3.a, b; MOU-USDA/DOI, supra note 60, at II.

RESPONSIBILITIES, para. D, and IV. OPERATIONAL PROCEDURES AND FUNDING, para. A1; see
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Seven federal agencies operate from the NIFC and work together to

coordinate and support wildland fire and disaster operations. These agencies

are:

• Bureau of Indian Affairs (BIA)

• Bureau of Land Management(BLM)

• Forest Service (USFS)

• Fish and Wildlife Service (USFWS)

• National Park Service (NPS)

• National Weather Service (NWS)

• Office of Aircraft Services (OAS) 66

The NIFC evolved from the "Boise Interagency Fire Center” which was

established in 1965. The Boise Interagency Fire Center began from separate

efforts by BLM and USFS to improve fire and aviation support throughout

much of the Great Basin and Intermountain West.67 In early 1993 the name

was changed to the National Interagency Fire Center to reflect a national

mission.

If the national fire situation becomes severe, the National Multiagency Coordinating (MAC) Group is activated.68 This group consists of

representatives of each of the federal wildland firefighting agencies.

Representatives from the General Services Administration, the U.S. military,

and state forestry services may also participate. The federal and state

representatives of this group are responsible for responding to wildland fires

and other emergency events. Depending on the national fire situation, the

MAC group helps set priorities for critical, and occasionally scarce,

equipment, supplies and personnel.

 

also National Interagency Fire Center (NIFC) and Its Mission at http://www.nifc.gov/nifcmiss.html (last

visited 13 Apr. 2001).

65 DOD 3025.1-M, supra note 60, at para. B.3.b.

66 See NIFC - The Agencies At NIFC at http://www.nifc.gov/nifcagcy.html (last visited 13 Apr. 2001); see

also COMFORSCOM Functional Plan 2501-00, supra note 60, at App. 27, para. 1c(1).

67 See NIFC History at http://www.nifc.gov/nifcmiss.html (last visited 13 Apr. 2001)("'Boise' Interagency

Fire Center" is the phrase referred to in AR 500-60, supra note 62, at para. 2-6 and 2-15, and MOUUSDA/DOI, supra note 60, rather than NIFC).

68 See NIFC Multi-Agency Coordinating Group at http://www.nifc.gov/nifcmiss.html (last visited 13 Apr.

2001).
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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. However,

because NICC is an "all-risk" coordination center, it also provides support in

response to other emergencies such as floods, hurricanes and earthquakes.

The NICC coordinates supplies and resources across the U.S., and provides

support to incidents in foreign countries. The NICC is staffed jointly by

BLM and USFS.69 When activity warrants, NICC operates 24 hours a day,

seven days a week.70

The NICC uses a three-tiered coordination system to respond to

wildland fires.71 First, a wildland fire is initially managed by the local

agency that has fire protection responsibility for that area.72 Engines, ground

crews, smokejumpers, helicopters with water buckets, and air tankers may

all be used for initial suppression. Various local agencies may work

together, sharing personnel and equipment, to fight new fires and those that

escape initial action. If a wildland fire grows to the point where local

personnel and equipment cannot contain the fire, the responsible agency

contacts one of the eleven Geographic Area Coordination Centers (GACC),

which is the second tier 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 the 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. See Appendix 8-8, NIFC Area Coordination Centers.

The NIFC can request DOD assistance in one of two ways.73 First, for

wild fires outside federal land (on state or private lands), state officials

submit their requests for suppression assistance to the FEMA Regional

Director or FCO. The FEMA Regional Director or FCO then requests

military assistance. When NIFC requires military assistance under its own

authorities, it contacts the Director of Military Support (DOMS). Second, if

 

69 See COMFORSCOM Func Plan 2501-00, supra note 60, at App. 27, para. 1c (1).

70 See NICC Organization at http://www.nifc.gov/nifctour/nicc.html (last visited 13 Apr. 2001).

71 See NICC Coordination System at http://www.nifc.gov/nifctour/nicc.html (last visited 13 Apr. 2001).

72 See NICC Geographic Area Coordination Centers at http://www.nifc.gov/fireinfo/geomap.html (last

visited 13 Apr. 2001).

73 DOD 3025.1-M, supra note 60, at para. B.3.a; MOU-USDA/DOI, supra note 60, at III. POLICY, paras.

A-B.
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165

the response is to an emergency under the Stafford Act, NIFC requests

military assistance from FEMA, which coordinates with DOMS. DOMS

notifies the supported CINC, who in turn tasks the appropriate component

command or supporting Combatant Command. All requests for military

support will then be handled by the command designated by the supported

CINC.74 The NIFC normally requests a specific number of firefighters

and/or items of equipment. NIFC taskings will provide the necessary

information, such as incident name, location, agency representation, and

duration of assignment.

Normally, as part of the efforts of state and local governments to

prevent and control wildfires, the National Guard (NG) will respond in state

active duty (SAD) status.75 For example, during the summer of 2000, ten

states provided more than 1,500 NG soldiers and airmen who served in SAD

status.76 The NG personnel provided law enforcement support for traffic

control, transportation and aviation support, and firefighters. The Air

National Guard (ANG) and Air Force Reserve (AFR) provided eight C-130

aircraft equipped with the modular airborne firefighting system (MAFFS).

Additionally, federal firefighting officials at NIFC formally requested

assistance from DOD. More than 4,600 active duty soldiers, Marines and

airmen were committed to augment federal and local firefighters and law

enforcement officials. NIFC instituted a "Preparedness Level 5" indicating

that all federal firefighting resources were fully committed.

The ANG and AFR use the USFS owned Modular Airborne Fire

Fighting System (MAFFS), when requested, to assist with wildland

firefighting during extreme conditions.77 Congress established the MAFFS

 

74 DOD 3025.1-M, supra note 60, at para. B.3.d.

75 This is distinguished from Title 32 and Title 10 status for NG personnel. See supra Chapter 10 (Reserve

Components - Special Issues).

76 See DOD News Release, More Troops Tabbed to Battle Montana Wildfires, Aug. 23, 2000 at

http://www.defenselink.mil/briefings/ (last visited 13 Apr. 2001).

77 DOD 3025.1-M, supra note 60, at Ch. 3 (Disasters), para. B.3.f.; see also Modular Airborne Fire

Fighting System (MAFFS) Fact Sheet at http://www.fire.blm.gov/FactSheets/maffs.htm#MAFFS (last

visited 13 Apr. 2001). A MAFFS unit 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

airtankers 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 onequarter-mile-long and 60 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
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Program in the early 1970s as a wildland fire program, not a military

program. The objective of the MAFFS program is to provide emergency

capability to supplement the existing commercial air tanker support on

wildfires. The NICC can activate the MAFFS when all other contract air

tankers are committed, or are otherwise unable to meet requests for air

operations. The request for MAFFS activation is approved by the national

MAFFS liaison officer, who is the USFS director at NIFC. This request is

then formally submitted to DOMS. Governors of states where NG MAFFS

units are stationed may activate MAFFS missions within their state

boundaries when covered by a memorandum of understanding with the

USFS. In accordance with military requirements for initial qualification and

recurrent training, MAFFS crews are trained every year with Forest Service

national aviation operations personnel.

There are currently eight MAFFS units in the system. Two are

positioned at each of the following Air National Guard and Air Force

Reserve locations:

• 153rd Airlift Wing (AW), Cheyenne, WY (ANG)

• 146th AW, Port Hueneme, CA (ANG)

• 145th AW, Charlotte, NC (ANG)

• 302nd AW, Peterson AFB, Colorado Springs, CO (AFR)

C. ENVIRONMENTAL MISSIONS

The military services and DOD carry out an environmental program

focused on DOD facilities. However, DOD may also be called upon to

provide environmental assistance during an emergency.78 The military is a

member of the national and regional response teams responsible for

preparing for and responding to hazardous substance spills under the

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) and the National Oil and Hazardous Substances Contingency

Plan (the NCP).79

 

rapidly take advantage of the retardant effect, which helps in line-building efforts. Its bright red or fuchsia

color helps airtanker pilots observe the accuracy of their retardant drops on the edge of the fire.

78 FM 100-19, supra note 1, at 1-3.

79 Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. §§ 9601-9675

(1995); The National Oil and Hazardous Substances Contingency Plan, 40 C.F.R. § 112 (1997) [hereinafter

NCP].
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167

The NCP is the federal government’s plan for emergency response to

discharge of oil into the navigable waters of the U.S., and to releases of

chemicals into the environment. The NCP was developed to ensure that the

resources and expertise of the Federal Government would be immediately

available for those oil and hazardous substance incidents requiring national

or regional response.

If a discharge is so severe that the President declares a disaster, the

FRP is activated. Under the FRP, the Environmental Protection Agency

(EPA) has primary responsibility for ESF 10, Hazardous Materials.80

DOMS coordinates the DOD response in support of FEMA and the NCP.81

The scope of operations includes detection, identification, containment, and

cleanup or disposal of released hazardous materials. Other operations under

ESF 10 include actions such as household hazardous waste collection,

permitting and monitoring of debris disposal, water and air quality

monitoring and protection, and protection of natural resources.

EO 12580 directs the NCP to provide for a National Response

Team (NRT) for national planning and coordination of preparedness and

response actions. The NRT is composed of representatives of appropriate

federal departments and agencies, including DOD.82 See Appendix 8-3,

EO 12580. Regional response teams (RRTs), the regional counterpart to

the NRT, plan and coordinate regional preparedness and response actions.

EPA chairs the standing NRT.

The FRP ESF 10 Hazardous Materials Annex, Relation to Existing

Response under the NCP, the National Response System, and the National

and Regional Response Teams, sets forth the tiered levels and

responsibilities for response.83 DOD provides expertise through the U.S.

Army Corps of Engineers (USACE) and the U.S. Navy. DOD provides the

 

80 FRP, supra note 24, at Emergency Support Function #10 Hazardous Materials Annex.

81 U.S. DEP’T OF DEFENSE, DIR. 5030.41 OIL AND HAZARDOUS SUBSTANCES POLLUTION PREVENTION AND

CONTINGENCY PROGRAM (1 June 1977, C1, 26 Sept. 1978)[hereinafter DODD 5030.41].

82 Exec. Order No. 12,580, Superfund Implementation (Jan. 23, 1987); see also DODD 5030.41, supra note

81, at para. 5.4.

83 FRP, supra note 24, at ESF No. 10, Relation to Existing Response under the NCP, the National Response

System, and the National and Regional Response Teams.
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Federal On-Scene Coordinator (FOSC) for all hazardous substance releases,

except oil spills, that originate from DOD facilities or vessels.84

The RRTs provide regional planning and preparation before a

pollution incident as well as coordination and advice after an incident

occurs.85 The two principal components of the RRT are the Standing RRT

and the Incident Specific RRT. The Standing RRT is comprised of all the

departments and agencies of the NRT plus the involved states, and is cochaired by EPA and the USCG. The USACE is the principal agency for the

Army’s environmental response and appoints Army representatives to the

RRT. The Incident Specific RRT is comprised of RRT members who have

specific expertise or equipment that could assist the FOSC in responding to

an incident. Either EPA or USCG chairs the incident specific RRT,

depending on the location of the spill.86

The operational level of environmental response management is

performed by the FOSC. The FOSC ensures a timely, effective response is

conducted which minimizes damage to the environment. The FOSC and

either EPA, for inland areas, or the USCG, for coastal areas, are the principal

participants for federal response actions. DOD and the Department of

Energy provide the FOSC when there is a hazardous release from their

facilities or vessels, and respond to their own authorities. The FOSC

coordinates all federal containment, removal, and disposal efforts, and

federal resources. The FOSC is also the point of contact for the coordination

of federal efforts with those of the local response community.87

D. MISSIONS IN SUPPORT OF LAW ENFORCEMENT

1. Support of United States Secret Service

DODD 3025.13, Employment of Department of Defense Resources in

Support of the United States Secret Service, provides for reimbursable

support of the Secret Service and identifies reimbursement accounting

 

84 NCP, supra note 79, at § 30.5, Definition.

85 FRP, supra note 24, at ESF No. 10.

86 Id.

87 National Response Center, "National Response System," at http://www.nrc.uscg.mil/nrsinfo.htm.
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procedures.88 Requests for assistance go through the White House Military

Office or DOD Executive Secretary.89

2. Critical Asset Assurance Program

EO 12656 provides 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. Security emergencies may result from

natural disasters, military attack, or any other event that seriously degrades

the security of the United States.90 DODD 5160.54, Critical Asset

Assurance Program (CAAP), implements EO 12656 for DOD.91 DOD

policy is to identify assets vital to national defense mobilization,

sustainment, and employment,92 and to assure the integrity, availability,

survivability, and capability of these critical assets to support vital DOD

missions.93 The heads of DOD components will identify assets critical to

their operations.94 The Defense Investigative Service, in conjunction with

the appropriate DOD component, conducts surveys of nominated assets.95

An overview of the DOD CAAP program is included at Appendix 8-2,

Critical Asset Assurance Program. See also Appendix 8-9, PDD-63.

3. Continuity of Operations Policies and Planning

EO 12656 requires heads of federal agencies to ensure the continuity

of essential functions during a national security emergency. 96 DODD

3020.26, Continuity of Operations Policy and Planning, implements EO

12656 by tasking all DOD components to prepare plans for the continuity of

 

88 U.S. DEP’T OF DEFENSE, DIR. 3025.13, EMPLOYMENT OF DEPARTMENT OF DEFENSE RESOURCES IN

SUPPORT OF THE UNITED STATES SECRET SERVICE, para. 3.1 and 3.2 (13 Sept. 1985).

89 Id. at para. 3.4.2

90 EO 12656, supra note 2, at § 204.

91 U.S. DEP’T OF DEFENSE, DIR. 5160.54, CRITICAL ASSET ASSURANCE PROGRAM (CAAP )(20 Jan.

1998)[hereinafter DODD 5160.54]. DODD 5160.54 rescinded DODD 5160.54, DOD KEY ASSET

PROTECTION PROGRAM (KAPP).

92 Id. at para. 4.1.

93 Id. at para. 1.2.

94 Id. at para. 5.7

95 Id. at para. 5.3.3.1.

96 EO 12656, supra note 2, at § 202.
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operations and of government during an emergency.97 See Appendix 4-13,

EO 12656, Emergency Preparedness. See also Appendix 8-1, PDD-67.

DODD 3020.36, Assignment of National Security Emergency Preparedness

(NSEP) Responsibilities to DOD Components, overlaps DODD 3020.26.

Under DODD 3020.36, each DOD component shares the general

responsibilities for emergency preparedness, mobilization planning, and

crisis management in ensuring the continuity of government in any national

security or domestic emergency situation.98 DODD 3020.36 also requires

the identification of alternate headquarters, emergency relocation sites, and

other permanent facilities to be used during emergencies.99

4. Explosive Ordnance Disposal

DODD 5160.62, Single Manager Responsibility for Military

Explosive Ordnance Disposal Technology and Training, establishes the

Navy as the single agency for Service support of the non-nuclear explosive

ordnance disposal (EOD) program.100 AR 75-14/OPNAVINST

8027.1E/ARF 136-8/MCO 8027.1B, Interservice Responsibilities for

Explosive Ordnance Disposal, delineates EOD areas of responsibilities for

the Army, Navy, Marine Corps, and Air Force.101

The EOD mission within the Department of the Army is defined in

AR 75-15, Responsibilities and Procedures for Explosive Ordnance. The

mission includes providing "assistance to public safety and law enforcement

agencies" and conducting "explosive ordnance disposal 'bomb and sabotage'

training for civil preparedness, law enforcement, fire protection and other

 

97 U.S. DEP’T OF DEFENSE, DIR. 3020.26, CONTINUITY OF OPERATIONS POLICY AND PLANNING, para. 4.1

(Oct. 1988).

98 U.S. DEP’T OF DEFENSE, DIR. 3020.36, ASSIGNMENT OF NATIONAL SECURITY EMERGENCY

PREPAREDNESS (NSEP) RESPONSIBILITIES TO DOD COMPONENTS, at para. 4.2 (2 Nov. 1988).

99 Id.

100 U.S. DEP’T OF ARMY, REG. 75-15, RESPONSIBILITIES AND PROCEDURES FOR EXPLOSIVE ORDNANCE,

para. 1-7 (1 Nov. 1978). AR 75-15 does not apply to the Army Reserves or Army National Guard.

101 Id. at paras. 1-1, 2-1. The Army has EOD responsibility on Army installations and on landmass areas not

specifically assigned as the responsibility of the Navy, Marine Corps, or the Air Force. The Department of

the Navy is responsible for: EOD activities on Navy installations; explosive ordnance in the physical

possession of the Navy; in assigned operational areas; within the oceans and contiguous waters, up to the

high water mark of sea coasts, inlets, bays, harbors, and rivers; in any rivers, canals or enclosed bodies of

water; and for the rendering safe and disposal of underwater explosive ordnance. The Department of the

Air Force and the Marine Corps have EOD responsibility on their own installations, for explosive ordnance

in their physical possession, and in assigned operational areas.
MISCELLANEOUS SUPPORT

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public officials."102 It also includes providing "explosive ordnance disposal

support to the Departments of Energy and Justice in the neutralization of

improvised nuclear devices in accordance with current agreements and

directives."103 The Army should primarily provide training or advice, rather

than physical assistance. AR 75-15 provides:

The Department of the Army is not responsible for responding

to, or disposing of, nonmilitary commercial-type explosives,

chemicals or dangerous articles in the possession of, or

controlled by commercial concerns or civilian agencies.

Assistance may be provided, when requested by federal

agencies or civil authorities, in the interest of preserving public

safety. Where a delay in responding to a request for assistance

from other activities would endanger life or cause injury,

commanders may authorize assistance to that extent necessary,

to prevent injury or death. EOD personnel may act as technical

consultants or advisors, or they may perform render safe and

disposal procedures if requested.

Thus, EOD forces should only provide physical assistance when the

explosive is a DOD munition or when necessary under immediate response

authority to save lives.

E. COMMUNITY ASSISTANCE

The most frequently conducted domestic support operations involve

community assistance.104 These missions include public works, education,

training, minor construction projects, and providing color guards for local

events. Intended to address unmet needs, they should avoid duplication or

competition with the civilian sector. 105 Activities vary widely, ranging from

individual soldier involvement to full Army participation, and are

characterized by detailed coordination between the military command and

community authorities.

 

102 Id. at para 1-4.

103 Id.

104 FM 100-19, supra note 1, at 1-3.

105 Id.
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1. National Guard Assistance for Certain Youth and Charitable

Organizations

National Guard (NG) members and units, in conjunction with required

military training,106 may provide services to certain eligible youth and

charitable organizations.107 The eligible organizations are:

• Boy and Girl Scouts of America;

• Boys and Girls Clubs of America;

• Young Men's and Young Women's Christian Associations

(YMCA/YWCA);

• Civil Air Patrol;

• U.S. Olympic Committee;

• Special Olympics;

• Campfire Boys and Girls;

• 4-H Clubs; and

• Police Athletic Leagues.108

The Secretary of Defense is authorized to designate other youth or

charitable organizations for support. Authorized services include ground

transportation, administrative support, technical training, emergency medical

assistance, and communications services. The Special Olympics are

specifically authorized air transportation.109

In providing authorized services, NG facilities and equipment,

including U.S. military property issued to the NG and General Services

Administration (GSA), vehicles leased to the NG, and General Services

Administration vehicles leased to DOD may be used.110 As with other types

of domestic support operations, the provision of services must not adversely

affect the quality of NG training or otherwise interfere with the member's or

unit's ability to perform military functions. Among other factors

circumscribing the provision of such services, training costs should not

significantly increase, and NG personnel should enhance their military skills

 

106 32 U.S.C.A. § 502 (1959).

107 32 U.S.C.A. § 508.

108 32 U.S.C.A. § 508(d).

109 32 U.S.C.A. § 508(b).

110 32 U.S.C.A. § 508(c).
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as a result of providing such services. The requested services must not be

commercially available, unless a commercial entity that would otherwise

provide such services has approved, in writing.111

2. Support and Services for Eligible Organizations and Activities Outside

DOD

The military departments are also authorized to provide services and

support to certain non-DOD eligible organizations.112 See Chapter 8,

Military Support to Special Events for a discussion of the relevant

authorities.

3. National Guard Civilian Youth Opportunities Program.

The SECDEF, acting through the Chief, National Guard Bureau,

conducts a National Guard civilian youth opportunities program, known as

the ''National Guard Challenge Program''.113 Intended to improve the life

skills and employment potential of civilian youth, the Challenge Program is

a youth program directed at helping children attain a high school diploma,

providing job training and placement, improving personal and social skills,

and providing health and hygiene education and physical training.114

Soldiers work with civilian leaders to provide a comprehensive support

package ranging from choosing appropriate clothing to attending residential

training facilities.

The Challenge Program uses National Guard personnel to provide

military-based training, including supervised work experience in community

service and conservation projects, to civilian youth who have not graduated

from a secondary school.115 To carry out the Program, the SECDEF enters

into an agreement with a state governor or, in the case of the District of

Columbia, with the commanding general of the District of Columbia

National Guard. 116 Usually, the governor will delegate the establishment,

 

111 32 U.S.C.A. § 508(a)

112 10 U.S.C.A. § 2012(a)(1998).

113 32 U.S.C.A. § 509 (1959).

114 32 U.S.C.A. § 509(a).

115 32 U.S.C.A. § 509(g).

116 32 U.S.C.A. § 509(c).
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organization and administration of the Program to the state Adjutant General

(TAG).

The Challenge Program is not cost-free.117 For fiscal year 2001 and

thereafter, a state must provide at least 40 percent of the annual Challenge

Program operating costs. National Guard equipment and facilities, including

U.S. military property issued to the Guard, may be used in carrying out the

Challenge Program.118 See Appendix 8-5, NG Domestic Program Costs. A

state may supplement its cost-share out of other resources, including gifts. It

is also permissible for the Program to accept, use, and dispose of gifts or

donations of money, other property, or services.119

Individuals selected for training in the NG Challenge Program may

receive the following benefits: allowances for travel, personal and other

expenses; quarters; subsistence; transportation; equipment; clothing;

recreational services and supplies; and, a temporary stipend upon the

successful completion of the training (GS-2 minimum rate of pay under 5

USC § 5332).120 A person receiving training under the Challenge Program

is considered a U.S. employee for the purposes of Title 5 (relating to

compensation of Federal employees for work injuries) and Title 28, and any

other provision of law, relating to federal liability for tortious conduct of

employees.121

4. Additional Assistance Programs

FM 100-19 authorizes Army involvement in a wide variety of national

assistance programs focusing on economic and social issues.122 These

include the Civilian Community Corps, the Drug Demand Reduction

Program, the Science and Technology Academies Reinforcing Basic

Aviation and Space Exploration (STARBASE) program, the Youth Physical

Fitness Clinic Program, and the Medical Readiness Program.123

 

117 32 U.S.C.A. § 509(d).

118 32 U.S.C.A. § 509(h).

119 32 U.S.C.A. § 509(j).

120 32 U.S.C.A. § 509(g).

121 32 U.S.C.A. § 509(h).

122 See FM 100-19, supra note 1, at Chap. 8.

123 Id.
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CHAPTER 9.

INTELLIGENCE LAW AND POLICY CONSIDERATIONS DURING

DOMESTIC SUPPORT OPERATIONS

KEY REFERENCES:

• 50 U.S.C. § 1801 et seq. - Foreign Intelligence Surveillance

• Executive Order 12333 - U.S. Intelligence Activities

• DODD 5240.1 - DOD Intelligence Activities

• DOD 5240.1-R - Procedures Governing the Activities of DOD

Intelligence Components That Affect U.S. Persons

A. INTRODUCTION

Military intelligence units have a very limited role during domestic

support operations other than civil disturbance operations.1

 There are two

reasons for this. First, the mission of military intelligence units is to collect

foreign intelligence (FI)2

 and counterintelligence (CI),3 neither of which is

present in a typical domestic support operation. Second, military

intelligence organizations are generally prohibited from collecting, retaining,

or disseminating information about the domestic activities4

 of United States

 

1

 U.S. DEP’T OF DEFENSE, REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD

INTELLIGENCE COMPONENTS THAT AFFECT UNITED STATES PERSONS (Dec. 1982)[hereinafter DOD 5240.1-

R], does not apply to DOD intelligence components when they perform authorized law enforcement

activities, including civil disturbance activities. In such cases, DOD intelligence components may collect,

report, process, and store information on the activities of persons and organizations not affiliated with the

Department in accordance with U.S. DEP’T OF DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION

CONCERNING PERSONS AND ORGANIZATIONS NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan.

1980) and U.S. DEP’T OF DEFENSE CIVIL DISTURBANCE PLAN (GARDEN PLOT) (15 Feb. 1991).

2 Foreign intelligence means information relating to the capabilities, intentions, and activities of foreign

powers, organizations, or persons, but not including counterintelligence except for information on

international terrorist activities. Exec. Order No. 12,333, U.S. Intelligence Activities, para. 3.4(d)(Dec. 4,

1981)[hereinafter EO 12333].

3 Counterintelligence means information gathered and activities conducted to protect against espionage,

other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers,

organizations, or persons, or international terrorist activities, but not including personnel, physical,

document, or communications security programs. Id. at para. 3.4(a).

4 Domestic activities refers to activities that take place within the United States that do not involve a

significant connection with a foreign power, organization, or person. DOD 5240.1-R, supra note 1, at

paragraph B3.
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(U.S.) persons.5

 Commanders and their staffs should carefully consider

these restrictions when planning domestic support operations. Depending on

the mission, it may be inappropriate to assign intelligence tasks to

subordinate units. To the extent that any intelligence tasks are assigned to

subordinate units, commanders must ensure that those tasks are narrowly

tailored to accomplish an authorized function of the unit concerned, and that

the unit performs those tasks in accordance with applicable law and policy.

This section examines the proper role of military intelligence units during

domestic support operations; the rules regarding the collection, retention,

and dissemination of information about U.S. persons; and the judge

advocate’s responsibilities in this area.

B. THE ROLE OF MILITARY INTELLIGENCE UNITS DURING DOMESTIC

SUPPORT OPERATIONS

Department of Defense (DOD) intelligence activities are governed by

three primary references. Executive Order (EO) 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 US intelligence community.6

 DOD Directive

(DODD) 5240.1,7 DOD Intelligence Activities, and DOD 5240.1-R,

Procedures Governing the Activities of DoD Intelligence Components that

affect United States Persons8

 implement the guidance contained in EO

12333 as it pertains to DOD.

These authorities authorize the FI and CI elements of the Army, Navy,

Air Force, and Marine Corps to collect, produce, and disseminate military

and military-related FI and CI, and information on the foreign aspects of

narcotics production and trafficking. Implicit in this authorization is a

requirement that such intelligence relate to the activities of foreign powers,

organizations, persons, and their agents (including U.S. persons). Because

 

5

 "United States person" means a United States citizen, an alien known by the intelligence agency

concerned to be a permanent resident alien, an unincorporated association substantially composed of

United States citizens or permanent resident aliens, or a corporation incorporated in the United States,

except for a corporation directed and controlled by a foreign government or governments. EO 12333,

supra note 2, at para. 3.4(i).

6 Id.

7

 U.S. DEP’T OF DEFENSE, DIR. 5240.1, DOD INTELLIGENCE ACTIVITIES (25 Apr. 1988) [hereinafter DODD

5240.1].

8

 DOD 5240.1-R, supra note 1.
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domestic support operations rarely involve foreign powers, organizations, or

persons, military intelligence organizations typically have little or no role to

play during such operations.

In the absence of any foreign involvement, military intelligence

organizations are generally limited to performing non-intelligence functions

in a domestic support operation. Moreover, to the extent that military

intelligence organizations are authorized to collect FI or CI within the

United States, they may do so only in coordination with the Federal Bureau

of Investigation (FBI), which has primary responsibility for intelligence

collection within the United States. It is important to remember that the

Lead Federal Agency (LFA) exercises overall responsibility for the

collection, analysis, and dissemination of information concerning the

operating environment.

Within the Department of Defense, the Defense Criminal

Investigative Organizations (DCIOs) have primary responsibility for

gathering and disseminating information about the domestic activities of

U.S. persons that threaten DOD personnel or property. DOD components,

other than the intelligence components, may collect, report, process, and

store information on 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 and

Organizations Not Affiliated with the Department of Defense. Those

circumstances include the acquisition of information essential to accomplish

the following DOD missions: protection of DOD functions and property,

personnel security, and operations related to civil disturbances.

Military intelligence organizations may, however, still collect, retain,

produce and disseminate information such as maps, terrain analysis, and

damage assessments so long as they do not identify an U.S. person. An U.S.

person, however, includes many unincorporated associations and U.S.

corporations (e.g., “Joe’s Diner”).9

C. INTELLIGENCE COLLECTION WITHIN THE UNITED STATES

In accordance with EO 12333, the Department of Defense has

established procedures in DODD 5240.1 and DOD 5240.1-R for the

 

9 See note 5, supra, which contains the definition of an U.S. person.
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178

collection, retention, and dissemination of information concerning U.S.

persons.10 DODD 5240.1 and DOD 5240.1-R apply to all DOD intelligence

components and activities.11 Special emphasis is given to the protection of

the constitutional rights and privacy of U.S. citizens. Collection techniques

must use the least intrusive means feasible.12 Collection of information on

U.S. persons must be necessary to the functions of the DOD intelligence

component concerned.13 DODD 5240.1 states that it “... shall be the only

authority used as guidance by DOD intelligence components to collect,

retain, or disseminate information concerning U.S. persons.” Further, it

requires all DOD employees to report violations of intelligence law to the

Inspector General or General Counsel of the DOD intelligence component

concerned.

The specific procedures governing the collection of information on

U.S. persons by DOD intelligence components14 are provided in DOD

5240.1-R. DOD 5240.1-R is divided into fifteen separate procedures that

govern the collection of intelligence. The purpose of these procedures is to

enable DOD intelligence components to effectively carry out their

authorized functions while ensuring their activities that affect U.S. persons

are carried out in a manner that protects the constitutional rights and privacy

of such persons.15 Procedures 2 through 4 provide the sole authority by

which DOD components may collect, retain, and disseminate information

 

10 Judge advocates must read these authorities before advising a commander on the collection of

information in a domestic support operation.

11 DODD 5240.1, supra note 7, at para. 2.3 does not apply to authorized law enforcement activities carried

out by DoD intelligence components having a law enforcement mission.

12 Id. at para. 4.1.

13 Id. at 4.2.1.

14 DoD intelligence components include: (a) The National Security Agency/Central Security Service, (b)

The Defense Intelligence Agency, (c) offices within DoD for the collection of specialized national foreign

intelligence through reconnaissance programs, (d) The Assistant Chief of Staff for Intelligence, Army

General Staff, (e) The Office of Naval Intelligence, (f) The Assistant Chief of Staff, Intelligence, U.S. Air

Force, (g) The Army intelligence and Security Command, (h) The Naval Intelligence Command, (i) The

Naval Security Group Command, (j) The Director of Intelligence, U.S. Marine Corps, (k) The Air Force

Intelligence Service, (l) The Electronic Security Command, U.S. Air Force, (m) The counterintelligence

elements of the Naval Investigative Service, (n) The counterintelligence elements of the Air Force Office of

Special Investigations, (o) The 650th Military Intelligence Group, SHAPE, (p) Other organizations, staffs,

and offices, when used for foreign intelligence or counterintelligence activities to which part 2 of EO 12333

applies, provided that the heads of such organizations, staffs, and offices shall not be considered as heads of

DoD intelligence components for purposes of this Regulation. DOD 5240.1-R, supra note 1, at appendix

A, para. 8.

15 Id. at para. B.
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concerning U.S. persons. Procedures 5-10 set forth the applicable guidance

with respect to the use of certain collection techniques to obtain information

for foreign intelligence and counterintelligence purposes. Procedures 11

through 15 govern other aspects of DOD intelligence activities, including the

oversight of such activities. In addition to the procedures themselves, the

Defense Human Intelligence Service, Defense Intelligence Agency, has

published an instructive manual entitled The Intelligence Law Handbook

(September 1995), to provide additional interpretive guidance to assist legal

advisers, intelligence oversight officials, and operators in applying DOD

5240.1-R. See also Appendix 9-1, Policy Guidance for Intel Support in

CONUS.

D. JUDGE ADVOCATE INTELLIGENCE LAW AND OVERSIGHT

RESPONSIBILITIES

Judge advocates (JAs) are responsible for the following: advising the

commander and staff on all intelligence law and oversight matters within

their purview; recommending legally acceptable courses of action;

establishing, in coordination with the Assistant Chief of Staff for

Intelligence (G-2/S-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. JAs 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, JAs

should be familiar with the restrictions on the collection, retention, and

dissemination of information about U.S. persons, 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.16 JAs also should establish close working relationships with

the legal advisors of supporting intelligence agencies and organizations, all

of whom can provide expert assistance.

 

16 DOD 5240.1-R, supra note 1, at procedure 15.
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RESERVE COMPONENTS

181

CHAPTER 10.

RESERVE COMPONENTS - SPECIAL ISSUES

KEY REFERENCES

• 10 U.S.C. § 12301 et seq. - Reserve Components Generally

• 32 U.S.C. § 101 et seq. - National Guard

• AR 130-5 - Organization and Functions of National Guard Bureau

• AR 135-200 - Active Duty for Training, Annual Training and Active

Duty Special Work of Individual Soldiers

• AR 135-18 - The Active Guard Reserve (AGR) Program

• AR 135-210 - Order to Active Duty as Individuals for Other than a

Presidential Selected Reserve Call-Up, Partial or Full Mobilizations

• NGR 10-1 - Organization and Federal Recognition of Army National

Guard Units

• NGR 130-6, United States Property and Fiscal Officer Appointment,

Duties, and Responsibilities

• NGR 600-1 - Army National Guard Tour Program

• NGR 635-100 - Termination of Appointment and Withdrawal of Federal

Recognition

A. INTRODUCTION

Active component JAs are often asked questions about Reserve

Component (RC) status. This section discusses the various reserve

components and the importance of their designated status to the missions

they may perform. The RC plays a significant role in domestic support

operations. See Appendix 10-1, Role of the NG in Domestic Support

Operations.

The RC include the Army National Guard of the United States

(ARNGUS), the United States Army Reserve (USAR), the United States

Naval Reserve (USNR), the United States Marine Corps Reserve (USMCR),

the Air National Guard of the United States (ANGUS), the United States Air

Force Reserve (USAFR), and the United States Coast Guard Reserve

(USCGR).
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182

Although the Air National Guard (ANG), the Air Force Reserve

(AFR), and Navy and Marine Corps Reserve form vital parts of the overall

Reserve Component (RC) structure, this section focuses on Army National

Guard (ARNG) and US Army Reserve (USAR) Judge Advocate (JA)

operations.

B. STATUS OF PERSONNEL

Determining the "status" of National Guard and Reserve soldiers is

critical to defining their roles and responsibilities. Status is also the primary

factor for determining the applicability of law. For instance, the PCA

applies to the National Guard when they are in a Title 10 status, but not

when they are on State Active Duty.

1. National Guard

a. Dual Status

Members of the State Army National Guard (NG) simultaneously

serve in a Federal status as members of the Army National Guard of the

United States (ARNGUS). Phrased differently, a NG soldier has dual status:

non-federal, as a member of the NG of a state, territory, Puerto Rico, or the

District of Columbia; and federal, as a member of the ARNGUS in Title 10

status. When on active federal duty as a member of the ARNGUS, a NG

soldier is relieved of duties as a member of the state NG. When performing

state active duty, a National Guard member is in state status. When

performing duty pursuant to title 32, U.S. Code, a National Guard member is

administered in a state status but paid with Federal funds and trained for the

Federal mission. Because National Guard units are subject to state control

unless "federalized," they generally respond to local emergencies before

active forces.1

(1) Non-Federal Status

In their state capacity, National Guard units comprise fifty-four

separate armies and air forces under the command and control of The

 

1

 Members of the Army National Guard of the United States (ARNGUS) serve in a dual status as members

of their respective state Army National Guard organizations and as members of the Reserve of the Army.

As used in this Handbook, the term "federalized" means called to federal service to perform a federal

mission under Title 10.
RESERVE COMPONENTS

183

Adjutants General (TAGs) and the Governors of their respective states or

territories. The Governor is the Commander in Chief for his particular

ARNG and ANG units. In this status, they are subject to the military code of

the respective state to which they belong. Only when they are federalized do

they become subject to the Uniform Code of Military Justice (UCMJ).

(a) Title 32 Status

The majority of ARNG soldiers are traditional Guard personnel,

sometimes referred to as "M-Day (Mobilization Day) Guardsmen". This

connotes the weekend drills of inactive duty training (IDT) and annual

training (AT). Each year, such NG soldiers are required to perform 48 IDT

drills and 15 days of AT. The operations of NG units in Title 32 status are

controlled by the individual states, supplemented by funding from federal

sources pursuant to federal regulations.2

 In Title 32 status, the NG has a

federal mission. Federal recognition of NG units and associated funding is

conditioned upon the unit continuing to meet applicable federal standards.3

ARNG soldiers performing duty in Title 32 status are covered by the Federal

Tort Claims Act (FTCA).

NG personnel in Title 32 status may not provide military support to

civil authorities (MSCA), such as disaster assistance. They must be in a

State Active Duty (SAD) status (funded by the state) to perform those

functions. In the past, TAGs have run afoul of this rule, providing such

services to Governors when NG troops were in a Title 32 status. In some

cases, the state was required to reimburse the federal government for the

inappropriate use of NG personnel.

(b) State Active Duty

State Active Duty (SAD) is a NG-only status. It has no relationship to

USAR or Active Duty (AD). In a SAD status, NG personnel are controlled

by their individual state, subject to the command and control of the

respective Governor and Adjutant General. NG units perform duties

authorized by state law, such as responding to emergencies or natural

disasters, and are paid with state funds.

 

2 Illinois National Guard v. Federal Labor Relations Authority, 854 F.2d 1396, 1398 (D.C. Cir. 1988).

3 32 U.S.C.A. §108 (1959).
DOPLAW HANDBOOK

184

For these types of operations, the Governor will issue a proclamation

of an emergency and order a unit or units to SAD. There is no obligation of

DOD funds for any personnel or units performing SAD. Specific legislation

governs the use of RC forces (NG and USAR) in domestic emergencies.4

(2) Federal Status-Title 10

NG units or members may be ordered to active federal duty in one of

two ways. One is pursuant to the power of Congress to call out the militia to

enforce federal law, suppress insurrections, or repel invasions.5

 Congress

has given the President the authority to call the NG to active duty for these

purposes.6

 The other way is to order NG members or units to active federal

duty, with the consent of the Governor, as members of the ARNGUS.7

 To

become an ARNGUS member, the guardsman or unit must also be

"federally recognized." To be federally recognized, the guardsman or unit

must meet prescribed federal standards.8

b. Duty Status

ARNG soldiers will be in one of the following seven duty statuses,

but only one at any time:

• Initial Active Duty for Training (IADT), a Title 10 status;

• Inactive Duty for Training (IDT), a Title 32 status;

• Annual Training (AT), a Title 32 status for the NG;

• Training other than IADT, IDT or AT;

• Special Work;

• Active Guard and Reserve (AGR); or

• Extended Active Duty (EAD).

 

4

 10 U.S.C.A. §12301 et seq. (1998).

5 U.S. CONST. art. I, § 8, cl. 15; 10 U.S.C.A. §§331-333 (1998).

6

 10 U.S.C.A. § 331-333 (1998).

7 U.S. CONST. art. 1, §8, cl. 12; Perpich v. Department of Defense, 496 U.S. 334 (1990), 10 U.S.C.A.

§12304 (1998).

8 U.S. DEP’T OF ARMY, NAT’L GUARD BUREAU REG. 10-1, ORGANIZATION AND FEDERAL RECOGNITION OF

ARMY NATIONAL GUARD UNITS (19 May 2000).
RESERVE COMPONENTS

185

Training other than IADT, IDT or AT is either:

• Full Time National Guard Duty (FTNGD) for Training (FTNGDT), a

Title 32 status (including attendance at active Army schools other than

IADT); or

• Active Duty for Training (ADT), a Title 10 status.9

Special Work includes:

• FTNGD for Special Work (FTNGDSW), a Title 32 status designated to

support the ARNG in the states;

• Active Duty for Special Work (ADSW), a Title 10 status to support the

ARNG at federal headquarters;10 or

• Temporary Tour of Active Duty (TTAD), a Title 10 status to support the

Active Army.11

The AGR program is discussed below. EAD, a Title 10 status,

requires soldiers to be accessed into the end strength of the Active Army and

paid by Active Army appropriations.12

c. Full-time National Guard Personnel

(1) National Guard Technicians

A status variation unique to the NG is the NG military technician.13

Technicians are federal employees under the exclusive control of a state

official, the TAG, who hires, fires, and supervises them. NG technicians

must maintain three affiliations. First, technicians are federal civilian

employees, employed under 32 USC §709, for whom ARNG membership is

 

9

 ARNG soldiers training overseas must be in Title 10 status, thus they are performing ADT instead of AT.

10 See U.S. DEP’T OF ARMY, REG. 135-200, ACTIVE DUTY OF TRAINING, ANNUAL TRAINING AND ACTIVE

DUTY SPECIAL WORK OF INDIVIDUAL SOLDIERS, Ch. 6 (30 June 1999).

11 TTAD must be funded by Active Army. See U.S. DEP’T OF ARMY, REG. 135-210, ORDER TO ACTIVE

DUTY AS INDIVIDUALS FOR OTHER THAN A PRESIDENTIAL SELECTED RESERVE CALL-UP, PARTIAL OR FULL

MOBILIZATION, Ch.3 (17 Sept. 1999)[hereinafter AR 135-210].

12 See id. at Ch. 2. Section 521 of the FY 2001 National Defense Authorization Act exempts reserve

officers on the reserve active-status list (RASL) serving on active duty for 3 years or less from placement

on the active-duty list (ADL). Previously, these soldiers were added to the ADL for promotion.

13 National Guard Technicians Act of 1968, 32 U.S.C.A. §709 (1959).
DOPLAW HANDBOOK

186

a condition of employment. During the normal workweek, NG technicians

serve as “excepted service” civil servants employed under 32 USC

§709(d).14 Second, Technicians must maintain membership in a state NG.15

Third, they must also serve as a member of the ARNGUS.16

If a NG technician loses his NG full-time employment position, status

as a technician is terminated.17 In their civilian capacity, "excepted service",

NG technicians are responsible for the maintenance of equipment, training,

employment in state headquarters, air defense, civil defense, and aircraft

operations. In their civilian capacity, their participation in domestic support

operations may be limited. Any participation must fall within the position

description for the particular job the NG technician performs; otherwise, the

NG technician will be placed in a leave status and placed on SAD orders.

However, NG technicians also have the responsibility to train and

perform general military duties with their unit and to be available to enter

active federal service when their units are activated. In their NG capacity,

they may play a significant role in domestic operations. In many cases, State

Area Readiness Command (STARC) principal staff officers also serve in a

technician role. Their technician and NG roles are very similar. Thus, in

their non-technician status they would play an extremely important

leadership role in a domestic support operation response.18 Technicians

employed under 32 USC §709 are covered under the Federal Tort Claims

Act. (FTCA).

(2) State civilian employees

Just as DOD employs civilians, the NG also employs civilians. NG

civilian employees are hired pursuant to federal-state cooperative

agreements.19 These personnel are authorized to use vehicles, property and

equipment provided to the ARNG by the federal government to accomplish

 

14 Lopez v. Louisiana National Guard, 733 F. Supp. 1059, 1065 (E.D. La. 1990).

15 39 U.S.C.A. §709(6)(1980).

16 10 U.S.C.A. §§101(c)(3), (c)(5)(1998).

17 U.S. DEP’T OF ARMY, NAT’L GUARD BUREAU REG. 635-100, COMMISSIONED OFFICER—FEDERAL

RECOGNITION AND RELATED PERSONNEL MATTERS, Ch 6. (15 Apr. 1994).

18 National Guard Technicians Act of 1968, 32 U.S.C.A. §709 (1959).

19 32 U.S.C.A. § 6305 (1959).
RESERVE COMPONENTS

187

their duties under the cooperative agreement. Although not required, they

often are also members of the ARNG.

(3) Active Guard and Reserve and Full Time National

Guard Duty

See Section 3. Active Guard and Reserve and Full Time National

Guard Duty, below.

2. U.S. Army Reserve

USAR support to domestic operations may include the use of

equipment and other resources, including units and individuals. USAR

personnel may be employed for civil emergencies in a volunteer status, be

ordered to active duty for annual training, or be called to active duty after the

President has declared a national emergency. When performing military

duties, the USAR is always in Title 10 status.

a. Categories of U.S. Army Reserve Forces

The USAR is divided into four categories.

• Troop Program Units (TPUs) - Consisting mainly of CS/CSS units, these

are units that train together to mobilize as units.

• Individual Mobilization Augmentee (IMA) - An IMA is an individual

assigned to an AC organization for training and augmentation to an

assigned organization when mobilized.

• Individual Ready Reserve (IRR) - The IRR contains individuals assigned

to the USAR Personnel Center (ARPERCEN) for training and

mobilization. These individuals are only called to active duty during full

mobilization.

• Active Guard and Reserve (AGR) - An AGR serves on active duty, in a

career program, to provide full time support to the USAR (see discussion

below).
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b. Full-time U.S. Army Reserve Personnel20

There are two types of full time USAR personnel.

• USAR Technicians - In a role paralleling that of NG technicians, AR

140-315 establishes regulatory authority for USAR technicians, who

serve as both excepted federal civilian employees and as members of the

USAR.

• Active Guard and Reserve (AGR) - See Section 3.Active Guard and

Reserve and Full Time National Guard Duty, below.

3. Active Guard and Reserve and Full Time National Guard Duty

Both USAR and NG personnel may serve in full-time military status

in the Active Guard and Reserve (AGR) Program. The objective of the AGR

Program is to provide highly qualified officer and enlisted personnel to meet

the support requirements of ARNGUS and USAR projects and programs.

USAR personnel in the AGR program serve in a title 10 status. ARNGUS

members may serve in the AGR program on active duty in a title 10 status or

on Full Time National Guard Duty (FTNGD) in a title 32 status. The

purpose of FTNGD is to organize, administer, instruct, and train the

ARNGUS. For a good discussion of AGR status, see United States ex rel.

Karr v. Castle, 746 F. Supp. 1231, 1237 (Del. 1990).

4. Miscellaneous Title 10 Service

Members in this category include members of the National Guard

Bureau (NGB), U.S. Property and Fiscal Officers (USPFO) in each state

serving the NG,21 or any other NG members serving a tour of duty under

Title 10. The USPFO’s duties are limited to administering property in the

possession of the NG.22

 

20 See supra note 13 and accompanying text.

21 32 U.S.C.A. §708 (1959).

22 32 U.S.C.A. §708(c).
RESERVE COMPONENTS

189

a. National Guard Bureau

The NG channel of communications at the federal level is the NGB, a

statutory, joint bureau within DOD.23 Serving as the legal channel of

communication among the Army, the Air Force, and the NG in the 54 states

and territories, the NGB is the coordination, administrative, policy, and

logistical center for the ARNG and the ANG.24 The Chief, NGB, a

lieutenant general, is the principal advisor on NG matters to the Secretaries

of the Army and Air Force and to the Army and Air Force Chiefs of Staff.

The Chief, NGB, has executive agent responsibility for planning and

coordinating the execution of NG military support operations. The Director,

Army National Guard (DARNG), and the Director, ANG, are responsible to

the Chief, NGB.

The Chief Counsel, NGB, provides legal advice and assistance to the

Chief, NGB, the Directors of the Army and Air National Guards, and to the

full-time AGR JAs. The Chief Counsel normally employs a joint staff of

twenty-two military and civilian attorneys in a wide variety of disciplines,

including administrative law, contract and fiscal law, international and

operational law, environmental law, legislation, labor law, and litigation.

b. U.S. Property and Fiscal Officers

As Title 10 officers assigned to the NGB, a USPFO is detailed for

duty to a state or territory and is accountable for all federal resources

(equipment, dollars, and real estate) provided to the NG of each state.25

The USPFO's staff provides supply, transportation, internal review, data

processing, contracting, and financial support for the state NG. When

required, the USPFO staff can support AC or USAR forces on a

reimbursable basis.

 

23 10 U.S.C.A. §3015(a)(1998).

24 U.S. DEP’T OF ARMY, REG. 130-5/U.S. DEP’T OF AIR FORCE, REG. 45-17, ORGANIZATION AND

FUNCTIONS OF NATIONAL GUARD BUREAU (8 Dec. 1977).

25 U.S. DEP’T OF ARMY, NAT’L GUARD BUREAU REG. 130-6, UNITED STATES PROPERTY AND FISCAL

OFFICER APPOINTMENT, DUTIES, AND RESPONSIBILITIES (17 Dec. 1999).
DOPLAW HANDBOOK

190

C. RESERVE COMPONENT JUDGE ADVOCATES

1. National Guard Judge Advocates

The majority of the fifty-four National Guards have a single, full-time

AGR JA, and all have a part-time state Staff Judge Advocate (SJA). Both

the full-time JA and the part-time SJA may be either ANG or ARNG. Their

primary mission is to advise their respective TAG. As noted previously,

each of the fifty states, Guam, Puerto Rico, the Virgin Islands, and the

District of Columbia, have their own distinct, independently commanded

NG. Thus, the state JA roles and missions will vary.

ARNG legal personnel support both state missions and federal

missions. Approximately fifty per cent of the ARNG JAs are assigned to

SJA sections in combat support and combat service support units (CS/CSS).

The remaining ARNG JAs are usually assigned to the STARC or territory

headquarters.

The state SJA is the POC for purposes of coordinating training and

preparation for natural disasters, civil disturbance, civilian assistance, and

counterdrug missions within the respective state/territorial jurisdiction. The

SJA of the ARNG combat or CS/CSS unit is the POC for legal training for

the federal training/mobilization mission. ARNG JAs typically possess a

broad range of experience and expertise, both military and civilian. ARNG

JAs can also be used as effective liaisons with local and state governments

because of their extensive local community contacts.

2. U.S. Army Reserve Judge Advocates

a. Active Guard Reserve Judge Advocates

AGR JAs are on indefinite active duty status and assigned to various

Active Army and USAR organizations.26 Often responsible for the day-today legal affairs of the USAR legal office to which assigned, the mission of

the AGR is to train, recruit, administer and organize the USAR on a full time

basis. AGR JAs are assigned to each Regional Support Command (RSC),

U.S. Army Civil Affairs and Psychological Operations Command

 

26 U.S. DEP’T OF ARMY, NAT’L GUARD BUREAU REG. 600-10, ARMY NATIONAL GUARD TOUR PROGRAM

(24 Feb. 1983).
RESERVE COMPONENTS

191

(USACAPOC), the Army Reserve Personnel Center (ARPERCEN), the

Judge Advocate General's School (TJAGSA), the Office of the Judge

Advocate General (OTJAG), and each USAR General Officer Command

Direct Reporting Unit (DRU).

b. Embedded Judge Advocates

JAs are embedded in several USAR Table of Organization and

Equipment (TOE) units such as the 807th Medical Brigade, the 3rd

COSCOM, the 21st TSC. These judge advocates (JAs) train to mobilize with

their units. USAR JAs can also be found in several USAR Table of

Distribution and Allowance (TDA) organizations such as the ten Regional

Support Commands (RSCs). The mission of these JAs is to perform the

traditional function of providing legal support to the respective command.

c. Table of Organization and Equipment Legal Units

The USAR has a unique modular force structure of Table of

Organization and Equipment (TOE) legal units, which field six different

types of Judge Advocate General Service Organizations (JAGSOs).

(1) Legal Support Organizations

The Legal Support Organization (LSO) provides operational control

and technical supervision over the subordinate legal teams actually

providing legal support services. The LSO is modularly organized into two

support sections so as to be capable of providing supervision over splitbased operations. Seven of the eighteen LSOs have missions to deploy

outside the continental United States to provide legal support services in up

to two operational or geographically discrete areas. These LSOs are usually

affiliated with particular AC units, with which they have a habitual

relationship.

The remaining eleven LSOs are Mobilization Support Organizations

(MSOs) which have a primary mission to form part of the continental United

State support base and to provide mobilization legal support at the

Mobilization Stations. Two new, functional LSOs will provide Trial

Defense Services under the guidance of the U.S. Army Trial Defense

Service, and one new LSO will contain all Reserve Military Trial Judges

under the guidance of the Army Trial Judiciary. These new functional LSOs
DOPLAW HANDBOOK

192

will gradually replace the military trial defense teams and military judge

teams in the current LSO TOE over the next few years.

(2) Legal Services Teams

Organized on the basis of one Legal Service Team (LST) per 7,000

soldiers, the LST is the basic module capable of providing all legal services

to a command. Each LST is functionally divided into three sections: the

command opinions section, the client services section, and the litigation

section.

d. Individual Ready Reserve Augmentees

Individual Ready Reserve (IRR) Augmentee JAs are assigned to

specific Active Army positions on the mobilization TDA of an Active Army

organization. With a mission to provide augmentation legal services to the

Active Army organization when called, the IRR Augmentees train with their

Active Army organization during peacetime. The IRR Augmentee has great

flexibility in timing training periods and may be utilized for additional

periods during peacetime for Active Army support IAW AR 135-210.

e. Individual Ready Reserve (Control Group)

IRR JAs are assigned to ARPERCEN to be managed until they are

assigned to a TPU or as an IMA or AGR, or transferred to Retired Reserve

or Standby Reserve or are discharged. While in the IRR a judge advocate

may receive orders to report for duty for, among other reasons, training,

temporary active duty, or mobilization.