DOMESTIC OPERATIONAL LAW

2015 Handbook

for Judge Advocates

The Judge Advocate General’s Legal Center and School

U.S. Army

Center for Law and Military Operations (CLAMO)

Charlottesville, Virginia 22903-1781
DOMESTIC OPERATIONAL LAW

HANDBOOK

2015

FOR JUDGE ADVOCATES

CENTER FOR LAW AND MILITARY OPERATIONS

2015 DOMESTIC OPERATIONAL LAW HANDBOOK

A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES

EDITORS

LCDR Bryan Blackmore, USCG LCDR Stan Fields, USCG

2015 CONTRIBUTORS

COL Michael Noyes LTC Richard Sudder

CDR David Sherry Lt Col Marc Koblentz

MAJ Ben Currier MAJ Stephen Faherty

MAJ George Burnett MAJ Robert Kavanaugh

LTC Joseph Fairfield MAJ Matthew Lund

MAJ Patrick Walsh MAJ Jessica Farrell

MAJ Jose Gonzalez-Rodriguez MAJ Mark Gardner

Mr. Dan Bertsch LT James Zoll

Capt James Burkart Capt Dean Korsak

As well as numerous past editors and contributors to the Domestic Operational Law 

Handbook.

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

the United States Government or any department or agency thereof.

The Judge Advocate General’s Legal Center & School

Cover Photos:

100421-G-XXXXL - Deepwater Horizon fire 

NEW ORLEANS - Fire boat response crews battle the blazing remnants of the off shore oil rig Deepwater Horizon 

April 21, 2010. A Coast Guard MH-65C dolphin rescue helicopter and crew document the fire aboard the mobile 

offshore drilling unit Deepwater Horizon, while searching for survivors April 21, 2010. Multiple Coast Guard 

helicopters, planes and cutters responded to rescue the Deepwater Horizon's 126 person crew. U.S. Coast Guard photo, 

PO Richard Brahm.

778178 - Hurricane Sandy

Sailors assigned to the amphibious assault ship USS Wasp (LHD 1) carry dewatering equipment to the Rockaway Water 

Pollution Control Plant. Wasp, USS San Antonio (LPD 17) and USS Carter Hall (LSD 50) are positioned in New York 

Harbor to provide support to areas affected by Hurricane Sandy. (U.S Navy photo by Mass Communication Specialist 

3rd Class Patrick Ratcliff/Released). Date Taken: 11/05/2012. Date Posted: 11/08/2012; VIRIN: 121105-N-RA981-

005. 

1201507 – Oso, WA, mudslide

Members of the Washington Air National Guard wade through mud and debris looking for signs of missing persons. 

More than 70 guardsman have been activated to help with search and rescue efforts due to the mudslide Saturday in 

Oso.(Photo by Spc. Matthew Sissel, 122D PAOC). Date Taken: 3/27/2014. Date Posted: 3/27/2014; VIRIN: 140327-

Z-RI264-008.

1007538 – Utah Wildfires

A U.S. Army UH-60 Black Hawk helicopter attached to the 2nd Battalion, 211th Aviation Regiment, Utah Army 

National Guard drops water on a wildfire in Summit County, Utah, Aug. 15, 2013. (U.S. Army National Guard photo by 

Ileen Kennedy/Released). Date Taken: 8/15/2013. Date Posted: 8/30/2013; VIRIN: 130815-Z-KC166-304. 

779935 - Hurricane Sandy

Two Coast Guard Dolphin HH-65C Helicopter's land, Nov. 2, 2012 aboard the amphibious assault ship USS Wasp 

(LHD 1). The U.S. Navy has positioned forces in the area to assist U.S. Northern Command (NORTHCOM) in support 

of FEMA and local civil authorities following the destruction caused by Hurricane Sandy. (U.S. Navy photo by Mass 

Communication Specialist 2nd Class Terah L. Mollise/Released). Date Taken: 11/02/2012. Date Posted: 11/09/2012; 

VIRIN: 121102-N-GZ984-271.

EDITORS’ NOTE

The Domestic Operational Law (DOPLAW) Handbook for judge advocates is a product of the 

Center for Law and Military Operations (CLAMO). Its content is derived from statutes, Executive 

Orders and Directives, national policy, DoD Directives, joint publications, service regulations, field 

manuals, and lessons learned by judge advocates and other practitioners throughout federal and 

state government. This edition includes substantial revisions. It incorporates new guidance set 

forth in Department of Defense Directive 3025.18 (Defense Support of Civil Authorities), 

Department of Defense Instruction 3025.21 (Defense Support of Civilian Law Enforcement 

Agencies), many new National Planning Framework documents, and many other recently updated 

publications. It provides amplifying information on wildfire response, emergency mutual assistance 

compacts, the role of the National Guard and Army units in domestic response, and provides 

valuable lessons learned from major incidents such as the 2010 Deepwater Horizon oil spill and 

Hurricane Sandy of 2012.

The Handbook is designed to serve as a working reference and training tool for judge advocates; 

however, it is not a substitute for independent research. With the exception of footnoted doctrinal 

material, the information contained in this Handbook is not doctrine. Judge advocates advising in 

this area of the law should monitor developments in domestic operations closely as the landscape 

continues to change and adapt. Further, the information and examples provided in this Handbook 

are advisory only. Finally, the content and opinions expressed in this Handbook do not represent 

the official position of the U.S. Army or the other services, the National Guard Bureau, the Office 

of The Judge Advocate General, The Judge Advocate General’s Legal Center and School, or any 

other government agency. 

This Handbook is also available in electronic format from the CLAMO website at 

https://www.jagcnet.army.mil/. CLAMO also provides lessons learned from domestic operations 

and other resources on its Domestic Operations portal on the CLAMO website. The continued 

vitality of this publication depends upon feedback from the field. Accordingly, CLAMO 

encourages your suggestions, comments, and work products for incorporation into the next edition 

of this Handbook. You may contact CLAMO at (434) 971-3248/3210 (COMM), 521-3248/3210 

(DSN), via email at usarmy.pentagon.hqda-tjaglcs.mbx.clamo-tjaglcs@mail.mil, or via regular mail 

at 600 Massie Road, Charlottesville, Virginia 22903-1781.

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TABLE OF CONTENTS

PREFACE...........................................................................................................vii

CHAPTER 1: OVERVIEW OF DOMESTIC SUPPORT OPERATIONS............................................................1

A. BACKGROUND..........................................................................................................................1

B. PURPOSE OF THIS HANDBOOK .................................................................................................2

C. DOD’S ROLE IN CIVIL SUPPORT...............................................................................................3

D. DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)................................................................5

E. HANDBOOK ORGANIZATION ....................................................................................................6

CHAPTER 2: NATIONAL FRAMEWORK FOR INCIDENT MANAGEMENT..................................................7

A. THE FEDERAL RESPONSE STRUCTURE......................................................................................8

1. E.O. 12656 ........................................................................................................................8

2. THE HOMELAND SECURITY ACT......................................................................................10

3. HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 5 (MANAGEMENT OF DOMESTIC 

INCIDENTS) ......................................................................................................................11

4. PRESIDENTIAL POLICY DIRECTIVE 8 ................................................................................12

5. PPD-8 AND THE NATIONAL PREPAREDNESS SYSTEM (NPS)............................................13

6. NATIONAL RESPONSE FRAMEWORK.................................................................................13

7. NATIONAL PREVENTION FRAMEWORK.............................................................................26

8. NATIONAL MITIGATION FRAMEWORK .............................................................................26

9. NATIONAL DISASTER RECOVERY FRAMEWORK...............................................................27

10. NATIONAL PROTECTION FRAMEWORK.............................................................................28

11. NATIONAL INCIDENT MANAGEMENT SYSTEM (NIMS)....................................................29

12. OTHER SIGNIFICANT RESPONSE PLANS AND AUTHORITIES RELATED TO NPS.................30

B. THE STAFFORD ACT...............................................................................................................33

1. REQUESTS FOR EMERGENCY OR MAJOR DISASTER DECLARATIONS ................................36

2. LIABILITY UNDER THE STAFFORD ACT.............................................................................38

3. CATEGORIES OF AGENCY SUPPORT UNDER THE STAFFORD ACT .....................................38

4. INTERPLAY BETWEEN THE STAFFORD ACT AND NPS ......................................................39

C. IMMEDIATE RESPONSE AUTHORITY .......................................................................................40

1. FEDERAL MILITARY COMMANDERS.................................................................................40

2. STATE GOVERNORS .........................................................................................................40

D. CONCLUSION..........................................................................................................................41

CHAPTER 3: STATUS AND RELATIONSHIPS BETWEEN COMPONENTS RESPONDING TO DOMESTIC 

INCIDENTS....................................................................................................................................43

A. INTRODUCTION ......................................................................................................................43

B. RESERVE COMPONENT...........................................................................................................44

1. U.S. ARMY RESERVE (USAR).........................................................................................44

2. U.S. AIR FORCE RESERVE (USAFR)...............................................................................44

3. U.S. NAVAL RESERVE (USNR).......................................................................................45

4. U.S. MARINE CORPS RESERVE (USMCR) ......................................................................45

5. U.S. COAST GUARD RESERVE (USCGR).........................................................................46

6. NATIONAL GUARD OF THE UNITED STATES (NGUS).......................................................46
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C. RESERVE COMPONENT CATEGORIES......................................................................................50

1. READY RESERVE .............................................................................................................50

2. STANDBY RESERVE .........................................................................................................52

3. RETIRED RESERVE...........................................................................................................52

D. RESERVE COMPONENT TRAINING AND SUPPORT ...................................................................52

1. TRAINING.........................................................................................................................53

2. SUPPORT..........................................................................................................................54

3. MILITARY TECHNICIANS (DUAL STATUS) (MT) ..............................................................55

E. MOBILIZATION/ACTIVATION OF RESERVE COMPONENT AND CALLING UP THE MILITIA .......55

1. FULL MOBILIZATION (10 U.S.C.A. § 12301(A))..............................................................56

2. PARTIAL MOBILIZATION (10 U.S.C.A. § 12302(A)) ........................................................56

3. PRESIDENTIAL RESERVE CALL-UP (PRC) (10 U.S.C.A. § 12304)....................................56

4. INVASIONS AND REBELLIONS (10 U.S.C.A. § 12406)......................................................56

5. THE INSURRECTION ACT (10 U.S.C.A. § 331-335) ..........................................................56

6. 15-DAY INVOLUNTARY FEDERAL ACTIVE DUTY (10 U.S.C.A. § 12301(B)) ...................57

7. VOLUNTARY FEDERAL ACTIVE DUTY (10 U.S.C A. § 12301(D))....................................57

8. MEDICAL CARE (10 U.S.C.A. § 12301(H))......................................................................57

9. RESERVISTS RECALLED FOR DOMESTIC EVENTS (10 U.S.C.A. § 12304A) .....................57

10. ACTIVE DUTY FOR PREPLANNED COCOM SUPPORT (10 U.S.C.A. § 12304B)...............58

F. UNITED STATES COAST GUARD (USCG)...............................................................................58

G. NATIONAL GUARD OF THE SEVERAL STATES.........................................................................60

1. OVERVIEW.......................................................................................................................60

2. TITLE 32 STATUS .............................................................................................................61

3. STATE ACTIVE DUTY.......................................................................................................62

4. ANG/ARNG PERSONNEL CATEGORIES...........................................................................62

5. UNIQUE HLS/HLD MISSIONS ..........................................................................................64

6. MISCELLANEOUS AREAS OF CAUTION .............................................................................64

H. CIVIL AIR PATROL (CAP)......................................................................................................71

CHAPTER 4: MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT.................................................73

A. INTRODUCTION.......................................................................................................................73

B. THE POSSE COMITATUS ACT .................................................................................................73

1. TO WHOM DOES THE PCA APPLY? .................................................................................74

2. WHERE DOES THE PCA APPLY?......................................................................................76

3. WHEN DOES THE PCA APPLY?........................................................................................77

4. STATUTORY CATEGORIES OF PCA APPLICATION AND POLICY IMPLEMENTATION...........80

CHAPTER 5: CIVIL DISTURBANCE OPERATIONS ................................................................................93

A. INTRODUCTION ......................................................................................................................93

B. CIVIL DISTURBANCE STATUTES.............................................................................................94

1. SUPPORTING A STATE OR TERRITORIAL REQUEST ...........................................................95

2. ENFORCE FEDERAL AUTHORITY ......................................................................................96

3. PROTECT CONSTITUTIONAL RIGHTS ................................................................................96

C. PROCEDURAL ISSUES .............................................................................................................97

D. DOD CONSIDERATIONS IN CIVIL DISTURBANCE OPERATIONS...............................................98

E. OTHER AUTHORITY ...............................................................................................................98
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1. EMERGENCY AUTHORITY ................................................................................................98

2. BARMENT/REMOVAL .......................................................................................................99

F. RESPONSIBILITIES AND RELATIONSHIPS OF PARTIES INVOLVED IN CIVIL DISTURBANCE 

OPERATIONS ..........................................................................................................................99

1. ATTORNEY GENERAL.......................................................................................................99

2. SENIOR CIVILIAN REPRESENTATIVE OF THE ATTORNEY GENERAL ................................100

3. ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND AMERICAS’

SECURITY AFFAIRS ........................................................................................................100

4. CHAIRMAN, JOINT CHIEFS OF STAFF, JOINT DIRECTOR OF MILITARY SUPPORT 

(JDOMS).......................................................................................................................100

5. COMBATANT COMMANDERS, U.S. NORTHERN COMMAND AND U.S. PACIFIC 

COMMAND .....................................................................................................................100

6. COMMANDER, U.S. ARMY NORTH.................................................................................101

7. COMMANDER, JOINT CIVIL DISTURBANCE TASK FORCE................................................101

8. NATIONAL GUARD BUREAU...........................................................................................101

9. THE NATIONAL GUARD .................................................................................................101

G. THE DEPARTMENT OF DEFENSE CIVIL DISTURBANCE PLANS (COMBATANT 

COMMANDERS’ CONPLANS) .............................................................................................102

1. CIVIL DISTURBANCE OPERATIONS MISSION ..................................................................102

2. COMBATANT COMMANDERS’ CONPLANS ...................................................................102

3. THE STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES .................................103

4. CONSTITUTIONAL LEGAL CONSIDERATIONS ..................................................................104

5. OTHER CONSIDERATIONS...............................................................................................105

CHAPTER 6: DOD RESPONSE FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR 

(CBRN) CONSEQUENCE MANAGEMENT (CM) ..........................................................................109

A. INTRODUCTION ....................................................................................................................109

B. CBRN CM OVERVIEW AND AUTHORITIES ..........................................................................111

C. DOD ENTITIES RESPONSIBLE FOR CBRN CM OPERATIONS................................................113

D. SPECIALIZED DOD CBRN RESPONDERS..............................................................................114

1. JOINT TASK FORCE CIVIL SUPPORT ...............................................................................114

2. NATIONAL GUARD WEAPONS OF MASS DESTRUCTION CIVIL SUPPORT TEAMS.............116

3. NATIONAL GUARD CERFP TEAMS................................................................................117

4. NATIONAL GUARD HRF ................................................................................................117

5. USCG NSF AND STRIKE TEAMS....................................................................................118

E. SPECIAL LEGAL CONSIDERATIONS DURING CBRN CM OPERATIONS .................................118

1. QUARANTINE / ISOLATION .............................................................................................118

2. ENVIRONMENTAL COMPLIANCE.....................................................................................119

3. HEALTH CARE LICENSURE.............................................................................................120

4. MORTUARY AFFAIRS .....................................................................................................121

CHAPTER 7: COUNTERDRUG OPERATIONS ......................................................................................123

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

B. TITLE 10 SUPPORT TO COUNTERDRUG OPERATIONS............................................................124

1. NATIONAL DEFENSE AUTHORIZATION ACT OF 1991 .....................................................125

2. DETECTION AND MONITORING.......................................................................................126

3. CJCS IMPLEMENTATION ................................................................................................126
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4. COUNTERDRUG SUPPORT TASK FORCES........................................................................128

5. COAST GUARD LAW ENFORCEMENT DETACHMENTS.....................................................129

C. NATIONAL GUARD SUPPORT TO COUNTERDRUG OPERATIONS ............................................132

CHAPTER 8: MILITARY SUPPORT OPERATIONS ...............................................................................139

I. INTRODUCTION - MILITARY SUPPORT TO SPECIAL EVENTS .........................................................140

A. SUPPORT TO SPECIAL EVENTS OR ORGANIZATIONS .............................................................140

1. TYPES OF EVENTS AND SUPPORT FROM DOD OR NATIONAL GUARD.............................140

2. REQUESTS FOR SUPPORT AND COORDINATION ..............................................................144

B. INNOVATIVE READINESS TRAINING .....................................................................................146

1. INNOVATIVE READINESS TRAINING PROCEDURES .........................................................147

2. LEGAL CONSIDERATIONS FOR IRT PROJECTS ................................................................148

II. INTRODUCTION - MISCELLANEOUS DOMESTIC SUPPORT OPERATIONS .......................................149

A. DISASTER AND DOMESTIC EMERGENCY ASSISTANCE..........................................................149

1. MILITARY ASSISTANCE TO SAFETY AND TRAFFIC .........................................................149

2. SEARCH AND RESCUE OPERATIONS ...............................................................................150

3. EMPLOYMENT OF DOD RESOURCES IN SUPPORT OF THE U.S. POSTAL SERVICE............151

4. PUBLIC HEALTH OR MEDICAL EMERGENCIES ................................................................152

5. ANIMAL AND PLANT DISEASE ERADICATION.................................................................153

6. MASS MIGRATION EMERGENCY ....................................................................................153

7. NUCLEAR AND RADIOLOGICAL INCIDENTS ....................................................................153

8. DOD SUPPORT TO WILDFIRES........................................................................................154

B. ENVIRONMENTAL MISSIONS ................................................................................................158

1. THE DEEPWATER HORIZON OIL SPILL - USE OF THE NCP VS. STAFFORD ACT ..............159

C. MISCELLANEOUS MISSIONS IN SUPPORT OF LAW ENFORCEMENT........................................160

1. SUPPORT OF UNITED STATES SECRET SERVICE..............................................................160

2. IMAGERY INTELLIGENCE AND GEOSPATIAL SUPPORT....................................................160

3. CRITICAL ASSET ASSURANCE PROGRAM.......................................................................161

4. CONTINUITY OF OPERATIONS POLICIES AND PLANNING ................................................161

5. EXPLOSIVE ORDNANCE DISPOSAL .................................................................................162

D. PANDEMIC INFLUENZA ........................................................................................................162

CHAPTER 9: INTELLIGENCE OVERSIGHT AND INFORMATION HANDLING DURING DOMESTIC 

SUPPORT OPERATIONS...............................................................................................................167

A. INTRODUCTION ....................................................................................................................168

B. THE ROLE OF DOD INTELLIGENCE COMPONENTS IN DOMESTIC SUPPORT OPERATIONS .....169

C. INFORMATION HANDLING AND THE ROLE OF DOD NON-INTEL COMPONENTS ....................172

D. THE NATIONAL GUARD .......................................................................................................173

1. STATUS: TITLE 32 OR TITLE 10......................................................................................173

2. COLLECTION VIA AN INTELLIGENCE ACTIVITY ..............................................................174

3. METHOD OF COLLECTING ..............................................................................................175

4. PURPOSE OF THE COLLECTION .......................................................................................176

E. JUDGE ADVOCATE RESPONSIBILITIES ..................................................................................177

CHAPTER 10: RULES FOR THE USE OF FORCE (RUF) FOR FEDERAL FORCES...................................179

A. INTRODUCTION ....................................................................................................................179
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B. THE JUDGE ADVOCATE’S ROLE IN THE USE OF FORCE (UOF)..............................................181

C. PRACTICAL REALITIES OF USE OF FORCE SITUATIONS.........................................................182

1. CAPABILITIES AND LIMITATIONS ...................................................................................182

2. POTENTIAL THREAT.......................................................................................................183

3. PHYSICAL AND PSYCHOLOGICAL EFFECTS.....................................................................183

D. SRUF AND AREAS OF CONFUSION AND CONCERN...............................................................183

E. LEGAL AUTHORITY AND STANDARD FOR U.S. MILITARY UOF IN DOMOPS......................184

1. MINIMUM FORCE NECESSARY OR DEADLY FORCE AS A LAST RESORT..........................186

2. MANDATORY VERBAL WARNINGS ................................................................................186

3. DENIAL OF DEADLY FORCE IN SELF-DEFENSE...............................................................187

4. OPERATIONAL ORDERS/EXECUTION ORDERS ................................................................187

5. SRUF AUTHORITY TO USE DEADLY FORCE ..................................................................187

6. OTHER MISSION RELATED CIRCUMSTANCES FOR USE OF DEADLY FORCE ....................189

7. AUGMENTATION OF THE RUF .......................................................................................189

F. LIABILITY FOR SERVICE MEMBERS, LEADERS, AND RUF DRAFTERS IN UOF

SITUATIONS .....................................................................................................................................190

1. FEDERAL CIVIL LIABILITY .............................................................................................190

2. FEDERAL CRIMINAL LIABILITY......................................................................................192

3. STATE CIVIL AND CRIMINAL LIABILITY.........................................................................192

G. OTHER TRIAL OR LITIGATION ISSUES...................................................................................192

H. TRAINING OF JUDGE ADVOCATES ........................................................................................194

CHAPTER 11: RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD .....................................195

A. INTRODUCTION ....................................................................................................................195

B. RUF AND STATE LAW .........................................................................................................196

1. STATE LAW APPLICABLE TO BOTH TITLE 32 AND SAD STATUSES................................196

2. SUBJECTS FOR INCLUSION IN STATE RUF FOR THE NATIONAL GUARD .........................197

C. SPECIFIC RUF ISSUES ..........................................................................................................203

1. RUF IN INTERSTATE (CROSS BORDER) OPERATIONS .....................................................203

2. STATE CRIMINAL LIABILITY OF NATIONAL GUARD MEMBERS FOR USE OF FORCE .......205

3. RUF IN MIXED NATIONAL GUARD AND ACTIVE COMPONENT OPERATIONS .................207

D. ROLE OF THE NATIONAL GUARD JUDGE ADVOCATE............................................................208

1. DRAFTING RUF .............................................................................................................208

2. NEGOTIATING RUF WITH STATE AGENCIES...................................................................208

3. PROVIDING LEGAL ADVICE ON LIABILITY .....................................................................209

4. TRAINING.......................................................................................................................209

E. CONCLUSION........................................................................................................................209

CHAPTER 12: FUNDING DOMESTIC SUPPORT OPERATIONS .............................................................211

A. INTRODUCTION: BASIC FISCAL LAW FRAMEWORK ..............................................................212

B. BASIC FISCAL CONTROLS ....................................................................................................213

1. PURPOSE ........................................................................................................................213

2. TIME ..............................................................................................................................215

3. AMOUNT ........................................................................................................................216

C. MILITARY ASSISTANCE TO CIVIL AUTHORITIES...................................................................217

D. DODD 3025.18, DEFENSE SUPPOPRT OF CIVIL AUTHORITIES (DSCA)................................218
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E. DISASTER AND EMERGENCY RELIEF....................................................................................219

1. IMMEDIATE RESPONSE AUTHORITY (IRA).....................................................................221

2. DEFENSE EMERGENCY RESPONSE FUND (DERF)..........................................................221

3. DISASTER SUPPORT INVOLVING LAW ENFORCEMENT AUTHORITIES .............................222

F. CIVIL DISTURBANCES ..........................................................................................................222

G. SUPPORT TO CIVILIAN LAW ENFORCEMENT. .......................................................................223

1. ECONOMY ACT ..............................................................................................................224

2. MISCELLANEOUS RECEIPTS ...........................................................................................225

3. EXCESS PROPERTY.........................................................................................................225

4. EXPERT ADVICE AND TRAINING ....................................................................................226

5. SHARING INFORMATION.................................................................................................228

H. COUNTERDRUG SUPPORT.....................................................................................................228

1. DETECTION AND MONITORING ......................................................................................228

2. ADDITIONAL SUPPORT...................................................................................................229

I. INNOVATIVE READINESS TRAINING .....................................................................................230

J. DOD SUPPORT TO SPECIAL EVENTS.....................................................................................231

K. SUPPORT TO PRIVATE ORGANIZATIONS AND INDIVIDUALS..................................................232

1. BOY SCOUTS OF AMERICA.............................................................................................232

2. GIRL SCOUTS OF AMERICA ............................................................................................232

3. NATIONAL VETERANS’ ORGANIZATIONS.......................................................................232

4. AMERICAN RED CROSS..................................................................................................232

5. NATIONAL MILITARY ASSOCIATIONS ............................................................................232

6. HOMELESS INDIVIDUALS ...............................................................................................233

L. LOAN OR LEASE OF NON-EXCESS PROPERTY OF A MILITARY DEPARTMENT.......................233

1. AUTHORIZED LOAN OR LEASE OF NON-EXCESS PROPERTY...........................................233

2. EMERGENCY EXCEPTIONS .............................................................................................234

3. ADDITIONAL REQUIREMENTS ........................................................................................235

M. MILITARY ASSISTANCE TO SAFETY AND TRAFFIC ...............................................................235

N. EXPLOSIVE ORDNANCE DISPOSAL .......................................................................................235

O. MILITARY WORKING DOGS .................................................................................................236

P. MISCELLANEOUS SUPPORT ..................................................................................................236
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PREFACE

Admiral Bill Gortney1, USN

Commander, North American Aerospace Defense Command and U.S. Northern Command

In support of the United States’ “National Security Strategy” and in conjunction with 

Canada’s “Canada First Defence Strategy”, North American Aerospace Defense Command 

(NORAD) and U.S. Northern Command (USNORTHCOM) will continue to protect and defend 

North America and its citizens while contributing to the safety, security and defense of our allies 

and partners. We will strive for an international order that promotes peace, security and opportunity 

through strong international cooperation in defense of our homelands.

Our paramount line of operation common to both NORAD and USNORTHCOM is defense 

of our homelands. As the world’s only bi-national command, NORAD has been on watch for over 

56 years for aerospace warning, aerospace control and worldwide maritime warning in the defense 

of North America. Every day, Air National Guard, National Guard, Air Force, Army, Navy, 

Marines, Coast Guard, and Royal Canadian Army, Navy and Air Force personnel are on alert to 

ensure an attack against our homelands from the air will never go unchallenged. The threats to our 

homelands are both persistent and transient, and can arise from any place in the world at any time. 

Whether threats emanate from beyond our shores, cross our borders or emerge from within, we 

must remain vigilant and ensure we are prepared to effectively and decisively deal with them.

USNORTHCOM was born out of the tragic events of September 11, 2001 and each day 

when we arrive for duty at our headquarters in Colorado Springs we pass a girder salvaged from the 

site of the World Trade Center. The events of that fateful day are never far from our thoughts. In 

the twelve years since USNORTHCOM was established, we understand now more than ever that 

we are entrusted with the supreme responsibility of protecting our homeland. This is a deeply 

personal commitment for us; it is our families, our friends, our shared values and our way of life we 

protect. 

From the USNORTHCOM perspective, we are organized around two distinct foundations, 

homeland defense and homeland security. Homeland defense is the protection of sovereign 

territory, the domestic population and critical infrastructure against external threats and aggression. 

 1

 Admiral Bill Gortney is the Commander, North American Aerospace Defense Command, and U.S. Northern 

Command. U.S. Northern Command’s Area of Responsibility (AOR) includes air, land and sea approaches and 

encompasses the continental United States, Alaska, Canada, Mexico and the surrounding water out to approximately 

500 nautical miles. This AOR also includes the Gulf of Mexico, the Straits of Florida, and portions of the Caribbean 

region, to include The Bahamas, Puerto Rico and the U.S. Virgin Islands. Admiral Gortney is also responsible for 

theater security cooperation with Canada, Mexico and The Bahamas, and also commands the North American 

Aerospace Defense Command (NORAD), a bi-national command responsible for aerospace warning, aerospace control 

and maritime warning for Canada, Alaska and the continental United States. On three different occasions, Admiral 

Gortney commanded forces in the U.S. Central Command AOR, providing support to Maritime Security Operations and 

combat operations for Operations ENDURING FREEDOM and IRAQI FREEDOM. These assignments included 

Commander, U.S. Naval Forces Central Command / U.S. 5th Fleet / Combined Maritime Forces, Bahrain, 2008-2010; 

Commander, Carrier Strike Group 10, onboard USS Harry S. Truman (CVN 75), 2007-2008; and Commander, Carrier 

Air Wing 7, onboard USS John F. Kennedy (CV 67), 2002-2003.
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The NORAD mission is directly aligned to this principal objective. Homeland security is a 

concerted national effort to prevent terrorist attacks within the United States, to minimize damage, 

and provide support to recover from attacks, major disasters and other emergencies that occur. This 

type of support is categorized as Defense Support of Civil Authorities (DSCA).

DSCA is a unique compact between our citizens and their military to provide DOD 

assistance within the homeland. At the heart of DSCA is local civilian command authority, as 

nearly all major natural and man-made disasters impact lives and property at the local level. Our 

Nation’s governors take very seriously their role as chief executives of their states, exercising their 

Constitutional-based police powers. We deeply respect that authority. When governors turn to the 

federal government for assistance, DOD has unique military capabilities that can be employed to 

save and sustain lives and protect property. Should disasters in the homeland occur, 

USNORTHCOM will synchronize and coordinate DOD efforts in support of the Lead Federal 

Agency responding to the crisis. 

As the domestic support and response domain has evolved, the Domestic Operational Law 

(DOPLAW) Handbook has proven to be one of the most effective references for attorneys tackling 

the complex legal and operational issues associated with disasters and threats to our homeland. 

This Handbook continues to develop from the lessons learned during disasters such as the attacks on 

September 11, 2001, Hurricane Katrina, the Deepwater Horizon oil spill and Super Storm Sandy. 

The collective experiences of first responders and attorneys captured in this Handbook provide 

practical guidance to Judge Advocates advising commanders facing complex challenges in 

emergent situations. 

Judge Advocates have a critically important responsibility to assist and to advise their 

commanders through all phases of disaster planning and response. Significant disasters require 

coordination between military commanders and other local, state and federal responders. This 

DOPLAW Handbook identifies and explains local, state, and federal agency authorities, 

responsibilities, core competencies, and relationships assisting the operational commanders and 

their attorneys to provide the most timely and effective response. It is clear why this Handbook 

continues to be one of the most sought after publications from the Center for Law and Military 

Operations (CLAMO), and I am confident that it will continue to be a most valuable resource guide 

for Commanders and their supporting Judge Advocates and civilian counsel.
Domestic Operational Law Handbook 2015

Chapter 1

1 Overview of Domestic Support Operations

CHAPTER 1

OVERVIEW OF DOMESTIC SUPPORT OPERATIONS

A. Background

Traditionally, the principal task of the U.S. military has been to fight and win the nation’s wars.1

 It 

has accomplished this goal primarily by projecting military power overseas.2 Since the terrorist 

attacks of September 11, 2001, the Department of Defense’s (DoD) highest priority has been the 

protection of the United States from direct attack;

3

 however, terrorism does not represent the only 

source of threats to the homeland. The extraordinary destruction wrought by Hurricane Katrina in 

2005 and Hurricane/Superstorm Sandy in 2012 remind us that threats to the nation do not always 

originate from the acts of man.4

Since September 11, 2001, the federal government has taken aggressive and wide ranging steps to 

better address both the threat of direct attacks on the United States and the challenges of natural or 

manmade disasters. Through the Homeland Security Act of 2002,5 Congress created the 

Department of Homeland Security (DHS)—an executive agency that consolidated the functions and 

responsibilities of more than a dozen federal agencies and departments, including the U.S. Coast 

Guard (USCG), the Federal Emergency Management Agency (FEMA), the Immigration and 

Naturalization Service (INS), the Transportation Security Administration (TSA), and the U.S. 

Secret Service (USSS), among others.6 As required by law, DHS immediately began an effort to 

develop a coordinated system of response by civil authorities at all levels of government. The 

National Response Framework (NRF), published in January 2008 and updated in May 2013, is the 

result of that effort.7

In 2002, DoD created the first Combatant Command, U.S. Northern Command (USNORTHCOM), 

with direct responsibility for the defense, protection and security of the continental United States, 

 1

 JOINT CHIEFS OF STAFF, NATIONAL MILITARY STRATEGY OF THE UNITED STATES OF AMERICA 3 (2004), available at

http://www.defense.gov/news/Mar2005/d20050318nms.pdf [hereinafter 2004 National Military Strategy].

2

 JOINT CHIEFS OF STAFF, NATIONAL MILITARY STRATEGY OF THE UNITED STATES OF AMERICA (8 Feb. 2011), 

available at http://www.army.mil/info/references/docs/NMS%20FEB%202011.pdf.

3

 See DEPARTMENT OF DEFENSE, STRATEGY FOR HOMELAND DEFENSE AND DEFENSE SUPPORT OF CIVIL AUTHORITIES 1 

(Feb. 2013), available at http://www.defense.gov/news/Homelanddefensestrategy.pdf [hereinafter STRATEGY FOR 

HOMELAND DEFENSE AND DSCA].

4

 Federal analysis indicates that the direct toll in lives and financial costs from natural disasters in recent decades far 

outweighs that from terrorist attacks. See Rawle O. King, Financing Recovery from Large-Scale Natural Disasters,

CONGRESSIONAL RESEARCH SERVICE (9 Feb. 2009); See also 9/11 Terrorism: Economic Global Costs, 

CONGRESSIONAL RESEARCH SERVICE (5 Oct. 2004).

5

 Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified primarily at 6 U.S.C. §§ 101–

557) [hereinafter HSA 2002].

6

 Id.

7

 DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, May 2013 [hereinafter NRF], available at

http://www.fema.gov/national-response-framework. The NRF superseded the National Response Plan (NRP) published 

in 2005.
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Chapter 1

Overview of Domestic Support Operations 2

Alaska, and its territorial waters including the Gulf of Mexico and the Straits of Florida. With the 

establishment of USNORTHCOM, DoD now has Combatant Commands whose combined 

geographic responsibilities cover all States and territories of the United States.8 On September 11, 

2003, USNORTHCOM reached full operational capability. USNORTHCOM’s current mission 

statement is:

“USNORTHCOM partners to conduct Homeland Defense and Civil Support operations within the 

assigned area of responsibility to defend, protect, and secure the United States and its interests.”9

This mission statement recognizes the unique dual roles for USNORTHCOM in Homeland Defense 

(HD) and Defense Support of Civil Authorities (DSCA), in addition to standard Geographic 

Combatant Commander-assigned responsibilities.10 As discussed below, HD authorities and 

capabilities are generally beyond the scope of this handbook; however, understanding how DoD and 

its organizations (such as USNORTHCOM) fit in the larger emergency and disaster response 

framework allows for better comprehension of DoD’s ability to provide civil support. Because of 

USNORTHCOM’s responsibility for operations in the homeland, it is engaged in nearly constant 

liaison with our national leadership and with the federal agencies that would lead civil support 

operations.

B. Purpose of This Handbook

In February 2013, DoD published a new Strategy for Homeland Defense and Defense Support of 

Civil Authorities, updating DoD’s Domestic Support Strategy for the first time since 2005, and 

setting out DoD’s vision for transforming homeland defense and support to civil authorities.11

DoD has identified two priority missions for its activities in the homeland for 2012 to 2020: to 

defend U.S. territory from direct attack by state and non-state actors, and provide assistance to 

domestic civil authorities in the event of natural or manmade disasters.12 

This handbook focuses on the latter of the two missions - providing assistance to domestic civil 

authorities, also known as Defense Support of Civil Authorities (DSCA). Circumstances involving 

the exercise of HD authority and capabilities, i.e., “countering air and maritime attacks and 

preventing terrorist attacks on the homeland,”13 are beyond the scope of this handbook. 

Nonetheless, it should be kept in mind that actions taken within the HD function may directly 

impact DoD’s DSCA mission once an event has occurred. Likewise, for ongoing events or 

continuing attacks, DSCA actions may contribute immediately to HD capabilities.

 8

 The other Combatant Command with responsibility for the United States is U.S. Pacific Command (USPACOM), 

with responsibility over Hawaii, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

9

 About USNORTHCOM, UNITED STATES NORTHERN COMMAND, 

http://www.northcom.mil/AboutUSNORTHCOM.aspx (last visited Aug. 5, 2014). The geographic area of responsibility 

for USNORTHCOM also contains Mexico, Canada, Bermuda, and portions of the Caribbean. Id. The exact 

dimensions of this geographic area are contained in the Unified Command Plan.

10 Duties and assignments for Combatant Commanders are contained in the Unified Command Plan.

11 See STRATEGY FOR HOMELAND DEFENSE AND DSCA, supra note 3.

12 Id. at 1.

13 Id. at 9.
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3 Overview of Domestic Support Operations

C. DoD’s Role in Civil Support

Military civil support operations are neither new nor limited to a single service. The military has 

long provided assistance in times of disaster and has routinely provided support to state and 

territorial governors, even historically having administered governmental affairs until local 

governance was established.14 During the Reconstruction after the Civil War, military forces 

assisted with maintaining order.15 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 

Charleston, South Carolina, earthquake. DoD continues similar support efforts to this day in the 

wake of emergencies and disasters.

National Guard (NG) units, under the control of their respective state governor and their “The 

Adjutants General” (TAGs),16 have traditionally been the primary military responders in domestic 

operations and emergencies. The use of federal forces to support state and local governments was, 

and remains, the exception rather than the rule. Federal forces are generally used only after state 

resources are exhausted or overwhelmed and federal assistance has been requested by state officials.

DoD has capabilities and resources uniquely suited to support U.S. civil authorities. DoD consists 

of trained and disciplined personnel and organizations capable of rapidly responding on short notice 

to a broad spectrum of emergencies. Although organized to conduct combat operations, military 

personnel and their associated equipment can often be effectively employed in civil support 

operations. Consequently, DoD will continue to be called upon to assist civil authorities.17 In these 

instances, DoD’s role is one of support - civilian authorities retain primary responsibility for 

domestic operations.18 Civilian authorities may request Federal assistance, including DoD 

assistance, if they are overwhelmed.19

U.S. domestic law, Presidential Decision Directives (PDDs),20 National Security Presidential 

Directives (NSPD) and Homeland Security Presidential Directives (HSPDs), 21 Presidential Policy 

 14 See U.S. DEP’T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS (October 2008) [hereinafter FM 3-07]. 

15 Id., para. 1-1.

16 In “state status” National Guard personnel are under the control of the particular Governor and The Adjutant General 

(TAG) of their particular state. “State status” includes “state active duty (SAD)” and Title 32—traditional Guard status. 

See infra Chapter 3 for further discussion of National Guard status.

17 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (21 Sept. 2012) [hereinafter DoDD 

3025.18]. 

18 See STRATEGY FOR HOMELAND DEFENSE AND DSCA, supra note 3, at 9, 14. See also U.S. DEP’T OF DEFENSE,

INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES Encl. 4 (27 Feb. 2013) [hereinafter 

DoDI 3025.21] (noting “[t]he primary responsibility for protecting life and property and maintaining law and order in 

the civilian community is vested in State and local governments.”).

19 See STRATEGY FOR HOMELAND DEFENSE AND DSCA, supra note 3, at 15.

20 The Presidential Decision Directive (PDD) series was the mechanism used by the Clinton Administration to 

promulgate Presidential decisions on national security matters.

21 In the George W. Bush administration, the directives used to promulgate Presidential decisions on national security 

matters are designated National Security Presidential Directives (NSPDs) and those on homeland security matters are 

designated Homeland Security Presidential Directives (HSPDs). Unless otherwise indicated, past directives of previous 

administrations remain in effect until superseded.
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Overview of Domestic Support Operations 4

Directives (PPDs),22 Executive Orders (EOs), and DoD regulations provide the framework for, and 

set limits on, the use of military forces to assist civil authorities. While the types of domestic 

support operations vary widely, two forms of statutory restrictions as well as policy concerns may 

limit the scope of support. First, judge advocates must carefully consider whether the Posse 

Comitatus Act applies.23 Second, fiscal law constraints,24 as well as policy limitations, apply when 

reviewing a proposed domestic support operation.

Acknowledging the value of civil support that DoD can offer, Congress has enacted laws allowing 

federal agencies to request support from the military during domestic operations. These laws 

emphasize DoD’s supporting role in civil support operations. Further, these laws acknowledge that 

the National Guard, while in state status, has primary responsibility for providing initial support to 

state and local civil authorities.25

When federal forces respond in a support role, they operate under the direction of a designated lead 

federal agency (LFA). Federal laws recognize the importance of interdepartmental and interagency 

coordination and planning in this area. For example, the National Response Framework (NRF)26 is 

designed to maximize 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, 

when requested to do so by appropriate civil authorities, and when properly ordered to do so by 

DoD officials. In domestic operations, National Guard units and personnel, in non-federal status 

and under the command of their respective Governors, have primary responsibility for providing 

military assistance to local governments. Only when state and local government resources are 

exhausted or inadequate, and support is requested by the state, will the federal government provide 

necessary civil support.

 22 The Presidential Policy Directive (PPD) series is a mechanism that the Obama administration uses to promulgate 

Presidential decisions on national security matters.

23 18 U.S.C. § 1385 (2015). See infra Chapter 4.

24 See infra Chapter 14.

25 DoDI 3025.21, supra note 18, at 27.

26 NRF, supra note 7.
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Chapter 1

5 Overview of Domestic Support Operations

D. Defense Support of Civil Authorities (DSCA)

The primary reference for all DoD support to domestic operations is DoD Directive (DoDD) 

3025.18, Defense Support of Civil Authorities.

27 DoDD 3025.18 was promulgated with changes on 

September 21, 2012. It incorporates and cancels DoDD 3025.1 (Military Support to Civil 

Authorities) and DoDD 3025.15 (Military Assistance to Civil Authorities). Notably, DoDD 

3025.18 states that DSCA plans shall be compatible with the National Incident Management System 

(NIMS) and will consider command and control options that emphasize “unity of effort.”28

DoDD 3025.18 provides criteria against which all requests for support must be evaluated. These 

criteria are known as the “CARRLL” factors.29 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:

• Cost – Who pays and the impact on DoD budget.

• Appropriateness – Whether it is in the interest of DoD to provide the requested support.

• Readiness – Impact on DoD’s ability to perform its primary mission.

• Risk – Safety of DoD forces.

• Legality – Compliance with the law.

• Lethality – Potential use of lethal force by or against DoD forces.

DoDD 3025.18 also outlines the roles and responsibilities of each DoD component and establishes 

request procedures and approval authorities for each type of domestic support operation. The 

Secretary of Defense has reserved approval authority of DoD support for civil disturbances and for 

 27 DoDD 3025.18, supra note 17.

28 Id. at 4.

29 Id.

Practice Scenario: It is October 1st and Category 4 Hurricane XYZ has just made landfall 

in the Virginia Tidewater Region (Norfolk/Virginia Beach). There is significant damage 

throughout the area. The region is home to several DoD units including Norfolk Naval 

Station, Naval Air Station Oceana, Langley Air Force Base, and Fort Eustis, among others. 

What are the DoD’s responsibilities to assist in the community initially in this scenario?

Answer: None. The responsibility to respond to a disaster lies primarily with the affected 

municipalities, counties, and states. There is no general Federal Constitutional power to 

engage in disaster response within a sovereign state.* Disaster response starts at the local 

level and is led by local and state authorities with federal support when requested. 

* There are, however, federal authorities granted under other Constitutional powers that allow certain federal 

agencies to respond absent a State request (see, e.g. Coast Guard search and rescue authority).
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Chapter 1

Overview of Domestic Support Operations 6

responses to acts of terrorism.30 The various types of domestic support authorities are covered in 

more detail in specific Directives and Instructions set out in this Handbook’s respective chapters.

E. Handbook Organization

This handbook specifically addresses DoD’s civil support mission and its role in response 

operations within the United States. It additionally provides an understanding of the overall federal 

government approach to preparing for and responding to domestic emergencies and disasters. In the 

majority of domestic emergency and disaster response operations, DHS will serve as the LFA to 

which DoD lends its support. Thus, a working knowledge of how DHS addresses emergency and 

disaster response is vital to knowing how DoD civil support authorities and policy function in this 

area. The handbook therefore begins with a discussion on the role of the DHS and the National 

Preparedness System and Incident Management doctrines that permeate all emergency and disaster 

responses. 

The handbook then examines the roles, responsibilities and authorities of DoD related to specific 

domestic support operations including Chemical, Biological, Radiological, and Nuclear (CBRN)31

incident management, support to civilian law enforcement, civil disturbance support, counterdrug 

operations, and other miscellaneous operations. The handbook concludes with chapters that impact 

all domestic operations: intelligence law, rules for the use of force, and fiscal law. Each chapter is 

best understood when considered in light of other chapters, but each chapter also stands on its own 

and can be used by judge advocates to develop an understanding of the authorities and limitations 

that apply to a specific type of domestic support.

 30 Id. at 6.

31 Previously referred to as CBRNE – see Chapter 6, infra, for a discussion on the change from CBRNE to CBRN in 

policy.
Domestic Operational Law Handbook 2015

Chapter 2

7 National Framework for Incident Management

CHAPTER 2

NATIONAL FRAMEWORK FOR INCIDENT MANAGEMENT

KEY REFERENCES:

• Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) as amended.

• Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288, 42 

U.S.C. § 5121, et seq., as amended.

• Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), Pub. L. No. 109-295, 

120 Stat. 1394 (2006).

• Federal Water Pollution Control Act (Clean Water Act) , 33 U.S.C. § 1251 et. seq. (1972), as 

amended, and the Oil Pollution Act of 1990 (OPA 90) (1991), as amended.

• Executive Order 12241 – National Contingency Plan (1980), as amended.

• Executive Order 12472 – Assignment of National Security and Emergency Preparedness 

Telecommunications Functions (1984), as amended.

• Executive Order 12580 – Superfund Implementation (1987), as amended.

• Executive Order 12656 – Assignment of Emergency Preparedness Responsibilities (1988), as 

amended.

• Executive Order 12657 – Federal Emergency Management Agency Assistance in Emergency 

Preparedness Planning at Commercial Nuclear Power Plants (1988), as amended.

• Executive Order 12777 – Implementation of Section 311 of the Federal Water Pollution Control 

Act.

• Executive Order 13228 – Establishing the Office of Homeland Security and the Homeland 

Security Council

• Executive Order 13286 – Amendment of Executive Orders, and Other Actions, in Connection 

with the Transfer of Certain Functions to the Secretary of Homeland Security (2003).

• HSPD-15/NSPD-46 – U.S. Strategy and Policy in the War on Terror, March 6, 2006 (classified 

directive).

• PDD-63 – Critical Infrastructure Protection, May 22, 1998.1

• HSPD-5 – Management of Domestic Incidents, February 28, 2003.

• HSPD-7 – Critical Infrastructure Identification, Prioritization, and Protection, December 17, 

2003.

• HSPD-8 – National Preparedness, December 17, 2003 and HSPD 8, Annex I – National 

Planning.2

• PPD-8 – National Preparedness, March 30, 2011.

• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42

U.S.C. §§ 9605 – 9675 (2011).

• Defense Production Act of 1950, 50 U.S.C. § 2061, et seq.

 1

 Recommended for historical reference. President Bush promulgated HSPD-7 to update and supersede the pre-9/11 

PDD-63 dealing with the protection of critical infrastructure.

2

 Recommended for historical reference and the provision in Annex I that remains in effect. President Obama 

promulgated PPD-8 to update and supersede HSPD-8 and HSPD-8, Annex I, with the exception of paragraph 44 of 

HSPD-8 Annex I, which remains in effect. Individual plans developed under HSPD-8 and HSPD-8 Annex I remain in 

effect unless otherwise replaced or rescinded.
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National Framework for Incident Management 8

• DoDD 3025.18, Defense Support of Civil Authorities (DSCA), September 21, 2012.

• National Response Framework (NRF), May 2013.

• National Mitigation Framework (NMF), May 2013.

• National Prevention Framework (NPF), May 2013.

• National Disaster Recovery Framework, (NDRF), September 2011.

• National Protection Framework, July 2014.

• National Incident Management System (NIMS).

• National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300, et seq.

• FM 3-28, Civil Support Operations, August 20, 2010.

• ADP 3-28, Defense Support of Civil Authorities, July 2012.

A. The Federal Response Structure

In the 25 years since 1988, when President Reagan promulgated Executive Order (EO) 12656, 

“Assignment of Emergency Preparedness Responsibilities,” the Federal Government has 

significantly enhanced its approach to preventing, preparing for, and responding to major domestic 

incidents. This chapter addresses the Federal Government’s current system for domestic all-hazards 

incident management, including the latest significant changes to the National Preparedness System 

promulgated in 2013, as well as the vital roles of the Homeland Security Act and Stafford Act as the 

primary authorites for the implementation of federal resources to assist state and local governments 

during emergencies or disasters.

1. Executive Order 12656: Assignment of Emergency Preparedness and Response 

Responsibilities

Executive Order 12656, as amended, assigns national security emergency preparedness 

responsibilities to federal departments and agencies, delegating to the Department of Homeland 

Security primary responsibility for coordinating the efforts of, among other things, federal 

emergency assistance.3

 Although EO 12656 pre-dates many contemporaneous policies, the 

document continues to serve as a foundation that establishes the federal emergency preparedness 

framework for federal agencies.

This executive order identifies several departments/agencies (e.g., Defense, Energy, Health and 

Human Services) that have active, and potentially overlapping, roles in federal emergency efforts, 

including those pertaining to nuclear, biological, and chemical assessment and response. It also

identifies primary and support functions to be performed during any national security emergency of 

the United States, development of plans for performing these functions, and development of the 

capability to execute those plans. As part of preparedness, EO 12656 mandates that the heads of 

federal agencies plan for continuity of government in the event of a national security emergency and 

plan for the mobilization of agency alternative resources. In assigning areas of responsibility for 

domestic preparedness, EO 12656 provides the foundation for the former Federal Response Plan

(FRP), now superseded by the NRF under the National Preparedness System (NPS).

 3 Exec. Order No. 12656, 3 C.F.R. § 585 (1988); see also Exec. Order No. 12148, 3 C.F.R. § 412 (1979), which 

transferred to FEMA responsibility for coordinating federal response to civil emergencies at the regional and national 

levels.
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9 National Framework for Incident Management

Executive Order 13228, establishing the Office of Homeland Security,

4 amended EO 12656 to 

account for the responsibilities of the new office within the functional and legal structure of 

emergency preparedness within the White House staff and federal agencies. This Executive Order 

identifies primary and support functions to be performed during any national security emergency of 

the United States and directs the development of plans for performing these functions and 

development of the capability to execute those plans. Table 2-1 highlights some of the major areas 

of responsibility for several of the agencies identified in EO 12656, as amended by EO 13286.5

 4 Exec. Order No. 13228, 66 Fed. Reg. 51812 (Oct. 10, 2001).

5 Exec. Order No. 13286, 68 Fed. Reg. 10619 (Mar. 5, 2003) transferred key functions of FEMA to DHS. Note that 

Exec. Order No. 13603, 77 Fed. Reg. 16651 (Mar. 16, 2012) revoked Sections 401(3)-(4) of Exec. Order No. 12656.

AGENCY LIST OF SELECT AGENCY ROLES AND RESPONSIBILITIES

Department of 

Agriculture

Lead Responsibilities: Ensure continuation of agricultural production, food processing, 

storage, and distribution; oversee use and handling of agricultural commodities and land 

exposed to or affected by hazardous agents.

Support Responsibilities: Assist Secretary of Defense in formulating and carrying out 

plans for stockpiling strategic and critical agricultural materials.

Department of 

Defense

Lead Responsibilities: Military response; national mobilization; damage assessment; 

support to civil and private sector, including law enforcement within authority; respond 

to all hazards related to nuclear weapons, materials, and devices; stockpile and store 

critical materials. 

Support Responsibilities: Coordinate military support with civilian agencies.

Department of 

Energy

Lead Responsibilities: Identify, analyze, assess, and mitigate hazards from nuclear 

weapons, materials, and devices; all emergency response activities pertaining to DOE 

nuclear facilities, to include recapture of special nuclear materials. 

Support Responsibilities: Advise, assist, and assess the radiological impact associated 

with national security emergencies.

Department of Health 

and Human Services

Lead Responsibilities: Mobilize health industry and allocate resources to provide health, 

mental health, and medical services to civilian and military claimants; reduce or 

eliminate adverse health and mental health effects produced by hazardous agents; 

provide emergency services, e.g. social services, family reunification, mortuary services. 

Support Responsibilities: Support Secretary of Agriculture in development of plans 

related to national security agricultural health services.

Department of 

Homeland Security

Lead Responsibilities: Advise National Security Council on issues of national security 

emergency preparedness, including mobilization preparedness, civil defense, continuity 

of government, and technological disasters; coordinate with the other agencies and with 

state and local governments in implementing national security emergency preparedness 

policies. 

Support Responsibilities: Prepare plans and programs, to include plans and capabilities 

related to nuclear emergencies; promote programs for Federal buildings and installations. 

Department of Justice

Lead Responsibilities: Interdict and respond to terrorism incidents; advise the President 

regarding national security emergency powers, plans, and authorities; coordinate 

domestic law enforcement activities related to national security emergency preparedness, 

respond to civil disturbances that may result in a national security emergency. 

Support Responsibilities: Support the intelligence community in the planning of its 

counter-intelligence and counter-terrorism programs.
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National Framework for Incident Management 10

Table 2-1. Partial List of Agency Roles and Responsibilities during a National-Level Emergency

2. The Homeland Security Act of 2002 

The Homeland Security Act of 2002 represented a watershed moment in the manner in which the 

federal government organizes to respond to national level incidents.

6

 

The Act established the 

Department of Homeland Security (DHS) as the “focal point for natural and manmade crises and 

emergency planning,” and consolidated the consequence management missions, assets, and 

personnel of numerous federal departments and agencies into a single department.7 The primary 

missions of DHS include: preventing terrorist attacks within the United States, reducing the 

vulnerability of the United States to terrorism, and minimizing the damage and assisting in the 

recovery from terrorist attacks that occur within the United States.8 DHS is comprised of various 

directorates and components including the U.S. Coast Guard, U.S. Customs and Border Protection, 

U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, U.S. 

Secret Service, the Federal Emergency Management Agency (FEMA), the Transportation Security 

Administration, and the Federal Law Enforcement Training Center.

FEMA’s mission is “to support our citizens and first responders to ensure that as a nation we work 

together to build, sustain, and improve our capability to prepare for, protect against, respond to, 

recover from, and mitigate all hazards.”9 Activities pursuant to this responsibility include managing 

responses; directing the strategic response assets that were transferred to DHS; overseeing the 

Metropolitan Medical Response System; and coordinating other federal response resources in the 

event of a terrorist attack or major disaster. The Homeland Security Act also directed the 

development of a National Incident Management System (NIMS) to integrate the federal, state, and 

local government response to terrorist attacks, and consolidate existing federal government 

emergency response plans into a single, coordinated National Response Plan (NRP).

10 

In sum, the Homeland Security Act served as the foundation for the federal government to organize 

and consolidate incident management functions, assets and personnel under a single Department. 

Further, it served as the legal impetus for a revised approach to incident management that was later 

set forth in Homeland Security Presidential Directive 5 (HSPD 5), which is discussed below.

 6

 The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) as amended [hereinafter HSA].

7

 Id. § 101(b)(1)(D).

8

 Id. § 101(b).

9

 FEMA mission as stated on the FEMA website located at: http://www.fema.gov/about-agency (last visited on May 

27, 2015).

10 HSA, supra note 6, § 502. As explained below, the NRP was superseded by the National Response Framework, 

which is now part of the National Preparedness System.

Department of 

Transportation

Lead Responsibilities: Meet essential transportation needs; provide direction to all 

modes of civil transportation; coordinate with state and local agencies in the management 

of all publicly-owned highways, roads, bridges, tunnels; assist with maritime and port 

control. 

Support Responsibilities: Assist Secretary of Energy in the transportation of energy 

materials.
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11 National Framework for Incident Management

3. Homeland Security Presidential Directive 5, Management of Domestic Incidents

Homeland Security Presidential Directive 5 (HSPD-5), “Management of Domestic Incidents,”

established a modern paradigm for federal emergency management.11 It centers on the need for all 

levels of government across the nation to have a single, unified approach toward managing 

domestic incidents. Pursuant to the Homeland Security Act of 2002, HSPD-5 tasked the Secretary 

of Homeland Security to develop and administer a National Response Plan (now replaced by the 

(NRF)) that would integrate federal government domestic prevention, preparedness, response, and 

recovery plans into one all-discipline, all-hazards plan. It also tasked the Secretary of Homeland 

Security to develop and administer a National Incident Management System (NIMS) that would 

unify federal, state, and local government efforts to prepare for, respond to, and recover from 

domestic events regardless of cause, size, or complexity. The intent of the NRF and NIMS is to 

provide the structure and mechanisms for establishing national level policy and operational 

direction regarding federal support to state and local incident managers.

HSPD-5 also reaffirmed the Secretary of Homeland Security’s responsibility as the Principal 

Federal Official (PFO) for domestic incident management. HSPD-5 tasked the Secretary of 

Homeland Security with coordinating the federal government’s resources in response to, or 

recovery from, terrorist attacks, major disasters, or other emergencies. This coordination 

responsibility exists when any one of the following four conditions applies: (1) a federal department 

or agency acting under its own authority has requested the assistance of the Secretary; (2) the 

resources of state and local authorities are overwhelmed and federal assistance has been requested 

by the appropriate state and local authorities; (3) more than one federal department or agency has 

become substantially involved in responding to the incident; or (4) the Secretary has been directed

by the President to assume responsibility for managing the domestic incident.12 Table 2-2

summarizes the roles and responsibilities established by HSPD-5.

HSPD-5 also eliminates the previous distinction, established in Presidential Decision Directive 39, 

between crisis management and consequence management, treating the two “as a single, integrated 

function, rather than as two separate functions.”13 Whereas under the old FRP the Attorney General 

was the overall lead federal official for the government’s response until the crisis management 

phase of a response was over; now, under the NRF, the Secretary of Homeland Security remains the 

lead federal official for the duration of the period involving federal assistance. Despite the fact that 

HSPD-5 erased the distinction between crisis management and consequence management, it

reaffirms the Attorney General’s authority as the lead official for conducting criminal investigation 

of terrorist acts or terrorist threats.14

 11 HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 5, MANAGEMENT OF DOMESTIC INCIDENTS (Feb. 28, 2003) 

[hereinafter HSPD-5], available at http://www.gpo.gov/fdsys/pkg/PPP-2003-book1/pdf/PPP-2003-book1-docpg229.pdf.

12 Id.

13 Id.

14 Id.
Domestic Operational Law Handbook 2015 

Departments & Agencies Roles and Responsibilities Established by HSDP-5 

Sec. 3. Declares that U.S. Government policy is to treat crisis management and 

Federal Government consequence management as a single, integrated function, rather than as two 

separate functions. 

Sec. 4. Assigns Secretary of Homeland Security responsibility for coordinating 

federal operations within the U.S. to prepare for, respond to, and recover from 

Secretary of Homeland terrorist attacks, major disasters, and other emergencies.

Security Sec. 15. Tasks the Secretary of Homeland Security to develop and administer a 

National Incident Management System (NIMS).

Sec. 16. Tasks the Secretary of Homeland Security to develop and administer a 

National Response Plan, or NRP (now the NRF). 

Attorney General Sec. 8. Reaffirms the Attorney General’s role as having lead responsibility for 

criminal investigations of terrorist acts or terrorist threats.

Table 2-2. Roles and Responsibilities Established by HSPD-5 

 4. Presidential Policy Directive 8 (PPD-8), National Preparedness, and HSPD 8 

On March 30, 2011, President Obama issued PPD-8 to update and replace Homeland Security 

Presidential Directive 8 (HSPD-8) and Annex I, National Planning, which was originally issued in 

2007, to “further enhance the preparedness of the United States by formally establishing a standard 

and comprehensive approach to national planning.”15 PPD-8 compliments HSPD-5—which remains 

in effect. The goal of PPD-8 is: 

“strengthening the security and resilience of the United States through systematic 

preparation for the threats that pose the greatest risk to the security of the Nation, 

including acts of terrorism, cyber attacks, pandemics, and catastrophic natural 

disasters. Our national preparedness is the shared responsibility of all levels of 

government, the private and nonprofit sectors, and individual citizens.16” 

PPD-8 specifies that the Secretary of Homeland Security is responsible for developing the National 

Preparedness Goal (discussed below) and coordinating the domestic all-hazards preparedness 

efforts of all executive departments and agencies, in consultation with state, local, tribal, and 

territorial governments, nongovernmental organizations, private-sector partners, and the general 

public. The Directive further states that the heads of all executive departments and agencies with 

roles in prevention, protection, mitigation, response, and recovery are responsible for national 

preparedness efforts, including department-specific operational plans, as needed, consistent with 

their statutory roles and responsibilities. PPD-8 also specifies that nothing in the directive shall 

limit the authority of the Secretary of Defense with regard to the command and control, planning, 

organization, equipment, training, exercises, employment, or other activities of DoD forces, or the 

allocation of DoD resources.17

 

15 HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 8, ANNEX I (2007) [hereinafter HSPD-8 Annex I], available at: 

http://www.ok.gov/homeland/Library/DHS_Documents/index.html. 

16 PRESIDENTIAL POLICY DIRECTIVE 8, NATIONAL PREPAREDNESS (Mar. 30, 2011) [hereinafter PPD-8], available at

http://www.dhs.gov/presidential-policy-directive-8-national-preparedness. 

17 Id. 

Chapter 2 

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13 National Framework for Incident Management

HSPD-8, Annex I required the development of National Planning Scenarios.18 Consequently, the 

Homeland Security Council developed fifteen scenarios depicting “a diverse set of highconsequence threat scenarios of both potential terrorist attacks and natural disasters.”19

USNORTHCOM subsequently developed CONPLANs that address each of the scenarios where 

DoD support is necessary. These CONPLANs can be accessed with permission of

USNORTHCOM.20 These and other individual plans developed under HSPD-8 and Annex I 

remain in effect until rescinded or otherwise replaced.

5. Presidential Policy Directive 8 (PPD-8) and the National Preparedness System (NPS) 

PPD-8 specifically directed the development of a National Preparedness Goal (NPG) that identifies 

core capabilities necessary for preparedness, and the development of a NPS to guide activities that 

will enable the Nation to achieve the NPG.21 PPD-8 states that NPS shall include guidance for 

planning, organization, equipment, training, and exercises to build and maintain domestic 

capabilities, and shall provide a whole nation approach for building and sustaining a cycle of 

preparedness activities over time. PPD-8 stated that the NPS shall include five integrated National 

Planning Frameworks covering the mission areas of Prevention, Protection, Mitigation, Response, 

and Recovery. These frameworks set the strategy and doctrine for delivering the 31 core 

capabilities identified in the NPG document that apply to these five mission areas.

22 PPD-8 further

directed the frameworks shall be built upon scalable, flexible, and adaptable coordinating structures 

to align key roles and responsibilities to deliver the necessary capabilities.

23

6. National Response Framework (NRF) History and Organization

The NRF predates the current NPS five-framework system. On March 22, 2008, the first NRF 

became effective and superseded the National Response Plan. It established a comprehensive, 

national, all-hazards approach to domestic incident management across a spectrum of activities. 

The NRF was updated in 2013 to implement the new requirements and terminology of PPD-8, but 

reiterates the concepts established in the 2008 version.24 

The NRF organizes governmental response to natural and manmade disasters and incidents 

occurring in the United States, the District of Columbia, and U.S. territories and possessions. It

 18 HSPD-8 Annex I, supra note 15, para. 34.

19 National Preparedness Guidelines, DHS.GOV (last visited Aug. 5, 2014). 

20 USNORTHCOM CONPLANs remain in force and effect until rescinded or replaced as specified in PPD-8.

21 The National Preparedness Goal (NPG) is summarized as “A secure and resilient Nation with the capabilities 

required across the whole community to prevent, protect against, mitigate, respond to, and recover from the threats and 

hazards that pose the greatest risk.” The NPG document identifies several core capabilities necessary to achieving the 

goal. The core capabilities are grouped into the five mission areas of prevention, protection, mitigation, response, and 

recovery. DHS, NATIONAL PREPAREDNESS GOAL (Sept. 2011), available at http://www.fema.gov/nationalpreparedness-goal.

22 DHS, OVERVIEW OF THE NATIONAL PLANNING FRAMEWORKS (May 2013) 1, available at FEMA.gov. 

23 PPD-8, supra note 16.

24 DHS, NATIONAL RESPONSE FRAMEWORK, Second Edition (May 2013) 3, [hereinafter NRF], available at

http://www.fema.gov/national-response-framework.
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builds upon and complements the National Incident Management System (NIMS),

25 and is designed 

to be used by the whole community, since engaging the whole community is essential for the 

Nation’s success in maintaining resilience and preparedness. The NRF is always in effect, and 

portions of it can be implemented at any time. Selective implementation of NRF structures allows 

for a scaled response and an appropriate level of coordination for each incident.26

The NRF is made up of the base document, Emergency Support Functions (ESFs), Support 

Annexes, and Incident Annexes.

• Base Document. The Base Document contains background on the scope of the NRF, describes 

roles and responsibilities of both public and private entities at the local, state, and federal level, and 

specifies authorities and best practices for managing incidents and coordinating response entities.27

• Emergency Support Functions (ESFs). The ESFs are federal coordinating structures, led by 

federal agencies, that group resources and capabilities into functional areas that are most frequently 

needed in a national response.28 There are fourteen ESFs in the NRF (see Table 2-3).

• Support Annexes. The Support Annexes describe how federal, local, state, tribal, territorial, 

insular area, private sector, and nongovernmental organizations (NGOs) coordinate and execute 

common processes and requirements necessary to ensuring effective incident management.29 The

support annex topics are: critical infrastructure and key resources, financial management, 

international coordination, private-sector coordination, public affairs, tribal relations, volunteer and 

donations management, and worker safety and health.30

• Incident Annexes. The Incident Annexes describe the unique response aspects of specific

incident categories. They describe specialized response teams and resources, incident specific 

responsibilities, and other considerations specific to a particular scenario. The Annexes address the 

following events: Biological Incident, Catastrophic Incident, Cyber Incident, Food and Agriculture 

Incident, Mass Evacuation Incident, Nuclear/Radiological Incident, and Terrorism Incident Law 

Enforcement and Investigation.31

 25 DHS, NATIONAL INCIDENT MANAGEMENT SYSTEM (Dec. 2008), available at

http://www.fema.gov/pdf/emergency/nims/NIMS_core.pdf [hereinafter NIMS] . The NIMS is a nationwide template 

enabling government and nongovernmental responders to respond to all domestic incidents. NIMS provides the 

structure and mechanisms for national-level policy and operational coordination for domestic incident management. 

NIMS does not alter or impede the ability of federal, state, local, or tribal departments and agencies to carry out their 

specific authorities. NIMS assumes that incidents are typically managed at the lowest possible jurisdictional and 

organizational levels, and in the smallest geographical areas feasible. There is further discussion on NIMS below.

26 NRF, supra note 24, at 4-5.

27 See id. at 24.

28 Id. at 2.

29 Support Annexes: Introduction, FEMA (May 2013), http://www.fema.gov/library/viewRecord.do?id=7389 (last 

visited Aug. 5, 2014). 

30 Id. The eight support annexes are available at http://www.fema.gov/national-preparedness-resource-library.

31 NRF, supra note 24, at 2, 37-38.
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a. NRF Roles and Responsibilities

The NRF specifies the roles and responsibilities of the following parties:

• Individuals, Families, Households, and Communities

• Nongovernmental Organizations

• Private Sector Entities

• Local Governments including the Chief Elected Official, Emergency Manager, and 

Department or Agency Heads

• State Governments including the Governor, State Homeland Security Advisor, State 

Emergency Management Director, and National Guard

• Tribal/Territorial/Insular Area Leaders

• Secretary of Homeland Security

• FEMA Administrator

• U.S. Attorney General

• Secretary of Defense

• Secretary of State

• Director of National Intelligence

b. Response Mission Area Core Capabilities

Of the 31 core capabilities necessary to achieve the NPG, the response mission area includes 14 

core capabilities (11 that are specific to response, and three that are common to all mission areas). 

The 14 response core capabilities are: Planning, Public Information and Warning, Operational 

Coordination, Critical Transportation, Environmental Response/Health and Safety, Fatality 

Management Services, Infrastructure Systems, Care Services, Mass Search and Rescue Operations, 

On-Scene Security and Protection, Operational Communications, Public and Private Services and 

Resources, Public Health and Medical Services, and Situational Assessment. The NRF summarizes 

each core capability and the critical tasks needed to achieve their objectives.32

c. NRF Coordinating Structures and Integration

Coordinating structures are used to aid preparedness and response at all governmental levels and 

among the private sector, communities, and non-governmental entities. The structures help 

organize and measure response community capabilities, establish and improve relationships, and 

foster coordination prior to and following an incident. Examples of local coordinating structures 

include Local Emergency Planning Committees (LEPCs) and Community Emergency Response 

Teams (CERTs). State coordinating structures leverage capabilities and resources across the state. 

Examples include State Emergency Response Commissions (SERCs), which manage state LEPCs, 

and state Disaster Planning Advisory Committees. Private sector coordinating structures include 

NGOs and industry trade groups, such as the American Pilots’ Association (a national association of 

maritime pilots of commercial vessels). These entities often serve as a conduit to government 

 32 Id. at 20.
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coordinating structures, which enhances the flow of information from local to federal responders 

and vice versa.33 

(1) Federal Coordinating Structures

• The National Security Council (NSC)

The NSC is the principal policy coordinating body for national security issues requiring Presidential 

action, and it advises and assists the President in integrating all aspects of national security policy. 

Along with its subordinate committees, the NSC is the President’s primary method for coordinating 

amongst the Executive Branch departments and agencies in the development and implementation of 

national security policy.34

• Emergency Support Functions (ESFs)

Federal and most state governments organize their response resources and capabilities under the 

ESF construct. ESFs are groups of organizations that work together to support a response. The 

Federal ESFs are the primary (but not exclusive) Federal coordinating structures for building, 

sustaining, and delivering the 14 response core capabilities. Table 2-3 lists the ESFs and the 

designated lead federal agencies for each function.35

ESF # ESF ESF Coordinator

1 Transportation Department of Transportation

2 Communications Department of Homeland Security/National 

Communications System

3 Public Works and Engineering Department of Defense/U.S. Army Corps of Engineers

4 Firefighting Department of Agriculture/U.S. Forest Service/U.S. Fire 

Administration (DHS/FEMA)

5 Information and Planning Department of Homeland Security/FEMA

6 

Mass Care, Emergency Assistance, 

Temporary Housing, and Human 

Services

Department of Homeland Security/FEMA

7 Logistics General Services Administration and DHS/FEMA

8 Public Health and Medical Services Department of Health and Human Services

9 Search and Rescue Department of Homeland Security/FEMA

10 Oil and Hazardous Materials

Response Environmental Protection Agency

11 Agriculture and Natural Resources Department of Agriculture

12 Energy Department of Energy

13 Public Safety and Security Department of Justice/ATF

 

33 Id. at 30-31.

34 Id. at 31.

35 There were previously 15 ESFs, however ESF #14 (Long Term Community Recovery and Mitigation) has been 

superseded by the National Disaster Recovery Framework. Id. at 35.
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14 Superseded by National Disaster 

Recovery Framework

15 External Affairs Department of Homeland Security

Table 2-3. Emergency Support Functions Specified in the NRF

ESF coordinators oversee the preparedness activities for a particular ESF. Specific responsibilities 

include maintaining contact with ESF primary and support agencies through meetings and other 

interactions, ensuring the ESF is engaged in appropriate planning and preparedness activities, and 

coordinating efforts with corresponding NGOs, private entities, and local, state, and Federal 

partners.36 

ESFs also designate primary and support agencies. Primary agencies have numerous ESF 

responsibilities including (but not limited to) orchestrating support within their functional areas for 

the appropriate response core capabilities, obtaining assistance from support agencies, managing 

Stafford Act mission assignments and coordinating resources needed for mission assignments, 

planning for incident management, maintaining trained personnel to support interagency response 

teams, and coordinating resources resulting from FEMA-directed mission assignments. Support 

agency responsibilities include (but are not limited to) providing input to periodic readiness 

assessments, participating in planning for incident management, and coordinating resources needed 

for mission assignments.37

ESF activation can be selectively accomplished by FEMA or as directed by the Secretary of 

Homeland Security to support response activities for both Stafford Act and non-Stafford Act events. 

Note, however, that not all incidents require ESF activation to obtain federal support. When 

departments or agencies are activated as part of an ESF, they may assign resources at the

headquarters, regional, or incident level. Through the Stafford Act and in accordance with 6 U.S.C. 

§ 741(4) and § 753(c), FEMA may issue mission assignments at all levels and across the ESFs to 

obtain resources from Federal entities.

Mission assignments represent the practical and operational application of ESFs, through the FEMA 

organizational structure, to executive branch departments and agencies. A mission assignment is by 

definition a “Work order issued to a Federal agency by the Regional Administrator, Assistant 

Administrator for the Disaster Operations Directorate, or Administrator, directing completion by 

that agency of a specified task and citing funding, other managerial controls, and guidance.”38 

FEMA uses mission assignments to task other federal departments and agencies to provide direct 

assistance during emergencies and disasters. Mission assignments are used to reimburse Federal 

entities unless the mission assignment is for non-reimburseable activities.

39 The mission 

assignment process has been expanded to include Pre-Scripted Mission Assignments (PSMAs), 

 36 NRF, supra note 24.

37 Id. at 36.

38 44 C.F.R. § 206.2(a)(18) (2015). “Administrator” refers to FEMA administrators. See 44 C.F.R. § 206.2(a)(18) 

(2015).

39 DoD members should be cognizant of DoD policy requiring requests for Defense Support of Civil Authorities to 

include a commitment to reimburse DoD. See U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL 

AUTHORITIES para. 4(d) (21 Sept. 2012).
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which are prepared in advance to facilitate a more rapid response and standardize the process of 

developing mission assignments.40 Mission assignments can be issued from three FEMA-managed 

entities: Joint Field Offices (JFOs), Regional Response Coordination Centers (RRCCs), and the 

National Response Coordination Center (NRCC).41

 40 FEMA, PRE-SCRIPTED MISSION ASSIGNMENTS: FACT SHEET (2009), available at

http://www.fema.gov/txt/media/factsheets/2009/dod_pmsa.txt.

41 U.S. COAST GUARD, COMMANDANT INSTRUCTION 3006.1, FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)

MISSION ASSIGNMENTS: OPERATIONAL ACCEPTANCE AND EXECUTION para. 6.a(1) (13 Aug. 2012).
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Practice Scenario: A major disaster has been declared as a result of the damage from 

Hurricane XYZ. Army staff with dumptrucks have deployed from Fort Eustis to assist 

with debris removal, pursuant to a mission assignment. You are the Region III defense 

coordinating officer and must verify the appropriate Emergency Support Function (ESF) 

under which this mission assignment falls – which ESF applies? The Fort Eustis personnel 

have also inquired if they should remove debris soaked in oil or hazardous materials in 

addition to clean debris, if it is otherwise safe to do so?

Answer: ESF #3 governs debris removal, and the mission assignment form from FEMA 

(currently FEMA Form 010-0-8) should reference the correct ESF in block III. 

Hurricanes will typically create both contaminated and uncontaminated debris. Debris 

removal personnel should be advised to leave any contaminated debris when assigned to 

conduct ESF #3 debris removal. ESF # 3 specifically states contaminated debris should be 

addressed under ESF #10. Thus the removal of contaminated debris will require a separate 

mission assignment.

Practice Scenario: It has now been three days since Hurricane XYZ made landfall, and 

personnel and smallboats from Naval Station Norfolk are assisting with removing large 

sections of debris from the Elizabeth River to ensure emergency service crews and supplies 

can move by water safely (assume there is a imminent threat to life and safety if the work is 

not performed). The Naval Station Commanding Officer tells you, the base SJA, that he 

knows a mission assignment from FEMA is forthcoming, so the Navy will get reimbursed 

for this work under the Stafford Act. Is he correct in his assumption?

Answer: No. Without a Stafford Act Declaration, the Navy in this scenario is working 

under Immediate Response Authority (IRA) pursuant to DoDD 3025.18. Until there is a 

Stafford Act Declaration (either a major disaster or emergency declaration) and an 

executed mission assignment, there can be no reimbursement under the Stafford Act. 

Reimbursement for assistance pursuant to IRA is a possibility (but not required). 

Additionally, FEMA has reimbursed retroactively in some past disasters when a declaration 

was made and work had already commenced – but this is not a guarantee in every case. The 

bottom line is, in the transition period between using IRA and moving to the Stafford Act 

system, there is no guarantee of reimbursement for assistance to state and local entities, 

until mission assignments providing for such reimbursement are in place. 
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(2) Federal Response Operational Coordinating Structures/Personnel and State 

Response Entities

The following are several of the key NRF operational coordinating structures and personnel used to 

manage emergencies and disasters. Several of these terms are derived from NIMS, which is 

discussed further below.

• Local/State Emergency Operations Center (EOC)

The location at which an effected municipal or state government coordinates the information and 

resources necessary to support the local or state incident management activities.42 

• Incident Command Post (ICP) 

The field location at which the primary tactical-level, scene incident command functions are 

performed. The ICP may be co-located with the incident base or other incident facilities.43 The 

Incident Commander or Unified Command (in the event of a multi-agency or multi jurisdictional 

response) is located at the ICP.

• Area Command/Unified Area Command

An organization established to oversee the management of multiple incidents that are being handled 

by separate ICPs, or to oversee the management of a complex incident dispersed over a large area, 

and to broker critical resources. The Area Command does not have operational responsibility; that 

authority resides with the Incident Commander. The Area Command can become a Unified Area 

Command when incidents are multi-jurisdictional or involve multiple agencies.44

• National Operations Center (NOC)

In the event of a disaster or emergency, the NOC acts as the principal operations center for DHS, 

coordinating and integrating information from NOC components to provide situational awareness 

for the federal government. Additionally, the NOC serves as the national fusion center, collecting 

information on threats and hazards across the entire integrated national preparedness system.

45

• National Response Coordination Center (NRCC)

The NRCC is a multiagency coordination center located at FEMA headquarters. When activated, 

its staff coordinates overall Federal support for major disasters and emergencies. FEMA maintains 

the NRCC as a component of the NOC for incident support operations.46

 42 NRF, supra note 24, at 38-39.

43 FEMA, INCIDENT COMMAND SYSTEM TRAINING: ICS GLOSSARY 5 (May 2008) , available at: 

http://training.fema.gov/EMIWeb/IS/ICSResource/assets/ICSGlossary.pdf.

44 Id. at 1.

45 NRF, supra note 24, at 42-43.

46 Id. at 43.
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• National Infrastructure Coordinating Center (NICC)

The NICC monitors the Nation’s critical infrastructure and key resources on an ongoing basis. 

During an incident, the NICC provides a coordinating forum to share information across 

infrastructure and key resource sectors. It is both an operational component of the DHS National 

Protection and Programs Directorate and a watch operations element of the NOC.47

• Strategic Information and Operations Center (SIOC)

The SIOC is the FBI’s worldwide EOC. It maintains situational awareness over threats and 

provides FBI headquarters, field offices, and overseas legal attaches with timely notification of 

strategic information. It shares information with EOCs at all other levels of government. It 

provides command, control, and communications connectivity and a common operating picture for 

managing FBI responses worldwide. In the event of an incident, the SIOC establishes the 

headquarters command post and develops connectivity to field command posts and Joint Operations 

Centers (discussed further below). 48

• Joint Field Office (JFO) 

The JFO is the primary Federal incident management field structure. It is a temporary facility 

established locally to coordinate Federal, state, tribal, and local governments, as well as private 

sector and nongovernmental organizations, with primary responsibility for response and recovery. 

The JFO is organized and managed in a manner consistent with NIMS principles. The JFO uses 

Incident Command System (ICS) structure but does not manage on-scene operations. Rather, it 

provides support to on-scene efforts and conducts broader support operations that extend beyond the 

incident site.49 In the event of multiple incidents, multiple JFOs may be stood up and exist 

simultaneously to respond.50

• Unified Coordination Group (UCG)

This group is comprised of senior leaders from Federal and state interests, and in certain 

circumstances tribal governments, local jurisdictions, and the private sector. UCG members must 

have significant jurisdictional authority and responsibility over the response at issue. The 

composition will vary depending on the type and scope of incident. The UCG focuses on the JFO 

mission – not on managing on-scene operations, but providing support to those operations. When 

incidents affect multiple jurisdictions or the entire nation, multiple JFOs and UCGs may be 

established.51

• Unified Coordination Staff (UCS)

 47 National Infrastructure Coordinating Center, DHS.GOV, http://www.dhs.gov/national-infrastructure-coordinatingcenter (last visited Aug. 5, 2014).

48 NRF, supra note 24, at 43.

49 NIMS, supra note 25, at 141.

50 DHS, JOINT FIELD OFFICE ACTIVATION AND OPERATIONS: INTERAGENCY INTEGRATED STANDARD OPERATING 

PROCEDURE, VERSION 8.3 (April 2006) 10 [hereinafter JFO SOP], available at: 

http://www.fema.gov/pdf/emergency/nrf/NRP_JFO_SOP.pdf.

51 NRF, supra note 24, at 43.
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The UCS is led by the UCG. Personnel from state and Federal departments and agencies and other 

entities (including the private sector and non-governmental organizations) make up the UCS and 

may be assigned to work at various facilities (the JFO, staging areas, field offices, etc.).52

• Joint Operations Center (JOC)

The JOC is the focal point for all investigative law enforcement activities during a terrorist or other 

significant criminal incident. The JOC is managed by the FBI Special Agent in Charge (SAC) (also 

known as the Senior Federal Law Enforcement Officer (SFLEO) in an incident, as described 

below). It becomes a component of the JFO when the JFO is established.53

• Regional Response Coordination Center (RRCC)

FEMA maintains an RRCC in each of its 10 regional offices (the regional offices coincide with the 

10 FEMA Regions). When activated, RRCC’s are multi-agency coordination centers staffed in 

anticipation of or in response to an incident. They operate under the direction of the FEMA 

Regional Administrator. The RRCC staff coordinates response efforts and maintains connectivity 

with FEMA headquarters, state EOCs, and other federal and state coordination centers. The UCG 

will assume responsibility for coordinating Federal response activities at the incident level once 

established, freeing the RRCC to address other incidents.54

• Principal Federal Official (PFO)

By law and by Presidential directive, the Secretary of Homeland Security is the PFO for 

coordination of all domestic incidents requiring multiagency federal response. The Secretary may 

elect to designate a single field representative to serve as his or her primary representative to ensure 

consistency of federal support and the overall effectiveness of the federal incident management.

55

• Federal Coordinating Officer (FCO)

The FCO is a senior FEMA official who manages and coordinates federal resource support

activities related to Stafford Act disasters and emergencies.

56 The President appoints an FCO after 

a recommendation by the FEMA Administrator and the Secretary of Homeland Security. The 

FCO executes Stafford Act authorities, including committing FEMA resources and giving

mission assignments to other Federal departments and agencies. The role of the FCO in a Stafford 

Act response is discussed further below.

 52 Id.

53 JFO SOP, supra note 50 at 10.

54 NRF, supra note 24 at 42.

55 Congress limited the Secretary of Homeland Security’s ability to designate a “field representative” during a Stafford 

Act declared disaster or emergency by barring such an appointment absent a specific waiver. The Secretary of 

Homeland Security may designate a person to operate in the field that is not titled “Principal Federal Official” and the 

position must report through the Federal Coordinating Officer. The Secretary of Homeland Security must notify 

Congress if she/he appoints someone to function as such a field representative. 2010 DHS Appropriations Act, § 522.

56 “ROLE OF THE FEDERAL COORDINATING OFFICER IN DISASTER OPERATIONS, available at

http://www.fema.gov/region-ii-federal-coordinating-officers-and-defense-coordinating-officers (last visited Aug. 5, 

2014).
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• Senior Federal Law Enforcement Official (SFLEO)

The SFLEO is the senior law enforcement official from the agency with primary jurisdictional 

responsibility as directed by statute, Presidential directive, existing federal policies, and/or the 

Attorney General. The SFLEO directs the intelligence and investigative law enforcement

operations related to the incident and supports the law enforcement component of the on-scene 

Unified Command. In the event of a terrorist incident, this official will normally be the FBI SAC.

57

• Federal Resource Coordinator (FRC)

The FRC manages federal resource support activities related to non-Stafford Act incidents when 

federal-to-federal support is requested from DHS by another federal agency. The FRC is 

responsible for coordinating the timely delivery of resources to the requesting agency. Requesting 

agencies will appoint a senior official to work in coordination with the FRC as part of the UCG.58

• Governor’s Authorized Representative (GAR)

The GAR, who is in most cases also the State Coordinating Officer (SCO) under a Stafford Act

response, represents the governor of the state. The GAR/SCO is most often a senior leader in the 

state’s emergency response organization, and is a member of the UCG.59

• Defense Coordinating Officer (DCO) 

Appointed by DoD, the DCO serves as DoD’s single point of contact at the JFO for the UCG.

With few exceptions, DSCA requests originating at the JFO will be coordinated with and processed 

through the DCO. The DCO may have a Defense Coordinating Element (DCE) consisting of a staff 

and military liaison officers in order to facilitate coordination and support to activated ESFs. 

Specific responsibilities of the DCO (subject to modification based on the situation) include 

processing requirements for military support, forwarding mission assignments to the appropriate 

military organizations through DoD-designated channels, and assigning military liaisons, as 

appropriate, to activated ESFs. Currently, DoD has assigned DCOs at each of the ten DHS/FEMA 

regions. (See Figure 2-1 below).

 57 JFO SOP, supra note 50, at 15.

58 FEMA, OVERVIEW OF FEDERAL TO FEDERAL SUPPORT IN NON-STAFFORD ACT SITUATIONS, available at

https://www.fema.gov/pdf/emergency/nrf/nrf-fedtofed.pdf (last visited Aug. 5, 2014).

59 See JFO SOP, supra note 50, at 15.
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Figure 2-1. Map of FEMA Regions60

• Joint Task Force (JTF) Commander

Based on the size and type of incident, a combatant commander may utilize a Joint Task Force (JTF) to 

command Federal (Title 10) forces responding to the event. If a JTF is established, its command and 

control element will be co-located with the PFO at the JFO to ensure coordination and unity of effort. A 

JTF commander exercises operational control of all allocated DoD resources (excluding USACE 

resources, National Guard forces in State Active Duty or Title 32 status, and, in some circumstances, 

DoD forces in support of the FBI). The use of the JTF command and control element does not replace 

the requirement for a DCO/DCE at the JFO interfacing with the UCG - requests for assistance from 

DoD must still be coordinated via the DCO. Rather, the JTF command element will work with UCG

members to ensure that there is a clear understanding of the roles of military resources involved in the 

operation and to enhance coordination between military and civilian agencies.

61

• Dual Status Commander

A Dual Status Commander serves in both a Title 10 and Title 32 capacity, and can enhance the 

unity of effort by unifying the Federal and National Guard forces involved in the response. The 

National Defense Authorization Act for 201262 stated that when Federal forces and the National 

Guard are employed simultaneously in support of civil authorities, appointment of a Dual Status 

Commander should be the usual command and control arrangement.63 This includes Stafford Act

 60 FEMA Regional Offices, FEMA.GOV, http://www.fema.gov/about/contact/regions.shtm (last visited Aug. 5, 2014).

61 JFO SOP, supra note 50, at 20.

62 National Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515, 125 Stat. 1298 (2011).

63 National Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515(c), 125 Stat. 1395 (2011), 32

U.S.C. § 317, note. It is important to note, however, that despite a Dual Status Commander being the usual 

arrangement, this language “does not limit, in any way, the authorities of the President, the Secretary of Defense, or the 

Governor of any State to direct, control, and prescribe command and control arrangements for forces under their 

command.” Id.
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disaster and emergency response missions. The use of Dual Status Commanders is becoming more 

common for incident response, and they have been used for planned and special events since 2004, 

and it was utilized in the Hurricane Sandy response in 2012. Dual Status Commanders receive 

orders from both the state and Federal chains of command, and thus serve as a vital link between the 

two sides. They can be appointed in one of two ways: an active duty Army or Air Force officer 

may be detailed to the Army National Guard or Air National Guard respectively; or, an Army or Air 

National Guard member may be ordered to active duty. The Secretary of Defense must authorize 

the dual status, and the state Governor must consent to the status.64

The figure below outlines the interplay between these entities and organizations.

Figure 2-265

 64 See 32 U.S.C. §§ 315, 325 (2015).

65 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT (14 Sept. 2007). This publication has been updated to 

a 2013 version, the diagram is based on one first seen in JP 3-28 and not in the new version. It has been updated by the 

authors to reflect changes since original publication.
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7. National Prevention Framework (NPF)

The NPF provides guidance to leaders and practitioners at all levels of government, private- and 

non-profit sector partners, and individuals, on how to prevent or stop a threatened or actual act of 

terrorism.66 It helps achieve the National Preparedness Goal (NPG) of a secure and resilient Nation 

that is optimally prepared to prevent an imminent terrorist attack within the United States by: 

• Describing the core capabilities needed to prevent an imminent act of terrorism 

• Aligning key roles and responsibilities to deliver Prevention capabilities in time-sensitive 

situations 

• Describing coordinating structures that enable all stakeholders to work together 

• Laying the foundation for further operational coordination and planning that will synchronize 

Prevention efforts within the whole community and across the Protection, Mitigation, Response, 

and Recovery mission areas. 

As mentioned above, core capabilities were developed and published in conjunction with the NPG. 

The seven core capabilities of the NPF are: Planning; Public Information and Warning; Operational 

Coordination; Forensics and Attribution; Intelligence and Information Sharing; Interdiction and 

Disruption; and Screening, Search, and Detection.67

As with other frameworks, there are multiple coordinating structures for Prevention (some are 

shared with the other mission areas). Departments or agencies, as well as private and nonprofit 

entities, with unique missions in Prevention, bring additional capabilities to bear through these 

structures. Coordinating structures can function on multiple levels, to include national-level 

coordinating structures such as the DHS National Operations Center (NOC), the Federal Bureau of 

Investigation (FBI) Strategic Information and Operations Center (SIOC), the Office of the Director 

of National Intelligence (ODNI) National Counterterrorism Center (NCTC), the DoD National 

Military Command Center (NMCC), the FBI National Joint Terrorism Task Force (NJTTF), and 

others. Field coordinating structures, such as the FBI JTTFs and Field Intelligence Groups (FIGs),

state and major urban area fusion centers, state and local counterterrorism and intelligence units,

and others, also play a critical role as coordinating structures in preventing imminent acts of 

terrorism.68

8. National Mitigation Framework (NMF)

The NMF establishes a common forum for coordinating and addressing how the Nation manages 

risk through mitigation capabilities.69 It describes mitigation roles for government, NGOs, and 

private entities and addresses how the Nation will develop, employ, and coordinate mitigation core 

 66 For example, the Prevention framework describes the process through which the public is warned regarding credible

terrorist threats through National Terrorism Advisory System (NTAS) alerts. DHS, NATIONAL PREVENTION 

FRAMEWORK 15 (May 2013), available at: http://www.fema.gov/library/viewRecord.do?id=7358.

67 Id. at 10. 

68 Id. at 17.

69 Under PPD-8, mitigation capabilities “include, but are not limited to, community-wide risk reduction projects; efforts 

to improve the resilience of critical infrastructure and key resource lifelines; risk reduction for specific vulnerabilities 

from natural hazards or acts of terrorism; and initiatives to reduce future risks after a disaster has occurred.” See PPD-8, 

supra note 16. 
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capabilities to reduce loss of life and property due to disasters. Building on a wealth of evidencebased knowledge and community experience, the NMF seeks to increase risk awareness and 

leverage mitigation products, services, and assets across the whole community. 

The NMF is designed to advance operational planning throughout the whole preparedness community 

by offering a comprehensive approach to reducing the impact of disasters through the development, 

implementation, and coordination of seven mitigation core capabilities.

The NMF seven core capabilities are: Planning; Public Information and Warning; Operational 

Coordination; Community Resilience; Long-term Vulnerability Reduction; Risk and Disaster 

Resilience Assessment; and Threats and Hazard Identification.70

As with the NRF and other mission area frameworks, the mitigation mission area and NRF refer to 

the multiple levels of coordinating structures already discussed. Numerous existing coordinating 

structures already support the mitigation mission area, such as the NSC.

71 Of note, a new 

coordinating structure known as the Mitigation Framework Leadership Group (MitFLG) is being

established to coordinate mitigation efforts across the federal government and to assess the

effectiveness of mitigation capabilities as they are developed and deployed across the Nation. The

MitFLG will include relevant local, state, tribal, and federal organizations. It will be chaired by 

FEMA in consultation with Department of Homeland Security (DHS) leadership. Consistent with 

Presidential Policy Directive 1(PPD 1), Organization of the National Security Council System, the

MitFLG will coordinate with the relevant National Security Council Interagency Policy

Committees.

72

9. National Disaster Recovery Framework (NDRF)

The NDRF was published in September 2011 as a guide to promote effective recovery from 

incidents. It provides guidance that enables effective recovery support to disaster-impacted states, 

tribes, and local jurisdictions. It provides a flexible structure that enables disaster recovery 

managers to operate in a unified manner. It also focuses on how best to restore, redevelop, and 

revitalize the health, social, economic, natural, and environmental fabric of the community after an 

incident. 

The NDRF defines: 

• Core recovery principles 

• Roles and responsibilities of recovery coordinators and other stakeholders 

• A coordinating structure that facilitates communication and collaboration among all 

stakeholders 

• Guidance for pre- and post-disaster recovery planning 

• The overall process by which communities can capitalize on opportunities to rebuild 

stronger, smarter, and safer. 

 70 DHS, NATIONAL MITIGATION FRAMEWORK 2, 35 (May 2013), available at http://www.fema.gov/national-mitigationframework [hereinafter NMF].

71 Id. at 29.

72 Id. at 30.
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As with the other frameworks, the NDRF discusses the development and implementation of core 

capabilities. The eight core capabilities for the NDRF are: Planning; Public Information and 

Warning; Operational Coordination; Economic Recovery; Health and Social Services; Housing; 

Infrastructure Systems; and Natural and Cultural Resources.73

The NDRF introduces four new concepts and terms: Federal Disaster Recovery Coordinator 

(FDRC), State or Tribal Disaster Recovery Coordinators (SDRCs or TDRCs), Local Disaster 

Recovery Managers (LDRMs), and Recovery Support Functions (RSFs). The six new RSFs 

provide a structure to facilitate problem solving, improve access to resources, and foster 

coordination. The RSFs are similar in concept to ESFs - each RSF has coordinating and primary 

Federal agencies and supporting organizations that operate together with local, State and Tribal 

government officials, nongovernmental organizations (NGOs) and private sector partners. As with 

the ESFs, RSFs can be selectively activated as needed.74 The FRDC, SDRC/TDRC, and LDRM are 

three new positions that provide focal points for incorporating recovery considerations into the 

decision making process and monitoring the need for adjustments in assistance where necessary and 

feasible throughout the recovery process.75

10. National Protection Framework

The National Protection Framework was published in July 2014 and describes what the whole 

community—from community members to senior government leaders—should do to safeguard 

against acts of terrorism, natural disasters, and other threats or hazards.76 This Framework helps 

achieve the NPG of a secure and resilient Nation that is prepared to protect against the greatest risks 

in a manner that allows American interests, aspirations, and way of life to thrive.77 This Framework 

provides guidance to leaders and practitioners at all levels of government; the private and nonprofit 

sectors; and individuals by: 

• Describing the core capabilities needed to achieve the Protection mission area and end-state of 

“creating conditions for a safer, more secure, and more resilient Nation”

• Aligning key roles and responsibilities to deliver Protection capabilities

• Describing coordinating structures that enable all stakeholders to work together

• Laying the foundation for further operational coordination and planning that will synchronize 

Protection efforts within the whole community and across the Prevention, Mitigation, Response, 

and Recovery mission areas.78

The NPG identifies 11 core capabilities for the Protection mission area: Planning; Public 

Information and Warning; Operational Coordination; Intelligence and Information Sharing; 

Interdiction and Disruption; Screening, Search, and Detection; Access Control and Identity 

Verification; Cybersecurity; Physical Protective Measures; Risk Management for Protection 

Programs and Activities; and Supply Chain Integrity and Security. The first three core 

capabilities—Planning, Public Information and Warning, and Operational Coordination—are 

 73 DHS, OVERVIEW OF THE NATIONAL PLANNING FRAMEWORKS 7 (Jul. 2014), available at: FEMA.GOV.

74 DHS, NATIONAL DISASTER RECOVERY FRAMEWORK 1 (Sept. 2011), available at http://www.fema.gov/nationaldisaster-recovery-framework.

75 Id. 
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common to all five Frameworks. The Protection and Prevention mission areas share three core 

capabilities: Intelligence and Information Sharing; Interdiction and Disruption; and Screening, 

Search, and Detection. The Protection Framework provides detailed descriptions of each core 

capability and the relationships to the other mission areas.79

Similar to the other NPS Frameworks, the Protection Framework describes coordinating structures 

that provide the mechanisms to develop and deliver the core capabilities. In the context of the 

National Protection Framework, coordinating structures support protection program implementation 

and strenthen the Nation’s ability to increase the protective posture when required to augment 

operations that take place during temporary periods of heightened alert, during periods of incident 

response, or in support of planned events. The coordinating structures are used to conduct planning, 

implement training and exercise programs, promote information sharing, shape research and 

development priorities and technical requirements, address common vulnerabilities, align resources, 

and promote the delivery of Protection capabilities.

11. National Incident Management System (NIMS)

Homeland Security Presidential Directive 5 (HSPD-5) directed the development and administration 

of NIMS. It was first published in 2004, to provide a consistent nationwide template to enable 

federal, state, tribal, and local governments as well as nongovernmental organizations and private 

entities to work together to prevent, protect against, respond to, recover from, and mitigate the 

effects of incidents. Since it was first published, NIMS has subsequently been revised to reflect 

input from a broad variety of stakeholders. In addition, lessons learned from recent incidents were 

considered in the latest version. It is important to note NIMS is not an operational management 

plan; instead, it is a core set of doctrines, concepts, terminology, and organizational processes 

intended to enable efficient and collaborative management of incidents.80 

As with the Stafford Act, NIMS is based on the premise that most incidents begin and end locally 

and are managed on a daily basis at the lowest possible geographical, organizational, and 

jurisdictional level.81

NIMS is comprised of five key components:

• Preparedness. NIMS focuses on the following elements of preparedness: planning; procedures 

and protocols; training and exercises; personnel qualifications and certification; and equipment 

certification.82 NIMS also stresses a unified approach to management and response activities, and 

that all levels of governments and organizations must identify their capabilities before incidents 

occur.

 76 DHS, NATIONAL PROTECTION FRAMEWORK 1 (Jul. 2014), available at http://www.fema.gov/medialibrary/assets/documents/97350. 

77 Id.

78 Id. at 1-2.

79 Id. at 10-11.

80 NIMS, supra note 25, at 3.

81 Id. at 5.

82 Id. at 9.
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• Communication and Information Management. NIMS emphasizes that well-planned, 

established, and utilized communications are critical for enabling the dissemination of information 

during an incident.83 Common plans, standards, and communication architecture help to facilitate 

interoperability and maintain a constant flow of information during an incident.84 As with incident 

response in general, communication systems should be flexible and scalable to effectively manage 

any situation.

• Resource Management. According to NIMS, resource management is divided into five 

principles:85

 Planning

 Use of agreements

 Categorizing resources

 Resource identification and ordering

 Effective management of resources

• Command and Management. NIMS incorporates the existing Incident Command System 

(ICS) and Multi-Agency Coordination Systems (MACS) as the command structure for response to 

all hazards at all levels of government.86 The ICS works at the tactical level, organizing the onscene operations.87 In comparison, MACS coordinate activities above the field level and can be 

either informal or formal. Formal coordination addresses issues before an incident occurs and is the

preferred process.88

• Ongoing Management and Maintenance. HPSD-5 authorizes the Secretary of Homeland 

Security to establish a mechanism to ensure the ongoing management and maintenance of NIMS. 

The National Integration Center (NIC) was established to assist government and private sectors in 

implementing NIMS and to provide for its refinement.89 As part of this process, NIMS notes the 

continued development of science and technology plays a critical role in improving response 

capabilities.

12. Other Significant Response Plans, Authorities, and Policies Related to the National 

Preparedness Framework 

When DHS initiates the response mechanisms of the NRF, including the ESFs, Support Annexes, 

and Incident Annexes, existing interagency plans that address incident management are 

incorporated as supporting plans and/or operational supplements to the NRF. For incidents not led 

by DHS, other federal agency response plans provide the primary federal response protocol. 

Common interagency plans responders may encounter during such incidents include the National 

 83 Id. at 23.

84 Id. at 24.

85 Id. at 32–33.

86 Id. at 45.

87 Id. at 46.

88 Id. at 64.

89 Id. at 75.
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Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the National Emergency 

Communications Plan (NECP). In the event of a major disaster or emergency declaration, agencies 

should be aware that their responsibilities may be modified to align with a response under the NRF.

a. The National Contingency Plan (NCP)

The NCP90 was developed pursuant to the Comprehensive Environmental Response, Compensation, 

and Liability Act of 1980 (CERCLA) and the Federal Water Pollution Control Act or Clean Water 

Act of (1972). It sets out procedures for preventing and responding to oil discharges into navigable 

waters and releases of hazardous substances, pollutants, and contaminants into the environment. 

The NCP provides that a predesignated on-scene coordinator (OSC) shall direct response efforts at 

the scene of a discharge or release. Inland, the Environmental Protection Agency (EPA) is the lead 

response agency and provides OSCs for responses. In coastal areas, the U.S. Coast Guard is the 

lead response agency for coordinating the federal response. Executive Order 12580 authorizes the 

establishment of the National Response Team (NRT) for planning and preparing for response 

actions; designates the EPA and the Coast Guard as co-chairs; and designates responsibilities of 

other agencies on the NRT and on Regional Response Teams.91 Generally, DoD or Department of 

Energy (DOE) will provide the OSC and have the lead for responding to the release of hazardous 

substances, pollutants, or contaminants when the incident is on or comes from a facility or vessel 

under the control, custody, or jurisdiction of DoD or DOE, respectively.

92 Whether or not the NRF 

is activated, the OSCs apply NIMS and Incident Command principles during a response.

Although the EPA is the ESF #10 coordinator under the NRF, either the EPA or DHS/Coast Guard 

will serve as the primary agency for ESF #10 response actions, depending on whether the incident is 

in the inland or coastal zone (the role of primary agencies under the ESFs are discussed above). 

The NCP is considered an operational supplement to the NRF. If the NRF or ESF #10 is activated 

for an oil discharge or hazardous material release, the NCP will serve as the basis for actions taken 

in support of the NRF.93

b. The National Emergency Communications Plan (NECP)

Congress directed the Department of Homeland Security’s (DHS) Office of Emergency 

Communications (OEC) to develop the first National Emergency Communications Plan (NECP). 

Title XVIII of the Homeland Security Act of 2002,

94 as amended, calls for the NECP to be 

developed in coordination with stakeholders from all government levels and with members from the 

private sector. DHS worked with stakeholders from federal, state, local, and tribal agencies to 

develop this strategic plan establishing a national vision for the future state of emergency 

 90 40 C.F.R. § 300 (2015). The NCP is required by section 105 of the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980, 42 U.S.C. 9605, as amended by the Superfund Amendments and 

Reauthorization Act of 1986 (SARA), Pub.L. 99–499, and by section 311(d) of the Clean Water Act (CWA), 33 U.S.C. 

1321(d), as amended by the Oil Pollution Act of 1990 (OPA 90), Pub.L. 101–380. See 40 C.F.R. § 300.2 (2015). 

Executive Orders 12580 and 12777 delegated to the EPA responsibility to amend the NCP as necessary.

91 Exec. Order No. 12580, 52 F.R. 2923, (23 Jan. 1987).

92 40 C.F.R. § 300 (2015). 

93 FEMA, EMERGENCY SUPPORT FUNCTION #10 – OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (May 2013), 

available at FEMA.gov.

94 HSA, supra note 6.
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communications. The desired future state is that emergency responders can communicate “[a]s 

needed, on demand, and as authorized, at all levels of government, across all disciplines.”95 

Emergency Support Function 2 of the NRF supplements the NECP and sets out procedures for 

coordinating the provision of temporary national security and emergency preparedness 

telecommunications support in areas impacted by a major disaster or emergency.

c. Nuclear/Radiological Incidents

The Nuclear/Radiological Incident Annex (NRIA) of the NRF supersedes the Federal Radiological 

Emergency Response Plan (FRERP) of 1996. The NRIA describes the policies, situations, concepts 

of operations, and responsibilities of the federal departments and agencies governing the immediate 

response and short-term recovery activities for incidents involving release of radioactive materials. 

The incidents may result from inadvertent or deliberate acts. Pursuant to the incident annex 

paradigm, when DHS exercises domestic incident management functions, it is supported by other 

federal agencies that are either “coordinating” or “cooperating” agencies.96

“Coordinating agencies” provide the leadership, expertise, and authorities to implement critical and 

specific nuclear/radiological aspects of the response, and facilitate nuclear/radiological aspects of 

the response in accordance with those authorities and capabilities. The coordinating agencies are 

those federal agencies that own, have custody of, authorize, regulate, or are otherwise assigned 

responsibility for the nuclear/radioactive material, facility, or activity involved in the incident. 

“Cooperating agencies” include other federal agencies that provide additional technical and 

resource support specific to nuclear/radiological incidents to DHS and the coordinating agencies.97

When DHS is not exercising domestic incident management responsibilities, the coordinating 

agency, as determined by their authorities, will be the responsible agency. DoD is the coordinating 

agency for incidents involving nuclear facilities owned or operated by DoD, materials shipped by or 

for DoD, nuclear weapons, and DoD satellites contain radioactive materials that impact within the 

United States.

98

d. National Security Presidential Directive 46 (NSPD-46) and Homeland Security 

Presidential Directive (HSPD 15)

National Security Presidential Directive 46 (NSPD-46) and HSPD-1599 detail the policy of the 

United States for combating terrorism and reaffirm the lead agencies for the management of various 

aspects of the counterterrorism effort. These directives recognize that states have primary 

responsibility in responding to terrorist incidents, including actual events, and the Federal 

Government provides assistance as required.

 95 DHS, NATIONAL EMERGENCY COMMUNICATIONS PLAN, DHS (Jul. 2008) ES-1, available at 

http://www.dhs.gov/xlibrary/assets/national_emergency_communications_plan.pdf.

96 FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Jun. 2008) 1,4,7, available at

http://www.fema.gov/pdf/emergency/nrf/nrf_nuclearradiologicalincidentannex.pdf.

97 Id. at 7.

98 Id. at 10.

99 NATIONAL SECURITY PRESIDENTIAL DIRECTIVE 46/HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 15, “U.S.

STRATEGY AND POLICY IN THE WAR ON TERROR” (classified), March 6, 2006.
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e. The Defense Against Weapons of Mass Destruction Act100

Title 50 of Chapter 40 of the U.S. Code concerns the U.S. Government’s response to the 

proliferation of and use or threat to use nuclear, chemical, or biological WMD or related materials 

and technologies.

101 Title 50 U.S.C. § 2313 directs the Secretary of Defense to designate an official 

within the DoD as Executive Agent to coordinate DoD assistance with federal, state, and local 

entities when responding to incidents involving such materials. The Secretary of Defense has 

appointed the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs 

(ASD(HD&ASA)) as Executive Agent. The DOE was directed to designate an Executive Agent for 

its nuclear, chemical, and biological response, and the DoD and DOE Executive Agents are 

responsible for coordinating assistance with federal, state, and local officials when responding to 

threats involving nuclear, chemical, and biological weapons.102

B. The Robert T. Stafford Disaster Relief and Emergency Assistance Act (The Stafford Act)

The Stafford Act provides for assistance from the federal government to states in the event of 

emergencies or natural and other disasters.103 The Stafford Act is the primary legal authority for 

federal emergency and disaster assistance to state and local governments. Congress’s intent in 

passing the Stafford Act was to provide for an “orderly and continuing means of assistance by the 

federal government to state and local governments in carrying out their responsibilities to alleviate 

the suffering and damage which result from such disasters.”104 The Stafford Act sought, among 

other things, to broaden the scope of disaster relief programs; encourage the development of 

comprehensive disaster preparedness and assistance plans, programs, and capabilities of state and 

local governments; and provide federal assistance programs for both public and private losses 

sustained in disasters.

Through the Stafford Act, Congress delegated to the President emergency powers that may be 

exercised in the event of a declared major disaster or emergency. Generally, Federal Stafford Act

assistance is given upon request from a state governor105 provided certain conditions are met;

primarily that the governor certifies that the state lacks the resources and capabilities to manage the 

consequences of an event without federal assistance. The Stafford Act lists the roles and 

responsibilities of federal agencies and departments when providing both major disaster and 

 100 The Defense Against Weapons of Mass Destruction Act, Public Law: 104-201, 1996, codified at 50 U.S.C. §§ 

2301–2371 (2015).

101 10 U.S.C. § 12304 (2015) provides the federal authority for the mobilization of Reserve Components in response to 

the use or threatened use of a weapon of mass destruction.

102 50 U.S.C. §§ 2301–2371 (2015).

103 The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., as amended by the 

Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-295 (2007), and the Sandy Recovery 

Improvement Act of 2013, Pub. L. No. 113-2 (2013) [hereinafter The Stafford Act]. 104 42 U.S.C. § 5121 (2015).

105 An example where a request is not required is in the case of an emergency in an area where the Federal government 

is determined to have primary responsibility, as discussed below. See 42 U.S.C. § 5191(a) (2015). Additionally, 42 

U.S.C. § 5170a(5) states that in a major disaster, the President may provide accelerated Federal assistance in the 

absence of a request where necessary to save lives, prevent human suffering, or mitigate severe damage as long as 

prompt coordination with the state occurs. Use of this authority may impede the ability of the Federal government to 

implement the cost-share process.
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emergency assistance, and it outlines the types of assistance that affected state(s) may receive from 

the federal government (See Table 2-4, below). 

Chapter 2 

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The Stafford Act applies in the event of a major disaster or emergency. It details the emergency functions of the 

President, which are delegated as per Executive Order 12656 and other directives.

DEPARTMENTS & AGENCIES ROLES AND RESPONSIBILITIES

Executive Office of the President 

(President or as delegated)

Major Disaster Assistance—upon request of a state governor. Provide 

specified essential services; coordinate disaster relief activities; direct 

federal agency assistance to states and localities; take other action as 

consistent with the Act and within delegated authority.

Emergency Assistance, upon request of a state governor or sua sponte: 

Direct federal agencies to provide resources and technical and advisory 

assistance; provide essential services; coordinate all disaster relief 

assistance.

Federal Coordinating Officer 

(FCO)

Major Disaster and Emergency Assistance: Establish field offices; 

coordinate relief efforts; take other necessary actions within authority.

Emergency Support Teams

(ESTs)

Assist the Federal Coordinating Officer in carrying out his or her

responsibilities in a major disaster or emergency.

State Governor(s) Request declaration by the President that a major disaster or emergency 

exists.

Federal Agencies Provide, consistent with appropriate authorities and upon request from the 

President: Personnel for the Emergency Support Teams; and, assistance in

meeting immediate threats to life and property resulting from a major 

disaster or emergency.

FEMA Prepare, sponsor, and direct federal response plans and programs for 

emergency preparedness; provide hazard mitigation assistance in the form 

of property acquisition & relocation assistance.

Department of Defense Upon President’s direction, provide “emergency work” to protect life and 

property prior to declaration of major disaster or emergency.

American National Red Cross

and other relief organizations

Major Disaster: As a condition of receiving assistance, comply with 

regulations relating to non-discrimination and other regulations as deemed 

necessary by the President for effective coordination of relief efforts.

Table 2-4. Stafford Act Roles and Responsibilities 

FEMA operates under the Stafford Act and is the lead federal agency for Stafford Act responses, 

focusing its efforts on managing the consequences of disasters and emergencies. FEMA’s actions 

under the Stafford Act are generally driven by requests from state and local governments. Figure 2-

3, on the following page, provides an overview of the process of providing federal support to states 

under the Stafford Act. 
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Figure 2-3.

106

To coordinate the relief efforts of all federal agencies in both major disasters and emergencies, the 

Stafford Act authorizes the President to appoint a Federal Coordinating Officer (FCO) immediately 

after declaring a major disaster or emergency. The Stafford Act also requires the President to 

request that a Governor seeking federal assistance designate a State Coordinating Officer (SCO) to

coordinate state and local disaster assistance efforts with those of the federal government.107

The FCO may utilize relief organizations, such as state relief organizations and the American 

National Red Cross (ANRC), in the distribution of emergency supplies, such as food and medicine, 

and in reconstruction or restoration of essential services such as housing. The FCO may coordinate 

all relief efforts; however, states, localities, and relief organizations must agree with the courses of 

action. The President is also authorized to form Emergency Support Teams (ESTs) of federal 

personnel to be deployed to the area of the disaster or emergency.108 By delegation, the FCO may 

activate ESTs composed of federal program and support personnel, to be deployed into an area 

affected by a major disaster or emergency.109 The EST is the principal interagency group that 

supports the FCO in coordinating the overall federal disaster assistance.

 106 Overview of Stafford Act Support to States, FEMA.GOV, http://www.fema.gov/pdf/emergency/nrf/nrf-stafford.pdf

(last visited Aug. 6, 2014).

107 42 U.S.C. § 5143 (2015).

108 42 U.S.C. § 5144 (2015).

109 44 C.F.R. § 206.43 (2015). These teams may also be called emergency response teams.
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1. Requests for Emergency or Major Disaster Declarations

Under the Stafford Act, the governor of an affected state may request the declaration of a major 

disaster or emergency, and must demonstrate, as a prerequisite for receiving assistance, both that the 

state’s response plans have been activated and that state and local capabilities are inadequate for an 

effective response.

110 The Stafford Act’s definitions of “emergency” and “major disaster” are 

referenced in many of the legal documents related to incident management and are used consistently 

throughout this chapter.

a. Major Disasters

A “major disaster” is defined as follows:

[A]ny natural catastrophe (including any hurricane, tornado, storm, high water, wind 

driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, 

mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or 

explosion, in any part of the United States, which in the determination of the 

President causes damage of sufficient severity and magnitude to warrant major 

disaster assistance under this Act to supplement the efforts and available resources of 

States, local governments, and disaster relief organizations in alleviating the damage, 

loss, hardship, or suffering caused thereby.111

A major disaster encompasses fires, floods, and explosions, regardless of cause, when such acts 

cause damage of sufficient severity to warrant federal disaster assistance, as determined by the 

President. A Weapon of Mass Destruction (WMD) event involving fire or an explosion, including 

the detonation of a high-yield explosive, would likely meet this threshold. Following the letter of 

the law strictly, a chemical, radiological, or biological WMD event in the United States would 

qualify as a major disaster only if it results in a fire, flood, or explosion. A WMD event of 

catastrophic proportions could warrant treatment as both a major disaster and an emergency.

Major disaster assistance is a more comprehensive grant of federal aid for long-term consequence 

management. In a major disaster, the President has broad authority to assist states and localities. 

To receive federal assistance, a governor must not only indicate to the President that the state does 

not have the capacity or resources to mount an effective response, but he or she must also furnish 

information on the measures that have been or will be taken at the state and local levels to mitigate 

the effects of the disaster. In addition, the governor must certify that state and local government 

obligations and expenditures will comply with all applicable cost-sharing requirements of the 

Stafford Act.

112

The President’s powers after the declaration of a major disaster include (but are not limited to) the 

authority to provide the following assistance to states and localities: specified technical and 

advisory assistance; temporary communications services; food; relocation assistance; legal services; 

crisis counseling assistance and training; unemployment assistance; emergency public 

 110 The specific requirements for a request for an emergency declaration are set forth in 44 C.F.R. § 206.35 (2015). The 

specific requirements for a request for a major disaster declaration are set forth in 44 C.F.R. § 206.36 (2015).

111 42 U.S.C. § 5122(2) (2015).

112 42 U.S.C. § 5170 (2015).
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transportation in the affected area; and fire management assistance on public or privately-owned 

forest or grassland.113 In addition, the President is authorized to direct federal agencies to provide

equipment, supplies and facilities to state and local governments; distribute food and medicine to 

victims; and perform work and services (such as search and rescue) necessary to save lives and 

protect property.

114

b. Emergencies

The Stafford Act defines “emergency” as follows:

[A]ny occasion or instance for which, in the determination of the President, [f]ederal

assistance is needed to supplement State and local efforts and capabilities to save 

lives and to protect property and public health and safety, or to lessen or avert the 

threat of a catastrophe in any part of the United States.115

An emergency is, more broadly, any situation in which federal assistance is required to save lives, 

protect health and property, or mitigate or avert a catastrophe. Generally, the existence or threat of 

each type of WMD–chemical, biological, radiological, nuclear, and high-yield explosive - likely 

would be deemed an “emergency” if the event or threat overwhelms state and local authorities and 

warrants the assistance of the federal government.

Emergency authority granted to the President is similar to that authorized for handling major 

disasters, but it is not as extensive. Emergency assistance is more limited in scope and in time than 

assistance under a major disaster declaration, and total assistance may not exceed $5 million for a 

single emergency, unless the President determines there is a continuing and immediate risk to lives, 

property, public health or safety, and necessary assistance will not otherwise be provided on a 

timely basis.116 The Stafford Act authorizes the President to declare an emergency, but not a major 

disaster, sua sponte with respect to an emergency that “involves a subject area for which, under the 

Constitution or laws of the United States, the United States exercises exclusive or preeminent 

responsibility and authority.”117

In any emergency, the President may direct any federal agency, with or without reimbursement, to 

use the authorities and resources granted to it under federal law in support of state and local 

emergency assistance efforts to save lives, protect property and public health and safety, and lessen 

or avert the threat of a catastrophe.118 The President may coordinate all emergency relief assistance 

and provide technical and advisory assistance to affected state and local governments for the: 

performance of essential community services; issuance of hazard and risk warnings; broadcast of 

public health and safety information; and management, control and reduction of immediate threats 

to public safety. The President may also direct federal agencies to provide emergency assistance; 

remove debris pursuant to 42 U.S.C. § 5173; provide temporary housing assistance in accordance 

 113 42 U.S.C. §§ 5171–5189 (2015).

114 42 U.S.C. § 5170b (2015).

115 42 U.S.C. § 5122(1) (2015).

116 42 U.S.C. § 5193 (2015).

117 42 U.S.C. § 5191(a) (2015).

118 42 U.S.C. § 5192 (2015).
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with 42 U.S.C. § 5174; and assist state and local governments in the distribution of food, medicine, 

and other consumable supplies.119

The Stafford Act also authorizes the President, upon request from the governor of an affected state, 

to provide “emergency work” essential for the preservation of life and property, by DoD for a 

maximum of ten days before the declaration of either an emergency or a major disaster.120 

2. Liability under the Stafford Act

The Stafford Act specifically provides for immunity from liability for certain actions taken by 

Federal agencies or employees of the Federal Government pursuant to the Act. 42 U.S.C. § 5148 of 

the Stafford Act provides:

The federal government shall not be liable for any claim based upon the exercise or 

performance of or the failure to exercise or perform a discretionary function or duty 

on the part of a federal agency or an employee of the federal government in carrying 

out the provisions of this chapter.121

3. Categories of Agency Support Under the Stafford Act122

Once an emergency or major disaster is declared, it means a state or states has asked for assistance from 

the Federal Government (except in the case of the limited exception discussed above). The assistance 

given will typically take one of three forms: Direct Federal Assistance, Federal Operations Support, or 

Technical Assistance. 

Direct Federal Assistance is assistance where one or more Federal departments or agencies provide 

goods and services to state and/or local governments when the affected jurisdiction lacks the capability 

needed to perform or to contract for eligible emergency work during a major disaster or emergency. 

Direct Federal Assistance is authorized and reimbursed by FEMA, and is subject to Federal-State cost 

sharing. 

Federal Operations Support is assistance where one or more Federal departments or agencies provide 

goods or services to FEMA and/or other Federal agencies to enable them to provide direct Federal 

assistance or other supplemental Federal assistance. Federal operations support is requested by FEMA 

or another Federal department or agency. Federal operations support is authorized and reimbursed by 

FEMA, and is not subject to Federal-State cost sharing.

Technical Assistance is expertise support provided to state and local jurisdictions when those 

jurisdictions lack the knowledge and/or skills needed to perform a required activity. Technical 

Assistance is 100 percent federally funded. However, FEMA is phasing out the concept of Technical 

Assistance, and is categorizing assistance that previously fell into this category as either Direct Federal 

Assistance or Federal Operations Support.

 119 42 U.S.C. § 5192(a) (2015).

120 42 U.S.C. § 5170b(c) (2015).

121 42 U.S.C. § 5148 (2015).

122 U.S. COAST GUARD, COMDTINST 3006.1 (series), FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)

MISSION ASSIGNMENTS: OPERATIONAL ACCEPTANCE AND EXECUTION (Aug. 13 2012).
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4. Interplay Between the Stafford Act and National Preparedness System (NPS)123

The following is a summary of how Stafford Act assistance typically occurs, with reference to 

relevant NPS concepts. 

As the DHS National Operations Center (NOC) monitors for potential major disasters or 

emergencies, it will receive advance warning of an incident, at which time DHS may deploy 

representatives to state EOCs for situational assessment. Regional Response Coordination Centers 

(RRCCs) and other coordinating structures discussed above may be activated.

Immediately after the incident, local emergency personnel assess the situation. They may seek 

additional resources through mutual aid agreements or the state. State officials will mobilize State 

resources and may use mutual aid processes such as the Emergency Management Assistance 

Compact (EMAC) to augment their resources. The governor will activate the state emergency 

operations plan, declare a state of emergency, and may request a state/DHS joint Preliminary 

Damage Assessment (PDA). State and federal officials conduct the PDA in coordination with 

tribal/local officials as required and determine if the event warrants a request for a Presidential 

declaration of a major disaster or emergency. 

After a major disaster or emergency declaration, an RRCC coordinates initial activities until a JFO 

is established. If regional resources are overwhelmed or if it appears that the event may result in 

particularly significant consequences, DHS may deploy a national-level Incident Management 

Assistance Team (IMAT). Depending on the scope and impact of the event, the NRCC carries out 

initial activations and mission assignments and supports the RRCC. The governor appoints a State 

Coordinating Officer (SCO) to oversee state response and recovery efforts. A Federal Coordinating 

Officer (FCO), appointed by the President in a Stafford Act declaration, coordinates Federal 

activities in support of the State. 

A JFO may be established locally to provide a central point for federal, state, tribal, and local 

executives to coordinate their support. The Unified Coordination Group (UCG) leads the JFO. The 

UCG may need to meet initially via conference calls to develop objectives and an initial action plan. 

The UCG coordinates field operations from the JFO. In coordination with state, tribal, and/or local 

agencies, ESFs are activated to assess the situation and identify response requirements. Federal 

agencies provide resources under DHS/FEMA mission assignments or their own authorities. 

As immediate response priorities are met, recovery activities begin. The Stafford Act Public 

Assistance program provides disaster assistance to states, tribes, local governments, and certain 

private nonprofit organizations. As the need for full-time interagency coordination at the JFO 

decreases, the UCG plans for selective release of federal resources and demobilization.

 123 Example provided by Overview of Stafford Act Support to States, FEMA.GOV, 

http://www.fema.gov/pdf/emergency/nrf/nrf-stafford.pdf (last visited Aug. 6, 2014).
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C. Immediate Response Authority

1. Federal Military Commanders

Federal military commanders, heads of DoD Components, and/or responsible DOD civilian officials 

have “Immediate Response Authority” under DoDD 3025.18. In response to a request for 

assistance from a civil authority, under imminently serious conditions and if time does not permit 

approval from higher authority, DoD officials (most typically installation commanders) may 

provide an immediate response by temporarily employing the resources under their control, subject 

to any supplemental direction provided by higher headquarters, to save lives, prevent human 

suffering, or mitigate great property damage within the United States.124

• However, Immediate Response Authority does not allow for actions that would subject 

civilians to the use of military power that is regulatory, prescriptive, proscriptive, or 

compulsory (for a detailed discussion, see the Chapters within on Military Support to 

Civilian Law Enforcement and Civil Disturbance Operations). 

• Separately, per DoDD 3025.18.4.g.1, any decision by an Immediate Response Authority to 

temporarily deploy resources requires notification to the National Joint Operations and 

Intelligence Center (NJOIC). 

• Finally, commanders may not normally continue support under immediate response 

authority beyond 72 hours. When using this authority DoD commanders shall reassess 

whether there remains a continued need for a DoD response as soon as practicable, but no 

later than 72 hours after the request for assistance was received. 

As noted in Chapter 1, all such requests from civil authorities for assistance must be evaluated for:

• Cost – Who pays and the impact on DoD budget.

• Appropriateness – Whether it is in the interest of DoD to provide the requested support.

• Readiness – Impact on DoD’s ability to perform its primary mission.

• Risk – Safety of DoD forces.

• Legality – Compliance with the law.

• Lethality – Potential use of lethal force by or against DoD forces.

2. State Governors

As the principle authority during state emergencies, governors may direct an immediate response 

using National Guard personnel under state command and control (including personnel in a Title 32 

status); however, National Guard personnel will not be placed in or extended in Title 32 status to 

conduct state immediate response activities. Additionally, state leadership must coordinate with the 

Chief of the National Guard Bureau to approve the continued use of personnel in a Title 32 status 

responding in accordance with immediate response authority in excess of 72 hours.

 124 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (Sep. 21, 2012) para. 4.g.

[hereinafter DoDD 3025.18].
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D. Conclusion

The NPS and NIMS represent a significant shift from the pre-9/11 and pre-Hurricane Katrina 

approach of the federal government to domestic incident management. Although the Stafford Act

remains the primary mechanism for directing and funding federal support to state and local 

authorities, and state requests for assistance still formally initiate the federal response, the manner in 

which the federal government provides the assistance is changing. Consolidation, unification, 

anticipation, and systemization are the unifying themes of these key changes. It is possible that 

DoD active or reserve component personnel125 or assets could be among first responders to an 

emergency or disaster (e.g., an event in close proximity to a DoD installation). In such a case, DoD 

personnel and assets might be employed pursuant to immediate response authority per DoDD 

3025.18 before a larger federal response is orchestrated under the NRF. Figure 2-4 below illustrates 

the process by which local requests for assistance would be handled following a Stafford Act

declaration and under immediate response authority. Judge advocates should be familiar with and 

prepared to advise on the various authorities under which DoD may provide assistance to nonfederal entities. 

 125 Under 10 USC § 12304a, the Secretary of Defense may involuntarily order military reserve members and units to 

active duty to support a governor’s request for assistance in responding to an emergency or major disaster under the 

Stafford Act.
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Figure 2-4.
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43 Reserve Components and USCG

CHAPTER 3

STATUS AND RELATIONSHIPS BETWEEN COMPONENTS 

RESPONDING TO DOMESTIC INCIDENTS

KEY REFERENCES:

• DoDD 1235.10 - Activation, Mobilization, and Demobilization of the Ready Reserve, 

November 26, 2008, incorporating Change 1, September 21, 2011.

• DoDD 5125.01 - Assistant Secretary of Defense for Reserve Affairs, December 27, 2006, 

incorporating Change 1, June 4, 2008.

• DoDI 6025.13 - Medical Quality Assurance (MQA) and Clinical Quality Management in the 

Military Health System (MHS), February 17, 2011, incorporating Change 1, October 2, 2013.

• DoDI 1215.13 - Reserve Component (RC) Member Participation Policy, May 11, 2009.

• DoDI 1215.06 - Uniform Reserve, Training and Retirement Category Administration, March 11, 

2014.

• DoDD 1200.17 - Managing the Reserve Components as an Operational Force, October 29, 

2008.

A. Introduction

This chapter discusses various service components and the importance of their designated status to 

the missions they perform. The Reserve Component (RC) in particular plays a significant role in 

domestic support operations. The purpose of the RC is to provide trained and qualified persons 

available for active duty in time of war, national emergency, or at other times that national security 

may require.1

 The RC has unique personnel/duty categories that are important to understand 

because they not only determine what benefits (e.g. medical and retirement) and protections (e.g 

Federal Tort Claims Act or similar liability regimes) RC members have, but they also determine the 

different types of duties that are authorized in particular personnel categories. The Assistant 

Secretary of Defense for Reserve Affairs (ASD(RA)) is responsible for overall supervision of all 

RC affairs in DoD, and establishes the directives that provide guidance on RC activation, 

mobilization, and training.2

Judge advocates practicing domestic operational law should also be familiar with the structure and 

roles of the U.S. Coast Guard, the National Guard in a non-federal status, and the Civil Air Patrol,

as these entities have unique roles in domestic operations and will often work jointly with DoD 

during domestic civil support missions. For example, in addition to being a branch of the U.S. 

Armed Forces, the Coast Guard is also a federal law enforcement agency and has the responsibility 

to act as a lead agency for numerous domestic missions including environmental response, maritime 

search and rescue, and maritime migrant interdiction.3

 Also, while in a non-federal status, the Air 

and Army National Guard have different authorities and capabilities in domestic missions. Finally, 

the Civil Air Patrol, a nonprofit corporation, also serves as an auxiliary to the United States Air 

 1

 10 U.S.C. § 10102 (2015).

2

 U.S. DEP’T OF DEFENSE, DIR 5125.01, ASSISTANT SECRETARY OF DEFENSE FOR RESERVE AFFAIRS (27 Dec. 2006, 

incorporating change 1, 4 Jun. 2008) [hereinafter DoDD 5125.01].

3 14 U.S.C. §§ 2, 3 (2015).
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Force.4 Understanding the roles of these entities ahead of time will assist judge advocates during 

future joint operations.

B. Reserve Component

The Reserve Component (RC) consists of the Army National Guard of the United States, the Army 

Reserve, the Naval Reserve, the Marine Corps Reserve, the Air National Guard of the United States,

the Air Force Reserve, and the Coast Guard Reserve.5 Members of the RC are a true reflection and 

extension of civilian society. The defense of the United States has been based in large part on the 

contributions of these citizens who prepare for active service during peacetime and enter active duty 

during times of national emergency. 

1. U.S. Army Reserve (USAR)6

The USAR’s mission is to meet Department of the Army contingency operations and mobilization 

requirements.7 The Army Reserve makes up 20% of the Army’s organized units, but provides 

approximatley 50% of the Army’s combat support, and 25% of the Army’s mobilization base 

expansion capability.8

 According to the 2013 Army Reserve Posture Statement, the Army Reserve 

consists of a worldwide organization of 205,000 authorized Soldiers and 12,100 civilians.9

2. U.S. Air Force Reserve (USAFR)10

The USAFR is composed of thirty-six wings that report to one of three Numbered Air Forces 

(NAFs).11 With just over 10% of the Air Force’s manpower, the USAFR performs more than 30%

of all Air Force missions.12 Like all of the other RCs, the role of the USAFR is to provide trained 

 4

 10 U.S.C. § 9442 (2015).

5

 10 U.S.C. § 10101 (2015).

6

 U.S. DEPT’ OF ARMY, REG. 140-1, MISSION, ORGANIZATION, AND TRAINING (20 Jan. 2004) [hereinafter AR 140-1]; 

U.S. DEP’T OF ARMY, REG. 140-10, ASSIGNMENTS, ATTACHMENTS, DETAILS, AND TRANSFERS (15 Aug. 2005); U.S.

DEP’T OF ARMY, REG. 140-30, ACTIVE DUTY IN SUPPORT OF THE UNITED STATES ARMY RESERVE (USAR) AND ACTIVE 

GUARD RESERVE (AGR) MANAGEMENT PROGRAM (1 Sept. 1994).

7

 AR 140-1, supra note 6, para. 1-8.

8

 The Army Reserve Mission, ARMY RESERVE, http://www.usar.army.mil/ourstory/Pages/default.aspx (last visited Aug. 

8, 2014).

9

 U.S. ARMY RESERVE, AMERICA’S ARMY RESERVE: A LIFE-SAVING AND LIFE-SUSTAINING FORCE FOR THE NATION,

2013 POSTURE STATEMENT (2013), available at http://www.usar.army.mil/resources/Media/ARPS_2013_6-6-

13%20(2).pdf.

10 U.S. DEP’T OF AIR FORCE, INSTR. 36-2132, FULL-TIME SUPPORT (FTS) TO THE AIR FORCE RESERVE (23 Mar. 2012); 

U.S. DEP’T OF AIR FORCE, INSTR. 36-2619, MILITARY PERSONNEL APPROPRIATION (MPA) MAN-DAY PROGRAM (22 Jul. 

1994); U.S. DEP’T OF AIR FORCE, MANUAL, 36-8001 RESERVE PERSONNEL PARTICIPATION AND TRAINING PROCEDURES

(22 Jan. 2004).

11 Structure, U.S. AIR FORCE RESERVE, http://www.afreserve.com/?:Structure#Organization (last visited August 9, 

2013).

12 The unit program of the USAFR is called the “Category A” program. Personnel perform a minimum of one weekend 

of inactive duty training every month, referred to as a unit training assembly (UTA), and two weeks of active duty 

(annual training) for pay and points each fiscal year. The “Category B” program is the individual mobilization 

augmentee (IMA) program consisting of individual reservists assigned to major commands, field operating agencies, 

joint organizations, direct reporting units and outside agencies. Although some commands allow training with other 

units in the member’s local area, this decision is made on a case-by-case basis by the individual command. Inactive 
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45 Reserve Components and USCG

and ready forces to support its parent service. Yet the USAFR also has several unique missions. 

For example, Airmen assigned to the 302nd Airlift Wing, Peterson Air Force Base, Colorado, are

trained in the use of modular airborne firefighting systems that support local, state, and federal 

agencies during wildland fire response.13 Additionally, the 53rd Weather Reconnaissance Squadron 

at Keesler Air Force Base, Mississippi, performs hurricane reconnaissance exercises over the 

Atlantic, Pacific, Caribbean, and Gulf of Mexico and is the only DoD unit tasked to perform 

weather reconnaissance in support of the Department of Commerce.14

3. U.S. Naval Reserve (USNR)15

The Naval Reserve is composed of both commissioned units (self-contained, deployable assets with 

both personnel and mission equipment) and augmentation units (non-hardware units that provide 

trained manpower to active Navy units). Currently, reservists represent about 20% of the Navy’s 

total force. More than 65,000 Sailors serve in the Selected Reserve.16 The mission of the USNR is 

to provide strategic depth and deliver operational capabilities to the Navy and Marine Corps team 

and Joint forces, from peace to war.

17

4. U.S. Marine Corps Reserve (USMCR)18

The Marine Corps Reserve is composed of one Marine division, one Marine air wing, one service 

support group, and a Marine Corps Reserve support command. The Marine Corps Selected 

Reserve’s authorized end strength is 39,600 Marines.19 Unique units in this reserve branch include 

Civil Affairs Groups and Air-Naval Gunfire Liaison Companies.

 

duty training periods for pay and points, are usually performed during the week in increments of 4 IDTs per quarter. A 

day is worth two IDT points. Members also perform a 12-14 day paid active duty training tour annually with one point 

awarded for each day. In the “Category E” program, personnel do not earn pay for their service, but they do earn 

retirement points. Examples of this are service with the Civil Air Patrol Assistance Program and the Chaplain 

reinforcement designees.

13 Air Force Aerial Firefighting Continues Against Rocky Mountain Fires, 302ND AIRLIFT WING, 

http://www.302aw.afrc.af.mil/news/story.asp?id=123353795 (last visited Aug. 8, 2014).

14 53rd Weather Reconnaissance Squadron “Hurricane Hunters,” 403RD WING,

http://www.403wg.afrc.af.mil/library/factsheets/factsheet.asp?id=7483 (last visited Aug. 8, 2014).

15 U.S. DEP’T OF NAVY, CHIEF OF NAVAL OPS, INSTR. 1001.20C, STANDARDIZED POLICY AND PROCEDURE FOR ACTIVE 

DUTY FOR SPECIAL WORKS (ADSW) (4 Mar. 2008).

16 About the Reserve, NAVY RESERVE, http://www.navyreserve.com/about.html (last visited Aug. 8, 2014).

17 About the Reserve, NAVY RESERVE, http://www.navyreserve.com/about/mission.html (last visited Aug. 8, 2014).

18 U.S. MARINE CORPS, Order 1001.52J, ACTIVE RESERVE SUPPORT TO THE RESERVE COMPONENT (RC) (6 Jun 2011); 

U.S. MARINE CORPS, ORDER 1001.59, ACTIVE DUTY FOR SPECIAL WORK IN SUPPORT OF THE TOTAL FORCE (22 Oct. 

2001).

19 Statement of Lieutenant General Richard P. Mills, Commander, Marine Forces Reserve, United States Marine 

Corps, Before the Subcommittee on Defense of the Senate Appropriations Committee Concerning Department of the 

Navy Budget (Mar. 26, 2014), available at

http://www.marforres.marines.mil/Portals/116/Docs/CONGRINT/2014_CONGRESSIONAL_TESTIMONY_VERSIO

N_8_WITH_OMB_OSD_EDITS_AND_PR_DELETE.pdf.
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5. U.S. Coast Guard Reserve (USCGR)20

The USCGR, like its active duty counterpart, is an agency within the Department of Homeland 

Security. Under Title 14 and Title 10 of the United States Code, the Coast Guard is at all times an 

armed force, as well as a law enforcement agency. As an armed force, the Coast Guard is required 

to maintain a state of readiness to function as a specialized service in the Navy in time of war or 

upon Presidential declaration. The Coast Guard, discussed more below, is a dynamic member of 

Joint Forces involved in civil support missions because of its mix of military, civil law enforcement, 

and regulatory authorities that allow it to respond to a wide variety of threats at home and abroad. 

Coast Guard reservists may be called in response to serious natural or man-made disasters, 

accidents, or catastrophes such as hurricanes, earthquakes, tornadoes, or floods. The Secretary of 

Homeland Security is authorized to order members of the Coast Guard Ready Reserve to active 

duty without their consent in a domestic emergency.21 They may be used for not more than 60 days 

in any four-month period and not more than 120 days in any two-year period to augment the 

Regular Coast Guard. Coast Guard reservists perform unique missions as well. Among the most 

important is the staffing of Coast Guard Port Security Units (PSUs) - specialized deployable 

security units that have served both domestically and abroad during times of war.22 Additionally, 

under 10 U.S.C. § 12302, the USCGR provided key support to Operation Iraqi Freedom and 

Operation Enduring Freedom.23

6. National Guard of the United States (NGUS)

a. Overview

The terms “Army National Guard of the United States” (ARNGUS) and “Air National Guard of the 

United States” (ANGUS) refer to the guard as a reserve component of their respective service.24 

The term “federal service,” is applied to National Guard members and units when ordered to active 

duty in their reserve component status or called into federal service in their militia status under 

various sections of Title 10 of the U.S. Code.

25

The terms “Army National Guard”(ARNG) and “Air National Guard” (ANG) refer to the federally 

recognized (and usually federally trained under Title 32, U.S. Code) organized militia of the various 

states, in other words, Guardsmen in a “state status” pursuant to Article I, Section 8, Clause 16 of 

the Constitution.26

 20 U.S. COAST GUARD, COMDTINST M1001.28A, RESERVE POLICY MANUAL, (18 May 2003).

21 14 U.S.C. § 712 (2015).

22 PORT SECURITY UNIT 309, http://www.uscg.mil/lantarea/psu309/ (last visited Aug. 8, 2014).

23 The Center for Naval Analyses (CNA), upon request of the U.S. Coast Guard Historian, compiled a summary of 

Coast Guard operations in Operation Iraqi Freedom. See BASIL TRIPSAS, ET AL., COAST GUARD OPERATIONS DURING 

OPERATION IRAQI FREEDOM (Center for Naval Analyses 2004), available at 

http://www.uscg.mil/history/articles/oif_d0010862.pdf. 

24 10 U.S.C. §§ 101(c), 10101 (2015). Per 10 U.S.C. §§ 10105 and 10111, the ARNGUS and ANGUS specifically 

consist of (1) federally recognized units and organizations of the ARNG/ANG, and (2) members of the ARNG/ANG 

who are also members of the Army/Air Force Reserves.

25 See 10 U.S.C. Ch. 1209 (2015).

26 See 10 U.S.C. § 101 (2015); 32 U.S.C. §§ 301, 307 (2015).
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47 Reserve Components and USCG

Determining whether National Guard members are in the ARNGUS/ANGUS or the ARNG/ANG is 

critical to defining their roles and responsibilities. Status is also the primary factor for determining 

the applicability of law for such issues as benefits, protections, and liabilities. For instance, guard 

members only become subject to the Uniform Code of Military Justice (UCMJ) when federalized; 

while in a state status they are subject to their respective state codes of military justice. 

Additionally, some laws, such as the Posse Comitatus Act (PCA) only apply to the National Guard 

when they are in a Title 10 status. National Guard members are usually relieved from duty in the 

National Guard when on federal active duty under 32 U.S.C. § 325. However, per the National 

Defense Appropriations Act for Fiscal Year 2004, 32 U.S.C. § 325 was amended to allow National 

Guard officers to retain command authority over state forces with the approval of POTUS and the 

consent of the Governor (see the discussion on Dual Status Commanders below, and in Chapter 2

infra).

Guard personnel in Title 10 and Title 32 (discussed under National Guard of the Several States 

section below) status receive federal pay and are covered under the Federal Torts Claims Act.27 

Title 10 personnel always receive federal military retirement credit for the performance of duty. 

Similarly, Title 32 personnel also receive such credit, unless in an inactive duty training (IDT) 

status. It is important to remember that the determination of whether the National Guard is in 

federal or state service does not rest on the entity that funds the activity, but rather which entity has 

command and control.

b. History

In 1903, the organized militia (i.e., the National Guard) was created.28 The National Defense Act of 

1916 further strengthened the organization and training of the National Guard.29 Because members 

of the National Guard had to be drafted as individuals for service in World War I, Congress in 1933 

amended the National Defense Act of 1916 to establish the dual status of the National Guard by 

creating the “two overlapping but distinct organizations,” i.e., the National Guard of the various 

states and the National Guard of the United States.

30 Although Guardsmen were relieved from their 

militia status while on federal status, at the conclusion of that service, they reverted to their state 

status. In other words, this statute created the dual enlistment requirement that we know today.31

c. Federal Missions

Like the other RCs, ARNGUS/ANGUS32 members and units augment the Armed Forces during 

wars or other conflicts. To become an ARNGUS or ANGUS member, the Guardsman or unit must 

 27 See 32 C.F.R. § 536.97 (2015).

28 Military Act of 1903 (also known as the “Dick Act”), 57 Pub. L. No. 33, 32 Stat. 775; see also Perpich v. Department 

of Defense, 496 U.S. 334, 342 (1990).

29 National Defense Act of 1916, 64 Pub. L. 85; see also Perpich, 496 U.S. 334, 343–44.

30 National Guard Act of 1933, 73 Pub. L. 64, § 18: see also Perpich, 496 U.S. 334, 345–46.

31 This is a system that the Perpich Court recognized as a statutory creation, causing a member of the militia to be 

relieved from state status for the “entire period of federal service.” Perpich, 496 U.S. 334, 345–346.

32 When ANG members enter Title 10 active duty, they are transferred from their ANG units and assigned to the Air 

National Guard Readiness Center (ANGRC), either directly or to a detachment of the ANGRC created for the purpose 

of deploying forces in support of an active duty mission. The ANGRC is a Field Operating Agency (FOA) of HQ 

USAF that executes NGB policy for the ANG and ANGUS and exercises elements of command and control over 
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also be “federally recognized.”33 To be federally recognized, the Guardsman or unit must meet 

prescribed federal standards.34 NG units or members may be ordered to federal active duty in one 

of two ways. One way is to order NG members or units to active federal duty, with the consent of 

the governor, as members of the ARNGUS35 or ANGUS reserve components.36 The other way is 

pursuant to the power of Congress to call out the militia to enforce federal law, suppress 

insurrections, or repel invasions; under this authority the NG is “called” to duty as part of the militia 

of the United States.37 Congress has given the President the authority to call the NG to active duty 

for these purposes.38

d. Other Title 10 Duty

In addition to duties performed when federalized under the aforementioned authorities, members of 

the National Guard serve in a full-time Title 10 status in other ways. Members in this category 

include: Members of the National Guard Bureau (NGB); U.S. Property and Fiscal Officers 

(USPFO) in each state serving the National Guard;39 any other National Guard members serving a 

 

ANGUS units and members. It is a Title 10 organization with a 32 U.S.C. § 104 commander appointed on G-series 

orders. The ANGRC commander, currently a brigadier general, also serves as the Deputy Director of the ANG 

Directorate and is on Title 10 orders. See U.S. DEP’T OF AIR FORCE, INSTR. 10-402, MOBILIZATION PLANNING, para 2.2 

(1 May 2012)) [hereinafter AFI 10-402]; NATIONAL GUARD BUREAU, MEMORANDUM 10-5/38-101, ORGANIZATIONS 

AND FUNCTIONS OF THE NATIONAL GUARD BUREAU, ch. 4 (1 Jul. 2003). 

33 10 U.S.C. §§ 10105, 10111, 10503(7), 12201, 12211, 12212 (2015); 32 U.S.C. § 105(b) (2015).

34 See NATIONAL GUARD BUREAU, REG. 10-1, ORGANIZATION AND FEDERAL RECOGNITION OF ARMY NATIONAL 

GUARD UNITS (22 NOV. 2002); U.S. DEP’T OF AIR FORCE, INSTR. 38-101, AIR FORCE ORGANIZATION ( 16 Mar. 2011).

35 Air National Guard Readiness Center (ANGRC) exercises administrative control (ADCON) over all units and 

members in Title 10 status (except those brought on active duty through full mobilization) because they are assigned to 

ANGRC. ADCON includes: organization of forces; personnel management; control of resources and logistics; training, 

readiness, and mobilization; and discipline. ADCON flows from the National Command Authorities through the 

Secretary of the Air Force, Chief of Staff of the Air Force, Major Commands, and Numbered Air Forces to a unit. A 

commander exercises ADCON over all assigned forces, but not over attached forces. For attached forces, ADCON 

remains with the commander to whom they are assigned. For example, when forces are assigned to ANGRC but 

temporarily attached to another unit, ADCON remains with ANGRC. ANGRC/makes forces available to a supported 

active duty commander by attaching them to the gaining organization that will exercise operational control (OPCON) 

over them. The Uniform Code of Military Justice (UCMJ) gives the Commander of Air Force Forces (COMAFFOR) or 

any active duty commander within the chain of command the right to discipline any person serving in Title 10 status. 

UCMJ authority is a function of command under federal law and the Manual for Courts-Martial. Command authority 

for discipline includes UCMJ authority as an element of ADCON, which, for members of an ANGRC detachment, is 

within the command authority of ANGRC. Discipline is also an element of specified ADCON, which is within the 

command authority of the COMAFFOR. ADCON and specified ADCON do not confer UCMJ authority but identify 

those commanders who may exercise UCMJ authority as a matter of Air Force doctrine and policy in recognition that 

more than one commander may have UCMJ authority over a member in a given situation. Since disciplinary authority 

is shared between the commanders holding ADCON and specified ADCON, it is frequently a matter of coordination 

between the two concerning which one will take disciplinary action. See U.S. DEP’T OF AIR FORCE, INSTR. 51-202,

NONJUDICIAL PUNISHMENT, para 3.7 (7 Nov. 2003, incorporating through Change 3, 11 Aug. 2011), which requires the 

USAF to coordinate with the parent reserve organization before imposing nonjudicial punishment. 36 U.S. CONST. art. 1, § 8, cl. 12; Perpich, 496 U.S. at 334; 10 U.S.C. §§ 12301–12304 (2015). 37 U.S. CONST. art. I, § 8, cl. 15; 10 U.S.C. §§ 331–333 (2015) (these statutes also include the use of the Armed Forces 

of which the NGUS is part); 10 U.S.C. § 12406 (2015). Although these statutes are in Title 10 of the U.S. Code, 

members “called up” under these provisions retain their militia status.

38 10 U.S.C. §§ 331–333 (2015).

39 32 U.S.C. § 708 (2015).
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tour of duty under Title 10 in support of NGB, Major Commands, or other “seats of government” 

tours.

(1) National Guard Bureau (NGB)

The NGB is designated under Title 10 as a “joint activity” of DoD, serving as the NG channel of 

communications between the Army and Air Force and the fifty-four states and territories.40 While 

the NGB serves as the coordination, administrative, policy, and logistical center for the ARNG and 

the ANG, NGB does not command and control either the Army or Air National Guard. Pursuant to 

its charter, NGB is responsible for, among other things, implementing Army and Air Force 

guidance, prescribing and monitoring training discipline and requirements, and supervising and 

administering the budgets of the ARNG and ANG.41

Through the 2012 National Defense Authorization Act, the Chief, NGB (CNGB), a four-star 

general, became a member of the Joint Chiefs of Staff with responsibilities advising the President, 

the National Security Council, Homeland Security Council, and the Secretary of Defense.42 As a 

member of the Joint Chiefs, CNGB was also given the additional specific responsibility of 

addressing matters involving non-Federalized National Guard forces in support of homeland 

defense and civil support missions.43 CNGB also serves as the principal advisor on all NG matters 

to the Secretaries of the Army and Air Force and to the Army and Air Force Chiefs of Staff.44 

CNGB has executive agent responsibility for planning and coordinating the execution of NG 

military support operations. The Director, ARNG, and the Director, ANG, are responsible to the 

CNGB and assist in executing the functions of NGB as they relate to their respective branches. The 

Chief Counsel’s office at NGB provides legal advice and assistance to the CNGB, the Directors of 

the Army and Air National Guards, and to the full-time judge advocates at the state level. The 

Chief Counsel’s office normally employs a joint staff of military and civilian attorneys in a wide 

variety of disciplines, including administrative law, contract and fiscal law, international and 

operational law, environmental law, legislation, labor law, and litigation.

(2) U.S. Property and Fiscal Officers (USPFO)

Each state and territory has a USPFO. As Title 10 officers assigned to the NGB, a USPFO is 

detailed for duty to a state or territory and is accountable for all federal funds and property provided 

to the NG of each state.45 The USPFO and his staff also perform functions relating to supply, 

transportation, internal review, data processing, contracting, and financial support for the state 

NG.46 When required, the USPFO staff can support AC or other RC forces on a reimbursable basis.

 40 10 U.S.C. § 10501 (2015).

41 DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) (21 May 2008). 

42 10 U.S.C. § 151 (2015).

43 10 U.S.C. § 10502 (2015).

44 Id.

45 32 U.S.C. 708 (2015).

46 NATIONAL GUARD BUREAU REG. 130-6/AIR NATIONAL GUARD INSTRUCTION 36-2, UNITED STATES PROPERTY AND 

FISCAL OFFICER APPOINTMENT, DUTIES, AND RESPONSIBILITIES (1 Jul. 2007).
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e. Other NG Authorities for Duty

Guardsmen perform Inactive Duty Training (IDT) and Annual Training (AT) in a Title 32 status. 

They can also perform Active Duty for Operational Support (ADOS) in a Title 10 status to support 

the ANG and ARNG at federal headquarters levels.47 As noted above, some “AGR” tours are also 

in a Title 10 status. They also perform ADOS in a Title 10 status to support Active Component 

requirements; this duty is paid by Army and Air Force appropriations.48

C. Reserve Component Categories

There are three Reserve categories: Ready Reserve, Standby Reserve, and Retired Reserve. Each 

member of the National Guard and Reserve is assigned within one of these categories. All members 

of the Army National Guard and Air National Guard, including those in the Inactive National Guard 

(ING), are in the Ready Reserve or Retired Reserve.49

1. Ready Reserve

The Ready Reserve consists of three subgroups: the Selected Reserve, the Individual Ready 

Reserve, and the Inactive National Guard. These are units and individuals subject to order to active 

duty to augment the Active Forces during a time of war or national emergency.50 This chapter will 

primarily address the Selected Reserve.

a. Selected Reserve

The Selected Reserve consists of Soldiers assigned to Reserve Component units, Individual 

Mobilization Augmentation (IMA) Program, Drilling Individual Mobilization Augmentation 

(DIMA) Program, and the Active Guard Reserve (AGR) Program. These individuals and units are 

considered essential to wartime missions and have priority for training and equipment over other 

RC categories.

(1) Drilling Unit Reservists

Sometimes called Troop Program Units (TPU), these units consist of soldiers assigned to Tables of 

Organization and Equipment or Tables of Distribution and Allowances who normally perform at 

least 48 inactive duty training (IDT) assemblies and not less than 15 days, exclusive of travel time, 

of annual training (AT) each year. In the alternative, they may perform Active Duty for Training 

 47 See U.S. DEP’T OF ARMY, REG. 135-200, ACTIVE DUTY FOR MISSIONS, PROJECTS, AND TRAINING FOR RESERVE 

COMPONENT SOLDIERS, ch. 6 (30 Jun. 1999).

48 See id. Note that ch. 2, sec. 521 of the FY 2001 National Defense Authorization Act, exempts reserve officers on the 

reserve active-status list (RASL) serving on active duty for three years or less from placement on the active-duty list 

(ADL). Previously, these soldiers were added to the ADL for promotion.

49 U.S. DEP’T OF DEFENSE, INST. 1215.06, UNIFORM RESERVE TRAINING AND RETIREMENT CATEGORIES, para. E5.1 (11 

Mar. 2014) [hereinafter DoDI 1215.06].

50 Id. para. E.5.1.1. These individuals and units may be involuntarily ordered to active duty during war or national 

emergency under the authority of 10 U.S.C. §§ 12301, 12302 (2015) and 14 U.S.C. § 712 (2015).
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(ADT) for no more than 30 days each year, unless otherwise specifically prescribed by the 

Secretary of Defense.51

(2) Individual Mobilization Augmentees and Drilling Individual Mobilization 

Augmentees

IMAs and DIMAs are RC members in a Selected Reserve status and not attached to an organized 

Reserve unit. The IMA Program function is to provide qualified soldiers to fill pre-designated 

mobilization required positions. IMAs are assigned to Active Component organizations or 

Selective Service System positions that must be filled to support mobilization requirements, 

contingency operations, operations other than war, or other specialized or technical requirements. 

Drilling IMA positions are identified as critical elements for mobilization during a Presidential 

Reserve Call-up (PRC) requiring an incumbent to maintain an even higher level of proficiency than 

a regular IMA Soldier. Soldiers assigned to these positions are authorized to perform 48 paid IDT 

periods per year. All IMAs must perform a minimum of 12 days of AT each year.52

(3) Active Guard and Reserve (AGR) Program

The AGR Program consists of Soldiers performing active duty or full-time National Guard duty

(FTNGD) for 180 days or more for the purpose of organizing, administering, recruiting, instructing, 

or training the Reserves.

b. Individual Ready Reserve (IRR)

The IRR is a pool of pre-trained individuals who have already served in Active Component units or 

in the Selected Reserve and have some part of their Military Service Obligation (MSO) remaining. 

Some members volunteer to remain in the IRR beyond their MSO or contractual obligation and 

participate in programs providing a variety of professional assignments and opportunities for 

earning retirement points and military benefits.53 IRR members are subject to involuntary active 

duty and fulfillment of mobilization requirements.

c. The Inactive National Guard (ING)

The ING consists of National Guard personnel in an inactive status in the Ready Reserve, not in the 

Selected Reserve, attached to a specific National Guard unit. These individuals must muster once a 

year with their unit, but they do not participate in training activities. They may not, however, train 

for points or pay and are not eligible for promotion.54

 51 U.S. DEP’T OF DEFENSE, INST. 1215.13, RESERVE COMPONENT MEMBER PARTICIPATION POLICY, Encl. 2, para. 

1.a.(2) (11 May 2009).

52 DoDI 1215.06; supra note 49, para. E. 5.1.1.1.3. The Army National Guard and the Air National Guard do not have 

IMA programs. 

53 Id. para. E.5.1.1.2. The IRR also may include personnel participating in officer training programs, including 

Merchant Marine Academy cadets, enlisted members awaiting IADT (except for those in the National Guard) who are 

not authorized to perform IDT, and members of the Delayed Entry Program. Id.

54 Id. para. E.5.1.1.3. The Air National Guard does not have an inactive status.
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2. Standby Reserve

The Standby Reserve consists of personnel who are maintaining their military affiliation without 

being in the Ready Reserve, but have been designated key civilian employees, or have a temporary 

hardship or disability. They are not required to perform training and are not part of units. The 

Standby Reserve is a pool of trained individuals who may be mobilized as needed to fill manpower 

needs in specific skills.55

3. Retired Reserve

This category consists of all Reserve personnel transferred to the Retired Reserve. These 

individuals may voluntarily train with or without pay.56 All members retired for having completed 

the requisite years of active duty service (Regular or Reserve), may be ordered to active duty when 

required by the Secretary of the Military Department concerned.57

D. Reserve Component Training and Support

The Service Secretaries and the Commandant of the Coast Guard are required to ensure trained and 

qualified RC units and individuals are available for AD throughout the entire spectrum of 

requirements, including war or national emergency, contingency operations, military operations 

other than war, operational support, humanitarian operations, and at such other times as the national 

security may require.58 Each military department has its own regulations and instructions that 

implement these training and support duties.59

 55 Id. para. E.5.1.2. The Standby Reserve consists of the active status list and the inactive status list categories. 

Members designated as key employees and personnel not having fulfilled their statutory military service obligation, or 

temporarily assigned for hardship reasons intending to return to the Ready Reserve, are on the active status list. Those 

members who are not required to remain in an active program, but who retain Reserve affiliation in a non-participating 

status and whose skill may be of future use to the Armed Force are on the inactive status list. These members cannot 

participate in prescribed training and are not eligible for pay or promotion and do not accrue credit for years of service. 

The Army National Guard and Air National Guard do not have a Standby Reserve.

56 Id. para. E.5.1.3. The Retired Reserve consists of the following retired categories: (1) Reserve members who have 

completed the requisite qualifying years creditable for non-regular retired pay and are receiving retired pay (at, or after, 

age 60); (2) those who have completed the requisite qualifying years creditable for non-regular retired pay and are not 

yet 60 years of age, or are age 60 and have not applied for non-regular retirement pay; (3) those members retired for 

physical disability; (4) members who have completed 20 years of service creditable for regular retired pay, or are 30-

percent or more disabled and otherwise qualified; (5) Reserve members who have completed the requisite years of 

active service and are receiving regular retired or retainer pay (regular enlisted personnel of the Navy and Marine Corps 

with 20 to 30 years of active Military Service who are transferred to the Fleet Naval Reserve or the Fleet Marine Corps 

Reserve on retirement, until they have completed 30 years of total active and retired or retainer service, are not included 

in this category); and (6) Reserve members drawing retired pay for other than age, service requirements, or physical 

disability.

57 10 U.S.C. § 688 (2015).

58 DoDI 1215.06, supra note 49, para. 5.2.2. Combatant commanders have oversight responsibility for the training and 

readiness of assigned guard and reserve forces.

59 Id.
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1. Training

All RC members receive training according to their assignment and required readiness levels. This 

training may be conducted in Active Duty, Inactive Duty for Training, or Full-Time National Guard 

status.

a. Active Duty

Active Duty for Training (ADT) consists of structured individual and unit training, including onthe-job training, or educational courses to RC members. It includes Initial Active Duty training 

(IADT),60 Annual Training (AT), and Other Training Duty (OTD). Initial ADT includes basic 

military training and technical skill training required for all enlisted accessions. AT is the minimum 

period of active duty training that RC members must perform each year to satisfy the training 

requirements associated with their RC assignment. By DoD policy, members of the Selected 

Reserve must perform AT. For all members of Selected Reserve units, except for those in the 

National Guard, that training is not less than 14 days, and not less than 12 days for the Coast Guard 

Reserve. IMAs and DIMAs must perform 12 days of AT each year and National Guard units must 

perform full-time military training for at least 15 days each year. OTD is used to provide all other 

structured training, including on-the-job training and attendance at schools. ADT is funded by the 

RC, but may support active component operational requirements and missions.61

b. Inactive Duty for Training (IDT)

This training is used to provide structured individual and unit training, or educational courses to RC 

members. It includes regularly scheduled training periods, additional training periods,62 and 

equivalent training. It is funded by the Reserve Component.

63

c. Full-time National Guard Duty (FTNGD)

The National Guard performs their federal training in a Title 32 status. Thus, while the various 

terms used above also apply to the National Guard, there are variations. Full time National Guard 

duty (FTNGD) is training or other duty (including support), other than inactive duty, performed as a 

member of the National Guard of a state or territory under 32 U.S.C.A. §§ 316, 502, 503, 504, 505. 

It is considered active service pursuant to 10 U.S.C.A. § 101(d)(3), but it is not considered “active 

duty.” (For other reserve components, some of the categories above are active duty.)

 60 Id., para. 6.6.4.1.4.

61 DoDI 1215.06, supra note 49, para. 6.1.4.1.

62 Additional IDT periods are for the use of drilling Reservists who are not military technicians. They include 

additional training periods (ATPs) for units, components of units, and individuals for accomplishing additional required 

training; additional flying and flight training periods (AFTPs) for primary aircrew members for conducting aircrew 

training and combat crew qualification training; and Readiness management periods (RMPs) to support the following 

functions in preparing units for training: the ongoing day-to-day operation of the unit, accomplishing unit 

administration, training preparation, support activities, and maintenance functions. Id., para. 6.1.2.

63 Id., para. 6.1.2.1. Paid IDT periods cannot be under 4 hours. No more than two IDT periods may be performed in 

any calendar day. In addition, IDT for points only (without pay) cannot be less than 2 hours with a maximum of two 

points authorized in any one calendar day. Further, one retirement point in any one calendar day can be granted for 

attendance at a professional or trade convention, with a minimum of four hours.
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In 2006, as a result of the increasing use of the National Guard for domestic missions of national 

importance, such as the response to Hurricane Katrina, Congress amended 32 U.S.C. § 502(f) to 

expressly authorize the use of the National Guard for “Support of operations or missions undertaken 

by the member’s unit at the request of the President or Secretary of Defense.”64

2. Support

RC members may be placed on Active Duty Other than for Training (ADOT), which includes the 

categories of active duty for operational support (ADOS), Active Guard and Reserve (AGR) duty, 

and involuntary AD. Support may also be provided during FTNGD, discussed above.65

a. Active Duty for Operational Support (ADOS)

The purpose of ADOS is to temporarily provide the necessary skilled manpower assets to support 

existing or emerging requirements. Accordingly, total cumulative ADOS (and FTNGD) time per 

service member is limited to 1,095 days within the previous 1,460 days before that service member 

is counted against active duty end strength.66 ADOS may be funded by the Active Component to 

support AC functions (ADOS-AC) or funded by the RC to support RC functions (ADOS-RC).67

b. Active Guard/Reserve (AGR)

This duty is funded by the RC and performed by an RC member of the Army, Navy, Air Force, 

Marine Corps, Coast Guard, or FTNGD performed by a member of the NG under an order to active 

duty or FTNGD for a period of 180 days or more. Unless a statutory exception exists, the scope of 

duty for AGRs is limited to organizing, administering, recruiting, instructing, or training the reserve 

components.68

 64 32 U.S.C. § 502(f)(2) (2015).

65 DoDI 1215.06, supra note 49, para. 6.1.5.3.

66 Id., para. 6.1.4.2.1.7. It is important to note the so called “1095 Rule” is not a restriction preventing members who are 

on ADOS orders from remaining on active duty for more than three years in a four year period. As explained in DoDI 

1215.06, the 1095 Rule is only a strength accounting and reporting requirement – not a limit that precludes the 

performance of duty. Specifically, para 6.9.1 of DoDI 1215.06 states that, “Neither law nor DoD policy requires any 

RC member to leave voluntary active duty under section 12301(d) (Operational Support Duty)...after 1,095 days. 

However, consideration is to be given to documenting long-term tours as full-time requirement billets (AC, AGR, or 

Civilian).” 

67 For additional information on Army ADOS and FTNGD for Operational Support within the Army, as well as relevant 

DoD-references, see ASSISTANT SECRETARY OF THE ARMY MEMORANDUM TO DEPUTY OF CHIEF OF STAFF G-1, POLICY 

FOR MANAGEMENT OF RESERVE COMPONENT SOLDIERS ON ACTIVE DUTY FOR OPERATIONAL SUPPORT AND FULL-TIME 

NATIONAL GUARD DUTY FOR OPERATIONAL SUPPORT, (21 Feb. 2008) available at: 

https://www.armyg1.army.mil/MilitaryPersonnel/Hyperlinks/Adobe%20Files/ASAMRA%20Memo%20dtd%20200802

21.pdf.

68 10 U.S.C. § 101(d)(6)(A) (2015). Other statutes include 10 U.S.C. §§ 10211, 10302, 12310, and 12402 (2015).
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c. Involuntary Active Duty (IAD)

IAD is used in support of military operations when the President or the Congress determines that 

RC forces are required to augment the Active Component (AC). IAD is funded by the AC.69

3. Military Technicians (Dual Status) (MT)70

Military Technicians are civilian employees who are required to maintain military membership in a 

RC and who perform administration and training for that RC or maintenance and repair of supplies 

or equipment issued to that RC. Military and civilian positions must be compatible. Though the 

NG also has technicians, they are administered differently as discussed below.

E. Mobilization/Activation of Reserve Component and Calling Up the Militia

For major regional conflicts and national emergencies, access to RC units and individuals through 

an order to AD without their consent is assumed. For lesser regional conflicts, domestic 

emergencies, and other missions, where capabilities of the RC could be required, maximum

consideration is given to accessing volunteer RC units and individuals before seeking authority to 

order members of the RC to active duty without their consent.71

It is important to distinguish the ARNGUS and ANGUS from the Army National Guard (ARNG) 

and Air National Guard (ANG). Unlike the ARNGUS and ANGUS, which are RC organizations 

under the command and control of the President of the United States, the ANG and ARNG train for 

their federal military missions according to the congressionally established disciplines under Title 

32, United States Code, under state control as members of their respective states’ militia. 

ARNG/ANG members also take oaths to obey their respective governors and abide by state law.

Although the terms “activation” and “mobilization” are sometimes used interchangeably to describe 

the process that “federalizes” reservists, the terms have different meanings. Activation is an order 

to active duty, for units and individuals, (other than for training) in the federal service pursuant to 

statutory authority granted to the President, Congress, or the service secretaries.72 Reservists can be 

“activated” involuntarily or voluntarily (Guardsmen also need the consent of their respective 

governors). Mobilization is the process of bringing all national resources to a state of readiness for 

war or national emergency; it includes activating the RC.73 Levels of mobilization include selective 

mobilization, partial mobilization, full mobilization, and total mobilization. Therefore it is more 

helpful to use the term “activate” when referring to placing a reservist on active duty rather than 

 69 DoDI 1215.06, supra note 49, para. E.3.1.1.2.3; see also 10 U.S.C. §§ 12301, 12302, 12304 (2015), and 14 U.S.C. § 

712 (2015).

70 10 U.S.C. § 10216 (2015).

71 U.S. DEP’T OF DEFENSE, DIR. 1235.10, ACTIVATION, MOBILIZATION, AND DEMOBILIZATION OF THE READY RESERVE, 

para. 4.1. (26 Nov. 2008, Incorporating Change 1, 21 Sep. 2011) [hereinafter DoDD 1235.10].

72 See generally id.; JOINT CHIEFS OF STAFF, JOINT PUB. 4-05, JOINT MOBILIZATION PLANNING (22 Mar. 2010).

73 DoDD 1235.10, supra note 71.
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using the more encompassing term “mobilize.” The statutes below provide authority for activating 

reservists, calling the militia into federal service, and ordering reservists to active duty voluntarily.74

1. Full Mobilization (10 U.S.C. A. § 12301(a))

A full mobilization occurs through the duration of a war or emergency (plus six months). This 

section may only be invoked when there is a congressional declaration of national emergency or 

war, or other authorization in law.

2. Partial Mobilization (10 U.S.C. A. § 12302(a))

A presidential declaration of national emergency or “when otherwise authorized by law” allows the 

involuntary partial mobilization of up to 1,000,000 members of the Ready Reserve for up to two

years. Applies to units, and any member not assigned to a unit organized to serve as a unit.

3. Presidential Reserve Call-up (PRC) (10 U.S.C. A. § 12304)

Involuntary activation of up to 200,000 members for up to 365 days (these troops are excluded from 

active duty end strength calculations) by the President. Such service must be for other than training 

and may not exceed 365 days. It authorizes ordering members of the RC to active duty without 

their consent, without declaration of war or national emergency, for operations other than domestic 

disasters except those involving a use or threatened use of a weapon of mass destruction or a 

terrorist attack or threatened terrorist attack in the United States that results, or could result, in 

significant loss of life or property.

4. Invasions and Rebellions (10 U.S.C. A. § 12406)

If the United States or any U.S. state or territory is invaded, or when: invasion is threatened by a 

foreign nation, there is a rebellion or danger of rebellion against the U.S. Government, or the 

President is unable to execute U.S. laws without active forces, the President can call the National 

Guard into federal service. Any orders for these purposes are to be issued through the governors of 

the states or the D.C. commanding general.

5. Insurrection Act (10 U.S.C. A. § 331–335)

a. 10 U.S.C. A. § 331

If there is an insurrection in a state, the President, at the request of the state’s legislature, or 

governor if the legislature cannot be convened, may call militia of other states into federal service as 

well as use the armed forces to suppress the insurrection.

 74 Occasionally older cases, regulations, and instructions will reference former versions of these statutes and it is 

helpful to know the previous citations: In Title 10 of the U.S. Code, § 672(a) is now codified at § 12301(a); § 672(b) is 

now codified at § 12301(b); § 672(d) is now codified at § 12301(d); § 673 is now codified at § 12302; § 673(b) is now 

codified at § 12304; and § 3500 and § 8500 are now codified at § 12406.
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b. 10 U.S.C. A. § 332

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or 

rebellion against authority of United States, make it impracticable to enforce the law of the United 

States in any state or territory by judicial proceedings, the President may call into federal service 

such of the militia of any state and use such of the armed forces to enforce the laws or suppress the 

rebellion. (Such authority was exercised in Arkansas in 1957; Mississippi in 1962; and Alabama in 

1963).

c. 10 U.S.C. A. § 333

The President can use the militia and/or the armed forces to suppress insurrection, domestic 

violence, unlawful combination or conspiracy if: (a) it so hinders the execution of law of that State 

and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it 

opposes or obstructs the execution of laws or impedes the course of justice. In the event of the 

deprivation of rights, the State is deemed to have denied its citizens equal protection of laws.

6. 15-Day Involuntary Federal Active Duty (10 U.S.C. A. § 12301(b))

The Service Secretaries may order “units and any member not assigned to a unit organized to serve 

as a unit” to a period of duty not to exceed 15 days (with the consent of the governor or D.C. 

commanding general for guardsmen). 

7. Voluntary Federal Active Duty (10 U.S.C. A. § 12301(d))

An individual can be ordered (by an authority designated by the Secretary concerned) to active duty 

with the consent of the individual (and with the consent of the governor or DC commanding general 

for guardsmen) for an unlimited period of time.

8. Medical Care (10 U.S.C. A. § 12301(h) and 12322)

Reservists may be ordered to AD for medical care, evaluation, or to complete a health care study.

9. Reservists Recalled for Domestic Events (10 USC §12304a)

Section 515(a) of the 2012 National Defense Authorization Act included a provision that amended 

Title 10 and allowed the SECDEF to order Army Reservists, Navy Reservists, Marine Corps 

Reservists, or Air Force Reservists without their consent onto active duty for no more than 120 days

to respond to a major disaster or emergency under the Stafford Act.

75 

 75 The full text states:

“(a) Authority- When a Governor requests Federal assistance in responding to a major disaster or 

emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and 

Emergency Assistance Act (42 U.S.C. 5122)), the Secretary of Defense may, without the consent of 

the member affected, order any unit, and any member not assigned to a unit organized to serve as a 

unit, of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to active 

duty for a continuous period of not more than 120 days to respond to the Governor's request.” 10 

U.S.C. § 12304a (2015).
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10. Active Duty for Preplanned Missions in Support of the Combatant Commands (10 

U.S.C. 12304b)

The 2012 National Defense Authorization Act also added a provision permitting the Service 

Secretaries to order members of the “Selected Reserve” (including National Guard) without their 

consent onto active duty for no more than 365 days to “augment the active forces for a preplanned 

mission in support of a combatant command.”

F. United States Coast Guard76

Per 14 U.S.C. § 1, 14 U.S.C. § 2 and 10 U.S.C. § 101(a)(4), the United States Coast Guard is 

designated as both an armed force and a federal law enforcement agency. The Coast Guard is the

principal federal agency responsible for maritime safety, security, and stewardship. As such, the 

Coast Guard protects vital economic and security interests of the United States, including the safety 

and security of the maritime public, natural and economic resources, the global maritime 

transportation system, and the integrity of U.S. maritime borders. The Coast Guard has eleven 

statutory missions divided into two categories, homeland security and non-homeland security, 

pursuant to section 888 of the Homeland Security Act of 2002, Pub. L. 107-296 (6 U.S.C. § 468).

The homeland security missions are: (1) port, waterways and coastal security; (2) drug interdiction; 

(3) migrant interdiction; (4) defense readiness; and (5) other law enforcement. 

The non-homeland security missions include: (1) marine safety; (2) search and rescue; (3) aids to 

navigation; (4) living marine resources; (5) marine environmental protection; and (6) ice operations. 

Due to the multi-mission nature of the Coast Guard, a Coast Guardsmen performing a nonhomeland security function, such as a recreational boating safety inspection, could have to perform 

a homeland security function, such as drug interdiction, during the same mission.

The Coast Guard operates as part of the Department of Homeland Security.77 Presently, 

approximately 41,000 men and women serve on active duty in the Coast Guard. 78 Upon a 

declaration of war, if Congress so directs in the declaration or when directed by the President, the 

Coast Guard will operate as a service in the Navy. When operating as a service in the Navy, the 

Coast Guard is subject to the orders of the Secretary of the Navy, who may order changes in Coast 

Guard operations to render them uniform with Navy operations.79 The Coast Guard operated as a 

component of the Navy in World War I and World War II. Both the Coast Guard and Navy are 

authorized to exchange resources and information at all times. The Coast Guard receives 

equipment, armament, and training support from the Navy while providing the Navy vessels, 

personnel, and equipment for Naval vessel security and other Navy operations.

 76 Additional details about the history, unique missions, capabilities, and authorities of the Coast Guard are available in 

UNITED STATES COAST GUARD, COAST GUARD PUBLICATION 1 (Feb. 2014).

77 6 U.S.C. § 468 (2015).

78 See 2015 BUDGET IN BRIEF, U.S. COAST GUARD , available at

http://www.uscg.mil/budget/docs/2015_Budget_in_Brief.pdf [hereinafter CG Stats].

79 See 14 U.S.C. § 3 (2015).
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Occasionally, some are confused about the Coast Guard’s authority to operate as an armed force. 

Some observers have assumed that the Coast Guard must switch from a Title 14 status to a Title 10 

status when acting as an armed force of the United States, similar to the National Guard change 

from a state to a federal status depending on the mission. However, the Coast Guard is at all times 

both an “armed force” and “law enforcement agency” under Title 10 and Title 14. Put another way, 

the Coast Guard does not switch “hats” between a military service/armed force and a law 

enforcement agency—it performs both functions simultaneously.

As discussed earlier in this chapter, the Coast Guard has a reserve component. Presently, 

approximately 8,000 Coast Guardsmen comprise the total Coast Guard Ready Reserve.80

Finally, the Coast Guard Auxiliary is a civilian volunteer service. The Coast Guard Auxiliary is 

specifically authorized to “assist the Coast Guard, as authorized by the Commandant, in performing 

any Coast Guard function, power, duty, role, mission, or operation authorized by law.”81 The Coast 

Guard Auxiliary assists both the active duty and the reserve components of the Coast Guard in 

search and rescue assistance missions, environmental protection, marine safety, boater safety 

education programs, and patrolling/regulating regattas and marine events.82

Unique to the Coast Guard as an armed force, the Coast Guard is authorized by 14 U.S.C. § 141 to 

use its personnel and equipment to assist any federal or state agency, to include DoD, when the 

Coast Guard assistance sought is of the type that the Coast Guard personnel or facilities are 

especially qualified to provide.83 Thus, Coast Guard units can be attached to DoD without the 

entire Coast Guard being fully absorbed into the Navy under 14 U.S.C. § 3. In addition, 14 U.S.C. 

§ 141 allows the Coast Guard to accept the assistance of any federal agency in the performance of 

any Coast Guard function. This unique assistance authority makes the Coast Guard a powerful 

partner in domestic contingency operations.

Because the Coast Guard is at all times a federal law enforcement agency and an armed force of the 

United States, the Coast Guard has legal authority to conduct both Maritime Homeland Security 

Law Enforcement (MHS) and Maritime Homeland Defense (MHD).

84 Coast Guard units 

conducting maritime homeland security operations could find themselves in a maritime homeland

defense situation in a matter of minutes. The ability to handle evolving scenarios as a federal law 

enforcement agency or as an armed force offers tremendous flexibility to the Coast Guard.

 80 See CG Stats, supra note 78.

81 See 14 U.S.C. § 822 (2015).

82 It is important to note Coast Guard Auxiliary members do not have law enforcement authority. Thus, they may not 

directly issue letters of warning, notices of violation, or other civil penalties, nor may they participate in law 

enforcement boardings. Operators supervising Auxiliary must ensure any assistance given is in accordance with the 

U.S. COAST GUARD, COMDTINST 16798.3 (series), AUXILIARY OPERATIONS POLICY MANUAL. Despite this 

limitation, the Auxiliary provides tremendous assistance to the Coast Guard active component. During a domestic 

emergency or disaster, Auxiliary members may be particularly helpful in staffing an incident or unified command post, 

as many of them are extensively trained in National Incident Management System (NIMS) procedures. 

83 14 U.S.C. § 141 (2015). The Coast Guard may provide such assistance with or without the requirement of 

reimbursement. See 14 U.S.C. § 141(a) (2015). 84 In the event of a threat or incident requiring the exercise of national self-defense, DoD, acting through U.S. Northern 

Command (USNORTHCOM) and supported by other agencies, would take the lead in carrying out MHD operations, 

which involves the protection of U.S. territory, domestic population, and critical infrastructure.
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MHS is a federal law enforcement mission carried out by domestic law enforcement authorities, 

including the Coast Guard.85 The mission is to protect the U.S. Maritime Domain and the U.S. 

Marine Transportation System (MTS) and deny their use and exploitation by terrorists as a means 

for attacks on U.S. territory, population, and critical infrastructure. As the lead federal agency for 

MHS, the Coast Guard engages in maritime surveillance, reconnaissance, tracking, and interdiction 

of threats to the security of the United States, and responds to the consequences of such threats. 

Armed and uniformed Coast Guard law enforcement operations ashore are limited to activities at 

waterfront facilities, public and commercial structures adjacent to the marine environment, and, to 

the extent necessary to protect life and property, in transit ashore between such facilities or 

structures.86

G. National Guard of the Several States

1. Overview

Militia are authorized by the code and/or constitution of each state or territory within the United 

States. The definition of “militia” in the United States Code includes both the organized and the 

unorganized militia; the National Guard, along with the Naval Militia, is considered the organized 

militia.87 In the Constitution, POTUS is the Commander in Chief of the militia only when it is 

“called into actual service of the United States.”88 This section discusses the National Guard when 

it is under the control of the governor or in “state status,” i.e., Title 32 status or State Active Duty 

(SAD). In a state status, Guardsmen are subject to the military code of the respective state to which 

they belong.89

Each of the states and territories has an Adjutant General (TAG) or equivalent (e.g., Commanding 

General for District of Columbia), a state officer whose rank may or may not be federally 

recognized.90 The Governor of the State or Territory or the TAG (depending on state law) is the 

Commander in Chief of the state military unless it is federalized; at which time President of the 

United Stated (POTUS) is the Commander in Chief of the state military personnel serving in Title 

10 status.

91 In the fifty states, District of Columbia, Virgin Islands, and Puerto Rico, there are 88 

Air Force wings in the ANG and 8 divisions, 15 enhanced brigades, and 6 other major units in the 

ARNG.

Currently, each state has a joint headquarters (State JFHQs) to provide command and control to its 

ANG and ARNG - this concept was approved by Chief, NGB in October 2003. The Joint HQs 

 85 The Coast Guard is required to perform Maritime Homeland Security law enforcement duties in support of the Ports 

and Waterways Safety Act, the Espionage Act of 1917, the Magnuson Act of 1950, 33 C.F.R. § 6, Homeland Security 

Presidential Directive 5 (HSPD-5), the National Security Strategy of the United States of America, the National 

Strategy for Homeland Security, and The Coast Guard Maritime Strategy for Homeland Security.

86 See 33 C.F.R. § 6 (2015).

87 10 U.S.C. § 311 (2015).

88 U.S. CONST. art. II, § 2, cl. 1.

89 Pursuant to 32 U.S.C. § 327, the President or active duty commanders may convene state courts-martial. In 2003, 

Congress ordered the preparation of a model state code of military justice.

90 The U.S. President is the Commander in Chief of the National Guard of the District of Columbia. See Exec. Order 

No. 11485, 34 Fed, Reg. 15411, (3 Oct. 2001) and Title 39, District of Columbia Code.

91 32 U.S.C. §§ 314, 325 (2015).
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replaced the State Area Commands (STARCs) and ANG Headquarters in each state and any other 

joint headquarters existing in the states.

2. Title 32 Status

When performing duty pursuant to Title 32, U.S. Code, a National Guard member is under the 

command and control of the state but paid with federal funds. The majority of NG members are 

traditional Guard personnel, sometimes referred to as “M-Day (Mobilization Day) Guardsmen” 

because of the weekend drills of inactive duty training (IDT) and annual training (AT). Each year, 

such NG Soldiers are required to perform 48 IDT drills and 15 days of AT.92 The operations of NG 

units in Title 32 status are controlled by the individual states, and supplemented by funding from 

federal sources pursuant to federal regulations.93 Federal recognition of NG units and associated 

funding is conditioned upon the unit continuing to meet applicable federal standards.94 ARNG and 

ANG Soldiers performing duty in Title 32 status have Federal Tort Claims Act (FTCA) coverage as 

long as they are acting within the scope of their federal employment.

There are many instances of the National Guard performing operations (as opposed to training) in a 

Title 32 status (e.g., post 9-11 airport security duty, Hurricane Katrina, Southwest Border 

operations, counterdrug operations, and WMD-CST teams). The use of Title 32 duty for 

operational missions must be based on statutory authority (for example, counterdrug authority per

32 U.S.C. § 112) or upon the request of the President or the Secretary of Defense (see 32 U.S.C. § 

502(f)(2)(A)). Ultimately, the performance of many Homeland Security (HLS) missions in a Title 

32 status, instead of a Title 10 status, may be preferable because the Posse Comitatus Act (PCA) 

does not apply, National Guard troops can respond more rapidly because they are in the local area, 

National Guard troops have more situational awareness in domestic areas than their active duty 

counterparts, and Title 10 activations result in National Guard loss of control over a state manpower 

pool depriving them of flexibility. Furthermore, HLS missions can enhance National Guard 

training through “training by doing.” The benefits of allowing operations under Title 32 instead of 

Title 10 have continually been raised by studies. Moreover, various legislative proposals have been 

advanced to modify Title 32 to improve this capability.95

Ordinarily, NG personnel in a Title 32 status should not provide defense support to civil authorities 

(DSCA), such as disaster assistance, unless such missions receive funding and authority. 

Accordingly, National Guard members are often in a State Active Duty (SAD) status (funded by the 

state) performing those functions. If TAGs use NG members in a Title 32 status to perform 

operational missions without appropriate authority or approval, the state may be required to 

reimburse the federal government for the pay and allowances of these personnel.

 92 32 U.S.C. § 502(a) (2015).

93 Illinois National Guard v. Federal Labor Relations Authority, 854 F.2d 1396, 1398 (D.C. Cir. 1988). 

94 32 U.S.C. §§ 107–109 (2015). Note that any “duty,” other than that authorized by specific statutes, that is 

performed in a Title 32 status should constitute some sort of training because of fiscal considerations. 31 U.S.C. § 

1301. Additionally, note that DoDI 1215.06, supra note 49, para. 6, specifically permits training to confer an incidental 

operational benefit.

95 For example, H.R. 2073/S. 215, called “Guaranteeing a United and Resolute Defense Act of 2003,” set forth a 

mechanism that allows centralized federal funding and decentralized execution of National Guard homeland security 

missions.
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3. State Active Duty

Only the National Guard has a status entitled State Active Duty (SAD); such duty is performed 

pursuant to state constitutions and statutes.96 It has no relationship to USAR/USAFR or Active 

Duty (AD). In a SAD status, NG personnel are controlled by their individual state, subject to the 

command and control of the respective governor and Adjutant General. National Guard units 

perform duties authorized by state law, such as responding to emergencies or natural disasters 

(floods, hurricanes, fires), and are paid with state funds. Because National Guard units are subject 

to state control unless “federalized,” they generally respond to local emergencies, such as civil 

disturbances, before active forces. For these types of operations, the governor may proclaim an 

emergency and order units to SAD. DoD funds are not obligated for any personnel or units 

performing SAD. However, if the President declares a major disaster or an emergency after a 

request by a governor under the Stafford Act, the state military department may be reimbursed 

through FEMA for the SAD pay and allowances it has expended.97

4. ANG/ARNG Personnel Categories

On any given day in a particular state, members of the National Guard serve in a variety of 

personnel categories such as technicians, AGRs, ADOS, FTNGD, and traditional guard members 

performing IDT or AT.

a. AGRs

Every guard unit has AGRs performing full-time National Guard duty under 32 U.S.C. § 502(f). 10 

U.S.C. A. § 101(d)(6)(a) defines “active Guard and Reserve duty” as “active duty” or “full-time 

National Guard duty” for a period of 180 consecutive days or more for the purpose of “organizing, 

administering, recruiting, instructing, or training the reserve components.”98 AGRs receive 

essentially the same benefits and pay as their active duty counterparts of the same rank. Although 

they are required to perform drills with their units, they do not receive additional pay to do so. They 

can also be “activated” and placed into a Title 10 status under appropriate authorities.99

b. NG Federal Technicians (32 U.S.C. § 709)

Each Guard unit may employ persons as technicians who are unique to the NG.100 Technicians are 

federal civilian employees under the exclusive control of a state official, The Adjutant General, who 

hires, fires, and supervises them. In terms of their civilian employment pursuant to 32 U.S.C. § 

709, they are military technicians (“excepted service” civilian employees) as defined in 10 U.S.C. § 

 96 For example, Arizona Constitution, art. 5, sec. 3; A.R.S. § 26-101 (governor as commander-in-chief of state military 

forces when not in federal service), A.R.S. § 26-121 (composition of militia); A.R.S. § 26-172 (mobilization of militia 

for emergencies and when necessary to protect life and property).

97 42 U.S.C. § 5121 (2015).

98 See also U.S. DEP’T OF ARMY, REG. 135-18, THE ACTIVE GUARD RESERVE (AGR) PROGRAM (10 Dec. 2003); 

NATIONAL GUARD BUREAU, REG. 600-5, THE ACTIVE GUARD/RESERVE PROGRAM, TITLE 32 FULL-TIME NATIONAL 

GUARD DUTY (FTNGD) (30 Feb. 1990); and AIR FORCE NATIONAL GUARD, INSTR. 36-101, THE ACTIVE 

GUARD/RESERVE PROGRAM (3 May 2002).

99 For a good discussion of FTNGD status, see United States ex rel. Karr v. Castle, 746 F. Supp. 1231, 1237 (Del. 

1990).

100 32 U.S.C § 709 (2011).
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10216 during the normal workweek.101 They must also maintain membership in a state NG and 

maintain federal recognition in the military grade associated with their technician position.102 Loss 

of NG membership terminates the full-time technician position.103

In some states, NG technicians are members of collective bargaining agreements. Their civilian job 

positions are tied to their military rank and they wear military uniforms to work. When they 

perform drills and other training, they are in a Title 32 status just like traditional guard members. 

These members are also subject to “activation” into a Title 10 status and can also be called to 

perform “state active duty.”

In their civilian “excepted service” capacity, NG technicians are responsible for organizing, 

administering, instructing, or training the NG, and for the maintenance and repair of supplies issued 

to the NG or the armed forces. They are also covered under the Federal Tort Claims Act. In their 

civilian capacity, their participation in domestic support operations is limited because any 

participation must fall within the position description for the particular position the NG technician 

holds. Otherwise, the NG technician may be placed in a leave status and placed on SAD orders.

NG technicians also have the responsibility to train and perform general military duties with their 

unit and to be available to enter active federal service when their units are activated. In many cases, 

state headquarters principal staff officers also serve as technicians. Because their technician and 

NG roles are very similar, these staff officers play extremely important leadership roles in domestic 

support operations in their non-technician status.104

c. Full Time National Guard Duty - Operational Support105

If funding is available, NG units can place National Guardsmen (whether traditional or federal 

technicians) on FTNGD-OS orders (for as little as a day to as much as a year) to perform particular 

functions necessary to support the NG. These orders should not be confused with the requirements 

of Guardsmen to perform “training.” Most Guardsmen that participate in the counterdrug program 

are on FTNGD-CD orders, which are a type of FTNGD-OS but given a separate moniker because it 

is aligned against a specific statutory program (i.e. 32 U.S.C. § 112). These members are also 

subject to “activation” into a Title 10 status and can also be called to perform SAD.

d. State Civilian Employees

In addition to military technicians, the state NG units employ civilians pursuant to “Master 

Cooperative” agreements. These personnel are authorized to use vehicles, property, and equipment 

provided to the ARNG by the federal government to accomplish their duties under the master 

cooperative agreement. Many guard units employ state employees in security and in civil 

engineering. These employees may or may not be members of the National Guard of that state; in 

 101 See Lopez v. Louisiana National Guard, 733 F. Supp. 1059, 1065 (E.D. La. 1990).

102 10 U.S.C. § 101(c)(3), (5) (2015).

103 NATIONAL GUARD BUREAU, REG. 635-100, TERMINATION OF APPOINTMENT AND WITHDRAWAL OF FEDERAL 

RECOGNITION, ch. 6 (8 Sep. 1978).

104 32 U.S.C. § 709 (2015).

105 Similar to Full Time National Guard Duty previously described in Section D.1.c., above, but here specifically for 

“operational support.”
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other words, membership in the National Guard is not a condition of their employment as it is with

the federal technicians discussed above. State employment should never be confused with SAD.

e. “Traditional” Guard Members

The majority of Guardsmen at a unit are “traditional” members. In other words, they hold civilian 

jobs in the community and are only in a military status when performing drills or other training or 

military duty. These members are subject to “activation” into a Title 10 status and can also be 

called to perform “state active duty.”

As noted above, each member of the National Guard can be placed into several different personnel 

categories (without being in more than one at a time). These categories are important when 

determining, among other things, benefits, discipline, and immunities.

5. Unique HLS/HLD Missions

a. Weapons of Mass Destruction (WMD)/Civil Support Teams (CST)

Pursuant to 10 U.S.C. § 12310(c), these National Guard teams support emergency preparedness 

programs to prepare for or to respond to any emergency involving the use of a weapon of mass 

destruction. These DoD-certified teams are state controlled because they perform duty pursuant to 

32 U.S.C. § 502(f), although their missions are congressionally mandated. The teams are trained to 

support (they are not first responders) civil authorities at a Chemical, Biological, Radiological, or 

Nuclear (CBRN) incident site by identifying the agents/substances, advising on responses, and 

otherwise assisting with requests for state support. Currently there are 57 full-time teams: at least 

one in every U.S. state, as well as Washington D.C., Puerto Rico, Guam, and the U.S. Virgin 

Islands. By statute, the WMD/CST teams may not operate OCONUS. WMD-CSTs are discussed 

in greater depth in Chapter 6, infra.

b. National Guard CBRN Enhanced Response Force Package (NG-CERFP)

The initial establishment of CERFPs placed at least one in each FEMA Region. There are currently 

17 validated CERFPs. NG-CERFPs use existing guard units and traditional (M-day) Soldiers to 

provide governors or a combatant commander with the capabilities to locate and extract victims 

from a contaminated area, provide patient and casualty decontamination, and perform medical 

triage and treatment. These response forces provide support to civilian first responders or military 

authorities within the first 6 to 72 hours after a CBRN event. These task forces operate in SAD, 

Title 32 and Title 10 statuses. It is important for the judge advocate to know the deployed status of 

these forces if required to provide them legal advice. CERFPs are also discussed in greater depth in 

Chapter 6, infra.

6. Miscellaneous Areas of Caution

a. Command and Control – Dual Status Commanders

Pursuant to the Constitution, the militia is under the exclusive command and control of the governor 

unless and until “called into federal service” or otherwise federalized as a Reserve Component. 

Thus, federal status military officers cannot normally exercise command and control over state 

status National Guard members nor can state status National Guard members exercise command 
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and control over federal troops.106 Two different statutes however, allow, under strictly prescribed 

circumstances, one officer to exercise command and control over both federal and state status 

troops, although the authority is exercised in a mutually exclusive manner.107 The dual status 

command option provides unity of effort and facilitates the maintenance of a common operating 

picture for both the federal and state military chains of command.

The first statute, 10 U.S.C. § 315, allows regular members of the Army and Air Force to be detailed 

to duty with the National Guard and with the permission of the President and the consent of the 

governor, to accept a state commission.108 Although it has also been argued that 32 U.S.C. § 104(d) 

allows the President to detail Title 10 Guardsmen or Regular Air Force officers to command Title 

32 troops if the President details them, this detailing would not give the officer the ability to enforce 

his own orders unless he was also commissioned in that state’s national guard.109

The second statutory basis is 32 U.S.C. § 325, as amended by the FY04 National Defense 

Authorization Act, which allows a National Guard officer to serve in both a federal and state status 

while serving on active duty in command of a National Guard unit if the President authorizes such 

service in both duty statuses and the “Governor of his State or Territory or Puerto Rico, or the 

commanding general of the District of Columbia National Guard, as the case may be, consents to 

such service in both duty statuses.”110 

 106 See also Perpich, 496 U.S. 334, 348 (1990).

107 Though not true military “command and control,” coordinating authority has been used by the USAF to allow a 

federal status officer to control federal and state forces. The concept works because one commander tells his forces to 

obey the orders of the other commander or risk discipline. The concept has been used while fighting wildfires and it has 

recently been accepted as Air Force doctrine as a method of promoting “unity of effort between Active, federalized Air 

National Guard, Reserve, civilian, contract and Auxiliary Air Force personnel operating under Title 10 U.S. Code, and 

non-federalized Air National Guard forces operating under Title 32 U.S. Code or state active duty.” It must be noted 

that others contend that coordinating authority cannot be used during operations but only for planning, referencing the 

definition of coordinating authority in JOINT CHIEFS OF STAFF, JP 1- 02, DEP’T OF DEFENSE DICTIONARY OF MILITARY 

AND ASSOCIATED TERMS (8 Nov. 2010). Many contend that a state status officer cannot use coordinating authority to 

supervise federal troops because of federal supremacy.

108 A legal opinion of the OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE, OpJAGAF 1998/20, (19 Feb. 

1998), notes that state law will determine if a Title 10 officer who accepts such a commission may be placed in 

command of a non-federalized unit and notes that this would not be necessary for Title 10 Guardsmen in their own state. 

It also states that active duty officers, or guard officers in a Title 10 status, placed in command of non-federalized Guard 

units will be subject to “two simultaneous chains of command,” a “situation that is neither legally precluded nor 

unusual.”

109 32 U.S.C. § 104(d) does not allow such an action if it would “displace” a “commanding officer of a unit organized 

wholly with a state or territory.” OpJAGAF 1998/20, supra note 108, opines that there would not be a displacement if 

the governor, or other state authority, of the affected state concurred with the detailing of the Regular Air Force officer.

110 Title 32 U.S.C. § 325 currently reads as follows (amendments are underlined): 

32 U.S.C. § 325. Relief from National Guard duty when ordered to Active Duty 

(a) Relief required. 

(1) Except as provided in paragraph (2), each member of the Army National Guard of the United States or 

the Air National Guard of the United States who is ordered to active duty is relieved from duty in the 

National Guard of his State or Territory, or of Puerto Rico, or the District of Columbia, as the case may be, 

from the effective date of his order to active duty until he is relieved from that duty. 

(2) An officer of the Army National Guard of the United States or the Air National Guard of the United 

States is not relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the 
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A request to implement 32 U.S.C. § 325 could come from either DoD or the TAG of a particular 

state. Required implementing documents would be the Presidential authorization and the 

Gubernatorial consent to use 32 U.S.C. § 325, and a Memorandum of Understanding (MOU) 

between the two mutually exclusive federal and state military commands outlining the 

responsibilities and authority of the dual status commander.111 While the dual status commander 

may receive orders from two chains of command, those chains of command must recognize and 

respect that the dual status commander exercises all authority in a completely mutually exclusive 

manner, i.e., either in a federal or state status but never in both statuses at the same time. In a state 

status, this dual status commander takes orders from the governor through The Adjutant General of

the State and may issue orders to National Guard forces serving in a state status. As a federal 

officer activated under Title 10, the dual status commander takes orders from the President or those 

federal officers the President and Secretary of Defense have ordered to act on their behalf. The dual 

status commander, acting pursuant to his/her federal authority may issue orders only to federal 

forces.

A dual status commander is always a Title 10 officer covered by the Posse Comitatus Act, the 

Federal Tort Claims Act, the Uniform Code of Military Justice and pay and entitlements. When 

commanding Soldiers in a non-Federal status, he or she receives legal advice from a State legal 

advisor. Conversely, when commanding Soldiers in a Federal status, he or she receives legal advice 

from a Federal legal advisor.

This “dual status” commander concept under 32 U.S.C. § 325 has been used several times since 

October 2003, first with the G8 Summit at Sea Island, GA, in June 2004; followed by the 

Republican and Democratic National Conventions in the summer of 2004; Operation Winter Freeze 

in Vermont during the winter of 2004-05; for the brigade and battalion commanders of the Ground 

Base Missile Defense system in Colorado in Alaska, respectively, in 2006; the Republican and 

Democratic National Conventions in the summer of 2008; and the G20 Summit in Pittsburgh, PA, 

in 2009. Dual Status Commanders were also used for Hurricane Irene in 2011, the 2012 NATO 

Summit in Chicago, IL, the Colorado wildfires in June 2012, the 2012 Republican and Democratic 

National Conventions, Tropical Storm Isaac in August 2012, and for Hurricane Sandy in October 

2012.

Section 515(c) (1) and (2) of the National Defense Authorization Act, for FY12 provided guidance 

on when a dual status arrangement should be used. It states when the Armed Forces and the 

National Guard are employed simultaneously in support of civil authorities in the United States, 

appointment of a dual status commander should be the “usual and customary” command and control 

arrangement, including for missions involving a major disaster or emergency as those terms are 

 District of Columbia, under paragraph (1) while serving on active duty in command of a National Guard 

unit if—

(A) the President authorizes such service in both duty statuses; and 

(B) the Governor of his State or Territory or Puerto Rico, or the commanding general of the District of 

Columbia National Guard, as the case may be, consents to such service in both duty statuses. 

(b) Return to State status. So far as practicable, members, organizations, and units of the Army National 

Guard of the United States or the Air National Guard of the United States ordered to active duty shall be 

returned to their National Guard status upon relief from that duty.

111 Pre -coordinated Memorandums of Understanding between all States and the Department of Defense covering the 

appointment and use of qualified and vetted National Guard Dual Status Commanders have been executed and are 

available through the National Guard Bureau. 
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defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 

U.S.C. § 5122).112 Additionally, when a major disaster or emergency occurs in any area subject to 

the laws of any State, Territory, or the District of Columbia, the Governor of the State affected 

normally should be the principle civil authority supported by the primary Federal agency and its 

supporting Federal entities, and The Adjutant General of the State or his or her subordinate designee 

normally should be the principal military authority, supported by the dual status commander when 

acting in his or her state capacity. 

On 14 April 2011, President Obama delegated his functions and authority under both Title 32 

U.S.C. §§ 325 and 315 to the Secretary of Defense.

b. State law

State law provides the legal basis for the National Guard of each state and territorial entity. 

Moreover, state law provides the authority to perform missions, the basis for pay and benefits, the 

rules for the use of force, the liability and immunity rules, and military justice authority, just to 

name a few areas. Duty performed in a Title 32 status must also comply with federal laws and 

policies. Personnel in a Title 32 status also receive protections such as the Federal Tort Claims Act 

(FTCA) and other federal benefits.113 Note that once a state has passed the Emergency 

Management Assistance Compact (EMAC), discussed below, state law is modified in conformity 

with EMAC, so missions conducted pursuant to EMAC guidance are “exempted” from any 

contradictory state law provisions. Moreover, because Congress consented to EMAC, this compact 

is now federal law.114

Matters become more complicated when National Guard personnel cross state borders in a state 

status. It is then important to remember to examine the law of both the “originating state” and 

“receiving state.” For example, some state codes of military justice apply even when Guardsmen 

are performing duty in another state.115 Moreover, state law may dictate if and when nonfederalized guard units may enter or leave a state for duty. For example, some states do not allow 

armed guard units to enter their state without permission from the governor or legislature.116 Some 

states have specific authority that allows their militias to leave the state to perform duty.117

Another very important issue to consider is that of professional licensing. Military health 

professionals in a Title 10 status (physicians, dentists, clinical psychologists, nurses or others 

providing direct patient care), properly licensed pursuant to 10 U.S.C. § 1094, can practice in any 

 112 It is important to note that despite a Dual Status Commander being the “usual” arrangement in such situations, this 

language “does not limit, in any way, the authorities of the President, the Secretary of Defense, or the Governor of any 

State to direct, control, and prescribe command and control arrangements for forces under their command.” National 

Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515(c), 125 Stat. 1395 (2011), 32

U.S.C. § 317, note. 

113 28 U.S.C. § 2671 (2015). Title 32 Guardsmen are also provided limited administrative remedies under the National 

Guard Claims Act, 32 U.S.C. § 715 (2015).

114 A congressionally sanctioned interstate compact is a federal law subject to federal construction. New York v. Hill, 

528 U.S. 110, 111 (2000). Chapter 11, infra, contains a discussion on the impacts of the EMAC on rules for the Use of 

Force for the National Guard.

115 See e.g., 44 OKL. ST. § 229.

116 See e.g., KY CONST. § 225; MON. CONST., art. II, § 33; IDAHO CODE § 46-110; KAN. STAT.ANN. § 48-203.

117 See e.g., CONN. GEN. STAT. § 27-16; MISS. CODE ANN. § 33-7-7; NY CLS MIL § 22.
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DoD facility, any civilian facility affiliated with DoD, or “any other location authorized by the 

Secretary of Defense” to include practice in a state, D.C., or commonwealth, territory, or possession 

of the United States regardless of where actually licensed.118 Arguably, this also applies to 

Guardsmen who are in a Title 32 status; however, Guardsmen in a Title 32 status must also be 

acting within the scope of their employment to receive FTCA protections. Thus, an analysis of their 

authority to accomplish assigned tasks or duty is necessary. For example, federal law and directives 

allow Title 10 personnel to provide medical treatment to civilians (not otherwise entitled to military 

medical care) during emergency situations.119 The Stafford Act does not provide that same

authority to National Guardsmen in a state status. Moreover, if, as discussed earlier, National 

Guard personnel cannot perform operations in a Title 32 status, it is possible that such “operational” 

activities would not be within their scope of employment. Thus, it is unclear if Title 32 Guardsmen 

would receive FTCA coverage if treating civilians not otherwise entitled to military medical care.120

Although Article V of the EMAC states that parties agree to recognize the licenses, certificates, or 

other permits issued by any other party to the compact for “professional, mechanical, or other 

skills,” some opine that this section does not extend to the authority to practice medicine because 

the medical credentialing process is not a license or permit.

c. The District of Columbia National Guard

In 1802, Congress enacted legislation officially establishing the District of Columbia (D.C.) Militia, 

which today is known as the D.C. National Guard (DCNG). The mission of the DCNG is to protect 

life, property, and the interests of the District of Columbia during civil emergencies; to provide 

ceremonial support on national occasions (e.g., state funerals, inaugurations, and parades); and, 

when federalized, to serve as an integral component of the Nation's military forces. The DCNG 

supports both the District and Federal governments. 

In accordance with D.C. Code Title 49 § 49-409 passed by Congress, the President of the United 

States is at all times the Commander-in-Chief of the DCNG.121 Executive Order (E.O.) 11485 

delegated presidential authority to command, supervise, administer, and control the DCNG to the 

Secretary of Defense (SECDEF).122 By memorandum, the SECDEF further delegated this 

authority, as it pertains to the D.C. Army National Guard (DCARNG) to the Secretary of the Army, 

and as it pertains to the D.C. Air National Guard (DCANG) to the Secretary of the Air Force.123 

Both Secretaries may, but have not, further delegated this authority to their respective Assistant 

Secretary for Manpower and Reserve Affairs. As an exception to this delegation of authority, 

whenever any part of the DCNG, whether the DCARNG or DCANG, is used to support civil 

authorities, the Secretary of the Army commands and controls the DCNG. 

 118 DoDI 6025.13 MEDICAL QUALITY ASSURANCE (MQA) AND CLINICAL QUALITY MANAGEMENT IN THE MILITARY 

HEALTH SYSTEM (MHS) (17 Feb. 2011). 119 E.g., 42 U.S.C. § 5121 (2015) et seq. 120 Individual state laws might provide protections to those in a SAD status depending on the jurisdiction and 

circumstances. Also note that, because SAD military members are not “federal employees” under the FTCA, FTCA is 

not applicable to torts committed in this status. Rather, state laws relating to claims would apply. 121 D.C. Code Title 49 § 49-409 (2013).

122 Exec. Order No. 11485, 34 Fed, Reg. 15411, (3 Oct. 2001).

123 SECRETARY OF DEFENSE, MEMORANDUM, SUPERVISION AND CONTROL OF THE NATIONAL GUARD OF THE DISTRICT 

OF COLUMBIA (10 Oct. 1969).
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In accordance with E.O. 11485 and D.C. Code Title 49 § 49-301, command of DCNG military 

operations is exercised through the Commanding General of the DCNG rather than through an 

Adjutant General, as is the practice in all of the States and Territories. The Commanding General of 

the DCNG is appointed by the President; an officer appointed to serve as the Commanding General 

must be federally recognized by the Senate in a general officer grade to serve. 

In accordance with D.C. Code Title 49 § 49-304, an Adjutant General may also be assigned by the 

President. The Adjutant General is subordinate to and subject to the orders of the Commanding 

General. 

The Mayor of the District of Columbia has no formal command authority over the DCNG. As a 

matter of practice, whenever the Mayor desires civil support from the DCNG, he submits a request 

to the Commanding General of the DCNG, who notifies the Secretary of the Army. Pursuant to 

E.O. 11485, the law enforcement policies to be used by DCNG military forces when aiding the civil 

authority of the District are established by consultation between the Department of Defense and the 

Attorney General. 

In his advice to the SECDEF and the Secretary of the Army regarding employment of the DCNG in 

support of civil authority, the Attorney General routinely refers to D.C. Code Title 49 § 49-404, as 

authority for the DCNG to aid civil authority in its status as a subset of the enrolled militia. 

The DCNG performs all missions in either a Title 10 or Title 32 status. Title 49 of the D.C. Code 

implements the District of Columbia Militia Act of 1889. It authorizes the Mayor to request the 

President to order out the militia to aid the civil authorities in suppressing a public disturbance. 

When the DCNG is mobilized under these circumstances it acts in a “militia status” on behalf of the 

District. Although this Title 49 duty status is similar to State Active Duty (SAD) status, it has never 

been used because Congress, until recently, has never provided funds in the D.C. budget to pay 

DCNG personnel serving in this status. Although the D.C. Act 16-389 (June 2, 2006), "Fiscal Year 

2007 Budget Request Act" provided funds, the current D.C. Code is functionally obsolete in that it 

does not provide a mechanism to pay DCNG personnel for duty, to reimburse expenses, or to 

provide any coverage for injury, death, or disability while in a Title 49 duty status. 

Historically, the DCNG has always provided civil support to the District in a Title 32 training 

status. The Secretary of the Army has broad authority to determine what constitutes appropriate 

“training” for credit and compensation under Title 32 U.S.C. § 502(d)(3). In his role of rendering 

decisions on questions involving the use of, and accountability for, public funds, the Comptroller 

General has previously opined that in view of the Secretary’s broad discretion in this regard, there 

would be no objection should the Secretary consider a State’s use of the National Guard for disaster 

relief as annual training under Title 32.124 The Comptroller General’s opinion suggests, however, 

that the Secretary must first determine that the duty in question constitutes proper and adequate 

training for the units involved, so that the execution of such duties in a Title 32 status and the 

payment of participating guardsmen from Title 32 appropriated funds is appropriate. The fact that 

 124 National Guard – Pay, Etc., Entitlement – Disaster Relief Duty by State, B-176491, 52 Comp. Gen. 35 (1972).
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the DCNG’s performance of such a “training” mission produces a collateral “operational” benefit 

does not, in itself, render the mission objectionable. 

Whenever service in a Title 32 status in support of the District civil authority may involve the 

exercise of law enforcement-like functions, the Secretary of the Army and the Attorney General 

consent to the provision of such support is subject to the Mayor’s designation of members of the 

DCNG as “special privates” pursuant to D.C. Code Title 5 § 5-129.03. This provision of the law 

allows the Mayor, upon “any emergency of riot, pestilence, invasion, insurrection, or during any 

day of public election, ceremony, or celebration” to appoint from among the citizens “special 

privates without pay;” who while so serving possess the powers and privileges, and perform the 

duties of a District of Columbia Metropolitan Police Officer. When performing such duties, DCNG 

personnel wear an emblem authorized by the Mayor, which is a special brassard. Title 32 orders 

issued to DCNG personnel include authority to act under the provisions of Title 5 of the D.C. Code. 

Although they have “special private” status, DCNG Guardsmen remain under the command and 

control of their superior military officers at all times. The Commanding General of the DCNG and 

the Chief of the District of Columbia Metropolitan Police Department coordinate their respective 

command structures and personnel with a view towards maximizing unity of effort.

Although the chain-of-command of the DCNG, whether operating in a Title 10 or Title 32 status, 

always runs through the Department of Defense to the President, the applicability of the 

proscriptions of the PCA, 18 U.S.C. § 1385, depends on the status of each individual DCNG service 

member and his chain-of-command within the DCNG. If the service member and his DCNG chain 

of command are serving in a Title 10 status, they are considered part of the “Army or Air Force” for 

PCA purposes and are subject to the PCA’s prohibition on participation in the execution of civil 

laws. On the other hand, if the service member and his DCNG chain of command are in a Title 32 

status, they are not considered part of the “Army or Air Force” and thus are not subject to PCA 

restrictions. Whether in a Title 10 or Title 32 status, all members of the DCNG must comply with 

all Department of Defense directives. 

Pursuant to Title 10 U.S.C. § 12302, the DCNG has been federalized in support of operations such 

as Operations Desert Storm, Desert Shield, Enduring Freedom, Iraqi Freedom, and Noble Eagle. In 

addition, the Insurrection Act was employed to order the DCNG into active federal service to 

complement federal troops deployed to quell the disorder associated with the rioting that ensued 

after the death of Dr. Martin Luther King in April 1968. 

d. “Hip-Pocket” Activation

Pursuant to 10 U.S.C. § 12301, 1st Air Force (a numbered Air Force in Air Combat Command) 

developed a process to instantaneously “federalize” Air National Guard (ANG) members who, upon 

the occurrence of a specified event, are called upon to perform North American Aerospace Defense 

Command (NORAD) missions. This process automatically converts consenting guard members 

into a Title 10 status upon the occurrence of a “triggering” event known in 1st AF as an “air 

sovereignty event.” On 11 June 2003, authority “to order into federal service . . . those members of 

the Air National Guard who have volunteered to perform federal active service in furtherance of the 

federal mission” was delegated to the Chief of Staff of the Air Force, who has the authority to re-
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delegate this authority to a MAJCOM Commander who can also re-delegate his authority.125 This 

“hip pocket” process is now used for other Air Force missions. This process has been examined as 

a model for some ARNG missions, but at present is not applicable to any ARNG missions. Instead, 

ARNG missions such as Ground-based Mid-course Defense (GMD) have used a paradigm where 

Title 32 AGR members convert to Title 10 status upon arrival at the duty location for that day’s 

duty and revert to Title 32 status when released from that duty by their commander.

f. Rules for the Use of Force (RUF)

State law will govern the rules for the use of force for National Guardsmen in a state status. Thus 

state law must be followed when the rules for the use of force are drafted. In some states, National 

Guard forces have the same authority as peace officers, meaning that certain National Guard forces 

in their home state may follow RUF established for peace officers within the state. A more detailed 

discussion of the RUF may be found in Chapters 10 and 11, infra.

H. Civil Air Patrol (CAP)

The Civil Air Patrol, a volunteer organization, is a federally chartered nonprofit corporation under 

36 U.S.C. § 40301. It also functions as an auxiliary of the USAF in accordance with 10 U.S.C. § 

9442.126 Although the CAP is not a military organization, as the USAF auxiliary it performs noncombat missions on behalf of DoD pursuant to statute and a Cooperative Agreement. The USAF 

provides policy and oversight of the CAP in its auxiliary status and can also provide personnel, 

logistical, and financial support and assistance. CAP missions are limited by internal and FAA 

regulations as well as by those statutes that restrict activities of military organizations (e.g. PCA). 

Missions accomplished by CAP in its auxiliary role normally include disaster relief, search and 

rescue and counter-drug, although changes to statutes, doctrine and policy are contemplated to 

better incorporate the CAP into the USNORTHCOM military assistance to civil authorities force 

structure and thereby allow the CAP to become more active in a broader range of homeland security 

missions.

The CAP is organized into eight geographical regions and performs three primary programs: 

Emergency Services (assisting federal, state, and local agencies), aerospace education, and cadet 

education. Although the USAF has overall responsibility for the CAP when it performs search and 

rescue missions, the USAF also provides oversight for disaster relief missions.

Civil Air Patrol-United States Air Force (CAP-USAF) is located at Maxwell AFB in Montgomery, 

Alabama; an Air Force judge advocate provides legal support to the Commander of CAP-USAF.

 125 10 U.S.C. § 12301(d); MEMORANDUM: SECRETARY OF AIR FORCE DELEGATION OF AIR NATIONAL GUARD RE-CALL 

AUTHORITY, dated 11 June 2003; DoDD 1235.10, supra note 70.

126 See also U.S. DEP’T OF AIR FORCE, INSTR. 10-2701, ORGANIZATION AND FUNCTION OF THE CIVIL AIR PATROL (29 

Jul. 2005, with Chg. 1, 29 Sep. 2006); U.S. DEP’T OF AIR FORCE, INSTR. 10-2702, BOARD OF GOVERNORS OF THE CIVIL 

AIR PATROL (27 Feb. 2001), U.S. DEP’T OF AIR FORCE, PD 10-27, CIVIL AIR PATROL (27 Feb. 2001). CIVIL AIR 

PATROL-UNITED STATES AIR FORCE, INSTRUCTION 10-2701, CIVIL AIR PATROL OPERATIONS AND TRAINING (3 Aug. 

2007, Incorporating Interim Change 1, 13 Jun. 2008).
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CHAPTER 4

MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT

KEY REFERENCES:

• 10 U.S.C. §§ 371 - 382 - Military Support for Civilian Law Enforcement.

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

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

• DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012.

• DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not 

Affiliated with the Department of Defense, January 7, 1980.

• DoDD 5240.01 - DoD Intelligence Activities, August 27, 2007.

• AFI 10-801 - Defense Support of Civil Authorities (DSCA), September 19, 2012.

• SECNAVINST 5820.7C - Cooperation with Civilian Law Enforcement Officials, January 26, 

2006.

A. Introduction

U.S. military resources include specialized personnel, equipment, facilities, and training that may be 

useful to civilian law enforcement agencies. The provision of DoD resources, however, must be 

consistent with the limits Congress placed on military support to civilian law enforcement through 

the Posse Comitatus Act and other laws. Judge advocates must also weigh and advise on the 

political sensitivity of employing U.S. military forces in law enforcement roles involving U.S. 

civilians.

This chapter begins with a discussion of the Posse Comitatus Act. It then discusses the applicable 

provisions of the U.S. Code addressing military support to civilian law enforcement and the DoD 

regulations that implement this guidance. As it is a large DoD mission, separate information 

relating specifically to counterdrug support in this context is discussed in Chapter 7, infra.

B. The Posse Comitatus Act

The primary statute restricting military support to civilian law enforcement is the Posse Comitatus 

Act (PCA).1

 The PCA states:

Whoever, except in cases and under circumstances expressly authorized by the 

Constitution or Act of Congress, willfully uses any part of the Army or Air Force as 

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

imprisoned not more than two years, or both.

 1

 Posse Comitatus Act, 18 U.S.C. § 1385 (2015). The phrase “posse comitatus” is literally translated from Latin as the 

“power of the county” and is defined in common law to refer to all those over the age of 15 upon whom a sheriff could 

call for assistance in preventing any type of civil disorder. See United States v. Hartley, 796 F.2d 112, 114, n.3 (5th Cir. 

1986).
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The PCA was enacted in 1878, primarily as a result of the military presence in the South during 

Reconstruction following the Civil War.2 This military presence increased during the bitter 

presidential election of 1876, when the Republican candidate, Rutherford B. Hayes, defeated the 

Democratic candidate, Samuel J. Tilden, by one electoral vote. Many historians attribute Hayes’ 

victory to President Grant’s decision to send federal troops for use by U.S. Marshals at polling 

places in the states of South Carolina, Louisiana, and Florida. Hayes won the electoral votes of 

these hotly contested states, possibly as a result of President Grant’s actions.3 The use of the 

military in this manner by a President led Congress to enact the PCA in 1878.4

The intent of the PCA was to limit direct military involvement with civilian law enforcement, 

absent congressional or constitutional authorization. The PCA is a criminal statute and violators are 

subject to fine and/or imprisonment.5 The PCA does not, however, prohibit all military 

involvement with civilian law enforcement. A considerable amount of military participation with 

civilian law enforcement is permissible, either as indirect support or under one of the numerous 

PCA exceptions.

10 U.S.C. Chapter 18 (§§ 331-334, 371-382 of Title 10 U.S.C.), 32 C.F.R. § 182, and DoDI 

3025.21 (Defense Support of Civilian Law Enforcement Agencies),6 discussed below, provide 

guidance regarding restrictions the PCA places on the military when supporting civilian law 

enforcement agencies.7

1. To Whom Does the PCA Apply?

On its face, the PCA only applies to active duty members of the Army and the Air Force. 

Accordingly, federal courts have consistently read the plain language of the PCA to limit its 

application to these two services.8 10 U.S.C. § 375 directed the Secretary of Defense to promulgate 

regulations that prohibit “direct participation by a member of the Army, Navy, Air Force, or Marine 

 2

 See, e.g., MATTHEW C. HAMMOND, The Posse Comitatus Act: A Principle in Need of Renewal, 75 WASH. U. L.Q.

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

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

3

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

electoral boards of these three states, which were dominated by Republicans, certified that the states had voted for 

Hayes even though it was widely believed that each state had a majority of Democrats. The Democrats sent in their 

own returns which showed that Tilden won each of the three states. Congress, which held a Republican majority, 

eventually appointed an electoral commission to recount the entire vote. Hayes was declared the winner by one 

electoral vote. Tilden won the popular vote with 51% over Hayes’ 48%.

4

 Id.

5

 Although there are harsh penalties for violators of the PCA, courts have not yet found reason to allow for the 

exclusion of evidence seized during a PCA violation. Courts have not found PCA violations pervasive enough to 

necessitate the application of this sanction. See U.S. v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979); U.S. v. Al-Talib, 55 

F.3d 923, 930 (4th Cir 1995); U.S. v. Griley, 814 F.2d 967, 976 (4th Cir. 1987).

6

 U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb.

2013) [hereinafter DoDI 3025.21].

7

 U.S. DEP’T OF NAVY, SEC’Y NAVY INSTR. 5820.7C, COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS (26 

Jan. 2006) [hereinafter SECNAVINST 5820.7C]; and U.S. DEP’T OF AIR FORCE, INSTR. 10-801, DEFENSE SUPPORT OF 

CIVIL AUTHORITIES (DSCA) (19 Sept. 2012) [hereinafter AFI 10-801] implement DoDI 3025.21.

8

 See United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991) (citing congressional record that earlier version of 

measure expressly extended PCA to the Navy but final version deleted any mention of application to the Navy); United 

States v. Roberts, 779 F. 2d 565 (9th Cir. 1986), cert. denied, 479 U.S. 839 (1986).
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75 Military Support to Civilian Law Enforcement

Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by 

such member is otherwise authorized by law.”9 The Secretary of Defense promulgated DoDD 

5525.5, DoD Cooperation with Civilian Law Enforcement Officials (Jan. 15, 1986) to comply with 

this requirement. This directive, along with DoDD 3025.12, Military Assistance for Civil 

Disturbances (MACDIS), has been superseded by DoDI 3025.21, Defense Support of Civilian Law 

Enforcement Agencies (27 Feb. 2013),10 In accordance with DoDI 3025.21, the restrictions placed 

on Army and Air Force activities through the PCA apply to the Navy and Marine Corps.11 The 

PCA does not apply to the Coast Guard unless it is operating under the command and control of the 

Department of Defense.12

The PCA also applies to Reserve13 members of the Army, Navy, Air Force, and Marine Corps who 

are on active duty, active duty for training, or inactive duty training in a Title 10 duty status. 

Members of the National Guard performing operational support duties,14 active duty for training, or 

inactive duty training in a Title 32 duty status are not subject to the PCA. Only when members of 

the National Guard are in a Title 10 duty status (federal status) are they subject to the PCA. 

Members of the National Guard may also perform duties in a State Active Duty (SAD) status and 

are not subject to PCA in that capacity.15 Civilian employees of DoD are only subject to the 

prohibitions of the PCA and DODI 3025.21 if they are under the direct command and control of a 

military officer.16

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

they are off-duty and acting in a private capacity. A service member is not in a private capacity if 

assistance is rendered to civilian law enforcement officials under the direction or control of DoD 

authorities.17

 9

 See 32 C.F.R. § 182.6 (2015); See also Hayes v. Hawes, 921 F.2d 100, 102–103 (10 U.S.C. § 375 makes the 

proscriptions of 18 U.S.C. § 1385 applicable to the Navy). See also Yunis, 924 F.2d at 1094 (“Regulations issued under 

10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act . . . .”). Exceptions to this 

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

Navy on a case-by-case basis. See DoDI 3025.21, supra note 6, Encl. 3, para.3.

10 See DoDI 3025.21, supra note 6.

11 See DoDI 3025.21, supra note 6, Encl. 1, and SECNAVINST 5820.7C, supra note 7, para. 8(b).

12 See 14 U.S.C. §§2, 89 (2015) which describe the Coast Guard’s role as a domestic law enforcement agency. More 

information on the specific authorities of the Coast Guard can be found supra in Chapter 3, Reserve Components, Civil 

Air Patrol, U.S. Coast Guard – Status and Relationships.

13 The Reserve includes Ready Reserve, Standby Reserve, and Retired Reserve. The Ready Reserve is units or 

individuals liable for active duty as provided in 10 U.S.C. §§ 12301-12302. The Ready Reserve consists of: (1) the 

Selected Reserve, including unit members assigned to Reserve organizations and performing drill periods and annual 

training, Individual Mobilization Augmentees (IMA) performing drills and annual training assigned to Active 

component organizations, and active guard and reserve (AGR) on full time active duty or full time National Guard duty 

in Reserve organizations; (2) the Individual Ready Reserve (IRR); and (3) the inactive National Guard (ING). All 

members of the Selected Reserve are in an active status. 10 U.S.C. §§ 10142-10144. See also U.S. DEP’T OF DEFENSE,

DIR. 1215.06, UNIFORM RESERVE, TRAINING, AND RETIREMENT CATEGORIES FOR THE RESERVE COMPONENTS (11 Mar. 

2014). 

14 As per 32 U.S.C. § 502(f) (2015).

15 See infra Chapter 3, Reserve Components, Civil Air Patrol, U.S. Coast Guard – Status and Relationships for a 

detailed discussion of National Guard and Reserve status.

16 DoDI 3025.21, supra note 6, Encl. 3, para. 2.

17 Id.
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However, in 2014, the Ninth Circuit held that the PCA does apply to criminal investigative agents 

of the military services. In U.S. v. Dreyer,18 the U.S. Court of Appeals for the Ninth Circuit found

that the PCA does apply to NCIS agents. In Dreyer, the NCIS agent conducted an investigation to 

detect any person, regardless of whether they were in the military or not, engaged in possessing or 

distributing child pornography. The Ninth Circuit held that the PCA applied to the NCIS agent, 

and, consequently, the exclusionary rule was applicable to evidence obtained by the NCIS agent.

2. Where Does the PCA Apply?

a. What the Law Says

There is no definitive statement of the scope of the Posse Comitatus Act.

19 Federal courts have 

generally held that the PCA places no restrictions on the use of the armed forces to enforce the law 

abroad.20 The courts, noting that Congress intended to preclude military involvement in domestic 

law enforcement activities, have been unwilling to apply the PCA extraterritorially.21 In addition, a 

1989 Department of Justice Office of Legal Counsel Opinion concluded that the PCA and the 

restrictions in 10 U.S.C. §§ 371–381 have no extraterritorial application.22 

b. What Policy Says

Nevertheless, DoD implementing policy contained in DoDI 3025.21 states that the prohibitions on 

direct civilian law enforcement assistance apply to all actions of DoD personnel worldwide.23 

Therefore, PCA restrictions must be considered even when contemplating military assistance in law 

enforcement overseas. In cases of compelling or extraordinary circumstances, the SECDEF may 

 18 United States v. Dreyer, 767 F.3d 826 (9th Cir. 2014).

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

20 See, e.g., Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949); D’Aquino 

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

H.W.C. Furman, Restrictions Upon the Use of the Army Imposed by the Posse Comitatus Act, 7 MIL L. REV. 85, 107 

(1960).

21 Id. at 936 (The PCA was “the type of criminal statute which is properly presumed to have no extraterritorial 

application in the absence of statutory language indicating a contrary intent.”).

22 Memorandum from Office of the Assistant Attorney General to General Brent Scowcroft, Extraterritorial Effect of 

the Posse Comitatus Act (3 Nov. 1989). But see United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994). The Kahn 

court cites 10 U.S.C. § 374(b)(2)(F) (mentioning “law enforcement operations outside of the land area of the United 

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

United States”) as evidence of limitations placed on the use of the armed forces abroad. While recognizing that several 

courts held the PCA only applies within the territory of the United States, the Kahn court maintained that the law 

contained evidence of PCA restrictions applying outside the United States. The court in Kahn ultimately held there was 

no PCA violation because the Navy only provided indirect assistance to the Coast Guard during the operation leading to 

the arrest of the defendant. Thus, Navy involvement in Coast Guard drug interdiction operations is an area for PCA 

challenges. See United States v. Rasheed, 802 F.Supp. 312 (D. Hawai’i 1992) as another example of this type of 

challenge. Although this is an area for potential challenge, Congress has explicitly authorized the Navy to assist in the 

enforcement of the Maritime Drug Law Enforcement Act (46 U.S.C. Chapter 705) and these operations are conducted 

frequently.

23 DoDI 3025.21, supra note 6, at 3.
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77 Military Support to Civilian Law Enforcement

consider exceptions to the prohibition against direct military assistance to law enforcement outside 

the territorial jurisdiction of the United States.24

3. When Does the PCA Apply?

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

military in civilian law enforcement activities. Under these statutes, regulation of military activity 

is divided into three major categories: (1) use of information, (2) use of military equipment and 

facilities, and (3) use of military personnel. 

DoDI 3025.21 contains several enclosures discussing areas of permissible DoD activity, including: 

Participation in Law Enforcement (Enclosure 3), Support of Civil Disturbance Operations

(Enclosure 4), Domestic EOD Support for Law Enforcement (Enclosure 5), Domestic Terrorism 

Incident Support, Use of Information Collected During Military Operations (Enclosure 7), and the 

Use of DoD Equipment and Facilities (Enclosure 8).25 Figure 4-1, on the next page, summarizes 

PCA restrictions in 10 U.S.C. §§ 371-375 and major areas of guidance from DoDI 3025.21.

In addition to the above categories, 10 U.S.C. §§ 376–377 provide further limitations on the 

provision of military support to civilian law enforcement. 10 U.S.C. § 376 provides an overarching 

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

States.”26 

10 U.S.C. § 377 requires civilian law enforcement agencies to reimburse DoD for support provided 

as required by the Economy Act27 or other applicable law. Civilian law enforcement agencies do 

not have to provide reimbursement for support under this statute if the support: (1) is provided in 

the normal course of military training or operations, or (2) results in a benefit to DoD that is 

substantially equivalent to that which would otherwise be obtained through military training or 

operations.28 Waiver authority for reimbursement not required by law resides with the Assistant 

Secretary of Defense (Force Management and Personnel). This authority may be delegated to the 

Secretaries of the Military Departments and the Directors of the Defense Agencies (or designees) on 

matters within their approval authority.29

For a brief overview of PCA scenarios and the applicability of the PCA to each scenario, see Figure 

4-2 on the next page. Please note that Figure 4-2 is merely a beginning point in any potential legal 

analysis of DoD support to civilian law enforcement.

 24 Id. (note that only the Secretary of Defense or Deputy Secretary of Defense may grant such exceptions).

25 DoDI 3025.21, supra note 6.

26 10 U.S.C. § 376 (2015). 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.

27 31 U.S.C. § 1535.

28 10 U.S.C. § 377 (2015).

29 See, e.g. SECNAVINST 5820.7C, supra note 7, para. 9; AFI 10-801, supra note 7, ch. 5.
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Chapter 4

Military Support to Civilian Law Enforcement 78

Use of DoD

Personnel

10 U.S.C. §§

373–375

Use of Military 

Equipment 

and Facilities 

by Civilians

10 U.S.C. § 

372

Provision of

Information to 

Civilians

10 U.S.C. § 

371

Direct Assistance Prohibited 

Unless Authorized by DoDI 

3025.21

Military or 

Foreign 

Affairs 

Purpose 

Emergency 

Authority*

Civil 

Disturbance 

Statutes

Other Express 

Statutory or 

Policy 

Authority

“Indirect” Expert 

Advice, Training, and 

Equipment Operation 

& Maintenance 

DoDI 3025.21 Encl. 3

para. 1.d., e., f.

Permissible 

Direct 

Assistance

DoDI 3025.21 

Encl. 3, para. 

1 b

Examples: Execution of Quarantine, Assistance with Nuclear Materials Crimes, 

Assistance with Crimes Against Congress, Protection of National Parks and 

Certain Federal Lands, Actions Under the National Search and Rescue Plan

Other 

Permissible 

Indirect 

Assistance

DoDI 3025.21 

Encl. 3, para. 

1.g. 

Transfer of 

Info to Law 

Enforcement

Figure 4-1

*See DoDD 3025.18 (U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL 

AUTHORITIES (21 Sept. 2012) to distinguish Emergency Authority from Immediate Response 

Authority.
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79 Military Support to Civilian Law Enforcement

US ARMY & AIR FORCE, TITLE 10 APPLICABILITY OF THE PCA

Normal Status PCA applies. Title 10 personnel in normal status 

may not engage in direct law enforcement activities 

to include: Interdiction of vehicles, vessels or 

aircraft; search or seizure of civilian personnel and 

effects; arrest or detention of civilians; or as 

undercover investigators or to conduct surveillance 

for law enforcement purposes. 

In execution of a Military Purpose The PCA does not apply. This is a narrowly 

construed exception to the PCA that exempts 

activity conducted to further a military interest.

Detailed to another federal agency subject to 

receiving agencies control (for example: Special 

Assistant United States Attorney; Special Deputy 

U.S. Marshal)

PCA does not apply as these personnel are not 

considered part of the Army or Air Force for PCA 

purposes. 

Protection of federal property Constitutional exception to the PCA.30

Response pursuant to the Insurrection Act Statutory exception to PCA.

Support to other Federal, state and local entities 

that are engaged in direct law enforcement 

activities

The PCA prohibits engaging in direct law 

enforcement activities. Subject to DoD regulations 

and approvals, technical, and logistical assistance 

may be rendered. 

Response to a CBRN attack or threat Subject to Presidential directives, DoD regulations 

and approvals, constitutional, or statutory 

exceptions to the PCA exist.

Transfer of information regarding potential 

criminal activity obtained during military 

operations. 

PCA does not apply, but the dissemination of 

information must be conducted in accordance with 

applicable regulations.

Off-duty Title 10 personnel PCA does not apply unless acting under the 

direction of DoD authorities.

Homeland Defense Operations PCA does not apply to Homeland Defense 

operations.

NATIONAL GUARD APPLICABILITY OF THE PCA

State Active Duty (SAD) The PCA does not apply.

Title 32 Status The PCA does not apply.

Federalized National Guard in Title 10 Status PCA Applies, see Title 10.

OTHER UNIFORMED SERVICES APPLICABILITY OF THE PCA

United States Navy PCA does not apply by statute, but by regulation.

United States Marine Corps PCA does not apply by statute, but by regulation

United States Coast Guard PCA does not apply, unless USCG under DoD

United States Public Health Service PCA does not apply.

National Oceanic & Atmospheric Administration PCA does not apply.

Figure 4-2 

 

30 See 32 C.F.R. § 215.4 (2015) for background on this Constitutional exception.
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4. Statutory Categories of PCA Application and Policy Implementation

a. Use of DoD Information Collected During Military Operations

10 U.S.C. § 371 regulates the use of information collected during military operations. For DoD, the 

requirements of 10 U.S.C. § 371 are implemented by the Secretary of Defense in Enclosure 7 of 

DoDI 3025.21. Under 10 U.S.C. § 371, the Secretary of Defense may provide information collected 

during the normal course of military operations to federal, state, and local law enforcement agencies 

if the information is relevant to a violation of federal or state law within the jurisdiction of these 

officials. Under 10 U.S.C. § 371(b), the Secretary of Defense is required, to the maximum extent 

practicable, take into account the needs of civilian law enforcement officials for information when 

planning and executing military training and operations. Lastly, 10 U.S.C. § 371(c) provides that 

the Secretary of Defense shall ensure, to the extent consistent with national security, that 

intelligence information held by DoD and relevant to drug interdiction and other civilian law 

enforcement matters is promptly provided to the appropriate civilian law enforcement officials.31 

Enclosure 7 of DoDI 3025.21 implements 10 U.S.C. § 371 with some additional restrictions. 

Military departments and defense agencies are generally encouraged to provide law enforcement 

officials any information collected during the normal course of military operations that may be 

relevant to a violation of the law. Information may not be transferred if its acquisition violated 

applicable law protecting privacy or constitutional rights, or if it would have been illegal for the 

civilian agency to obtain the information or use the procedures employed by DoD to obtain the 

information.32 While the Secretary of Defense shall take into account the needs of civilian law 

enforcement officials to obtain intelligence when planning and executing military training and 

operations in accordance with 10 U.S.C. § 371, the planning or creation of missions or training for 

the primary purpose of aiding civilian law enforcement official intelligence-gathering efforts is 

prohibited.33 Law enforcement officials may accompany regularly scheduled training flights as 

observers, but point-to-point transportation and training flights for civilian law enforcement 

officials are not authorized.34 Additionally, the handling of all such information must comply with 

DoDD 5240.01, DoD Intelligence Activities;35 DoDD 5200.27, Acquisition of Information 

Concerning Persons and Organizations not Affiliated with the Department of Defense;36 DoD 

5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that Affect United 

States Persons,37 and DoDD 5400.11-R, Department of Defense Privacy Program38 (for additional 

31 10 U.S.C. § 371 (2015).

32 See DODI 3025.21, supra note 6, Encl. 3, para. 1.g.(2).

33 See id., Encl. 7, para. 1.e. Training or missions for the purpose of routinely collecting information about U.S. 

citizens is prohibited as well. Id. 

34 See U.S. DEP’T OF DEFENSE, REG. 4515.13-R, AIR TRANSPORTATION ELIGIBILITY (1 Nov. 1994) for guidance on this 

type of assistance. Flights related to counter-drug operations are allowed and are covered by this regulation. See infra 

Chapter 7, Counterdrug Operations.

35 U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].

36 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).

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

COMPONENTS THAT AFFECT UNITED STATES PERSONS (1 Dec. 1982) [hereinafter DoDD 5240.1-R]. (As of August 2014 

DoDD 5240.1-R is undergoing revision; consequently, practitioners citing this reference should first ensure DoDD 

5240.1-R is still in effect.).
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81 Military Support to Civilian Law Enforcement

information concerning the use of DoD information collected during domestic operations, see 

Intelligence Oversight and Information Handling During Domestic Support Operations, Chapter 9, 

infra).

b. Use of DoD Military Equipment and Facilities

10 U.S.C. § 372 and Enclosure 8 of DoDI 3025.21 address the use of military equipment and 

facilities by civilian law enforcement authorities (not to be confused with the separate provisions 

under Enclosure 3 regarding the use of DoD personnel to operate or maintain equipment discussed 

below). Section 372(a) allows the Secretary of Defense to make available equipment (including 

associated supplies and spare parts), base facilities, and research facilities of the Department of 

Defense to any federal, state, or local civilian law enforcement official for law enforcement 

purposes. The provision of equipment and facilities must be made in accordance with all other 

applicable law. Enclosure 8 of DoDI 3025.21 implements this statute and allows military 

departments and defense agencies to make equipment, base facilities, or research facilities available 

to federal, state, or local law enforcement authorities if the assistance does not adversely affect 

military preparedness.39

Approval authority under DoDI 3025.21 varies based on the type of equipment requested, the 

reason for the request, and whether the equipment will be loaned40 or leased.41 The following is a 

list of the approval authorities for various types of equipment and facilities:42

• Requests for equipment or facilities outside the U.S. (other than arms, ammunition, combat

vehicles, vessels and aircraft) shall be in accordance with procedures established by the

applicable DoD component

• Requests from other Federal agencies to purchase equipment may be submitted directly to the

DoD component at issue

• Requests for training, expert advice, and personnel to operate and maintain equipment shall be

made in accordance with Enclosure 3 of DoDI 3025.21

• For loans pursuant to Reference 31 U.S.C. § 1535 (the Economy Act) or 31 U.S.C. §§ 6501-

6508 (the Intergovernmental Cooperation Act), which are limited to agencies of the Federal

Government, and for leases pursuant to 10 U.S.C. § 2667, which may be made to entities

outside the Federal Government, this guidance applies:

 Requests for arms, ammunition, combat vehicles, vessels, and aircraft shall be submitted to

the Secretary of Defense for approval.

 Requests for loan or lease or other use of equipment or facilities are subject to approval by

the heads of the DoD Components, unless approval by a higher official is required by statute

or DoD issuance applicable to the particular disposition.43

38 U.S. DEP’T OF DEFENSE, REG. 5400.11, DOD PRIVACY PROGRAM (1 Sept. 2011).

39 DoDI 3025.21, supra note 6, Encl. 8, para. 3.

40 Transfers under the Economy Act, 31 U.S.C. § 1535, are limited to executive branch agencies of the federal 

government. The Economy Act does not govern loans.

41 Leases under 10 U.S.C. § 2667 (2015) may be made to entities outside the Federal Government.

42 DoDI 3025.21, supra note 6, Encl. 8.
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Judge advocates must be aware that other policies and statutes overlap with DoDI 3025.21 and 10 

U.S.C. §§ 371-375 with regard to authorities and approvals in this area. For example, DoDD 

3025.18 also discusses the approval authority of the Secretary of Defense for the assistance with 

assets with potential lethality, e.g. arms, vessels or aircraft, or ammunition.44 As discussed, 

approval authority for assistance from DoD intelligence components is governed by DoDD 5240.01 

and other relevant authorities discussed above. 10 U.S.C. § 382 provides additional authority for 

the provision of certain types of equipment; it states DoD may provide resources to the Department 

of Justice in a weapons of mass destruction situation.45 Further, E.O. 13527 Establishing Federal 

Capability for the Timely Provision of Medical Countermeasures Following a Biological Attack

provides additional authority for DoD integration into plans to support the delivery of “medical 

countermeasures” as part of a response to a biological attack.46 

Aside from authorities and approvals, the provision of military equipment to civilians is further 

complicated by specific procedures needed to accomplish the transfer. The Army Regulation on 

point is AR 700-131.47 In non-emergency situations, AFI 23-119, Exchange, Sale, or Temporary 

Custody of Non-Excess Personal Property and AFI 32-9003, Granting Temporary Use of Air Force 

Real Property set forth the Air Force process in this area.48 Judge advocates will not only need to 

ensure that the proper authority has approved the transaction, but that the proper service-specific 

procedures are followed to effect the transaction. 

c. Participation of DoD Personnel in Civilian Law Enforcement Activities

The federal courts have enunciated three tests to determine whether the use of military personnel 

violates the PCA.49 If any one of these three tests is met, the assistance may be considered a 

violation of the PCA.50 

• The first test is whether the actions of military personnel are “active” or “passive.” Only the 

active, or direct, use of military personnel to enforce the laws is a violation of the PCA.51

 43 This authority of the Secretaries of the Military Departments and the Directors of the Defense Agencies may be 

delegated. See, e.g SECNAVINST 5820.7C, supra note 7, para. 6(b); AFI 10-801, supra note 7, ch.3. 

44 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (21 Sept. 2012) [hereinafter DoDD 

3025.18].

45 10 U.S.C. § 382 (2015).

46 Exec. Order No. 13257, 75 Fed. Reg. 737 (Jan. 6, 2010). E.O. 13527 provides that the Secretaries of Homeland 

Security, Defense, and Health and Human Services shall develop a plan to support the U.S. Postal Service in its 

distribution of efforts, to include a “plan for supplementing local law enforcement personnel, as necessary and 

appropriate, with local federal law enforcement, as well as other appropriate personnel, to escort U.S. Postal workers 

delivering medical countermeasures.”

47 U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL (23 Aug. 2004). Since 

many of the applicable military regulations predate their corresponding DoD Directives, judge advocates must exercise 

care in applying their procedures.

48 AFI 10-801, supra note 7.

49 United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991).

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

51 United States v. Rasheed, 802 F. Supp. 312, 324–25, (D. Hawai’i. 1992) (finding that the Navy’s providing of aerial 

reconnaissance and intercepting ship, as well as providing back-up security while the ship was searched and defendants 

arrested, was passive involvement, and consequently did not violate PCA); United States v. Red Feather, 392 F. Supp. 
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• The second test is whether the use of military personnel pervades the activities of civilian law 

enforcement officials. Under this test, military personnel must fully subsume the role of civilian 

law enforcement officials.52 

• 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.53 Note 

that under DoDD 3025.21, Immediate Response Authority may not be used when it may subject 

civilians to military power that is “regulatory, prescriptive, proscriptive, or compulsory.” Thus, 

Immediate Response Authority may not be used to circumvent the PCA.54

In implementing the guidance contained in 10 U.S.C. Chapter 18 (§§ 331-334, 371-382) DoDI 

3025.21 divides the PCA regulation of the use of military personnel to assist civilian law 

enforcement into five categories: (1) permissible direct assistance; (2) use of DoD personnel to 

operate or maintain equipment; (3) expert advice; (4) training; and (5) other permissible assistance.

DoD personnel involvement in support to civilian law enforcement will often be subject to intense 

scrutiny, for example: the 3d U.S. Army and the 82d Airborne Division’s support in the aftermath 

of Hurricane Katrina, and the National Guard and the Special Forces assistance provided to the 

Bureau of Alcohol, Tobacco, and Firearms during its standoff with the Branch Davidians in Waco, 

Texas were both scrutinized heavily. When advising commanders on the permissible use of 

 

916, 925 (W.D.S.D. 1975) (Activities which constitute active role in law enforcement by military are: arrest, seizure of 

evidence, search of a person, search of a building, investigation of crime, interviewing witnesses, pursuit of an escaped 

prisoner, search of an area for a suspect, and other like activities. Activities which constitute a passive role are: mere 

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

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

officials regarding tactics or logistics, presence of military personnel to deliver military equipment and supplies, training 

civilian law enforcement officials on the use and maintenance of equipment, aerial reconnaissance flights, and similar 

activities).

52 Kahn, 35 F.3d at 431–432 (holding that Navy’s involvement in apprehension, arrest, and detention of defendant in 

international waters was passive and thus did not violate PCA because the FBI was in charge of operation at all times, 

and Navy merely provided necessary support services); Hayes v. Hawes, 921 F.2d 100, 103–104 (7th Cir. 1990) 

(actions of undercover NIS agent in acting as a drug buyer and signaling civilian law enforcement officers when the 

transaction was complete, was not so pervasive as to violate the PCA since the NIS agent did not become involved in 

the arrest and search of the defendant or the seizure and transportation of evidence); United States v. Hartley, 796 F.2d 

112, 115 (5th Cir. 1986) (Air Force allowing a U.S. Customs Service officer to ride aboard an AWACS aircraft, 

tracking defendant’s aircraft, and reporting its location to U.S. Customs Service agents on the ground was not so 

pervasive as to violate the PCA. The court further noted that these actions are specifically allowed by 10 U.S.C. §§ 371, 

374(b)).

53 Yunis, 924 F.2d at 895–96 (The Navy’s involvement in apprehension, arrest, and transportation of defendant was not 

regulatory, proscriptive, or compulsory use of military power because defendant was under exclusive custody and 

control of FBI at all times); United States v. Casper, 541 F.2d 1275, 1278 (8th Cir. 1976) (holding that the use of 

military equipment by civilian law enforcement officers, presence of military personnel ordered there to observe and 

report whether federal military intervention would be required, drafting of contingency plans by military personnel for 

intervention of military, and aerial reconnaissance by military aircraft, was not regulatory, proscriptive, or compulsory 

use of military power which would result in violation of PCA).

54 DoDD 3025.18, supra note 43, para. 4.
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military personnel in support of civilian law enforcement activities, judge advocates must not only 

consider possible legal ramifications of PCA violations, but also potential negative public 

perception that may result from certain types of legal, but controversial assistance.

(1) Direct Assistance

(a) Prohibited Direct Assistance

The first category of PCA regulation of military activity with civilian law enforcement agencies 

addresses direct assistance. Direct assistance and participation by military personnel in the 

execution and enforcement of the law is the heart of the prohibition of the PCA.55 The restrictions 

on direct assistance by military personnel in civilian law enforcement activities is codified in 10 

U.S.C. § 375 and is implemented as DoD policy by DoDI 3025.21, Enclosure 3.56 Direct assistance 

is prohibited (unless authorized in enclosure 3 or 4 of DoDI 3025.21) as follows:

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

• A search or seizure

• An arrest, apprehension, stop and frisk, interview, interrogation, canvassing, questioning 

potential witnesses, or similar activities 

• Using force, violence, brandishing or using a weapon, or threatening to discharge or use a 

weapon (except in self-defense, in defense of other DoD persons in the vicinity, or in defense of 

non-DoD persons, including civilian law enforcement personnel in the vicinity when directly 

related to an assigned activity or mission)

• Evidence collection, security functions, crowd and traffic control, and operating, manning, or 

staffing checkpoints. 

• Surveillance or pursuit of individuals, vehicles, items, transactions, or physical locations, or 

acting as undercover agents, informants, investigators, or interrogators. 

• Forensic investigations or other testing of evidence obtained from a suspect for use in a civilian 

law enforcement investigation in the United States unless there is a DoD nexus or the 

responsible civilian law enforcement official requesting such testing declares in writing that the 

evidence to be examined was obtained by consent. SECDEF may authorize exceptions to this 

policy.

(b) Permissible Direct Assistance

(i) Military Purpose Doctrine

There are several forms of direct assistance by military personnel that are permitted under the PCA. 

The first type of permitted direct assistance is action taken for the primary purpose of furthering a 

military or foreign affairs function of the United States.57 This category is often referred to as the 

“Military Purpose Doctrine” and covers actions the primary purpose of which is to further a military 

interest. While civilian agencies can receive an incidental benefit, this section should be construed 

 55 Red Feather, 392 F. Supp. at 923 (W.D.S.D. 1975) (“It is clear from the legislative history that Congress intended 18 

U.S.C. § 1385 to prevent the direct, active use of federal troops to execute the laws.”).

56 DoDI 3025.21, supra note 6, Encl. 3, para 1.c.

57 Id., Encl. 3.
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85 Military Support to Civilian Law Enforcement

narrowly and cannot be used as a subterfuge for getting around the PCA. For example, the 

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

agency is contrary to the intent of the military purpose doctrine. Military actions under the military 

purpose doctrine include:

• Investigations and other actions related to enforcement of the Uniform Code of Military Justice 

(UCMJ)

• Investigations and other actions that are likely to result in administrative proceedings by DoD, 

regardless of whether there is a related civil or criminal proceeding

• Investigations and other actions related to the commander’s inherent authority to maintain law 

and order on a military installation or facility

• Protection of classified military information or equipment or controlled unclassified information

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

• Such other actions that are undertaken primarily for a military or foreign affairs purpose58

It is important to note that use of military forces in the national defense of the United States is not 

support to civilian law enforcement agencies. Rather, it is homeland defense under the President’s 

authority as Commander in Chief under Article II of the Constitution. The use of military forces in 

a national defense role is not subject to the PCA and other restrictions on military participation in 

law enforcement.

(ii) Emergency Authority

A second type of direct assistance that may be permitted is action that falls under the “emergency 

authority” of the United States.59 These actions are taken pursuant to the inherent authority of the 

federal government under the Constitution. Actions permitted in accordance with this authority are 

those necessary to preserve public order and to carry out governmental operations within U.S. 

territorial limits, or otherwise in accordance with applicable law. In such circumstances, force may 

be used if necessary.

“Emergency authority” is reserved for extremely unusual circumstances. When authorized under 

the provisions of DoDD 3025.18, Federal military commanders have the authority, in extraordinary 

emergency circumstances where prior authorization by the President is impossible and duly 

constituted local authorities are unable to control the situation, to engage temporarily in activities 

that are necessary to quell large-scale, unexpected civil disturbances because: 

• Such activities are necessary to prevent significant loss of life or wanton destruction of property 

and are necessary to restore governmental function and public order; or, 

• When duly constituted Federal, State, or local authorities are unable or decline to provide 

adequate protection for Federal property or Federal governmental functions. Federal action, 

 58 Id.

59 See 32 C.F.R. § 215.4 (2015), which notes the Constitution authorizes “prompt and vigorous Federal action, 

including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental 

functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger 

life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are 

unable to control the situations.”
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Military Support to Civilian Law Enforcement 86

including the use of Federal military forces, is authorized when necessary to protect Federal 

property or functions.60

Presidential approval for quelling civil disturbances is not a prerequisite to the use of military forces 

in these two limited circumstances.61

(iii) Civil Disturbance Statutes

The third type of permitted direct assistance by military forces to civilian law enforcement is action 

taken pursuant to DoD responsibilities under the Insurrection Act, 10 U.S.C. §§ 331–334. This 

statute contains express exceptions to the Posse Comitatus Act that allow for the use of military 

forces to repel insurgency, domestic violence, or conspiracy that hinders the execution of state or 

federal law in specified circumstances. Actions under this authority are governed by DoDD 

3025.21. The Insurrection Act permits the President to use the armed forces to enforce the law 

when:

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

cannot be convened) requests assistance from the President;62

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

proceedings;63 or

• An insurrection or domestic violence opposes or obstructs federal law, or so hinders the 

enforcement of federal or state laws that residents of that state are deprived of their 

constitutional rights and the state is unable or unwilling to protect these rights.64

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

within a certain time before using the military to enforce laws. The President issued such a 

proclamation during the Los Angeles riots in 1992.

(iv) Other Authority

There are several statutes and authorities, other than the Insurrection Act, that allow for direct DoD 

participation in civil law enforcement.65 They permit direct military participation in civilian law 

enforcement, subject to the limitations within each respective statute. This section does not contain 

detailed guidance; therefore, specific statutes and other references must be consulted before 

determining whether military participation is permissible. A brief listing of these statutes includes:

• Prohibited transactions involving nuclear material (18 U.S.C. § 831)

 60 DoDI 3025.21, supra note 6, Encl. 3, para. 1.b.(3).

61 DoDD 3025.18, supra note 43, para. 4 (which provides specific guidance on when emergency authority may be 

used).

62 10 U.S.C. § 331.

63 10 U.S.C. § 332.

64 10 U.S.C. § 333 (2015).

65 DoDI 3025.21, supra note 6, Encl. 3, para. 1.b.(5).
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• Emergency situations involving chemical or biological weapons of mass destruction (10 U.S.C. 

§ 382) (see also 10 U.S.C. §§ 175a, 229E and 233E which authorizes the Attorney General or 

other DOJ official to request SECDEF to provide assistance under 10 U.S.C. § 382)

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

and other internationally protected persons (18 U.S.C. §§ 112, 1116)

• Protection of the President, Vice President, and other designated dignitaries (18 U.S.C. § 1751 

and the Presidential Protection Assistance Act of 1976)

• Assistance in the case of crimes against members of Congress (18 U.S.C. § 351)

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

• Protection of national parks and certain other federal lands (16 U.S.C. §§ 23, 78, 593)

• Enforcement of the Magnuson-Stevens Fishery and Conservation Management Act (16 U.S.C. § 

1861(a))

• Actions taken in support of the neutrality laws (22 U.S.C. §§ 408, 461–462)

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

• Execution of certain warrants relating to enforcement of specified civil rights laws (42 U.S.C. § 

1989)

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

• Protection of the rights of a discoverer of a guano island (48 U.S.C. § 1418)

• Support of territorial governors if a civil disorder occurs (48 U.S.C. §§ 1422, 1591)

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

• Actions taken to provide search and rescue support domestically under the authorities provided 

in the National Search and Rescue Plan

(2) Training

The second main category of regulation on DoD personnel assistance to civilian law enforcement 

involves training. 10 U.S.C. § 373 permits the Secretary of Defense to make DoD personnel 

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

operation and maintenance of equipment, including equipment provided to civilian law enforcement 

by DoD under 10 U.S.C. § 372. The Secretary of Defense has authorized the use of this authority in 

DoDI 3025.21, Enclosure 3.66

DoDI 3025.21 allows the military departments and defense agencies to provide training that is not 

“large scale or elaborate” and does not result in a direct or regular involvement of military 

personnel in activities that are traditionally civilian law enforcement operations. Training assistance 

is limited to situations where the use of non-DoD personnel would be unfeasible or impractical 

because of time or cost. Training assistance cannot involve military personnel in a direct role in a 

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

rendered at locations where law enforcement confrontations are not reasonably likely.67

 66 DoDI 3025.21, supra note 6, Encl. 3, para. 1.f.

67 Id.
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DoD is prohibited from providing advanced military training to civilian law enforcement agencies.68 

“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.69

A single general exception to the above policy is provided to the U.S. Army Military Police School 

which is authorized to train civilian law enforcement agencies in the Counterdrug Special Reaction 

Team Course, the Counterdrug Tactical Police Operations Course, and the Counterdrug 

Marksman/Observer Course. Additionally, the Commander, U.S. Special Operations Command 

(USSOCOM) may approve similar training by special operations forces on an exceptional basis.70

(3) Expert Advice

The third main category of regulation on DoD personnel assistance to civilian law enforcement is 

the provision of expert advice. 10 U.S.C. § 373 allows the Secretary of Defense to make DoD 

personnel available to provide civilian law enforcement agencies with expert advice relevant to the 

purposes of 10 U.S.C., Chapter 18. This does not permit direct assistance with activities that are 

fundamentally civilian law enforcement operations, except as otherwise authorized in DoDI 

3025.21.71

(4) Use of DoD Personnel to Operate or Maintain Equipment

10 U.S.C. § 374 and DoDI 3025.21, Enclosure 3, address the use of DoD personnel for the 

operation or maintenance of equipment, including but not limited to equipment provided under 

§ 372 and DoDI 3025.21 Enclosure 8, for federal, state, or local law enforcement officials. DoDI 

3025.21 largely mirrors 10 U.S.C. § 374, with a few additional restrictions and differences that will 

be highlighted as the statute provisions are set forth below.72

 68 DoD Training Support to U.S. Civilian Law Enforcement Agencies, June 29, 1996, (available from the Office of the 

Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD(HD&ASA)), room 3D247, 

2600 Defense Pentagon, Washington D.C. 20301) [hereinafter Training Memorandum].

69 DoD may allow local police organizations and other civic organizations to use military ranges. See 10 U.S.C. § 4309 

(2015).

70 Training Memorandum, supra note 68.

71 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d

72 The operation or maintenance of equipment for a civilian agency, or the assistance in operating or maintaining such 

equipment, is subject to the following general restrictions from DoDI 3025.21: The use of DoD personnel to operate or 

maintain, or to assist in the operation or maintenance of equipment, will be limited to situations where it would be 

impractical or unfeasible to use non-DoD personnel for this purpose. The use of DoD personnel under these provisions 

must not compromise military preparedness. The assistance cannot involve DoD personnel in a direct law enforcement 

role unless otherwise authorized, and the assistance should be provided at a location where there is not a reasonable 

likelihood of a law enforcement confrontation. Lastly, military aircraft for point-to-point transportation and training 

flights for civilian law enforcement personnel may only be provided in accordance with DoD 4515.13-R.
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10 U.S.C. § 374(a) allows the Secretary of Defense to make DoD personnel available for the 

maintenance of equipment for Federal, state, and local civilian law enforcement officials, including 

equipment made available under 10 U.S.C. § 372.73 The statute does not specify who a request for 

maintenance must come from. Request specifics for maintenance and operation under DoDI 

3025.21 are discussed further below.

10 U.S.C. § 374(b)(1) allows the Secretary of Defense, upon request from the head of a Federal law 

enforcement agency, to make DoD personnel available to operate equipment under certain laws and 

operations as follows: 

• A criminal violation of certain specified laws;74

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

involved with enforcement of a similar law;

• A foreign or domestic counter-terrorism operation; or

• A rendition of a suspected terrorist from a foreign country to the United States to stand trial.

These categories are best understood as “areas” the DoD can operate in with respect to 10 U.S.C. § 

374. DoDI 3025.21 repeats these areas almost verbatim, with minor changes or additions.75

10 U.S.C. § 374(b)(2) states DoD personnel made available under 10 U.S.C. § 374(b) may operate 

equipment for the certain purposes. This is best understood as what functions DoD personnel can 

perform when operating under the areas above. The following purposes are authorized under the 

statute:76

• Detection, monitoring, and communication of the movement of air and sea traffic;

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

geographic boundary of the United States and within the United States not to exceed 25 miles of 

the boundary if the initial detection occurred outside of the boundary;

• Aerial reconnaissance;

• Interception of vessels or aircraft detected outside the land area of the United States for the 

purposes of communicating with such vessels and aircraft to direct such vessels and aircraft to 

go to a location designated by appropriate civilian officials;

• Operation of equipment to facilitate communications in connection with law enforcement 

programs specified in 10 U.S.C. § 374(a)(4)(1);

 73 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d

74 Controlled Substances Act, 21 U.S.C. §§ 801–904 (2015); Controlled Substances Import and Export Act, 21 U.S.C. 

§§ 951–971 (2015); Immigration and Nationality Act, 8 U.S.C. §§ 1324–1328 (2015); a law relating to the arrival or 

departure of merchandise (as defined in § 401 of the Tariff Act of 1930) into or out of the customs territory of the 

United States; Chapter 705 of Title 46 (The Maritime Drug Law Enforcement Act (46 U.S.C. §§ 70501–70508) (2015)); 

or any foreign or domestic law prohibiting terrorist activities. 10 U.S.C. § 374(b) (2015).

75 For example, DoDI 3025.21 adds “including support of FBI Joint Terrorism Task Forces” to the provision of 10 

U.S.C. § 374 discussing operation of equipment in the case of foreign or domestic terrorism missions. DoDI 3025.21, 

supra note 6, para. 1.d.(5).

76 DoDI 3025.21 reiterates all of these approved purposes virtually identically, including those subject to joint approval. 

DoDI.21 adds one other authorized purpose – the detection, monitoring, and tracking of the movement of weapons of 

mass destruction under the circumstances described in para. 1.d. of Enclosure 3 and when outside the United States. 

DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.(5)(b)7.
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• Subject to joint approval by the Secretary of Defense and the Attorney General (and the 

Secretary of State in the case of a law enforcement operation outside of the land area of the 

United States):

 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; 

 the transportation of suspected terrorists from foreign countries to the United States for trial 

(so long as the requesting federal law enforcement agency provides all security for such 

transportation and maintains custody over the suspect through the duration of the 

transportation).

Additionally, DoD personnel made available to operate equipment for the purposes stated above 

may continue to operate such equipment into the land area of the United States in cases involving 

the pursuit of vessels or aircraft where the detection began outside such land area.77 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.78

DoDI 3025.21 contains the additional provisions that 1) nothing in its guidance prohibits the use of 

emergency action authority under DoDD 3025.18, and 2) when DoD personnel are otherwise 

assigned to provide assistance with respect to the laws specified in subparagraph 1.b.(5) of DoDI 

3025.21 Enclosure 3, the participation of such personnel shall be consistent with the limitations in 

such laws, if any, and such restrictions as may be established by policy or the DoD Components 

concerned.79

The process for requests for operation and maintenance of equipment differ slightly between the 

statute and DoDI 3025.21. No specific guidance is given regarding requests for equipment 

maintenance under 10 U.S.C. § 374(a). Under 10 U.S.C. § 374(b) requests for equipment operation

must come from the head of a Federal law enforcement agency.

DoDI 3025.21 states that a request for DoD personnel to operate or maintain equipment (or assist 

with these actions) must be made pursuant to section 10 U.S.C. § 374 or other applicable law that 

permits DoD personnel to provide such assistance to civilian law enforcement officials. It goes on

to state a request that is made pursuant to section 10 U.S.C. § 374 must be made by the head of a 

civilian agency empowered to enforce any of the laws listed in footnote 73, supra.

80 Note that,

 77 10 U.S.C. § 374(b)(3) (2015). DoDI 3025.21 differs slightly and states that personnel may operate equipment for 

both the detection, monitoring, and communication of the movement of air and sea traffic and the interception of 

vessels or aircraft in accordance with 10 U.S.C. 374(b)(2)(D).

78 10 U.S.C. § 374(c) (2015). DoDI 3025.21 contains this provision at Encl. 3, para. 1.d.(7).

79 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.(9).

80 Id., para. 1.d.(4).
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unlike 10 U.S.C. § 374, this appears to limit the circumstances under which maintenance (for 10 

U.S.C. § 374 purposes) can be approved to these categories.81

(5) Other Permissible Assistance

The last main category of regulation over DoD personnel assistance to civilian law enforcement 

under DoDI 3025.21 is the overarching category of “other permissible assistance.” The transfer of 

information acquired in the normal course of military operations to civilian law enforcement 

agencies under 10 U.S.C. § 371 is not a violation of the PCA and falls into this category.82 Criteria 

for the provision of this information are discussed above.

 81 Note also the difference in request language for operation assistance – the statute uses the term “Federal agency” and 

DoDI 3025.21 uses the term “civilian agency empowered” to enforce certain laws.

82 Id., Encl. 3, para. 1.g.
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93 Civil Disturbance Operations

CHAPTER 5

CIVIL DISTURBANCE OPERATIONS

KEY REFERENCES:

• 10 U.S.C. § 331 - 335 - The Insurrection Act.

• 10 U.S.C. § 2667 - Leases: Non-Excess Property of Military Departments.

• 18 U.S.C. § 231 - Civil Disorders.

• 18 U.S.C. § 1382 - Entering Military, Naval, or Coast Guard Property.

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

• 28 U.S.C. § 1346, 2671–2680 - The Federal Tort Claims Act.

• 31 U.S.C. § 1535 - Agency Agreements.

• Executive Order 12656 - Assignment of Emergency Preparedness Responsibilities.

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

Countermeasures Following a Biological Attack, December 30, 2009.

• DoDD 3025.18 - Defense Support of Civil Authorities, December 29, 2010.

• DoDD 5111.13 - Assistant Secretary of Defense for Homeland Defense and Americas’ Security 

Affairs, January 16, 2009.

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

• DoDI 5525.13 Limitation of Authority to Deputize DoD Uniformed Law Enforcement 

Personnel by State and Local Governments, September 28, 2007.

• CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules For the Use of Force for U.S. 

Forces (S), June 13, 2005.

• CJCSI 3110.07D, Guidance Concerning Employment of Riot Control Agents and Herbicides 

(S), January 31, 2011.

• Joint Pub 3-28 – Defense Support of Civil Authorities, July 31, 2013.

• Army Regulation 700-131 - Loan and Lease of Army Materiel, August 23, 2004.

• National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June 

13, 2008.

• USNORTHCOM CONPLAN 3502 (S).

• USNORTHCOM CONPLAN 3600 (S).

• USPACOM CONPLAN 7502 (S).

• ATP 3-39.33 – Civil Disturbances, April 21, 2014.

• ADP 3-28 – Defense Support of Civil Authorities, July 26, 2012.

• ADRP 3-28 - Defense Support of Civil Authorities, June 14, 2013.

A. Introduction

The local governments and the states have the primary responsibility for protecting life and property 

and maintaining law and order within civilian communities in the United States.1 Generally, federal 

forces are employed in support of state and local authorities to enforce civil law and order as 

directed by the President when circumstances arise that overwhelm the resources of state and local 

 1

 32 C.F.R. § 182.6(b)(1)(ii) (2015); U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW

ENFORCEMENT AGENCIES Encl. 4, para. 1.b. (27 Feb. 2013) [hereinafter DoDI 3025.21].
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authorities. This basic rule reflects the Founding Fathers’ hesitancy to raise a standing army and 

their desire to render the military subordinate to civilian authority.2 It is rooted in the Constitution3

and laws of the United States,4 and allows for exception only under extreme emergency conditions. 

But the Constitution also guarantees to the states that the Federal Government will aid in 

suppressing civil disturbances and empowers Congress to create laws that provide Federal forces for 

that purpose.5 

B. Civil Disturbance Statutes

Title 10, Chapter 15 of the United States Code,6 entitled “Insurrection,” allows the use of federal 

forces to restore order during times of civil disturbance. DoD and the courts use one phrase, “civil 

disturbance,” to encompass the various situations allowing the use of military assistance under the 

Insurrection Act.

DoD policy no longer provides an official definition of civil disturbance, but it previously defined it

as “group acts of violence and disorders prejudicial to public law and order.”7 Courts use similar 

language when defining “insurrection.”8

Under the Insurrection Act, federal forces may be used to restore law and order. As the use of 

federal forces to quell civil disturbances is expressly authorized by statute, the proscriptions of the 

Posse Comitatus Act (PCA) are inapplicable when the Insurrection Act is utilized.9

 

The Insurrection Act permits the commitment of U.S. forces by the President under three 

circumstances: 

• To support a request from a state or territory;

 2

 Among the several grounds stated in the Declaration of Independence for severing ties with Great Britain includes the 

fact that the King “has kept among us, in times of peace, Standing Armies without the consent of our Legislature . . . 

[and] has affected to render the Military independent of and superior to the Civil power.” THE DECLARATION OF 

INDEPENDENCE, para. 13, available at http://www.loc.gov/rr/program/bib/ourdocs/DeclarInd.html. 

3

 The Constitution divides authority over the Armed Forces between the President as Commander in Chief, and 

Congress, which has the authority to “raise and support Armies . . . provide and maintain a Navy, . . . [and] make Rules 

for the Government and Regulation of the land and naval Forces.” U.S. CONST. art. I, § 8, cls. 12-14; art. II, § 2, para. 

1.

4

 See, e.g., Posse Comitatus Act, 18 U.S.C. § 1385. The Posse Comitatus Act is discussed fully infra in Chapter 4, 

Military Support to Civilian Law Enforcement.

5

 U.S. CONST. art. I, § 8, para. 15, art. II, § 2, and art. IV, § 4. These sections provide authority to Congress and the 

President to support the States by providing forces to repel an invasion and suppress domestic violence.

6

 10 U.S.C. §§ 331-335 (2015).

7

 JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT GL-5 (31 Jul. 2013) [hereinafter JOINT PUB. 3-28]. The 

previous edition of JP 3-28 contained this definition, the current edition removed this definition.

8

 See e.g., In re Charge to Grand Jury, 62 F. 828 (N.D. Ill. 1894) (The open and active opposition of a number of 

persons to the execution of the laws of the United States, of so formidable a nature as to defy for the time being the 

authority of the government, constitutes an insurrection, though not accompanied by bloodshed, and not of sufficient 

magnitude to render success probable.)

9

 Posse Comitatus Act, 18 U.S.C. § 1385 (2015), makes it unlawful to use any part of the Army or Air Force to act in a 

civilian law enforcement capacity to execute local, state, or federal laws. The language of the act itself specifies that 

activities expressly authorized by the Constitution or by statute are exempt from the act’s restrictions. For a more 

complete discussion of the Posse Comitatus Act, see infra Chapter 4, Military Support to Civilian Law Enforcement.
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95 Civil Disturbance Operations

• To enforce federal authority; or 

• To protect constitutional rights.10

1. Supporting a State or Territorial Request

The Federal Government has an obligation to protect every state in the union, upon request, from 

domestic violence.11 Pursuant to this obligation, Congress included in the Insurrection Act a 

provision allowing the President to use federal forces to assist state governments. 10 U.S.C. § 331 

provides:

Whenever there is an insurrection in any state against its government, the President 

may, upon the request of its legislature or of its governor if the legislature cannot be 

convened, call into federal service such of the militia of the other states, in the 

number requested by that state, and use such of the armed forces, as he considers 

necessary to suppress the insurrection.12

Responsibility for the coordination of the federal response to civil disturbances rests with the

Attorney General.13 In the case of state requests for assistance, the Attorney General is responsible 

for receiving the state requests for military assistance, coordinating the requests with SECDEF and 

other appropriate Federal officials, and presenting the requests to the President, who will determine 

what Federal action will be taken.14 If a request for assistance is presented to a local commander, 

the commander should inform requester to address the request to the Attorney General. Before a 

state requests assistance in the form of federal military forces, all local and state resources, 

including the National Guard in State Active Duty status,15 should have been brought to bear on the 

civil disturbance.16

One example of a state requesting such assistance was the response to the Los Angeles riots of 

1992. On May 1, 1992, pursuant to the Insurrection Act, California Governor Pete Wilson 

requested federal military support from President George H.W. Bush to assist with restoring law 

and order in Los Angeles. Governor Wilson advised President Bush that the domestic violence 

exceeded the capabilities of available law enforcement resources, including National Guard forces 

mobilized a day earlier.17 In accordance with the order of President Bush, the Secretary of Defense 

ordered the federalization of the California National Guard and the deployment of Soldiers of the 

 10 10 U.S.C. §§ 331-335 (2015).

11 U.S. CONST. art. IV, § 4.

12 10 U.S.C. § 331 (2015).

13 See DoDI 3025.21, supra note 1, Encl. 4, at para. 1.c. 

14 See DoDI 3025.21, supra note 1, Encl. 4, at para. 1.c. See also Exec. Order No. 12656, 3 C.F.R. 585, 53 Fed. Reg. 

47491, § 1101(8) (Nov. 18, 1988) [hereinafter E.O. 12656].

15 See infra Chapter 3, which discusses the mobilization and activation of National Guard forces.

16 See NATIONAL GUARD BUREAU, REG. 500-1/ANGI 10-8101, NATIONAL GUARD DOMESTIC OPERATIONS, PARA. 4-

(2)(d (13 June 2008) [hereinafter NGR 500-1] (which anticipates that state national guard forces would exercise their 

primary responsibility for providing military assistance to state and local government agencies while in state active duty 

status).

17 Proclamation No. 6427, 57 Fed. Reg. 19359 (May 5, 1992).
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7th Infantry Division from Fort Ord and Marines from Camp Pendleton to assist in restoring order 

in Los Angeles.18

2. Enforcing Federal Authority

The President has a constitutional duty to see that the laws of the United States are faithfully 

executed.19 Within the Insurrection Act, Congress gave the President the authority to commit the 

U.S. military to enforce federal law.20 10 U.S.C. § 332 provides:

Whenever the President considers that unlawful obstructions, combinations, or 

assemblages, or rebellion against the authority of the United States, make it 

impracticable to enforce the laws of the United States in any state or territory by the 

ordinary course of judicial proceedings, he may call into federal service such of the 

militia of any state, and use such of the armed forces, as he considers necessary to 

enforce those laws or to suppress the rebellion.21

During the 1950s and 1960s, this statute was used to enforce public school desegregation in 

Arkansas22 and Alabama23 and to control civil rights protests in Mississippi24 and Alabama.25

3. Protecting Constitutional Rights

Citizens of the United States are guaranteed equal protection under the law.26 The final 

congressional grant of authority to the President for the use of the U.S. military during times of 

insurrection is for the protection of citizens in states that cannot protect the constitutional rights of 

its citizens.27 10 U.S.C. § 333 states:

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—

 18 Exec. Order No. 12804, 57 Fed. Reg. 19361 (May 5, 1992). See also JOINT CHIEFS OF STAFF, JOINT PUB 3-08,

INTERORGANIZATIONAL COORDINATION DURING JOINT OPERATIONS, III-10 (24 Jun 2011).

19 U.S. CONST. art. II, § 3.

20 10 U.S.C. § 332 (2015).

21 Id.

22 See Exec. Order No. 10730, 22 Fed. Reg. 7628 (Sept. 24, 1957) (Army and Air National Guard units were 

federalized to remove obstructions to justice in respect to enrollment and attendance at public schools in Little Rock, 

Arkansas.).

23 See Exec. Order No. 11118, 28 Fed. Reg. 9863 (Sept. 10, 1963) (Army and Air National Guard units were 

federalized to remove obstructions to justice in respect to enrollment and attendance at public schools in Alabama.).

24 See Proclamation No. 3497, Exec. Order No. 11053, 27 Fed. Reg. 9681 (Sept. 30, 1962) (Army and Air National 

Guard units federalized to enforce federal court orders issued in Mississippi.). 

25 See Exec. Order No. 11111, 28 Fed. Reg. 5709 (Jun. 11, 1963) (Army and Air National Guard units federalized to 

remove obstructions to justice and to suppress unlawful assemblies, conspiracies, and domestic violence that opposed 

the laws of Alabama.).

26 U.S. CONST. amend. XIV, § 1 which states in part “No State shall make or enforce any law which shall abridge the 

privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or 

property, without due process of law; nor deny any person within its jurisdiction equal protection of the laws.”

27 10 U.S.C. § 333 (2015).
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(1) so hinders the execution of the laws of that state, and of the United States within 

the state, that any part or class of its people is deprived of a right, privilege, 

immunity, or protection named in the Constitution and secured by law, and the 

constituted authorities of that state are unable, fail, or refuse to protect that right, 

privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes 

the course of justice under those laws. In any situation covered by clause (1), the 

state shall be considered to have denied the equal protection of the laws secured by 

the Constitution.28

10 U.S.C. § 333 was used as an authority by President Kennedy to send military troops to Alabama 

in April 1963 during the civil rights protests in Birmingham, Alabama.29

C. Procedural Issues

Prior to utilizing the federalized militia or federal troops under the Insurrection Act, the President 

must issue a proclamation demanding that the insurgents cease and desist all acts of violence and 

retire peaceably within a prescribed time.30 10 U.S.C. § 334 states, 

Whenever the President considers it necessary to use the militia or the armed forces 

under this chapter, he shall, by proclamation, immediately order the insurgents to 

disperse and retire peaceably to their abodes within a limited time.

If the Presidential Proclamation does not end the disturbance, the President will issue an Executive 

Order to the Secretary of Defense directing the Secretary to use such of the armed forces as are 

necessary to restore order.31 Decisions of the President to issue Presidential Proclamations and 

Executive Orders pursuant to the Insurrection Act are made solely at the discretion of the 

Executive32 and cannot be compelled by the courts.33 Examples of a proclamation and follow-on 

order are Proclamation No. 6427 and Executive Order 12804, cited above, used during the Los 

Angeles riots of 1992.

 28 Id.

29 See Alabama v. U.S., 373 U.S. 545 (1963).

30 10 U.S.C. § 334) (2015). 

31 See Exec. Order No. 10703, 22 Fed. Reg. 7,628 (Sept. 24, 1957) (order authorizing use of military forces for 

desegregation in Arkansas); Exec. Order No. 11053, 27 Fed. Reg. 9,681 (Sept. 30, 1962) (order authorizing use of 

military forces during riots in Mississippi); Exec. Order No. 11111, 28 Fed. Reg. 5,709 (June 11, 1963) (order 

authorizing use of military forces during riots in Alabama); Exec. Order No. 11118, 28 Fed. Reg. 9,863 (Sept. 10, 1963) 

(order authorizing use of military forces for desegregation in Alabama).

32 See, e.g., Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp. 1249 (D.D.C. 1973), aff’d, 497 F.2d 683, 

aff’d, 497 F.2d 684 (D.C. Cir. 1977), cert. denied, 419 U.S. 1021 (1974), aff’d, 497 F.2d 685 (D.C. Cir. 1974) (decision 

whether to use troops or militia to quell civil disorder is exclusively within the province of the President, and 

presidential discretion in exercising powers granted in U.S. Constitution Article 2, § 2 and Article 4, § 4, and the 

Insurrection Act is not subject to judicial review).

33 See Consolidated Coal and Coke Co. v. Beale et al., 282 F. 934 (S.D. Ohio 1922) (ruling that court could not compel 

President to issue Proclamation or exercise discretion under Insurrection Act).
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D. DoD Considerations in Civil Disturbance Operations

Department of Defense Directive (DoDD) 3025.18, Defense Support of Civil Authorities, requires 

all requests for military support be evaluated against six criteria prior to the decision to employ 

forces.

• Cost – Who pays and the impact on DoD budget.

• Appropriateness – Whether it is in the interest of DoD to provide the requested support.

• Readiness – Impact on DoD’s ability to perform its primary mission.

• Risk – Safety of DoD forces.

• Legality – Compliance with the law.

• Lethality – Potential use of lethal force by or against DoD forces.

34

The decision to employ armed forces for Civil Disturbance Operations (CDO) is made in 

coordination between the President, the Secretary of Defense, and the Attorney General. Although 

the Secretary of Defense retains approval authority for all military support in response to civil 

disturbances,

35 these six criteria should be considered by local commanders and their judge 

advocates when submitting recommendations to higher headquarters regarding requests for 

assistance.

E. Other Authority

In addition to the Insurrection Act, authority to use federal troops in a law enforcement capacity to 

address civil disturbances can be found in two other major areas.

1. Emergency Authority

Under DoDD 3025.18, federal military commanders are provided emergency authority in unique 

circumstances. Federal military commanders have the authority, in extraordinary emergency 

circumstances where prior authorization by the President is impossible and local authorities are 

unable to control the situation, to engage temporarily in activities that are necessary to quell largescale, unexpected civil disturbances either because: 

• Such activities are necessary to prevent significant loss of life or wanton destruction of 

property and are necessary to restore governmental function and public order; or, 

• if duly constituted Federal, State, or local authorities are unable or decline to provide 

adequate protection for Federal property or Federal governmental functions, then Federal 

action, including the use of Federal military forces, is authorized when necessary to protect 

the Federal property or functions.36

 34 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4 (21 Sept. 2012) [hereinafter 

DoDD 3025.18].

35 Id., para. 4.j.1, states approval authority for civil disturbance operations is no lower than the Secretary of Defense 

level. 

36 Id., para. 4.i.
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Oral requests from local officials to a commander should be reduced to writing as soon as possible. 

An officer exercising emergency authority must report the facts surrounding the request, the 

command’s response, and any other relevant information through the chain of command to the 

Chairman of the Joint Chiefs of Staff, Joint Director of Military Support (JDOMS) with copy to 

USNORTHCOM Domestic Warning Center expeditiously. If the commander has not received a 

written request at the time he forwards the request to JDOMS, the written request should be 

forwarded to JDOMS as soon as it is available.

2. Barment or Removal Authority

A military installation commander, exercising “inherent authority” may take such actions that are 

reasonably necessary and lawful to protect military installations. This is outside of emergency 

authority or insurrection act authority discussed above, and is not exercised in concert with the type 

of force that may occur in those situations. Although it can involve civil unrest situations, it 

involves non-emergency situations where there is time to apply authority allowing for the removal 

or barment of a person from an installation to remedy a situation. Violations of such orders to stay 

off an installation carry civil and criminal penalties.37

F. Responsibilities and Relationships of Parties Involved in Civil Disturbance Operations

1. Attorney General

The Department of Justice is the primary federal agency responsible for coordinating the Federal 

Government response to restore law and order.38 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. 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. 

 37 The courts have upheld the theory of a commander’s inherent authority, although the authority is not explicitly found 

in statute or regulation. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 893 (1961) 

(commanders have “historically unquestioned power” to exclude persons from their installations); Greer v. Spock, 424 

U.S. 828, 840 (1976) (“There is nothing in the Constitution that disables a military commander from acting to avert 

what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.”).

18 U.S.C. § 1382 states:

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, 

post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever 

reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been 

removed therefrom or ordered not to reenter by any officer or person in command or charge thereof, shall be fined 

under this title or imprisoned not more than six months, or both.

From this federal trespass statute, courts have inferred military power of apprehension of civilians trespassing on federal 

installations. See United States v. Banks, 539 F.2d 14 (9th Cir. 1976), cert. denied, 429 U.S. 1024 (1976). For a 

complete analysis of law enforcement authority over civilians, see Major Matthew Gilligan, Opening the Gate?: An 

Analysis of Military Law Enforcement Authority over Civilian Lawbreakers on and off the Federal Installation, 161 

Mil. L. Rev. 1 (1999).

38 DoDI 3025.21, supra note 1, Encl. 4, para. 1.c; 32 C.F.R. § 182.6(b)(5) (2015).
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2. Senior Civilian Representative of the Attorney General (SCRAG)

Pursuant to 32 C.F.R. § 182.6, the Attorney General may appoint an individual as a SCRAG to 

communicate the President’s policy guidance to the military commander conducting a Civil 

Disturbance Operation. At the Attorney General’s designation, the SCRAG is responsible for the 

coordination of effort of all federal agencies involved in the civil disturbance operation with the 

efforts of state and local agencies engaged in restoring law and order. Note that the appointment of 

such an official does not replace the military chain of command.39 DoD forces employed in civil 

disturbance operations must remain under military authority at all times.40

3. Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs

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

(ASD(HD&ASA)) acts as the principal point of contact between DoD and the Department of 

Justice for Civil Disturbance Operations.

41 ASD(HD&ASA) is also responsible for the 

development, coordination, oversight of DoD policy for DSCA plans and activities regarding civil 

disturbances.

42

4. Joint Director of Military Support (JDOMS)

JDOMS is the action agent within DoD with responsibility for planning, coordinating, and directing 

the commitment of all designated federal military resources during civil disturbance operations. 

JDOMS coordinates with the supported Combatant Commander (CC) for a CDO, and releases the 

execute order (EXORD) designating supported and supporting Combatant Commanders and tasking 

force providers to give the ordered support.43

5. Combatant Commanders, U.S. Northern Command and U.S. Pacific Command

The Commanders of USNORTHCOM, USPACOM, and USSOCOM, as the DoD planning agents 

for CDO, lead the CDO planning activities of the DoD Components in these areas: 

• USNORTHCOM - The 48 contiguous States, Alaska, the District of Columbia, the 

Commonwealth of Puerto Rico, and the U.S. Virgin Islands. 

• USPACOM - Hawaii and the U.S. possessions and territories in the Pacific area. 

• USSOCOM - CDO activities involving special operations forces.44

 39 32 C.F.R. § 182.6(b)(5) (2015).

40 JP 3-28, supra note 7, at III-3, 4.

41 DoDI 3025.21, supra note 1, Encl. 2, para. 2.b.

42 U.S. DEP’T OF DEFENSE, DIRECTIVE 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND 

AMERICAS’ SECURITY AFFAIRS (ASD(HD&ASA)), para. 4.b.(1) (16 Jan. 2009).

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

APPROVAL AUTHORITY (30 Nov. 2012). See also JP 3-28, supra note 7, at Ch. III, V.

44 DoDD 3025.21, supra note 1, Encl. 4, p. 26.
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6. Commander, U.S. Army North

U.S. Army North (ARNORTH) is currently the lead operational authority for DoD civil disturbance 

support response within the continental United States.45 The Commander, ARNORTH, designates a 

Commander, Joint Civil Disturbance Task Force in the event of CDO, receives civil disturbance 

units, ensures their preparedness, and deploys forces to the objective area.

7. Commander, Joint Civil Disturbance Task Force

The Commander of the Joint Civil Disturbance Task Force is an appointed Commander for all 

federal forces, including National Guard forces in Title 10 status, in a civil disturbance area of 

operations. He or she will be the DoD representative in the civil disturbance area and performs civil 

disturbance missions assigned.

8. National Guard Bureau

The Chief of the National Guard Bureau (CNGB) is the channel of communication for all National 

Guard matters between Federal military elements (including the Secretary of Defense, the Chairman 

of the Joint Chiefs of Staff, the DoD Components, and the Departments of the Army and Air Force) 

and the States.46 In that capacity, CNGB facilitates and deconflicts the use of National Guard forces 

to ensure that adequate and balanced forces are available for domestic and foreign military 

operations.47 The NGB maintains a National Guard Coordination Center at all times, and it provides

situational awareness and a common operating picture for any CDO. 

9. The National Guard

National Guard units have the primary responsibility to respond to a civil disturbance, initially 

deploying in a State Active Duty (SAD) status or under Title 32.48 In either capacity, they are not 

subject to the prohibitions of the PCA and can freely support state or federal law enforcement 

missions.49 National Guard forces remain under the command of state NG officers, and missions 

are conducted through the NG chain of command, after coordination with civil authorities. During 

extraordinary circumstances, National Guard units may be federalized under Title 10 pursuant to a 

Presidential order.50 While in Title 10 status, the NG conducts its mission in accordance with DoD 

regulations, federal law, and under federal control. 

The NG’s use of force while in SAD or Title 32 status is governed by the laws of the state where the 

operation is conducted. State operations are conducted under separate “Rules for the Use of Force” 

(RUF) pursuant to each state.

 45 See ABOUT USNORTHCOM, http://www.northcom.mil/AboutUSNORTHCOM.aspx (last visited Aug. 21, 2014).

46 U.S. DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) para. 4.3 (21 May 2008) [hereinafter 

DODD 5105.77].

47 Id. para. 5.1.11.2.

48 With SecDef approval, the National Guard may conduct operational missions under 32 U.S.C. § 502(f)(2) 

“operational support” authority. See DoDD 3025.18, supra note 34, para. 4.h.

49 See infra Chapter 4, Military Support to Civilian Law Enforcement, for a complete discussion on the Posse 

Comitatus Act.

50 See infra Chapter 3 for a complete discussion of National Guard status.
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National Guard units are the primary military organization that will respond in a CDO. The Civil 

Disturbance Operations in Ferguson, Missouri, and Baltimore, Maryland during 2014 and 2015, are 

prime examples.

G. The Department of Defense Civil Disturbance Plans

DoD’s Civil Disturbance Operations (CDO) plan was formerly known as “GARDEN PLOT.”51 

Since the creation of the Department of Homeland Security and USNORTHCOM, DoD has 

delegated to geographic combatant commanders responsibility for developing CDO Contingency 

Plans (CONPLANs). “GARDEN PLOT” has since been replaced by the respective COCOM Plans. 

These geographic commander CONPLANs provide guidance and direction for planning, 

coordinating, and executing military operations during domestic civil disturbances.

1. Civil Disturbance Operations Mission

The CDO mission is conducted to restore order or enforce federal law after a major public 

emergency (e.g., natural disaster, serious public health emergency, or terrorist attack) when 

requested by the state governor or when the President determines that the authorities of the state are

incapable of maintaining public order.52 The restoration of law and order must be distinguished 

from the preservation of law and order.53 CDO mission statements do not normally allow for 

commanders to undertake preservation missions.54 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.55 Judge advocates should assist commanders by ensuring they do not undertake military 

action to provide routine maintenance of civil order unless absolutely necessary under conditions of 

extreme emergency. Moreover, as demonstrated by the CDOs in Ferguson, Missouri, and 

Baltimore, Maryland, judge advocates should review OPORDs and FRAGOs to ensure the orders 

are consistent with law and do not use inappropriate language, such as “ROE” or “enemy 

forces/combatants,” that might confuse operators or the public.

2. Combatant Commanders’ CONPLANs

The CONPLANs provide the basis for all preparation, deployment, employment, and redeployment 

of Department of Defense component forces, including National Guard forces called to active 

 51 GARDEN PLOT was published in 1991. The creation of the Department of Homeland Security and U.S. Northern 

Command required a change to the plan. GARDEN PLOT has been replaced by COCOM CONPLANs for respective 

theaters. CONPLANs are classified Secret, contact the respective combatant commander SJA to review them. 

52 See JP 3-28, supra note 7, at III-3,4.

53 The preservation of law and order is the responsibility of state and local governments and law enforcement 

authorities. DODI 3025.21, supra note 1, Encl. 4, para. 1.b.

54 See id., Encl. 4, para. 2.e. which states, “The DoD Components shall not take charge of any function of civil 

government unless absolutely necessary under conditions of extreme emergency. Any commander who is directed, or 

undertakes, to control such functions shall strictly limit military actions to the emergency needs, and shall facilitate the 

reestablishment of civil responsibility at the earliest time possible.”

55 See U.S. DEP’T OF THE ARMY, ATP 3-39.33, CIVIL DISTURBANCES (Apr. 2014) [HEREINAFTER ATP 3-39.33).
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federal service, for use in domestic civil disturbance operations, in support of civil authorities as 

directed by the President.

56

During the employment of military forces, the Commander will maintain liaison with the SCRAG, 

state law enforcement representatives, and municipal authorities.57 Normally, this liaison is through 

the Defense Coordinating Officer. The liaison will be maintained until termination of the civil 

disturbance mission. The Joint Civil Disturbance Task Force Commander (or COCOM) will accept 

missions, and if reasonably possible within the framework of orders, comply with requests from 

civil authorities.58

Unless ordered by the military chain of command to provide direct support, military units cannot 

accept operational tasking directly from law enforcement or civilian officials. While the Joint Civil 

Disturbance Task Force Commander may direct subordinate elements to assist designated civil 

authorities or officials, military personnel can not be placed under the command of civilians. This 

requirement does not preclude the establishment of joint patrols or jointly manned operations.

3. The Standing Rules for the Use of Force for U.S. Forces

Civil disturbance operations are conducted in accordance with Appendix L of the Standing Rules of 

Engagement/Standing Rules for the Use of Force for U.S. Forces (SRUF).

59 Guidance on how and 

when forces can use force in a CDO mission are detailed in that annex. Although the CJCSI is 

classified, Annex L is not and can be shared with our mission partners. In addition to the CJCS 

Instruction, as part of operating in an inter-agency environment in support of civil authorities, judge 

advocates must make themselves familiar with state and local laws regarding the use of force. This 

is particularly important if joint patrols or other missions are conducted. Judge advocates should 

review the RUF of other agencies in these situations to ensure compatibility with DoD procedures 

and consistency in the application of force. If RUF policies are not consistent, commanders should 

consider maintaining operations separate from other agencies.

 56 It is important to remember that any employment of Federal military forces in a CDO must maintain the primacy of 

civilian authority. See 32 C.F.R. 182.6(b) (2015). See also 9 Op. Att’y Gen. 517 (1860) (“Under [the Insurrection Act] 

the President may employ the militia and the land and naval forces for the purpose of causing the laws to be executed; 

but when a military force is called into the field for that purpose, its operations must be purely defensive, and the 

military power on such occasion must be kept in strict subordination to the civil authority.”).

57 The Attorney General may assign another Dept. of Justice entity, such as a representative of the FBI or ATF, to lead 

CDO on the part of the Federal civilian authorities. See 32 C.F.R. 182.6(b)(5) (2015).

58 See DoDI 3025.21, supra note 1, Encl. 4.

59 JP 3-28, supra note 7, at B-1.
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4. Constitutional Legal Considerations

State and federal laws govern search, seizure, arrest, detention, and confinement during a CDO. 

The Attorney General is responsible for setting overall guidelines governing the conduct of civil 

disturbance operators and judge advocates should familiarize themselves with any policies and 

procedures set forth by the Department of Justice. Members should be trained in advance on proper 

legal procedures for search, seizure, arrest, and detention, and should be aware that actions not 

conforming to Constitutional standards could jeopardize prosecution of criminal actors and possibly 

subject the military member to civil or criminal liability.

a. Detention and Confinement

Arrests or apprehensions should be made by the civil police force unless they are not available or 

require assistance. If military forces are necessary to make an apprehension, use of military forces 

requires the approval and supervision of civil authorities. Civilians taken into custody by military 

forces should be transferred to civilian law enforcement authorities as soon as possible.60

Military forces should not operate detention facilities for civilians.

61 Civil authorities have the 

responsibility to provide adequate detention facilities for all subjects. Large-scale arrests may be

delayed until sufficient detention facilities have been set up. If military forces are committed to 

support local authorities with arrests, coordination between the military commanders and local 

civilian authorities is required to determine the availability, location, and capacity of adequate 

detention facilities. If civil detention facilities are inadequate to handle the number of detainees,

civil authorities may request assistance from the military to provide support by setting up and 

assisting civilian authorities in operating temporary facilities. Service policies and combatant 

commander guidance, in addition to Task Force Commander approval, govern military actions 

establishing temporary detention facilities. Use of the temporary military facility must end as soon 

as civil authorities can take custody of the detainees. Existing Army correctional facilities may not 

be used to detain civilians.

b. Searches

Military forces should not be involved in warrant-backed or warrantless searches for evidence of 

civilian criminal activity (i.e. searches of houses, crime scenes, etc.). To restore order, military 

assistance may be needed to conduct searches of personnel, whether or not the military assistance is

involved in an arrest or detention operations. In addition, during conditions of extreme emergency, 

military forces may be required to frisk an individual as part of a lawful stop (i.e., Terry stop) while 

patrolling an area. Notwithstanding, military commanders should make every effort to have civilian 

authorities conduct these searches (as well as detentions) or at a minimum ensure that civilian 

authorities are present to observe such activities.

62

 60 See ATP 3-39.33, supra note 55, para. 2-111.

61 See generally, DODI 3025.21, supra note 1, Encl. 4 (“DoD Components shall not take charge of any function of civil 

government unless absolutely necessary under conditions of extreme emergency.”).

62 See ATP 3-39.33, supra note 55, para. 2-114.
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5. Other Considerations

a. Billeting of Troops

Military commanders should be aware that the selection of a location to assemble and billet military 

personnel 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 used for such purposes. The location of assembly areas 

on government property (Federal, state, or local) will limit civilian property damage claims, 

contract costs, and adverse perceptions about military operations. Additionally, one of the lessons 

learned from the Civil Disturbance Operations in Ferguson, Missouri, and Baltimore, Maryland, 

during 2014 and 2015, was that units assigned to Civil Disturbance Operations should plan for 

operations to last one to two weeks rather than planning just a few days. For example, the Missouri 

National Guard had nearly 3,000 soldiers in SAD for approximately three weeks in support of the 

CDO.

b. Intelligence

See Chapter 11, Intelligence Law and Policy Considerations During Domestic Support Operations,

for information regarding the proper use of intelligence elements and collection of information 

during domestic civil support.

c. Claims

Negligent or wrongful acts or omissions of military forces assisting law enforcement during civil 

disturbances may be covered under the Federal Tort Claims Act (FTCA).63 For claims to be 

compensable under the FTCA, the damage or injury must have been caused by the acts or omissions 

of employees of the United States. National Guard troops in Title 10 or Title 32 status, as well as 

active duty military members, are considered U.S. employees for the purposes of the FTCA. 

National Guard forces activated pursuant to a state statute are not considered employees of the 

United States, and potential claims involving damage or injury arising out of the activities of forces 

under state status should be directed to state authorities.

The head of the applicable Area Claims Offices (ACOs) is responsible for the development of 

disaster and civil disturbance claims plans during the CDO within the United States.64 The ACO in 

the geographical area where the alleged incident occurred is responsible for investigating and 

processing the claim.65 With the approval of Commander, United States Army Claims Service, the 

responsible ACO can appoint a special Claims Processing Office to handle claims arising from 

CDO.

66 For a major CDO, the responsible judge advocate should consider submitting a request to 

the head of the ACO to provide a claims team. 

In addition, judge advocates deployed as part of a civil disturbance task force can assist in 

investigations by ensuring that potential claims are documented and available information 

 63 28 U.S.C. §§ 1346, 2671–2680.

64 U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11(a)(12) (8 Feb. 2008).

65 Id. para. 2-1(d).

66 Id. para. 1-12(b)(4).
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concerning the claims is collected. This includes collecting information concerning the status of 

National Guard troops operating within the area.67

d. Medical Support

The primary mission of medical support personnel deployed with a Joint Civil Disturbance Task 

Force is to treat military personnel requiring medical care. Civilian personnel should be treated 

primarily through the civilian health care system. However, military treatment facilities may be 

used to treat civilians in cases of emergency when undue suffering or grievous bodily harm is a 

possibility. Civilians admitted to military treatment facilities should be transferred to a civilian 

hospital as soon as medically feasible.

e. Interference with Federal Forces

Federal law makes it a crime to interfere with law enforcement officers engaged in controlling civil 

disorders.68 Included in the definition of “law enforcement officers” are members of the National 

Guard, in both state and federal status, and members of the armed forces.69

f. Loan and Lease of Military Equipment

There is no specific statutory authority to loan or lease equipment for use in civil disturbance 

situations.70 Army materiel and equipment may be loaned to Federal agencies pursuant to the 

Economy Act.71 However, the loan and lease of military equipment to another federal agency 

requires a loan agreement, but not a surety bond.72 Military equipment leased to non-federal law 

enforcement agencies must be leased under the leasing statute, 73 which requires both a lease 

agreement and a surety bond. The leasing statute also includes the requirement for the payment of a 

lease fee, which in the case of the Army may be waived by the Assistant Secretary of the Army 

(Installation, Logistics and Environment) (ASA(I, L&E)).74 

Approval authorities for the loan and lease of DoD materiel to federal, state, and local law 

enforcement authorities are based upon the type of equipment to be provided. For example, 

 67 Detailed information on claims arising during disasters can be accessed at http://www.jagcnet.army.mil/Claims.

68 18 U.S.C. §§ 231–233.

69 Id. § 232 states:

The term “law enforcement officer” means any officer or employee of the United States, any State, any political 

subdivision of a State, or the District of Columbia, while engaged in the enforcement or prosecution of any of the 

criminal laws of the United States, a State, any political subdivision of a State, or the District of Columbia; and 

such term shall specifically include members of the National Guard (as defined in section 101 of title 10), members 

of the organized militia of any State, or territory of the United States, the Commonwealth of Puerto Rico, or the 

District of Columbia not included within the National Guard (as defined in section 101 of title 10), and members of 

the Armed Forces of the United States, while engaged in suppressing acts of violence or restoring law and order 

during a civil disorder.

70 U.S. DEP’T OF THE ARMY, AR 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL, para. 2-8(b)(3) (23 Aug. 

2004) [hereinafter AR 700-131].

71 Id.

72 31 U.S.C. § 1535.

73 10 U.S.C. § 2667.

74 Id.; see also AR 700-131, supra note 70 , para. 2-7, 2-8 (23 Aug. 2004).
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requests for the loan or lease of personnel, arms, ammunition, tactical vehicles, vessels and aircraft, 

riot control agents, and concertina wire for expected civil disturbances will be forwarded through 

the Chairman of the Joint Chiefs of Staff (JDOMS) to the Secretary of Defense (SECDEF). The 

loan or lease of fire-fighting resources, protective equipment, body armor, clothing, searchlights and 

use of DoD facilities can be approved by garrison, installation, or task force commanders.75 See 

U.S. Army Reg. 700-131, Loan and Lease of Army Materiel (23 Aug. 2004), for more specific 

guidance on the loan and lease of material.

f. Funding

Operating agencies and supported combatant commanders are required to recover all costs for 

CDOs.

76 The operating agency and supported commander are responsible for collecting costs for 

civil disturbance operations from all components and DoD agencies, preparing cost reports for the 

executive agency, consolidating billings, forwarding bills to DOJ, and distributing 

reimbursements.77

 75 AR 700-131, supra note 70, paras. 2-6b(1)-(7). See also NGR 500-1, supra note 16, Chap. 3-1, governs the use of 

National Guard personnel and resources.

76 DoD 7000.14-R, supra note 22; USNORTHCOM CONPLAN 3501, Defense Support of Civil Authorities;

USNORTHCOM CONPLAN 3502, Civil Disturbance Operations.

77 JP 3-28, supra note 7, E-3.
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Chapter 6

DoD Response to CBRN 108
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Chapter 6

109 DoD Response to CBRN

CHAPTER 6

DOD RESPONSE FOR CHEMICAL, BIOLOGICAL, 

RADIOLOGICAL, AND NUCLEAR (CBRN)1 INCIDENTS 

KEY REFERENCES:

• Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288, 42 

U.S.C. § 5121, et seq., as amended.

• The Defense Against Weapons of Mass Destruction Act, 50 U.S.C. §§ 2301–2371 (2011).

• E.O. 13527 Establishing Federal Capability for the Timely Provision of Medical 

Countermeasures Following a Biological Attack, December 30, 2009.

• National Response Framework, May 2013.

• DoDD 3025.18, Defense Support of Civil Authorities (DSCA), September 21, 2012.

• DoDD 3150.08, DoD Response to Nuclear and Radiological Incidents, January 20, 2010.

• CJCSI 3125.01C, Defense Response to Chemical, Biological, Radiological, and Nuclear 

(CBRN) Incidents in the Homeland, June 4, 2012.

• Joint Pub 3-26, Counterterrorism, November 13, 2009.

• Joint Pub 3-28, Defense Support to Civil Authorities, July 31, 2013.

• Joint Pub 3-41, Chemical, Biological, Radiological and Nuclear Consequence Management, 

June 21, 2012.

A. Introduction

In the wake of 9/11 and Hurricane Katrina, the Department of Homeland Security (DHS) developed 

the National Response Framework.2

 This document evolved from the National Response Plan 

(NRP), which was originally mandated under Homeland Security Presidential Directive (HSPD-5), 

Management of Domestic Incidents. The intent of HSPD-5 was to develop a single, comprehensive 

approach to domestic incident management3 built on the template of the National Incident 

 1

 This acronym used to include the term “high yield explosive” and was stated “CBRNE.” Current policies have 

shifted to the CBRN term and eliminated “high yield explosives.” See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT 

CHIEFS OF STAFF INSTRUCTION 3125.01C, DEFENSE RESPONSE TO CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND 

NUCLEAR (CBRN) INCIDENTS IN THE HOMELAND (4 Jun. 2012) [hereinafter CJCSI 3125.01C], para. 4.a. (noting that a 

high-yield explosive incident is not addressed in CJCSI 3025.01C because those incidents do not generate similar initial 

or residual hazards. Responses to high yield explosive incidents without CBRN elements will be provided in 

accordance with DoDD 3025.18, Defense Support of Civil Authorities, and the current year CJCS Defense Support of 

Civil Authorities (DSCA) EXORD. CJCSI 3125.01C Encl. 3, para. 3.f. Note however that some publications still 

discuss high explosives (albeit separately from CBRN) because they may be tied to or part of the delivery for CBRN 

elements. See, e.g. JOINT CHIEFS OF STAFF, JOINT PUB. 3-41, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR 

CONSEQUENCE MANAGEMENT, at I-15 (21 Jun. 2012) [hereinafter JP 3-41].

2

 DHS, NATIONAL RESPONSE FRAMEWORK, Second Edition (May 2013) 3 [hereinafter NRF], available at

http://www.fema.gov/national-response-framework. 

3

 The term “incident management” is designed to eliminate the prior distinction between crisis and consequence 

management with respect to domestic incidents. HSPD-5 states that the objective of the United States government is to 

ensure that all levels of government across the nation have the capability to work efficiently together using a national 

approach to domestic incident management, and in these efforts, the United States government treats crisis management 

and consequence management as a single integrated function. See Homeland Security Presidential Directive 5, 

Management of Domestic Incidents (Feb. 28, 2003) [hereinafter HSPD-5], available at

http://www.gpo.gov/fdsys/pkg/PPP-2003-book1/pdf/PPP-2003-book1-doc-pg229.pdf. Judge advocates should be 
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Management System (NIMS).4 The NRF provides national-level policy and operational direction 

for all federal agencies involved in the response to domestic disasters or emergencies. While 

responses to incidents should generally be handled at the lowest capable jurisdictional level, the 

NRF and NIMS address the needs that must be met when the responding jurisdiction’s capabilities 

are overwhelmed by the magnitude of a catastrophic incident.5

The NRF is designed to ensure timely and effective federal support in response to state, tribal, 

and/or local requests. The NRF is the product of DHS, but it applies to all federal departments and 

agencies that have jurisdiction for, or responsibility to support, any response or recovery effort. 

When federal resources are necessary, DoD may provide advice, assistance, and assets in support of 

the Lead Federal Agency (LFA). DoD plays only a supporting role, unless otherwise directed by 

the President,6 and its activities are referred to as Defense Support to Civilian Authorities (DSCA), 

or simply “civil support.”7

The NRF and NIMS provide broad direction for any type of disaster, in what is characterized as an 

all-hazards approach.8 Consequently, the framework applies equally to natural disaster relief, the 

handling of an unintentional or negligent industrial accident, or the Federal government’s response 

to a terrorist’s potential domestic employment of a Chemical, Biological, Radiological, or Nuclear 

weapon of mass destruction (WMD).9

 Although the various levels of government have experience 

in responding to natural disasters, CBRN events pose some of the greatest challenges facing the 

 

aware the terms crisis and consequence management may still be found in policies addressing incident management. 

For example, JOINT PUB 3-28 addresses CBRN response in terms of consequence management. See JOINT CHIEFS OF 

STAFF, JOINT PUB. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES II-10 (31 Jul. 2013) [hereinafter JP 3-28].

4

 DHS, NATIONAL INCIDENT MANAGEMENT SYSTEM (Dec. 2008), available at

http://www.fema.gov/pdf/emergency/nims/NIMS_core.pdf [hereinafter NIMS]. The National Incident Management 

System (NIMS) is a doctrinal framework for incident management designed to provide consistency at all jurisdictional 

levels. NIMS includes a core set of concepts, principles, terminology, and technologies covering the incident command 

system; multi-agency coordination systems; unified command; training; identification and management of resources 

(including systems for classifying types of resources); qualifications and certification; and the collection, tracking, and 

reporting of incident information and incident resources. Chapter 2, National Framework for Incident Management, 

infa, contains more discussion on NIMS.

5

 National Incident Management doctrine and policy has expanded significantly since the publication of the first NRF. 

The NRF is now part of the National Preparedness System, which includes four other Frameworks designed to achieve 

the National Preparedness Goal. Chapter 2, National Framework for Incident Management, infa, contains an extensive 

discussion of this new model. 

6

 JP 3-28, supra note 3, at viii.

7

 DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (21 Sept. 2012) [hereinafter DoDD 

3025.18] defines “DSCA” as: 

Support provided by U.S. Federal military forces, DoD civilians, DoD contract personnel, DoD Component assets, 

and National Guard forces (when the Secretary of Defense, in coordination with the Governors of the affected 

States, elects and requests to use those forces in title 32, U.S.C. status) in response to requests for assistance from 

civil authorities for domestic emergencies, law enforcement support, and other domestic activities, or from 

qualifying entities for special events. Also known as civil support.

8

 See NRF, supra note 2, at i (noting the NRF describes specific authorities and best practices for managing incidents 

that range from the serious but purely local to large scale terrorist attacks or catastrophic natural disasters).

9

 It is important to note that not all CBRN incidents may be the result of a WMD. A domestic accident on the scale of 

the radiation release in Chernobyl, Ukraine; Fukushima, Japan; or the pesticide release in Bhopal, India in the U.S. 

would most likely result in DoD-assisted CBRN CM operations.
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United States today10 and underscore the importance of maintaining a DoD force that is ready and 

able to respond to these specialized threats.

B. CBRN Consequence Management (CM) Overview and Authorities

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

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

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

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

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

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

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

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

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

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

accordance with Title 32 of the United States Code.14

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

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

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

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

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

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

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

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

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

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

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

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

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

incidents. National Preparedness Guidelines, DHS.GOV (last visited Aug. 20, 2014). 

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

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

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

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

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

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

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

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

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

recovery that may be required. JP 3-41, supra note 1, at I-5. 13 For example, 10 U.S.C. § 382 (2015) authorizes the Attorney General to request DoD support when an emergency 

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

Posse Comitatus Act, 18 U.S.C. § 831 (2015) authorizes the Attorney General—during an emergency situation—to 

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

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

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

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

weapons. See 50 U.S.C. § 2313 (2015).
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disaster declaration at the Governor’s request, the LFA will establish a Joint Field Office (JFO), and 

a Federal Coordinating Officer (FCO) will be designated. 

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

Office of the Secretary of Defense, Executive Secretariat. SecDef-approved RFAs are assigned to 

the appropriate Combatant Commander (CCDR). If a DCO is on-site, RFAs are validated through 

the DCO and forwarded to the designated DoD entities for approval and sourcing. Once SecDef 

approves a request for DoD assistance, a supported CCDR is designated. The CJCS may publish 

SecDef-approved execute orders (EXORDs) to delineate support relationships, available forces, end 

state, purpose, and SecDef-approved scope of action.

16 The CCDR then orders the Commander, 

Joint Task Force –Civil Support (JTF-CS), to conduct consequence management operations.

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

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

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

• Cost (who pays, impact on DOD budget)

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

• Risk (safety of DOD forces)

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

• Legality (compliance with laws)

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

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

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

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

governments with emergencies and disasters.19

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

17 DODD 3025.18, supra note 7, at. 4.

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

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

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

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

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

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

manage the incident.

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

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

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

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

United States.

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

[A]ny natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, 

tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), 

or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the 

determination of the President causes damage of sufficient severity and magnitude to warrant 
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Occasionally, the legal authority to use DoD forces for CBRN incidents arises from other sources. 

Three examples are:

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

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

response to a request for assistance from a civil authority under imminently serious conditions, 

and if time does not permit approval from higher authority, DoD officials may provide 

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

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

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

facts no longer meet the threshold.20 

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

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

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

of this authority.

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

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

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

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

C. DoD Entities Responsible for CBRN CM Operations

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

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

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

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

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

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

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

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

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

 

major disaster assistance under this Act to supplement the efforts and available resources of States, 

local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or 

suffering caused thereby.

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

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

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

to continue DoD involvement in the response shall occur.

21 Id., para. 4.i.

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

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

2458 (2002).

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

SECURITY AFFAIRS (ASD(HD&ASA)) (16 Jan. 2009).
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JDOMs produces military orders for DSCA, including consequence management operations.25 For 

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

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

organizers. CJCS publishes a DSCA EXORD and a CBRN Response EXORD to allow expedited 

force employment in support of domestic incidents.26

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

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

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

United States and its interests.”27 USNORTHCOM is designated as the command to conduct 

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

Columbia, Alaska, and U.S. territorial waters.28 

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

Component Commander (JFLCC) for domestic CM operations.29 ARNORTH, located at Fort Sam 

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

CBRN incidents.30 

D. Specialized DoD CBRN Responders

1. Joint Task Force Civil Support31

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

enforcement support,

32 and other civil support activities.33 Although JTF-CS is nominally linked to 

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

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

26 JP 3-28, supra note 3, at II-14.

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

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

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

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

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

22, 2013).

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

JTF-CS may assist with.

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

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

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

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

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

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

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

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

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

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

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

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

monitored by the combatant command responsible for the area in which they are conducted. 
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broader mission areas, the organization’s focus is far narrower: JTF-CS’s specific mission is CBRN 

DSCA.

34 

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

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

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

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

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

Created by the Unified Command Plan for 1999,35 JTF-CS provides both an operational capability 

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

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

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

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

DoD units and personnel executing CBRN CM operations, and it is a source of response plans for 

essential DoD support to the LFA. When directed, JTF-CS will deploy to the incident site and 

establish command and control of designated DoD forces, providing defense support of civil 

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

incident as well. The NRF provides the coordinating framework under which JTF-CS performs its 

mission.36

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

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

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

88 units at 35 installations across the U.S.37 DCRF units are used to support LFAs in the event of a 

CBRN incident and operate under the NRF when deployed to assist.38 

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

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

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

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

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

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

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

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

http://www.jtfcs.northcom.mil/JTFCS.aspx (last visited May 28, 2015).

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

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

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

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

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

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

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

expanded.

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

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

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

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

38 DCRF, JOINT TASK FORCE CIVIL SUPPORT, http://www.jtfcs.northcom.mil/DCRF.aspx (last visited Aug. 20, 2014).
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element is referred to as the NORTHCOM Situational Awareness Team (NSAT). The NSAT’s 

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

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

NSAT provides this information to the Commander, USNORTHCOM, to assist in his decisionmaking. Additionally, the information enables JTF-CS planners to perform predictive analysis 

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

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

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

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

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

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

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

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

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

type of support requested by the supported organization.

2. National Guard Weapons of Mass Destruction Civil Support Teams (WMD-CSTs)

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

validation, DoD is authorized a total of 57 WMD-CSTs.39 Recognizing that the National Guard is 

“forward-deployed for civil support,”40 the Secretary of Defense determined that the CSTs would be 

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

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

operations, administrative/logistics, medical, and survey. 

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

incident.41 Specifically, the mission of each state National Guard WMD-CSTs is to deploy to an 

area of operations and:

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

• Advise the local incident commander and civilian responders; and

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

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

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

Laboratory System (MALS)42 for nuclear, biological, and chemical (NBC) detection and the 

Unified Command Suite (UCS) vehicle for communications.43

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

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

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

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

visited Aug. 20, 2014). 

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

24, 2000).

41 Id.
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WMD-CST capabilities are specifically designed to complement civilian responders.44 Community 

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

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

General. Individual team members serve in a full-time, Title 32 National Guard status.45 If the 

teams are called to federal active duty, they will normally be attached to JTF-CS.46

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

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

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

• Activation under Title 10.47

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

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

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

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

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

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

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

follow-on or pre-positioned forces and work closely with CSTs.48

4. National Guard Homeland Response Force (HRF)

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

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

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

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

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

enhanced biological detection capability.

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

and control elements, and technical support assets.

44 Id. at 4.

45 Id. at 5; 10 U.S.C. § 12310(c)) (2015).

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

24, 2000).

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

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

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

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

17-163000.

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

http://www.arng.army.mil/news/publications/fs/2010/Subject_papers/National%20Guard%20CERFP%20Teams.pdf
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extraction, decontamination, emergency medical service, security, and command and control. 

There are ten HRFs (one per FEMA region).49

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

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

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

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

City, North Carolina, and three strike teams: the Atlantic Strike Team in Joint Base McGuire-DixLakehurst, New Jersey; the Gulf Strike Team in Mobile, Alabama; and the Pacific Strike Team in 

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

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

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

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

units have the organic authority to respond domestically to many types of hazardous materials 

(chemical) incidents under the National Contingency Plan, either as lead responders in the coastal 

zone or as an assisting agency to the Environmental Protection Agency (EPA) in the inland zone.50

The NSF may also deploy detachments to support overseas military environmental response 

operations.51

E. Special Legal Considerations During CBRN CM Operations

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

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

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

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

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

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

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

advocates should receive primary guidance concerning these issues through appropriate mission 

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

however, familiarize themselves beforehand with issues they may encounter in these areas, as well 

as primary federal and state authorities discussed below.

1. Quarantine/Isolation

Quarantine52 and isolation53 enforcement issues may arise most typically in pandemic scenarios. 

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

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

http://www.nationalguard.mil/features/ngps/2013/docs/National_Guard_Homeland_Response_Force_(Jan_2012)endof-year-review-v1.pdf.

50 See Chapter 2, National Framework for Incident Management, infra, for more background on the National 

Contingency Plan.

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

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

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

National Strategy for Pandemic Influenza: Implementation Plan 209 (GPO May 2006).
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isolation, and the power to enforce these is generally considered to be part of a jurisdiction’s police 

powers.54 Federal power to impose quarantine and isolation measures arises with attempts to halt or 

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

into the States or possessions, or from one State or possession into any other State or possession.”55

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

local level, DoD enforcement actions may be subject to the Posse Comitatus Act (PCA),56 absent an 

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

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

laws that allows direct DoD participation in law enforcement, subject to applicable limitations.57 It 

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

Presidential invocation of the Insurrection Act.

58 Typically, however, any DoD support provided to 

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

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

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

applicability should occur in all cases.59

2. Environmental Compliance

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

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

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

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

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

that NEPA applies to actions undertaken pursuant to the Act.60 There are some laws that streamline 

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

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

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

normally trigger more NEPA scrutiny.61 

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

208.

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

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

55 42 U.S.C. § 264(a) (2015). Additionally, in some situations, the federal government may intervene if it deems state 

and local control measures to be inadequate. 42 C.F.R. § 70.2 (2015).

56 18 U.S.C. § 1385 (2015).

57 42 U.S.C. § 97 (2015) specifically states “The quarantines and other restraints established by the health laws of any 

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

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

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

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

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

58 10 U.S.C. §§ 331–335 (2015).

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

compliance with the PCA.

60 42 U.S.C. § 5170c (2015).

61 42 U.S.C. § 5159 (2015).
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The handling and disposal of waste from CBRN CM decontamination operations will frequently 

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

would be the primary agency responsible for hazardous waste management.62 Additionally, 

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

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

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

FM 3-11.563 are sufficient for a specific CBRN CM operation, or whether those procedures should 

be modified pursuant to guidance from appropriate state agencies.

3. Health Care Licensure

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

greater the number of casualties, the more likely there will be requests for DoD medical personnel 

to provide care for the affected populace. Because DoD caregivers may not necessarily be 

licensed/credentialed in accordance with appropriate state laws, judge advocates must be prepared 

to render advice on federal and state licensure requirements during emergency support operations. 

Upon a command’s receipt of any mission assignments relating to the provision of health-related 

services (or even prior to receipt, if practicable), judge advocates on the operational and tactical 

levels should verify with higher headquarters that any health care licensure requirements have been 

met or waived by appropriate authorities, and that there is a common understanding between the 

various agencies involved (including DoD, ESF #8, and state and local agencies) regarding the 

statutory portability provisions discussed below.

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

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

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

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

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

affiliated with DoD, or any other location authorized by SECDEF.64 DoD has promulgated 

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

off-base duties.65 The various qualification/coordination with state licensing board requirements 

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

para. C.4.2.

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

Defense” and Title 32 forces in a § 502(f) status.66 National Guard members in state status may 

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

passed emergency management provisions containing portability of licensure provisions. For 

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

2013), available at FEMA.gov.

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

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

64 10 U.S.C. § 1094(d)(1) (2015).

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

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

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

66 10 U.S.C. § 1094(d)(2) and (d)(3).
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example, the Florida Governor’s proclamation of a major or catastrophic disaster provides authority 

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

disaster area according to the provisions specified in the proclamation.67 Similarly, California 

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

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

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

requests assistance.68 Although during a Stafford Act response DoD support will not normally be 

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

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

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

10 provisions.

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

Management Assistance Compact (EMAC)69 or Article VI of the Model EMAC legislation, which 

states:

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

participating political subdivision or the state evidencing qualification in a 

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

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

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

requesting assistance for the duration of the declared emergency or authorized 

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

executive of the participating political subdivision receiving the assistance may 

prescribe by executive order or otherwise.70

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

be cognizant of the particular state Governor’s limitations on this portability provision.

4. Mortuary Affairs

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

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

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

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

mass fatality management in the federal response,71 but in a catastrophic scenario, it is likely that 

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

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

 67 Fla. Stat. § 252.36(3)(c)1.

68 Cal. Bus. & Prof. Code § 900.

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

visited Jul. 8, 2013).

70 See EMAC LEGISLATION, http://www.emacweb.org/index.php/learnaboutemac/emac-legislation (last visited Aug. 20, 

2014).

71 DEPARTMENT OF HEALTH AND HUMAN SERVICES, EMERGENCY SUPPORT FUNCTION #8 – PUBLIC HEALTH AND 

MEDICAL SERVICES 8-2 (Jan. 2008), available at FEMA.gov.
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operations and transportation and storage of remains, among others.72 DoD personnel who are not 

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

provide) prior to engaging in decedent-related missions or activities.73

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

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

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

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

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

and the FBI.

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

73 Id. at VII-8.
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CHAPTER 7

COUNTERDRUG OPERATIONS

KEY REFERENCES:

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

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

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

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

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

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

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

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

Activities, June 2004.

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

July 31, 2002.

• Deputy Secretary of Defense Memorandum, Department of Defense International 

Counternarcotics Policy, December 24, 2008.

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

Agencies Performing Counternarcotics Activities, October 2, 2003.

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

Plan, February 13, 2003 (FOUO).

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

Activities”, October 23, 2002.

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

“Narcoterrorism”, April 12, 2004.

• Deputy Assistant Secretary of Defense /CN Memorandum, Counter Drug Support to CounterNarcoterrorist Activities (Memo to Chief, NGB) August, 26, 2005.

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

for Counterdrug Narcoterrorist Support, 2006.

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

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

• CNGB Memo, Implementation of Procedures for Handling Requests for Counterdrug 

Narcoterrorist Support, June 2, 2006.

• NGR 500-2/ANGI 10-801, National Guard Counterdrug Support, August 29, 2008.

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

Forces, June 13, 2005.

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

• Joint Pub 3-07.4, Joint Counterdrug Operations, August 14, 2013.

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

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

A. Introduction

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

enforcement agencies’ (LEA) counterdrug operations. Over the years, Congress increasingly 
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mandated support by DoD for counterdrug operations. This support now includes both Title 10

active component and full-time Title 32 National Guard engagement in the mission. DoD 

counterdrug operations1 are coordinated by the Deputy Assistant Secretary of Defense, Counter 

Narcotics & Global Threats (DASD-CN>), which is located within the Office of the Assistant 

Secretary of Defense for Special Operations and Low Intensity Conflict (ASD(SO/LIC)). The 

National Guard Counterdrug (CD) program is administered through the National Guard Bureau J32-

CD Division. This chapter examines support by both the active duty military and the National 

Guard.

B. Title 10 Support to Counterdrug Operations

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

Enforcement Officials.

2

 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.3 

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

part of the National Defense Authorization Act (NDAA) for Fiscal Years (FY) 1990 and 1991,4

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

maritime transit of illegal drugs into the United States.5 Section 1206 of the same act stated that the 

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

conduct military training exercises in drug interdiction areas.”6

 In FY 1991, Congress provided 

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

further below.7 

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

funds to DoD specifically for these operations.8 The money is disbursed through DASD-CN and it 

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

reimbursement is not required.

 1

 Counterdrug operations is defined as those active measures taken to detect, monitor, and counter the production, 

trafficking, and use of illegal drugs. Also called “CD” and counternarcotics (CN). See JOINT CHIEFS OF STAFF, JOINT 

PUB. 3-07.4, JOINT COUNTERDRUG OPERATIONS (14 August 2013) [hereinafter JP 3-07.4].

2

 10 U.S.C.A. §§ 371–382 (2015). See Chapter 4, infra.

3

 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.

4

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

5

 10 U.S.C. § 124 (2015).

6

 FY90 NDAA, supra note 4, § 1206.

7

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

FY91 NDAA]. 

8

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

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

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

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

National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, 122 Stat. 4356 (2008).
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1. National Defense Authorization Act of 1991

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

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

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

reauthorized it over the years.9

 As it is not permanent, judge advocates looking to use this authority 

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

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

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

Section 1004 authority for an additional three years (FY 2012 through 2014).10 Types of 

counterdrug support under this authority include the following:

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

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

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

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

amended))

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

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

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

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

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

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

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

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

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

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

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

• Ground reconnaissance support (reference b, section 1004(b)(10) (as amended))11

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.12

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

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

 9

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

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

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

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

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

amended.”

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

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

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

12 FY91 NDAA, supra note 7, § 1004 (as amended).
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U.S.C., Chapter 18 (with the exception of 10 U.S.C. §§ 375 and 376).13 Further, the Secretary 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.14 Lastly, judge advocates should be aware that 

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

Support to Civilian Law enforcement Agencies, do not apply to counternarcotics activities.15

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.16 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.17

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.18

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

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

3. Chairman of the Joint Chiefs of Staff Implementation (CJCSI)

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

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

 13 Id. § 1004(f). 10 U.S.C. § 375 directed the Secretary of Defense to promulgate regulations that prohibit direct 

participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar 

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

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

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

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

14 Id. § 1004(e).

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

Feb. 2013) [hereinafter DoDI 3025.21].

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

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

note 7, § 1004(a)(6).

17 10 U.S.C. § 124(a)(2) (2015).

18 Id. § 124(b) (2015).

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

commonwealth, or possession of the United States. 10 U.S.C. § 124(c) (2015).
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Chiefs of Staff, to the Commanders of the Unified Combatant Commands (with the authority to 

further delegate to flag and general officers within their chains of command).20 

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

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

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

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

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

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

reviewing a proposed operation.

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

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

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

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

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

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

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

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

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

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

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

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

that authority was delegated pursuant to CJCSI 3710.01B.

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

• there must be a valid counterdrug activities nexus;

• there must be a proper request;21

• the support must improve unit readiness or mission capability;

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

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

commitments at the same location.

USNORTHCOM reviews all domestic counternarcotics support requests. Commander, 

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

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

 20 See CJCSI 3710.01B, supra note 11, Encl. A, paras. 1 & 8.g. U.S. Northern Command (USNORTHCOM) further 

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

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

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

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

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

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

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

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

Domestic Law Enforcement Agencies Performing Counternarcotics Activities (2 Oct. 2003).
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determine whether the requested support is feasible, supportable, and consistent with DoD policy. 

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

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

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

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

consideration.

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

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

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

4. Counterdrug Support Task Forces

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

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

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

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

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

While the two JIATFs do provide some support to LEAs in their Areas of Responsibility (AORs),22

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

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

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

priorities outlined in the President’s National Drug Control Strategy.23 

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

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

specific areas of responsibility for JIATF-S, JIATF-W and JTF-N.24 While the JIATFs focus their 

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

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

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

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

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

California, was expanded in 1995 to cover all of CONUS.25 On 28 September 2004, Joint Task 

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

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

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

illegal drugs.

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

NORTHCOM’s AOR.

23 2013 National Drug Control Strategy, available at http://www.whitehouse.gov//sites/default/files/ondcp/policy-andresearch/ndcs_2013.pdf.

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

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

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

(last visited Aug. 20, 2014).
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Located at Fort Bliss, Texas, there are approximately 175 personnel assigned to JTF-N, including 

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

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

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

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

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

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

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

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

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

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

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

requests to JTF-N for review and consideration.

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

representatives from DoD, DHS, and DOJ components in other senior leadership positions. JIATFS conducts detection & monitoring operations in the Caribbean and Eastern Pacific source and 

transit zones.26 JIATF-W combats drug-related transnational organized crime to reduce threats in 

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

stability.

5. Coast Guard Law Enforcement Detachments

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

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

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

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

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

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

drug traffickers far from U.S. shores. Since the PCA does not apply to the Coast Guard,27 the PCA 

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

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

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

vessels subject to U.S. jurisdiction wherever they may be located.28 

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

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

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

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

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

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

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

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

28 14 U.S.C. § 89(a) (2015) states:

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

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

violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any 
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To capitalize on the Coast Guard’s expertise and uniquely broad maritime law enforcement 

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

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

surface vessel operating at sea in a drug interdiction area.29 

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

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

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

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

Guard’s jurisdiction.30 No fewer than 500 active duty Coast Guard personnel will be assigned 

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

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

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

enforce the laws listed under 10 U.S.C. § 374(b)(4)(A).31 U.S. Navy ships transporting Coast Guard 

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

Commandant, USCG, regarding use of warning shots and disabling fire.32

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

Commandant Instruction (COMDTINST) M16247.1F, Maritime Law Enforcement Manual.

33 The 

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

Drug Law Enforcement Act (MDLEA).34 The MDLEA prohibits any person on board an U.S. 

 

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.

29 10 U.S.C. § 379(a) (2015). 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.

30 10 U.S.C. § 379(b) (2015).

31 Id. § 379(c) (2015).

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

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

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

U.S.C. § 637 (2015), Stopping Vessels; Immunity from Firing at or Into Vessels.

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

(2013) (FOUO) (copy on file with CLAMO) [hereinafter MLEM]. The MLEM is also available at the Maritime 

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

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

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

CLAMO).

34 46 U.S.C. §§ 70501–70508 (2015). In 2010 Congress passed the Drug Trafficking Vessel Interdiction Act, 18 

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

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

from one State’s territorial sea into another) a felony punishable by up to fifteen years in prison. Although not an anti-
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vessel, or a vessel subject to the jurisdiction of the U.S., from knowingly or intentionally 

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

controlled substance.35 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.36

“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.37

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

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

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

memoranda of agreements to ad hoc verbal agreements.38

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

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

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

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

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

maritime counterdrug agreements typically address various aspects of enforcement including: 

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

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

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

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

DTVIA as well.

35 46 U.S.C. § 70503 (2015)

36 46 U.S.C. § 70502(b) (2015).

37 46 U.S.C. § 70502(c) (2015). But see United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012) (holding 

that 46 U.S.C. § 70502(c)(1)(e) of the Maritime Drug Law Enforcement Act exceeded Congress’s authority and was 

unconstitutional).

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

series (2012) (For Official Use Only) (copy on file with CLAMO) [hereinafter FARM]. The FARM is also available at 

the Maritime Operations Resources web portal at the CLAMO website (AKO account required). 
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U.S. air assets within the territory or territorial seas of foreign partners, patrols and pursuit of 

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

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

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

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

only be negotiated by following Department of State approval procedures.

C. National Guard Support to Counterdrug Operations

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

and counterdrug activities.” This includes:

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

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

counterdrug activities while not in federal service;

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

interdiction and counterdrug activities; and

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

Guard for the purpose of drug interdiction and counterdrug activities.39

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

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

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

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

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

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

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

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

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

an ideal location for a meth lab. The Anti-Deficiency Act40 (ADA) violation was based on the fact 

that the operation’s primary purpose was to investigate potential federal firearms violations—not 

narcotics violations.41

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

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

from or use drug trafficking to further their aims of drug trafficking.42

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

Defense. 32 U.S.C. § 112(a)(3) (2015). Further, equipment purchased, loaned, leased, or otherwise obtained using 32 

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

NATIONAL GUARD BUREAU, REG. 500-2/ANGI 10-801, NATIONAL GUARD COUNTERDRUG SUPPORT (29 Aug. 2008), 

paras. 7-10, 7-11 (29 August 2008) [hereinafter NGR 500-2].

40 31 U.S.C. § 1341 et seq. (2015).

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

42 JP 3-07.4, supra note 1 (defining narcoterrorism); NGR 500-2, supra note 39, glossary (defining 

counternarcoterrorism); Memorandum, Chief of the National Guard Bureau, Implementation of Procedures for 

Handling Requests for Counterdrug Narcoterrorist Support (2 Jun. 2006).
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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.43 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;

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

to training required under 32 U.S.C. § 502;44

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

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

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

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

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

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

conjunction with federal law enforcement agencies serve a state law enforcement purpose.45

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

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

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

and Governor, to DASD-CN>. DASD-CN> reviews the State Plan and, in coordination 

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

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

Defense.46

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

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

activities National Guard personnel may perform:

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

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

military functions of the member or unit;

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

activities;

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

and,

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

National Guard Bureau. NGR 500-2, supra note 39, para. 2-5.

44 See 32 U.S.C. § 502 (2015) (addressing annual drill and field exercise requirements of National Guard personnel).

45 Id. § 112(c) (2011).

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

Performing Counternarcotics Activities (2 Oct 2003).
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• 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.47

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

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

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

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

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

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

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

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

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

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

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

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

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

FTNGD status are employees of the federal government for purposes of Federal Tort Claims Act48

coverage.49 If the appropriate United States Attorney determines that a Title 32 National Guard 

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

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

substituted as the defendant in any FTCA litigation.50 Conversely, for actions not cognizable under 

the FTCA, such as a constitutional or Bivens51 action against a National Guard member in his or her 

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

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

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

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

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

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

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

judgments or sanctions in these cases, but may, in its sole discretion, do so upon request.52

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

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

fiscal oversight.53 This allows Title 32 National Guard personnel more flexibility than Title 10 

 47 32 U.S.C. § 112(b)(2)(C) (2015).

48 28 U.S.C. §§ 2671–2680 (2015).

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

50 See id. § 2679(b) (2011). See also NGR 500-2, supra note 39, para. 2-4a (“National Guard members acting within 

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

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

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

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

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

52 See 32 C.F.R. § 50.516.30(a)(8) (2015).

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

of carrying out drug interdiction and counterdrug activities, in accordance with federal statute, the Guardsmen were 
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forces in conducting domestic counterdrug missions. Nonetheless, the National Guard Bureau has 

imposed several policy restrictions on National Guard counterdrug operations in NGR 500-2.54 As 

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

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

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

circumstances, or when otherwise authorized.55 Exigent circumstances are defined as situations 

where immediate action is necessary to: protect police officers, National Guard personnel, or other 

persons from death or serious injury; prevent the loss or destruction of evidence; to prevent the 

escape of a suspect already in custody.56

The following missions have been approved for federal funding by the Secretary of Defense under 

32 U.S.C. § 112:

• Counterdrug Coordination, Liaison, and Management – Planning and coordinating state 

counterdrug supply and demand reduction support;

• Linguist Support – Providing transcription/translation of audio/video tapes, seized documents 

and other information media (active/real-time conversation monitoring or direct participation in 

interrogations is not allowed);

• Investigative Case and Analyst Support – Assisting law enforcement agencies (LEAs) in the 

establishment of counterdrug intelligence systems/databases and providing intelligence analysis 

support;

• Communications Support – Providing personnel to establish, operate and maintain 

communications stations, bases, and equipment in support of LEA counterdrug operations;

• Operational/Investigative Case Support – Providing assistance to LEAs in developing 

investigations and cases for prosecution;

• Engineer Support – Providing engineer support to LEAs and community organizations where 

the project has a counterdrug nexus;

• Subsurface/Diver Support – Conducting subsurface inspections of commercial vessel hulls 

within U.S. territorial waters or maritime ports of entry through the use of sidescan sonobuoys 

or divers to detect alien devices or containers attached to vessel hulls, or other underwater 

activities;

• Domestic Cannabis Suppression/Eradication Operations Support – Supporting LEA domestic 

cannabis suppression and eradication operations;57

• Transportation Support – Providing transportation (aerial, ground, or maritime) of LEA 

personnel/equipment, persons in LEA custody, seized property or contraband as part of on-

 

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

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

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

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

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

United States Code.

55 NGR 500-2, supra note 39, para. 2-1e.

56 Id.

57 Note that the destruction of contraband portion of the marijuana eradication mission is no longer authorized. See 

Memorandum, Assistant Secretary of Defense (SO/LI-C), Counternarcotics Mission Transfer Plan (13 Feb. 2003).
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going time-sensitive counterdrug operations, when security or other special circumstances 

reasonably necessitate National Guard support and there is a counterdrug nexus;

• Training LEA/Military Personnel – Training LEA/military personnel in military subjects and 

skills useful in the conduct of counterdrug operations or in the operation of equipment used in 

counterdrug operations;

• Surface Reconnaissance – Reconnoitering or performing area observation by land or water to 

detect and report illegal drug activities that include, but are not limited to, cultivated marijuana, 

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;58

• Drug Demand Reduction Support – Providing support to community based activities primarily 

designed to educate, train, or otherwise prevent drug abuse among youth, and providing 

information about drug abuse or drug abuse programs;

• Drug Demand Reduction Education and Programs – Supporting community based activities that 

focus on educational institutions, or otherwise have an educational institution as the primary 

sponsor, and are primarily designed to educate, train, or otherwise prevent drug abuse;

• Leadership Development – Supporting camps, retreats, seminars and programs, not primarily 

associated with educational institutions that focus on developing drug abuse prevention 

leadership skills in youth and adults; and

• Coalition Development – Assisting in the development of functioning community-based 

coalitions organized to reduce the illegal use of legitimate drugs and the use of illegal drugs.59

National Guard personnel carrying out the above missions serve in a support role to LEAs and will 

not be directly involved in law enforcement duties. Consequently, National Guard members will 

only be armed at the request of the supported law enforcement agency and after meeting certain 

criteria. A mission risk analysis will be conducted by The Adjutant General (TAG) of that State to 

determine whether National Guard personnel should be armed as a force protection measure.60

Since National Guard personnel providing counterdrug support under 32 U.S.C. § 112 are acting 

under State command and control, they operate under their own state Rules for the Use of Force 

(RUF). CJCSI 3121.01B, Encl. O, Counterdrug Support Operations Within U.S. Territory, is not 

applicable to the National Guard unless they are in federal service (Title 10 status). Sample 

National Guard RUF cards are on file with CLAMO. Consequently, judge advocates must be aware 

of the application of the law of the state in which operations are being conducted.61

If National Guard personnel are armed, NGR 500-2 requires the State’s TAG to consider the 

following:

 58 An additional requirement for aerial reconnaissance (otherwise known as “Mission 5a”) is that at least one person 

involved in either the operation or training of the mission must attend the National Counterdrug Civil-Military Institute 

(NICI) Mission 5a course. NGR 500-2, supra note 39, para. 5-16.

59 See id., para. 2-7 for a detailed description of what each mission entails.

60 Id. para. 3-6. This authority may be delegated in accordance with para. 3-6(b) of NGR 500-2.

61 See, e.g. Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the 

Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1.
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• All personnel authorized to carry firearms must have received qualification training and testing 

on the type of firearm to be carried, in accordance with current regulations. Training will 

include instruction on safety functions, security, capabilities, limitations, and maintenance of the 

firearms. Testing will include qualification firing in accordance with current qualification 

standards;

• Arms and ammunition will be secured at all times in accordance with appropriate regulations 

and policies. Rounds will be chambered only on order of the commander/senior officer/senior 

noncommissioned officer present, in coordination and in conjunction with the supported LEA, 

except in cases of exigent circumstances;

• Firearms will not be discharged from moving vehicles (except in self-defense or to defend other 

persons);

• Pilots in command of aircraft have the authority to override an order to chamber rounds while 

on board an aircraft;

• Possession or use of non-issued or personally owned firearms and/or ammunition during 

counterdrug support operations is prohibited. National Guard personnel will not accept offers of 

weapons or ammunition from LEAs except for use on LEA operated ranges for training 

purposes only. The only weapons used for counterdrug support operations will be federally 

owned military weapons listed on the unit’s property books;

• Federally owned military weapons will not be secured in private dwellings at any time;

• The counterdrug coordinator will direct additional weapons training when, in his judgment, it is 

advisable, regardless of the level of training indicated by training and qualification records;

• National Guard units may use minimum force for the following purposes:

• To defend themselves or other persons;

• To protect property, or prevent loss/destruction of evidence;

• To make arrests if they have arrest powers pursuant to state law and exigent circumstances 

require such action.

• The discharge of any firearm is always considered deadly force; and

• National Guard members will be thoroughly briefed on the Rules of Engagement and Use of 

Force prior to the commencement of any operation.62

 62 NGR 500-2, supra note 39, para. 3-6.
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MILITARY SUPPORT OPERATIONS

KEY REFERENCES:

• 10 U.S.C. § 422 - Use of Funds for Certain Incidental Purposes.

• 10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside DoD.

• 10 U.S.C. § 2554 - Equipment and other services: Boy Scout Jamborees.

• 32 U.S.C. § 508 - Assistance for Certain Youth and Charitable Organizations.

• 50 U.S.C. § 404e - National Mission of National Geospatial-Intelligence Agency.

• HSPD-7 - Critical Infrastructure, Identification, Prioritization, and Protection, December 17, 

2003.

• PDD-62 - Protection Against Unconventional Threats to the Homeland and Americans 

Overseas, May 22, 1998.

• HSPD 15/NSPD 46 - U.S. Strategy and Policy in the War on Terror (Classified), March 6, 2006

• National Oil and Hazardous Substances Contingency Plan, 40 C.F.R. § 300.

• EO 12333 - United States Intelligence Activities (as amended by EO 13355 and 13470).

• EO 12580 - Superfund Implementation (as amended by EO 12777, 12580, 13286, and 13308).

• EO 12656 - Assignment of Emergency Preparedness Responsibilities (as amended by EO 

13074, 13286).

• EO 12657 - Federal Emergency Management Agency Assistance In Emergency Preparedness 

Planning At Commercial Nuclear Power Plants .

• DoDD 1100.20 - Support and Services for Eligible Organizations and Activities Outside the 

Department of Defense, April 12, 2004.

• DoDD 3020.26 - Department of Defense Continuity Programs, January 9, 2009.

• DoDI 3025.20 - Defense Support of Special Events, April 6, 2012.

• DoDD 3025.13 - Employment of Department of Defense Resources in Support of the United 

States Secret Service (USSS), Department of Homeland Security (DHS) October 8, 2010.

• DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012.

• DoDD 3150.08 - DoD Response to Nuclear and Radiological Accidents, January 20, 2010.

• DoD 3150.8-M - Nuclear Weapon Accident Response Procedures (NARP), August 22, 2013.

• DoDD 4500.9E - Transportation and Traffic Management, September 11, 2007.

• DoDD 5105.60 - National Geospatial-Intelligence Agency (NGA), July 29, 2009.

• DoDD 5230.16 - Nuclear Accident and Incident Public Affairs (PA) Guidance, December 20, 

1993.

• DoDD 6000.12E - Health Service Support, January 6, 2011.

• National Military Strategy to Combat Weapons of Mass Destruction (CJCS), February 13, 2006.

• AR 95-1 - Flight Regulations, March 11, 2014.

• AR 500-3 - U.S. Army Continuity of Operations Program Policy and Planning, April 18, 2008.

• NGR 500-1/ANGI 10-8101, National Guard Domestic Operations, June 13, 2008.

• Defense Threat Reduction Agency, Preliminary Report on Literature Search for Legal Weapons 

of Mass Destruction Seminars, March 26, 2002.
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I. Introduction - Military Support to Special Events

The Department of Defense (DoD) supports a wide variety of special events held within the United 

States. Judge advocates must carefully analyze requests, approvals, and types of support when 

advising commanders on these kinds of operations. In addition to the sources cited within, the 

Center for Law and Military Operations (CLAMO) at the Judge Advocate General’s Legal Center 

and School has numerous after action reports providing lessons learned from support provided to 

domestic events that judge advocates will find very helpful.

There are two general types of DoD support to special events: support to designated special events 

under statutory authority, and community support as part of Innovative Readiness Training (IRT). 

Designated special events include the Boy Scout Jamboree and “National Special Security Events” 

(NSSEs).

1

 Examples of NSSEs include major sporting events such as the Olympics and the Super 

Bowl, Presidential inaugurations, and international meetings like the 2012 NATO Summit. The 

IRT program allows commanders to conduct training in the civilian community, but the benefit to 

the community must be incidental to the training, and the training must provide benefit to the 

participating unit or individual.2

A. Support to Special Events or Organizations

Congress has specifically authorized military support to certain events, such as the Olympics or 

World Cup soccer.3 Additionally, support to a variety of unspecified designated National Special 

Security Events may be approved in accordance with DoDI 3025.20.4 

1. Types of Events and Support from DoD/National Guard

a. Sporting Events

Support for certain sporting events is specifically authorized by 10 U.S.C. § 2564. The authorizing 

legislation specifically mentions the World Cup Soccer Games, the Goodwill Games, and the 

 1

 32 C.F.R. § 183.3 defines National Special Security Event as “An event of national significance as determined by the 

Secretary of Homeland Security. These national or international events, occurrences, contests, activities, or meetings, 

which, by virtue of their profile or status, represent a significant target, and therefore warrant additional preparation, 

planning, and mitigation efforts. The USSS, FBI, and FEMA are the Federal agencies with lead responsibilities for 

NSSEs; other Federal agencies, including DoD, may provide support to the NSSE if authorized by law.”

2

 Memorandum from Office of the Assistant Secretary of Defense, Innovative Readiness Training (IRT) Requirements 

for Certification of Non-Competition, (Apr. 30, 2002) [hereinafter DoD IRT Policy]; Memorandum from the Assistant 

Secretary of the Army (Manpower and Reserve Affairs), Innovative Readiness Training (IRT) (Mar. 28, 2000) 

[hereinafter Army IRT Policy].

3

 10 U.S.C. § 2564 (a) (2015) states: 

Security and Safety Assistance. At the request of a federal, state, or local government agency responsible for 

providing law enforcement services, security services, or safety services, the Secretary of Defense may authorize 

the commander of a military installation or other facility of the Department of Defense or the commander of a 

specified or unified combatant command to provide assistance for the World Cup Soccer Games, the Goodwill 

Games, the Olympics, and any other civilian sporting event in support of essential security and safety at such event, 

but only if the Attorney General certifies that such assistance is necessary to meet essential security and safety 

needs.

4

 U.S. DEP’T OF DEFENSE, INST. 3025.20, DEFENSE SUPPORT OF SPECIAL EVENTS, Encl. 2, para. 2.c. (6 Apr. 2012) 

[hereinafter DoDI 3025.20]. 
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Olympics, but other events may be authorized when special security and safety needs exist.5 Other 

sporting events previously supported include the World Alpine Ski Championships and the Special 

Olympics. Military forces provided extensive support during the 1996 and 2002 Olympic Games 

held in Atlanta, Georgia and Salt Lake City, Utah, respectively.6

 With the establishment of U.S. 

Northern Command (USNORTHCOM) on September 11, 2003, coordination for similar future 

support missions is now assigned to USNORTHCOM.

b. Non-athletic Events

The Secretary of Defense may also direct that non-athletic events receive support. Non-athletic 

events include large events such as Presidential Inaugurations and International Summits hosted 

domestically. Many of these events are designated as NSSEs.

(1) Boy Scout Support

10 U.S.C. § 2554 permits support for Boy Scout Jamborees.7

 This provides the Secretary of 

Defense authority to lend or otherwise provide the Boy Scouts of America (BSA) with a variety of 

equipment to include cots, flags, tents, and other equipment such as expendable medical supplies 

without reimbursement. This support may be provided to the BSA in support of both national and 

world scout jamborees.8

 Further, if the Jamboree is conducted on a military installation, the 

Secretary may authorize logistical and personnel support on the military installation.9

 Certain 

expenses such as those associated with transportation must be reimbursed and in some cases a 

payment bond must be secured before the support is rendered.10 

c. National Guard Assistance for Certain Youth and Charitable Organizations

National Guard members and units, in conjunction with required military training,11 may provide 

services to certain eligible youth and charitable organizations.12 The eligible organizations are:

• Boy and Girl Scouts of America;

• Boys and Girls Clubs of America;

• Young Men’s and Young Women’s Christian Associations (YMCA/YWCA);

• Civil Air Patrol;

• U.S. Olympic Committee;

• Special Olympics;

• Campfire Boys and Girls;

 5

 10 U.S.C. § 2564(a) (2015).

6

 See U.S. Forces Command, Slide Presentation, 2001 Winter Olympic Games, Joint Task Force-Olympics FORSCOM 

Augmentation (22 Feb. 2001) [hereinafter FORSCOM Presentation].

7

 10 U.S.C. § 2554 (2015). Note that the section previously numbered as 2554 has been changed to 10 U.S.C. § 2564 

and relates to the provisioning of DoD support to certain athletic events. 

8

 10 U.S.C. § 2554(a) (2015).

9

 10 U.S.C. § 2554(g) (2015).

10 10 U.S.C. § 2554(b–f) (2015).

11 32 U.S.C. § 502 (2015).

12 Id. § 508 (2015).
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• 4-H Clubs; and

• Police Athletic Leagues.13

Authorized services include ground transportation, administrative support, technical training, 

emergency medical assistance, and communications services. The Special Olympics are 

specifically authorized air transportation.14

In providing authorized services, National Guard facilities and equipment including vehicles leased 

to the National Guard and the DoD may be used.15 As with other types of domestic support 

operations, the provision of services must not adversely affect the quality of National Guard training 

or otherwise interfere with the member or unit’s ability to perform military functions. Further, 

training costs should not significantly increase as a result, and National Guard personnel should 

enhance their military skills as a result of their participation. Lastly, the requested services must not 

be commercially available. If services are available commercially, the commercial entity affected 

can waive this requirement in writing.16 

(1) National Guard Civilian Youth Opportunities Program

The SECDEF, acting through the Chief, National Guard Bureau, conducts a National Guard civilian 

youth opportunities program, known as the “National Guard Challenge Program.”17 Intended to 

improve the life skills and employment potential of civilian youth, the Challenge Program is a youth 

program directed at helping children attain a high school diploma, providing job training and 

placement, improving personal and social skills, and providing health and hygiene education and 

physical training.18 Soldiers work with civilian leaders to provide a comprehensive support package 

ranging from choosing appropriate clothing to attending residential training facilities.

The Challenge Program uses National Guard personnel to provide military-based training, including 

supervised work experience in community service and conservation projects, to civilian youth who 

have not graduated from a secondary school.19 To carry out the Program, the SECDEF enters into 

an agreement with a state governor or, in the case of the District of Columbia, with the commanding 

general of the District of Columbia National Guard.20 Usually, the governor will delegate the 

establishment, organization and administration of the Program to the state Adjutant General (TAG).

The Challenge Program is not cost-free.21 Beginning in 2009, a state must now provide at least 25

percent of the annual Challenge Program operating costs. National Guard equipment and facilities, 

including U.S. military property issued to the Guard, may be used to carry out the Challenge 

 13 Id. § 508(d) (2011).

14 Id. § 508(b) (2011).

15 Id. § 508(c) (2011).

16 Id. § 508(a) (2011).

17 32 U.S.C. § 509 (2015).

18 Id. § 509(a) (2015).

19 Id. § 509(g) (2015).

20 Id. § 509(c) (2015).

21 Id. § 509(d) (2015).
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Program.22 A state may supplement its cost-share out of other resources, including gifts. It is also 

permissible for the Program to accept, use, and dispose of gifts or donations of money, other 

property, or services.23

Individuals selected for training in the National Guard Challenge Program may receive the 

following benefits: allowances for travel, personal and other expenses; quarters; subsistence; 

transportation; equipment; clothing; recreational services and supplies; and, a temporary stipend 

upon the successful completion of the training (GS-2 minimum rate of pay under 5 U.S.C. § 

5332).24 A person receiving training under the Challenge Program is considered a U.S. employee 

for the purposes of Title 5 (relating to compensation of Federal employees for work injuries) and 

Title 28, and any other provision of law relating to federal liability for tortious conduct of 

employees.25

d. National Special Security Events

Pursuant to Homeland Security Presidential Directive 7 (HSPD-7), the Secretary of the Department 

of Homeland Security (DHS) makes the final determination as to whether to designate an event as a 

national special security event (NSSE).26 This determination is made after consultation with the 

Homeland Security Council.27 Other events may be categorized through the use of the Special 

Events Assessment Rating (SEAR) process used by the Department of Homeland Security to 

address events that do not rise to the level of an NSSE.28 Military assets provided in support of 

NSSEs may include explosive ordnance disposal (EOD) teams, technical escort units (TEU),29

geospatial intelligence support,30 and chemical, biological, radiological, and nuclear threat 

identification and response forces.31

The designation of an NSSE by the Secretary, DHS, is based upon an analysis of several factors. 

These factors include: the anticipated attendance of United States and foreign officials, the size of 

the event, and the significance of the event.32 Certain events not designated as NSSEs may still 

receive DoD support in accordance with DoDD 3025.20. The G-8 meeting of 2004 is an example 

of an event approved for support but not designated as an NSSE.

 22 Id. § 509(h) (2011).

23 Id. § 509(j) (2011).

24 Id. § 509(g) (2011).

25 Id. § 509(i) (2011).

26 HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 7, CRITICAL INFRASTRUCTURE IDENTIFICATION, PRIORITIZATION,

AND PROTECTION para. 26 (Dec. 17, 2003) [hereinafter HSPD-7], available at: 

http://emilms.fema.gov/IS700aNEW/NIMS0102040t1.htm.

27 Id.

28 DHS, DHS RISK LEXICON 56 (Sept. 2010), available at: https://www.dhs.gov/xlibrary/assets/dhs-risk-lexicon2010.pdf.

29 TEU teams are capable of detecting, rendering safe, and transporting chemical and biological devices.

30 10 U.S.C. § 442 (2015), National Geospatial-Intelligence Agency, Missions.

31 DoDI 3025.20, supra note 4, Encl. 3, 2.b.(7).

32 THE STATE OF THE UNION – A NATIONAL SPECIAL SECURITY EVENT, http://www.dhs.gov/blog/2010/01/27/stateunion-national-special-security-event (last visited Aug. 20, 2014).
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For a list of designated NSSEs in recent years, see Table 7-1 below. 

Event Location Date 

2009 Presidential Inauguration Washington, DC Jan. 20, 2009 

2009 Presidential Address to Congress Washington, DC Feb. 24, 2009 

2009 G-20 Pittsburgh Summit Pittsburgh, PA Sep. 24–Sep. 25, 2009 

2010 State of the Union Address Washington, DC Jan. 27, 2010 

2010 Nuclear Security Summit Washington, DC Apr. 12–13, 2010 

2011 State of the Union Address Washington, DC Jan. 25, 2011 

Asia Pacific Economic Coop Summit Honolulu, HI Nov. 12–Nov.13, 2011 

2012 State of the Union Address Washington, DC Jan. 24, 2012 

38th G8 Summit Chicago, IL May 19-21, 2012 

NATO 2012 Chicago Summit Chicago, IL May 19-21, 2012

2012 Republican National Convention Tampa, FL Aug. 27-31, 2012 

2012 Democratic National Convention Charlotte, NC Sep. 3-6, 2012 

2013 Presidential Inauguration Washington, DC Jan. 20, 2013 

2013 State of the Union Address Washington, DC Feb. 12, 2013

2014 State of the Union Address Washington, DC Jan. 28, 2014

2014 Super Bowl E. Rutherford, NJ Feb. 2, 2014

2014 Boston Marathon Boston, MA Apr. 21, 2014

2015 State of the Union Address Washington, DC Jan. 20, 2015

Table 7-1 Recent Designated NSSEs

2. Requests for Support and Coordination 

a. Processing Requests for Support

Requests for assistance (RFAs) to a special event may be made to DoD by Federal, State, or local 

authorities, or a qualifying entity.33 Often, this means that local police or a FBI field office requests 

the military support. 

If the initial engagement is not a written RFA, representatives of the Assistant Secretary of Defense 

for Homeland Defense and Americas’ Security Affairs (ASD(HD & ASA)) and the Joint Staff will 

confer to determine actual requirements. This may involve meetings between DoD representatives 

and event organizers, civil authorities, or qualifying entities. Once an RFA is received, it will be 

sent to the ASD(HD&ASA) and the CJCS simultaneously for staffing and recommendation. 

 

33 DoDI 3025.20, supra note 4, Encl. 3. A qualifying entity is a non-governmental organization that DoD can assist by 

virtue of a statute, regulation, policy, or other approval by SECDEF or an authorized designee. Id., Glossary.
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Additional engagement with the requestor may be required to quantify the scope of the support 

requested.34 If the authority for the event is 10 U.S.C. § 2564 (sporting event support), and safety 

and security support is sought, the Attorney General must certify that the DoD assistance is 

necessary to meet “essential security and safety needs” (unless an event excepted under the statute, 

such as the Special Olympics, is involved).

35

For NSSEs and events that may require the employment of military forces and centralized 

command and control, the Chairman, Joint Chiefs of Staff (CJCS) will issue a planning order 

requesting a Combatant Commander initiate planning and notify potential supporting commands 

and the Chief, NGB, as appropriate. When possible, established CJCS-directed planning procedures 

will be used by the Combatant Commander to provide an assessment and request for forces. The 

NSSE designation process generally is initiated by a formal written request to the Secretary of 

Homeland Security by the State or local government hosting the event. In other situations where 

the event is federally sponsored, an appropriate Federal official will make the request. As stated 

above, the Secretary of Homeland Security makes the final determination to designate an event as 

an NSSE pursuant to Homeland Security Presidential Directive 7.36

b. Types of Support37

Support that the DoD can provide includes, but is not limited to: 

• Aviation

• Communications 

• Security equipment

• Operations and command centers 

• Explosive ordnance detection and disposal 

• Logistics (transportation, temporary facilities, food, lodging)

• Ceremonial support (in coordination with the ASD(PA))

• Chemical, biological, radiological, and nuclear threat identification, reduction, and response 

capabilities

• Incident response capabilities (in coordination with the Department of Justice, DHS, the 

Department of Health and Human Services, and in consultation with appropriate State and 

local authorities)

c. Funding Support

Military support may be provided on a reimbursable or non-reimbursable basis depending on the 

authority involved. Logistical and security support for certain international sporting competitions 

may be paid, in part, from the support for international sporting competitions (SISC) defense 

account.38 Events which may be funded out of the SISC account include the Special Olympics, the 

 34 Id.

35 10 U.S.C. § 2564 (2015).

36 DoDI 3025.20, supra note 4, Encl. 3.

37 Id.

38 Id.; Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996).
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Paralympics, and other events meeting the criteria of paragraph 2.b.(5)(d) of Enclosure 3 in DoDI 

3020.25. 

If there is no separate funding or authority for the DoD to provide the type of support requested, the 

support must be approved by the Secretary of Defense and must be provided on a reimbursable 

basis in accordance with the Economy Act or other applicable reimbursement authorities.39 Note 

that for a single event, certain types of support may require reimbursement, and other types of 

support may not. For example, essential safety and security support to the Olympics need not be 

reimbursed, but other logistical support provided to the same event must be reimbursed.40

Congress has provided specific appropriations to fund support to NSSEs. In addition to general 

funding for NSSEs that began in FY2006, Congress has also designated funds for specified NSSEs 

since 2004. Examples of NSSEs receiving specific appropriations include the Presidential 

Nominating Conventions for both parties in 2004 and 2008.

B. Innovative Readiness Training

Through innovative readiness training (IRT), military units and personnel can sometimes be used to 

assist eligible organizations and activities in “addressing community and civic needs” in the United 

States, to include U.S. territories and possessions.41 The purpose of IRT is to build upon the longstanding tradition of the Armed Forces of the United States, acting as good neighbors at the local 

level, in applying military personnel to assist worthy community needs.

42 Although IRT missions 

simultaneously support the unit and the local community, regulations require that steps be taken to 

ensure that IRT activities do not impermissibly compete with local commercial enterprises. This is 

accomplished by either a determination that there is no reasonably available commercial alternative, 

or, by providing a certification of non-competition from the requesting official that “the commercial 

entity that would otherwise provide the services agrees to the provision of such services by the 

armed forces.”43

IRT projects include, but are not limited to, constructing rural roads, providing medical and dental 

care to medically underserved communities, and performing small building and warehouse 

construction or re-assembly. While active components may conduct IRT programs, the National 

Guard and Reserve elements primarily provide this support.

 39 DoDI 3025.20, supra note 4, Encl. 3. See also 10 U.S.C. § § 372-374, 377, 2012, 2553-2555, and 2564 (2015); 31 

U.S.C. §§ 1535, 1536 (2015).

40 10 U.S.C. §§ 2564(a), 2564(b) (2015).

41 U.S. DEP’T OF DEFENSE, DIR. 1100.20, SUPPORT AND SERVICES FOR ELIGIBLE ORGANIZATIONS AND ACTIVITIES 

OUTSIDE THE DEPARTMENT OF DEFENSE para. 4.1 (12 Apr. 2004) [hereinafter DoDD 1100.20]. DoDD 1100.20 

implements 10 U.S.C. § 2012.

42 Id. See Lieutenant Commander W. Kent Davis, Innovative Readiness Training Under 10 U.S.C. § 2012: 

Understanding the Congressional Model for Civil-Military Projects, ARMY LAW., Jul. 2001, at 21, for additional 

background. Military training in support of certain community and charitable organizations can also be accomplished 

through 32 U.S.C. § 508 and U.S. DEP’T OF DEFENSE, DIR. 3025.17, CIVIL-MILITARY ASSISTANCE FOR CERTAIN YOUTH 

AND CHARITABLE ORGANIZATIONS (16 Dec. 2004).

43 DoDD 1100.20, supra note 41, paragraph 4.4.1.2.
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1. Innovative Readiness Training Procedures

Military units may provide this support to certain eligible organizations in the United States, its 

territories and possessions, and the Commonwealth of Puerto Rico.44 Such assistance must be 

provided incidental to training or be otherwise authorized by law.45 Assistance is primarily 

provided by combat service support units, combat support units, and personnel serving in the areas 

of health-care services, general engineering and infrastructure support, and assistance services.46

a. Requests for Assistance

Requests for assistance must come from a “responsible official” of an “eligible organization.”47 A 

responsible official is “an individual authorized to represent the organization or activity regarding 

the matter of assistance to be provided.”48 There are three categories of eligible organizations. Any 

federal, regional, state, or local government entity is an eligible organization.49 Eligible 

organizations also include youth and charitable organizations as specified in 32 U.S.C. § 508. 

Finally, an entity can be approved as an eligible organization by the Secretary of Defense on a caseby-case basis.50

The request for IRT assistance must specify that the requested assistance is not reasonably available 

from a commercial entity.51 An organization may request Innovative Readiness Training assistance 

from a military unit or individual members. In determining whether assistance from a commercial 

entity is reasonably available, it is permissible to consider whether the requesting organization 

“would be able, financially or otherwise, to address the specific civic or community need(s) without 

the assistance of the Armed Forces.”52 If commercial assistance is reasonably available, the 

requesting individual must certify the commercial entity agrees to the provision of such services by 

the military.53 A good resource for materials related to IRT is http://irt.defense.gov/. This site 

maintains current forms and other items of interest to those seeking to file or process an IRT 

application.

b. IRT Provision Requirements

Requested IRT assistance must meet three requirements. First, it must be related to military 

training. In the case of a military unit, the requested assistance must accomplish valid unit training 

requirements (there is an exception to this particular requirement discussed below). In the case of 

assistance provided by an individual military member, the requested assistance must involve tasks 

directly related to the individual’s military occupational specialty (MOS). Second, the provision of 

 44 10 U.S.C. § 2012 (2015); DoDD 1100.20, supra note 41.

45 10 U.S.C. § 2012(a) (2015).

46 DoDD 1100.20, supra note 41, para. 4.2.

47 10 U.S.C. § 2012(c)(1) (2015).

48 DoDD 1100.20, supra note 41, para. 4.4.1.1.

49 10 U.S.C. § 2012(e)(1) (2015).

50 10 U.S.C. § 2012(e)(3) (2015).

51 10 U.S.C. § 2012(c)(2) (2015).

52 DoDD 1100.20, supra note 41, para. 4.4.1.2.

53 10 U.S.C. § 2012(c)(2); DoDD 1100.20, supra note 41, para. 4.4.1.2.
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assistance cannot adversely affect the quality of training or otherwise interfere with a unit or its 

members’ abilities to perform military functions. Third, the provision of assistance cannot result in 

a significant increase in training costs.54

There is one exception to the requirement that requested IRT assistance must accomplish valid unit 

training requirements. In cases where the assistance consists primarily of military manpower and 

will not exceed 100 man-hours, the assistance need not accomplish unit training requirements.55 

The second and third requirements discussed above must still be met. In such cases, volunteers will 

meet manpower requests, and assistance other than manpower will be extremely limited.56 Military 

vehicles may only be used, for example, to provide transportation of personnel to and from the work 

site.57 

2. Legal Considerations for IRT Projects

a. Approval Authority for IRT Projects58

All IRT submission packets must be approved by a general officer. IRT projects that seek 

additional funding from OSD, seek support for any non-governmental organization not specified in 

32 U.S.C. § 508, or seek to reallocate IRT funds to another IRT project require approval by the 

Office of the Assistant Secretary of Defense for Reserve Affairs (OASD/RA). Major Commands 

(MAJCOMs) otherwise have the authority to approve Army-funded IRT projects not meeting the 

criteria above submitted by qualifying entities. This approval authority may be delegated to 

commanders of major subordinate commands. 

b. Processing Requests for IRT Projects

(1) How the IRT Project Request Process Begins

First, a representative from an eligible organization will approach a commander or command 

representative with a concept for a project. The project concept must address a need that is not 

otherwise being met. The commander will evaluate the project to determine whether it is 

compatible with unit or individual training requirements. If the project is compatible, the 

commander then must determine the feasibility of using the project as a training exercise.

(2) Contents of IRT Project Requests

If the commander determines the proposed IRT project is feasible as a training exercise, the 

commander works with the requestor to assemble the IRT project request. An IRT project request 

must contain a cost analysis of the proposed project. The cost analysis includes total program costs 

and identifies whether the costs are borne by military department accounts or defense-wide 

accounts. The requesting commander must certify that the proposed project will not increase the 

cost of the training above the amount it would cost if conducted independent of an IRT project. The 

 54 10 U.S.C. § 2012 (d)(1)(C) (2015).

55 10 U.S.C. § 2012 (d)(2) (2015).

56 DoDD 1100.20, supra note 41, para. 4.4.2.1.3.

57 Id. (note that the use of military aircraft is prohibited in these instances).

58 Army IRT Policy, supra note 2, at 2.
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IRT project request must contain a certification of non-competition. The certification of noncompetition must determine that the requested assistance is not reasonably available from a 

commercial entity, or the existing commercial entities agree to the provision of such services by the 

military. The IRT project request must also contain an environmental assessment.59

(3) IRT Request Review

All IRT project requests must be reviewed for full compliance with applicable guidelines and law. 

All IRT project requests must be reviewed and endorsed by a Staff Judge Advocate or legal officer, 

a U.S. Property and Fiscal Officer or Federal Budget Officer, and Plans, Operations and Training 

officials.60 Depending on the nature of assistance requested, additional endorsements may be 

required from medical, dental, or nursing officials.61 If applicable, the command may request 

endorsement from the state Adjutant General of the project state or intergovernmental agencies.62

c. Claims Arising From IRT Projects

Claims involving Active Duty, Reserve, or National Guard Soldiers that arise from IRT projects are 

cognizable under the Federal Tort Claims Act (FTCA) despite the fact that a non-DoD or private 

entity derives a benefit from the project. IRT projects are conducted in a federally funded training 

status under Title 10 or Title 32 status.63 Community assistance undertaken by National Guard 

units is accomplished in a state active duty (SAD) status and is not IRT. Therefore, claims 

generated incident to projects accomplished in SAD status are solely a state responsibility.

II. Miscellaneous Domestic Support Operations

Domestic support operations supplement the efforts and resources of state and local governments, 

and can include a variety of lesser-known types of support. This chapter will address these areas 

that may not frequently arise in domestic support operations, but nonetheless contain significant 

legal implications and thus are worthy of discussion.

A. Disaster and Domestic Emergency Assistance

1. Military Assistance to Safety and Traffic

The Military Assistance to Safety and Traffic (MAST) program is designed to “assist civilian 

communities in providing medical emergency helicopter services beyond the capability of the 

community.”64 The Secretary of the Army serves as the DoD Executive Agent for the MAST 

program.65 In response to a request from civilian authorities, military medical helicopter units may 

provide emergency air evacuation and recovery assistance if local civilian resources are not 

 59 See Army IRT Policy, supra note 2, at. 2. IRT medical project proposals have additional submission requirements.

60 Id. at 1.

61 Id. at 2.

62 Id.

63 Id. at 1.

64 U.S. DEP’T OF DEFENSE, DIR. 4500.9E, TRANSPORTATION AND TRAFFIC MANAGEMENT, E4.2.1 (11 Sept. 2007) 

[hereinafter DoDD 4500.9E]. 

65 Id. para. 1.4.
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available or are not sufficient for response to emergencies.66 Circumstances for which military 

support is envisioned are:67

• Those of a life-saving nature;

• Those specifically authorized by statute;

• Those in direct support of a DoD Mission;

• Those requested by an Agency head pursuant to 31 U.S.C. §§ 1535–36;

• Medical evacuations pursuant to the provisions of DoDI 6000.11, “Patient Movement,” May 4, 

2012;68 and,

• As authorized and funded pursuant to DoDR 7000.14-R, “Department of Defense Financial 

Management Regulations (FMRs), Volumes 11A, 11B, and 15.69

Military support is subject to the following limitations:

• Assistance may be provided only in areas where military units able to provide such assistance 

regularly are assigned.

• Military units shall not be transferred from one area to another to provide such assistance.

• Assistance may be provided only to the extent that it does not interfere with the performance of 

military missions.

• The provision of assistance shall not cause any increase in funds required for DoD operation.

• The Secretary of Defense, or designee, shall be the final decision authority for commitment of 

DoD resources to the MAST program.

• DoD costs incurred in the program shall be funded by the Military Departments within their 

annual training program.70

Additionally, military units shall not perform emergency medical evacuation missions if support can 

be provided by civilian contractors.71

DoD assets will provide interim support until civilian assets become available.72 Medical helicopter 

units must operate within their allocated training hour program.73 The Secretary of Defense or his 

or her designee is the final decision authority for commitment of resources to the MAST program.74 

2. Search and Rescue Operations (SAR)

The U.S. Air Force, U.S. Pacific Command (USPACOM), and U.S. Coast Guard all have 

significant day-to-day SAR responsibilities. For typical SAR cases, the USAF is the recognized 

SAR coordinator for the continental U.S. aeronautical SAR Region, USPACOM is the recognized 

 66 Id. para. E.4.2.1.

67 Id. para. E.4.3.1.

68 Id. para. E.4.3.3.1.

69 Id. para. E.4.3.2.

70 Id. paras. E.4.2.3.1 - E4.2.3.6.

71 Id. para. E.4.2.1.

72 Id. E.4.2.2.

73 Id. E.4.2.3.6.

74 Id. E.4.2.3.5.
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SAR coordinator for the Alaskan aeronautical SAR Region, and the U.S. Coast Guard is the 

recognized SAR coordinator for all other aeronautical and maritime SAR regions. This section 

addresses when DoD resources may be applied in a Stafford Act or other civil support event, 

outside these normal day-to-day SAR operations. 75 

If Emergency Support Functions (ESFs) have been activated (typically during a Stafford Act

response), DoD may have a large role in land-based search and rescue. ESF #9 identifies DoD as a 

primary agency for land SAR. During a Stafford Act or other civil support incident, DoD may 

provide SAR support following a request by FEMA as directed by JDOMS and approved by 

SECDEF.76 In this capacity, under the National Response Framework DoD assists civil authorities 

by conducting SAR missions on a reimbursable basis (pursuant to the Stafford Act or Economy Act 

as appropriate).77 Note that local commanders may also provide SAR support when an 

“imminent[ly] serious” threat to “public health and safety” exists and time does not permit prior 

approval.78

When requested, DoD, through U.S. Northern Command (USNORTHCOM) and/or USPACOM, 

coordinates facilities and resources according to applicable directives, plans, guidelines, and 

agreements. Per the National SAR Plan and as mentioned above, the U.S. Air Force and 

USPACOM provide resources for the organization and coordination of civil SAR services and 

operations within their assigned SAR regions and, when requested, to assist Federal, State, tribal, 

and local authorities.79

If DoD SAR capabilities deploy at the direction of an Air Force Rescue Coordination Center in 

support of the National SAR Plan (during a typical SAR mission as mentioned above), and the 

Stafford Act is subsequently invoked,80 those capabilities will then be administered under the 

National Response Framework and ESF #9. As soon as practical, a DHS/FEMA or other 

department/agency mission assignment will then be submitted to DoD for those capabilities’ 

continued support.81

3. Employment of DoD Resources in Support of the U.S. Postal Service

When a postal work stoppage disrupts mail service on a national, regional, or local basis, DoD may 

be directed to support the U.S. Postal Service (USPS) through an interdepartmental transfer of 

services.82 When ordered by the President, DoD may be called upon to provide materials, supplies, 

 75 See National Search and Rescue Plan of the United States, para. 22 (2007), available at: 

http://www.uscg.mil/hq/cg5/cg534/sar_manuals.asp#NSP.

76 U.S. DEPARTMENT OF DEFENSE, DoDD 4515.13-R AIR TRANSPORTATION ELIGIBILITY, (Nov. 1994) [hereinafter 

DoDD 4515.13-R], through change 3, April 9, 1998, para. C5.7; see also FEMA, EMERGENCY SUPPORT FUNCTION #9 –

SEARCH AND RESCUE, (Feb. 2011), available at FEMA.gov.

77 FEMA, EMERGENCY SUPPORT FUNCTION #9 – SEARCH AND RESCUE, (Feb. 2011), available at: FEMA.gov.

78 See DoDD 4515.13-R, supra note 76, at C.10.11.

79 FEMA, EMERGENCY SUPPORT FUNCTION #9 – SEARCH AND RESCUE, (Feb. 2011), available at: FEMA.gov

80 This could occur in the case of a large airline crash or large vessel casualty, requiring the need for a mass rescue.

81 Id.

82 U.S. DEP’T OF DEFENSE, DIR. 5030.50, EMPLOYMENT OF DEPARTMENT OF DEFENSE RESOURCES IN SUPPORT OF THE 

UNITED STATES POSTAL SERVICES, para. 1 (13 Apr. 1972) [hereinafter DoDD 5030.50].
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equipment, services, and personnel to enable the USPS to safeguard, process, and deliver the mail in 

areas affected by postal work stoppages.83

Authority to support the USPS rests in the President’s authority to use the armed forces to prevent 

interference with transporting the mail84 and the authority for interdepartmental transfer of services 

and equipment prescribed by the Economy Act,85 as implemented by DoD Instruction 4000.19, 

Support Agreements.

86 Upon Presidential declaration of a national emergency, selective 

mobilization of reserve components to support the USPS would occur under 10 U.S.C. § 12301.87 

Army and Air National Guard units would be called under authority granted in 10 U.S.C. § 12406. 

Note also that, consistent with this use of authority, EO 13527, Establishing Federal Capability for 

the Timely Provision of Medical Countermeasures Following a Biological Attack (Dec. 30, 2009) 

directs the integration of DoD into plans to provide support to the USPS delivery of medical 

countermeasures in the event of biological attack.88

4. Public Health or Medical Emergencies

In a large-scale public health or medical response, DoD will likely provide civil support to the 

Department of Health and Human Services (HHS), which is the primary agency responsible for this 

mission under ESF #8. DoD may be asked to provide support for casualty clearing and staging, 

patient treatment, and services such as laboratory diagnostics. DoD resources may be needed to 

assist with the protection of food and water, the provision of medical supplies, coordination of 

patient processing, and/or the management of human remains, among other items. All activities 

would be coordinated through the mission assignment process under ESF #8.89

The new Public Health Emergency Medical Countermeasures Enterprise (PHEMCE) 

Implementation Plan (December 2012) is another part of the response framework for public health 

emergencies. It establishes the PHEMCE as an interagency coordinating body led by the HHS 

Assistant Secretary for Preparedness and Response (ASPR), and comprises the Centers for Disease 

Control (CDC), the National Institutes of Health (NIH), the Food and Drug Administration (FDA), 

as well as interagency partners at the Department of Veterans Affairs (VA), Defense (DoD), 

Homeland Security (DHS), and Agriculture (USDA). It coordinates the development, acquisition, 

stockpiling, and use of medical products that are needed to effectively respond to a variety of 

potential high-consequence public health emergencies, whether naturally occurring or intentional.90 

 83 Id. para. 4., noting that legal authority for the employment of military resources at the direction of the President to 

reestablish and maintain essential postal service may be found in Section 686 of Title 31, U.S. Code, and Section 411 of 

Title 39, U.S. Code.

84 In re Debs, 158 U.S. 564 (1895).

85 31 U.S.C. § 1535 (2015), implemented by 39 U.S.C. § 411 (Cooperation with other Government Agencies).

86 U.S. DEP’T OF DEFENSE, INSTR. 4000.19, SUPPORT AGREEMENTS (25 Apr. 2013).

87 10 U.S.C. §§ 12301–12304 (2015); see also DoDD 5030.50, supra note 82, para. 4.4.1.

88 Exec. Order No. 13527, 75 Fed. Reg. 737 (Jan. 6, 2010).

89 FEMA, EMERGENCY SUPPORT FUNCTION #8 – PUBLIC HEALTH AND MEDICAL SERVICES, (Jan. 2008), available at: 

FEMA.gov [hereinafter ESF #8]. The mission assignment process is discussed further at Chapter 2, infra.

90 See U.S. Department of Health and Human Services, Public Health Emergency Medical Countermeasures Enterprise 

(PHEMCE) Implementation Plan (Dec. 2012), available at: 

http://www.phe.gov/Preparedness/mcm/phemce/Documents/2012-PHEMCE-Implementation-Plan.pdf.
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5. Animal and Plant Disease Eradication

Under ESF #8, USDA is responsible for providing the resources to control and eradicate an 

outbreak of highly contagious or economically devastating animal disease.91 DoD’s role under ESF 

#8 is to support this function when requested by providing available military medical personnel for 

the protection of public health (to include food and water supplies), and for the support of the 

medical treatment of animals.92 The National Guard maintains National Guard Expeditionary 

Medical Support (EMEDS) Fatality & Services Recovery Response Team packages that can 

support these missions with proper approvals.93 

6. Mass Migration Emergency

The Department of Homeland Security (DHS) is charged with enforcing the laws of the United 

States regarding immigration.94 The majority of this responsibility is fulfilled by the routine daily 

operations of U.S. Immigration and Customs Enforcement (ICE)95 under DHS. When individuals 

enter the United States illegally, they are subject to apprehension by law enforcement authorities. 

ICE then takes action to deport or resettle these immigrants. If the number of illegal immigrants 

exceeds the capacity of the ICE, the President may declare a Mass Immigration Emergency and 

DoD may be called on to provide support to DHS.96 

DoD may be tasked to assist in initial migrant reception, transportation, housing, and the full range 

of support services associated with those tasks. At no time is DoD expected to engage in law 

enforcement activities or in the processing of immigrants. FORSCOM, operating with DoD Lead 

Operational Authority, is charged by the Combatant Commands to develop and coordinate detailed 

planning and execution of DoD support mass migration operations in the continental United States. 

The National Guard supports domestic emergencies such as mass migration emergencies in a civil 

support role while in a Title 10 status.

97

7. Nuclear and Radiological Incidents

Nuclear/Radiological incidents are defined as an “unexpected event involving the release or 

potential release of radioactive material that poses an actual or perceived hazard to public health, 

 91 ESF # 8, supra note 89, 8-10, 11.

92 Id. at 8-11.

93 See NATIONAL GUARD REGULATION 500-1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS, para. 5-11a, 

11b (13 Jun. 08) [hereinafter NGR 500-1].

94 See 6 U.S.C. § 101B, Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified 

primarily at 6 U.S.C. §§ 101-557) [hereinafter HSA 2002].

95 ICE is the investigative arm of the Department of Homeland Security (DHS). The agency is comprised of several 

components from the former Immigration and Naturalization Service (INS), the U.S. Customs Service, and the Federal 

Protective Service (FPS). The agency combines the investigative, detention and removal, and intelligence functions of 

the former INS with the investigative, intelligence, and air & marine functions of the former Customs Service. All the 

functions of the former FPS are also part of ICE.

96 For example, during the Mariel Boatlift approximately 124,000 Cuban migrants entered the United States between 

April and September of 1980. See Alien Migrant Interdiction, U.S. COAST GUARD, 

http://www.uscg.mil/hq/cg5/cg531/amio/amio.asp (last visited Aug. 20, 2014).

97 NGR 500-1, supra note 93, para. 4-2.d.
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safety, national security, or the environment.”98 The Nuclear/Radiological Incident Annex of the 

National Response Framework provides national policy for and assigns responsibility to designated 

federal departments for the release of nuclear or radiologic materials, whether purposeful or 

inadvertent, and whether the incident involves government or privately owned materials.

99 Per this 

policy, DoD is the coordinating agency for incidents occurring on all DoD owned or operated 

facilities, and for incidents involving a nuclear weapon, special nuclear material, or nuclear 

components under DoD custody.100 In the event of a deliberate attack in the United States, DHS is 

the coordinating agency and DOJ is the lead law enforcement authority.101 DoDD 3150.08, DoD 

Response to Nuclear and Radiological Incidents, establishes additional policy in accordance with 

the National Response Framework regarding DoD consequence management of U.S. nuclear 

weapon incidents and other nuclear or radiological incidents involving DoD materials.

102

8. DoD Support to Wildfires

State and local governments have the primary responsibility to prevent and control wildfires.103 

DoD policy is to provide emergency assistance to federal agencies in the form of personnel, 

equipment, supplies, or fire protection service in cases where a fire emergency is beyond the 

capabilities of available resources.104 DoD provides support pursuant to a memorandum of 

understanding (MOU) between DoD, the U.S. Department of Agriculture (USDA), and the 

Department of the Interior (DOI).105 

The primary federal entity responsible for coordinating the federal response to wildfires is the 

National Interagency Fire Center (NIFC). The NIFC, located in Boise, Idaho,106 is the nation’s 

support center for wildland firefighting107 and is a joint operation of the DOI and USDA.108 Seven 

federal agencies operate from the NIFC and work together to coordinate and support fire disaster 

operations. These agencies are:

• Bureau of Indian Affairs (BIA);

• Bureau of Land Management (BLM);

• Forest Service (USFS);

 98 U.S. DEP’T OF DEFENSE, DIR. 3150.08, DOD RESPONSE TO NUCLEAR AND RADIOLOGICAL INCIDENTS (10 Jan. 2010)

[hereinafter DoDD 3150.08].

99 FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Jun 2008) 1,4,7, available at: 

http://www.fema.gov/pdf/emergency/nrf/nrf_nuclearradiologicalincidentannex.pdf.

100 Id. at 8.

101 Id. at 9.

102 DoDD 3150.08, supra note 98, para. 1.

103 U.S. DEP’T OF DEFENSE, 3025.1-M, MANUAL FOR CIVIL EMERGENCIES, ch. 1 para. E.8, and ch. 3 para. B.3.a. (Jun. 

1994) [hereinafter DoD 3025.1-M]; Memorandum of Understanding Between the Department of Defense and the 

Departments of Agriculture and the Interior, III (Policy) (1975) [hereinafter MOU-USDA/DOI]; see also FEMA, 

EMERGENCY SUPPORT FUNCTION #4 – FIREFIGHTING ANNEX (Jan. 2008) [hereinafter ESF #4], available at: FEMA.gov. 

104 DoDD 3025.1-M, supra note 103, ch. 3, para C3.

105 MOU-USDA/DOI, supra note 103.

106 ESF #4, supra note 103.

107 DoDD 3025.1-M, supra note 103, para. C3; MOU-USDA/DOI, supra note 103, at II.D, and IV.A1; see also

National Interagency Fire Center (NIFC), available at: http://www.nifc.gov/aboutNIFC/about_mission.html.

108 DoDD 3025.1-M, supra note 103, para. B.3.b.
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• Fish and Wildlife Service (USFWS);

• National Park Service (NPS);

• National Weather Service (NWS); and, 

• Office of Aircraft Services (OAS).

109

The NIFC was originally established in 1965 as the “Boise Interagency Fire Center.” The Boise 

Interagency Fire Center began as an effort to consolidate fire planning and response among the 

Bureau of land Management, U.S. Forest Service, and National Weather Service. In 1993, the name 

was changed to the National Interagency Fire Center to reflect the national mission.110

If a national fire situation becomes severe, the National Multi-Agency Coordinating (NMAC) 

Group is activated. This group consists of representatives of each of the federal wildland firefighting 

agencies. Representatives from the General Services Administration, the U.S. military, and state 

forestry services may also participate. The federal and state representatives of this group are 

responsible for responding to wildland fires and other emergency events. Depending on the 

national fire situation, the NMAC group helps set priorities for critical, and occasionally scarce, 

equipment, supplies, and personnel. 111 

The National Interagency Coordination Center (NICC) is located within the NIFC. The NICC was 

established in 1975 to provide logistical support and intelligence for wildland fires across the 

nation. Because NICC is an “all-risk” coordination center, it can also provide support in response 

to other emergencies such as floods, hurricanes, earthquakes, and other disasters. The NICC 

coordinates supplies and resources across the United States and provides support to incidents in 

foreign countries. The NICC is staffed jointly by BLM and USFS.112 

Subordinate to the NICC are eleven “Geographic Area Coordination Centers” (GACCs). Each 

GACC is composed of federal and state wildland fire agencies. See Figure 8-1.113

 109 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last 

visited Aug. 20, 2014).

110 See NIFC History, Mission, NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/aboutNIFC/about_mission.html (last visited Aug. 20, 2014). Note that “Boise Interagency Fire 

Center” is the phrase referred to MOU-USDA/DOI, supra note 103, rather than NIFC.

111 See NATIONAL INTERAGENCY FIRE CENTER, THE NATIONAL MULTI-AGENCY COORDINATING GROUP 2013

NATIONAL STRATEGY (2013), available at: http://www.nifc.gov/nicc/administrative/nmac/index.html.

112 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last 

visited Aug. 20, 2014).

113 See Welcome to the National Interagency Coordination Center NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/nicc/index.htm (last visited Aug. 20, 2014).
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Figure 8-1. Map of Geographical Area Coordination Centers.

The NICC uses a three-tiered coordination system to respond to wildland fires.114 First, a wildland 

fire is initially managed by the local agency that has fire protection responsibility for that area. 

Engines, ground crews, smokejumpers, helicopters with water buckets, and air tankers may all be 

used for initial suppression. Various local agencies may work together, sharing personnel and 

equipment, to fight fires. If a wildland fire grows to the point where local personnel and equipment 

cannot contain the fire, the responsible agency contacts one of the eleven GACCs, which is the 

second tier of response. The GACC will locate and dispatch additional firefighters and support 

personnel throughout the geographic area. The third tier is triggered when GACCs can no longer 

meet requests because they are supporting multiple incidents, or GACCs are competing for 

resources. When this occurs, requests for equipment and supplies are referred to NIFC. 115 

NIFC can request DoD assistance in one of two ways.116 First, for wildland fires outside federal 

land (on state or private lands), state officials submit their requests for suppression assistance to the 

FEMA Regional Director or FCO, and then the FEMA Regional Director or FCO requests military 

assistance. Alternately, NIFC can request military assistance under its own authority by contacting 

the Joint Director of Military Support (JDOMS). Second, if the response is to an emergency under 

the Stafford Act,

117 NIFC requests military assistance from FEMA, which coordinates with 

 114 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last 

visited Aug. 20, 2014).

115 Id.

116 DoDD 3025.1-M, supra note 103, para. B.3.a; MOU-USDA/DOI, supra note 103, III. POLICY, paras. A-B.

117 Under the Stafford Act, an “emergency” is defined as “any occasion or instance for which, in the determination of 

the President, federal assistance is needed to supplement State and local efforts and capabilities to save lives and protect 

property and public health and safety, or to lesson or avert the threat of catastrophe in any part of the United States. The

Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., as amended [hereinafter 
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JDOMS. JDOMS notifies the supported COCOM, 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 COCOM.118 NIFC normally requests a 

specific number of firefighters and/or items of equipment. NIFC taskings will provide the 

necessary information, such as incident name, location, agency representation, and duration of 

assignment.

Normally, as part of the efforts of state and local governments to prevent and control wildfires, the 

National Guard (NG) will respond in state active duty (SAD) status.119 For example, during the 

summer of 2000, ten states provided more than 1,500 National Guard soldiers and airmen who 

served in SAD status. The National Guard personnel provided law enforcement support for traffic 

control, transportation and aviation support, and firefighters. The Air National Guard (ANG) and 

Air Force Reserve (AFR) provided eight C-130 aircraft equipped with the modular airborne 

firefighting system (MAFFS). Additionally, federal firefighting officials at NIFC formally 

requested assistance from DoD. More than 4,600 active duty mmembers were committed to 

augment federal and local firefighters and law enforcement officials. NIFC instituted a 

“Preparedness Level 5” indicating that all federal firefighting resources were fully committed. 120

The ANG and AFR use the USFS-owned Modular Airborne Fire Fighting System (MAFFS), when 

requested, to assist with wildland firefighting during extreme conditions.121 Congress established 

the MAFFS Program in the early 1970s as a wildland fire program, not a military program. The 

objective of the MAFFS program is to provide emergency capability to supplement the existing 

commercial air tanker support on wildfires. The NICC can activate the MAFFS when all other 

contract air tankers are committed, or are otherwise unable to meet requests for air operations. The 

request for MAFFS activation is approved by the national MAFFS liaison officer, who is the USFS 

director at NIFC. This request is then formally submitted to JDOMS. Governors of states where 

NG MAFFS units are stationed may activate MAFFS missions within their state boundaries when 

covered by a memorandum of understanding with the USFS. In accordance with military 

requirements for initial qualification and recurrent training, MAFFS crews are trained every year 

with Forest Service national aviation operations personnel.

 

The Stafford Act]. See Chapter 2 infra for an extensive discussion on Stafford Act Emergency and Disaster 

declarations.

118 DoD 3025.1-M, supra note 103, ch.3, para. C3.

119 This is different from Title 32 or Title 10 status for National Guard personnel. See infra Chapter 3, Reserve 

Components, for further information on National Guard member status.

120 See More Troops Tabbed to Battle Montana Wildfires, AMERICAN FORCES INFORMATION SERVICE (Aug. 23, 2000), 

http://osd.dtic.mil/news/Aug2000/n08232000_20008231.html.

121 DoD 3025.1-M, supra note 103, ch. 3, para. C3.; see also Aviation, U.S. FOREST SERVICE FIRE & AVIATION 

MANAGEMENT, http://www.fs.fed.us/fire/aviation (last visited Aug. 20, 2014). A MAFFS is a self-contained and 

pressurized, reusable 3,000 gallon aerial fluid dispersal system that allows Lockheed C-130 cargo/utility aircraft to be 

converted to wildland firefighting air tankers without structural modification to the aircraft. The 3,000 gallons of 

retardant are discharged in about five seconds through two tubes exiting the rear ramp of the plane. Most MAFFS are 

“single-shot” systems, meaning the full load is discharged at one time. One load may lay down a “line” about onequarter-mile-long and sixty feet wide. The units are loaded with either water or retardant—a chemical that inhibits the 

combustion potential of vegetation on the ground. This allows firefighters on the ground to rapidly take advantage of 

the retardant effect, which helps in line-building efforts. The retardant’s bright red or fuchsia color helps pilots observe 

the accuracy of their drops on the edge of the fire.
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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); and, 

• 302nd AW, Peterson AFB, Colorado Springs, CO (AFR).

The mobilization of MAAFS resources requires a pre-deployment analysis. Prior to deployment of 

these assets, local foresters are responsible for ensuring that regional, commercially-available assets 

are unavailable or already committed to a mission. Similarly, if assets are sought by the NICC, 

commercial assets must be unavailable at the national level. Payments are governed by the 

appropriate Memorandum of Understanding–Collection Agreements. These agreements are 

between the military and the Forestry Service.122

B. Environmental Missions123

Military services carry out environmental compliance programs focused internally on DoD 

facilities. DoD may also be called upon to provide assistance during domestic contingency 

operations involving a major federal response to an environmental disaster. DoD has representation 

on the national and regional response teams that oversee response planning for oil and hazardous 

materials incidents under the Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA) and the Federal Water Pollution Control Act or Clean Water Act of 

(1972).124 The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 

C.F.R. § 300, sets forth the responsibilities of all state and federal entities with a role in 

environmental response under these laws.125

Executive Order 12580 directs creation of a National Response Team (NRT) for national planning 

and coordination of preparedness and response actions. The NRT is composed of representatives of 

appropriate federal departments and agencies, including DoD.126 Regional Response Teams 

(RRTs), the regional counterpart to the NRT, plan and coordinate regional preparedness and 

response actions. The EPA chairs the standing NRT, and the EPA, U.S. Coast Guard, and regional 

states chair the RRTs. RRTs coincide geographically with FEMA and EPA regions. At the local 

 122 See DoD 3025.1-M, supra note 103, ch. 3, para. C3; see also Aviation, U.S. FOREST SERVICE FIRE & AVIATION 

MANAGEMENT, http://www.fs.fed.us/fire/aviation (last visited Aug. 20, 2013). 

123 Chapter 2, infra, contains additional information on environmental response and how this mission fits within the 

National Response Framework.

124 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9605 – 9675 

(2015); The Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 et. seq. (2015), as amended by 

the Oil Pollution Act of 1990 (OPA 90). 125 40 C.F.R. § 300 (2015). The NCP is required by section 105 of the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980, 42 U.S.C. § 9605, as amended by the Superfund Amendments and 

Reauthorization Act of 1986 (SARA), Pub.L. 99–499, and by section 311(d) of the Clean Water Act (CWA), 33 U.S.C. 

§ 1321(d), as amended by the Oil Pollution Act of 1990 (OPA 90), Pub.L. 101–380. See 40 C.F.R. § 300.2 (2015). 

Executive Orders 12580 and 12777 delegated to the EPA responsibility to amend the NCP as necessary.

126 Exec. Order No. 12580, 3 C.F.R. 193 (1987).
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level in the coastal zones are the Area Committees, co-chaired by Coast Guard Captains of the 

Port127 and their geographic state counterparts.

The NCP is the federal government’s plan for emergency response to discharges of oil into the 

navigable waters of the United States or releases of chemicals into the environment.128 Under the 

National Response Framework, the Environmental Protection Agency (EPA) is the coordinator for 

ESF #10 – Oil and Hazardous Materials Response Annex.129 

The NCP provides that a predesignated on-scene coordinator (OSC) shall direct response efforts at 

the scene of a discharge or release. Inland, the Environmental Protection Agency (EPA) is the lead 

response agency and provides OSCs for responses. In coastal areas, the U.S. Coast Guard is the 

lead response agency for coordinating the federal response and provides the OSC. States typically 

have concurrent jurisdiction with the EPA/USCG, and will provide a state OSC with significant 

authority granted under the NCP and state law. DoD provides the Federal On-Scene Coordinator or 

FOSC (person who directs and supervises the response) for all hazardous substance releases, except 

oil spills, that originate from DoD facilities or vessels.130

For incidents where it is not the OSC, DoD typically provides hazardous materials or oil spill 

incident response expertise and resources through the Navy and/or Army Corps of Engineers

(USACE), both of which have a representative on the NRT, RRT, and/or Area Committee. USACE 

support capabilities in oil spill cleanup activities include recovery of oil using USACE reserve fleet 

vessels, contracting, construction management, real estate support services, engineering, 

environmental review and monitoring, and regulatory permitting, among other items. The Navy's 

Supervisor of Salvage has an extensive array of specialized equipment and personnel for use in ship 

salvage, shipboard damage control, and diving – all of which may be critical needs during a spill 

occurring from a large oil-carrying cargo vessel.131 With the exception of support provided under 

Immediate Response Authority, the use of DoD resources to support requests for assistance is 

subject to the approval of the Secretary of Defense.132 JDOMS will then coordinate any DoD 

support under the NCP. Such support will typically be requested through the RRT by the U.S. 

Coast Guard or EPA OSC overseeing the response.

 127 Per 33 C.F.R. § 1.01-30 Coast Guard “Captains of the Port and their representatives enforce within their respective 

areas port safety and security and marine environmental protection regulations, including, without limitation, 

regulations for the protection and security of vessels, harbors, and waterfront facilities; anchorages; security zones; 

safety zones; regulated navigation areas; deepwater ports; water pollution; and ports and waterways safety.”

128 It is important to note that the NCP is a separate response regime from the National Response Framework and the 

Stafford Act, yet there can be overlap between them. Large oil or hazardous materials incidents will be addressed under 

the NCP, not the Stafford Act, because this allows the government to direct the “responsible party” (entity responsible 

for the incident) to take response action in addition to government efforts (thus meeting Congressional intent that the 

“polluter pays” under CERLA and the FWPCA). Nonetheless, elements of the National Response Framework (in 

particular ESF #10) can be activated in addition to the NCP to address the response. See the discussion of the 

Deepwater Horizon Oil Spill, infra, as an example.

129 FEMA, EMERGENCY SUPPORT FUNCTION #10 – OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (May 2013) 

[hereinafter ESF #10], available at: FEMA.gov.

130 40 C.F.R. § 300.120 (2015).

131 DoDD 3025.1-M, supra note 103, ch. 3, para. C3.2.1.6.4.5.3.

132 ESF #10, supra note 129, 11.
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1. The Deepwater Horizon Oil Spill – Use of the NCP vs. Stafford Act

Major environmental contingency operations within the United States are addressed exclusively 

under the NCP without a Presidential declaration of a major disaster under the Stafford Act. During 

the Deepwater Horizon crisis in 2010, there was substantial confusion in the public and in press 

reports regarding the applicability of the Stafford Act to response operations. There was never a 

Stafford Act declaration during the Deepwater Horizon response. 

Despite the magnitude of that emergency, all operations were conducted under the President’s 

delegable authorities under the Clean Water Act133 and the NCP. Those authorities specifically 

provide mechanisms by which the “Responsible Parties” for the discharge134 directly pay all 

removal costs and certain damages arising from the discharge.135 Consequently, a Stafford Act

declaration was not necessary during Deepwater Horizon because the primary responsible party, 

BP, directly funded all removal costs. The National Incident Commander,136 Admiral Thad Allen, 

U.S. Coast Guard, and the FOSC (a position occupied during 2010 by several Coast Guard flag and 

senior-level officers) managed the response and directed BP’s activities in close coordination with 

state and local leaders.

If other events caused or exacerbated damage to the Gulf Coast during the Deepwater Horizon 

clean-up efforts, e.g., a hurricane or similar event, a Stafford Act response could have been directed 

for those contingencies in addition to the environmental response already ongoing pursuant to the 

Clean Water Act and the NCP. 

C. Miscellaneous Missions in Support of Law Enforcement

1. Support of United States Secret Service

DoDD 3025.13, Employment of DoD Capabilities in Support of the U.S. Secret Service (USSS), 

Department of Homeland Security (DHS), provides for reimbursable support for the Secret Service 

and identifies reimbursement accounting procedures.137 Requests for assistance are routed through 

the White House Military Office or DoD Executive Secretary.138

2. Imagery Intelligence and Geospatial Support

The National Geospatial-Intelligence Agency (NGA) is tasked with organizing, directing, and 

managing NGA and all assigned resources to provide peacetime, contingency, crisis, and combat 

 133 33 U.S.C. §1321(c) (2015).

134 Among the Responsible Parties in DEEPWATER HORIZON were BP and Transocean.

135 33 U.S.C. § 2702(a) (2015). In oil discharge situations, the federal government may use the Oil Spill Liability Trust 

Fund to pay costs related to oil spill removal activities. Responsible Parties reimburse the fund for these costs. The 

statute recognizes that reimbursement may not be available when a Responsible Party is insolvent or cannot be 

identified.

136 40 C.F.R. § 300.323(c) (2015) provides that a National Incident Commander (NIC) may be appointed for a “Spill of 

National Significance.” The NIC assumes the role of the FOSC in communicating with effected parties and the public 

and coordinating federal, state, local and international resources at the national level.

137 U.S. DEP’T OF DEFENSE, DIR. 3025.13, EMPLOYMENT OF DOD CAPABILITIES IN SUPPORT OF THE U.S. SECRET 

SERVICE (USSS), DEPARTMENT OF HOMELAND SECURITY (DHS), (8 Oct. 2010).

138 Id. Encl. 3.
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geospatial intelligence support to the operational military forces of the United States.139 Although 

the use of intelligence assets are subject to extensive regulation, NGA capabilities can provide

appropriate federal agencies access to real-time and near real-time imagery and geospatial support.

Intelligence activities in the United States are governed broadly by Executive Order 12333. EO 

12333 prohibits directed collection on U.S. persons through the use of overhead reconnaissance by 

intelligence agencies.140 EO 12333, however, grants broad authority to U.S. intelligence agencies to 

provide direct support to other federal agencies. This support may be extended to local law 

enforcement in circumstances where lives are at risk.141 Such support, however, requires approval 

of the General Counsel of the Supporting Agency. Chapter 9, infra, contains much more specific 

guidance regarding the use of intelligence during domestic operations.

3. Critical Asset Assurance Program

EO 12656 requires that every federal department and agency identify and develop plans to protect 

facilities and resources essential to the nation’s defense and welfare, in order to minimize 

disruptions of essential services during national security emergencies. Such security emergencies 

could result from natural disasters, military attack, or any other event that seriously degrades the 

security of the United States.142

4. Continuity of Operations Policies and Planning

EO 12656 requires heads of federal agencies to ensure the continuity of essential functions during a 

national security emergency.143 DoDD 3020.26, Department of Defense Continuity Programs, 

implements EO 12656 by tasking all DoD components to prepare plans for the continuity of its 

operations and of government during an emergency.144 Continuity of Operations (COOP) is defined 

as “an internal effort within individual DoD Components to ensure uninterrupted, essential DoD 

Component functions across a wide range of potential emergencies, including localized acts of 

nature, accidents, and technological and/or attack related emergencies.”145 All Defense continuityrelated activities, programs, and requirements of the DoD Components, including those related to 

COOP, continuity of government, and maintaining a constitutional government, must ensure the 

continuation of current approved DoD and DoD Component mission essential functions under all 

circumstances across the complete spectrum of threats. Minimum requirements for continuity 

planning are outlined in DoDD 3020.26.146

 139 U.S. DEP’T OF DEFENSE, DIR. 5105.60, NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY, para. 6 (July 2009). 

140 See Exec. Order No. 12333, 3 C.F.R. § 200 (1982), reprinted in 50 U.S.C. § 401.

141 Id. at para. 2.6(c).

142 Exec. Order No. 12656, 44 CFR § 334.2 (2010).

143 44 CFR § 334.2 (2010).

144 U.S. DEP’T OF DEFENSE, DIR. 3020.26, DEPARTMENT OF DEFENSE CONTINUITY PROGRAMS (Jan. 2009).

145 Id., at para. 3.

146 Id. at paras. 3, 4.
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5. Explosive Ordnance Disposal

DoDD 5160.62, Single Manager Responsibility for Military Explosive Ordnance Disposal 

Technology and Training, establishes the Under Secretary of Defense for Policy (USD(P)) as the 

single agency for service support of the non-nuclear explosive ordnance disposal (EOD) program.147 

Army Regulation 75-14/OPNAVINST 8027.1E/ARF 136-8/MCO 8027.1B, Interservice 

Responsibilities for Explosive Ordnance Disposal, delineates EOD areas of responsibilities for the 

Army, Navy, Marine Corps, and Air Force.148

The EOD mission within the Department of the Army is defined in AR 75-15, Responsibilities and 

Procedures for Explosive Ordnance. The mission includes providing “assistance to public safety 

and law enforcement agencies” and conducting “explosive ordnance disposal ‘bomb and sabotage’ 

training for civil preparedness, law enforcement, fire protection[,] and other public officials.”149 It 

also includes providing “explosive ordnance disposal support to the Departments of Energy and 

Justice in the neutralization of improvised nuclear devices in accordance with current agreements 

and directives.”150 The Army should primarily provide training or advice, rather than physical 

assistance. AR 75-15 provides:

The Department of the Army is not responsible for responding to, or disposing of, 

nonmilitary commercial-type explosives, chemicals, or dangerous articles in the 

possession of, or controlled by commercial concerns or civilian agencies. Assistance 

may be provided, when requested by federal agencies or civil authorities, in the 

interest of preserving public safety. Where a delay in responding to a request for 

assistance from other activities would endanger life or cause injury, commanders 

may authorize assistance to that extent necessary, to prevent injury or death. EOD 

personnel may act as technical consultants or advisors, or they may render safety and 

disposal procedures if requested.

Thus, EOD forces should only provide physical assistance when the explosive is a DoD munition or 

when necessary under immediate response authority to save lives.

D. Pandemic Influenza

In response to growing concerns about the potential for an H5N1 pandemic, the Homeland Security 

Council issued the National Strategy for Pandemic Influenza during November 2005.151 Although 

 147 U.S. DEP’T OF ARMY, REG. 75-15, RESPONSIBILITIES AND PROCEDURES FOR EXPLOSIVE ORDNANCE, para. 1-7 (22 

Feb. 2005). AR 75-15 does not apply to the Army Reserves or Army National Guard. 

148 Id. paras. 1-1, 2-1. The Army has EOD responsibility on Army installations and on landmass areas not specifically 

assigned as the responsibility of the Navy, Marine Corps, or the Air Force. The Department of the Navy is responsible 

for: EOD activities on Navy installations; explosive ordnance in the physical possession of the Navy; in assigned 

operational areas; within the oceans and contiguous waters, up to the high water mark of sea coasts, inlets, bays, 

harbors, and rivers; in any rivers, canals or enclosed bodies of water; and for the rendering safe and disposal of 

underwater explosive ordnance. The Department of the Air Force and the Marine Corps have EOD responsibility on 

their own installations, for explosive ordnance in their physical possession, and in assigned operational areas.

149 Id. para. 1-4.

150 Id.

151 HOMELAND SECURITY COUNCIL, NATIONAL STRATEGY FOR PANDEMIC INFLUENZA (November 2005), available at: 

http://www.flu.gov/planning-preparedness/federal/pandemic-influenza.pdf.
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H5N1 has not emerged as a pandemic, the World Health Organization declared on June 11, 2009 

that the H1N1 influenza had become a pandemic.152 This was followed by statements by the 

Secretaries of DHS and HHS indicating that the United States had already activated their pandemic 

response plans in anticipation of such a declaration.153 Although easily transmissible, the H1N1 

influenza has not shown a high mortality rate. Nonetheless, leaders and planners are concerned that 

a more virulent and deadly strain could present itself in the future. Accordingly, judge advocates 

advising commanders need to be prepared to confront the myriad of legal challenges that a 

pandemic could bring. This section provides an overview of the support DoD anticipates providing 

in the event of a severe pandemic.

The DoD issued the Department of Defense Implementation Plan for Pandemic Influenza in August 

2006.154 This “Implementation Plan” includes several planning assumptions that trigger scenarios 

of interest to the domestic operational lawyer. These assumptions include:

• There will be interagency requests for assistance with mortuary affairs (MA);

• The spread of H1N1 will start from multiple points of entry in the United States and spread 

rapidly throughout the Nation;

• State, tribal, and local governments will not be able to ensure the provision of essential 

commodities and services;

• Interstate transportation will be restricted to contain the spread of the virus;

• The security of critical infrastructure will require “Federal augmentation;”

• Both military and civilian MTFs will be overwhelmed;

• Under existing agreements, DoD will provide support to local communities medical efforts to 

include the provisioning of personnel, supplies, and materiel;

• DoD will support civil authorities consistent with applicable authorities;

• DoD will support and perhaps staff key aspects of the National Critical Infrastructure; and,

• U.S. Army Reserve forces will be mobilized.155

Based upon these and other assumptions, the Implementation Plan outlines nineteen planning 

categories informed by the Homeland Security Council’s (HSC) five planning priorities and thirteen 

priority areas. DoD support in the following fifteen categories will require legal analysis prior to 

execution:

• Category 1: Intelligence;

• Category 2: Force Protection;

• Category 4: Interagency Planning Support;

• Category 5: Surge Medical Capability to Assist Civil Authorities;

 152 The end of this 2009 Pandemic was declared by the World Health Organization (WHO) International Health 

Regulations Emergency Committee on 10 August 2010. See 2009 H1N1 Flu, CTRS. FOR DISEASE CONTROL AND 

PREVENTION, http://www.cdc.gov/h1n1flu/ (last visited Aug. 20, 2014).

153 Statements by HHS Secretary Kathleen Sebelius and DHS Secretary Janet Napolitano on WHO Decision to Declare 

H1N1 Virus Outbreak a Pandemic, CTRS. FOR DISEASE CONTROL AND PREVENTION, 

http://www.cdc.gov/h1n1flu/statement061109.htm (last visited Aug. 20, 2014).

154 ASD, HD, MEMORANDUM FOR SECRETARIES OF MILITARY DEPARTMENTS, DEPARTMENT OF DEFENSE 

IMPLEMENTATION PLAN FOR PANDEMIC INFLUENZA (12 Sept. 2006) [hereinafter “Implementation Plan”].

155 Id. at 8–9.
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• Category 7: Patient Transport and Strategic Airlift;

• Category 8: Installation Support to Civilian Agencies;

• Category 10: Security in Support of Pharmaceutical/Vaccine Production (Critical Infrastructure 

Protection (CIP));

• Category 11: Security in Support of Pharmaceutical/Vaccine Distribution;

• Category 12: Communications support to Civil Authorities;

• Category 13: Quarantine Assistance to U.S. Authorities;

• Category 14: Military Assistance for Civil Disturbances;

• Category 15: Military Assurance: Defense Industrial Base;

• Category 16: Mortuary Affairs;

• Category 17: Continuity of Operations & Continuity of Government; and,

• Category 19: Public Affairs support to Civil Authorities.156

The Congressional Research Service has also developed a CRS Report for Congress that outlines 

key legal issues raised by Pandemic Influenza outbreak.157 The authors note that the federal 

authorities authorizing federal support for a pandemic influenza contingency include the Public 

Health Service Act and the Stafford Act. These authorities involve the establishment of quarantines 

and isolation facilities at borders, or of an interstate nature.158 As discussed above, DoD planning 

guidance directs consideration be given to the potential for DoD to provide quarantine support to 

U.S. authorities.159 This would be in support of HHS’s authority “to prevent the introduction, 

transmission, or spread of communicable diseases from foreign countries into the States or 

possessions, or from one State or possession into any other State or possession.”160 These foreign 

and interstate quarantine authorities are administered by the Director of the CDC and executed as 

necessary by the Division of Global Migration and Quarantine.161 Further, DHS provides support to 

the CDC through three of its agencies: U.S. Customs & Border Protection; U.S. Immigration and 

Customs Enforcement; and the United States Coast Guard.

162

This authority provided to DoD is secondary to the States, which have primary quarantine and 

isolation authorities under state law.163 Upon request, or upon the determination that local efforts 

are inadequate, the federal government may assume primary responsibility for such activity.164 To 

the extent that state and local efforts prove ineffective, the likelihood of federal intervention and a 

corresponding request for support to the DoD increases. Request for support could be necessary in 

some cases because of outdated state laws165 that do not reflect a modern understanding of disease 

 156 Id. at 10–11.

157 KATHLEEN S. SWENDIMAN & NANCY LEE JONES, The 2009 Influenza A (H1N1) Outbreak: Selected Legal Issues, 

CRS REP’T TO CONG. (May 4, 2009) [hereinafter “CRS REP’T”].

158 Id. summary.

159 See Implementation Plan, supra note 154, at 11, Category 13.

160 42 U.S.C. § 264(a) (2015).

161 See CRS REP’T, supra note 157 at 6–7.

162 Id. at 7.

163 Id.

164 See id. at 8, n.41; see also 42 U.S.C. § 264(c) (2015); 42 C.F.R. § 70.2 (2015).

165 For a survey of state quarantine and isolation authorities, see State Quarantine and Isolation Statutes, NAT’L 

CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/?TabId=17104 (last visited Aug. 20, 2014).
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and could hamper efforts to contain outbreaks.166 The situation in affected areas may trigger broad 

requests or directions of DoD support to other federal or non-federal entities.167 Such requested 

support may prove unpopular. It could also involve the detailing of military law enforcement 

personnel to augment civilian federal law enforcement pursuant to the Emergency Federal Law 

Enforcement Assistance Act (EFLEAA).168 Such detailing is viewed by DOJ as removing the 

military law enforcement personnel from the control of the armed forces and therefore outside of 

the restrictions found in the PCA.169

 166 KATHLEEN S. SWENDIMAN & JENNIFER K. ELSEA, Federal and State Quarantine and Isolation Authority, CRS REP’T 

TO CONG. at CRS-9 (August 16, 2006) [hereinafter “CRS QUARANTINE REP’T”].

167 See Implementation Plan, supra note 154 at 10–11, Categories 1, 2, 4–5, 7–8, 10–17 & 19.

168 42 U.S.C. § 10501 et seq.

169 OAG MEMORANDUM FOR THE PRESIDENT, Summary of Legal Authorities for use in Response to an Outbreak of 

Pandemic Influenza (April 25, 2009), at Attachment Page 4.
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CHAPTER 9

INTELLIGENCE OVERSIGHT AND INFORMATION HANDLING 

DURING DOMESTIC SUPPORT OPERATIONS

REFERENCES:

• National Security Act of 1947 (as amended), codified throughout 50 U.S.C. § 401 et seq. and 50 

U.S.C. § 3001 et seq.

• Foreign Intelligence Surveillance Act (as amended), 50 U.S.C. § 1801 et seq.

• Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 [S. 2845], 

December 17, 2004.

• The Immigration and Nationality Act (as amended), 8 U.S.C. §§ 1101 et seq.

• EO 12333 - U.S. Intelligence Activities, December 4, 1981, as amended by EO 13284 (2003), 

EO 13355 (2004) and EO 13470 (2008).

• EO 13526, Classified National Security Information, December 23, 2009.

• DODI 3115.15, Geospatial Intelligence (GEOINT), December 6, 2011 (Incorporating and 

cancelling DODI 5210.52, May 18, 1989).

• DoDD 5143.01, Undersecretary of Defense for Intelligence (USD(I)), November 23, 2005.

• DoDD 5240.01, DoD Intelligence Activities, August 27, 2007.

• DoD 5240.1-R , Procedures Governing the Activities of DoD Intelligence Components That 

Affect U.S. Persons, December, 1982.

• Defense Intelligence Agency Regulation (DIAR) 50-30 - Security Classification of Airborne 

Sensor Imagery, June 25, 1997.

• Agreement Governing the Conduct of Defense Department Counterintelligence Activities in 

Conjunction with the Federal Bureau of Investigation, (FOUO) April 5, 1979.

• Supplement to 1979 FBI/DoD Memorandum of Understanding: Coordination of 

Counterintelligence Matters Between the FBI and DoD, (S) June 20, 1996. 

• Joint Publication 2-0, Joint Intelligence, June 22, 2007.

• Joint Publications Intelligence series 2-0.

• AFPD 14-1 - ISR Planning, Resources, and Operations, April 2, 2004.

• AFI 14-104 - Oversight of Intelligence Activities, April 23, 2012.

• AFI 14 series on Intelligence.

• AR 381-10 - Army Intelligence Activities, May 3, 2007.

• AR 381-20 - The Army Counterintelligence Program, May 26, 2010.

• AR 381-xx series on Intelligence.

• SECNAVINST 3820.3E - Oversight of Intelligence Activities Within the Dep’t of the Navy, 

September 21, 2005.

• SECNAVINST 3850.2C - Dep’t of the Navy Counterintelligence, July 20, 2005.

• Marine Corps Warfighting Pub 2-1 - Intelligence Operations, September 10, 2003.

• Marine Corps Warfighting Pub 2-6 - Counterintelligence, July 13, 2004.

• Marine Corps Warfighting Pub 2-x series on Intelligence.

• National Guard Joint Force Headquarters State J2 Incident Awareness and Assessment 

Handbook, February 27, 2009.

• Chief National Guard Bureau Instruction (CNGBI) 2000.01, National Guard Intelligence 

Activities, September 17, 2012.
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• Chief National Guard Bureau Manual (CNGBM) 2000.01, National Guard Intelligence 

Activities, November 26, 2012.

• DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not 

Affiliated with the Department of Defense, January 7, 1980.

• 5 U.S.C. § 552a - The Privacy Act (as amended).

• DoDD 5400.11-R - DoD Privacy Program, May 17, 2007.

A. Introduction

With the ever-increasing number of domestic military missions conducted in the homeland, there 

has been a concurrent search for appropriate assets and capabilities to best perform those missions. 

Domestic missions are no different than overseas missions in that a key requirement for mission 

success is situational awareness—the commander must be aware of the situation on the ground and 

have a complete picture of the “battle space” within which the unit is operating. Overseas, 

intelligence assets normally provide such a picture. How, then, can these same assets be used in the 

homeland to support DoD missions while at the same time complying with applicable U.S. laws and 

policies? The judge advocate’s role is especially important during domestic operations utilizing 

intelligence assets and components. Judge advocates must recognize that, by its nature, collecting

intelligence domestically can often involve collecting information on U.S. persons. Therefore,

intelligence collection in the United States must comply with protections against unlawful 

government intrusion. As a result, policies and procedures for the collection of intelligence in the 

United States require careful application to ensure the protection of the rights of U.S. persons.

As noted above, military commanders’ need for information and intelligence within the homeland is 

on the rise—they expect force protection information and intelligence to be integrated into domestic 

operations due to a number of reasons, including a heightened awareness of potential terrorist 

threats. These needs and expectations pose unique issues in the information and intelligencegathering arena. This chapter provides a broad overview of the rules for collection of information 

on U.S. persons. If you are addressing an issue involving the collection of information in the 

homeland, you should seek out additional intelligence law expertise to assist you in this complicated 

area.

Before discussing the details of collecting information or intelligence on U.S. persons, it is 

important to understand first that there are two distinct groups of people that collect information in 

the homeland. 

• The first group is DoD intelligence components, as defined in EO 12333. In simple terms these 

are the Title 10 intelligence specialists—J2s, G2s, A2s, etc. This group of people—and the 

assets they use—are subject to one set of rules referred to as intelligence oversight.1

 (Title 32 

National Guard intelligence specialists—though not technically members of the intelligence 

community—follow National Guard policies concerning intelligence oversight.2)

 1

 See U.S. DEP’T OF ARMY, REG. 381-10 ARMY INTELLIGENCE ACTIVITIES (3 May 2007) [hereinafter AR 381-10].

2 See NATIONAL GUARD BUREAU, CHIEF NATIONAL GUARD BUREAU INSTRUCTION 2000.01, NATIONAL GUARD 

INTELLIGENCE ACTIVITIES (17 Sept. 2012) [hereinafter CNGBI 2000.01].
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• The second group of people is everyone else in DoD, including various security and police 

forces. This group is subject to a different set of rules governed by DoDD 5200.27. 

Therefore, the commander must direct his need for information or intelligence to the right 

component—the component with the capability and authority to achieve the commander’s intent. 

Intelligence is the domain of the DoD intelligence component; information comes from nonintelligence DoD components. Figuring out the nature of the data and the right unit to gather it are 

areas that often require judge advocate input. Therefore you must ensure that the very first question 

you ask when discussing collection in the homeland is “who is doing the collecting? Intelligence 

assets or non-intelligence assets?” Once you answer this question, you will be much closer to 

knowing what rules apply.

Section B of this chapter examines the proper use of DoD intelligence components during domestic 

support operations. Section C examines collection of information on U.S. persons by DoD nonintelligence components. Section D briefly addresses the policies and restrictions applicable to the 

National Guard when collecting information on U.S. persons during domestic operations.

B. The Role of DoD Intelligence Components in Domestic Support Operations

DoD intelligence components3 are governed by four primary references. The National Security Act 

of 1947 establishes a comprehensive program for national security and defines the roles and 

missions of the intelligence community and accountability for intelligence activities. Executive 

Order (EO) 12333, United States Intelligence Activities, lays out the goals and direction of the 

 3

 DoD intelligence components are defined in DoD 5240.1 as all DoD Components conducting intelligence activities 

(defined as foreign intelligence or counterintelligence), including the following:

a. The National Security Agency/Central Security Service (NSA/CSS).

b. The Defense Intelligence Agency (DIA).

c. The offices within the Department of Defense for the collection of specialized national foreign intelligence 

through reconnaissance programs.

d. The Office of the Deputy Chief of Staff for Intelligence (ODCSINT), U.S. Army.

e. The Office of Naval Intelligence (ONI).

f. The Office of the Assistant Chief of Staff, Intelligence (OACSI), U.S. Air Force.

g. Intelligence Division, U.S. Marine Corps.

h. The Army Intelligence and Security Command (USAINSCOM).

i. The Naval Intelligence Command (NIC). [No longer in existence]

j. The Naval Security Group Command (NSGC).

k. The Air Force Intelligence Agency (AFIA).

l. The Electronic Security Command (ESC), U.S. Air Force.

m. The counterintelligence elements of the Naval Security and Investigative Command (NSIC). [Now called the 

Naval Criminal Investigative Service (NCIS)]

n. The counterintelligence elements of the Air Force Office of Special Investigations (AFOSI).

o. The 650th Military Intelligence Group, Supreme Headquarters Allied Powers Europe (SHAPE).

p. Other intelligence and counterintelligence organizations, staffs, and offices, or elements thereof, when used for 

foreign intelligence or counterintelligence purposes. The heads of such organizations, staffs, and offices, or 

elements thereof, shall, however, not be considered as heads of the DoD intelligence components for purposes of 

this Directive.
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national intelligence effort, and describes the roles and responsibilities of the different elements of 

the U.S. intelligence community.4 Presently, DoD Directive (DoDD) 5240.1, DoD Intelligence 

Activities5 and DoD Regulation 5240.1-R6 implement the guidance contained in EO 12333 as it 

pertains to DoD. Finally, each Service has its own regulation and policy guidance.

These authorities establish the operational parameters and restrictions under which DoD intelligence 

components may conduct “intelligence activities,” defined in 5240.01 as “the collection, analysis, 

production, and dissemination of foreign intelligence and counterintelligence pursuant to [DoDD 

5143.01 and EO 12333].” Therefore intelligence activities are limited to those including foreign 

intelligence (FI) and counterintelligence (CI).7 In general, this translates to a requirement that such 

intelligence relate to the activities of international terrorists or, foreign powers, organizations, 

persons, and their agents. Moreover, to the extent that DoD intelligence components are authorized 

to collect FI or CI within the United States, they may do so only in coordination with the Federal 

Bureau of Investigation (FBI), which has primary responsibility for intelligence collection within 

the United States.8

When DoD Intelligence Components are conducting FI or CI, intelligence oversight (IO) rules 

apply. These rules govern the collection, retention, and dissemination of information concerning 

U.S. persons.9

 A U.S. person includes many unincorporated associations and U.S. corporations.

10 

Special emphasis is given to the protection of the constitutional rights and privacy of U.S. persons, 

so the IO rules generally prohibit the acquisition of information concerning the domestic activities11

of any U.S. person. In general, any person in the U.S. is presumed to be a U.S. person absent 

evidence to the contrary. The revision of DoD 5240.1-R is expected to capture this in the definition 

 4

 Id.

5

 U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].

6

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

COMPONENTS THAT AFFECT U.S. PERSONS (Dec. 1982) [hereinafter DoD 5240.1-R]. As of July 2011, DoD 5240.1-R is 

undergoing major revisions; thus, practitioners citing DoD 5240.1-R must ensure that the 1982 regulation is in effect.

7

 “Foreign intelligence” means information relating to the capabilities, intentions, and activities of foreign powers, 

organizations, or persons, but not including counterintelligence except for information on international terrorist 

activities. Exec. Order No. 12333, U.S. Intelligence Activities, para. 3.4(d) (Dec. 4, 1981) [hereinafter E.O. 12333]. 

“Counterintelligence” means information gathered and activities conducted to protect against espionage, other 

intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or 

persons, or international terrorist activities, but not including personnel, physical, document, or communications 

security programs. Id., para. 3.4(a).

8

 Id., para 1.14(a); Agreement Governing the Conduct of Defense Department Counterintelligence Activities in 

Conjunction with the Federal Bureau of Investigation (5 Apr. 1979); and Supplement to 1979 FBI/DoD Memorandum 

of Understanding: Coordination of Counterintelligence Matters Between the FBI and DoD (20 Jun. 1996).

9

 Judge advocates must read these authorities before advising a commander on the collection of information in a 

domestic support operation. Further, AR 381-10 should be consulted when advising members of the intelligence 

community or if a questionable intelligence activity is identified.

10 “United States person” means a United States citizen, an alien known by the intelligence agency concerned to be a 

permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent 

resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a 

foreign government or governments. E.O. 12333, supra note 7, para. 3.4(i). 11 “Domestic activities” refers to activities that take place within the United States that do not involve a significant 

connection with a foreign power, organization, or person. DoD 5240.1-R, supra note 6, Procedure 2, para. B3.
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171 Intelligence Oversight and Information Handling

of U.S. person. Questionable intelligence activities that run afoul of these and other restrictions 

must be reported in accordance with Procedure 15 of DoDD 5240.1-R.12

DoD 5240.1-R is divided into fifteen separate procedures that govern the collection, retention, and 

dissemination of intelligence. Collection of information on U.S. persons must be necessary to the 

functions (FI or CI) of the DoD intelligence component concerned.13 Procedures 2 through 4 

provide the sole authority by which DoD components may collect, retain, and disseminate 

information concerning U.S. persons. Procedures 5 through 10 set forth the applicable guidance for 

the use of certain collection techniques to obtain information for foreign intelligence and 

counterintelligence purposes. Procedures 11 through 15 govern other aspects of DoD intelligence 

activities, including the oversight of such activities. In the absence of any foreign nexus, DoD 

intelligence components generally perform non-intelligence activities. A non-intelligence activity 

would be any activity that is conducted by or with a DoD Intelligence Component asset or 

capability, but which does not involve FI or CI; for example, the collection, retention, production, 

and dissemination of maps, terrain analysis, and damage assessments for a DSCA mission. When 

intelligence assets fly planned or disaster support missions, such as post-hurricane operations, they 

are termed “incident awareness and assessment” (IAA) missions. When a Title 10 DoD intelligence 

component asset or capability is needed for a non-intelligence activity, specific authorization from 

the Secretary of Defense is required for both the mission and use of the DoD intelligence 

component capability or asset. The intelligence oversight (IO) rules do not apply to nonintelligence activities so the SECDEF authorization must be sure to include any restrictions placed 

upon the assets or capabilities used in a domestic support operation.

Whether DoD Intelligence Components are conducting an intelligence activity or a non-intelligence 

activity, certain rules universally apply to data and imagery collected from overhead and airborne 

sensors. Geospatial data, commercial imagery, and data or domestic imagery collected and 

processed by the National Geospatial-Intelligence Agency (NGA) is subject to specific procedures 

covering the request for geospatial data or imagery and its use. Judge advocates should ensure that 

they are familiar with NGA policy on requests for geospatial data or imagery and its authorized use. 

Additionally, DODI 3115.15, Geospatial Intelligence, and DIA Regulation (DIAR) 50-30, Security 

Classification of Airborne Sensor Imagery, provide specific guidance on mandatory security 

classification review of all data collected by airborne sensor platforms to determine whether it can 

be disseminated.

In providing guidance to commanders on authorized use of DoD Intelligence Component 

capabilities and assets, and the products derived from the data collected, it is also important for 

judge advocates to understand the various platforms, their sensors, and how they operate. Issues to 

consider include: sensor mobility, whether the platform with the sensor can have its course altered 

during a mission, how data is collected, transmitted, and processed, and the specific purpose of its 

mission. 

 12 Procedure 15 states “Each employee shall report any questionable activity to the General Counsel or Inspector 

General for the DoD intelligence component concerned, or to the General Counsel, DoD, or ATSD(IO).” Army policy 

provides several approved channels for reporting the information to include the DoD General Counsel. See paragraphs

15-2 through 15-4 of AR 381-10. 13 Id. at 4.2.1.
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Evidence of a criminal act “incidentally” collected during an authorized mission using DoD 

Intelligence Component capabilities can be forwarded to the appropriate law enforcement agency 

(LEA); however, altering the course of an airborne sensor (such as an Unmanned Aircraft Systems 

(UAS)) from an approved collection track to loiter over suspected criminal activities would no 

longer be incidental collection, and could result in a Posse Comitatus Act (PCA) violation unless 

specifically approved in advance. Furthermore, it is important to be aware that DoD has recently 

provided additional guidance on the use of UAVs in Policy Memorandum 15-002, “Guidance for 

the Domestic Use of Unmanned Aricraft Systems.”14 This Memorandum requires SECDEF 

approval for all domestic use of UAS – including DoD UAS operated by NG personnel in Title 32 

or SAD status. There is a specific exception for search and rescue missions “involving distress and 

potential loss of life that are coordinated by the Air Force Rescue Coordination Center (AFRCC), 

Alaska Rescue Coordination Center (ARCC), or Joint Rescue Coordination Center (JRCC)-

Pacific.” If UAS are contemplated in any operation, judge advocates are advised to review this 

Memorandum.

With respect to data acquired during such operations, certain data contains classified metadata 

which may need to be stripped at a remote site before it can be disseminated in an unclassified 

manner. Different platforms require different operational support, which requires planning on 

positioning, considering the intended use. A domestic support operation using DoD Intelligence 

Component capabilities which includes support to law enforcement agencies (LEAs) will likely

require a separate mission authority approval by SECDEF, and those planning the mission will need 

to consider whether the data is to be exclusively transmitted to the LEA, and where the LEA agents 

are located to control or direct use of the assets. Whether the collection platform and data 

transmission is wholly owned, operated, and received by a DoD Intelligence Component, a DoD 

non-Intelligence Component, or a combination of both will require careful consideration by judge 

advocates of the applicable rules, operational parameters, and restrictions applicable to the mission.

C. Information Handling and the Role of DoD Non-Intel Components

DoD non-intelligence components also have restrictions. These restrictions relate to the acquisition 

of information concerning the activities of persons and organizations not affiliated with DoD. This 

type of information is needed every day for force protection missions, to include force protection in 

domestic support operations. Within the DoD, the Military Criminal Investigative Organizations 

(MCIOs) have primary responsibility for gathering and disseminating information about the

domestic activities of U.S. persons that threaten DoD personnel or property.

DoD components, other than the intelligence components, may acquire information concerning the 

activities of persons and organizations not affiliated with the DoD only in the limited circumstances 

authorized by DoD 5200.27, Acquisition of Information Concerning Persons and Organizations Not 

Affiliated with the Department of Defense. DoDD 5200.27 provides limitations on the types of 

information that may be collected, processed, stored, and disseminated about the activities of 

persons and organizations not affiliated with DoD. Those circumstances include the acquisition of 

information essential to accomplish the following DoD missions: protection of DoD functions and 

property, personnel security, and operations related to civil disturbances.

 14 DoD Policy Memorandum 15-002, “Guidance for the Domestic Use of Unmanned Aircraft Systems,” 17 February 

2015.
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173 Intelligence Oversight and Information Handling

The most commonly used exception in the Directive deals with the circumstance of protection of 

DoD functions and property. Initially this seems like a broad exception that would allow for the 

collection of information on U.S. persons in many situations; however, the Directive further defines 

an activity that threatens defense personnel, activities, and installations as “direct” threats to DoD 

personnel in connection with their official duties. Understanding the difference is crucial, and an 

example may assist in that understanding. It is not uncommon for protests to occur outside the main 

gate of an installation. Under the broad brush of “protecting” DoD property, it might seem 

appropriate to report the name of the protesting group to installation personnel; however, further 

analysis is required in order to determine if this group poses a direct threat to the installation. If the 

group is quietly and calmly protesting, it’s unlikely they are a direct threat, and therefore 

information should not be collected on them by name.15

Finally, note that it is a very rare situation when relevant information cannot be collected in some 

form by some entity. If an intelligence component cannot collect information because it is not FI or 

CI, then it may be possible for a non-intelligence component, such as the military police to collect 

the information. Therefore when analyzing the collection of information concerning U.S. persons, 

ensure that you consider both avenues of authorized collection.

D. The National Guard

The National Guard presents a different set of challenges for the judge advocate as the NG’s 

mission regularly focuses on domestic threats. Notwithstanding, the National Guard does not 

generally conduct domestic intelligence operations. Primarily, domestic intelligence involving U.S. 

persons is a law enforcement matter and is the responsibly of state/local law enforcement and the 

FBI. The Joint Force Headquarters at the State (JFHQ-State) will have an Intelligence officer (J2) 

that is responsible for coordinating intelligence requirements for intelligence preparation of the 

environment (IPE) in support of state and federal missions. The J2 serves as the state’s executive 

agent for foreign threat information sharing between the local, state, and the national levels to 

ensure situational awareness and a common operating picture (COP). The J2 also interprets, 

develops, and implements intelligence and security guidance and policy for the JFHQ-State. The 

National Guard judge advocate must work in conjunction with the J2, and the Inspector General for 

Intelligence Oversight (IG-IO) in reviewing all intelligence plans, proposals and concepts, to 

include Proper Use Memoranda (PUM – the use of which is explained in D.3. below), for legality 

and propriety. The state Provost Marshal (PM) also plays a vital role in developing the situational 

picture by being the lead liaison to the civilian law enforcement community. Thus in this area, NG 

judge advocates need to determine four facts: 1) the status of the person doing the collecting; 2) 

whether that person is operating as part of an intelligence activity; 3) how the information is being 

collected; and, 4) the purpose behind the collection.

1. Status: Title 32 or Title 10

National Guard Soldiers can serve in three statuses, State Active Duty, Title 32, or Title 10, as 

explained in detail in Chapter 3. A Soldier’s status has a direct impact on the authorities at issue 

 15 Note that while it would be counter to DoD 5200.27 to collect information on the activities of the group by stating 

“Group Against the Military (GAM) is protesting outside the front gate,” one could report all the necessary information 

without naming the group and therefore collecting on its activities. One could report that “a group who is not in support 

of the military is protesting outside the front gate” without losing relevant information.
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Intelligence Oversight and Information Handling 174

regarding the collection of information on a U.S. person. Therefore, this determination must be 

made first.

The National Guard may be called up for active duty by state governors or territorial Adjutants 

General to help respond to domestic emergencies and disasters, such as those caused by hurricanes, 

floods, and earthquakes. This status is commonly referred to as “state active duty” or SAD. The 

National Guard may also be called up for active duty by the Federal Government under Title 32 of 

the U.S. Code to perform training or other duties with or without the consent of the State. This 

status is traditionally referred to as Title 32. Finally, the National Guard may be federalized and fall 

under federal command and control, a status referred to as Title 10.

Members of the NG intelligence community serving in a SAD or Title 32 status are not included in 

the definition of DoD intelligence component and as such are technically not regulated by 

intelligence oversight. The Chief of the National Guard Bureau established intelligence oversight 

policy that applies to all members of the National Guard serving in a SAD or Title 32 status. This 

intelligence oversight policy requires that National Guard intelligence personnel operating in a Title 

32 status comply with all federal IO rules without exception. Furthermore, the policy recognizes 

that while National Guard intelligence personnel operating in a State Active Duty status are not 

members of the DoD intelligence community, they are limited by their State law—to include state 

privacy laws—and are prohibited from engaging in what would be a DoD intelligence or 

counterintelligence mission while in a SAD status. In most states the collection, use, maintenance, 

and dissemination of information related to individuals by state agencies is strictly regulated; 

therefore, the practical affect is that even in a SAD status NG members cannot collect information 

on U.S. Persons.16

Additionally, SAD personnel are prohibited from using DoD intelligence resources and equipment 

while in a SAD status. National Guard personnel in a SAD status are not authorized to engage in 

DoD intelligence operations nor are they authorized to access DoD classified systems 

(SIPRnet/JWICS -Joint Worldwide Intelligence Communication System) or equipment (MQ-1, 

border sensors) for a SAD mission without authorization from Secretary of Defense (SECDEF) or 

his designee.17

2. Collection via an Intelligence Activity

The responsibilities of the Soldier, not the MOS or duty title per se, determine whether the Soldier 

is part of an “intelligence activity.” Many states will either reassign intelligence personnel to a nonintelligence mission to assist the J34 force protection section, or will assign them to a unit that is 

specifically tasked to assist local law enforcement and authorized to provide intelligence support—

such as the NG Counter Drug Units operating under 32 U.S.C. § 112 authority. While serving in a 

non-intelligence role, these individuals should not have access to intelligence-related equipment.

If the person collecting the information is a part of the intelligence activity and is conducting 

missions as a member of an intelligence activity without separate special authority, then the person 

must follow the rules for Intelligence Oversight as provided in section B. If the person is not 

 16 See CNGBI 2000.01, supra note 2.

17 Id.
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175 Intelligence Oversight and Information Handling

collecting the information as part of, or for, an intelligence activity then the person must follow 

rules for the handling of U.S. person information as provided in section C.

An example of this latter group would be military law enforcement personnel. They are governed 

by the provisions of DoDD 5200.27. They are responsible for tracking and analyzing criminal 

threats to DoD and domestic threats to DoD. LE personnel liaise with other law enforcement 

agencies to develop the criminal threat situational picture.

3. Method of Collecting

Military Intelligence Equipment may only be used to conduct foreign intelligence related missions 

unless separate authorizations have been granted. This equipment therefore may only be operated 

by NG intelligence personnel serving in a Title 10 or Title 32 status. States wishing to utilize this 

equipment for other than foreign intelligence purposes must request authorization from SECDEF or 

his designee. Legal review by a NGB JA is required prior to such authorizations. Military 

Intelligence Equipment includes, but is not limited to, JWICS (Joint Worldwide Intelligence 

Communication System) and ASAS-L (All Source Analysis System-Light).

The National Guard has a variety of Incident Awareness and Assessment18 tools within its arsenal, 

many of which are not DoD Intelligence Assets. Some of the tools are considered to be both an 

intelligence asset and a non-intelligence asset and therefore a thorough analysis will look at not only 

the capability of the asset but also the sourcing and the authorized use to determine whether or not it 

is a true intelligence asset subject to IO and limitations applicable to Intelligence Equipment. A 

perfect example of this is the RC-26 fixed wing aircraft used by the National Guard. The RC-26 in 

most states is a counter-drug asset, not an intelligence asset, even though it is capable of collecting 

imagery of U.S. persons. In accordance with each respective state counter-drug plan, RC-26’s 

mission is to assist law enforcement in the capture of personnel involved in drug activities. When 

disaster strikes RC-26 is often called upon to assist in life-saving situations. RC-26 provides an 

aerial surveillance capability that enables a commander to understand their area of operations. 

While conducting damage assessments, obstacle and hazard assessments, and other such nonintelligence missions the incidental collection of information on U.S. persons is not a per se

violation. Commanders must be reminded that this information should not be retained and must be 

purged from military records as soon as possible. Likewise, a platform that uses a fixed or movable 

camera may limit incidental collection, and the careful planning of aerial surveillance routes when 

possible (such as to avoid populated areas) may accomplish this as well. Any incidental collection 

of U.S. person information along the planned route that is criminal in nature can be passed along to 

the appropriate law enforcement officials, but information should be purged from the retention 

platform as soon as possible.

Domestic imagery collected by National Guard aerial imagery sensor platforms must be properly 

documented and approved via a Proper Use Memorandum (PUM). These PUM must be in 

accordance with applicable Defense Intelligence Agency (DIA) policy, “Proper Use Statements for 

Domestic Imagery.” The NGB-J2 publishes a PUM handbook to assist JFHQ-J2s on the protocol 

 18 Incident assessment and awareness (IAA) is the use of intelligence, surveillance and reconnaissance (ISR) DoD 

intelligence capabilities for domestic non-intelligence activities approved by the Secretary of Defense, such as search 

and rescue (SAR), damage assessment and situational awareness.
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Intelligence Oversight and Information Handling 176

for submitting a PUM. National Guard judge advocates are responsible for reviewing these PUM 

for compliance with federal and state law and National Guard policy.

4. Purpose of the Collection

A judge advocate must also determine whether information is being collected for an intelligence 

purpose or whether it is being collected to help the commander gain operational, situational 

awareness (for non-intelligence purposes). As mentioned earlier, information is often acquired in 

response to a National Guard commander’s need to establish a common operating picture. If the 

information is for operational, situational awareness, then the judge advocate should assist the 

command by helping shape the collection such that it is limited to the information actually needed 

to accomplish the mission. For example, if the mission requires imagery of ingress and egress 

routes, it is unnecessary for cameras to collect information regarding the license plate numbers of 

those individuals traveling on the roads; but it is necessary to carefully document the roads. 

Therefore, the recommendation can be to remind the collector not to focus on specific personal 

identifying information.

The chart below illustrates the proper flow of information to remain compliant with intelligence 

oversight regulations. It depicts how the J2 and Provost Marshall share and handle sensitive 

information in accordance with both Intelligence Oversight regulations and DoDD 5200.27.

Sensitive Information Handling JFHQ States Intelligence

J2

Legend

LES info

Intel Community Intel Data

Domestic 

Threats to DoD

J34 / PM

AT/FP

Law Enforcement

LE Community

Warnings

INTSUMS

Intel Brief Intel Brief

FPSUMS 

(Criminal (Criminal 

Stats, issues, Stats, issues, 

etc) 

DoD PM

Community

Intel Can & Should:

- Pass relevant data to LE/J34 without 

redaction

- Pass incidental data to LE/J34 without 

redaction

- Review incoming data for intel value within 

90 days; purge unneeded USPER data ASAP

- Redact data when putting in INTSUM or 

briefing

Foreign threat data

Counterintelligence

J34 Can & Should:

- Pass relevant data to J2/LE without 

redaction

- Redact data when putting in FPSUM or 

briefing

- Redact or delete records within 90 days REDACT

REDACT

REDACT

NGB

REDACT

(unless Foreign 

Nexus)

REDACT

(unless Threat)

J34 J2

SLFC

FBI

JTTF FIG

Driven by

TAG CCIRs

Driven by

TAG CCIRs

Sensitive Information Handling JFHQ States Intelligence

J2

Legend

LES info

Intel Community Intel Data

Domestic 

Threats to DoD

J34 / PM

AT/FP

Law Enforcement

LE Community

Warnings

INTSUMS

Intel Brief Intel Brief

FPSUMS 

(Criminal (Criminal 

Stats, issues, Stats, issues, 

etc) 

DoD PM

Community

Intel Can & Should:

- Pass relevant data to LE/J34 without 

redaction

- Pass incidental data to LE/J34 without 

redaction

- Review incoming data for intel value within 

90 days; purge unneeded USPER data ASAP

- Redact data when putting in INTSUM or 

briefing

Foreign threat data

Counterintelligence

J34 Can & Should:

- Pass relevant data to J2/LE without 

redaction

- Redact data when putting in FPSUM or 

briefing

- Redact or delete records within 90 days REDACT

REDACT

REDACT

NGB

REDACT

(unless Foreign 

Nexus)

REDACT

(unless Threat)

J34 J2

SLFC

FBI

JTTF FIG

Driven by

TAG CCIRs

Driven by

TAG CCIRs
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177 Intelligence Oversight and Information Handling

E. Judge Advocate Responsibilities

Judge advocates are responsible for the following: advising the commander and staff on all 

intelligence law and oversight matters within their purview; advising on the permissible acquisition 

and dissemination of information on non-DoD affiliated persons and organizations; recommending 

legally acceptable courses of action; providing limited legal support to the Head Intelligence Officer 

(J-2/G-2/S-2/N-2) and the Inspector General (IG), as they establish an intelligence oversight 

program that helps ensure compliance with applicable law and policy; reviewing all intelligence 

plans, proposals, and concepts for legality and propriety; and training members of the command 

who are engaged in intelligence activities on all laws, policies, treaties, and agreements that apply to 

their activities.

In order to properly perform these duties, judge advocates advising commanders on collecting 

intelligence and information should know and understand a variety of key types of information. 

Judge advocates must be familiar with the missions, plans, and capabilities of subordinate 

intelligence units, and all laws and policies (many of which are classified) that apply to their 

activities. At a minimum, judge advocates should be familiar with the restrictions on the collection, 

retention, and dissemination of information about U.S. persons and non-DoD persons and 

organizations, the approval authorities for the various intelligence activities performed by 

subordinate units, and the requirement to report and investigate questionable activities and certain 

federal crimes.19 Judge advocates must also be familiar with the jurisdictional relationship between 

intelligence and counterintelligence activities as well as the parallel jurisdictions of force protection 

and law enforcement activities. Finally, judge advocates should establish close working 

relationships with the legal advisors of supporting intelligence agencies and organizations, all of 

whom can provide expert assistance.

 19 DoD 5240.1-R, supra note 6, Procedure 15.
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Chapter 10

RUF for Federal Forces 178
Domestic Operational Law Handbook 2015

Chapter 10

179 RUF for Federal Forces

CHAPTER 10

RULES FOR THE USE OF FORCE (RUF) FOR FEDERAL 

FORCES

KEY REFERENCES:

• U.S. CONST. art. II, § 1–3 (Executive, Commander in Chief, and Execution of the Laws 

Clauses, respectively).

• U.S. CONST. amend. IV.

• U.S. CONST. amend. V.

• U.S. CONST. amend. VIII.

• 10 U.S.C. §§ 331–335 - The Insurrection Act.

• 10 U.S.C. § 12301 - Reserve Components Generally.

• 18 U.S.C. § 242 - Deprivation of Rights Under Color of Law.

• 18 U.S.C. § 1385 - Posse Comitatus Act.

• 50 U.S.C. § 2301 et seq. - Defense Against Weapons of Mass Destruction Act.

• Pub. L. No. 105-277 (Omnibus Consolidated and Emergency Appropriations Act 1999), Section 

101(h), as amended by Pub. L. No. 106-58, Title VI, Section 623, Sept. 29, 1999.

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

Forces, June 13, 2005 (S). *** NOTE: As of the publishing of this handbook, the current 

SROE/SRUF remains under revision. Judge Advocates should check to see if the 2005 

SROE/SRUF have been updated.***

• DoDD 5210.56 – Carrying of Firearms and the Use of Force by DoD Personnel Engaged in 

Security, Law and Order, or Counterintelligence Activities, April 1, 2011.

• AR 190-14, Carrying of Firearms and the Use of Force for Law Enforcement and Security 

Duties, March 12, 1993.

• U.S. Department of Justice, Office of Investigative Agency Policies, Resolution 14, Concerning 

the Use of Deadly Force, October 16, 1995.

• FORSCOM Augmentation Forces to Designated AMC and ATEC Sites.

• FORSCOM and USARC Force Protection OPORDs.

• EXORD ISO Consequence Management Operations in New York City and Military District of 

Washington.

• CJCS CONPLAN 0500-98, Military Assistance to Domestic Consequence Management 

Operations in Response to a Chemical Biological Radiological, Nuclear or High-Yield 

Explosive Situation.

• DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, Encl. 4 (DoD Support 

of Civil Disturbance Operations), February 27, 2013.

A. Introduction

CJCSI 3121.01B, which contains the Standing Rules for the Use of Force (SRUF), provides 

operational guidance and establishes fundamental policies and procedures governing actions taken 

by DoD forces performing civil support missions and routine service functions (including AT/FP) 

within the United States and its territories. The instruction is classified overall Secret, however the 

portions discussed and referenced in this chapter are unclassified.
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RUF for Federal Forces 180

Per CJCSI 3121.01B, the SRUF also apply to land-based homeland defense missions within the 

United States and its territories. With respect to personnel, the SRUF apply to DoD forces, 

civilians, and contractors performing law enforcement and security duties at all DoD installations 

worldwide, unless otherwise directed by the Secretary of Defense. 

The SRUF apply to Title 10 forces performing missions both for homeland defense and defense 

support to civil authorities. These rules do not apply to National Guard forces in either state active 

duty or Title 32 status. For information concerning National Guard rules for the use of force (RUF), 

see Chapter 11, infra. Judge advocates should coordinate with the National Guard when operating 

in a joint environment to review the RUF the National Guard is using and ensure compatibility if 

joint missions are contemplated. 

Before beginning any discussion on the use of force in an operational setting, members need to 

understand the basic legal, policy, and practical limitations for the use of force. The use of force for 

domestic mission accomplishment is constrained by federal law and the Standing Rules for the Use 

of Force. Members should also always be aware of the practical ramifications their actions may 

have on the greater mission; they must understand the commander’s intent and ensure they 

understand specific limitations that apply to a specific mission in addition to normal policy and 

legal limitations.

Overall, the SRUF provide the template for training on RUF for domestic operations. The 

development of hypothetical scenarios will assist in posing the ultimate question of whether the 

service member may use force, up to and/or including deadly force. While there are some very 

significant differences between the Standing Rules of Engagement (SROE) and SRUF, SROE 

training concepts for overseas operations can be useful in developing training for SRUF 

application.1

 

It is imperative to ensure commanders, as well as the service members who execute the 

commander’s plans, understand the potential limits on self-defense when operating as part of a unit. 

Unit commanders always retain the inherent right and obligation to exercise unit self-defense in 

response to a hostile act or demonstrated hostile intent. Unless otherwise directed by the unit 

commander, service members may exercise individual self-defense in response to a hostile act or 

demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual 

self-defense becomes a subset of unit self-defense and the unit commander may limit individual 

self-defense by members of the unit.2 

Use of force practice is one of the few areas in which the legal competence of judge advocates can 

have potential life or death consequences for service members and civilians. Therefore, it is vital 

 1

 For a comprehensive discussion on the development, training, and application of the ROE that can be applied to the 

RUF, see CENTER FOR LAW AND MILITARY OPERATIONS, RULES OF ENGAGEMENT (ROE) HANDBOOK FOR JUDGE 

ADVOCATES (2000).

2

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

ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES, Enclosure L (U) para. 4.a. (13 June 2005) 

[hereinafter CJCSI 3121.01B]. Note that the SRUF supersede CJCSI 3121.02, RUF for DoD Personnel Providing 

Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States. 
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181 RUF for Federal Forces

that judge advocates understand and apply appropriate legal and practical considerations when 

practicing in this area. 

This chapter will provide the reader with an introduction to use of force and its key legal references. 

It will discuss the role of judge advocates in use of force training and implementation, the practical 

realities involved in use of force incidents that are often not included in legal references, the legal 

standard for federal use of force, the existing Army policies on use of force, and the potential legal 

liability involved in use of force. 

B. The Judge Advocate’s Role in the Use of Force

Judge advocates are frequently called upon to practice domestic use of force law in routine legal 

duties as well as in domestic operations. This need commonly arises when attorneys advise on 

routine force protection and installation law enforcement activities. Many judge advocates will 

need to train service members on domestic operational RUF or use of force policies for law 

enforcement and security operations. Judge advocates advise units executing domestic operations, 

and will also advise on or review investigations into incidents involving the use of force by service 

members. Judge advocates may be involved in civil or criminal proceedings for a use of force 

incident as a trial counsel, trial defense counsel, Special Assistant U.S. Attorney, or as an attorney 

assisting in defensive federal litigation involving his or her respective service.

Judge advocates may also be called upon to draft mission-specific RUF. There are differing 

opinions as to whether judge advocates should be tasked with directly drafting RUF, or if they 

should simply handle their review. The fact remains, commanders may task an attorney to draft 

RUF directly, so judge advocates should be prepared to do so.

In drafting or reviewing RUF, judge advocates have to understand both the substantive law that 

governs the use of force, as well as the procedures necessary to modify the SRUF. Efforts to either 

augment or restrict the current SRUF must follow precise staffing requirements, and, in the case of 

augmentation, require advanced planning and should be initiated (if not already done by higher 

headquarters) as soon as the need is identified.3

 

Judge advocates performing these duties must know the controlling law for domestic use of force. 

For operations in areas subject to U.S. jurisdiction, the appropriate constitutional law standards as 

interpreted by the courts and the executive branch regulate the use of force. As important, the 

policies or RUF issued by higher headquarters further define the legal requirements for use of force. 

RUF drafters involved in planning or executing a domestic operation should consider critical factors 

that are similar to those involved in SROE development. These factors include the following.

• What is your mission and your commander’s concept of operation?

• What type of unit is involved, what weapons and equipment, if any, will be deployed, and what 

is the level of training of members with the assigned weapons?

 3

 See CJCSI 3121.01B, supra note 2, Enclosure L (U) para. 3.a.–3.b. and Enclosure P (U). The SRUF requires 

Combatant Commanders desiring to augment the SRUF to staff such actions through the CJCS to the Secretary of 

Defense for approval. Restrictions to the SRUF require notification, although limited flexibility is provided for time 

critical situations. Enclosure P provides the template for requests for mission specific SRUF.
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• What threat could your command face?4

• What kind of interaction and exposure to the general public will your service members face?

• What training resources are available for pre-deployment RUF training?

• Does the training program properly address the issues involved with RUF or do training deficits 

raise the potential for misapplication of the rules?

• Does the mission being planned fit well with the existing SRUF or should the local commander 

initiate a process to seek augmentation of the SRUF by submitting a request for a mission 

specific RUF?5

C. Practical Realities of Use of Force Situations

Judge advocates need to understand practical aspects of deadly force confrontations in order to be 

competent in use of force law. Understanding the law and policy of use of force is not enough. 

Judge advocates must recognize that the real world does not always allow for dispassionate, 

reflective, and judicious decision making on whether to use force. Thus, judge advocates should 

consider a number of critical factors when advising on civil support missions. These include: the 

capabilities and limitations service members bring to a potential deadly force confrontation; what is 

known about potential attackers; and, what physical reactions may affect service members during 

and after use of force incidents.

1. Capabilities and Limitations

a. Soldier Equipment

Compared to civilian law enforcement personnel, most service members are not as well-equipped 

for potential confrontations with civilians involving use of force. When drafting RUF for a 

particular mission, commanders must decide if the mission requires service members to be issued 

firearms or other non-lethal weapons. Further, if non-lethal weapons or non-standard weapons or 

ammunition are authorized for the mission, it is critical that soldiers be well-trained in the proper 

employment of these systems.

b. Skill and Training 

Most service members do not receive extensive training on the types of confrontations that are 

involved in domestic operations.6

 Because service members receive little training on tactical 

marksmanship and close quarters confrontations, they may not understand how to shoot accurately 

under stress or how to employ lesser means of force competently. 

 4

 Judge advocates should base their draft SRUF and legal guidance on the worst case scenario. For example, attorneys 

often advise on detention or migrant and refugee camp operations. In most cases, no one expects the detainees to 

violently riot. Unfortunately, rioting can occur in extended detention operations. Structuring your SRUF assuming the 

detainees will passively comply will leave your security force without adequate guidance on how to respond to an 

emergency situation should they face one.

5

 If such a need is identified, staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a 

template. As this must be staffed to the Combatant Commander for staffing through the CJCS to the Secretary of 

Defense for approval, it is imperative that this action be initiated upon the identification of the need.

6

 An exception to this is the U.S. Coast Guard. Coast Guard members often operate in a law enforcement environment 

and have extensive RUF training.
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Many service members have not been trained on domestic law applicable to the use of force and, as 

a consequence, do not understand many of the policy requirements imposed by DoD or their 

service.7 Additionally, service members may also not be sufficiently experienced in applying 

deadly vs. non-deadly techniques. Judge advocates should assist commands in ensuring members 

not only get the right legal and policy training but also the right operational training if they see a 

gap.

2. Potential Threat

Judge advocates must also consider the nature of the threat that service members might face since 

this can factor into advice given for an operation. Service members must be able to correctly apply 

force and distinguish between threats and innocent civilians. Judge advocates should be aware of 

any background information on a threat in an operating area to better inform advice given to 

commanders.

3. Physical and Psychological Effects

It is also important to keep in mind that physical and psychological effects on a member resulting 

from a life or death situation can be critical. The stress of a life or death encounter will often trigger 

the “fight, flight, or freeze” response. Accompanying this, the body and mind undergo a number of 

changes that can affect performance. Judge advocates may have to research these reactions and 

consider their effects if tasked to investigate a use of force incident.

D. SRUF and Areas of Confusion and Concern

Most RUF practitioners will be called to advise and train on either the SRUF or mission specific 

RUF crafted and approved by higher headquarters and the Secretary of Defense. RUF practitioners, 

whether being asked to propose mission specific RUF, advise on existing RUF, or to train RUF 

need to be sensitive to several areas that often become the source of confusion or error. 

Example areas include the concept of use of “minimum force,” the general prohibition on the use of 

warning shots by land forces, the use of warnings to include verbal warnings, and the introduction 

of restrictions that go beyond what is required by the SRUF, any of which may have the inadvertent 

effect of depriving a member of otherwise valid defenses available to federal officers acting in their 

official capacities. For example, state law may impose a duty to retreat as it relates to the use of 

force by private citizens. Judge advocates should ensure federal forces and their RUF are not 

improperly limited by concepts that are not applicable to federal RUF.

Another potential source of confusion for the Army can specifically flow from an effort to reconcile 

portions of AR 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security 

Duties8

 with the SRUF. The SRUF applies broadly both on and off installations and specifically 

 7

 Military police and special operations Soldiers are probably the only population in the Army that routinely learn and 

understand these rules.

8

 U.S. DEP’T OF ARMY, REG. 190-14, CARRYING OF FIREARMS AND USE OF FORCE FOR LAW ENFORCEMENT AND 

SECURITY DUTIES (12 Mar. 1993).
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provides that its provisions apply to “DoD forces, civilians and contractors performing law 

enforcement and security duties at all DoD Installations.”9

AR 190-14, Chapter 3, was revised in 1993 to synchronize with the use of force guidance contained 

in DOD Directive 5210.56. Subsequently, the use of force guidance contained in DoDD 5210.56 

was specifically superceded by the SRUF.10 Judge advocates advising in a variety of areas related 

to law enforcement and security missions to include the development of provisions for contract 

security forces need to be aware of this disconnect between AR 190-14 and the SRUF. When the 

provisions of the two cannot be reconciled, the SRUF will control as its provisions cannot be 

augmented without the approval of the Secretary of Defense and cannot be further restricted without 

providing notice to the same.

E. Legal Authority and Standard for U.S. Military Use of Force in Domestic Operations

The underlying legal authorities for use of force are grounded in the constitutional role of the 

Executive Branch, and are tempered by the constitutionally protected civil rights as listed in the Bill 

of Rights. Against this backdrop, Congress has imposed a number of statutory provisions that help 

define and limit this authority.

The competent use of force practitioner must understand these underlying authorities.11 This is 

similar to the duty of the competent SROE practitioner to understand the underlying public 

international law and law of war authorities guiding their actions. The use of force practitioner and 

SROE practitioner must also understand the differences between these two bodies of law and resist 

the temptation to confuse and meld terms and concepts from one to the other.

Domestic use of force authority flows from the powers of the President as granted under the 

Constitution. The underlying authority of the President to order routine installation force protection 

and law enforcement is justified under the President’s executive powers.12 The authority to order 

the military to defend the homeland against overt international aggression can be found in the 

President’s authority as the Commander in Chief.13 Finally, the President’s authority to order the 

military to execute DSCA operations (Defense Support of Civil Authorities)14 to enforce federal law 

is based on the President’s duty to execute the laws.15 As officers of the Executive Branch, service 

members conduct operations and derive authority from the President’s constitutional authorities.16 

Whenever the military uses force to execute the orders of the President or those he appoints, that 

use of force must be based on constitutional authority.

 9

 CJCSI 3121.01B, supra note 2, para. 1.a.

10 CJCSI 3121.01B, supra note 2, para. 1.b.

11 Since domestic operations have generated very few reported cases involving service members, we must look to 

civilian agency law enforcement cases to help define the limits of military use of force.

12 U.S. CONST., art. II, § 1.

13 Id. § 2.

14 U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb. 

2013).

15 U.S. CONST., art. II, § 3.

16 See e.g., In Re Neagle, 135 U.S. 1 (1890).
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All Executive Branch uses of force are balanced against the civil rights of the public. While three 

primary provisions of the Bill of Rights limit federal use of force in domestic operations, the main 

focus is on the Fourth Amendment.17 The constitutional standard is whether the use of force 

violates the Fourth Amendment prohibition against unreasonable seizures.18 The U.S. Supreme 

Court has described this standard as an objective measurement based on the facts and circumstances 

known to the service member at the time of the use of force.19 This rule is the very heart of the 

standard for governmental use of force.

The “reasonableness” of a particular use of force must be judged from the 

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 

hindsight . . . . The calculus of reasonableness must embody allowance for the fact 

that police officers are often forced to make split-second judgments—in 

circumstances that are tense, uncertain, and rapidly evolving—about the amount of 

force that is necessary in a particular situation. As in other Fourth Amendment 

contexts, however, the “reasonableness” inquiry in an excessive force case is an 

objective one: the question is whether the officers’ actions are “objectively 

reasonable” in light of the facts and circumstances confronting them, without regard 

to their underlying intent or motivation.20

The courts have long recognized the authority to use force, including deadly force, in the 

performance of federal governmental duties.21 Judge advocates must know the limits of the mission 

and how the commander intends to execute this mission in order to advise on the RUF that support 

the operation. This makes the mission analysis portion of planning critical. The phrasing of 

Operations Orders or other directives that define the mission and operation are vital to defining the 

limits of this authority.

Judge advocates involved in drafting mission specific RUF should carefully consider where to 

balance the interests of force protection and the lives of service members against the important 

interest of not risking an excessive use of force incident involving the military. Further, judge 

advocates involved in the development of RUF training must be careful that the training does not 

introduce tactically dangerous or unsound practices or procedures.

Such errors can occur because judge advocates are mistaken in their understanding of the law or 

uncomfortable with the application of the RUF. Specifically, judge advocates should never apply 

Law of War to the domestic law on the use of force.22 Likewise, judge advocates should not 

 17 The other two are the Fifth Amendment Due Process Clause, which limits the ability of federal officers to use force 

after an arrest has occurred, and the Eighth Amendment, which defines the rights of a prisoner when corrections 

personnel use force.

18 U.S. CONST., Amend. IV, provides that “[t]he right of the people to be secure in their persons...against unreasonable 

searches and seizures, shall not be violated . . . .”

19 Graham v. Connor, 490 U.S. 386, 296 (1989).

20 Id. (emphasis added).

21 In Re Neagle, 135 U.S. 1 (1890).

22 As discussed above, the underlying substantive law applicable to domestic governmental use of force is the 

Constitution, not the Law of War. A common example is use of language of “proportionality of response” by a Soldier 

defending against an attack.
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confuse the law of individual self-defense of a private individual with the authority of self-defense 

for government officials.23

1. Minimum Force Necessary or Deadly Force as a Last Resort

The SRUF states “Normally, force is to be used only as a last resort, and the force used should be 

the minimum necessary.”24 The SRUF further states that, “Deadly force is to be used only when all 

lesser means have failed or cannot be reasonably employed.”25 Lastly, the SRUF imposes a 

reasonableness requirement stating that the force used must be “reasonable in intensity, duration 

and magnitude” based on the totality of the circumstances to counter the threat.26

Federal courts, however, do not require that service members employ “minimum force necessary” 

or that they employ deadly force as only a “last resort.” The courts have generally held that the 

issue is solely whether deadly force was reasonably necessary. They have declined to impose a 

requirement to use minimum force.27 Nor do courts require the use of feasible lesser force 

alternatives to avoid the use of justified deadly force.28 Judge advocates involved in planning 

domestic operations that carry a significant risk of potentially lethal encounters with armed or 

dangerous elements should evaluate whether the SRUF meets the task or whether augmented 

mission specific RUF that more closely resembles the standards of case law (and therefore may 

provide more flexibility) should be developed and staffed for approval by the Secretary of 

Defense.29

2. Mandatory Verbal Warnings

Federal courts require the issuance of a verbal warning, where feasible, in the case of using deadly 

force against a fleeing criminal. This is clearly required in the seminal case of Tennessee v. 

Garner.

30 The SRUF does not specifically require a verbal warning but does state that “[w]hen time 

and circumstances permit, the threatening force should be warned and given the opportunity to 

 23 While related, these legal standards are significantly different. A common example of this confusion is a 

requirement to retreat. Government officials using force in the performance of their duty have no duty to retreat and in 

some instances could be in breach of their duty if they do retreat. It is also possible to inadvertently lose the authority to 

use force under governmental authority by wording the RUF to invoke the law of individual right of self-defense of the 

state law or federal common law. For example, a provision that says, “Service members retain their right to use force in 

self-defense as defined by local and state law” reduces the service member’s right to use force in self-defense to the 

level of a private citizen under state law. This is a significant (and unnecessary) concession of otherwise lawful 

defensive authority.

24 CJCSI 3121.01B, supra note 2, Encl. L, para. 5.b.1.

25 Id. para. 5.c.

26 Id. para. 5.b.1.

27 See e.g., O’Neal v. DeKalb County, Ga., 850 F.2d 653, 666 (11th Cir. 1988).

28 See e.g., Deering v. Reich, 183 F.3d 645, 652–53 (7th Cir. 1999).

29 Staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a template. As this must be 

staffed to the Combatant Commander for staffing through the CJCS to the Secretary of Defense for approval; it is 

imperative that this staffing process be initiated upon the identification of the need.

30 Tennessee v. Garner, 471 U.S. 1, 11–12 (1985). Garner provides a three prong analysis under the Fourth 

Amendment for the evaluation of whether the use of deadly force is reasonable. These prongs include: whether there is 

probable cause to believe that the individual suspect is dangerous; whether the use of deadly force is necessary to 

prevent the suspect’s escape; and, whether, if feasible under the circumstances, a verbal warning was given.
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withdraw or cease threatening actions.31 Although the type of warning that should be given is not 

specifically established, it cannot take the form of a warning shot.32

3. Denial of Deadly Force in Self-Defense

Federal courts do not require that service members who are not armed in the course of their duties 

be denied the authority to use deadly force in their own defense. Some commanders and judge 

advocates believe that if there is no authority to arm service members, then there is no authority to 

use deadly force. This presumption is not imposed by federal law. In reference to self-defense, 

however, judge advocates must ensure that service members, acting as part of a unit, understand 

that the SRUF specifically provides that the individual right of self-defense may be restricted. This 

has been explained that when “individuals are assigned and acting as part of a unit, individual selfdefense should be considered a subset of unit self-defense. As such, commanders may limit 

individual self-defense by members of their unit.”33

4. Operational Orders/Execution Orders

For those operations that have not been thoroughly anticipated, attorneys may find that the RUF are 

disseminated through message traffic with an OPORD or EXORD. Often judge advocates will have 

to wait for RUF guidance from higher headquarters because the decision on whether to draft new 

RUF or adopt an existing template has not yet been announced.

5. SRUF Authority to Use Deadly Force

In RUF, the authority to use deadly force exists for limited purposes. The SRUF provides uniform 

guidance on domestic use of force. It also provides a consistent training template to avoid the ad 

hoc approach previously used in domestic operations RUF practice.

a. Inherent Right of Self-defense

As discussed above, unit commanders always retain the inherent right and obligation to exercise 

unit self-defense in response to hostile acts or demonstrated hostile intent. Unless otherwise 

directed by the unit commander, service members may use deadly force when it appears reasonably 

necessary to respond to a hostile act or demonstrated hostile intent. Individual self-defense is a 

subset of unit self-defense and as such may be limited by the unit commander when an individual 

service member is acting as part of a unit. Unit self-defense includes the defense of other DoD 

forces in the vicinity.

 31 CJCSI 3121.01B, supra note 2, Encl. L para. 5.a.

32 Id. para. 5.b(3). There are some limited exceptions to this restriction, but these exceptions are unlikely to be 

encountered by most U.S. Army personnel.

33 Id. para. 4.a.
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b. Defense of Others

The use of deadly force extends to the use of force to defend other non-DoD persons in limited 

circumstances. Service members may use deadly force in defense of non-DoD persons who 1) are 

in the vicinity, and 2) when the use of force is directly related to the assigned mission.34

c. Protection of Assets Vital to National Security

Service members may use deadly force when it appears reasonably necessary to prevent the actual 

theft or sabotage to assets vital to national security. The SRUF defines assets vital to national 

security as President-designated non-DoD and/or DoD property, the actual theft or sabotage of 

which the President determines would seriously jeopardize the fulfillment of a national defense 

mission and would create an imminent threat of death or serious bodily harm.35 The SRUF provides 

a list of potential examples: nuclear assets, nuclear command and control facilities, other designated 

areas that contain sensitive codes or involve special access programs. Planners and commanders 

need to determine the existence of assets in their anticipated area of operations to apply the SRUF 

properly so as to safeguard these designated assets.

d. Protection of Inherently Dangerous Property

Service members may use deadly force when reasonably necessary to prevent the actual theft or 

sabotage of inherently dangerous property. The SRUF defines “inherently dangerous property” as 

property that, in the hands of an unauthorized individual, would create an imminent threat of death 

or serious bodily harm.36 Examples include portable missiles, rockets, arms, ammunition, 

explosives, chemical agents, and special nuclear material. On-scene DoD commanders are 

authorized to classify property as inherently dangerous.37 Command guidance in this area is 

critical. Without clear and proper guidance, the commander’s intent could easily be frustrated. For 

example, a commander may not want to have lethal force deployed against looters who steal small 

arms ammunition. Failure to provide guidance on this could lead to an engagement that was proper 

under a strict reading of the SRUF but is inconsistent with the on-ground commander’s intent. 

Likewise, a commander may consider all crew-served weapons as “inherently dangerous,” but a 

failure to make such designations may lead to confusion over what is “inherently dangerous 

property” by members on the ground.

e. National Critical Infrastructure38

Service members may use deadly force when reasonably necessary to prevent the sabotage of 

national critical infrastructure. National critical infrastructure for DoD purposes is Presidentdesignated public utilities, or similar critical infrastructure, vital to public health or safety, the 

damage to which the President determines would create an imminent threat of death or serious 

bodily injury. Commanders and planners need to identify the existence of such infrastructure when 

preparing for a domestic operation.

 34 Id. para. 5.c.2.

35 Id. para. 4.e.

36 Id. para. 4.f.

37 Id.

38 Id. para. 4.g.
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6. Other Mission-Related Circumstances for Use of Deadly Force

As with the circumstances described above, deadly force may be used, under limited circumstances, 

when directly related to the assigned mission. Further, such force may only be used “when all 

lesser means have failed or cannot reasonably be employed.”39 These additional circumstances, 

where such force may be used when directly related to the assigned mission, are discussed below.

a. Prevention of Serious Offenses against Persons

Service members may use deadly force when it appears reasonably necessary to prevent a serious 

offense involving the threat of imminent death or serious bodily harm. Examples of such crimes 

include murder, armed robbery, and aggravated assault. Further, attempting to set fire to an 

inhabited building or sniping would constitute offenses that involve the threat of imminent death.40

b. Escape41

Service members may use deadly force when it appears reasonably necessary to prevent the escape 

of a prisoner, provided there is probable cause to believe that the prisoner committed or attempted 

to commit a serious offense. Serious offense is defined as one that involves an imminent threat of 

death or serious bodily harm, or an offense that would pose an imminent threat of death or serious 

bodily harm to DoD forces or others in the vicinity.

c. Arrest/Apprehension of Persons Believed to have Committed a Serious Offense42

Service members may use deadly force when it appears reasonably necessary to arrest or apprehend 

a person who they have probable cause to believe has committed a serious offense as defined above.

7. Augmentation of the RUF

A unit commander that desires to augment the SRUF must staff the action to the appropriate 

Combatant Commander. The Combatant Commander must then staff the request through the CJCS 

to the Secretary of Defense for approval.43 Requests for augmentation must be prepared using the 

template provided at Enclosure P, RUF Messaging Process, to CJCSI 3121.01B. Unit commanders

may further restrict the SRUF without prior approval; however, if a restriction is implemented by a 

unit commander on a Secretary of Defense-approved RUF, the Secretary must be notified through 

the Joint Staff. When confronted with time critical situations, commanders can notify the CJCS and 

the Secretary of Defense concurrently, or if not possible, may notify the CJCS as soon as possible 

after the Secretary of Defense notification.44

 39 Id., paras. 5.c & 5.d.

40 Id., para. 5.d.1.

41 Id., para. 5.d.2.

42 Id., para. 5.d.3.

43 Id., para 3.a.

44 Id., para. 3.b.
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F. Liability for Service Members, Leaders, and RUF Drafters in Use of Force Situations

Service members, their leaders, and the planners who draft the RUF for domestic operations face 

potential personal liability for any unlawful use of force by a service member during a domestic 

operation. This includes federal or state civil or criminal proceedings after an incident. In addition, 

such incidents are often accompanied by a variety of investigations that could result in adverse 

administrative consequences. Therefore, it is important that judge advocates be aware of this 

liability as they draft RUF, disseminate the RUF, and participate in training for and the execution of 

domestic operations under RUF. Appropriate attorney involvement can reduce the risk of a service 

member being unnecessarily exposed to the financial and emotional burdens of litigation.

1. Federal Civil Liability

A person injured by a service member’s use of force could seek damages in a federal civil suit 

against the service member and others involved in the RUF. If the person is dead, the family 

members of the decedent could file the suit. This private cause of action for damages—caused by a 

service member’s use of force—is based on deprivation of a Constitutional right. In most cases, 

this will involve the Fourth Amendment standard of objective reasonableness. The seminal case 

that created this cause of action is Bivens v. Six Unknown Agents of the Federal Bureau of 

Narcotics,

45 a civilian law enforcement case. There is caselaw in the DoD civil support realm. One 

reported Supreme Court case (discussed below) involves an Army soldier and use of force against a 

civilian.46

Litigation can also occur in situations where force was not used and an innocent civilian is killed or 

injured as a result. A soldier’s decision not to use force, or a commander’s decision to limit the use 

of deadly force would most likely be found to be within the “discretionary function” defense to 

claims made under the Federal Tort Claims Act (FTCA).47 But if the decision not to use force, 

when it was lawful to do so, was a result of a failure to properly train service members, then the 

U.S. Government could be found liable for negligence under the FTCA. 

a. The Application of Qualified Immunity

Judge advocates serving as advisors, investigators or litigators should understand that qualified 

immunity is a critical dispositive measure to forestall unnecessary burdens on the government and 

its representatives, and it can serve as a bar to trial. Recent caselaw provides guidance on how 

courts apply qualified immunity.

Saucier v. Katz, a 2001 Supreme Court decision, is a noteworthy case in the context of military 

support to domestic operations. Saucier, a Military Police officer assigned to protect the Vice 

 45 Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In that case, the Court held 

that the warrantless entry of Federal agents into the petitioner’s apartment, under color of federal authority, provided a 

federal cause of action for damages under the Fourth Amendment. 

46 See Saucier v. Katz, 533 U.S. 194 (2001). In Saucier, Katz attempted to unfurl a protest banner in close proximity to 

Vice President Gore’s speaking stand on the Presidio of San Francisco. Katz brought a Bivens action against the 

military police that apprehended him. Katz alleged that the military police violated his Fourth Amendment rights by use 

of excessive force in forcibly removing him from the immediate vicinity of the podium and in placing him into a van. 

The Court held the military police member was entitled to qualified immunity.

47 United States v. Gaubert, 499 U.S. 315 (1990).
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President, was accused by Katz of using excessive force. Pursuant to Bivens, Katz filed suit against 

Saucier on the grounds that Saucier had violated Katz’ Fourth Amendment rights. Pearson v. 

Callahan, a 2009 Supreme Court decision, is now the key case from which to analyze issues of 

qualified immunity.48 (Pearson involved an accusation of a Fourth Amendment violation for a 

warrantless search and seizure conducted by Utah state law enforcement officers.). Both cases are 

relevant for judge advocates and discussed below.

For judge advocates vis-à-vis their roles as RUF practitioners, it is first necessary to understand the 

analysis handed down in Saucier as it may still be used by lower courts. In Saucier, the Court 

mandated a two-prong analysis to determine whether an official was entitled to qualified immunity. 

First, a court was required to decide: (1) “whether the facts alleged or shown by the plaintiff make 

out a violation of a constitutional right, and (2) if so, whether that right was ‘clearly established’ at 

the time of the defendant’s alleged misconduct.”49 This analysis was to be strictly applied and 

provided an analytical paradigm that often served to direct early disposition of cases in favor of the 

official without the need for extensive and costly pretrial discovery and litigation.

In Pearson however, the Supreme Court effectively reversed its position in Saucier by holding that 

lower courts were no longer bound to the rigid two-prong analysis. The Court noted, however, that 

the Saucier case could still be used as an appropriate analytical paradigm by lower courts in their 

discretion, but that lower courts were no longer required to use the Saucier procedure.50

Saucier remains an important qualified immunity case; however, in light of Pearson and the 

difficulties lower courts have had with the Saucier analysis, it is uncertain how effective its analysis 

will be for those attempting to assert its procedure to establish qualified immunity.

b. State and local government use of force cases are usually based on a civil cause of 

action created by 42 U.S.C. § 1983

Section 1983 has evolved into an effective basis for citizens to seek damages for alleged violations 

of their rights by governmental organizations or their employees under the Fourteenth Amendment. 

Section 1983 liability has also been extended to apply to those who are involved in use of force 

policy and training decisions. These individuals have been found liable for civil damages if their 

decisions and work contributed to an improper use of force by an individual law enforcement or 

security person.51 As the SRUF specifically directs that commanders at all levels must train their 

 48 Pearson v. Callahan, 555 U.S. 223 (2009). The Court held that the officer’s entry into a home, based on the consent 

of an informant, did not violate clearly established law, and they were thus entitled to qualified immunity.

49 Saucier, 533 U.S. at 194.

50 Pearson, 555 U.S. at 223.

51 A supervisor who causes a constitutional violation by a “deliberate indifference” to constitutional standards in proper 

training for officers may be liable under a Section 1983 cause of action. City of Canton v. Harris, 489 U.S. 378, 388–89 

(1989). While agencies can be found liable for a lack of proper training on deadly force, agency officials have also been 

found liable for a lack of training on non-deadly force (Davis v. Mason County, 927 F.2d 1473, 1483 (9th Cir. 1991)) 

and for training conducted that was insufficient (e.g., Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994)). The 

judge advocate advising a commander on RUF for a domestic operation should compare the difference in effort and 

attention to law between military RUF practice and the comparable efforts of federal law enforcement agencies. While 

Section 1983 may provide plaintiffs with a compensable claim after a use of force encounter as a result of a failure to 

train, the FTCA could also provide a potential remedy when a training requirement existed and it was either not 

accomplished or it can be demonstrated that the training was inadequate or failed to apply the proper standards. 
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subordinates on the use of both deadly and non-deadly force,52 failure to do so may expose 

commanders, their Soldiers, their advisors, and the U.S. Government to a host of legal 

consequences as discussed below.

2. Federal Criminal Liability

Service members could be held criminally liable for unconstitutional or illegal use of force before a 

court-martial, a federal district court, and in some cases, a state court. A federal statute prohibits 

use of force under the color of law that deprives any person of their constitutional or legal rights.53 

Accordingly, DOJ has, in the past, investigated use of force during a domestic military operation 

with a view toward seeking a Grand Jury indictment for violation of this statute.54

3. State Civil and Criminal Liability

Immunity from federal liability does not automatically equate to immunity from state civil or 

criminal liability. In fact, in the “Ruby Ridge” use of force incident, a federal officer was not 

granted immunity from a state criminal proceeding for the shooting of a civilian involved in an 

armed confrontation with the FBI.55

G. Other Trial or Litigation Issues

Judge advocates involved in post-use of force procedures and litigation should be prepared to 

address a number of other issues. First, be prepared to advise commanders on the many 

investigations that could occur. Second, be aware of their service’s procedures on civilian 

litigation. Finally, know that service members have far less legal protection against use of force 

liability than a federal law enforcement agent.

Judge advocates should know that if a service member kills or injures a civilian during a domestic 

operation, a number of agencies could initiate investigations of the incident that would affect both 

the service member and their service. The various units involved, their parent services, any joint 

command, and the National Guard Bureau or State National Guard authorities could initiate an 

administrative investigation and/or Rules for Courts-Martial (RCM) 303 inquiries.56 Commanders 

are often surprised to find that the following civilian investigations could occur:

• An investigation by DOJ or the U.S. Attorney for potential federal civil or criminal disposition;

 

Ironically, it is conceivable that a third party that could have been covered under “defense of others” could argue the 

government failed to protect him or her from other civilians and attempt to bring a claim under the FTCA alleging that 

the Government was negligent in its training of RUF and it contributed to the injury suffered.

52 CJCSI 3121.01B, supra note 2, Encl. L para. 1.b.

53 18 U.S.C. § 242 (2015).

54 For an excellent overview of the liability nightmare resulting from a Marine shooting that was authorized and proper 

under the Rules of Engagement for JTF-6, see Lieutenant Colonel W.A. Stafford, How to Keep Military Personnel from 

Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW., Nov. 2000, at 1.

55 State of Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000). Interestingly, one of the critical factors in the Court’s 

analysis was the fact that a supervisor had published unlawful use of force guidance. This became an issue, even 

though Special Agent Horiuchi based his decision to shoot on the lawful pre-existing RUF, rather than the flawed rules 

published by his team commander.

56 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 303 (2012).
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• An investigation by state, county, or municipal law enforcement authorities for state criminal 

disposition; and

• An administrative investigation by the Inspector General or internal investigative element of a 

federal law enforcement agency if the command was providing support to that federal agency.

Judge advocates also need to know the procedures and considerations involved when dealing with 

potential civil litigation. Army Regulation 27-40, Litigation,57 Air Force Instruction 51-301, Civil 

Litigation,58 Navy Instruction 5800.7D, and Manual of the Judge Advocate General (JAGMAN)59

outline service guidelines on issues such as whether a service member will be entitled to 

government-provided representation, investigation of potential litigation cases, whether the 

government will indemnify the service member for damages in civil cases, and the key points of 

contact when the service may be involved in litigation. Further, Army Pamphlet 27-162, Claims 

Procedures,60 provides guidance on the management of potential claims against the U.S. 

Government under a variety of theories and statutory authorities.61

Finally, judge advocates need to recognize that service members and commanders involved in use 

of force incidents will probably have less legal and practical protection than their counterparts in 

federal law enforcement. Caselaw defining the role of service members using force during 

Homeland Security operations is extremely limited. Many of the cases interpreting governmental 

use of force have expressly or impliedly based their interpretations of the “reasonableness” of the 

force on the law enforcement status of the federal officers involved. These were qualified and 

credentialed law enforcement officers with clear statutory investigative jurisdiction and duties to 

uphold federal law and confront criminals. Service members performing non-traditional Homeland 

Security operations may not have the benefit of this well-defined caselaw. Judges could potentially 

decide cases of first impression involving service members less deferentially than they have for law 

enforcement officials. Finally, Congress has not extended immunity that is routinely applied to 

federal law enforcement to military domestic operations.62

 57 U.S. DEP’T OF ARMY, REG. 27-40, LITIGATION (19 Sep. 1994).

58 U.S. DEP’T OF AIR FORCE, INSTR. 51-301, CIVIL LITIGATION (1 Jul. 2002).

59 U.S. DEP’T OF NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL INSTR. 5800.7D, MANUAL OF THE JUDGE 

ADVOCATE GENERAL (JAGMAN) (26 Jun. 2012).

60 U.S. DEP’T OF ARMY, PAM. 27-162, CLAIMS PROCEDURES (21 Mar. 2008).

61 Claims have been paid in recent history for shootings by U.S. military personnel engaged in the performance of their 

duties. For example, in 1997 U.S. Marines were sent to support the U.S. Border Patrol in Texas along the Mexican 

border during a period of escalating border violence and drug related activity. Although the facts are disputed, a U.S. 

person of Hispanic ancestry was under observation by U.S. Marines. The Marines claimed that the individual under 

surveillance fired at them with a .22 caliber rifle that he had in his possession. The Marine claimed that he returned fire 

when fired upon and he killed the individual with one shot from his M-16 rifle. There was immediate controversy that 

surrounded the incident and the Navy agreed to settle the claim for an amount reported to be $1.3 million. See U.S. 

Settles with Family in Fatal Border Shooting, NY TIMES (August 12, 1998), available at 

http://www.nytimes.com/1998/08/12/us/national-news-briefs-us-settles-with-family-in-fatal-border-shooting.html.

62 Congress, recognizing that the scope of duties for federal law enforcement officers does not typically extend to 

enforcing laws against simple assaults, homicides, and other types of violent crime, extended the scope of employment 

for federal officers having to use force to prevent such violent crimes. The language of this statute does not make it 

applicable to the majority of service members engaged in domestic operations. See Pub. L. 105-277, Section 101(h), as 
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H. Training of Judge Advocates

Ideally, attorney training should include the study of executive, congressional, and judicial 

authorities and constraints on the use of force by government and military personnel, and tactical 

skills training using both lethal and non-lethal measures. Leaders should seek opportunities for 

their judge advocates to obtain basic training in the deployment of weapons in tactical 

engagements.63 If available, training with police may provide them with great insight into the 

challenges confronted by a member in a use of force situation. Although training such as this is 

resource intensive and time consuming, it is difficult for judge advocates that have not been 

exposed to tactical scenarios involving the use of weapons to provide comprehensive advice and 

support to training the force.

If resources or time do not permit “hands on” training, the development of scenario training packets 

can assist in developing better appreciation for application of the RUF. An analysis of likely 

scenarios done in conjunction with a robust discussion of controlling legal authority can help 

illuminate the challenges that will be faced by those who may be called to apply RUF and thus 

better inform judge advocates. Further, these scenarios can be developed to highlight the challenges 

that often face RUF drafters, and thus improve upon their ability to advise on the development and 

application of the RUF.

 

amended by Pub. L. No. 106-58, Title VI, sect. 623, Sept. 29, 1999, often referred to as the Federal Good Samaritan 

Statute.

63 Although the law that governs RUF is different than that which governs ROE, this training will assist judge 

advocates that are called to assist in the development or training of either RUF or ROE, as an appreciation of the tactical 

use of small arms and other lethal and non-lethal weapons will improve a judge advocate’s ability to support members 

and the command significantly.
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CHAPTER 11

RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD

KEY REFERENCES:

• 10 U.S.C. §§ 331-335 - The Insurrection Act.

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

• 28 U.S.C. §§ 1346, 2671 - 2680 - The Federal Tort Claims Act (FTCA).

• 32 U.S.C. § 502 - Required drills and field exercises.

• National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June 

13, 2008.

• Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321, 110 Stat. 3877 

(1996).

A. Introduction

The National Guard, or organized militia, is a federally-recognized state1 government entity, except 

when called or ordered2 to federal active duty as an element of the National Guard of the United 

States.

3

 The effect of this constitutionally-derived4 status is perhaps greatest on the rules for the use 

of force (RUF) for the National Guard.5

 The policies of DoD and service regulations do not apply 

to the National Guard when commanded by state authorities.6 As a result, the law that is the basis 

 1

 “State” as used here includes the fifty states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin 

Islands, all of which have National Guard organizations headed by an Adjutant General (or a Commanding General in 

the case of the District of Columbia National Guard) governed by state law. For example, the New York National 

Guard is governed by NY Consolidated Laws Service, Military Law and the Virginia National Guard is governed by the 

Code of Virginia, Title 44.

2

 Members of the National Guard are called to duty under 10 U.S.C. §§ 331–333 and are ordered to duty under 10 

U.S.C. §§ 12301–12304.

3

 See Perpich v. Department of Defense, 496 U.S. 334 (1990).

4

 The National Guard derives its state status from the Militia Clauses of the U.S. Constitution. U.S. CONST., art. I, § 8, 

cl. 15, 16.

5

 The law forming the bases for the Rules for the Use of Force (RUF) by the National Guard is the general criminal law 

of the states. There is, therefore, no single term used to describe those rules as states have referred to them variously as 

rules of engagement (ROE), rules for the use of force (RUF), rules on the use of force (ROUF), and rules of interaction 

(ROI). “RUF,” as used in this chapter, is used as a generic term intended to encompass those rules of the 54 National 

Guard jurisdictions which are based upon the criminal laws of those individual jurisdictions. Compare this to the 

standing rules on the use of force (SRUF) in JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF 

INSTRUCTION 3121.01B, STANDING RULES OF ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES

(13 Jun. 2005) [hereinafter CJCSI 3121.01B]. CJCSI 3121.01B is classified overall secret; the portions regarding 

SRUF discussed herein are unclassified. *** NOTE: As of the publishing of this handbook, the current 

SROE/SRUF remain under revision. Judge Advocates should check to see if the 2005 SROE/SRUF have been 

updated before providing advice on these rules.*** 

6

 CJCSI 3121.01B SRUF apply to the Army National Guard only when called or ordered to active duty in a federal 

status under the provisions of Title 10, U.S.C. See, e.g., U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF 

CIVIL AUTHORITIES (21 Sept. 2012); U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW 

ENFORCEMENT AGENCIES (27 Feb. 2013). 
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for National Guard RUF is the state law in which a National Guard unit is performing the mission.7 

The drafting and application of state National Guard RUF, derived from state law and National 

Guard Bureau policy,8 is the subject of this chapter.9

B. RUF and State Law

1. State Law Applicable to Both Title 32 and SAD Statuses

Many National Guard operations in support of civil authorities are in support of state civil 

authorities and are undertaken on a state-funded basis, usually referred to as “state active duty” 

(SAD).10 These types of operations include response to natural disasters, providing security during 

civil disturbances, and assistance to civil authorities during other state emergencies, such as strikes 

at state institutions. The notable operational exceptions include National Special Security Events 

(NSSE) as discussed in Chapter 8,

11 the 2001–2002 National Guard airport security mission 

(hereinafter airport security mission), the 2012 NATO Summit in Chicago, and the Democratic and 

Republican National Conventions of 2008.12 These operations were performed in Title 32 status.13 

 7

 A more in-depth explanation is that the criminal law of the states applies to both members of the National Guard 

operating in a state status and to off-post operations (and in some instances, some on-post activities) of the active 

components of the U.S. armed forces (including the National Guard called or ordered to active federal service). See 

Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the Right Thing: 

Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1. The active component, because of its 

federal mission, is however largely protected from the impact of state criminal law by the doctrine of federal Supremacy 

Clause immunity. Judicial opinions dealing with the application of that doctrine to the military are discussed in the text 

infra at subparagraph C.2.

8

 National Guard Bureau policy states that use of force is governed by state law. See NATIONAL GUARD REGULATION

500-1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS (13 Jun. 08) [hereinafter NGR 500-1].

9

 This chapter does not include consideration of state rules for the use of force applied as part of the National Guard 

counter-drug program, for that see infra Chapter 7, Counterdrug Operations.

10 See generally DEP’T OF DEFENSE, DIR. 5101.83, NATIONAL GUARD JOINT FORCE HEADQUARTERS-STATE (NG

JFHQS-STATE) (5 Jan. 2011). State active duty [SAD] is a status pursuant to state law only and is funded by the state, 

unlike the status in which the National Guard trains for its federal mission pursuant to Title 32 of the United States 

Code [Title 32 status], which is federally funded and regulated. The National Guard in a SAD status may, however, use 

certain federal equipment, subject to a requirement for reimbursement for that use. In SAD status, National Guard 

Bureau and Active Army regulations do not usually apply unless the state has adopted those regulations as a matter of 

state law; for more information, see Chapter 3 infra.

11 For example, the National Guard provided security support for the 1996 Summer Olympics in Atlanta, Georgia, and 

the 2002 Winter Olympics in Salt Lake City, Utah.

12 The airport security mission was served as “other duty,” pursuant to 32 U.S.C. § 502(f). On September 27, 2001, the 

President made a request to all of the state Governors that they call their National Guard personnel to duty, to be paid 

for by the United States, according to a White House press release. Between four and five thousand National Guard 

personnel served at approximately 450 commercial airports around the United States in response to the President’s 

request. Additionally, New York National Guard personnel in a Title 32 status after the 9/11 terrorist attacks performed 

another mission in the form of armory security. See Transcript of After Action Review Conference, Office of the Staff 

Judge Advocate, State Area Command (STARC), New York Army National Guard, and the Center for Law and 

Military Operations, at 17–18 (17–18 May 2002) [hereinafter NYARNG Transcript] (on file with CLAMO).

13 U.S. DEP’T OF ARMY, NATIONAL GUARD REG. 350-1, ARMY NATIONAL GUARD TRAINING, para. 2-1a(9) (3 Jun.

1991) [hereinafter NGR 350-1] (providing that Title 32 status may be used by an Adjutant General for what would 

otherwise be a state (SAD) mission if the Adjutant General determines that the mission will provide a training benefit 

for National Guard personnel in their federal role). At least one state, New York, chose to exercise all or part of the 

airport security mission in SAD status.
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197 RUF for the National Guard

As explained in detail in Chapter 3, both SAD and Title 32 statuses are non-federal and state law 

applies.14 As such, it is the criminal and civil law of the states hosting the events, i.e., the Olympics 

and the conventions, that govern the RUF. In the case of airport security, missions were executed in 

many of the 54 National Guard jurisdictions. Each jurisdiction in which an airport was secured by 

National Guard personnel applied its own state law.15 Consequently, multiple sets of RUF were 

used during the airport security mission. Although most rules addressed similar subjects, the 

specific implementation of these rules varied depending on the jurisdiction.16 Examples of state 

RUF referred to throughout this chapter are, unless otherwise indicated, the RUF of the airport 

security mission.

2. Subjects for Inclusion in State RUF for the National Guard

When the National Guard executes a Title 32 or SAD mission that utilizes RUF, the subjects 

appropriate for the RUF are derived from the mission operation plan or operation order 

(OPLAN/OPORD). The RUF covers core state law subjects such as the right of self defense 

(including the retreat doctrine) necessary warning, proportionality, and location issues (for instance 

the defender’s home or work place). The RUF should also address the right to carry and discharge 

firearms, the authority of National Guard personnel as peace officers, and the authority for 

apprehension, search, and seizure. Whether, and the extent to which, these basic RUF subjects are 

included in a given OPLAN/OPORD are mission-dependent decisions.17

a. Subjects Appropriate for Inclusion in All RUF

(1) RUF Change Authority

An important element appropriate for virtually all state National Guard RUF is an explanation of the 

authority to modify the RUF. If Adjutants General have delegated that authority to subordinate 

commanders, then the RUF must clearly state which part(s) of the RUF may be changed, in what 

manner and by whom. If the RUF contain no delegation of authority, then either the Adjutant 

General or state level task force commander retains the authority. If authority to change the RUF is 

wholly denied, including the authority to further restrict the RUF, then that should also be made 

clear.

(2) Right of Self-Defense

 14 See infra Chapter 3. Note that this may not always be the case in federal use of force law liability. For example, if 

National Guard personnel in a Title 32 or SAD status are inadvertently made subject to the orders and authority of a 

federal commander, they could be held to a use of force standard as defined by applicable federal law.

15 The 1996 Summer Games in Georgia and the 2002 Winter Games in Utah are two examples.

16 In 2003, the Counterdrug and Operational Law Team of the Chief Counsel’s Office, National Guard Bureau, 

collected and reviewed virtually all of the state RUFs used in the airport security mission. All these RUFs are retained 

by that office in both paper and electronic format.

17 For example, if the mission includes the security of certain real property, then the right to search and seize and 

amount of force necessary to undertake the inspection of persons and personal property entering and leaving that 

location should be included in the OPLAN/OPORD or RUF.
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Another element appropriate for inclusion in all RUF, even for unarmed security missions, is the 

right to exercise reasonable and necessary force in self defense.18 Mission analysis19 and state law20

will determine whether, as part of the general right of self defense, National Guard personnel will 

be armed. Judge advocates should help determine that appropriate procedural requirements 

regarding the carriage of weapons have been met well before a mission. One of the early concerns 

for New York Army National Guard judge advocates after the 11 September 2001 terrorist attacks 

was the authority of New York National Guard personnel to carry weapons. Under New York law 

“[p]ersons in the military service of the state of New York when duly authorized by regulation 

issued by the adjutant general” are authorized to carry firearms.21 Unfortunately, such regulations 

were not previously promulgated. Consequently, the judge advocates drafted Department of 

Military and Naval Affairs (DMNA) Regulation 27-13, Carrying of Firearms and Use of Force, 

which the Governor’s Counsel Office approved on 29 September 2001.22

The RUF must also address state law topics such as the right to defend others,23 the duty to retreat,24

the use of deadly force to prevent escapes,25 the requirement or limit on the use of warnings before 

the employment of deadly force in self defense,26 the requirement for the use of proportionality,27

 18 See CJCSI 3121.01B, supra note 5, Encl. L(U), para. 4.a. It provides that service members may exercise individual 

self-defense in response to a hostile act or demonstrated hostile intent, except as limited by a commander as part of unit 

self-defense. The SRUF provide that a unit commander may limit the use of individual self-defense by members of 

their unit. Whether state National Guard RUF may, like the SRUF, deny the right of individual self-defense in some 

instances, is open to question, especially because many states have statutes applicable to all persons within the state, 

including National Guard personnel, providing for the right of self-defense. See, e.g., MONT. CODE ANN. § 45-3-102. It 

is likely that National Guard commanders could lawfully place restrictions on the use, for self-defense purposes, of 

weapons issued by the National Guard; however, if a weapon is issued for the purposes of mission accomplishment, it 

may make little tactical sense to deny the use of the same weapon for purposes of individual self-defense.

19 As used herein, “mission analysis” refers to the commander’s vision of the execution of the mission, a determination 

of the amount of force necessary for mission accomplishment, and a determination, in light of known factors such as 

intelligence on the nature of the threat presented to state forces, of whether National Guard personnel could be the 

subject of any type of physical attack in executing the mission.

20 It is important to distinguish between the citizen’s individual right of self-defense from the right of a government 

official to use force in self-defense. The rights and duties for these two different legal theories are similar, but contain 

critical differences. RUF drafters must decide which legal authority they wish to invoke, and then ensure that the 

description of this authority remains consistent. Ambiguities created by confusing the two authorities could lead to 

confusion by members. Almost all of the topics listed in this section will allow for different conduct by a member 

acting in self-defense under the two theories.

21 N.Y. PENAL LAW § 265-20.

22 NYARNG Transcript, supra note 12, at 51.

23 The right to defend others is frequently the subject of the same state statutes that provide for an individual’s right to 

defend him or herself. See, e.g., CONN. GEN. STAT. § 53a-19(a); COLO. REV. STAT. § 18-1-704(2).

24 The laws of several states require the duty to retreat, so, for the airport security mission, those states included the 

duty in the RUF. See, e.g., Connecticut airport security mission RUF para. IIIC(b) and CONN. GEN. STAT. § 53a-19(b).

25 For a detailed discussion of the Fourth Amendment aspects of this topic in the context of FBI RUF, see Harris v. 

Roderick, 126 F.3d 1189 (9th Cir. 1997).

26 Many, if not most, states included the necessity for a warning (if possible) before resorting to the use of deadly force 

in the airport security mission RUF.

27 Some state RUF used for the airport security mission specifically required that action taken in self-defense must be 

proportional to the force used in the attack necessitating the defense. 
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199 RUF for the National Guard

and whether the place where the right of self defense is exercised imposes additional legal 

implications.28

(3) Special Orders

Many RUF include discussion of issues not directly related to the use of force. These issues are 

called “special orders” and cover such matters as: training (including training scenarios), military 

bearing and appearance, immunity, standards of conduct and treatment of civilians, safety, handling 

news media, discussion of the mission with others, and handling of suspicious persons, vehicles, 

and activities. Usually, the state Adjutant General or the task force commander will decide whether 

to include them in the RUF or in the OPLAN/OPORD.

b. Role of State Law in Determining RUF for Law Enforcement, Law Enforcement 

Support, and Security Missions

There are variations between the states regarding National Guard authority to apply force during a 

law enforcement,29 law enforcement support,30or security operation. For example, some states by 

statute give the National Guard the full authority of peace officers.31 In other states, the National 

Guard has only those peace officer-type powers enjoyed by the population at large.32 Still others 

provide that the National Guard has certain specific authorities in limited situations.33 Depending 

upon the state statutes, the National Guard’s authority to act as peace officers may apply to 

operations in a Title 32 status, SAD status, or both.34 Regardless, the National Guard judge 

 28 In some states, the right of self-defense is greater when exercised in the defender’s home or place of work. In those 

places there is often no duty to retreat. See, e.g., CONN. GEN. STAT. § 53a-19(b); N. D. CENT. CODE § 12.1-05-07.

29 Because the Posse Comitatus Act, 18 U.S.C. § 1385 (2015) [hereinafter PCA] does not apply to the National Guard 

when not in federal status or under federal control, there is no federal law prohibiting the National Guard from 

participating in direct law enforcement actions. Whether the National Guard forces of any state may otherwise 

participate in such actions therefore depends upon the law of the individual states. Concerning application of the PCA 

to the National Guard, see also infra subparagraph C.2.

30 For the purposes of the National Guard, “law enforcement support” usually means assistance provided to civilian law 

enforcement agencies at their direction or request – a meaning which may differ for purposes of the PCA regarding 

federal military forces.

31 For example, Arkansas law at ARK. CODE ANN. § 12-61-112(a) provides the following:

(a) Whenever such forces or any part thereof shall be ordered out for service of any kind, they shall have all 

powers, duties, and immunities of peace officers of the State of Arkansas in addition to all powers, duties, and 

immunities now otherwise provided by law.

32 See, e.g., Iowa RUF for the airport security mission “Task Force Freedom Flight - Airport Security Instructions,” 

para. 4 and its reliance, for the purposes of arrest of civilians committing crimes in the presence of National Guard 

personnel, on Iowa Code § 804.9, granting ordinary citizens the power of arrest; Nebraska Rules of Interaction (ROI) 

#02, 2 Oct. 2001, para. 7 (“You must apply the use of force rules that apply to a private citizen under state law”); and 

Use of Force and Arrest Powers of New York National Guard Soldiers, para. 5 (“a National Guardsman’s power and 

authority under New York state law are the same as any other citizen”). When conducting SAD missions in the wake of 

the 11 Sept. 2001 terrorist attacks, the NYARNG had no greater power than the normal citizen regarding arrest 

authority. Although a New York State Emergency Act provided a mechanism for the NYARNG to be designated as 

peace officers, the provision was not used because the Act also required a lengthy training period. See NYARNG 

Transcript, supra note 12, at 52.

33 See, e.g., GA. CODE ANN. § 38-2-6–38-2-6.1.

34 For example, Ark. Code Ann. § 12-61-112 applies “Whenever” National Guard forces are ordered to “service of any 

kind,” but Ga. Code Ann. § 38-2-6 to 38-2-6.1, provides that the Governor has the power “in case of invasion, disaster, 

insurrection, riot, breach of the peace, combination to oppose the enforcement of the law, or imminent danger thereof” 
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advocate must participate in the effort to tailor the RUF to the particular mission, state law, and the 

policies of the state Adjutant General.35 

c. Subjects Appropriate for Inclusion in Law Enforcement, Law Enforcement 

Support, and Security Mission RUF

(1) Use of Force and Level of Force Generally

If the National Guard mission is law enforcement, law enforcement support, or security, the mission 

OPLAN/OPORD or its RUF must specify what type of government weapons, if any, may be used 

for mission accomplishment and self defense. How those weapons may be used, what law 

enforcement-type actions (such as search and seizure) may be taken, and the level of force that may 

be used should also be addressed. If authority is not granted for any law enforcement-type action 

(such as search and seizure) under any circumstances for mission accomplishment, the RUF or 

mission OPLAN/OPORD should expressly deny the use of force for the specified purpose. 

Conversely, if National Guard personnel are allowed to take some law enforcement-type actions as 

a last resort, such as the power to detain and question and/or search persons only when civilian law 

enforcement personnel are unavailable or where National Guard personnel have been directed to do 

so by civilian law enforcement personnel, this should be stated. The RUF must also address the 

degree of force authorized for National Guard personnel in the execution of law enforcement-type 

actions for mission accomplishment, self defense, or both.

For example, if a law enforcement support or security mission includes guarding buildings or real 

property, the RUF must address whether persons entering or leaving the property may be detained 

and questioned or searched by National Guard personnel. If detention, questioning and/or search 

are authorized, then the RUF must state whether and to what degree force may be used to enforce 

the action. Moreover, for missions that include guarding buildings or real property, the RUF must 

address whether force up to and including deadly force may be used to defend the property. For 

example, some airport security mission RUF provided that deadly force could be used to defend 

specially designated property in addition to defense of persons.

36 But National Guard judge 

advocates must ensure that a state permits the designation of such property and the use of deadly 

force to defend it.

(2) Definitions

Definitions may be appropriate for inclusion in all RUF but they are particularly necessary in armed 

law enforcement, law enforcement support, or security operations. Using law enforcement-type 

terms that National Guard personnel may not be familiar with may create confusion and may have 

unintended consequences. Terms commonly defined include: deadly weapon; firearm; reasonable, 

necessary, or minimum force; peace officer; probable cause; reasonable suspicion; reasonable 

belief; deadly and non-deadly force; arrest (civilian or military term); apprehension; detention; 

 

to declare an emergency ordering the National Guard into “the active service of the state” and granting the National 

Guard the authority to “quell riots, insurrections, or a gross breach of the peace or to maintain order.”

35 For the purposes of the airport security mission, some states adopted more restrictive RUF than state law allowed. 

36 On the other hand, the NYARNG RUF did not allow the use of deadly force to protect property. Deadly force was 

only authorized in self-defense “if there was a threat of death or grievous bodily harm.” See NYARNG Transcript, 

supra note 12, at 70.
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201 RUF for the National Guard 

property vital to public health or safety (or other similar phrase); forcible felony (when use of force

is predicated on commission of a forcible felony); hostile act; hostile intent; proportionality or 

proportional force; felony; and misdemeanor. 

(3) Arming Orders

If firearms or other weapons with the capability to kill or severely injure another will be issued, then 

the RUF should provide for positive control by experienced NCOs or officers. One method of 

accomplishing this is to specify how members will carry their weapons, ammunition, and other 

ancillary equipment, expressed through arming orders. Arming orders are a state of preparedness to 

use force. They should not be confused with the authority to use force once a member is faced with 

a threat. Arming orders are typically written in a chart or matrix format, specifying where or how 

the weapons will be carried and where ammunition will be kept, including when and where loaded 

magazines should be carried and when rounds should be chambered. Use of weapons other than 

firearms should also be addressed if those weapons will be issued.37 Below is an example of arming 

orders used by the Indiana National Guard for the airport security mission.

Arming Rifle or Pistol Baton Chamber Ammo Bayon Weapon/

Order Shotgun et Safety

AO-1 Sling Holster Belt Empty In Pouch Not 

issued ON

AO-2 Port Holster Belt Empty In Pouch Not 

issued ON

AO-3 Sling Holster Hand Empty In Pouch Not 

issued ON

AO-4 Port Holster Hand Empty In Pouch Not 

issued ON

AO-5 Port Holster Hand Empty In 

Weapon

Not 

issued ON

AO-6 Port In Hand Belt Locked & 

Loaded

In 

Weapon

Not 

issued ON*

* Leave safety on until ready to fire 

 

37 Other weapons may include use of water, batons, pepper spray, or tasers. In airport security mission RUF, some 

states began their use of force matrix at a much lower level than would usually be the case, such as with an unarmed 

member first attempting verbal persuasion, then using “unarmed defensive techniques,” then using non-deadly physical 

force to restrain the aggressor, then stating that a weapon would be drawn if the aggressor continued his or her 

aggression, then drawing and displaying the weapon, then stating that a round would be chambered, etc. Commanders 

using this technique must of course explain that in a true tactical situation, the command does not expect that each 

service member must always use each and every incremental increase in the use of force; in some instances it would be 

futile and could risk injury to do anything except for, drawing and firing a weapon.
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(4) THREATCON Levels Matched to RUF

Another method of control includes adjusting the readiness posture in relation to the threat 

condition,38 or THREATCON.39 One way to make RUF dependent upon THREATCON level is 

through use of arming orders in which the order number (condition of readiness of the firearm or 

other weapon) relates to the THREATCON in effect.40

(5) Special Orders

Other potential subjects appropriate for inclusion in National Guard RUF for law enforcement, law 

enforcement support, or security missions concerning use of force include: the relationship of 

National Guard personnel to civilian law enforcement personnel,41 acting at the direction of civilian 

law enforcement,42 defense of others, pursuit of suspects, retention of evidence,43 use of restraints, 

reports of firearm discharge,44 or other use of deadly force, accountability of weapons and 

ammunition, and a prohibition against use of non-issued weapons and ammunition.

 38 The THREATCON levels are ALPHA, BRAVO, CHARLEY, and DELTA. U.S. DEP’TS OF ARMY AND AIR FORCE,

NATIONAL GUARD BUREAU PAM 190-1/AIR FORCE NATIONAL GUARD PAM 208-2, App. A (15 Jul. 1986) [hereinafter 

NGBP 190-1/ANGP 208-2]. Note that this is different from Force Protection Conditions (FPCON) used by DoD and 

the Army. Army FPCONs are progressive levels of security measures implemented in response to threats facing DoD 

and Army personnel, information and critical resources. See U.S. DEP’T OF DEFENSE, DIR. 2000.12, DOD

ANTITERRORRISM PROGRAM (18 Aug. 2003).

39 Texas Rules for the Use of Force for the airport security mission specifically relied on THREATCON levels. Other 

states providing for “levels” of threat or RUF for the purposes of the airport security mission were Arkansas and North 

Carolina.

40 The THREATCON levels provided in NGBP 190-1/ANGP 208-2, supra note 38, provide for increased security 

measures depending on the particular THREATCON level then in effect. 

41 In a mission supporting civil authorities, National Guard personnel are typically instructed to rely upon civilian law 

enforcement personnel to detain and question persons, conduct searches and seizures, and to apprehend offenders, and 

to take any of these steps themselves only when requested or directed by those civilian law enforcement personnel or 

only in the most exigent of other circumstances. See NGR 500-1, supra note 8; and, for the purposes of the airport 

security mission, 29 Sept. 2001 ARNG Airport Security Instructions, para. 2-1, 3-6b [hereinafter ARNG Airport 

Security Instructions] (limiting the National Guard to a law enforcement support role during the airport security 

mission).

42 Actions taken at the direction of federal personnel will help support the argument that National Guard members are 

shielded by federal Supremacy Clause immunity from state criminal charges. See text infra, subparagraph C.2.; also 

see, West Virginia v. Laing, 133 F. 887 (4th Cir. 1904) and James River Apartments, Inc. v. Federal Hous. Admin., 136 

F. Supp. 24 (D. Md. 1955), in which persons who otherwise had no federal or other governmental status were given 

federal Supremacy Clause immunity by judicial opinion because they acted at the behest of federal officials. Note also 

that National Guard members taking law enforcement-type action at the express request or direction of law enforcement 

personnel may be provided with state immunity from civil or criminal prosecution. See, e.g., UTAH CODE ANN. § 76-2-

404; CONN. GEN. STAT. § 53a-22(d)–(e).

43 DA Form 3316R (Detainee Turnover Record) may be used to inventory items taken from detainees.

44 ARNG Airport Security Instruction, supra note 41, para. 3-17a(3), required that the discharge of firearms, among 

other matters, by National Guard personnel serving in that mission be reported to the National Guard Bureau as a 

serious incident.
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203 RUF for the National Guard

C. Specific RUF Issues

1. RUF in Interstate (Cross Border) Operations

National Guard forces may cross state borders both for training in a Title 32 status for their federal 

mission and for assisting neighboring states in SAD status. Naturally, for many of these operations, 

the units carry their organic weapons. In some states, however, state code or constitutions may 

complicate this practice. For example, § 33 of the Montana Constitution provides that no “armed 

persons . . . shall be brought into this state for the preservation of the peace . . . except upon 

application of the legislature . . .” and § 431.011 of Texas Statutes provides that a “military force 

from another state . . . may not enter the state without the permission of the governor.” Statutes or 

constitutional provisions like these can impede the timely flow of National Guard forces from one 

state to another.

Federal Supremacy Clause immunity45 may be a viable defense should an violation of state law 

arise in the case of a National Guard force crossing a state border for federal training purposes (this 

concept is discussed more below). If Federal Supremacy Clause immunity is successful in defense 

of a violation of state law, then the use of one state’s RUF would not appear to be an issue in crossborder operations (unless the RUF themselves are unconstitutional or illegal under federal law),46

unless operations undertaken in a SAD status are involved.47 

The best approach is to work in advance of the need to cross a state border to get proper approvals 

to enter. Cross-border operations by state National Guard units in a SAD status for the purposes of 

disaster relief or other state emergencies within a second state have typically been accomplished 

pursuant to several disaster-related or “National Guard-only” interstate compacts.48 The latest of 

these compacts available for use during disaster relief or other state emergencies by the National 

Guard, and the one most recently approved by Congress, is the Emergency Management Assistance 

Compact (EMAC).49 All states now have codified the EMAC, most without change. Since its 

 45 See text infra subparagraph C.2.

46 For an example of unconstitutional RUF, see Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997).

47 It is even more likely that an armed National Guard force would be seen as a threat if entering the state in a SAD 

status to control civil unrest, rather than under a pure training mission pursuant to 32 U.S.C. § 502(f). Also note that 

some civil support missions undertaken for state purposes may be counted as training; however, under NGR 350-1, 

supra note 13, para. 2-1a(9), and federal Supremacy Clause, immunity may be available to protect that mission or part 

of that mission.

48 AMERICAN LAW SOURCE ON-LINE, United States – Interstate Compacts, http://www.lawsource.com/also/usa.cgi?usi

(last visited Sept 2, 2014) provides a listing of interstate compacts, including those of most direct concern to the 

National Guard: the Emergency Management Assistance Compact (EMAC); the Interstate Civil Defense and Disaster 

Compact; the Interstate Emergency Management Compact; the Interstate Mutual Aid Compact; and the National Guard 

Mutual Assistance Compact. This on-line list includes neither the Massachusetts Compact with New York for Military 

Aid in an Emergency nor the New England States Emergency Military Aid Compact.

49 The Emergency Management Assistance Compact (EMAC) was approved by Congress in October of 1996, see Pub. 

L. No. 104-321, 110 Stat. 3877 (1996) [hereinafter EMAC]. At the time of the 9/11 terrorist attacks, New York was not 

a member of the EMAC. New York did, however, have a 1951 Mutual Aid Compact with New Jersey, Vermont, and 

Massachusetts. A major issue that arose was what state would have command and control over service members from 

other states. NYARNG Transcript, supra note 12, at 35-6.
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approval by Congress in 1996, many states have used EMAC for various state emergencies. The 

possibility of its use in situations where the use of force may be necessary exists.50

EMAC, like all congressionally-approved interstate compacts, is federal law.51 As such, it is 

applied in the same manner as other federal legislation.52 This position in the legal hierarchy 

provides a basis to overcome state constitutional provisions that would otherwise serve to prohibit 

the entry of National Guard members from other states.53 Further, peace officer powers granted by 

the requesting state’s statutes only to the National Guard forces of that state54 may be granted to the 

National Guard forces of the sending state by the use of one or more EMAC supplemental 

agreements.55

Finally, National Guard judge advocates advising the State Adjutant General or Task Force 

commander for the sending and/or receiving state in cross-border law enforcement operations in a 

SAD or Title 32 status under EMAC should take note of Art. XIII, Other Provisions, of that 

compact.56 This provision is untested in the courts57 but its apparent intent may be to apply the 

Posse Comitatus Act to National Guard operations, by denying the use of EMAC to the National 

Guard58 in situations where the PCA would prevent the active components of the Army and Air 

 50 The Emergency Management Assistance Compact Guidebook & Standard Operating Procedures manual of the 

National Emergency Management Association notes that EMAC has been used for several large-scale emergencies, 

such as Hurricane Andrew, and notes that it was used in response to 9/11 terrorist attacks on the World Trade Center in 

New York. MUNRO, DOUGLAS P., THE EMERGENCY MANAGEMENT ASSISTANCE COMPACT GUIDEBOOK & STANDARD 

OPERATING PROCEDURES (Diane Pub. Co., 1997) [hereinafter EMAC SOP manual].

51 See, e.g., Texas v. New Mexico, 462 U.S. 554 (1983).

52 See, e.g., Skamania County v. Woodall, 16 P.3d 701 (Wash. 2001).

53 The EMAC provides that a request by one party state for mutual aid from a second state is mandatory in that the 

request must be honored, subject only to the second state’s right to retain within that state those resources as are 

necessary for self protection. EMAC, supra note 49, art. IV, para.1.

54 See ARK. CODE ANN. § 12-61-112(a).

55 The EMAC provides that the power of arrest is granted to the emergency forces of the sending state if that power is 

“specifically agreed to” by the receiving state. EMAC, supra note 49, art. IV, para. 2. If the statutes of the receiving 

state grant only the National Guard forces of that state the authority of a peace officer, that limitation might be 

overcome by providing for the expanded authority of those forces from the sending state into one or more 

supplementary agreements pursuant to EMAC Article VII. Including this authority in a supplemental agreement could 

overcome the limitations to a state’s own National Guard units because an agreement implementing an interstate 

compact that has been approved by Congress has been held also to have the force and effect of federal law. See Tahoe 

Reg’l Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985). A related issue is whether the executive branch 

emergency forces of two states whose legislative branches have granted no peace officer authority to either of their 

respective National Guard forces can nevertheless give themselves those powers and their supporting RUF by the 

inclusion of those powers in an EMAC Article VII supplementary agreement.

56 See EMAC, supra note 49, art. XIII (providing that “[n]othing in this compact shall authorize or permit the use of 

military force by the National Guard of a state at any place outside that state if any emergency for which the President is 

authorized by law to call into federal service the militia or for any purpose for which the use of the Army or Air Force 

would in the absence of express statutory authorization be prohibited under Section 1385 of title 18, United States 

Code”).

57 Telephone Interview with Ms. Amy Hughes, Policy Analyst for the National Emergency Management Association 

(NEMA), Lexington, KY (June 2003), which administers the NEMA website and provides support for the 

administration of EMAC.

58 In other words, not prohibiting the National Guard from crossing a state border in a particular case but only 

prohibiting the use of EMAC as the authority to do so, so that if another interstate compact exists upon which to rely, or 
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205 RUF for the National Guard

Force from providing direct law enforcement services. Under most situations, this proscription will 

have little impact on National Guard cross border operations and the RUF because National Guard 

activities are usually limited to providing law enforcement support to civil authorities, rather than 

providing direct law enforcement service.59 Nonetheless, National Guard judge advocates should 

be mindful of this limitation so that, if EMAC is relied upon for any aspect of a cross-border 

operation to which Art. XIII might apply, National Guard authorities will be properly advised.

2. State Criminal Liability of National Guard Members for Use of Force

Immunity from state criminal charges for wrongful use of force by National Guard personnel was a 

topic addressed by some National Guard RUF for the airport security mission.60 The subject is 

addressed here in the context of National Guard personnel on active duty for the purpose of federal 

domestic law enforcement support or federal security mission,61 and both Title 32 status62 and SAD 

status for the purposes of a state emergency. As discussed at the beginning of this chapter, state 

criminal law and state RUF apply in Title 32 and SAD statuses. Criminal liability under state law 

while in federal active duty status or in a state status hinges on the doctrine of Federal Supremacy 

Clause immunity.63

a. Active Duty Federal Mission

Although the early history of the doctrine of Federal Supremacy Clause immunity64 began 

somewhat before the case was decided,65 the opinion of the Supreme Court in In Re Neagle, 135 

U.S. 1 (1890), is regarded as the seminal case establishing the theory that the employees of the 

United States cannot be limited, by prosecution under state criminal laws, by the states in their good 

faith, rightful, and proper execution of their federal duties. 

Mr. David Neagle, who served as a Deputy U.S. Marshal and bodyguard to Mr. Justice Stephen 

Field, then a sitting member of the U.S. Supreme Court, was charged with murder by the state of 

California after killing another individual, Mr. David Terry, whom Neagle thought was reaching for 

a weapon in an attempt to kill Mr. Justice Field. Neagle successfully argued that in killing Mr. 

Terry, he (Neagle) did no more than was required of him by his federal position as Deputy Marshal 

 

in the event that use of such a compact is considered unnecessary, the National Guard force may still cross the border in 

an SAD status for the purposes of an armed law enforcement mission.

59 See NGR 500-1, supra note 8, para. 4-2. The National Guard instruction governing the airport security mission 

contemplated cross border operations but provided that National Guard forces were not to participate in law 

enforcement operations unless in exigent circumstances. ARNG Airport Security Instructions, supra note 41, paras. 2-

1e, 2-8.

60 See, e.g., Airport security mission RUF for the states of Nevada, New Jersey, and New York. 

61 Such as during the 2002–2003 Air Force security mission, in which approximately 8,100 Army National Guard 

Soldiers were mobilized under 10 U.S.C. § 12302 for the purposes of providing security at U.S.A.F. and Air National 

Guard installations.

62 This was the case in the airport security mission.

63 Since National Guard Soldiers performing security duties may be subject to both criminal and civil liability based on 

both state and federal law for use of force incidents, the concepts of federal Supremacy Clause immunity and 

governmental qualified immunity under both state and federal law will be critical. For simplicity, this discussion is 

limited to federal Supremacy Clause immunity.

64 See U.S. CONST. art. VI, cl. 2 (Supremacy Clause).

65 A U.S. Supreme Court case predating Neagle is Tennessee v. Davis, 100 U.S. 257 (1880).
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and bodyguard, and that California should not be allowed to proceed in its prosecution lest that state 

by implication be allowed to control the proper execution of his federal duties. 

Since that case, the defense that proved so valuable to Mr. Neagle has been applied successfully 

numerous times in judicial opinions on behalf of federal employees and other persons carrying out 

federal missions, including federal military personnel carrying out federal military missions. Those 

federal active duty military defendants have successfully employed the “Neagle defense” of Federal 

Supremacy Clause immunity against state criminal charges for improper operations of a motor 

vehicle,66 defamation,67 assault,68 and murder in the course of guarding prisoners of the U.S. 

Army.69 There is no limitation expressed in any of those opinions as to the type or character of the 

state offense to which the doctrine might be applied on a service member’s behalf.70

In only one reported military-related case has anything like federal military RUF been clearly the 

subject of a Federal Supremacy Clause defense to state criminal charges. In United States v. 

Lipsett, 156 F. 65 (W.D. Mich. 1907), a case involving the shooting of an innocent bystander by a 

military guard, the Court examined the manual of guard duty used for training guards assigned to 

military prisoners. The Court found that per the manual, the guard’s duty in response to an 

attempted escape was to first call for the escapee to halt, and if the escapee did not halt, to then fire 

upon the prisoner.71 In this case, based largely on the court’s understanding of the guard’s federal 

duties, the guard was acquitted of manslaughter.

The only reported case found involving federal RUF is a non-military civil case involving the RUF 

used by the FBI during the standoff between alleged weapons trafficker Randy Weaver and the FBI 

at Ruby Ridge, Idaho, in 1992. In Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), the Court held 

the “shoot any armed male” FBI RUF to have been overly broad and to have deprived the plaintiff 

of his constitutional rights under the Fourth Amendment of the Constitution. Thus, the RUF at 

issue may be considered to determine whether they are unconsititutional.

b. Title 32 or SAD Status and Mission

The holding of Perpich v. Dep’t of Defense72 (noted above) stated that National Guard personnel in 

a federal training or “other duty” status under 32 U.S.C. 502 are a state military force, and 

consequently, their RUF are derived from state criminal and civil law. Under this analysis, the best 

 66 See Montana v. Christopher, 345 F. Supp. 60 (D. Mont. 1972) (operating a vehicle without lights); Commonwealth v. 

Thomas, 612 F. Supp. 14 (W.D. Pa. 1984) (violation of state weight limits).

67 Howard v. Sikula, 627 F. Supp. 497 (S.D. Ohio 1986).

68 See Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945); Commonwealth v. Johnson, 297 F.Supp. 877 (W.D. Pa. 1969).

69 See In re Fair, 100 F. 149 (C.C.D. Neb. 1900) and United States v. Lipsett, 156 F. 65 (W.D. Mich. 907).

70 The only limitation is that the act in question be taken in good faith and that the act be truly necessary for the 

purposes of the federal mission. Thus, the defense has not been judicially applied in defense to state charges of 

unintentional death where the particular maneuver of a government vehicle was not required by the federal military 

mission. See State v. Ivory, 906 F.2d 999 (4th Cir. 1990).

71 United States v. Lipsett, 156 F. 65 (W.D. Mich. 1907).

72 Perpich v. Department of Defense, 496 U.S. 334 (1990).
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207 RUF for the National Guard

defenses to the possibility of a state criminal charge73 resulting from good faith compliance with 

state RUF include:

• A state statute providing criminal immunity for National Guard personnel.74

• An agreement with the State Attorney General (possibly at the time the state Attorney General 

gives any approval of the RUF75) that National Guard personnel will not be prosecuted 

criminally for good faith compliance with the National Guard RUF.76

• Extension of the doctrine of Federal Supremacy Clause immunity to National Guard personnel 

acting under federal control.

The application of Federal Supremacy Clause immunity to a state military force may rest upon the 

accumulation of indicia of a federal mission such as: federally-funded orders, use of federal 

equipment, governance by federal regulations, execution of the mission on a federally-owned or 

governed facility, application of the state RUF through execution of supplemental agreements under 

EMAC,77 execution of the mission details at the direction of federal authorities such as Department 

of Homeland Security personnel, contracts or memoranda of agreement (MOAs) with federal 

officials, or orders to Title 32 duty at the request of federal government officials. Caselaw clearly 

indicates that Federal Supremacy Clause immunity should be applied to cases involving a federal 

mission whether or not the subject of that protection is a federal employee.78

3. RUF in Mixed National Guard and Active Component Operations

Given the doctrine of Federal Supremacy Clause immunity, federal active duty Soldiers have less 

reason to consider themselves bound by the exact restrictions of a state’s criminal law and more 

reason to follow the requirements of the SRUF than do National Guard personnel in Title 32 or 

SAD status. For this reason, in domestic law enforcement support or security operations involving 

both active component and National Guard members, judge advocates must pay close attention to 

 73 Of course, because the subject is the possibility of state criminal charges, there is no value to tort law “hold 

harmless” agreements or the possible application of both the Federal Tort Claims Act and state tort claims laws.

74 New York, for example, has a statute that grants civil and criminal immunity to members of the New York National 

Guard ordered into active service of the state for “any act or acts done by them in the performance of their duty.” N.Y.

PENAL LAW § 235. See also, NEV. REV. STAT. 412.154(1). In the case of the statutory immunity predicate for National 

Guard missions for which firearms are issued, the most basic statute providing for use of force may be a statute 

providing for immunity for the carrying of firearms. See, e.g., N.J. REV. STAT. § 2C: 39-6(1).

75 The ARNG airport security instruction required the National Guard RUF used for that mission be reviewed by the 

state Attorney General. ARNG Airport Security Instructions, supra note 41, para. 3-6a.

76 This type of agreement would have to be predicated upon the approval of the National Guard RUF by the state 

Attorney General. It also must be based upon the Attorney General’s statutory or common law powers of supervision 

over county or district prosecutors; the more independent the local prosecutor, the less value of any agreement with the 

state Attorney General. Where local prosecutors are mostly independent, assurance can only come from the 

agreement(s) of the local prosecutor(s).

77 Thus making the supplemental agreement and the RUF contained therein a matter of federal law. See, e.g., Tahoe 

Regional Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985).

78 For cases in which defendants, who had no federal employee status, were subject to state criminal charges 

successfully argued the application of federal Supremacy Clause immunity based upon a federal mission, see, e.g., West 

Virginia v. Lang, 133 F. 887 (4th Cir. 1904) (member of U.S. Marshal’s posse made of ordinary citizens charged with 

murder); Connecticut v. Marra, 528 F. Supp. 381 (D. Conn. 1981) (informer cooperating with FBI charged with 

attempting to bribe a city policeman).
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their RUF (in particular to ensure compatibility with federal SRUF) if each group has similar duties. 

The RUF applicable to National Guard personnel must respect state limitations on law enforcementtype activities by the National Guard (such as searches and seizures) and the use of force to support 

those activities.79

D. Role of the National Guard Judge Advocate

1. Drafting RUF

While RUF are a S-3/G-3 and commander responsibility, judge advocates should assist in drafting 

them (and may be tasked directly to draft them). In addition, judge advocates should be directly 

involved in the production of RUF-related documents, such as information papers, memoranda of 

law, and memoranda of agreement with supported civil authorities.80 Some MOAs may contain 

hold harmless provisions which the judge advocates should review, negotiate, and advise upon. If 

the RUF used by the National Guard in a law enforcement, law enforcement support, or security 

mission refers the reader to, or adopts the RUF currently used by a state law enforcement agency, 

judge advocates must review the documents relied upon for the RUF. The documents should be 

carefully reviewed to ensure compatibility with member skills, training, capabilities, weapons, and 

mission. It may be necessary to add provisions specifically applicable to the National Guard.

2. Negotiating RUF with State Agencies

Judge advocates will want to determine whether the RUF, MOA, OPLAN/OPORD, training 

documents, and other matters relating to the RUF are comprehensive, legally accurate, and well 

understood by the drafters and commanders. At times, other state officers or agencies, such as the 

Attorney General, district attorneys, or state law enforcement agencies may be involved in the 

drafting process and/or approve the RUF. In such cases, judge advocates may find it necessary to 

educate and negotiate issues that meld legal requirements with operational imperatives. After 

September 11th, New York Army National Guard judge advocates assisted in drafting the 

Governor’s airport security plan, including RUF. The plan and RUF were staffed through The 

Adjutant General and the Governor’s Counsel Office, and approved by the Governor.

81

 79 This does not necessarily imply that state RUF will always be more restrictive than the SRUF. For example, in civil 

disturbance support operations in which NGR 500-1 applies, when federal equipment is used the RUF provides that 

deadly force may be used for the prevention of the destruction of “property vital to public health and safety” 

(undefined). See NGR 500-1, supra note 8, paras. 4-6 and 4-6b(3)(c). Some states followed this authorization for the 

purposes of the airport security operation, even though that operation was not a civil disturbance operation, but was an 

airline security operation. In contrast, the analogous provision of the draft SRUF, CJCSI 3121.01B supra note 5, Encl. 

L para. 5.c.(2), authorizes the use of deadly force to protect president-designated assets vital to national security, which 

by definition is property the theft or sabotage of which must create an “imminent threat of death or serious bodily 

harm.”

80 The National Guard Bureau Instruction governing the airport security mission required that states execute 

memoranda of understanding or memoranda of agreement (MOU/MOA) with supported airports for missions longer 

than thirty days. See ARNG Airport Security Instructions, supra note 41, para. 2-8a.

81 NYARNG Transcript, supra note 12, at 184.
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209 RUF for the National Guard

3. Providing Legal Advice on Liability

Counseling decision makers on the legal requirements necessary to protect members from civil and 

criminal liability can be a complicated task. The primary focus of the judge advocate’s counseling 

will be the state Adjutant General; the Deputy Chief of Staff for Operations; the Plans, Operations, 

and Training Officer; and the Task Force or other commanders. In addition, many state National 

Guards are represented by the State Attorney General’s Office in liability matters. Judge advocates 

advising on liability issues may need to coordinate with the relevant state government attorneys on 

liability issues.

4. Training

Judge advocates should seek opportunities to assist trainers responsible for ensuring that individual 

members learn and apply the correct standards for force. In this role, they can write or assist in 

writing information papers, training vignettes, and legal memoranda. Also, the use of a training 

certification process may be useful.

E. Conclusion

When the National Guard operates in a state status, either Title 32 or State Active Duty, it must 

have rules for the use of force based on the state law where it is operating. Developing these rules 

for the use of force requires knowledge of the relevant state law, including the level of law 

enforcement authority given to the National Guard and the criminal laws relating to self defense. 

Judge advocates advising on the drafting of the RUF must also tailor the RUF to the specific 

mission and determine the appropriate level of coordination with the State Attorney General’s 

Office, the local district attorney, and other law enforcement agencies. Finally, judge advocates 

should assist Commanders in developing appropriate training so that all National Guard 

servicemembers are fully aware of the state rules for the use of force prior to engaging in 

operations.
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Chapter 12

Funding Domestic Support Operations 210
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211 Funding Domestic Support Operations

CHAPTER 12

FUNDING DOMESTIC SUPPORT OPERATIONS

KEY REFERENCES:

• 18 U.S.C. § 1385 - Posse Comitatus Act.

• 10 U.S.C. §§ 371-382 - Military Support For Civilian Law Enforcement Agencies.

• 10 U.S.C. §§ 331-335 - Insurrection Act.

• 10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside 

Department of Defense (Innovative Readiness Training Program).

• 10 U.S.C. § 2551 - Equipment and Barracks: National Veterans’ Organizations.

• 10 U.S.C. § 2552 - Equipment for Instruction and Practice: American Red Cross.

• 10 U.S.C. § 2554 - Equipment and Other Services: Boy Scout Jamborees.

• 10 U.S.C. § 2555 - Transportation Services: International Girl Scout Events.

• 10 U.S.C. § 2556 - Shelter for Homeless; Incidental Service.

• 10 U.S.C. § 2558 - National Military Associations; Assistance at National Conventions.

• 10 U.S.C. § 2562 - Limitation on Use of Excess Construction or Fire Equipment from 

Department of Defense Stocks in Foreign Assistance or Military Sales Programs.

• 10 U.S.C. § 2564 - Provision of Support for Certain Sporting Events.

• 10 U.S.C. § 2576 - Surplus Military Equipment: Sale to State and Local Law Enforcement, 

Firefighting, Homeland Security, and Emergency Management Agencies.

• 10 U.S.C. § 2667 - Leases: Non-Excess Property of Military Departments and Defense 

Agencies.

• 31 U.S.C. § 1535 - Economy Act.

• 31 U.S.C. § 3302 – Custodians of Money.

• 32 U.S.C. § 112 - Drug Interdiction and Counter-Drug Activities.

• 42 U.S.C. § 5121, et seq., as amended - Stafford Act.

• 50 U.S.C. § 2311 - Response to Threats of Terrorist Use of Weapons of Mass Destruction.

• National Defense Authorization Act for Fiscal Year 1991, Pub. L. No. 101-510, § 1004 (as 

amended, Additional Support for Counter-Drug Activities).

• Department of Defense Appropriations Act, 1994, Pub. L. No. 103-139, § 8131 (Emergency 

Response Fund, Defense).

• Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 5802 (Support to 

International Sporting Competitions - Defense).

• National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1031, (as 

amended, Authority to Provide Additional Support for Counter-Drug Activities of Mexico).

• National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85, § 1033 

(Authority to provide Additional Support for Counter-Drug Activities of Peru and Colombia).

• National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 1021 

(Extension and Restatement of Authority to Provide Department of Defense Support for 

Counter-Drug Activities of other Governmental Agencies).

• National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 302, Working 

Capital Funds.

• National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-248, Title II 

Operation and Maintenance.
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• National Defense Authorization Act for Fiscal Year, 2009, Pub. L. No 110- 417, Subtitle C, 

Counter Drug Activities.

• Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118.

• National Defense Authorization Act for Fiscal Year 2011, Pub. L. No 111-383.

• DoDD 1100.20 - Support and Services for Eligible Organizations and Activities Outside the 

Department of Defense, April 12, 2004.

• DoDI 3025.20 - Defense Support of Special Events, April 6, 2012.

• DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012.

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

• DoDI 3025.22 – The Use of the National Guard for Defense Support of Civil Authorities, July 

26, 2013.

• DoDD 5200.31E - DoD Military Working Dog (MWD) Program, August 10, 2011.

• DoD Financial Management Regulation (FMR) 7000.14-R, vol. 12, ch. 6 - Defense Emergency 

Response Fund.

• NGR 500-1/ ANGI 10-8101 - National Guard Domestic Operations, June 13, 2008.

• NGR 500-2/ ANGI 10-801 - National Guard Counterdrug Support, August 29, 2008.

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

• AR 75-14/OPNAVINST 8027.1G/MCO 8027.1D/AFR 136-8 - Interservice Responsibilities for 

Explosive Ordinance Disposal, February 14, 1992.

• AR 75-15 - Responsibilities and Procedures for Explosive Ordinance Disposal, December 17, 

2013.

• AR 190-12, Military Working Dogs, March 11, 2013.

• AR 700-131, Loan and Lease of Army Material, August 23, 2004.

• AR 725-1, Special Authorization and Procedures for Issues, Sales, and Loans, October 17, 2003.

• SECNAVINST 5820.7C - Cooperation With Civilian Law Enforcement Officials, January 26, 

2006.

• OPNAVINST 3440.16D - Navy Defense Support of Civil Authorities Program, June 29, 2009.

• AFI 10-801 - Defense Support of Civil Authorities (DSCA), September 19, 2012.

• AFI 31-202 - Military Working Dog Program, May 16, 2009.

• Department of the Army Financial Management Guidance for Disaster Relief Operations, 14 

February 2014.

A. Introduction: Basic Fiscal Law Framework

The principles of federal appropriations law permeate all federal activity. Fiscal issues arise 

frequently during domestic operations, and the failure to understand fiscal nuances may lead to the 

improper expenditure of funds and administrative and/or criminal sanctions against those 

responsible for funding violations. There are several sources that define fund obligation and 

expenditure authority: (1) Title 10, U.S. Code; (2) Title 31, U.S. Code; (3) Department of Defense 

(DoD) appropriation acts; (4) DoD authorization acts; (5) agency regulations; (6) Department of 

Justice Office of Legal Counsel opinions; (7) Comptroller General decisions; and (8) other 

executive agencies’ authorities.
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Under the Constitution, Congress raises revenue and appropriates funds for federal agency 

operations and programs.1 Courts interpret this constitutional authority to mean that Executive 

Branch officials, e.g., commanders and staff members, must find affirmative authority for the 

obligation and expenditure of appropriated funds.2 Likewise, in many cases, Congress has 

specifically limited the ability of the Executive Branch to obligate and expend funds, in annual 

authorization or appropriations acts or in permanent legislation.

Because DoD functions primarily in a support role in domestic operations, most military assistance 

to civil authorities is provided on a reimbursable basis. In the case of some authorized activities 

such as counter-drug support, Congress annually appropriates money for DoD to provide support. 

For other authorized activities, Congress has established special “no year” accounts (such as the 

Defense Emergency Response Fund (DERF) and the Support for International Sporting 

Competitions (SISC) account) into which DoD can transfer part of its annual appropriation of 

Operation and Maintenance (O&M) funds. In providing some types of support such as Military 

Assistance to Safety and Traffic (MAST), DoD has the authority to act directly and expend O&M 

funds. As a result of these various types of situations, it is important to understand that the purpose, 

time, and amount rules apply in domestic support operations.

B. Basic Fiscal Controls

Congress imposes fiscal controls through three basic mechanisms, each implemented by one or 

more statutes. The controls are as follows: (1) obligations and expenditures must be for a proper 

purpose; (2) obligations must occur within the time limits applicable to the appropriation (e.g., 

O&M funds are available for obligation for one fiscal year); and (3) obligations must be within the 

amounts authorized by Congress.

1. Purpose

Although each fiscal control is important, the “purpose” control is most likely to become an issue 

during military operations. The Purpose Statute provides that “[a]ppropriations shall be applied 

only to the objects for which the appropriations were made except as otherwise provided by law.”3

 

Thus, expenditures must be authorized by law (permanent legislation or annual appropriations act) 

or be “reasonably related” to the purpose of an appropriation. Judge advocates should ensure, 

therefore, that an expenditure fits an appropriation (or permanent statutory provision), or is for a 

purpose that is necessary and incident to the general purpose of an appropriation; the expenditure is 

not prohibited by law; and the expenditure is not provided for otherwise, i.e., it does not fall within 

the scope of some other appropriation.

 1

 See U.S. CONST. art. I, § 7. 

2

 See, e.g., U.S. v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds 

is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”). 

An obligation arises when the government incurs a legal liability to pay for its requirements, e.g., supplies, services, or 

construction. For example, a contract award normally triggers a fiscal obligation. Commands also incur obligations 

when they obtain goods and services from other U.S. agencies or a host nation. An expenditure is an outlay of funds to 

satisfy a legal obligation. Both obligations and expenditures are critical fiscal events. See 31 U.S.C. § 1501 (2015).

3

 See 31 U.S.C. § 1301(a) (2015).
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A corollary to the “purpose” control is the prohibition against augmentation.4 Appropriated funds 

designated for a general purpose may not be used for another purpose for which Congress has 

appropriated other funds.5 Thus, O&M funds that have been appropriated to the Army cannot be 

used for state missions unless special authority exists. 

Likewise, if a federal agency accepts funds outside the normal appropriation process, then the 

agency is augmenting the funds that Congress has appropriated. In addition, retaining those funds 

violates the Miscellaneous Receipts Statute.6 When these retained funds are expended, this also 

violates the constitutional requirement for an appropriation.7 These legal principles prohibit 

unauthorized DoD expenditures to further state missions. They also prohibit units from accepting 

resources directly from state and local entities.

There are, however, statutory exceptions to the Miscellaneous Receipts Statute. For example intraand intergovernmental acquisition authorities allow agencies to retain and use funds from sources 

other than those appropriated by Congress.8 The Economy Act authorizes a federal agency to order 

supplies or services from another federal agency. The Economy Act is an important funding 

authority for domestic operations. For these transactions, the requesting agency must reimburse the 

performing agency fully for the direct and indirect costs of providing the goods and services.9 

Judge advocates may wish to consult agency regulations for order approval requirements.10

Congress has also authorized certain expenditures for military support to civil law enforcement 

agencies (CLEAs) in counter-drug operations. Support to CLEAs is reimbursable unless it occurs 

during normal training and results in DoD receiving a benefit substantially equivalent to that which 

otherwise would be obtained from routine training or operations.11 Another statutory provision 

authorizes operations or training to be conducted for the sole purpose of providing CLEAs with 

specific categories of support.12 In 10 U.S.C. § 124, Congress assigned DoD the operational 

mission of detecting and monitoring international drug traffic (a traditional CLEA function). By 

authorizing DoD support to CLEAs at essentially no cost, Congress has authorized augmentation of 

CLEA appropriations.

 4

 See Nonreimbursable Transfer of Admin. Law Judges, B-221585, 65 Comp. Gen. 635 (1986); cf. 31 U.S.C. § 1532 

(2015) (prohibiting transfers from one appropriation to another except as authorized by law).

5

 Secretary of the Navy, 20 Comp. Gen. 272 (1940).

6

 See 31 U.S.C. § 3302(b) (2015); Interest Earned on Unauthorized Loans of Fed. Grant Funds, B-246502, 71 Comp. 

Gen. 387 (1992).

7

 See Use of Appropriated Funds by Air Force to Provide Support for Child Care Centers for Children of Civilian 

Employees, B-222989, 67 Comp. Gen. 443 (1988); Bureau of Alcohol, Tobacco, and Firearms--Augmentation of 

Appropriations--Replacement of Autos by Negligent Third Parties, B-226004, 67 Comp. Gen. 510 (1988).

8

 See, e.g., Economy Act, 31 U.S.C. § 1535 (2015).

9

 See Washington Nat’l Airport; Fed. Aviation Admin., B-136318, 57 Comp. Gen. 674 (1978) (depreciation and 

interest); Obligation of Funds Under Mil. Interdep’tal Purchase Requests, B-196404, 59 Comp. Gen. 563 (1980); see 

also DoD 7000.14-R, vol. 11A, ch. 1, para. 010201.J (waiving overhead for transactions within DoD).

10 See, e.g., GEN. SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. Subpart 17.5 (April 2013) [hereinafter FAR]; 

Defense Federal Acquisition Regulation Subpart 217.5; Army Federal Acquisition Regulation Supplement Subpart 

17.5.

11 See 10 U.S.C. § 377 (2015).

12 See § 1004 of the 1991 National Defense Authorization Act (FY91 NDAA), as amended (10 U.S.C. § 374).
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215 Funding Domestic Support Operations

2. Time

The “time” control has two major elements: appropriations have a definite life span; and 

appropriations normally must be used for the needs that arise during their period of availability. 

Most appropriations are available for a finite period. For example, Operation and Maintenance 

(O&M) funds, the appropriation most prevalent in an operational setting, are available for one year; 

procurement appropriations are available for three years; and construction funds have a five-year 

period of availability. If funds are not obligated during their period of availability, they expire and 

are unavailable for new obligations (e.g., new contracts or changes outside the scope of an existing 

contract). Expired funds may be used, however, to adjust existing obligations (e.g., to pay for a 

price increase following an in-scope change to an existing contract).13 The “bona fide needs rule” 

provides that funds are available only to satisfy requirements that arise during their period of 

availability, and will affect which fiscal year appropriation you will use to acquire supplies and 

services.14 

The bona fide need for supplies normally exists when the government actually will be able to use 

the items. Thus, a command would use a currently available appropriation for computers needed 

and purchased in the current fiscal year. Conversely, commands may not use current year funds for 

computers that are not needed until the next fiscal year. Year-end spending for computers that will 

be delivered within a reasonable time after the new fiscal year begins is proper, however, as long as 

a current need is documented. Note that there are “lead-time” and “stock-level” exceptions to the 

general rule governing purchases of supplies.15 In any event, “stockpiling” items is prohibited.16 

 13 OFFICE OF MGMT.& BUDGET, CIRCULAR NO. A-11 (2014) [hereinafter OMB CIR. A-11].

14 See 31 U.S.C. § 1502(a) (2015).

15 See DEP’T OF DEFENSE, DEFENSE FINANCE AND ACCOUNTING SERVICE, DFAS-IN Reg. 37-1, DEFENSE FINANCE AND 

ACCOUNTING SERVICE REG. INDIANAPOLIS 37-1 ch. 8 (Jan. 2010) [hereinafter DFAS-IN 37-1].

16 See Mr. H.V. Higley, B-134277, Dec. 18, 1957, available at http://redbook.gao.gov/6/fl0029466.php.

Practice Scenario: A major storm pummels your base and the surrounding local area. 

The community has suffered huge damage. A lightning strike knocked out power to the 

town water distribution system. Your commander wants to purchase bottled water for the 

community with unit O&M. What do you advise?

Answer: Absent specific authority, unit O&M cannot be spent on bottled water for the 

local community. O&M dollars are appropriated to your command in order to train and 

maintain the unit. Bottled water is a dangerous purchase even for your Soldiers. In order 

to purchase bottled water with appropriated funds the commander (or approving authority) 

would have to determine that the water is unpotable or inaccessible, and that bottled water 

is the only alternative source for the water. The best advice is NOT to purchase the water.
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Normally, severable services are bona fide needs of the period in which they are performed. 

Grounds maintenance, custodial services, and vehicle/equipment maintenance are examples of 

recurring services considered severable. Use current year funds for recurring services performed in 

the current fiscal year. As an exception, however, 10 U.S.C. § 2410a permits funding a contract for 

severable services using an appropriation current when the contract is executed, even if some 

services will be performed in the subsequent fiscal year. Conversely, nonseverable services are 

bona fide needs of the year in which a contract is executed. Nonseverable services are those that 

contemplate a single undertaking, e.g., studies, reports, overhaul of an engine, painting a building, 

etc. Fund an entire undertaking with appropriations current when the contract (or agreement) is 

executed.17 

3. Amount

The Anti-Deficiency Act (ADA) prohibits any government officer or employee from making or 

authorizing an expenditure or obligation in advance of or in excess of an appropriation;

18 making or 

authorizing an expenditure or incurring an obligation in excess of a formal subdivision of funds; in 

excess of amounts permitted by regulations prescribed under 31 U.S.C. § 1514(a);

19 or from 

accepting voluntary services, unless authorized by law.20 However, during domestic operations, an 

exception to the ADA could allow commanders to use resources to assist in domestic operations 

(i.e., a request from an authorized local official during IRA situations or a mission assignment from 

FEMA).

Commanders must ensure that fund obligations and expenditures do not exceed amounts provided 

by higher headquarters. Although over-obligation of an installation O&M account normally does 

 17 See DFAS-IN 37-1, supra note 15, ch. 8.

18 See 31 U.S.C. § 1341 (2015).

19 See 31 U.S.C. § 1517 (2015).

20 See 31 U.S.C. § 1342 (2015).

Practice Scenario: You can barely hear the commander as you make your way up the 

stairs from the basement. You never experienced a tornado before and you are still a bit 

shaken. He is furious that the local mayor refused some troops and equipment the 

commander sent out to assist in the tornado clean-up effort just outside post. He wants the 

mayor to pay for the fuel AND all the food he purchased for the local community. Any 

issues?

Answer: What authority does the commander have to act here? There is no indication he 

was invited by the mayor so his troops have no authority to be there. A second issue is the 

purchase of food—it seems the commander may have committed an ADA violation by 

using O&M on food (which is a personal expense) for the local community. While wellintentioned, the purchase also violates the Purpose statute and will cause him trouble.
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217 Funding Domestic Support Operations

not trigger a reportable ADA violation, an over-obligation locally may lead to a breach of a formal 

O&M subdivision at the Major Command level.21 

Commanders must investigate suspected violations to establish responsibility and discipline 

violators. Regulations require “flash reporting” of possible ADA violations.22 If a violation is 

confirmed, the command must identify the cause of the violation as well as the senior responsible 

individual. Investigators file reports through finance channels to the office of the Assistant 

Secretary of the Army, Financial Management & Comptroller (ASA (FM&C)). Further reporting 

through Office of the Secretary of Defense (OSD), Office of Management and Budget (OMB), 

Government Accountability Office (GAO), President, and Congress is required if ASA (FM&C) 

concurs with a finding of a violation.

By regulation, commanders must impose administrative sanctions on responsible individuals. 

Criminal action also may be taken if a violation was knowing and willful.23 Common problems that 

have triggered potential ADA violations include the following:

• Without statutory authority, obligating (e.g., awarding a contract) current year funds for the 

bona fide needs of a subsequent fiscal year. This may occur when supply items are stockpiled 

in excess of those required to maintain normal inventory levels.

• Exceeding a statutory limit (e.g., funding a contingency construction project in excess of 

$750,000 with O&M, or acquiring investment items with O&M funds).

• Obligating funds for purposes prohibited by annual or permanent legislation.

• Obligating funds for a purpose for which Congress has not appropriated funds (e.g., personal 

expenses when there is no regulatory or case law support for the purchase, or when Congress 

has placed a funding prohibition).

C. Military Assistance to Civil Authorities

The military’s mission is to fight and win the nation’s wars. DoD will operate with civil authorities, 

but the relationship is generally one of support—the civilian authorities retain primary 

responsibility for domestic emergency responses. The starting point for all DoD support is DoD 

Directive (DoDD) 3025.18. The Posse Comitatus Act (18 U.S.C. § 1385) provides limitations on 

the types of support that the military may provide to civil authorities. The following are areas 

where permissible military support is commonly provided:

• Civil disasters and emergencies. Stafford Act (42 U.S.C. §§ 5121, et seq.), DoDD 3025.18

• Civil disturbances; Insurrection Act. 10 U.S.C. §§ 331-335, DoDI 3025.21

• Support to civilian law enforcement:

 Sharing information. 10 U.S.C. § 371, DoDI 3025.21

 Loan of equipment. 10 U.S.C. § 372, DoDI 3025.21

 Expert advice and training. 10 U.S.C. § 373, DoDI 3025.21

 21 See 31 U.S.C. § 1514(a) (2015) (requiring agencies to subdivide and control appropriations by establishing 

administrative subdivisions); 31 U.S.C. § 1517 (2015); DFAS-IN 37-1, supra note 16, ch. 4.

22 See DEPARTMENT OF DEFENSE, DoD 7000.14-R, FINANCIAL MANAGEMENT REGULATION vol. 14 (Nov. 2010) 

[hereinafter DoD 7000.14-R]; DFAS-IN 37-1, supra note 15, ch. 4.

23 31 U.S.C. §§ 1349 -1350 (2015).
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 Maintenance and operation of equipment. 10 U.S.C. § 374, DoDI 3025.21

• Counterdrug support:

 Detection and monitoring. 10 U.S.C. § 124

 Training and other support. § 1004, Fiscal Year (FY) 91 NDAA, as amended by 

§ 1021, FY 02, NDAA; CJCSI 3710.01B

• Innovative Readiness Training. 10 U.S.C. § 2012, DoDD 1100.20

• Department of Defense Support to Special Events to include Support to International Sporting 

Events. 10 U.S.C. § 2564(a)-(c), DoDI 3025.20

• Support to Private Organizations. 10 U.S.C. § 2554 (Boy Scouts of America), 10 U.S.C.

§ 2555 (Girl Scouts of America), 10 U.S.C. § 2551 (National Veterans’ Organizations), 10 

U.S.C. § 2552 (American Red Cross), 10 U.S.C. § 2558 (National Military Associations), and 

10 U.S.C. § 2556 (Homeless)

• Loan or Lease of Non-Excess Property of a Military Department. 10 U.S.C. § 2667 (to anyone), 

Army Regulation (AR) 700-131, Loan and Lease of Army Material, and 31 U.S.C. § 1535 

(Agency Agreements)

• Military Assistance to Safety and Traffic (MAST). DoDD 3025.1-M

• Explosive Ordinance Disposal (EOD): AR 75-14, AR 75-15

• Military Working Dogs. DoDD 5200.31E, AR 190-21

• Miscellaneous support:

 Sensitive support. DoDD S-5210-36

 Law enforcement detachments. 10 U.S.C. § 379

 Emergencies involving chemical or biological weapons. 10 U.S.C. § 382

D. DoDD 3025.18, Defense Support of Civil Authorities (DSCA)

This Directive governs DoD military assistance provided to civil authorities within the 50 States, 

District of Columbia, Puerto Rico, and U.S. possessions and territories. It provides six criteria (the 

CARRLL factors) against which all requests for support shall be evaluated. Commanders at all 

levels should use these criteria when providing a recommendation up the chain of command.

• Cost - who pays and the impact on DoD budget.

• Appropriateness - whether conducting the requested mission is in the interest of DoD.

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

• Risk - safety of DoD forces.

• Legality - compliance with the law.

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

Per DoDD 3025.18, The Secretary of Defense (SECDEF) is the approval authority for assistance in 

civil disturbances, responses to chemical, biological, radiological, and nuclear events, defense 

assistance to civilian law enforcement agencies (except as authorized by DoDI 3025.21 as discussed 

below), and support that has the potential for lethality.

When Combatant Command-assigned forces are to be used, there must be coordination with the 

Chairman of the Joint Chiefs of Staff (CJCS). SECDEF approval is not required when immediate 
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219 Funding Domestic Support Operations

response authority of the local commander under DODD 3025.18 is used, but a reassessment of the 

appropriateness of the use of this authority is required within the first 72 hours of a response.

24 

Operations under a commander’s immediate response authority are considered direct-funded 

military support.25 Such support is designed to save lives, prevent human suffering, or mitigate 

great property damage within the Unites States.26 Under this authority commander’s use the 

resources under their control on a cost-reimbursable basis.27 The official requesting the support 

should commit to reimbursing the DoD but aid should not be delayed or denied due to a failure to 

promise reimbursement.28 These operations will be funded by the command’s available base 

funding. Thus, the unit comptroller should ensure that proper accounting methods are being used to 

record the incremental costs to the unit for all disaster relief related tasks.29

E. Disaster and Emergency Relief30

The Stafford Act provides four means by which the federal government may become involved in a 

disaster and relief effort: the President may declare the area a major disaster31; the President may 

declare the area an emergency32; the President may send in DoD assets on an emergency basis to 

“preserve life and property”;33 and the President may send in federal assets where an emergency 

occurs in an area over which the federal government exercises primary responsibility by virtue of 

the Constitution or federal statute.

34

The Department of Homeland Security, through the Federal Emergency Management Agency 

(FEMA) directs and coordinates the federal response on behalf of the President. DHS has prepared 

the NRF, which defines fifteen ESFs for which certain federal agencies have either a primary or 

supporting role. The Corps of Engineers is the primary agency for ESF #3, Public Works and 

Engineering. DoD is a supporting agency for all others.

 24 See U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para 4.g.(2) (21 Sep. 2012) 

[hereinafter DoDD 3025.18] (stating that “[t]he DoD official directing a response under immediate response authority 

shall reassess whether there remains a necessity for the Department of Defense to respond under this authority as soon 

as practicable but, if immediate response activities have not yet ended, not later than 72 hours after the request for 

assistance was received.”). 

25 U.S. DEP’T OF ARMY, FINANCIAL MANAGEMENT GUIDANCE FOR DISASTER RELIEF OPERATIONS, pp. 10-11, Feb. 14, 

2014) [hereinafter DA FINANCIAL MANAGEMENT GUIDANCE].

26 DoDD 3025.18, supra note 24, at 4.

27 Id. at 5.

28 Id. at 5.

29 DA FINANCIAL MANAGEMENT GUIDANCE, supra note 25, at 10.

30 See generally Disaster Relief Act Amendments of 1974 (Stafford Act), Pub. L. No. 93-288, 88 Stat. 143 (1974); 

DoDD 3025.18, supra note 24; U.S. DEP’T OF Defense, MAN. DOD 3025.1-M, DOD MANUAL FOR CIVIL EMERGENCIES 

(Jun. 1994) [hereinafter DOD 3025.1-M]; NATIONAL GUARD BUREAU, REG. 500-1/ANGI 10-8101, NATIONAL GUARD 

DOMESTIC OPERATIONS (13 Jun. 2008) [hereinafter NGR 500-1]; CHIEF OF NAVAL OPERATIONS, INSTR. 3440.16D; 

NAVY DEFENSE SUPPORT OF CIVIL AUTHORITIES PROGRAM (29 Jun 2009); U.S. DEP’T OF AIR FORCE, INSTR. 10-801,

DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA) (19 Sept. 2012) [hereinafter AFI 10-801].

31 See 42 U.S.C. § 5170 (2015).

32 See 42 U.S.C. § 5191 (2015) (same criteria as for a major disaster, except it also requires that the governor define the 

type and amount of federal aid required, and total federal assistance may not exceed $5 million).

33 See 42 U.S.C. § 5170b(c) (2015).

34 See 42 U.S.C. § 5191(b) (2015).
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FEMA appoints a Federal Coordinating Officer (FCO), typically the senior FEMA official onscene. Because of the likelihood of DoD involvement, a Defense Coordinating Officer (DCO) is 

assigned to the FCO. The DCO, an O-6 or above, is identified from a Training Support Brigade 

(TSB). Training Support Brigades are located throughout the continental United States (CONUS). 

Training Support Brigade commanders are dual-hatted as DCOs. The DCO will be the FCO’s 

single point of contact for DoD support. The FCO issues Mission Assignments, defining the task 

and maximum reimbursement amount, to the federal agencies responding.

The DoD is reimbursed by FEMA for the incremental costs of providing support pursuant to the 

DCO’s tasking in response to the FEMA mission assignment. Incremental expenses are 

reimbursed. Incremental expenses are those expenses incurred by the agency providing the military 

assistance that—but for the request for assistance—would not otherwise have been incurred during 

the agency’s normal operations. The Department of Defense Financial Management Regulation 

(FMR) 7000.14-R, vol. 12, ch. 6, para. 060204, lists the following costs as eligible for 

reimbursement:

• Overtime, travel, and per diem of permanent DoD civilian personnel

• Wages, travel, and per diem of temporary DoD civilian personnel assigned solely to 

performance of services directed by the Executive Agent

• Travel and per diem of active duty military, and costs of reserve component personnel called to 

active duty by a federal official who is assigned solely to the performance of services directed 

by the Executive Agent

• Cost of work, services, and material procured under contract for the purposes of providing 

assistance directed by the Executive Agent

• Cost of materials, equipment and supplies (including transportation, repair and maintenance) 

from regular stocks used in providing directed assistance

• All costs incurred which are paid from trust, revolving, or other funds, and whose 

reimbursement the law requires

• Other costs submitted with written justification or otherwise agreed to in writing by the Joint 

Director of Military Support or appropriate Service representative

Requests for reimbursement may be made through use of the SF-1080, Voucher for Transfers 

between Appropriations or Funds. It is important to note that Federal agencies which exceed the 

reimbursement amount, or execute tasks not within the Mission Assignment, may not be 

reimbursed.

For the DoD response, the Assistant Secretary of Defense for Homeland Defense and Americas’ 

Security Affairs (ASD(HD&ASA)) is the DoD lead for disaster relief operations. As such, they are 

the approval authority for all such support, unless it involves Combatant Command-assigned forces. 

The Joint Director of Military Support (JDOMS) is the ASD(HD&ASA) agent. The JDOMS 

coordinates and monitors the DoD effort. The JDOMS normally produces the Execute Order and 

obtains the SECDEF’s signature for a given mission. USNORTHCOM (CONUS, Alaska, Puerto 

Rico, and the Virgin Islands) and USPACOM (Hawaii, and Pacific possessions and territories) are 

responsible for developing disaster response plans and for the execution of those plans needed for a 

response. They may form a Joint Task Force for this purpose.
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221 Funding Domestic Support Operations

1. Immediate Response Authority (IRA)

Immediate response authority permits local military commanders to act immediately to save lives, 

prevent human suffering, and mitigate great property damage in imminently serious conditions 

when time does not permit approval from higher headquarters. Types of support authorized include 

rescue, evacuation, and emergency treatment of casualties; emergency restoration of essential public 

services; emergency removal of debris and explosive ordnance; and recovery and disposal of the 

dead. This type of support is provided on a reimbursable basis, but assistance should not be denied 

because the requester is unable or unwilling to commit to reimbursement.35

Immediate response authority is very limited and should be invoked only for bona fide emergencies. 

Contemporaneous coordination with JDOMS and ASD(HD&ASA) should always occur in these 

scenarios, and in any other case potentially involving this type of assistance to civil authorities. The 

JDOMS has indicated that this assistance should not exceed 72 hours. To obtain reimbursement for 

costs incurred as a result of an immediate response, DoD should request reimbursement from the 

state or local government to whom assistance was provided.36 Often, the state and local 

governments do not have the available funding to reimburse. As a result, in the past DoD has 

looked to the Defense Emergency Response Fund for reimbursement.

2. Defense Emergency Response Fund (DERF)

The DERF was created in the FY90 National Defense Appropriation Act, Pub. L. 101-165, in 

response to Hurricane Hugo. It provided that, “the Fund is available for providing reimbursement 

to currently applicable appropriations of the [DoD] for supplies and services provided in 

anticipation of requests from other Federal Departments and agencies and State and local 

governments for assistance on a reimbursable basis to respond to natural and manmade disasters.”

In FY94, § 8131 of the National Defense Appropriation Act, Pub. L. No. 103-139, amended the 

FY90 provision giving DoD the ability to request reimbursement from the DERF for its own 

disaster response efforts. Specifically, the language provides: “the Fund may be used, in addition to 

other funds available to DoD for such purposes, for expenses of DoD which are incurred in 

supplying supplies and services furnished in response to natural or manmade disasters.”

Prior to November 2003, if the state and local government failed to reimburse, the command would 

forward reimbursement to the DERF.37 This fund was available for providing reimbursement to 

currently applicable appropriations of DoD for supplies and services provided in anticipation of 

requests from other federal departments and agencies and from state and local governments for 

assistance on a reimbursable basis to respond to natural or manmade disasters.

The DERF was terminated in November 2003,

38 and this background information is provided to 

keep judge advocates that may have relied on this funding mechanism in the past informed of the 

 35 DoDD 3025.18, supra note 24, at 5.

36 DA FINANCIAL MANAGEMENT GUIDANCE, supra note 25, at 7. It is critically important that units responding under 

IRA establish Functional Cost Accounts (FCA) through the Army Budget Office (ABO) to properly account for and 

track the incremental costs of their response efforts.

37 See DoD 7000.14-R, supra note 22, ch. 6.

38 Closed out in § 1105 of the FY04 Emergency Supplemental Appropriations Act. 
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change. The Act that closed out DERF provided that, effective November 1, 2003, adjustments to 

obligations that before such date would have been properly chargeable to the DERF shall be 

charged to current appropriations available for the same purpose.39 However, now it may be 

possible to seek reimbursement through FEMA. On rare occasions, FEMA has provided 

reimbursement to the DoD for IRA assistance by “ratifying” the DoD action after the fact. Such 

ratification, however, is done on a case-by-case basis. Commanders cannot rely on FEMA doing so 

in every case. FEMA is under no obligation to reimburse the DoD for response actions taken prior 

to a Presidential Declaration and in some case may not have the legal authority to reimburse DoD if 

no Presidential declaration occurs. If no one reimburses the affected command, the costs of the 

Immediate Response assistance are funded through unit O&M, which is the most likely outcome. 

3. Disaster Support Involving Law Enforcement Authorities

The Stafford Act is not an exception to the Posse Comitatus Act (PCA). Therefore, any support that 

includes direct involvement in the enforcement of the civil law must undergo the PCA analysis 

discussed below. Typical areas of concern include directing traffic, guarding supply depots, and 

patrolling. National Guard personnel, acting in their Title 32 (State) status, should be used 

whenever possible. Law enforcement duties that involve military functions may be permissible 

(e.g., guarding a military supply depot).

F. Civil Disturbances40

The maintenance of law and order is primarily vested in state and local officials. Involvement of 

military forces will only be appropriate in extraordinary circumstances. Use of the military under 

 39 Id.

40 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”; Insurrections, 10 U.S.C. §§ 331–335 (2015); 

U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb. 2013), 

[hereinafter DoDI 3025.21].

Practice Scenario: As soon as he hears on the weather report that Superstorm Sandy is 

coming, Admiral Smith, whose vessel is currently located in Hampton Roads, VA, quickly 

sails North to New York. As a patriot he wants to “be there” and “lend a hand”. No 

stranger to these missions he encourages his crew to be very careful to account for all 

expenses using the proper functional cost accounts (FCAs) so the Navy will be reimbursed. 

Do you think reimbursement is likely?

Answer: No. Based on these facts Admiral Smith acted without authority. He was not 

responding to save lives or property since the storm had not caused any damage so he has 

no claim for reimbursement under immediate response authority. Additionally, he did not 

notify JDOMS of his support. Despite his best accounting efforts, the costs of the voyage 

will be paid by his unit O&M.
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these authorities to conduct law enforcement activities is a specific exception to the PCA. The 

probable order of employment of forces in response to a certain situation will be (1) local and state 

police; (2) National Guard in their state status; (3) federal civil law enforcement officials; and (4) 

Federal military troops, to include National Guard called to active federal service.

The insurrection statutes permit the President to use the armed forces domestically under certain 

circumstances. The Attorney General coordinates all federal government activities relating to civil 

disturbances. If the President decides to respond to the situation, he must first issue a proclamation 

to the insurgents, prepared by the Attorney General, directing them to disperse within a limited 

time.41 At the end of that time period, the President may issue an Executive Order directing the use 

of armed forces. The Attorney General appoints a Senior Civilian Representative of the Attorney 

General (SCRAG) as his action agent.

For the DoD response, SECDEF has reserved the authority to approve support in response to civil 

disturbances.42 Although the civilian authorities have the primary responsibility for civil 

disturbances, military forces shall remain under military command and control at all times. Military 

forces shall not be used for civil disturbances unless specifically directed by the President (pursuant 

to 10 U.S.C. §§ 331-335), except for emergency employment of military forces in the following 

limited circumstances:

• To prevent the loss of life or wanton destruction of property or to restore governmental 

functioning, in cases of civil disturbances, if the duly constituted authority local authorities are 

unable to control the situation and circumstances preclude obtaining prior Presidential 

authorization.

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

protection for federal property or functions.

Although employment under these authorities permits direct enforcement of the law by military 

forces, the military’s role in law enforcement should be minimized as much as possible. DoD’s role 

is to support the civilian authorities, not replace them. Once the President directs the employment 

of military forces (federal), then this is a DoD mission and O&M funds are used to cover the cost.

G. Support to Civilian Law Enforcement43

Although certain activities could be considered law enforcement type activities, they do not violate 

the PCA because they do not involve use of military personnel to provide direct assistance. With 

proper approval, DoD activities may make equipment (including associated supplies and spare 

parts) or facilities available to Federal, state, or local law enforcement officials for law enforcement 

purposes. 

 41 See 10 U.S.C. § 334 (2015). 

42 See DoDD 3025.18, supra note 24, para. 4.j.

43 See generally 10 U.S.C. §§ 372–374, 377; DODI 3025.21, supra note 40; NGR 500-1, supra note 35; U.S. DEP’T OF 

NAVY, SEC’Y NAVY INSTR. 5820.7C, COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS, para. 8 (26 Jan. 

2006) [hereinafter SECNAVINST 5820.7C]; U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF 

ARMY MATERIEL (24 Aug. 2004); AFI 10-801, supra note 35.
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Under 10 U.S.C. § 374(a), SECDEF may make DoD personnel available for the maintenance of 

equipment provided, to include equipment provided pursuant to 10 U.S.C. § 372. Under 10 U.S.C. 

§ 374(b)(1), SECDEF may, upon a request from the head of a federal law enforcement agency, 

make DoD personnel available to operate equipment with respect to criminal violations of the 

Controlled Substances Act, the Immigration and Naturalization Act, the Tariff Act of 1930, the 

Maritime Drug Law Enforcement Act, and any law, foreign or domestic, prohibiting terrorist 

activities; 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.

Under 10 U.S.C. § 374(b)(2), DoD personnel made available to a civilian law enforcement agency 

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 the boundary

• Aerial reconnaissance

• Interception of vessels or aircraft detected outside the land area of the United States for the 

purposes of communicating with and directing said vehicle to a specific location

• Operating equipment to facilitate communications

• Subject to joint approval by SECDEF and Attorney General:

 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

 Operation of a base of operations

 Transportation of suspected terrorists from foreign countries to the U.S. 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).

1. Economy Act

Pursuant to 10 U.S.C. § 377, the support provided between federal agencies under these authorities 

is reimbursable under the Economy Act, unless the support is provided in the normal course of 

training or operations, or the support results in a substantially equivalent training value. Under 31 

U.S.C. § 1535, an Economy Act order may be placed by the head of an agency (delegable down to a 

warranted contracting officer) with another agency. The order may be a Military Interdepartmental 

Purchase Request (MIPR), a Memorandum of Understanding (MOU) for support, or an interagency 

agreement. Form is not the key—content is the critical matter. The definition of “agency” includes 

military departments.44 The content defines the type of support to be rendered and the 

reimbursement to be provided.

An example of the use of the Economy Act is the Minnesota bridge collapse in 2007. The U.S. 

Department of Transportation (DoT) was the primary Federal agency. The local sheriff was the 

 44 FAR, supra note 10, at pt. 2.101. 
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incident commander, and all requests for assistance originated from the sheriff through the City of 

Minneapolis Office of Emergency Preparedness. The DCO (regionally aligned Defense 

Coordinating Officer) was sent when the DoT requested support. U.S. Navy salvage divers were 

supplied by the DoD for the incident. The DCO was the DoD point of contact. After the response 

was complete, the DoD was reimbursed by DoT under the Economy Act.

The Economy Act is an efficient, popular vehicle for obtaining federal support. Judge advocates 

must remind staff and comptrollers that the requesting agency must track costs and account for any 

unused money at the end of the fiscal year. Any such money must be deobligated and returned to 

the requiring agency to avoid ADA issues.

2. Miscellaneous Receipts

The Miscellaneous Receipts Statute, 31 U.S.C. § 3302(b), requires that any dollars received by an 

agency must go into the general treasury, without any deduction for any charges or claims, unless 

there is a positive authority like the Economy Act that allows an agency to retain the money. 

Although the language in 10 U.S.C. § 372 et seq. authorizes support to state and local civilian law 

enforcement agencies, the reimbursement provision in 10 U.S.C. § 377 provides no mechanism for 

reimbursement except for support between federal agencies. If commanders loan equipment to state 

or local CLEAs under this authority, any reimbursement obtained would go into Miscellaneous 

Receipts. It is important to note that reimbursement is required, unless the law allows a waiver. 

The only way to avoid this problem is for the commander to lease the equipment under 10 U.S.C. § 

2667. The Leasing Statute provides a mechanism for reimbursement. If a loan is authorized, there 

must be no adverse impact on national security or military preparedness. (Specific details regarding 

the Leasing Statute are in Section L of this Chapter)

The Secretary of the Army has statutory authority to approve loans, leases, and donations of Army 

material. The Chief, Integrated Logistics Support Division (DALO-SMP) is responsible for acting 

on loan and lease request and loan and lease extensions forwarded for Headquarters, Department of 

the Army (HQDA) review by major Army Commands (MACOMs). AR 700-131 contains detailed 

procedures on the loan or transfer of Army property. For the Navy and Marine Corps, the Assistant 

Secretary of the Navy (SECNAV) (Manpower and Reserve Affairs) may approve requests for nonlethal equipment for more than sixty days. All other requests may be approved as specified in 

SECNAVINST 5820.7C. For the Air Force, AFI 10-801 states that in circumstances not 

immediately threatening to human life, causing human suffering, or threatening great property 

damage, requests for equipment or facilities for federal, state, or local civilian officials (including 

include law enforcement) should be addressed in accordance with AFI 23-119 and AFI 32-9003. 

For the National Guard (NG), the loan of weapons, combat/tactical vehicles, vessels and aircraft 

require approval of the service secretary or their designee. Requests for loan/lease of NG 

equipment, which require HQDA or HQAF approval, will be reviewed by National Guard Bureau

(NGB) (NGR 500-1/ANGI 10-8101). However, it must be remembered that SECDEF is the 

approval authority for all DoD support to counterterrorism operations, emergency support to civil 

disturbances, and law enforcement agencies that will result in a planned event with the potential for 

confrontation with named individuals/groups or use of lethal force. 

3. Excess Property

In addition to loan/lease authority, The National Defense Authorization Act of 1997 added a new 

section to Title 10. Section 2576a, “Excess Personal Property; Sale or Donation for law 
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enforcement activities,” permits DoD to provide excess personal property suitable for use in 

counter-drug and counter-terrorism activities to federal and state agencies. The program is 

commonly referred to as the “1033 Program” because it fell under Section 1033 of the 1997 NDAA 

(PL 104-181). 10 U.S.C. § 2576 authorizes the surplus sale of military equipment to state and local 

law enforcement and firefighting agencies. 10 U.S.C. § 2576(a) authorizes the surplus sale of 

military equipment to federal and state agencies suitable for carrying out law enforcement, 

firefighting, homeland security, and emergency management services. The state or local agency 

must initiate a request for the equipment. The program is managed by the Defense Logistics 

Agency Law Enforcement Support Office at Ft. Belvoir, VA. 10 U.S.C. § 2576a and § 2576b 

provide additional mechanisms for the transfer of excess property (without sale) to law enforcement 

and firefighting agencies. It should be noted that the 1033 Program was recently limited based on 

Recommendations Pursuant to Executive Order 13688 in May 2015. 45

4. Expert Advice and Training46

DoD components are authorized to give expert advice and/or training to Federal, state, and local law 

enforcement in certain cases. Overarching policy regarding the provision of this assistance is found 

at 32 C.F.R. § 182, and more specific policy is found in DoDI 3025.21. 

DoD components may provide, subject to approval limitations in DoDI 3025.21, expert advice to 

Federal, state, or local law enforcement officials in accordance with 10 U.S.C. § 373. A specific 

example of this type of support is military working dog team support to civilian law enforcement. 

The dogs have been analogized to equipment, and their handlers to providers of expert advice.47 

Direct assistance by DoD personnel in activities that are fundamentally civilian law enforcement 

operations is not permitted, except as specifically authorized by DoDI 3025.21.48 

DoD components may also provide, subject to approval limitations in DoDI 3025.21, training to 

Federal, State, and local civilian law enforcement officials. This does not permit large-scale or 

elaborate DoD training, nor does it permit regular or direct involvement of DoD personnel in 

activities that are fundamentally civilian law enforcement operations, except as otherwise 

authorized by DoDI 3025.21 (see footnote 40, supra). 

Training can only be given when the use of non-DoD personnel would be unfeasible or impractical 

from a cost or time perspective, and when it would not otherwise compromise military preparedness 

of the United States. It may not involve DoD personnel participating in a law enforcement 

 45 Specifically, the Recommendations based on Executive Order 13688 have proscribed transferring tracked armored 

vehicles, weaponized vehicles, firearms and ammunition .50 caliber or higher, and grenade launchers from the Federal 

Government.

46 See generally 10 U.S.C. §§ 373, 375, 377 (2015); 50 U.S.C. § 2316; DODI 3025.21, supra note 40, Encl. 5; 

SECNAVINST 5820.7C, supra note 48, paras. 9.a.(4)–(5); AFI 10-801, supra note 35.

47 See generally U.S. DEP’T OF DEFENSE, DIR. 5200.31E, DOD MILITARY WORKING DOG (MWD) PROGRAM, (10 Aug. 

2011) [hereinafter DODD 5200.31E]; U.S. DEP’T OF AIR FORCE, AFI 31-121, MILITARY WORKING DOG PROGRAM (17 

Oct. 2012), 32 C.F.R. §182 (2015).

48 Specific examples where direct assistance is permitted include the case of the execution of a quarantine under 42 

U.S.C. § 97, when such actions are necessary to prevent significant loss of life and wanton destruction of property and 

are necessary to restoring governmental function, and when action is needed to protect national parks and other certain 

federal lands, among many other instances. DODI 3025.21, supra note 40, Encl. 3.
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operation, unless specifically authorized under DoDI 3025.21. Training assistance must be 

provided at a location where there is not a reasonable likelihood of a confrontation between law 

enforcement personnel and civilians, unless otherwise authorized by law. 

The provision of “advanced military training” is not allowed under DoDI 3025.21. Advanced 

military training includes advanced marksmanship training, sniper training, military operations in 

urban terrain (MOUT), advanced MOUT, close quarters battle/close quarters combat, and similar 

training. SECDEF policy on advanced military training in this context is discussed further in 

Deputy Secretary of Defense Memorandum “DoD Training Support to U.S. Civilian Law 

Enforcement Agencies,” June 29, 1996, and Deputy Secretary of Defense Memorandum “Request 

for Exception to Policy,” November 12, 1996 (both available from the Office of the Assistant 

Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD(HD & ASA), 

room 3D247, 2600 Defense Pentagon, Washington, D.C. 20301).

The SECDEF is the approval authority for requests for direct assistance in support of civilian law 

enforcement agencies, including those responding with assets with the potential for lethality, except 

for the use of emergency authority as provided for under DoDD 3025.18 or under one of the 

exceptions provided in DoDI 3025.21. Requests that involve Defense Intelligence and 

Counterintelligence entities are subject to approval by the SECDEF and the guidance in DoDD 

5240.01, DoD Intelligence Activities and DoD 5240.1-R, Procedures Governing the Activities of 

DoD Intelligence Components That Affect U.S. Persons (see Chapter 9 for further guidance).

Otherwise, the Secretaries of the Military Departments and the Directors of the Defense Agencies 

may, in coordination with the ASD(HD&ASA), approve the use of DoD personnel:

• To provide training or expert advice in accordance with DoDI 3025.21

• For equipment maintenance in accordance with the specific provisions of enclosure 3 of DoDI 

3025.21 

• To monitor and communicate the movement of air and sea traffic in accordance with the 

specific provisions of Enclosure 3 to DoDI 3025.21

All other requests, including those in which subordinate authorities recommend disapproval, shall 

be submitted promptly to the ASD(HD&ASA) for consideration by the SECDEF, as appropriate.49

Support provided under these authorities to a federal agency is reimbursable under the Economy 

Act, unless the support is provided in the normal course of training or operations, or the support 

results in a substantially equivalent training value. It is important to note that pursuant to 31 U.S.C. 

§ 6505, under the “Intergovernmental Cooperation Act,” federal agencies are authorized to provide 

to state and local governments “statistical and other studies and compilations, development projects, 

technical tests and evaluations, technical information, training activities, surveys, reports, and 

documents and other similar services that an executive agent is especially competent and authorized 

by law to perform.”

31 U.S.C. § 6505 is very specific and does not include the type of operational assistance that state 

and local governments request from DoD. Two common requests DoD may encounter are for the 

 49 DODI 3025.21, supra note 40.
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provision of “technical information and training activities.” OMB Circular A-97 defines these two 

as follows: 1) training of the type which the federal agency is authorized by law to conduct for 

federal personnel and others or which is similar to such training; and 2) technical information, data 

processing, communications, and personnel management systems services which the federal agency 

normally provides for itself or others under existing authorities.

A reimbursement mechanism is provided under 31 U.S.C. § 6505 between the federal and 

state/local level. Reimbursements received by the federal agency for the costs of services provided 

will be deposited to the credit of the principal appropriation or other account from which the costs 

of providing the services have been paid or are to be charged. It is important to remember that these 

reimbursed dollars do not go into the Miscellaneous Receipts account.

5. Sharing Information50

Any information collected in the normal course of military operations may be provided to 

appropriate civilian law enforcement agencies. Collection must be compatible with military 

training and planning. To the maximum extent practicable, the needs of civilian law enforcement 

officials shall be taken into account in planning and execution of military training and operations.51

H. Counterdrug Support52

Counterdrug support operations have become an important activity within DoD. All DoD support 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)). DoD support to counterdrug 

operations is funded through annual DoD appropriations unlike other support provided by DoD, 

which must be reimbursed by the agency receiving support. The Office of the Defense Coordinator 

for Drug Enforcement Policy and Support channels this appropriated money to the providers of 

counterdrug support.

1. Detection and Monitoring

DoD is the lead federal agency for detection and monitoring (D&M) of aerial and maritime transit 

of illegal drugs into the United States.53 D&M is therefore a DoD mission. Although a military 

mission, D&M is to be carried out in support of federal, state, and local law enforcement 

authorities. Note that the statute does not extend to D&M missions covering land transit (i.e., the 

Mexican border). Interception of vessels or aircraft is permissible outside the land area of the 

United States to identify and direct the vessel or aircraft to a location designated by the supported 

 50 10 U.S.C. § 371 (2015); DoDI 3025.21, supra note 40, Encl. 7; SECNAVINST 5820.7C, supra note 48, para. 7; AFI 

10-801, supra note 35, Attachment 1, ch. 3.

51 10 U.S.C. § 371(b) (2015).

52 10 U.S.C. § 124 (2015); 32 U.S.C. § 112 (2015); Sec. 1004, FY91 NDAA as amended by sec. 1021, FY02 NDAA; 

sec. 1031, FY97 NDAA; sec. 1033, FY98 NDAA; OFFICE OF THE DEFENSE COORDINATOR FOR DRUG ENFORCEMENT 

POLICY AND SUPPORT, POLICY OF 26 JAN. 1995, PRIORITIES, POLICIES, AND PROCEDURES FOR DEPARTMENT OF DEFENSE 

COUNTERDRUG SUPPORT TO DOMESTIC DRUG LAW ENFORCEMENT AGENCIES (26 Jan. 1995); CHAIRMAN JOINT CHIEFS 

OF STAFF, INSTR. 3710.01B, DOD COUNTERDRUG SUPPORT (26 Jan. 2007) [hereinafter CJCSI 3710.01B]; NATIONAL 

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

53 10 U.S.C. § 124 (2015). 
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civilian authorities. Detection and monitoring missions involve airborne (Airborne Warning and 

Control Systems (AWACS), aerostats), seaborne (primarily U.S. Navy (USN) vessels), and landbased radar (to include Remote Over The Horizon Radar (ROTHR)) sites. Federal funding for 

National Guard counterdrug activities, to include pay, allowances, travel expenses, and operations 

and maintenance expenses is provided pursuant to 32 U.S.C. § 112. The State must prepare a drug 

interdiction and counter-drug activities plan. The Office of the Defense Coordinator for Drug 

Enforcement Policy and Support reviews each State’s implementation plan and disburses funds.

2. Additional Support

Congress has given DoD additional authorities to support federal, state, local, and foreign 

governments that have counterdrug responsibilities. These are in addition to the authorities 

contained in 10 U.S.C. §§ 371–377 (discussed above). These have not been codified, however, so it 

is necessary to refer to the public laws instead. Many of these are reproduced in the notes following 

10 U.S.C. § 374 in the annotated codes. Section 1004 of the 1991 NDAA, as amended, is the

primary authority used for counterdrug operations. The statute permits broad support to federal, 

state, and local as well as foreign authorities (when requested by a federal counterdrug agency, 

typically the Drug Enforcement Agency (DEA) or a member of the State Department country team 

that has counterdrug responsibilities). These authorities are not exceptions to the Posse Comitatus 

Act, and any support provided must comply with the restrictions of the PCA. Additionally, any 

domestic training provided must comply with the Deputy Secretary of Defense policy on advanced 

training.

Types of permitted support include maintenance and repair of equipment; transportation of 

personnel (U.S. and foreign), equipment, and supplies CONUS/OCONUS; establishment of bases 

of operations CONUS/OCONUS; training of law enforcement personnel, to include associated 

support and training expenses; detection and monitoring of air, sea, surface traffic outside the 

United States, and within twenty-five miles of the border if the detection occurred outside the 

United States; construction of roads, fences, and lighting along U.S. border; linguist and intelligence 

analyst services; aerial and ground reconnaissance; and establishment of command, control, 

communication, and computer networks for improved integration of law enforcement, active 

military, and National Guard activities.

Approval authorities are contained in CJCSI 3710.01B. Non-operational support—that which does 

not involve the active participation of DoD personnel—including the provision of equipment only, 

use of facilities, and formal schoolhouse training, is requested and approved in accordance with 

DoDI 3025.21 and implementing Service regulations, discussed above. For operational support, the 

SECDEF is the approval authority. The approval will typically be reflected in a CJCS-issued 

deployment order.

The SECDEF has delegated approval authority for certain missions to Combatant Commanders, 

with the ability for further delegation, but no delegation lower than a general or flag officer. The 

delegation from SECDEF depends on the type of support provided, the number of personnel 

provided, and the length of the mission.54 One example is: for certain missions along the southwest 

 54 See CJCSI 3710.01B, supra note 56.
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border of the U.S., the delegation runs from SECDEF to NORTHCOM to Joint Task Force North 

(JTF North). Requests for DoD support must meet the following criteria:

• Support request must have a clear counterdrug connection

• Support request must originate with federal, state or local agency having counterdrug 

responsibilities

• Request must be for support DoD is authorized to provide

• Support must clearly assist with counterdrug activities of agency

• Support is consistent with DoD support of the National Drug Control Strategy

• DEP&S Priorities for the provision of support

• Multi-jurisdictional, multi-agency task forces that are in a high intensity drug trafficking area 

(HIDTA)

• Individual agencies in a HIDTA

• Multi-jurisdictional, multi-agency task forces not in a HIDTA

• Individual agencies not in a HIDTA

• All approved CD operational support must have military training value

Under § 1206, of the FY 1990 NDAA, Congress directed the armed forces, to the maximum extent 

practicable, to conduct training exercises in declared drug interdiction areas. In § 1031 of the FY 

1997 NDAA, Congress authorized and provided additional funding specifically for enhanced 

support to Mexico. The support involves the transfer of certain non-lethal specialized equipment 

such as communication, radar, navigation, and photo equipment. Under § 1033, FY 1998 NDAA, 

Congress authorized, and provided additional funding specifically for, enhanced support to 

Colombia and Peru. Section 1021 of the FY 2004 NDAA expands the list of eligible countries to 

include Afghanistan, Bolivia, Ecuador, Pakistan, Tajikistan, Turkmenistan, and Uzbekistan. This 

authority is subject to extension by the annual National Defense Authorization Act, and was 

extended by § 1021 of the FY 2009 National Defense Authorization Act. Judge advocates are 

advised to review subsequent NDAAs for extension of the authority to other countries.

I. Innovative Readiness Training55

Innovative Readiness Training (IRT) is primarily a guard and reserve program and is similar in 

appearance to 10 U.S.C. § 401, Humanitarian and Civic Assistance (HCA) for overseas operations. 

IRT is military training conducted off base in the civilian community that utilizes the units and 

individuals of the armed forces under the jurisdiction of the Secretary of a military department or a 

combatant commander, to assist civilian efforts in addressing civic and community needs of the 

United States, its territories and possessions, and the Commonwealth of Puerto Rico as provided for 

within 10 U.S.C. § 2012.

Examples of IRT activities include constructing rural roads and aircraft runways, small building and 

warehouse construction in remote areas; transporting medical supplies, equipment and material to 

medically underserved areas of the country; and providing medical and dental care to Native 

Americans, Alaska Natives, and other medically underserved communities.

 55 10 U.S.C. § 2012 (2015); U.S. DEP’T OF DEFENSE, DIR. 1100.20, SUPPORT AND SERVICES FOR ELIGIBLE 

ORGANIZATIONS AND ACTIVITIES OUTSIDE THE DEPARTMENT OF DEFENSE (12 Apr. 2004).
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231 Funding Domestic Support Operations

Any federal, regional, state, or local governmental entity is eligible to receive the assistance, as are 

youth and charitable organizations specified in § 508 of Title 32, and any other entity as may be 

approved by SECDEF on a case-by-case basis. There must be a relationship to military training. 

Assistance may be provided only if: (1) the assistance provided accomplishes valid unit training 

requirements; or (2) the assistance provided by an individual involves tasks that directly relate to the 

specific Military Occupational Specialty (MOS) of the military member.

An exception exists if the unit assistance consists primarily of military manpower and the total 

amount of such assistance on a particular project does not exceed 100 man-hours. For most 

projects, the requests will be fulfilled by volunteers and any assistance other than manpower will be 

extremely limited. Government vehicles may be used, but only to provide transportation to and 

from the work site. The use of Government aircraft is prohibited.

Operations and Maintenance (O&M) funding expenditures are authorized for expendable readiness 

training items only. These may include, but are not limited to, the following: fuel; equipment lease; 

travel; training supplies; and incidental costs to support the training not normally provided for a 

deployment. Innovative Readiness Training O&M funds are not authorized for the payment of 

civilian manpower contracts, e.g., contracting a civilian labor force to perform duties related to IRT 

activities.56 DoD policy memorandum dated 24 Aug. 2000 provides guidance that annual National 

Defense Authorization and Appropriation Acts will authorize the transfer of a certain amount of 

defense-wide O&M funds to be transferred to fund pay and allowances for personnel working on 

IRT program projects. In April 2002, DoD issued additional guidelines to include the requirement 

for a Certification of Non-Competition with other public or private sector organizations. This 

comports with the statutory language that “the assistance is not reasonably available from a 

commercial entity.” Innovative Readiness Training assistance is not authorized in response to 

natural or man-made disasters or in support of civilian law enforcement.

J. DoD Support to Special Events57

Upon the request of a Federal, state, or local government agency responsible for providing law 

enforcement services, security services, or safety services, the SECDEF may authorize the 

commander of a military installation or other DoD facility or a Combatant Commander to provide 

assistance for special events, including international sporting events such as World Cup Soccer 

Games, the Goodwill Games, the Olympics, and any other civilian sporting event. The Attorney 

General must certify that such assistance is necessary to meet essential security or safety needs.

Additional conditions are that such assistance cannot reasonably be met by another source or 

agency, that there is no adverse impact on military readiness, and that the requesting agency agrees 

to reimburse DoD. It is important to note that the applicable statutory provision for these events 

does not apply to Special Olympics and The Paralympics because the assistance is authorized and 

funded under a different authority. Support for International Sporting Competitions (SISC), under 

10 U.S.C. § 2564, is reimbursable under the Economy Act, unless the support is provided in the 

 56 19 July 1999, DoD Policy Memorandum Regarding Innovative Readiness Training O&M Funds (on file with 

CLAMO).

57 10 U.S.C. § 2564 (2015); U.S. DEP’T OF DEFENSE, INST. 3025.20, DEFENSE SUPPORT OF SPECIAL EVENTS (6 Apr. 

2012) [hereinafter DoDI 3025.20].
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normal course of training or operations, or the support results in a substantially equivalent training 

value.

The SISC account is a “no year” account that consolidated appropriations of previous events. DoD 

transfers O&M into this account. Because the account is set up as a “no year use until expended 

account,” that rule applies to any money transferred into the account. The account authorized the 

funding of logistical and security support (other than pay and non-travel-related allowances of 

members of the Armed Forces of the United States, except for members of the reserve components 

thereof called or ordered to active duty in connection with providing such support).

In the NDAA for fiscal year 2002, Pub. L. No. 107-107, § 302, Congress amended the law to 

include state active duty and full-time National Guard to be included in the definition of “active 

duty.” Under this change, the SISC account could fund the pay and non-travel-related allowances 

of these two groups of individuals when they provided essential security and safety support during 

the 2002 Winter Olympic Games and the 2002 Paralympic Games. In the same provision, Congress 

waived the requirement that the Attorney General had to certify that support was necessary for the 

2002 Winter Olympic Games. It is important to note that this waiver was event-specific, and 

ordinarily certification by the Attorney General is required.

K. Support to Private Organizations and Individuals

1. Boy Scouts of America

10 U.S.C. § 2554 allows DoD to provide equipment and transportation to the Boy Scouts for 

National and World Jamborees. Support is provided on a no-cost basis to the U.S. government and 

requires bonding to ensure reimbursement.

2. Girl Scouts of America

10 U.S.C. § 2555 allows DoD to provide transportation only to Girl Scouts to support international 

Girl Scout events. Support is provided on a no-cost basis to the U.S. government and requires 

bonding to ensure reimbursement.

3. National Veterans’ Organizations

10 U.S.C. § 2551 allows DoD to provide equipment and barracks to national veterans’ organizations 

to support state and national conventions or national youth athletic tournaments. Support is 

provided on a no-cost basis to the U.S. Government and requires bonding to ensure reimbursement.

4. American Red Cross

10 U.S.C. § 2552 allows DoD to provide equipment for instruction and practice to the American 

Red Cross. Support is provided on a no-cost basis to the U.S. government and requires bonding 

(twice value of equipment loaned) to ensure reimbursement.

5. National Military Associations

Pursuant to 10 U.S.C. § 2558, DoD can provide provide specified support to designated “National 

Military Associations” for their national conventions. Specified support includes limited air and 

ground transportation, communications, medical assistance, administrative support, and security 
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233 Funding Domestic Support Operations

support. Support is provided under the following conditions: (1) the Service Secretary concerned 

has approved the support in advance; (2) the support is provided in conjunction with training in 

appropriate military skills; and (3) support can be provided within existing funds otherwise 

available to the Service Secretary concerned, i.e., O&M funds.

6. Homeless Individuals

10 U.S.C. § 2556 allows DoD to provide incidental services to shelter homeless individuals. These 

incidental services include utilities, bedding, security, transportation, renovation of facilities, minor 

repairs to make facility available, and property liability insurance. Support is on a nonreimbursable basis and may not have an adverse impact on military readiness or interfere with 

military operations.

L. Loan or Lease of Non-Excess Property of a Military Department58

1. Authorized Loan or Lease of Non-Excess Property

Generally, the Economy Act, 10 U.S.C. § 1535, governs the loan of DoD material to other federal 

agencies. DoD may provide supplies and equipment to other federal agencies on a reimbursable 

basis. The leasing statute, 10 U.S.C. § 2667, governs the lease of DoD property to organizations 

outside the government when a determination has been made that: (1) for the period of the lease, the 

materiel is not needed for public use; (2) it is not excess property; and (3) the lease will promote the 

national defense or be in the public interest.

The Army is the only service that has a regulation specifically governing the loan or lease of its 

materiel: AR 700-131. Army Policy is that Army materiel is intended for the Army mission. Army 

materiel will only be loaned or leased under compelling circumstances and when the materiel 

sought is not otherwise needed for mission requirements. Agencies loaning or leasing materiel from 

an Army activity are responsible for all costs associated with the loan or lease to include shipping, 

return, and repair of the materiel. Loans and leases are primarily approved on the basis of their 

purpose and duration. The following factors will be considered in determining whether to approve 

a loan or lease:

• Military requirements and priorities

• Stocks and programmed Army requirements

• Type classification with pending changes

• Minimum diversion of Army stocks

• The adequacy of the borrower’s resources

• The availability of alternative resources such as commercial leases

• The eligibility of the recipient

The approval authority for a loan or lease of Army materiel varies based on the category of 

equipment being requested. Table 2-1 in AR 700-131 provides a comprehensive list of the 

categories of equipment that may be loaned or leased, and the proper approval authority. Army 

 58 10 U.S.C. § 2667 (2015); U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL

(23 Aug. 2004); U.S. DEP’T OF ARMY, REG. 725-1, SPECIAL AUTHORIZATION AND PROCEDURES FOR ISSUES, SALES, AND 

LOANS (17 Oct. 2003).
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material loaned or leased in response to a natural or manmade disaster will be reported to JDOMS 

as soon as possible. The property officer who is accountable for the equipment loaned or leased 

will keep all records of loans of DoD material. Loans are made at no additional cost to the 

government. Borrowers are responsible for all incremental costs (costs above the normal Army 

operating expenses) and these will be identified and added into the loan agreement.

Agencies loaning or leasing materiel from an Army activity are responsible for all costs associated 

with the loan or lease to include shipping, return, and repair of the materiel. Reimbursable 

incremental costs include the following:

• Any overtime pay and pay of additional civilian personnel required to accompany, operate, 

maintain, or safeguard borrowed equipment

• Travel and per diem expenses of Army personnel (military and civilian)

• Packing, crating, handling, and shipping from supply source to destination and return, to include 

port loading and off loading

• All transportation, including return for repair and renovation

• Hourly rate for the use of Army aircraft

• Petroleum, oils, and lubricants (including aviation fuel)

• The cost of material lost, destroyed, or damaged beyond economical repair

• Utilities (gas, water, heat, and electricity)

• Any modification or rehabilitation or real property that affects its future use by the Army;

• Overhaul of returned material

• Repair parts used in maintenance and renovation

• Price decline of borrowed stock fund material at which returned property can be sold

• Issue and turn-in inspection labor costs

• Charges for the use of vehicles, except petroleum, oils, and lubricants and per diem costs

• Use of real property

• Restoration costs for historical property

• Lease fees

It is important to note that in addition to the above reimbursable costs, leases require the borrower 

to pay a lease fee equal to the fair market value of the lease interest in the property.

2. Emergency Exceptions

Emergency loans or leases are those made to prevent “loss of life, grave bodily harm, or major 

destruction of property, and when the lack of communications facilities prevents the use of normal 

procedures.” Emergency loans and leases will not be withheld because a formal reimbursement 

agreement has not been negotiated and concluded. Additionally, loans or leases that would 

otherwise be permitted by service regulations may be approved under emergency conditions at the 

local level, vice the approval level designated in Table 2-1 of AR 700-131. Emergency requests for 

the loan or lease of Army materiel may be made verbally or electronically. The borrower must send 

a formal written request to the lending agency as soon as possible, and must complete a loan or 

lease agreement within five days of the original transaction.
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235 Funding Domestic Support Operations

3. Additional Requirements

Leases carry additional requirements under AR 700-131. Army materiel will not be leased if a 

reasonable counterpart can be purchased or leased in the commercial market. Leases are limited to 

a maximum five-year term unless the Secretary of the Army (SECARMY), or one of his designees, 

approves an extended lease term. The SECARMY also has the authority to revoke a loan or a lease 

at any time. Lessees must post a surety bond to cover damage or loss of the leased property and, if 

necessary, show proof of either vehicular or hull insurance. In an emergency a lease may be made 

without a bond, but the bond must be posted within five days of the lease. FAR Part 28 governs the 

bonding requirements. The SECARMY must approve any bond forfeiture. Bonds are normally 

forfeited when the materiel is not returned at the end of the lease period or the lessee refuses to pay 

for damage or other lease expenses.

Once a loan or lease is approved, a loan or lease agreement will be executed before the materiel is 

delivered. The agreement will reflect the statutory basis for the loan or lease, and will describe in 

detail all terms of the loan or lease and the responsibilities of both parties. The official accountable 

for the property of the borrowing activity must sign the loan or lease agreement. The loan or lease 

agreement will be held by the activity that issues the material until final settlement. When DoD has 

made a lease of personal property, the costs associated with the lease are placed into a special 

account established for the respective defense agency whose property is subject to the lease. 

Amounts in the account are available solely for maintenance, repair, restoration, or replacement of 

leased personal property.

M. Military Assistance to Safety and Traffic59

Under the MAST program, DoD provides aerial MEDEVAC services to civilian communities who 

have no comparable services or until such time as they can be established. The participating 

command pays for the funding of the program, i.e., it is funded by unit O&M funds. The 

appropriate state or local officials provide special equipment and/or radios necessary to participate 

in the program at no cost to the U.S. Government. U.S. Government officials will provide 

supervision and technical assistance for the installation of radio equipment. Non-DoD physicians, 

nurses, and emergency medical personnel may be transported in conjunction with a MAST mission. 

Normally, one next-of-kin may be transported if necessary for the best interests of the patient. Any 

other transportation of non-DoD personnel is governed by service regulations.

N. Explosive Ordnance Disposal60

Explosive Ordnance Disposal (EOD) is the detection, identification, field evaluation, rendering safe, 

recovery, and final disposition of unexploded explosive ordnance (UXO).61 Explosive Ordnance 

Disposal operations outside of DoD installations are primarily the responsibility of civil authorities. 

DoD may provide EOD assistance, in the form of EOD actions and/or advice, upon request from 

 59 DOD 3025.1-M, supra note 35.

60 U.S. DEP’T OF ARMY, U.S. DEP’T OF NAVY, AND U.S. DEP’T OF AIR FORCE, REG. 75-14/INSTR. 8027.1G/MARINE 

CORPS ORDER 8027.1D/REG. 136-8, INTERSERVICE RESPONSIBILITIES FOR EXPLOSIVE ORDNANCE DISPOSAL (14 Feb. 

1992) [hereinafter AR 75-14]; U.S. DEP’T OF ARMY, REG. 75-15, RESPONSIBILITIES AND PROCEDURES FOR EXPLOSIVE 

ORDNANCE (1 Nov. 1978) [hereinafter AR 75-15]; DODI 3025.21, supra note 40, Encl. 5.

61 AR 75-14, supra note 64, para. 3f.
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federal agencies or civil authorities at any level, when the service concerned determines that such 

assistance is required or desirable in the interest of public safety.62 Each service is responsible for 

all self-caused Explosive Ordnance contamination on its own installations and operation bases.63 

EOD assistance involving formerly used defense sites (FUDS) will be funded from the Environment 

Restoration Accounts.64 Services must request reimbursement for EOD services rendered for nonDoD incidents from the requesting agency.65

O. Military Working Dogs66

Military working dogs include patrol dogs, and patrol dogs with specialized training in either 

narcotic/contraband detection or explosive detection. Explosive Detector Dog team assistance may 

be provided to federal agencies or civil authorities. Upon a request from a federal agency or state or 

local civilian authority at any level, the installation commander concerned will make a 

determination that such assistance is required in the interest of public safety.67 Requests for 

assistance may only be honored from civilian authorities, not private citizens.68 Requesting 

agencies must agree to meet reimbursement requirements and utilize DD Form 1926 (Explosive 

Ordnance Disposal Civil Release and Reimbursement Agreement).69 

P. Miscellaneous Support70

To respond to an emergency involving biological or chemical weapons of mass destruction that is 

beyond the capabilities of the civil authorities to handle, the Secretary of the Department of 

Homeland Security may request DoD assistance directly. Available assistance would include 

monitoring, containing, disabling, and disposing of the weapon. For weapons of mass destruction, 

federal funding is provided to DoD to develop and maintain domestic terrorism rapid response 

teams (Civil Support Teams) to aid Federal, state, and local officials and responders. Civil Support 

Teams are composed of full time Army and Air National Guard members. These teams are 

federally resourced, trained, evaluated, and they operate under Federal doctrine. They perform their 

missions, however, primarily under the command and control of state governors. See Chapters 3 

and 6 for more information on these teams.

 62 Id., para. 7b(3).

63 Id., para. 7d(3)(a).

64 Id., para. 7d(3)(e).

65 AR 75-15, supra note 64, para. 3-2d.

66 DODD 5200.31E, supra note 51; U.S. DEP’T OF ARMY, REG. 190-12, MILITARY WORKING DOGS (11 Mar. 2013) 

[hereinafter AR 190-12].

67 Id., para. 4-11a(1).

68 Id., para. 4-11b(1).

69 Id., para. 4-11b(2).

70 10 U.S.C. §§ 379, 382 (2015); National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104–201, Title XIV 

(Defense Against Weapons of Mass Destruction), 110 Stat. 2422 (1996); U.S. DEP’T OF DEFENSE, DIR. S-5210.36,

PROVISION OF DOD SENSITIVE SUPPORT TO DOD COMPONENTS AND OTHER DEPARTMENTS AND AGENCIES OF THE U.S.

GOVERNMENT (U) (6 NOV. 2008).
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Domestic Operational Law Handbook 2015

Index

i

Index

A

Arming Orders ......................................................... 203

C

CBRN Consequence Management (CM) Overview and 

Authorities ......................................................... 112

Civil Air Patrol (CAP)............................................... 73

Civil Disturbance Operations.ii, iii, 41, 79, 95, 100, 101, 

102, 104, 108, 181

Coast Guard Law Enforcement Detachments.......... 131

Combatant Commanders......... iii, 2, 102, 104, 183, 232

D

Deepwater Horizon Oil Spill.........................iv, 161, 162

Defense Support of Civil Authorities (DSCA) ....i, 2, 5, 9, 

75, 76, 110, 215, 221, 222

Direct Assistance........................................................ 86

DoD Directive (DoDD) 3025.18, Defense Support of 

Civil Authorities...................................................... 5

DoD Intelligence Components in Domestic Support

Operations ......................................................... 171

DoD Support to Wildfires......................................... 156

Dual Status Commander................................ viii, 25, 69

E

Economy Act............................................................ 227

Emergency Authority.....................................iii, 87, 100

Emergency Support Functions

ESFs...................................................15, 17, 18, 153

Environmental Compliance .................................iii, 120

Executive Order 12656

Assignment of Emergency Preparedness and 

Response Responsibilities .................8, 9, 35, 95

F

Federal Response Operational Coordinating 

Structures/Personnel and State Response Entities

............................................................................. 21

Fiscal Law Framework.............................................. 215

H

Homeland Security Presidential Directive 5

Management of Domestic Incidents.....i, 11, 12, 30, 

62, 110

I

Immediate Response Authority... i, vi, 41, 85, 114, 161, 

224

Innovative Readiness Training (IRT)..................142, 233

Insurrection Act

10 U.S.C. § 331–335 ii, 58, 72, 81, 88, 95, 96, 97, 98, 

99, 100, 104, 120, 181, 198, 214, 220

J

Joint Director of Military Support............................ 102

Joint Task Force Civil Support ......................iii, 115, 116

L

Loan or Lease of Non-Excess Property..................... 236

M

Mass Migration Emergency ..................................... 155

Military Assistance to Civil Authorities.............v, 5, 220

Military Assistance to Safety and Traffic ................. 151

military equipment and facilities......................... 79, 83

Military Support to Special Events........................... 142

Militia............................................ii, 57, 62, 70, 71, 198

Mixed National Guard and Active Component 

Operations.......................................................v, 210

N

National Guard Bureau .. i, iii, 41, 50, 51, 64, 65, 68, 97, 

103, 126, 134, 135, 137, 144, 169, 170, 176, 194, 

199, 200, 204, 205, 211, 222, 228, 231

National Guard CBRN Enhanced Response Force 

Package (NG-CERFP)............................................. 66

National Guard CBRNE Enhanced Response Force 

Package .............................................................. 118

National Guard Homeland Response Force............. 118

National Guard of the United States ....i, 46, 48, 49, 67, 

68, 198

National Guard Support to Counterdrug Operations

............................................................................ 134

National Guard Weapons of Mass Destruction Civil 

Support Teams...............................................iii, 117

P

Posse Comitatus Act .... 4, 49, 63, 68, 75, 76, 77, 78, 88, 

96, 103, 112, 120, 127, 137, 174, 181, 202, 207, 

214, 225, 232

Presidential Policy Directive 8

National Preparedness........................... i, vii, 13, 14

R

Reserve Component . i, ii, 45, 46, 47, 52, 53, 54, 55, 56, 

57, 66

Rules for the Use of Force (RUF)....iv, 73, 138, 181, 198

S

Search and Rescue Operations (SAR)....................... 152

Stafford Act
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Index

ii

42 U.S.C. § 5170 et seq. ....i, iv, 9, 18, 23, 24, 25, 30, 

34, 35, 36, 37, 38, 39, 40, 42, 59, 64, 70, 113, 

120, 122, 153, 158, 159, 161, 162, 166, 214, 

220, 222, 225

Standing Rules of Engagement/Standing Rules for the 

Use of Force for U.S. Forces (SRUF) ....................105

State Active Duty........................................................64

Support of Law Enforcement ...................................162

Support to Private Organizations and Individuals....235

T

Title 10 status.49, 50, 52, 61, 62, 63, 64, 65, 66, 67, 70, 

72, 103, 118, 138, 155, 159

Title 32 Status.............................................................63

U

United States Coast Guard

USCG ................................................... ii, 60, 81, 166

Unmanned Aircraft Systems (UAS)...........................174

USCG National Strike Force (NSF).............................119

W

Weapons of Mass Destruction (WMD)/Civil Support 

Teams (CST)...........................................................66