DOMESTIC OPERATIONAL LAW

HANDBOOK

2018

FOR JUDGE ADVOCATES

CENTER FOR LAW AND MILITARY OPERATIONS

September 2018

2018 DOMESTIC OPERATIONAL LAW HANDBOOK

A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES

EDITORS and CONTRIBUTING AUTHORS

LTC Ted Martin, USA

MAJ Corey E. Thomas, ARNGUS

2018 CONTRIBUTING AUTHORS

COL Pat Butler LTC Richard Sudder

LTC Bayne Johnston LTC Michael McCann

LTC Stephen Faherty LTC Robert Kavanaugh

LTC Benjamin Currier LTC Thomas Forrest

CDR Michael Gesele MAJ Sean Rogers

MAJ Ryan Kerwin Maj Dimple Nolly

LCDR James Zoll LCDR Jonathan Perry 

CPT Charles W. VanDerMiller Mr. Kevin Kapitan

Mr. Robert Goodin Mr. Jonathan Russell

Mr. Robert Gonzales

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.

Center for Law and Military Operations (CLAMO)

The Judge Advocate General’s Legal Center and School, U.S. Army

Charlottesville, VA 22903-1781

Cover design by MAJ Corey E. Thomas 

The Judge Advocate General’s Legal Center & School

Cover Photos:

Hurricanes

Hurricane Irma rips through Puerto Rico. (September 7, 2017) (Photo courtesy Joshua Hoyos and Mi.I. Nestel ABC News)

Domestic Imagery/Incident Awarness and Assessment

Workers prepare an MQ-1C Gray Eagle drone at Michael Army Airfield, Dugway Proving Ground in Utah September 15, 2011. 

Reuters/U.S. Army/Spc. Latoya Wiggins/Handout

Chemica/Biological/Radiological/Nuclear/Environmental 

Staff Sgt. Hector Pena, 48th Chemical Bde., participates in a situational training lanes exercise during the 20th CBRN Command 

Best Warrior Competition July 23, 2014 at Aberdeen Proving Ground, Md. (Photo courtesy Laurena Bell, 20TH CBRN 

COMMAND)

Floods 

Livestock stranded on high ground surrounding a house under construction during the 2016 flood in Louisiana. (Photo courtesy 

Bossier Parish Sheriff’s Office)

Counterdrug

Arkansas Guard members help State Police remove marijuana plants from a Guard helicopter during a recent eradication mission in 

support of the National Guard's Counterdrug Program. (September 3, 2008) (Photo courtesy Staff Sgt. Chris A. Durney)

Insurrection

Federalized Soldiers from the Arkansas Army National Guard and the 101st Airborne Division providing support to local law 

enforcement in accordance with President Dwight Eisenhower’s Insurrection Act authority. (September 26, 1957) (Photo courtesy 

Richard Austin of theclio.com)

National Special Security Events

The 2017 Presidential Inauguration (Photo courtesy Elijah Crawford, 2017)

Wildfires

In 2000, this wildfire burned just north of Sula, Montana. (Photo courtesy John McColgan, Bureau of Land Management)

EDITOR’S NOTE

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

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

Orders and Directives, national policy, DoD Directives and Instructions, joint publications, service 

regulations, field manuals, as well as 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), numerous 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 disasters such as Hurricanes Harvey, Irma, and 

Maria.

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 evolve. Further, the information and examples provided in this Handbook are advisory 

only. The term “State” is frequently used throughout this Handbook, and collectively refers to the 

50 States, Guam, Puerto Rico, U.S. Virgin Islands, and the District of Columbia. The same is often 

referred to as “the 54 States and territories.” 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/, and the “Military Legal Resources” section of the Library of 

Congress website at https://www.loc.gov/rr/frd/Military_Law/military-legal-resources-home.html. 

CLAMO also posts lessons learned, after action reports, and other products in the National Security

Law Document Library on JAGCNET at https://www.jagcnet2.army.mil/IODocLib (CAC access 

required), and the National Security Law Milbook site at

https://www.milsuite.mil/book/groups/international-and-operational-law (CAC access required). 

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.

Domestic Operational Law Handbook 2018

Table of Contents

TABLE OF CONTENTS

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

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

B. PURPOSE OF THIS HANDBOOK .........................................................................................................3

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

D. DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA) .......................................................................6

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

CHAPTER 2: NATIONAL FRAMEWORK FOR INCIDENT MANAGEMENT..................................................8

A. THE FEDERAL RESPONSE STRUCTURE............................................................................................9

1. E.O. 12656 ......................................................................................................................10

2. THE HOMELAND SECURITY ACT......................................................................................11

3. HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 5 (MANAGEMENT OF DOMESTIC 

INCIDENTS) ......................................................................................................................12

4. PRESIDENTIAL POLICY DIRECTIVE 8 ................................................................................13

5. PPD-8 AND THE NATIONAL PREPAREDNESS SYSTEM (NPS)............................................14

6. NATIONAL RESPONSE FRAMEWORK.................................................................................14

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

8. NATIONAL MITIGATION FRAMEWORK .............................................................................27

9. NATIONAL DISASTER RECOVERY FRAMEWORK...............................................................28

10. NATIONAL PROTECTION FRAMEWORK.............................................................................29

11. NATIONAL INCIDENT MANAGEMENT SYSTEM (NIMS)....................................................30

12. OTHER SIGNIFICANT RESPONSE PLANS AND AUTHORITIES RELATED TO NPS.................31

B. THE STAFFORD ACT ......................................................................................................................34

1. REQUESTS FOR EMERGENCY OR MAJOR DISASTER DECLARATIONS ................................37

2. LIABILITY UNDER THE STAFFORD ACT.............................................................................39

3. CATEGORIES OF AGENCY SUPPORT UNDER THE STAFFORD ACT .....................................39

4. INTERPLAY BETWEEN THE STAFFORD ACT AND NPS ......................................................40

C. IMMEDIATE RESPONSE AUTHORITY...............................................................................................41

1. FEDERAL MILITARY COMMANDERS.................................................................................41

2. STATE GOVERNORS .........................................................................................................42

D.CONCLUSION .................................................................................................................................42

CHAPTER 3: STATUS AND RELATIONSHIPS BETWEEN COMPONENTS RESPONDING TO DOMESTIC 

INCIDENTS....................................................................................................................................45

A.INTRODUCTION..............................................................................................................................45

B. RESERVE COMPONENT ..................................................................................................................46

1. U.S. ARMY RESERVE (USAR).........................................................................................46

2. U.S. AIR FORCE RESERVE (USAFR)...............................................................................46
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3. U.S. NAVAL RESERVE (USNR) ......................................................................................47

4. U.S. MARINE CORPS RESERVE (USMCR)......................................................................47

5. U.S. COAST GUARD RESERVE (USCGR).........................................................................47

6. NATIONAL GUARD OF THE UNITED STATES (NGUS).......................................................48

C. RESERVE COMPONENT CATEGORIES .............................................................................................52

1. READY RESERVE .............................................................................................................52

2. STANDBY RESERVE .........................................................................................................53

3. RETIRED RESERVE...........................................................................................................54

D.RESERVE COMPONENT TRAINING AND SUPPORT...........................................................................54

1. TRAINING ........................................................................................................................54

2. SUPPORT..........................................................................................................................56

3. MILITARY TECHNICIANS (DUAL STATUS) (MT)..............................................................57

E. MOBILIZATION/ACTIVATION OF RESERVE COMPONENT AND CALLING UP THE MILITIA...............57

1. FULL MOBILIZATION (10 U.S.C.A. § 12301(a)) ..............................................................58

2. PARTIAL MOBILIZATION (10 U.S.C.A. § 12302(a)).........................................................58

3. PRESIDENTIAL RESERVE CALL-UP (PRC) (10 U.S.C.A. § 12304)....................................58

4. INVASIONS AND REBELLIONS (10 U.S.C.A. § 12406)......................................................58

5. THE INSURRECTION ACT (10 U.S.C.A. § 251-255) ..........................................................58

6. 15-DAY INVOLUNTARY FEDERAL ACTIVE DUTY (10 U.S.C.A. § 12301(b))....................59

7. VOLUNTARY FEDERAL ACTIVE DUTY (10 U.S.C A. § 12301(d)) ....................................59

8. MEDICAL CARE (10 U.S.C.A. § 12301(h)) ......................................................................59

9. RESERVISTS RECALLED FOR DOMESTIC EVENTS (10 U.S.C.A. § 12304a)............................59

10. ACTIVE DUTY FOR PREPLANNED COCOM SUPPORT (10 U.S.C.A. § 12304b) ...............59

F. UNITED STATES COAST GUARD (USCG)......................................................................................60

G. NATIONAL GUARD OF THE SEVERAL STATES (ARNG, ANG).......................................................62

1. OVERVIEW.......................................................................................................................62

2. TITLE 32 STATUS .............................................................................................................63

3. STATE ACTIVE DUTY.......................................................................................................64

4. ANG/ARNG PERSONNEL CATEGORIES...........................................................................64

5. UNIQUE HLS/HLD MISSIONS ..........................................................................................66

6. MISCELLANEOUS AREAS OF CAUTION .............................................................................67

H.CIVIL AIR PATROL (CAP).............................................................................................................76

CHAPTER 4: MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT.................................................78

A. INTRODUCTION.............................................................................................................................78

B. THE POSSE COMITATUS ACT.........................................................................................................78

1. TO WHOM DOES THE PCA APPLY? .................................................................................79

2. WHERE DOES THE PCA APPLY?......................................................................................81

3. WHEN DOES THE PCA APPLY?........................................................................................81

4. STATUTORY CATEGORIES OF PCA APPLICATION AND POLICY IMPLEMENTATION...........85
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CHAPTER 5: CIVIL DISTURBANCE OPERATIONS ................................................................................98

A.INTRODUCTION..............................................................................................................................98

B. AUTHORITIES FOR USE OF DOD FORCES FOR A CIVIL DISTURBANCE ..........................................100

 1. DEFENSE SUPPORT OF CIVIL AUTHORITIES....................................................................101

 2. NATIONAL GUARD CIVIL SUPPORT................................................................................102

C. USE OF NATIONAL GUARD FORCES IN A TITLE 32 OR SAD STATUS FOR CIVIL DISTURBANCE 

OPERATIONS ........................................................................................................................103

 1. NATIONAL GUARD CIVIL DISTURBANCE MISSION .........................................................103

 2. NATIONAL GUARD BUREAU AND STATE CONCEPT PLANS..............................................103

 3. NATIONAL GUARD CIVIL DISTURBANCE PLANNING CONSIDERATIONS..........................103

 4. NATIONAL GUARD CIVIL DISTURBANCE OPERATION MISSION SETS .............................105

D. USE OF TITLE 10 FORCES DURING A CIVIL DISTURBANCE OPERATION ......................................106

 1. USE OF NATIONAL GUARD FORCES IN A TITLE 10 STATUS .............................................106

 2. USE OF FEDERAL MILITARY FORCES IN A TITLE 10 STATUS...........................................106

 3. SUPPORTING A STATE OR TERRITORIAL REQUEST..........................................................107

 4. ENFORCING FEDERAL AUTHORITY .................................................................................108

 5. PROTECTING CONSTITUTIONAL RIGHTS .........................................................................109

E. TAKING ACTION UNDER THE INSURRECTION ACT (PROCEDURAL CONSIDERATIONS) ................109

F. DOD CONSIDERATIONS CONCERNING THE INSURRECTION ACT..................................................110

G. ADDITIONAL POSSE COMITATUS ACT EXCEPTIONS....................................................................110

 1. EMERGENCY AUTHORITY ..............................................................................................110

 2. BARMENT OR REMOVAL AUTHORITY ............................................................................111

H. THE DEPARTMENT OF DEFENSE CIVIL DISTURBANCE PLANS .....................................................111

 1. THE FEDERAL FORCE CDO MISSION..............................................................................112

 2. COMBATANT COMMANDERS' CONPLANS....................................................................112

I. FEDERAL MILITARY FORCE CIVIL DISTURBANCE OPERATIOAN PLANNING CONSIDERATIONS ....113

 1. THE STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES..................................113

 2. CONSTITUTIONAL CONSIDERATIONS ..............................................................................113

 3. BILLETING OF TROOPS....................................................................................................114

 4. INTELLIGENCE ................................................................................................................115

 5. CLAIMS ..........................................................................................................................115

 6. MEDICAL SUPPORT.........................................................................................................115

 7. INTERFERENCE WITH FEDERAL FORCES.........................................................................116

 8. LOAN AND LEASE OF MILITARY EQUIPMENT.................................................................116

 9. FUNDING .......................................................................................................................116

J. RESPONSIBILITIES AND RELATIONSHIPS OF PARTIES INVOLVED IN CIVIL DISTURBANCE 

OPERATIONS ........................................................................................................................117

1. ATTORNEY GENERAL.....................................................................................................117

2. SENIOR CIVILIAN REPRESENTATIVE OF THE ATTORNEY GENERAL ................................117
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3. ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND AMERICAS’ SECURITY 

AFFAIRS.........................................................................................................................117

4. CHAIRMAN, JOINT CHIEFS OF STAFF, JOINT DIRECTOR OF MILITARY SUPPORT (JDOMS)118

5. COMBATANT COMMANDERS, U.S. NORTHERN COMMAND AND U.S. PACIFIC COMMAND118

6. COMMANDER, U.S. ARMY NORTH.................................................................................118

7. COMMANDER, JOINT CIVIL DISTURBANCE TASK FORCE................................................118

8. NATIONAL GUARD BUREAU ..........................................................................................118

9. STATE GOVERNOR/CHIEF EXECUTIVE OF A U.S. TERRITORY ........................................119

10. STATE HOMELAND SECURITY ADVISOR ........................................................................119

11. DIRECTOR, STATE EMERGENCY MANAGEMENT AGENCY..............................................119

12. THE NATIONAL GUARD .................................................................................................119

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

CONSEQUENCE MANAGEMENT (CM) ........................................................................................122

A.INTRODUCTION............................................................................................................................122

B. CBRN CM OVERVIEW AND AUTHORITIES..................................................................................124

C. DOD ENTITIES RESPONSIBLE FOR CBRN CM OPERATIONS .......................................................127

D. SPECIALIZED DOD CBRN RESPONDERS .....................................................................................128

1. JOINT TASK FORCE CIVIL SUPPORT ...............................................................................128

2. NATIONAL GUARD WEAPONS OF MASS DESTRUCTION CIVIL SUPPORT TEAMS ............130

3. NATIONAL GUARD CERFP TEAMS................................................................................131

4. NATIONAL GUARD HRF ................................................................................................131

5. USCG NSF AND STRIKE TEAMS ...................................................................................131

E. SPECIAL LEGAL CONSIDERATIONS DURING CBRN CM OPERATIONS.........................................132

1. QUARANTINE / ISOLATION .............................................................................................132

2. ENVIRONMENTAL COMPLIANCE ....................................................................................133

3. HEALTH CARE LICENSURE.............................................................................................133

4. MORTUARY AFFAIRS .....................................................................................................135

CHAPTER 7: COUNTERDRUG OPERATIONS ......................................................................................138

A.INTRODUCTION............................................................................................................................138

B. TITLE 10 SUPPORT TO COUNTERDRUG OPERATIONS ...................................................................138

1. NATIONAL DEFENSE AUTHORIZATION ACT OF 1991 .....................................................139

2. DETECTION AND MONITORING ......................................................................................140

3. CJCS IMPLEMENTATION................................................................................................140

4. COUNTERDRUG SUPPORT TASK FORCES........................................................................142

5. COAST GUARD LAW ENFORCEMENT DETACHMENTS.....................................................143

C. NATIONAL GUARD SUPPORT TO COUNTERDRUG OPERATIONS....................................................146

CHAPTER 8: MILITARY SUPPORT OPERATIONS ...............................................................................153

I. INTRODUCTION - MILITARY SUPPORT TO SPECIAL EVENTS .........................................................154
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A. SUPPORT TO SPECIAL EVENTS OR ORGANIZATIONS .............................................................154

1. TYPES OF EVENTS AND SUPPORT FROM DOD OR NATIONAL GUARD .............................154

2. REQUESTS FOR SUPPORT AND COORDINATION...............................................................158

B. INNOVATIVE READINESS TRAINING.............................................................................................160

1. INNOVATIVE READINESS TRAINING PROCEDURES .........................................................160

2. LEGAL CONSIDERATIONS FOR IRT PROJECTS ................................................................162

II. INTRODUCTION - MISCELLANEOUS DOMESTIC SUPPORT OPERATIONS .......................................163

A. DISASTER AND DOMESTIC EMERGENCY ASSISTANCE .................................................................163

1. MILITARY ASSISTANCE TO SAFETY AND TRAFFIC..........................................................163

2. SEARCH AND RESCUE OPERATIONS ...............................................................................164

3. EMPLOYMENT OF DOD RESOURCES IN SUPPORT OF THE U.S. POSTAL SERVICE ............165

4. PUBLIC HEALTH OR MEDICAL EMERGENCIES ................................................................166

5. ANIMAL AND PLANT DISEASE ERADICATION.................................................................166

6. MASS MIGRATION EMERGENCY.....................................................................................167

7. NUCLEAR AND RADIOLOGICAL INCIDENTS ....................................................................167

8. DOD SUPPORT TO WILDFIRES........................................................................................168

B. ENVIRONMENTAL MISSIONS........................................................................................................172

1. THE DEEPWATER HORIZON OIL SPILL - USE OF THE NCP VS. STAFFORD ACT ..............174

C. MISCELLANEOUS MISSIONS IN SUPPORT OF LAW ENFORCEMENT ...............................................174

1. SUPPORT OF UNITED STATES SECRET SERVICE..............................................................174

2. IMAGERY INTELLIGENCE AND GEOSPATIAL SUPPORT ....................................................175

3. CRITICAL ASSET ASSURANCE PROGRAM .......................................................................175

4. CONTINUITY OF OPERATIONS POLICIES AND PLANNING ................................................175

5. EXPLOSIVE ORDNANCE DISPOSAL .................................................................................176

D. PANDEMIC INFLUENZA ................................................................................................................176

CHAPTER 9: INTELLIGENCE AND INFORMATION ACQUISITION AND HANDLING DURING DOMESTIC 

OPERATIONS ..............................................................................................................................180

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

B. THE ROLE OF DOD INTELLIGENCE COMPONENTS IN DOMESTIC SUPPORT OPERATIONS.............183

C. INFORMATION HANDLING AND THE ROLE OF DOD NON-INTEL COMPONENTS............................188

D. TITLE 10 DOMESTIC IMAGERY ACTIVITIES AND RESTRICTIONS ..................................................191

 1. DOMESTIC OPERATIONS .................................................................................................191

 2. DOMESTIC IMAGERY AND INTELLIGENCE OVERSIGHT PROGRAMS .................................192

 3. INCIDENT AWARENESS AND ASSESSMENT VERSUS INTELLIGENCE SURVELLANCE 

AND RECONNAISSANCE........................................................................................................193

 4. DOMESTIC IMAGERY AND SENSITIVE INFORMATION PROGRAMS....................................195

 5. DOMESTIC IMAGERY SUMMARY.....................................................................................197

E. THE NATIONAL GUARD...............................................................................................................197

1. STATUS: STATE ACTIVE DUTY, TITLE 32, OR TITLE 10..................................................198
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2. COLLECTION VIA AN INTELLIGENCE ACTIVITY ..............................................................199

3. METHOD OF COLLECTING ..............................................................................................200

4. PURPOSE OF THE COLLECTION.......................................................................................200

F. JUDGE ADVOCATE RESPONSIBILITIES..........................................................................................203

G. CONCLUSION...............................................................................................................................203

CHAPTER 10: RULES FOR THE USE OF FORCE (RUF) FOR FEDERAL FORCES...................................206

A.INTRODUCTION............................................................................................................................206

B. THE JUDGE ADVOCATE’S ROLE IN THE USE OF FORCE (UOF).....................................................207

C. PRACTICAL REALITIES OF USE OF FORCE SITUATIONS ................................................................209

1. CAPABILITIES AND LIMITATIONS ...................................................................................209

2. POTENTIAL THREAT.......................................................................................................210

3. PHYSICAL AND PSYCHOLOGICAL EFFECTS.....................................................................210

D. SRUF AND AREAS OF CONFUSION AND CONCERN ......................................................................210

E. LEGAL AUTHORITY AND STANDARD FOR U.S. MILITARY UOF IN DOMOPS .............................211

1. MINIMUM FORCE NECESSARY OR DEADLY FORCE AS A LAST RESORT .........................212

2. MANDATORY VERBAL WARNINGS ................................................................................213

3. DENIAL OF DEADLY FORCE IN SELF-DEFENSE...............................................................213

4. OPERATIONAL ORDERS/EXECUTION ORDERS ................................................................214

5. SRUF AUTHORITY TO USE DEADLY FORCE ..................................................................214

6. OTHER MISSION RELATED CIRCUMSTANCES FOR USE OF DEADLY FORCE....................215

7. AUGMENTATION OF THE RUF.......................................................................................216

F. LIABILITY FOR SERVICE-MEMBERS, LEADERS, AND RUF DRAFTERS IN UOF SITUATIONS .........216

1. FEDERAL CIVIL LIABILITY.............................................................................................217

2. FEDERAL CRIMINAL LIABILITY......................................................................................219

3. STATE CIVIL AND CRIMINAL LIABILITY.........................................................................219

G. OTHER TRIAL OR LITIGATION ISSUES..........................................................................................219

H. TRAINING OF JUDGE ADVOCATES ...............................................................................................220

CHAPTER 11: RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD.....................................223

A.INTRODUCTION............................................................................................................................223

B. RUF AND STATE LAW.................................................................................................................224

1. STATE LAW APPLICABLE TO BOTH TITLE 32 AND SAD STATUSES................................224

2. SUBJECTS FOR INCLUSION IN STATE RUF FOR THE NATIONAL GUARD .........................224

C. SPECIFIC RUF ISSUES..................................................................................................................230

1. RUF IN INTERSTATE (CROSS BORDER) OPERATIONS.....................................................230

2. STATE CRIMINAL LIABILITY OF NATIONAL GUARD MEMBERS FOR USE OF FORCE .......234

3. RUF IN MIXED NATIONAL GUARD AND ACTIVE COMPONENT OPERATIONS .................237

D.ROLE OF THE NATIONAL GUARD JUDGE ADVOCATE...................................................................237

1. DRAFTING RUF .............................................................................................................237
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2. NEGOTIATING RUF WITH STATE AGENCIES...................................................................238

3. PROVIDING LEGAL ADVICE ON LIABILITY .....................................................................238

4. TRAINING.......................................................................................................................238

E. CONCLUSION ...............................................................................................................................238

CHAPTER 12: FUNDING DOMESTIC SUPPORT OPERATIONS .............................................................241

A.INTRODUCTION: BASIC FISCAL LAW FRAMEWORK......................................................................242

B. BASIC FISCAL CONTROLS............................................................................................................243

1. PURPOSE ........................................................................................................................243

2. TIME ..............................................................................................................................247

3. AMOUNT ........................................................................................................................249

C. MILITARY ASSISTANCE TO CIVIL AUTHORITIES ..........................................................................250

D. DODD 3025.18, DEFENSE SUPPOPRT OF CIVIL AUTHORITIES (DSCA) .......................................252

E. DISASTER AND EMERGENCY RELIEF............................................................................................253

1. IMMEDIATE RESPONSE AUTHORITY (IRA).....................................................................254

2. EMERGENCY RESPONSE FUND (ERF) ............................................................................255

F. CIVIL DISTURBANCE OPERATIONS (CDOS).................................................................................256

G. SUPPORT TO CIVILIAN LAW ENFORCEMENT................................................................................257

1. ECONOMY ACT ..............................................................................................................258

2. MISCELLANEOUS RECEIPTS ...........................................................................................258

3. EXCESS PROPERTY.........................................................................................................259

4. EXPERT ADVICE AND TRAINING ....................................................................................259

5. SHARING INFORMATION.................................................................................................261

H.COUNTERDRUG SUPPORT ............................................................................................................261

1. DETECTION AND MONITORING.......................................................................................262

2. ADDITIONAL SUPPORT ...................................................................................................262

I. INNOVATIVE READINESS TRAINING.............................................................................................263

J. DOD SUPPORT TO SPECIAL EVENTS ............................................................................................264

K. SUPPORT TO PRIVATE ORGANIZATIONS AND INDIVIDUALS .........................................................265

1. BOY SCOUTS OF AMERICA .............................................................................................265

2. GIRL SCOUTS OF AMERICA ............................................................................................265

3. NATIONAL VETERANS’ ORGANIZATIONS .......................................................................265

4. AMERICAN RED CROSS ..................................................................................................266

5. NATIONAL MILITARY ASSOCIATIONS ............................................................................266

6. HOMELESS INDIVIDUALS................................................................................................266

L. LOAN OR LEASE OF NON-EXCESS PROPERTY OF A MILITARY DEPARTMENT...............................266

1. AUTHORIZED LOAN OR LEASE OF NON-EXCESS PROPERTY...........................................266

2. EMERGENCY EXCEPTIONS..............................................................................................268

3. ADDITIONAL REQUIREMENTS ........................................................................................268

M. MILITARY ASSISTANCE TO SAFETY AND TRAFFIC................................................................268
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N. EXPLOSIVE ORDNANCE DISPOSAL...............................................................................................268

O. MILITARY WORKING DOGS.........................................................................................................269

P. MISCELLANEOUS SUPPORT..........................................................................................................270

Q. MISCELLANEOUS EXCEPTIONS....................................................................................................270

R. FUNDING ISSUES RELATED TO USE OF NATIONAL GUARD IN DOMESTIC OPERATIONS ...............270

CHAPTER 13: CYBERSPACE OPERATIONS IN THE NATIONAL GUARD

A.INTRODUCTION............................................................................................................................274

B. DOD CYBER MISSIONS................................................................................................................274

1. PROTECT THE DOD INFORMATION NETWORK (DODIN)................................................275

2. DEFENSIVE CYBER OPERATIONS (DCO)........................................................................276

3. OFFENSIVE CYBER OPERATIONS (OCO)........................................................................276

C. DOD CYBER MISSION FORCE (CMF)..........................................................................................277

 1. CYBER PROTECTION TEAM (CPT).................................................................................277

 2. NATIONAL MISSION TEAMS (NMT) .............................................................................277

 3. COMBAT MISSION TEAMS (CMT) .................................................................................278

 4. SUPPORT AND OTHER TEAMS ........................................................................................278

 5. DEFENSIVE CYBER OPERATIONS-ELEMENTS (DCO-E) ................................................278

D. TITLE 32 CYBERSPACE ACTIVITIES .............................................................................................278

 1. SUPPORT TO ACTIVE COMPONENT .................................................................................279

 2. SUPPORT TO CIVIL AUTHORITIES-GENERALLY ..............................................................280

 3. SUPPORT TO CIVIL AUTHORITIES-INTELLIGENCE SUPPORT TO LAW ENFORCEMENT ..280

 4. SUPPORT TO CIVIL AUTHORITIES-ECONOMY ACT..........................................................280

 5. OTHER ENTITIES ............................................................................................................281

E. NATIONAL CYBER INCIDENT RESPONSE PLAN (NCIRP).............................................................281

F. STATE ACTIVE DUTY (SAD).......................................................................................................282

G. FEDERAL LAWS GOVERNING CYBER ACTIVITIES.......................................................................283

1. COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030)...............................................283

2. WIRETAP ACT (18 U.S.C. § 2511) ................................................................................284

3. PEN REGISTER AND TRAP AND TRACE ACT (18 U.S.C. § 3121) ....................................284

4. STORED COMMUNICATIONS ACT (18. U.S.C. § 2701) ...................................................284

H. JUDGE ADVOCATE RESPONSIBILITIES.........................................................................................284
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Chapter 1

1 Overview of Domestic Support Operations

CHAPTER 1

OVERVIEW OF CIVIL SUPPORT OPERATIONS

A. Background

The core task of the U.S. military is “to defend our Nation and win its wars.”1

 However, 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;2

 however, terrorism does not represent 

the only source of threats to the homeland. The extraordinary destruction wrought by Hurricanes 

Harvey, Irma, and Maria in 2017 remind us that threats to the nation do not always originate from 

the acts of man.3

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 2002,4 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.5 On February 28, 2003, President George W. Bush signed 

Homeland Security Policy Directive 5 (HSPD-5), “Management of Domestic Incidents.” The 

purpose of HSPD-5 was “[t]o enhance the ability of the United States to manage domestic incidents 

by establishing a single, comprehensive national incident management system [NIMS].”6

 In 

paragraph 14 of HSPD-5, President Bush tasked the Secretary of Homeland Security with 

development and administration of the NIMS.7 On December 3, 2003, President Bush signed 

Homeland Security Policy Directive 8 (HSPD-8), “National Preparedness.” HSPD-8 is a 

companion to HSPD-5 and “describes the way Federal departments and agencies will prepare for” 

 1

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

at https://www.defense.gov/Portals/1/Documents/pubs/2011-National-Military-Strategy.pdf [hereinafter 2011 National 

Military Strategy].

2

 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].

3

 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).

4

 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].

5

 Id.

6

 DEP’T OF HOMELAND SECURITY, HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 5 [hereinafter HSPD-5], available 

at https://www.dhs.gov/publication/homeland-security-presidential-directive-5 (last visited June 26, 2018).

7

 Id. at para. 14.
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Overview of Domestic Support Operations 2

incident response.8 “To help ensure the preparedness of the Nation to prevent, respond to, and 

recover from threatened and actual domestic terrorist attacks, major disasters, and other 

emergencies,” President Bush tasked the Secretary of Homeland Security to, “in coordination with 

the heads of other appropriate Federal departments and agencies and in consultation with State and 

local governments, . . . develop a national domestic all-hazards preparedness goal.9 As a result, The 

National Response Framework (NRF) was published in January 2008, most recently updated in 

June 2016.10

On October 1, 2002, the United States Northern Command (USNORTHCOM) was established 

which “marked the first time a single military commander has been charged with protecting the U.S. 

homeland since the days of George Washington.”11 USNORTHCOM has direct responsibility for 

the defense, protection, and security of the continental United States, 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.12 On September 11, 2003, 

USNORTHCOM reached full operational capability. USNORTHCOM’s current mission statement 

is:

“USNORTHCOM partners to conduct homeland defense, civil support and security cooperation to 

defend and secure the United States and its interests.”13

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

(HD) Defense Support of Civil Authorities (DSCA), Security Cooperation (SC), in addition to 

standard Geographic Combatant Commander-assigned responsibilities.14 As discussed below, HD 

and SC 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 support to civil authorities. Because of USNORTHCOM’s responsibility for operations in 

 8

 GOVERNMENT PUBLISHING ONLINE, HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 8, DECEMBER 2003 [hereinafter 

HSPD-8], available at https://www.gpo.gov/fdsys/pkg/PPP-2003-book2/pdf/PPP-2003-book2-doc-pg1745.pdf.

9

 The December 2003 version of HSPD-8 was replaced by Presidential Policy Directive 8 [hereinafter PPD-8] signed 

by President Barack Obama on March 20, 2011, https://www.dhs.gov/xlibrary/assets/presidential-policy-directive-8-

national-preparedness.pdf.

10 DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, June 2016 [hereinafter NRF], available at

https://www.fema.gov/media-library-data/1466014682982-

9bcf8245ba4c60c120aa915abe74e15d/National_Response_Framework3rd.pdf. The NRF superseded the National 

Response Plan (NRP) published in 2005.

11 A Short History of United States Northern Command, U.S. NORTHERN COMMAND OFFICE OF HISTORY (December 31,

2012), 

http://www.northcom.mil/Portals/28/Documents/Supporting%20documents/Historical/NORTHCOM%20History.pdf. 

12 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.

13 About USNORTHCOM, UNITED STATES NORTHERN COMMAND, 

http://www.northcom.mil/AboutUSNORTHCOM.aspx (last visited June 26, 2018). 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.

14 Duties and assignments for Combatant Commanders are contained in the Unified Command Plan.
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3 Overview of Domestic Support Operations

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 which updated DoD’s Domestic Support Strategy for the first time since 2005, and 

set out DoD’s vision for transforming homeland defense and support to civil authorities.15

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

1) to defend U.S. territory from direct attack by State and non-State actors, and 2) to provide 

assistance to domestic civil authorities in the event of natural or manmade disasters.16 

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,”17 are beyond the scope of this handbook. The same 

holds true for SC. 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.

C. DoD’s Role in Civil Support

Federal military support provided to civil authorities is neither new nor unique to a single service. 

The Federal military has a history of providing assistance to the States and territories in times of 

major disaster or emergency.18 During the Reconstruction after the Civil War, U.S. Marshalls 

called on the Federal military to assist with maintaining order in the southern States.19 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. When 

called on today, and under the proper authority, DoD will continue to fulfill its role in providing 

support to civil authorities when necessary and authorized.

Under the control of their State Governor and The Adjutant General (TAG),20 National Guard units 

are the primary military responders in all civil support operations. 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 and local resources are exhausted or overwhelmed and 

Federal assistance has been requested, normally in writing, by the State’s Governor or delegated 

official.

 15 See STRATEGY FOR HOMELAND DEFENSE AND DSCA, supra note 2.

16 Id. at 1.

17 Id. at 9.

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

19 Id., para 1-1.

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

(TAG) of their particular State. In this context, “State status” includes “State Active Duty (SAD)” and the status 

maintained by members of the National Guard under Title 32 of the United States Code. See infra Chapter 3 for further 

discussion of National Guard status.
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Overview of Domestic Support Operations 4

Even though the core task of the DoD is to “defend our Nation and win its wars,”21 DoD has 

capabilities and resources uniquely suited to provide support to civil authorities if necessary. Like 

the National Guard, 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 abroad, Federal military personnel and equipment can be effectively 

employed in domestic disaster relief operations.22 In these instances, DoD’s role is one of support -

civilian authorities retain primary responsibility for domestic operations.23 Civil authorities may 

request Federal assistance, including DoD support, once it becomes clear that their capabilities will 

be insufficient or have been exceeded.24

U.S. domestic law, Presidential Decision Directives (PDDs),25 National Security Presidential 

Directives (NSPD), Homeland Security Presidential Directives (HSPDs), 26 Presidential Policy 

Directives (PPDs),27 Executive Orders (EOs), and DoD regulations provide the framework for, and 

set limits on, the use of Federal military forces to support civil authorities. While the types of 

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

concerns limit the scope of Federal support provided. Statutorily, judge advocates must carefully 

consider fiscal law constraints28 as well and the Posse Comitatus Act.29 From a DoD policy 

perspective, the “3025 series” of DoD Manuals, Instructions, and Directives are applicable.

The National Guard, while in State Active Duty (SAD) status, has primary responsibility for 

providing civil support to State and local Governments.30 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) is designed to maximize unity of 

effort when Federal agencies work together to respond to domestic emergencies. 31

 21 See 2011 NATIONAL MILITARY STRATEGY, supra note 1.

22 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 Dec. 2010) (C2, 19 March

2018) [hereinafter DoDD 3025.18]. 

23 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 [G]overnments.”).

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

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

promulgate Presidential decisions on national security matters.

26 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.

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

Presidential decisions on national security matters.

28 See infra Chapter 14.

29 18 U.S.C. § 1385 (2012). See infra Chapter 4.

30 DoDI 3025.21, supra note 18, at 27.

31 NRF, supra note 7.
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5 Overview of Domestic Support Operations

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 

civil support to local Governments. Unless otherwise authorized by law, the Federal Government 

may provide support to civil authorities only in response to a valid request for assistance after State 

and local Government resources have been exhausted or overwhelmed.

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 first to a disaster lies with the affected 

municipalities, counties, and States. There is no general Constitutional power nor statutory 

requirement for the Federal Government to engage in disaster response within a sovereign 

State without a request for assistance from a civil authority or a declaration from the 

President of the United States (POTUS).* Disaster response is a tiered effort from the 

bottom up which means that the first responders are at the local level. Once the resources 

at the local level are exhausted, they may request assistance from the State. Once the 

State’s resources are exhausted, the State may request assistance from the Federal 

Government. 

* There are, however, certain Constitutional powers and Federal statutes that grant POTUS the authority to 

take certain action within the States absent a request for assistance (see, e.g. Article IV, Section 4 of the U.S. 

Constitution, and the Insurrection Act, 10 U.S.C. § 251-255).
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Overview of Domestic Support Operations 6

D. Defense Support of Civil Authorities (DSCA)

The primary reference for all DoD support to provided to civil authorities during domestic 

operations is DoD Directive (DoDD) 3025.18, Defense Support of Civil Authorities.32 DoDD 

3025.18 was promulgated with changes on March 19, 2018. 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.”33

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

criteria are known as the “CARRLL” factors.34 Commanders at all levels should be cognizant of 

these factors when forwarding a recommendation for Federal 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 

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

more detail in specific DoD Directives and Instructions set out in the respective chapters of this 

Handbook.

E. Handbook Organization

This Handbook specifically addresses the DoD and National Guard civil support missions and their 

role in emergency response operations within the United States. It additionally provides an 

understanding of the overall Federal Government approach to preparing for and responding to major 

disasters and emergencies. 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 fully appreciate the various DoD and 

National Guard authorities and policies in this area. This Handbook, therefore, begins with a 

 32 DoDD 3025.18, supra note 22.

33 Id. at 4.

34 Id.
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discussion on the role of the DHS and the National Preparedness System and Incident Management 

doctrines that permeate all emergency and disaster responses. 

This Handbook then examines the roles, responsibilities and authorities of the National Guard and 

DoD related to specific domestic support operations including Chemical, Biological, Radiological, 

and Nuclear (CBRN)35 incident management, support to civilian law enforcement, civil disturbance 

support, counterdrug operations, and other miscellaneous operations. This Handbook concludes 

with chapters that impact all domestic operations: intelligence law, rules for the use of force, fiscal 

law, and cyber. Each chapter is best understood when considered in light of other chapters. 

However, each chapter also stands on its own and can be used by judge advocates to develop an 

understanding of the capabilities and limitations applicable to civil support. 

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

policy.
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Chapter 2

National Framework for Incident Management 8

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).

• The 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 (classified directive), 

March 6, 2006.

• 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. 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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9 National Framework for Incident Management

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

• DoDI 3025.22, The Use of the National guard for DSCA, July 26, 2013.3

• Chief National Guard Bureau Instruction (CNGBI) 3000.04, National Guard Bureau Domestic 

Operations, January 24, 2018.

• National Response Framework (NRF), June 2016.

• National Mitigation Framework (NMF), June 2016.

• National Prevention Framework (NPF), June 2016.

• National Disaster Recovery Framework, (NDRF), June 2016.

• National Incident Management System (NIMS), October 2017.

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

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

A. The Federal Response Structure

In the 25 years since 1988, when President George H.W. Bush promulgated Executive Order (EO) 

12656, the Federal Government has significantly changed 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 role of the 

Stafford Act as the primary authority for the use of Federal resources to assist State and local 

governments during major disasters and emergencies.

1. Executive Order 12656: 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.4

 

This Executive Order identifies several departments/agencies (e.g., Defense, Energy, Health and 

Human Services) that have active, and potentially overlapping, roles regarding 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).

Executive Order 13228, establishing the Office of Homeland Security5

, amended EO 12656 to 

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

 3

 Incorporating Change 1, May 15, 2017.

4

 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.

5

 Exec. Order No. 13228, 66 Fed. Reg. 51812 (Oct. 10, 2001).
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National Framework for Incident Management 10

emergency preparedness. This Executive Order identifies primary and support functions to be 

performed during any national security emergency of the United States, directs the development of 

plans for performing these functions as well as 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 13286.6

 6

 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: Ensure military preparedness and readiness to respond to 

national security emergencies ; Develop and maintain, in cooperation with the heads of 

other departments and agencies, national security emergency plans, programs, and 

mechanisms to ensure effective mutual support between and among the military, civil 

government, and the private sector; Develop and maintain damage assessment 

capabilities and assist the Director of the Federal Emergency Management Agency and 

the heads of other departments and agencies in developing and maintaining capabilities 

to assess attack damage and to estimate the effects of potential attack on the Nation; In 

consultation with the Secretaries of State and Energy, the Director of the Federal

Emergency Management Agency, and others, as required, develop plans and capabilities 

for identifying, analyzing, mitigating, and responding to hazards related to nuclear 

weapons, materials, and devices. 

Support Responsibilities: Development of plans and programs to support national 

mobilization; Planning for the protection, evacuation, and repatriation of United States 

citizens in threatened areas overseas; Coordinate with the Director of the Federal

Emergency Management Agency the development of plans for mutual civil-military 

support during national security emergencies. .

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 State 

and local governments to implement 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. 
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11 National Framework for Incident Management

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

2. The Homeland Security Act 

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.7

 

The Act established the DHS, 

and consolidated the consequence management missions, assets, and personnel of numerous Federal

departments and agencies into a single department.8 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.9 DHS is comprised of various directorates and components 

including the U.S. Coast Guard, 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 maintains responsibility for “[h]elping people before, during, and after disasters.”10

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).11 

In sum, the Homeland Security Act served as the foundation for the Government to reorganize and 

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

 7

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

8

 Id. § 101. The Act also established the Department of Homeland Security as the focal point for “natural and 

manmade crises and emergency planning. See§ 101(b)(1)(D).

9

 Id. § 101(b).

10 FEMA mission as stated on the FEMA website located at http://www.fema.gov/about/index (last visited on Jul. 10, 

2018).

11 HSA, supra note 7, § 502. As explained below, the NRP was superseded by the National Response Framework, 

which is now part of the National Preparedness System.

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.

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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National Framework for Incident Management 12

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

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

3. HSPD-5

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

established a new paradigm for Federal emergency management.12 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.13 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.”14 Whereas under the old FRP the Attorney General 

was the 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.15

 12 Homeland Security Presidential Directive 5, Management of Domestic Incidents (Feb. 28, 2003) [hereinafter HSPD5], available at http://www.gpo.gov/fdsys/pkg/PPP-2003-book1/pdf/PPP-2003-book1-doc-pg229.pdf.

13 Id.

14 Id.

15 Id.
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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) 

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

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.”16 PPD-8 complements HSPD-5—which remains in effect. The goal of PPD8 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.”17

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, non-governmental 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, 

 

16 HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 8 ANNEX I, Purpose (2007) [hereinafter HSPD-8 Annex I], available 

at https://www.dhs.gov/hspd-8-annex-1. 

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

http://www.dhs.gov/presidential-policy-directive-8-national-preparedness.
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organization, equipment, training, exercises, employment, or other activities of DoD forces, or the 

allocation of DoD resources.18

HSPD-8, Annex I required the development of National Planning Scenarios.19 Consequently, the 

Homeland Security Council developed fifteen scenarios depicting “a diverse set of highconsequence threat scenarios of both potential terrorist attacks and natural disasters.”20

USNORTHCOM subsequently developed CONPLANs that address each of the scenarios where 

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

USNORTHCOM.21 These and other individual plans developed under HSPD-8 and Annex I 

remain in effect until rescinded or otherwise replaced.

5. 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 National Preparedness 

System (NPS) to guide activities that will enable the Nation to achieve the NPG.22 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 states 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.23 

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.

24

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, implements the new requirements and terminology of PPD-8, yet 

reiterates the concepts utilized in the 2008 version.25 

 18 Id.

19 HSPD-8 Annex I, supra note 16, para. 34.

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

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

22 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.

23 DHS, OVERVIEW OF THE NATIONAL PLANNING FRAMEWORKS (June 2016) 1, available at 

https://www.fema.gov/national-planning-frameworks. 

24 PPD-8, supra note 17.

25 DHS, NATIONAL RESPONSE FRAMEWORK, Third Edition (June 2016) 3, [hereinafter NRF], available at

https://www.fema.gov/media-library/assets/documents/117791.
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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 

builds upon and complements the NIMS,26 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.27

The NRF is comprised 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.28

• Emergency Support Function (ESF) Annexes. The ESF Annexes are Federal coordinating 

structures that group resources and capabilities into functional areas that are most frequently needed 

in a national response.29 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 non-governmental organizations (NGOs) coordinate and execute 

common processes and requirements necessary to ensuring effective incident management.30 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.31

• Incident Annexes. The incident annexes describe the unique response aspects of incident 

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

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

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

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

 26 DHS, NATIONAL INCIDENT MANAGEMENT SYSTEM (Oct. 2017), available at https://www.fema.gov/nationalincident-management-system [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.

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

28 NRF, supra note 26.

29 Id. at 4.

30 Support Annexes: Introduction, FEMA (May 2013), https://www.fema.gov/media-library/assets/documents/32270

(last visited Jul. 10, 2018). 

31 Id. The eight support annexes are available at http://www.fema.gov/national-preparedness-resource-library.
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Enforcement and Investigation. These documents can now be found as annexes to the Response 

Federal Interagency Operational Plans (FIOP) rather than as supplements to the NRF.32

a. NRF Roles and Responsibilities

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

• Individuals, Families, Households, and Communities

• Non-governmental 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

• Attorney General

• Secretary of Defense

• Secretary of State

• Director of National Intelligence

b. Response Mission Area Core Capabilities

Of the 31 core capabilities determined 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.33

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 

 32 DHS, RESPONSE FEDERAL INTERAGENCY OPERATIONAL PLAN, Second Edition (August 2016) 3, [hereinafter FIOP], 

available at https://www.fema.gov/media-library-data/1471452095112-

507e23ad4d85449ff131c2b025743101/Response_FIOP_2nd.pdf.
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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 

coordinating structures.34 

(1) Federal Coordinating Structures

• The National Security Council (NSC)

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

determination, and it advises and assists the President in integrating all aspects of national security 

policy as it affects the United States. Along with its subordinate committees, the NSC is the 

President’s primary method for coordinating Executive Branch departments and agencies in the 

development and implementation of national security policy.35

• Emergency Support Functions (ESFs)

Federal and 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.36

ESF # ESF ESF Coordinator

1 Transportation Department of Transportation

Department of Homeland Security/National 2 Communications Communications System

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

Department of Agriculture/U.S. Forest Service/U.S. Fire 4 Firefighting Administration (DHS/FEMA)

5 Information and Planning Department of Homeland Security/FEMA

Mass Care, Emergency Assistance, 

6 Temporary Housing, and Human Department of Homeland Security/FEMA

Services

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

Oil and Hazardous Materials 10 Environmental Protection Agency Response 

11 Agriculture and Natural Resources Department of Agriculture

12 Energy Department of Energy

 33 Id. at 20.

34 Id. at 30-31.

35 Id. at 31.

36 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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13 Public Safety and Security Department of Justice/ATF

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.37 

ESFs also have 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 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.38

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 needing Federal support require ESF activation. When 

departments or agencies are activated as part of ESF activation, 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 “[w]ork 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.”39 

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 as well. The mission assignment process has been expanded to include Pre-Scripted 

Mission Assignments (PSMAs), which are prepared in advance to facilitate a more rapid response 

 37 NRF, supra note 26.

38 Id. at 36.

39 44 C.F.R. § 206.2(a)(18) (2017). “Administrator” refers to FEMA Administrators. See 44 C.F.R. § 206.2(a)(18) 

(2017).
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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).

Practice Scenario: You are the base SJA at Naval Station Norfolk. It has now been three 

days since Hurricane XYZ made landfall in Norfolk. Federal military personnel and small 

boats 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 and 

that a civil authority contacted the Commanding Officer to request assistance). FEMA has 

not issued a mission assignment to any of the units at Naval Station Norfolk but the Naval 

Station Commanding Officer tells you that he knows a mission assignment from FEMA is 

forthcoming, so the Navy will be 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 and an executed mission assignment, there can be no 

reimbursement under the Stafford Act. Federal reimbursement for assistance provided 

pursuant to IRA is a possibility (but not required). In an immediate response situation, the 

Federal unit should first request reimbursement from the civil authority prior to providing 

assistance. However, support may not be denied in the event that the civil authority cannot 

provide reimbursement. Under the Stafford Act, FEMA has reimbursed retroactively in 

some past disasters when a declaration was made after a Federal military unit had already 

begun providing support at the request of a civil authority. Never the less, this method of 

reimbursement is not a guarantee in every case. The bottom line is, in the transitionary 

period between provision of support to State and local entities under IRA and later the 

Stafford Act system, until mission assignments are issued, there is no guarantee of 

reimbursement to the unit. 
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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.

 42 NRF, supra note 26, at 41.

43 FEMA, INCIDENT COMMAND SYSTEM TRAINING: ICS GLOSSARY, available at: 

https://training.fema.gov/emiweb/is/icsresource/glossary.htm#I (last visited Jul. 16, 2018).

Practice Scenario: The President of the United States has declared major disaster as a 

result of the damage from Hurricane XYZ. Army staff with dump trucks have deployed 

from Fort Eustis to assist with debris removal, pursuant to a mission assignment issued by 

FEMA. You are the Region III Defense Coordinating Officer (DCO). As the DCO, you 

must verify the appropriate Emergency Support Function (ESF) to use for this mission. 

Which ESF applies? Additionally, the Fort Eustis personnel have asked whether they 

should remove hazardous material, and debris soaked in oil while also removing the other 

debris under the same ESF.

Answer: ESF #3 governs debris removal. The FEMA mission assignment form (currently 

FEMA Form 010-0-8) should reference the correct ESF in block III. 

Hurricanes will typically leave both contaminated and uncontaminated debris. When 

assigned to conduct ESF #3 debris removal, personnel should be advised to leave any 

contaminated debris. ESF # 3 specifically states that contaminated debris should be 

addressed under ESF #10. Therefore, the removal of contaminated debris will require a 

separate mission assignment.
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• 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 major disaster or emergency declaration, 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

• 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) 

 44 Id.

45 NRF, supra note 26, at 44.

46 Id.

47 National Infrastructure Coordinating Center, DHS.GOV, http://www.dhs.gov/national-infrastructure-coordinatingcenter (last visited Jul. 16, 2018).

48 NRF, supra note 26, at 45.
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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 non-governmental organizations, with primary responsibility for response and recovery. 

The JFO is organized and managed in a manner consistent with NIMS principles. The JFO uses the 

Incident Command System (ICS) structure but does not manage on-scene operations. Instead, the 

JFO provides support to on-scene efforts and conducts broader support operations that extend 

beyond the incident site.49

• 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.50

• Unified Coordination Staff (UCS)

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.).51

• 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 SFLEO in an incident, as described below). It becomes a component of the JFO when 

the JFO is established.52

• 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 

 49 NIMS, supra note 26, at 65.

50 NRF, supra note 26, at 42.

51 Id.

52 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.
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will assume responsibility for coordinating Federal response activities at the incident level once 

established, freeing the RRCC to address other incidents.53

• Principal Federal Official (PFO)

By Federal 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.54

• 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.55 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.

• 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 Senior 

Agent-in-Charge (SAC).56

• 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.57

 53 NRF, supra note 26, at 43.

54 Congress limited the Secretary of Homeland Security’s ability to designate a “field representative” during a Stafford 

Act declared major 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.” The 

position must report through the Federal Coordinating Officer (FCO). The Secretary of Homeland Security must notify 

Congress if she/he appoints someone to function as a field representative. 2010 DHS Appropriations Act, § 522.

55 “DISASTER MANAGEMENT ROLES AND RESPONSIBILITIES,” available at 

https://training.fema.gov/emiweb/downloads/is208sdmunit1.pdf (last visited Jul. 19, 2018).

56 JFO SOP, supra note 52, at 15.

57 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 Ju1. 16, 2018).
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• 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.58

• 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 Emergency 

Support Functions (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 

Department of Homeland Security/FEMA regions. (See Figure 2-1 below).

Figure 2-1. Map of FEMA Regions59

• Joint Task Force (JTF) Commander

Based on the size and type an 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 

 58 JFO SOP, supra note 52, at 15.

59 FEMA Regional Offices, FEMA.GOV, https://www.fema.gov/about-agency (last visited Jul. 16, 2018).
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JTF commander exercises operational control of all allocated DoD resources (excluding USACE 

resources, National Guard personnel in State Active Duty or Title 32 status, and, in some circumstances, 

DoD personnel 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 interfaced with the UCG. Requests for DoD 

assistance must still be coordinated through the DCO. The JTF command element will work with UCG 

members to ensure a clear understanding of the Federal military roles and responsibilities during the 

operation.60

• Dual Status Commander

A Dual Status Commander maintains a commission in both a Title 10 and Title 32 capacity which 

helps to unify the effort of the Federal and National Guard personnel involved in the response to a 

major disaster or emergency. The National Defense Authorization Act for 201261 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 and customary command and control 

arrangement.62 This includes Stafford Act major 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. Dual Status Commanders receive orders 

from both the State and Federal chains of command, and thus serve as a vital link between the two. 

Dual Status Commanders can be appointed in one of two ways. First, under 32 U.S.C. § 315, an 

active duty Army or Air Force officer may be detailed to the Army or Air National Guard of a State. 

Second, under 32 U.S.C. § 325, a member of a State’s Army or Air National Guard may be ordered 

to active duty. Regardless of method of appointment, the Secretary of Defense must authorize the 

dual status, and the Governor of the effected State must consent.63

The figure below outlines the interplay between these entities and organizations.

 60 JFO SOP, supra note 52, at 20.

61 National Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515, 125 Stat. 1298 (2011). See also 32 U.S.C. 

§§ 315, 325 (2012 & Supp. IV 2017).

62 National Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515(c), 125 Stat. 1395 (2011), 32

U.S.C. § 317, note. Despite a Dual Status Commander being the usual and customary 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. 63 See 32 U.S.C. §§ 315, 325 (2012 & Supp. IV 2017); and U.S. Gov’t Accountability Office, DoD Needs to Address 

Gaps in Homeland Defense and Civil Support Guidance, GAO-13-128 (Oct. 2012).
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Figure 2-264

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.65 It helps achieve the National Preparedness Goal 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 

 64 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.

65 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 (June 2016), available at: https://www.fema.gov/media-library-data/1466017209279-

83b72d5959787995794c0874095500b1/National_Prevention_Framework2nd.pdf.
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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, thirty-two core capabilities were developed and published in conjunction with 

the National Preparedness Goal (NPG). Of the thirty-two, the seven Prevention core capabilities 

are: Planning, Public Information and Warning, Operational Coordination, Forensics and 

Attribution, Intelligence and Information Sharing, Interdiction and Disruption, and Screening, 

Search, and Detection. 

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 other entities, also play a critical role as coordinating structures in preventing imminent acts of 

terrorism.66

8. National Mitigation Framework (NMF)

The NMF establishes a common forum for coordinating and addressing how the Nation manages 

risk through mitigation capabilities.67 It describes mitigation roles for government, NGOs, and 

private entities. The NMF also addresses how the Nation will develop, employ, and coordinate 

mitigation core capabilities to reduce loss of life and property due to disasters. Building on a wealth 

of evidence-based 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.

 66 DHS, OVERVIEW OF THE NATIONAL PLANNING FRAMEWORKS 3 (June 2016), available at

https://www.fema.gov/national-planning-frameworks.

67 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 17. 
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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.68

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 National Security Council 

(NSC).69 The Mitigation Framework Leadership Group (MitFLG) is a coordinating structure 

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 includes relevant local, State, tribal, and Federal organizations. It is chaired by FEMA in 

consultation with Department of Homeland Security (DHS) leadership. Consistent with PPD 1 

(Organization of the National Security Council System), the MitFLG coordinates with the relevant

National Security Council Interagency Policy Committees.

70

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. The NDRF also provides a flexible structure that enables disaster 

recovery managers to operate in a unified manner. Last, the NDRF 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. 

As with the other frameworks, the NDRF discusses the development and implementation of core 

capabilities. The eight core capabilities71 for the NDRF are: 

• Planning 

• Public Information and Warning 

 68 DHS, NATIONAL MITIGATION FRAMEWORK ii, 15 (June 2016), available at https://www.fema.gov/medialibrary/assets/documents/117787 [hereinafter NMF].

69 Id. at 33.

70 Id. at 34.

71 DHS, OVERVIEW OF THE NATIONAL PLANNING FRAMEWORKS 8 (June 2016), available at: 

https://www.fema.gov/media-library-data/1466016288879-

63f68f6dced909f08cf8687deaa8e718/Overview_of_National_Planning_Frameworks.pdf.
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• Operational Coordination 

• Economic Recovery 

• Health and Social Services 

• Housing 

• Infrastructure Systems 

• Natural and Cultural Resources

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 in that each RSF has coordinating and 

primary Federal agencies as well as supporting organizations that operate together with local, State 

and Tribal government officials, non-governmental organizations (NGOs) and private sector 

partners. As with the ESFs, RSFs can be selectively activated as needed.72 The FDRC, 

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.73

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.74 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.75 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.76

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 

 72 DHS, NATIONAL DISASTER RECOVERY FRAMEWORK 2 (June 2016), available at https://www.fema.gov/medialibrary-data/1466014998123-4bec8550930f774269e0c5968b120ba2/National_Disaster_Recovery_Framework2nd.pdf.

73 Id. 
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capabilities—Planning, Public Information and Warning, and Operational Coordination—are 

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.77

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)

HSPD-5 directed the Secretary of Homeland Security coordinate with other Federal department and 

agencies along with State, local, and tribal governments to develop a NIMS. The Secretary of 

Homeland Security remains responsible for administration of the NIMS. First published in 2004, 

NIMS provided a consistent nationwide template to enable Federal, State, tribal, and local 

governments as well as non-governmental organizations and private entities to work together to 

prevent, protect against, respond to, recover from, and mitigate the effects of incidents. Since then, 

NIMS has been revised to reflect input from a broad variety of stakeholders. In addition, lessons 

learned from recent incidents were considered in the latest version. NIMS is not an operational 

management plan. Instead, it is a core set of doctrine, concepts, terminology, and organizational 

processes intended to enable efficient and collaborative management of incidents.78 

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.79

NIMS is comprised of three major components:

• Preparedness. NIMS focuses on the following elements of preparedness: planning; procedures 

and protocols; training and exercises; personnel qualifications and certification; and, equipment 

certification.80 NIMS also stresses a unified approach to management and response activities, and 

 74 DHS, NATIONAL PROTECTION FRAMEWORK 1 (Jul. 2014), available at http://www.fema.gov/medialibrary/assets/documents/97350. 

75 Id.

76 Id. at 1-2.

77 Id. at 10-11.

78 NIMS, supra note 26, at 4.

79 Id. at 10.

80 Id. at 50.
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that all levels of governments and organizations must identify their capabilities before incidents 

occur.

• Communications and Information Management. NIMS emphasizes that well-planned, 

established, and utilized communications are critical for enabling the dissemination of information 

during an incident.81 Common plans, standards and communication architecture help to facilitate 

interoperability and maintain a constant flow of information during an incident.82 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 three 

sections:83

 Resource Management Preparedness

 Resource Management During an Incident

 Mutual Aid

• Command and Coordination. 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.84 The ICS works at the tactical level, organizing the onscene operations.85 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.86

• Ongoing Management and Maintenance. HPSD-5 authorized 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.87 As part of this process, NIMS notes the 

continued development of science and technology as playing 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 

 81 Id.

82 Id.

83 Id. at 6-11.

84 Id. at 3.

85 Id. at 24.

86 Id. at 19.

87 Id. at iii.
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Oil and Hazardous Substances Pollution Contingency Plan, more commonly called the National 

Contingency Plan (NCP), and the National Emergency Communications Plan (NECP). Agencies 

should note the NRF may modify their responsibilities in the event of a major disaster or 

emergency.

a. The National Contingency Plan (NCP)

The NCP88 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.89 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.90 Whether or not the NRF 

is activated, the OSCs apply NIMS and Incident Command principles during a response.

ESF #10 governs the response to oil and hazardous materials. 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.91

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 2002,92 as amended, calls for the NECP to be 

developed in coordination with stakeholders from all government levels and with members from the 

 88 40 C.F.R. § 300 (2017). 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 (2017). 

Executive Orders 12580 and 12777 delegated to the EPA responsibility to amend the NCP as necessary.

89 Exec. Order No. 12580, 52 F.R. 2923, (23 Jan. 1987).

90 40 C.F.R. § 300 (2017). 

91 FEMA, EMERGENCY SUPPORT FUNCTION #10 – OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (Jun. 2016), 

available at https://www.fema.gov/media-library/assets/documents/25512.

92 HSA, supra note 7.
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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 

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.”93 

Emergency Support Function 2 of the NRF, Communications, 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.94

“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.95

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 containing radioactive materials that impact within 

the United States.96

d. National Security Presidential Directive 46 (NSPD-46) and Homeland Security 

Presidential Directive 15 (HSPD-15)

NSPD-46/HSPD-1597 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. They recognize 

 93 DHS, NATIONAL EMERGENCY COMMUNICATIONS PLAN, DHS (2014) ES-1, available at 

https://www.dhs.gov/sites/default/files/publications/2014%20National%20Emergency%20Communications%20Plan_O

ctober%2029%202014.pdf.

94 FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Oct. 2016) 1,4,7, available at https://www.fema.gov/medialibrary-data/1488825883577-fb52b6b7fd784dfb64aaee1fd886393a/NRIA_FINAL_110216.pdf.

95 Id. at 22.

96 Id. at 26.

97 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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that States have primary responsibility in responding to terrorist incidents, including actual events, 

and the Federal Government provides assistance as required.

e. The Defense Against Weapons of Mass Destruction Act98

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.99 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 Department of Energy (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.100

B. The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)

The Stafford Act provides for assistance from the Federal government to States in the event of 

emergencies or natural and other disasters.101 The Stafford Act is the primary legal authority for 

Federal emergency and disaster assistance to State and local governments. Congress’ 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.”102 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 Governor103 provided certain conditions are met; 

primarily that the Governor certifies that the State lacks the resources and capabilities to manage the 

 98 The Defense Against Weapons of Mass Destruction Act, Public Law: 104-201, 1996, codified at 50 U.S.C. §§ 2301–

2371 (2012 & Supp. IV 2017).

99 10 U.S.C. § 12304 (2012 & Supp. IV 2017) provides the Federal authority for the mobilization of Reserve 

Components in response to the use or threatened use of a weapon of mass destruction.

100 50 U.S.C. §§ 2301–2371 (2012 & Supp. IV 2017).

101 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]. 102 42 U.S.C. § 5121 (2012 & Supp. IV 2017).

103 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) (2012 & Supp. IV 2017). 

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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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 

emergency assistance, and it outlines the types of assistance that affected State(s) may receive from 

the Federal government. (See Table 2-4 below). 

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 Major Disaster Assistance—upon request of a State Governor. Provide 

(President or as delegated) 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 Major Disaster and Emergency Assistance: Establish field offices; 

coordinate relief efforts; take other necessary actions within authority.

Emergency Support Teams 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 Major Disaster: As a condition of receiving assistance, comply with 

and other relief organizations 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, provides an overview of the process of providing Federal support to States under the Stafford 

Act. 
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Figure 2-3.104

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.105 

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 authorized to form Emergency Support Teams (EST) of Federal personnel 

to be deployed to the area of the disaster or emergency.106 By delegation, the FCO may activate 

ESTs composed of Federal program and support personnel, to be deployed into an area affected by 

 104 Overview of Stafford Act Support to States, FEMA.GOV, http://www.fema.gov/pdf/emergency/nrf/nrf-stafford.pdf

(last visited Jul. 19, 2018).

105 42 U.S.C. § 5143 (2012 & Supp. IV 2017).

106 42 U.S.C. § 5144 (2012 & Supp. IV 2017).
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a major disaster or emergency.107 The EST is the principal interagency group that supports the FCO 

in coordinating the overall Federal disaster assistance.

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.108 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.109

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 WMD event involving fire or 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.110

 107 44 C.F.R. § 206.43 (2017). These teams may also be called emergency response teams.

108 The specific requirements for a request for an emergency declaration are set forth in 44 C.F.R. § 206.35 (2017). The 

specific requirements for a request for a major disaster declaration are set forth in 44 C.F.R. § 206.36 (2017).

109 42 U.S.C. § 5122(2) (2012).

110 42 U.S.C. § 5170 (2012).
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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 

transportation in the affected area; and fire management assistance on public or privately-owned 

forest or grassland.111 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.112

b. Emergencies

The Stafford Act defines “emergency” as follows:

[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.113

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.114 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.”115

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.116 The President may coordinate all emergency relief assistance 

and provide technical and advisory assistance to affected State and local governments for the: 

 111 42 U.S.C. §§ 5171–5189 (2012 & Supp. IV 2017).

112 See id. § 5170b.

113 See id. § 5122(1).

114 See id. § 5193.

115 See id. § 5191(a).

116 See id. § 5192.
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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 

with 42 U.S.C. § 5174; and assist State and local governments in the distribution of food, medicine, 

and other consumable supplies.117

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.118 

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.119

3. Categories of Agency Support Under the Stafford Act120

Once an emergency or major disaster is declared, it means a State(s) has/have requested assistance from 

the Federal government (except in the case of the limited exception discussed above). The assistance 

given will typically take one of two forms: Direct Federal Assistance or Federal Operations Support. 

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.

 117 42 U.S.C. § 5192(a) (2012 & Supp. IV 2017).

118 See id. § 5170b(c).

119 See id. § 5148.

120 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)121

The following is a summary of how Stafford Act assistance typically occurs, with reference to 

relevant NPS concepts. 

As the DHS 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 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.

 121 Example provided by Overview of Stafford Act Support to States, FEMA.GOV, 

http://www.fema.gov/pdf/emergency/nrf/nrf-stafford.pdf (last visited Jul. 17, 2018).
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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 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, its territories, or the District of Columbia.122 “The civil authority’s request 

for immediate response should be directed to the installation commander or other appropriate DoD 

official responsible for the installation . . . .”123 The DoD official must exercise judgement in 

determining the maximum allowable distance from the installation that the immediate response may 

take place and should also, unless otherwise directed by a higher authority, prioritize DoD resources 

and requirements before addressing the civil authority’s request.124

• 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., paragraph 4.i.4, any decision by an Immediate 

Response Authority to temporarily deploy resources requires notification to the National 

Joint Operations and Intelligence Center (NJOIC). 

• 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.

 122 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4.i. (29 Dec. 2010) (C2, 19

Mar. 2018) [hereinafter DoDD 3025.18].

123 Id. at 5.

124 Id.
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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).125 However, National Guard personnel will not be placed in or extended in Title 32 status 

to conduct State immediate response activities.126 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 seventy-two hours.

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 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 personnel127 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 non-Federal entities. 

 125 CHIEF NATIONAL GUARD BUREAU, INST. 3000.04, NATIONAL GUARD BUREAU DOMESTIC OPERATIONS (Jan. 24,

2018) para. 4.a. [hereinafter CNGBI 3000.04].

126 DoDD 3025.18, supra note 122, at para. 4.j.

127 Under 10 U.S.C. § 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 response to an emergency or major disaster under the 

Stafford Act.
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Figure 2-4
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45 Status Relationships Between Components

CHAPTER 3

STATUS AND RELATIONSHIPS BETWEEN COMPONENTS 

RESPONDING TO DOMESTIC INCIDENTS

KEY REFERENCES:

• DoDI 1235.12 - Accessing the Reserve Component, June 7, 2016, incorporating Change 1, 

February 28, 2017.

• 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.

• DoDI 1215.13 - Reserve Component (RC) Member Participation Policy, May 11, 2009.

• DoDI 1215.06 - Uniform Reserve, Training and Retirement Categories for the Reserve 

Component, March 11, 2014, incorporating Change 1, May 19, 2005.

• 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), which is comprised of the reserve of the 

various services and the National Guard of the several States, 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 rules) RC members have, but they also determine the different types of duties 

that the service-member may perform. 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 U.S. Coast Guard, the National Guard in a non-Federal status, and the Civil Air Patrol, 

because 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 (2012 & Supp. IV 2017).

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 (2012 & Supp. IV 2017).
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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 RC consists of the Army National Guard of the United States (ARNGUS), the Army Reserve, 

the Naval Reserve, the Marine Corps Reserve, the Air National Guard of the United States 

(ANGUS), 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 half 

of the Army’s combat support, and 25% of the Army’s mobilization base expansion capability.8 

2. U.S. Air Force Reserve (USAFR)9

The USAFR is composed of thirty-six wings that report to one of three Numbered Air Forces 

(NAFs).10 With just over ten percent of the Air Force’s manpower, the USAFR performs more than 

thirty percent of all Air Force missions.11 Like all of the other RCs, the role of the USAFR is to 

provide trained and ready forces to support its parent service. Yet the USAFR also has several 

unique missions. For example, the 731st Airlift Squadron, assigned to the 302nd Airlift Wing, 

 4

 10 U.S.C. § 9442 (2012 & Supp. IV 2017).

5

 10 U.S.C. § 10101 (2012 & Supp. IV 2017).

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

 America’s Army Reserve, ARMY RESERVE, http://www.usar.army.mil/About-Us/ (last visited Jul. 19, 2018).

9

 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).

10 Structure, U.S. AIR FORCE RESERVE, https://www.afreserve.com/about (last visited Jul. 19, 2018).

11 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 

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.
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Peterson Air Force Base, Colorado, is trained in the use of modular airborne firefighting systems 

that support local, State, and Federal agencies during wildland fire response.12 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.13

3. U.S. Naval Reserve (USNR)14

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). Typically, members of the Naval Reserve serve one 

weekend a month, and an additional two weeks per year. However, members may also serve 

fulltime as Navy Full-Time Support or Navy Individual Augmentees. USNR unique missions 

include operation of a Mine Countermeasure Ship, Mobile Inshore Undersea Warfare Units, and 

Helicopter Warfare Support Squadrons.15

4. U.S. Marine Corps Reserve (USMCR)16

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. Marine Forces Reserve is the 

headquarters command for roughly 100,000 members of the USMCR.17 Unique units in this 

reserve branch include Civil Affairs Groups and Air-Naval Gunfire Liaison Companies.

5. U.S. Coast Guard Reserve (USCGR)18

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 unique 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. 

 12 Modular Airborne Fire Fighting System (MAFFS), 302ND AIRLIFT WING, http://www.302aw.afrc.af.mil/AboutUs/Fact-Sheets/Display/Article/627167/modular-airborne-fire-fighting-system-maffs/ (last visited Jul. 19, 2018).

13 53rd Weather Reconnaissance Squadron Hurricane Hunters, 403RD WING,

http://www.403wg.afrc.af.mil/About/Fact-Sheets/Display/Article/192529/53rd-weather-reconnaissance-squadronhurricane-hunters/ (last visited Jul. 19, 2018).

14 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).

15 About the Reserve, NAVY RESERVE, http://www.navyreserve.com/about/mission.html (last visited Jul. 19, 2018).

16 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).

17 MARFORRES Media Information, U.S. MARINE CORPS FORCES RESERVE, 

https://www.marforres.marines.mil/About/Media-Info/ (last visited Jul. 30, 2018)

18 U.S. COAST GUARD, COMDTINST M1001.28A, RESERVE POLICY MANUAL, (18 May 2003).
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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.19 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 Guard Port Security Units (PSUs) - specialized deployable security units 

that have served both domestically and abroad during times of war.20 Additionally, under 10 U.S.C. 

§ 12302, the USCGR provided key support to Operation Iraqi Freedom and Operation Enduring 

Freedom.21

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 National Guard as a RC of their respective service.22 The terms 

“Federal service” and “Federalized” are applied to National Guard members and units when ordered 

to active duty in their RC status or called into Federal service in their militia status under various 

sections of Title 10 of the U.S. Code.23 

The terms “Army National Guard”(ARNG) and “Air National Guard” (ANG) refer to the Federallyrecognized (and usually Federally trained and funded under Title 32, U.S. Code) organized militia 

of the various States, in other words, members of the National Guard in a “State status” pursuant to 

Article I, Section 8, Clause 16 of the Constitution.24 The ARNG and ANG train for their Federal

military missions according to Congressionally-established disciplines under Title 32, United Stated 

Code, under State control. ARNG/ANG members also take oaths to obey their respective 

Governors and abide by State law.25 As discussed section 6(c) below, upon 

enlistment/commissioning in the Army and Air National Guard, members simultaneously become 

members of the ARNGUS or ANGUS respectively, and thus may be called into Federal service.

Determining whether a National Guard member is in a State or Federal status can be 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, members of 

 19 14 U.S.C. § 712 (2012 & Supp. IV 2017).

20 PORT SECURITY UNIT 309, http://www.uscg.mil/lantarea/psu309/ (last visited Jul. 19, 2018).

21 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 

https://media.defense.gov/2017/Jul/01/2001772261/-1/-1/0/OIF_D0010862.PDF (last visited Jul. 19, 2018). 

22 10 U.S.C. §§ 101(c), 10101 (2012 & Supp. IV 2017). Per 10 U.S.C. §§ 10105 and 10111 (2012 & Supp. IV 2017), 

the Army National Guard of the United States (ARNGUS) and Air National Guard of the United States (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.

23 See 10 U.S.C. chs. 13 and 1211 (2012 & Supp. IV 2017).

24 See 10 U.S.C. § 101 (2012 & Supp. IV 2017); 32 U.S.C. §§ 301, 307 (2012 & Supp. IV 2017).

25 32 U.S.C. §§ 304, 312 (2012 & Supp. IV 2017).
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the National Guard only become subject to the Uniform Code of Military Justice (UCMJ) when 

Federalized (serving on active duty under Title 10); 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 as a 

member of the NGUS 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 Federalized National Guard 

officers to retain command authority over State forces with the approval of POTUS and the consent 

of the Governor (see the discussion in section 6(a) of this chapter on Dual Status Commanders, and 

in Chapter 2 infra).

Guard personnel in Title 10 and Title 32 (discussed under National Guard of the Several States 

section) status receive Federal pay and are covered under the Federal Torts Claims Act.26 Title 10 

personnel always receive Federal military retirement credit for the performance of duty. It is 

helpful to keep in mind 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.27 The National Defense Act of 

1916 further strengthened the organization and training of the National Guard.28 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.29 Although members of the National Guard 

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.30

c. Federal Missions

Like the other RCs, ARNGUS/ANGUS31 members and units are integrated with the Active 

Component as part of a total force capability for responding to a wide-range of national defense 

 26 See 32 C.F.R. § 536.97 (2012).

27 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).

28 National Defense Act of 1916, 64 Pub. L. 85; see also Perpich, 496 U.S. 334, 343–44.

29 National Guard Act of 1933, 73 Pub. L. 64, § 18: see also Perpich, 496 U.S. 334, 345–46.

30 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.

31 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 

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 
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missions. To become an ARNGUS or ANGUS member, the service-member or service-member’s 

unit must be “Federally recognized.”32 To be Federally recognized, the service-member or servicemember’s unit must meet prescribed Federal standards.33 NG units or members may be ordered to 

Federal active duty in one of two basic ways. One way is to order NG members or units to active 

Federal duty under various provisions of Title 10 (e.g. partial mobilization; volunteer duty; or preplanned Combatant Commander support),34 as members of the ARNGUS or ANGUS.35 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.36 Congress has given the President the authority to call the NG to active duty 

for these purposes.37 As discussed in section G(2) of this chapter, the National Guard can also be 

utilized for “Federal missions” in a Title 32 status under certain conditions. Authorized duty under 

32 USC 502(f) includes support of operations at the request of the President or Secretary of 

Defense, for example, natural disaster response and assistance to the Department of Homeland 

Security on the Southwest border. 

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;38 any other National Guard members serving a 

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 National Guard 

channel of communications between the Army and Air Force and the fifty-four States and 

territories.39 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 

 (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). 

32 10 U.S.C. §§ 10105, 10111, 10503(7), 12201, 12211, 12212 (2012 & Supp. IV 2017); 32 U.S.C. § 105(b) (2012 & 

Supp. IV 2017).

33 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).

34 10 U.S.C §§ 12302, 12304b (2012 & Supp. IV 2017); see also DODI 1215.06 Appendix to Enclosure 4. 

35 U.S. CONST. art. 1, § 8, cl. 12; Perpich, 496 U.S. at 334; 10 U.S.C. §§ 12301–12304 (2012 & Supp. IV 2017). 36 U.S. CONST. art. I, § 8, cl. 15; 10 U.S.C. Chapter 13 (these statutes also include the use of the Armed Forces of which 

the NGUS is part); 10 U.S.C. § 12406 (2012 & Supp. IV 2017). Although these statutes are in Title 10 of the U.S. 

Code, members “called up” under these provisions retain their militia status.

37 10 U.S.C. Ch. 13 (2012 & Supp. IV 2017).

38 32 U.S.C. § 708 (2012 & Supp. IV 2017).

39 10 U.S.C. § 10501 (2012 & Supp. IV 2017); The “54,” as they are often called, include the fifty States, Puerto Rico, 

Guam, U.S. Virgin Islands, and the District of Columbia.
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and Air Force guidance, prescribing and monitoring training discipline and requirements, and 

supervising and administering the budgets of the ARNG and ANG.40

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.41 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.42 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.43 

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.44 The USPFO and his staff also perform functions relating to 

supply, transportation, internal review, data processing, contracting, and financial support for the 

State NG. 45 When required, the USPFO staff can support AC or other RC forces on a reimbursable 

basis.

e. Other NG Authorities for Duty

Members of the National Guard 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.46 As noted above, some 

 40 DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) (21 May 2008). 

41 10 U.S.C. § 151 (2012 & Supp. IV 2017).

42 10 U.S.C. § 10502 (2012 & Supp. IV 2017).

43 Id.

44 32 U.S.C. 708 (2012 & Supp. IV 2017).

45 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).

46 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).
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“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.47

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.48

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.49 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 

(ADT) for no more than 30 days each year, unless otherwise specifically prescribed by the 

Secretary of Defense.50

(2) Individual Mobilization Augmentees and Drilling Individual Mobilization 

Augmentees

 47 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.

48 U.S. DEP’T OF DEFENSE, INST. 1215.06, UNIFORM RESERVE TRAINING AND RETIREMENT CATEGORIES, para. E5.1 (7 

Feb. 2007, incorporating Change 2, 24 Dec. 2008) [hereinafter DoDI 1215.06].

49 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 (2012 & Supp. IV 2017) and 14 U.S.C. § 712 (2012 & 

Supp. IV 2017).

50 U.S. DEP’T OF DEFENSE, INST. 1215.13, RESERVE COMPONENT MEMBER PARTICIPATION POLICY, Encl. 2, para. 

1.a.(2) (11 May 2009).
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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.51

(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.52 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 enlisted personnel in an inactive status in the Ready Reserve, 

not in the Selected Reserve, and 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 

train for points or pay and are not eligible for promotion.53

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 

 51 DoDI 1215.06; supra note 48, para. E. 5.1.1.1.3. The Army National Guard and the Air National Guard do not have 

IMA programs. 

52 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.

53 Id. para. E.5.1.1.3. The Air National Guard does not have an inactive status. Officers may not be transferred to the 

ING (see 32 USC §303).
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Standby Reserve is a pool of trained individuals who may be mobilized as needed to fill manpower 

needs in specific skills.54

3. Retired Reserve

This category consists of all Reserve personnel transferred to the Retired Reserve. These 

individuals may voluntarily train with or without pay.55 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.56

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.57 Each military department has its own regulations and instructions that 

implement these training and support duties.58

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.

 54 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.

55 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.

56 10 U.S.C. § 688 (2012 & Supp. IV 2017).

57 DoDI 1215.06, supra note 48, para. 5.2.2. Combatant commanders have oversight responsibility for the training and 

readiness of assigned guard and reserve forces.

58 Id.
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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),59 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.60

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,61 and 

equivalent training. It is funded by the Reserve Component.62

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 by 

a member of the National Guard in a member’s status as a member of the National Guard of a State, 

territory under 32 U.S.C§§ 316, 502, 503, 504, 505. It is considered “active service” pursuant to 10 

U.S.C § 101(d)(3), but it is not considered “active duty” under Title 10. However, members on 

FTNGD generally receive the same pay and benefits as those on active duty in accordance with 10 

USC §12602, subject to some exceptions.63 (For other reserve components, some of the categories 

above are considered “active duty.”)

 59 Id., para. 6.6.4.1.4.

60 DoDI 1215.06, supra note 48, para. 6.1.4.1.

61 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.

62 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.

63 Some benefits statutes specifically exclude FTNGD, except when it meets certain conditions. See also 37 USC 101 

which defines active duty for purposes of that title as including FTNGD. 
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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 generally limited to organizing, administering, recruiting, instructing, or training 

the reserve components.68

 64 32 U.S.C. § 502(f)(2) (2012 & Supp. IV 2017).

65 DoDI 1215.06, supra note 48, 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) and 12310 (2012 & Supp. IV 2017) .
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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 Federal civilian employees under 5 U.S.C. § 3101 or 32 U.S.C. § 709(b) 

who are required to maintain military membership in the Selected Reserve. These individuals also 

perform administration and training for that Selected Reserve unit or maintenance and repair of 

supplies or equipment issued to that unit. Military and civilian positions must be compatible. 

Military Technician involvement with the National Guard is discussed further in section G(4)(b) of 

this chapter.

E. Mobilization/Activation of Reserve Component and Calling Up the Militia

The RC provides a full-spectrum operational capability in support of the national defense strategy.71 

Various authorities exist to order RC members to active/full-time duty to meet varied operational 

requirements. Such activations may be voluntary or involuntary. For major regional conflicts, 

national emergencies and other crises, access to RC units and individuals through an order to AD 

without their consent is assumed. When RC members are involuntarily Federalized, they will be 

kept on AD “no longer than operationally necessary,” subject to limitations imposed by the 

authorizing statute (e.g. under 12302, no more than 24 continuous months).72

Although the terms “Federalization” and “mobilization” are sometimes used interchangeably to 

describe the process that “Federalizes” members of the RC, 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.73 Reservists can be “Federalized” involuntarily or voluntarily with their consent 

(members of the National Guard 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.74 Levels of mobilization include selective mobilization, 

partial mobilization, full mobilization, and total mobilization. Therefore it is more helpful to use 

the term “Federalize” when referring to placing a member of the RC on AD rather than 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.75

 69 DoDI 1215.06, supra note 48, para. E.3.1.1.2.3; see also 10 U.S.C. §§ 12301, 12302, 12304 (2012 & Supp. IV 2017), 

and 14 U.S.C. § 712 (2012 & Supp. IV 2017).

70 10 U.S.C. § 10216 (2012 & Supp. IV 2017).

71 U.S. DEP’T OF DEFENSE, INST. 1235.12, ACTIVATION, MOBILIZATION, AND DEMOBILIZATION OF THE READY 

RESERVE, para. 4.1. (26 Nov. 2008, Incorporating Change 1, 21 Sep. 2011) [hereinafter DoDI 1235.12].

72 Id.

73 See generally id.; JOINT CHIEFS OF STAFF, JOINT PUB. 4-05, JOINT MOBILIZATION PLANNING (22 Mar. 2010).

74 DoDI 1235.12, supra note 71.

75 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 
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1. Full Mobilization (10 U.S.C.. § 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 § 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§ 12304)

Involuntary activation of up to 200,000 Selected Reserves 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. This statute authorizes ordering members of the 

RC to active duty without their consent, and without declaration of war or national emergency, for 

operations other than domestic disasters with exceptions. The exceptions to the “other than

domestic disasters” clause are those operations involving a use or threatened use of a weapon of 

mass destruction, 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. § 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 (i.e. Federalize the National Guard). Any orders for these purposes are 

to be issued through the Governors of the States, or, in the case of the District of Columbia National 

Guard, the Commanding General.

5. Insurrection Act (10 U.S.C. § 251-255)

a. 10 U.S.C. § 251

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 National Guards of other States into 

Federal service as well as use the Federal military to suppress the insurrection.

b. 10 U.S.C. § 252

Whenever the President considers that unlawful obstructions, combinations, or assemblages or 

rebellion against authority of United States makes 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 

 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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the militia of any State and use the Federal military 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. § 253

The President can use the National Guard and/or the Federal military 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. § 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 State’s Governor, or, in 

the case of the District of Columbia National Guard, the Commanding General). 

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, for members of the National Guard, with the consent of the

State’s Governor or, in the case of the District of Columbia, the Commanding General) for an 

unlimited period of time.

8. Medical Care (10 U.S.C. § 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 §12304(a))

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.76 

10. Active Duty for Preplanned Missions in Support of the Combatant Commands (10 

U.S.C. 12304(b))

The 2012 National Defense Authorization Act (NDAA) added a provision permitting the Service 

Secretaries to order members of the “Selected Reserve” (including National Guard), without their 

 76 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 (2012 & Supp. IV 2017).
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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 Guard77

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 a 

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 member of the Coast Guard performing a 

non-homeland 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.

Commonly referred to as “America’s maritime first responder,”78 the Coast Guard operates as part 

of the Department of Homeland Security.79 Presently, approximately 41,000 personnel serve on 

active duty in the Coast Guard. 80 Under Section 3 of Title 14 of the United States Code, 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.81 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.

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. The Coast Guard is at all times both an 

 77 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 (1 May 2009).

78 UNITED STATES COAST GUARD, https://www.uscg.mil/ (last visited Jul. 30, 2018).

79 6 U.S.C. § 468 (2012 & Supp. IV 2017).

80 Total Active Duty, U.S. COAST GUARD, https://www.overview.uscg.mil/Workforce/ (last visited Jul. 19, 2018) 

[hereinafter CG Statistics].

81 14 U.S.C. § 3 (2012 & Supp. IV 2017).
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“armed force” under Title 10 and a “law enforcement agency” under Title 14. Said another way, 

the Coast Guard does not switch “hats” between a serving as part of the armed forces and serving as 

a law enforcement agency. Instead, the Coast Guard performs both functions simultaneously.

As discussed earlier in this chapter, the Coast Guard has a reserve component. Presently, 

approximately 7,000 members of the Coast Guard comprise the total Coast Guard Ready Reserve.82

Finally, the Coast Guard Auxiliary is a civilian volunteer service, but one that 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.83 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.84

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.85 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), depending on the 

circumstances.86 Coast Guard units conducting MHS operations may find themselves in an MHD 

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.

MHS is a Federal law enforcement mission carried out by domestic law enforcement authorities, 

including the Coast Guard.87 The mission is to protect the U.S. Maritime Domain and the U.S. 

 82 CG Statistics, supra note 80.

83 14 U.S.C. § 822 (2012 & Supp. IV 2017).

84 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 can and do provide 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. 

85 14 U.S.C. § 141 (2012 & Supp. IV 2017). The Coast Guard may provide such assistance with or without the 

requirement of reimbursement. See 14 U.S.C. § 141(a) (2012 & Supp. IV 2017). 86 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.

87 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 
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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.88

G. National Guard of the Several States (ANG, ARNG)

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.89 In the Constitution, the President of the United States (POTUS) is the Commander in 

Chief of the militia only when it is “called into actual service of the United States.”90 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, members of the National Guard are 

subject to the military code of the respective State to which they belong.91

Each of the States and territories has an Adjutant General (TAG) or equivalent (e.g., Commanding 

General for the District of Columbia), a State officer whose rank may or may not be Federally 

recognized.92 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 under Title 10 of the United States 

Code. In this instance, POTUS serves as the Commander in Chief of the State National Guard.93 

Throughout the fifty States, District of Columbia, U.S. Virgin Islands, Guam, and Puerto Rico (the 

“54”), there are roughly 107,000 members of the Air National Guard employed across 90 Air 

Wings.94 In like fashion, there are roughly 343,000 members of the Army National Guard 

employed across 8 division headquarters, 27 brigade combat teams, 55 functional support brigades, 

42 multifunctional brigades, 8 combat aviation brigades, and 2 Special Forces Groups.95

 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.

88 See 33 C.F.R. § 6 (2017).

89 10 U.S.C. § 311 (2012 & Supp. IV 2017).

90 U.S. CONST. art. II, § 2, cl. 1.

91 Pursuant to 32 U.S.C. § 327 (2012 & Supp. IV 2017), 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.

92 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, (1 Oct. 1969) and Title 49, District of Columbia Code.

93 32 U.S.C. §§ 314, 325 (2012 & Supp. IV 2017).

94 2019 National Guard Bureau Posture Statement at 14, 

http://www.nationalguard.mil/portals/31/Documents/PostureStatements/2019-National-Guard-Bureau-PostureStatement.pdf. [hereinafter NGB Posture Statement 2019]

95 Id. at 14.
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Currently, each State has a joint force headquarters (State JFHQs) to provide command and control 

to its ANG and ARNG, a concept approved by Chief, NGB in October 2003.96 The Joint HQs 

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 

perform weekend drills of inactive duty training (IDT) once per month and annual training (AT) 

two weeks per year. These traditional members of the National Guard are commonly referred to as 

“M-Day (Mobilization Day).” Each year, M-Day Soldiers are required to perform 48 IDT drills and 

15 days of AT.97 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.98 

Federal recognition of NG units and associated funding is conditioned upon the unit continuing to 

meet applicable Federal standards.99 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, counter-drug operations, and WMD-CST teams). The use of Title 32 duty for 

operational missions must be based on statutory authority (for example, counter drug authority at 32 

U.S.C. § 112) or upon the request of the President or SecDef (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 typically have more situational awareness in local, domestic areas than their active 

duty counterparts. 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.100

Ordinarily, NG personnel in a Title 32 status should not provide civil support to a State, such as 

disaster assistance, unless such missions are otherwise authorized by law and receive funding. 

Accordingly, National Guard members are often in a State Active Duty (SAD) status (funded by the 

State) when providing civil support. If TAGs use NG members in a Title 32 status to perform civil 

support without appropriate authority, the State may be required to reimburse the Federal

Government for the amount of Federal funds expended during the operation.

 96 U.S. DEP’T OF DEFENSE, DIR. 5105.83, NATIONAL GUARD JOINT FORCE HEADQUARTERS – STATE (NG JFHQS-STATE),

Jan 5, 2011, Incorporating Change 1, Sep. 30, 2014.

97 32 U.S.C. § 502(a) (2012 & Supp. IV 2017). 

98 See Illinois National Guard v. Federal Labor Relations Authority, 854 F.2d 1396, 1398 (D.C. Cir. 1988). 

99 32 U.S.C. §§ 107–109 (2012 & Supp. IV 2017). 

100 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

Of the Armed Forces of the United States, only the National Guard has a status entitled State Active 

Duty (SAD); such duty is performed pursuant to State constitutions and statutes.101 SAD status 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 under Title 10 

of the United States Code, they are the primary military force that will respond to local disasters and 

emergencies. For these types of operations, the Governor may declare an emergency and call any 

State National Guard unit into SAD status. Federal funds are not obligated for any personnel or 

units performing SAD. However, if the President declares a major disaster or an emergency after a 

Governor’s request for assistance under the Stafford Act, then the State military department may be 

reimbursed through FEMA for the SAD pay and allowances it has expended.102

4. ANG/ARNG Personnel Categories

On any given day in a particular State, members of the National Guard serve in a variety of duty 

types such as Active Guard/Reserve (AGR), Active Duty Operational Support (ADOS), Fulltime 

National Guard Duty (FTNGD), Inactive Duty Training (IDT), and Annual Training (AT).

a. T-32 AGR

Every State National Guard has members of the T-32 AGR program serving under 32 U.S.C. § 

502(f). 10 U.S.C. § 101(d)(6)(a) defines “active Guard and Reserve duty” as “active duty” or “fulltime 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.”103 

Members of the T-32 AGR program 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. These service-members may also be “Federalized” and 

placed in a Title 10 status under appropriate sections of the Code.104 There is a material difference 

between the AGR program under T-32 and the AGR program under T-10. Members of the National 

Guard participating in the T-10 AGR program (ARNGUS, ANGUS) are performing in the service 

of the United States whereas those in the T-32 AGR program (ARNG, ANG) are performing in the 

service of their State. Service in the T-10 AGR program is discussed further in section B(6) of this 

chapter.

 101 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).

102 42 U.S.C. § 5121 (2012 & Supp. IV 2017).

103 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).

104 For a good discussion of FTNGD status, see United States ex rel. Karr v. Castle, 746 F. Supp. 1231, 1237 (Del. 

1990).
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b. NG Federal Technicians (32 U.S.C. § 709)

Each State National Guard may employ persons as Technicians.105 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. § 10216 

during the normal workweek.106 They must also maintain membership in a State NG and maintain 

Federal recognition in the military grade associated with their Technician position.107 Loss of NG 

membership terminates the full-time Technician position.108

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 members of the 

National Guard. These members are also subject to “Federalization” under Title 10 and can also be 

called to serve in a SAD status.

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 Federal military. They are covered under the Federal Tort Claims Act. In their 

civilian capacity, their participation in civil support operations is limited because any participation 

must fall within the scope of their position as a NG Technician. To perform out of scope activities, 

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 Federalized. 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 civil support operations in their non-Technician status.109

c. Full Time National Guard Duty - Operational Support (FTNGD-OS)110

If funding is available, NG units can place members of the National Guard (whether M-Day 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 members of the National Guard to perform “training.” Most members of the 

National Guard that participate in the counter-drug program are on Full Time National Guard Duty 

– Counter Drug (FTNGD-CD) orders under 32 U.S.C. § 502(f). FTNGD-CD is similar to FTNGDOS but given a separate moniker because it is aligned against a specific statutory program (i.e. 32 

 105 32 U.S.C § 709 (2012 & Supp. IV 2017).

106 See Lopez v. Louisiana National Guard, 733 F. Supp. 1059, 1065 (E.D. La. 1990).

107 10 U.S.C. § 101(c)(3), (5) (2012 & Supp. IV 2017).

108 NATIONAL GUARD BUREAU, REG. 635-100, TERMINATION OF APPOINTMENT AND WITHDRAWAL OF FEDERAL 

RECOGNITION, ch. 6 (8 Sep. 1978).

109 32 U.S.C. § 709 (2012 & Supp. IV 2017).

110 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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U.S.C. § 112). These members are also subject to “Federalization” under Title 10 and can also be 

called to serve in SAD status.

d. State Civilian Employees

In addition to Federal Technicians, the State NG units employ civilians pursuant to Master 

Cooperative Agreements (MCAs). 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 

other words, membership in the National Guard is not a condition of their employment as it is for 

Federal Technicians.

e. “Traditional” National Guard Members

The majority of the members of the National Guard within a State are “traditional” members. In 

other words, they hold civilian jobs in the community and are only in a military status when 

performing drill, training, or other military duty. These members may also be called to serve in two 

other statuses: 1) “Federalized” status under Title 10, and 2) SAD status under State law. Each 

member of the National Guard can be placed into different personnel categories, one at a time. 

These categories are important when determining matters such as command authority, benefits, 

discipline, and immunities.

5. Personnel with Unique HLS/HLD Missions

a. Weapons of Mass Destruction (WMD)/Civil Support Teams (CST)

Pursuant to 10 U.S.C. § 12310(c), WMD-CSTs 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. WMD-CSTs 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, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. By 

Federal statute, the WMD/CST teams may not operate outside of the continental United States 

(OCONUS). WMD-CSTs are discussed in greater depth in Chapter 6 of this Handbook.

b. National Guard 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.111 NG-CERFPs typically use 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 

 111 Homeland Response Force, National Guard,

http://www.nationalguard.mil/Portals/31/Resources/Fact%20Sheets/Homeland%20Response%20Force%20Fact%20She

et%20(Dec.%202017).pdf (last visited Jul. 19, 2018).
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response forces may provide support to civilian first responders within the first 6 to 72 hours after a 

CBRN event. NG-CERFPs may 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 briefly discussed in Chapter 6 of this Handbook.

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 and control over Federal troops.112 Under strictly prescribed circumstances, two statutes 

authorize one officer to exercise command and control over Federal and State status servicemembers even though such authority is exercised in a mutually exclusive manner.113 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 a commissioned officer in the Army and Air Force, 

with the permission of the President and the consent of the State’s Governor, to accept a National 

Guard commission and be detailed to duty with the State’s National Guard.114 Although it has also 

been argued that 32 U.S.C. § 104(d) allows the President to detail commissioned officers of the 

National Guard, the Regular Army, or Regular Air Force to command Title 32 troops, this detailing 

would not give the officer the ability to issue direct orders to those troops unless the commanding 

officer was also commissioned in that State’s National Guard.115 The second statute, 32 U.S.C. § 

325, as amended by the FY04 National Defense Authorization Act,116 allows a commissioned 

 112 See also Perpich, 496 U.S. 334, 348 (1990).

113 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 [S]tate [A]ctive [D]uty.” 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.

114 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 whether a Title 10 officer who accepts such a commission may be placed in 

command of a non-Federalized unit. The legal opinion also notes that such a determination is not necessary for 

Federalized National Guard members serving 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.”

115 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 [S]tate or territory.” OpJAGAF 1998/20, supra note 114, 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.

116 Title 32 U.S.C. § 325 currently reads as follows (amendments are underlined): 
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officer in a State’s National Guard to also accept a commission in the Federal military, and serve in 

dual command, so long as the President grants the authority and the State’s Governor consents (in 

the case of the District of Columbia National Guard, Commanding General). On 14 April 2011, 

President Obama delegated the Presidential functions and authority under both Title 32 U.S.C. §§ 

325 and 315 to the Secretary of Defense.

A request to establish a Dual Status Commander under 32 U.S.C. § 325 could come from either 

DoD or the TAG of a particular State. Required implementation documents would be the 

Presidential authorization, Gubernatorial consent, 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.117 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. 

When acting pursuant to their Federal commission, Dual Status Commanders may issue orders only 

to Federal forces. The same holds true for the National Guard when the Dual Status Commander is 

acting pursuant to their State National Guard commission under Title 32.

Because a Dual Status Commander holds a commission under Title 32 as well as Title 10, the 

officer is subject to the Posse Comitatus Act, the Federal Tort Claims Act, the Uniform Code of 

Military Justice and Federal pay and entitlements. When commanding Soldiers in a non-Federal

status, the Dual Status Commander receives legal advice from a State legal advisor. Conversely, 

when commanding Soldiers in a Federal status, the Dual Status Commander receives legal advice 

from a Federal legal advisor.

 

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 

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.

117 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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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; 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 2012, the 2012 Republican and Democratic 

National Conventions, Tropical Storm Isaac in 2012, Hurricane Sandy in 2012, and Hurricanes 

Harvey, Irma, and Maria in 2017.

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 defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act 

(42 U.S.C. § 5122).118 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 should be the principle civil authority supported by the lead Federal agency and its 

supporting Federal entities. The Adjutant General of the State military, or the appropriate person 

with delegated authority, should be the principal military authority supported by the Dual Status 

Commander when acting in his or her State capacity. 

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, rules 

for the use of force, liability and immunity rules, and military justice, 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.119 Additionally, Congress consented to the Emergency Management Assistance 

Compact (EMAC) in 1996.120 Each State, territory, and the District of Columbia has ratified 

EMAC.121 

 118 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. 

119 28 U.S.C. § 2671 (2012 & Supp. IV 2017). Members of the National Guard in a Title 32 status are also provided 

limited administrative remedies under the National Guard Claims Act, 32 U.S.C. § 715 (2012 & Supp. IV 2017). 120 The Emergency Management Assistance Compact (EMAC) was ratified by Congress in October of 1996, see Pub. 

L. No. 104-321, Stat. 3877 (1996) [hereinafter EMAC]; EMERGENCY MGMT. ASSISTANCE COMPACT 

http://www.emacweb.org/ (last visited Jul. 31, 2018).

121 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.
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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 members of a 

State’s National Guard are performing duty in another State.122 Moreover, State law may dictate if 

and when non-Federalized National Guard units may enter or leave a State for duty. For example, 

some States do not allow armed National Guard units to enter their State without permission from 

the Governor or legislature.123 Some States have specific authority that allows their militias to leave 

the State to perform duty.124

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.SC. § 1094, can practice in any 

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.125 Arguably, this also applies 

to members of the National Guard who are in a Title 32 status. However, the service-members 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.126 The 

Stafford Act does not provide that same authority to members of the National Guard in a State 

Active Duty status. While National Guard personnel do receive FTCA protections while operating 

in their Title 32 status, the activities performed, including medical treatment. Further, under Article 

VI of the EMAC, out of state practitioners are considered “agents of the requesting State for tort 

liability and immunity purposes; and no part State or its officers or employees rendering aid in 

another State pursuant to this compact shall be liable on account of any act or omission in good 

faith.”127 Willful misconduct, gross negligence, or recklessness are outside the scope of the 

coverage offered under EMAC. EMAC is further discussed in Chapter 11 of this Handbook. The 

Good Samaritan Laws of each State, listed in Table 3-1 below, may also provide insight on the 

additional protections that an out-of-State healthcare professional may have in another State. 

State Good Samaritan Legislation 

Alabama Ala. Code §§ 6-5-332 to 332.4 

Alaska Alaska Stat. §§ 09.65.090-191 

Arizona Ariz. Rev. Stat. § 32-1471 

 

122 See e.g., 44 OKL. ST. § 229.

123 See e.g., KY CONST. § 225; MON. CONST., art. II, § 33; IDAHO CODE § 46-110; KAN. STAT.ANN. § 48-203.

124 See e.g., CONN. GEN. STAT. § 27-16; MISS. CODE ANN. § 33-7-7; NY CLS MIL § 22.

125 DoDI 6025.13 MEDICAL QUALITY ASSURANCE (MQA) AND CLINICAL QUALITY MANAGEMENT IN THE MILITARY 

HEALTH SYSTEM (MHS) (17 Feb. 2011). 126 E.g., 42 U.S.C. § 5121 (2012 & Supp. IV 2017) et seq. 127 EMAC, supra note 120.
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Arkansas Ark. Code § 17-95-101

California Cal. Health and Safety Code § 

1799.102; Cal. Gov’t Code § 50086

Colorado Colo. Rev. Stat. § 13-21-108

Connecticut D.C. Code §§ 7-401 to 402

Delaware Del. Code tit. 16, §§ 6801-6802

District of 

Columbia

D.C. Code §§ 7-401 to 402

Florida Fla. Stat. § 768.13

Georgia Ga. Code §§ 51-1-29 to 29.2

Guam 7 Guam Code §§ 16101-16107

Hawaii Haw. Rev. Stat. § 663-1.5

Idaho Idaho Code § 5-330

Illinois 745 Ill. Comp. Stat. 49

Indiana Ind. Code §§ 34-30-12, 13.5

Iowa Iowa Code § 613.17

Kansas Kan. Stat. §§ 65-2891, 2891b

Kentucky Ky. Rev. Stat. §§ 411.148, 311.668

Louisiana La. Stat. § 9:2793-2793.9

Maine Me. Rev. Stat. tit. 14, §164

Maryland Md. Code, Cts. & Jud. Proc § 5-603

Massachusetts Mass. Gen. Laws ch. 112, § 12v

Michigan Mich. Comp. Laws §§ 41.711a, 

691.1501-1507

Minnesota Minn. Stat. §§ 604A.01-.05

Mississippi Miss. Code § 73-25-37
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Missouri Mo. Rev. Stat. § 537.037

Montana Mont. Code § 27-1-714

Nebraska Neb. Rev. Stat. § 25-21, 186

Nevada Nev. Rev. Stat. § 41.500

New 

Hampshire

N.H. Rev. Stat. §§ 508:12, 508.12c

New Jersey N.J. Stat § 2A:62A-1

New Mexico N.M. Stat. § 24-10-3

New York N.Y. Pub. Health Law § 3000-a, 3013

North 

Carolina

N.C. Gen. Stat. § 90-21.14

North Dakota N.D. Cent. Code § 90-21.14

Ohio Ohio Rev. Code § 2305.23

Oklahoma Okla. Stat. tit. 76, § 5, 5.1, 5.9

Oregon Or. Rev. Stat. § 30.800

Pennsylvania 42 Pa. Cons. Stat §§ 8331, 8332

Puerto Rico 2009 P.R. Laws S.B. 1091

Rhode Island 9 R.I. Gen. Laws § 9-1-27.1

South 

Carolina

S.C. Code §15-1-310

South Dakota S.D. Codified Laws §§ 20-9-4 to 4.4, 

20-9-3, 36-4A-26.3

Tennessee Tenn. Code § 63-6-218

Texas Tex. Civ. Prac. & Rem. Code §§ 

74.151-154

Utah Utah Code §§ 26-8a-601, 58-13-12 , 

78b-4-501

Vermont Vt. Stat. tit. 12, § 519
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Virgin Islands V.I. Code tit. 27, § 42

Virginia Va. Code §§ 8.01-225 to 225.02, 

8.01-225.3

Washington Wash. Rev. Code §§ 4.24.300-310

West Virginia W. Va. Code § 55-7-15

Wisconsin Wis. Stat. §§ 448.03, 895.48

Wyoming Wyo. Stat. § 1-1-120

 Table 3-1. State Good Samaritan Legislation

c. The District of Columbia National Guard

In 1802, the Congress of the United States enacted legislation officially establishing the District of 

Columbia (D.C.) Militia, which today is known as the D.C. National Guard (DCNG).128 The 

modern DCNG is comprised of a Joint Force Headquarters Army National Guard (DCARNG) and 

Air (DCANG) components. The overall mission of the DCNG is to “provide mission-ready 

personnel and units for active duty in the armed services in the time of war or national 

emergency.”129 In addition to the general civil support activities performed by the National Guards 

of other States and territories, the DCNG also “retains the mission as protector of the District of 

Columbia,”130 which is not a State and has no Governor.

In accordance with D.C. Code § 49-409 passed by Congress, the President of the United States is at 

all times the Commander-in-Chief of the DCNG.131 Executive Order (E.O.) 11485 delegated 

Presidential authority to command, supervise, administer, and control the DCNG in a militia status 

to the Secretary of Defense (SecDef).132 By memorandum, the SecDef further delegated this 

authority, as it pertains to the DCARNG to the Secretary of the Army, and as it pertains to the 

DCANG to the Secretary of the Air Force.133 The Secretaries exercise this authority through the 

Commanding General of the DCNG. Both Secretaries may, but have not, further delegate this 

authority to their Assistant Secretary for Manpower and Reserve Affairs. Last, and in accordance 

with the October 10, 1969 memorandum from SecDef to the Secretaries of the Army and Air Force, 

whenever the DCARNG or DCANG are used in militia status to support civil authorities, the 

Secretary of the Army, through the Commanding General, exercises operational command over the 

Army and Air National Guard elements. 

 128 U.S. Statutes at Large, 2:215, https://www.loc.gov/law/help/statutes-at-large/6th-congress/c6.pdf. 

129 D.C. National Guard, Mission Statement, available at https://dc.ng.mil/Welcome/Pages/default.aspx.

130 Id.

131 D.C. CODE § 49-409 (2018), https://code.dccouncil.us/dc/council/code/.

132 Exec. Order No. 11485, 34 Fed. Reg. 15411 (1 Oct. 1969).

133 SEC’Y OF DEFENSE MEM., 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 § 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.134 An officer appointed to serve as the Commanding General must be 

Federally recognized by the Senate in a general officer grade. Last, in accordance with D.C. Code § 

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, the Mayor 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 § 49-404, as authority 

for the DCNG to aid civil authority in its status as a subset of the enrolled militia as defined by the 

D.C. Code. 

The DCNG performs missions in either a Title 10 or Title 32 status. Currently, the DCNG does not 

have a State, or “District” Active Duty status. Title 49 of the D.C. Code implements the District of 

Columbia Militia Act of 1889.135 It authorizes the Mayor, the U.S. Marshal for the District of 

Columbia, or the National Capital Service Director, to request that the Commander-in-Chief order 

out the militia to aid the civil authorities in suppressing a public disturbance.136 When the DCNG is 

mobilized under these circumstances, it acts in a “militia status” on behalf of the District. 

Historically, the DCNG 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 32 U.S.C. § 502(d)(3). The Comptroller General of the United 

States has also 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 32.137 The Secretary of the Army requested a decision as to whether 

appropriated funds for annual training are available for disaster relief, whereby it was determined 

the disaster relief duty constituted proper and adequate annual training. Provided the Secretaries 

concerned first determine that the duty in question (i.e. disaster relief) constitutes proper and 

adequate training for the units involved, the execution of such duties in a Title 32 status and the 

payment of participating National Guard personnel from Title 32 appropriated funds, is appropriate. 

Consequently, the fact that the performance of such a “training” mission produces a collateral 

“operational” benefit does not render the mission objectionable. 

 134 D.C. CODE § 49-301 (2018), https://code.dccouncil.us/dc/council/code/.

135 D.C. CODE, Title 49 (2018), https://code.dccouncil.us/dc/council/code/. 

136 D.C. CODE § 49-103 (2018), https://code.dccouncil.us/dc/council/code/.

137 B-176491, 52 Comp. Gen. 35 (1972), Natinal Guard—Pay, Etc., Entitlement—Disaster Relief Duty by State. 
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Whenever service in a Title 32 status in support of the District of Columbia civil authorities may 

involve the exercise of law enforcement-like functions, the Secretary of the Army and the Attorney 

General must consent to the provision of such support. Consent to the provision is subject to the 

Mayor’s designation of members of the DCNG as special police (or “special privates”) pursuant to 

D.C. Code § 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.138 Historically, this special status has been conferred upon DCNG and other National 

Guard personnel in support of Presidential Inaugurations. When performing such duties, DCNG 

personnel wear an emblem authorized by the Mayor. 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 personnel 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 runs through the Department of Defense to the 

President, the applicability of the proscriptions of the Posse Comitatus Act (PCA), 18 U.S.C. § 

1385, bears comment. Applicability of the PCA depends on the status of the service-member. For 

instance the service-member is serving in a Title 10 status, then the member is considered part of 

the active component Army or Air Force for PCA purposes and therefore subject to the PCA’s 

prohibition on participation in the execution of civil laws. On the other hand, if the service-member 

is in a Title 32 status, the member is not considered part of the active component Army or Air Force 

and thus not subject to PCA restrictions. Whether in a Title 10 or Title 32 status, all members of the 

DCNG must comply with all applicable Department of Defense directives and instructions. 

Historically, the DCNG has been mobilized in a Federalized status on limited occasions. Pursuant 

to 10 U.S.C. § 12301, 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 forces 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(d), 1st Air Force (1st AF, 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 

members of the Air National Guard into a Title 10 status upon the occurrence of a “triggering” 

event, known by 1st AF as an “air sovereignty event.”139 On 11 June 2003, authority “to order into 

 138 D.C. CODE § 5-129.03 (2018), https://code.dccouncil.us/dc/council/code/.

139 See for example 11th Air Force Instruction (AFI) 38-101. This AFI outlines the status conversion process and 

defines an “air sovereignty event” as “any event that involves the Federal mission of aerospace warning and control, and 

includes but is not limited to, the surveillance of the assigned airspace, the identification of unknown aircraft, the 
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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-delegate this authority to a MAJCOM Commander who 

can also re-delegate his authority.140 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 utilized for 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.

e. Rules for the Use of Force (RUF)

State law will govern the rules for the use of force for members of the National Guard 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 CAP, 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. § 9442.141 

Although the CAP is not a military organization, as the USAF auxiliary it performs non-combat 

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 for Civil Authorities (MACA) 

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 Army provides oversight for disaster relief missions. Last, Civil Air Patrol-

 initiation and authorization of an active air scramble, and the control of aircraft engaged in an active air scramble or 

North American Aerospace Defense Command (NORAD) mission.”

140 10 U.S.C. § 12301(d) (2012 & Supp. IV 2017); MEMORANDUM: SECRETARY OF AIR FORCE DELEGATION OF AIR

NATIONAL GUARD RE-CALL AUTHORITY, dated 11 June 2003

141 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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United States Air Force (CAP-USAF) is located at Maxwell AFB in Montgomery, Alabama; an Air 

Force JA provides legal support to the Commander of CAP-USAF.
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Military Support to Civilian Law Enforcement 78

CHAPTER 4

MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT

KEY REFERENCES:

• 10 U.S.C. §§ 271 - 284 - 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, March 19, 2018.

• 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 the 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 (2011). 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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79 Military Support to Civilian Law Enforcement

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 15 (§§ 271-284 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 (now section § 275) directed the Secretary of 

Defense to promulgate regulations that prohibit “direct participation by a member of the Army, 

 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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Military Support to Civilian Law Enforcement 80

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.”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 While the PCA does not apply to the Coast Guard, its activities may 

align with the Navy when attached during time of war.

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 active component Army, Navy, Air Force, or 

Marine Corps when they are off-duty and acting in their 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 (2017); 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; see also SECNAVINST 5820.7C, supra note 7, para. 8(b).

12 See 14 U.S.C. §§2, 89 (2012) 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 infra 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) (2011).

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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81 Military Support to Civilian Law Enforcement

2. Where Does the PCA Apply?

a. What the Law Says

There is no definitive statement of the scope of the Posse Comitatus Act.18 Federal courts have 

generally held that the PCA places no restrictions on the use of the armed forces to enforce the law 

abroad.19 The courts, noting that Congress intended to preclude military involvement in domestic 

law enforcement activities, have been unwilling to apply the PCA extraterritorially.20 In addition, a 

1989 Department of Justice Office of Legal Counsel Opinion concluded that the PCA and the 

restrictions in 10 U.S.C. §§ 271–284 have no extraterritorial application.21 

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.22 

Therefore, PCA restrictions must be considered even when contemplating military assistance in law 

enforcement overseas. In cases of compelling or extraordinary circumstances, the Secretary of 

Defense may consider exceptions to the prohibition against direct military assistance to law 

enforcement outside the territorial jurisdiction of the United States.23

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. 

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

19 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).

20 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.”).

21 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.

22 DoDI 3025.21, supra note 6, at 3.

23 Id. (note that only the Secretary of Defense or Deputy Secretary of Defense may grant such exceptions).
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Military Support to Civilian Law Enforcement 82

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).24 Figure 4.1 summarizes PCA restrictions in 

10 U.S.C. §§ 371-375 and major areas of guidance from DoDI 3025.21:

Figure 4-1

In addition to the above categories, 10 U.S.C. §§ 276–277 provide further limitations on the 

provision of military support to civilian law enforcement. 10 U.S.C. § 276 provides an overarching 

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

 24 DoDI 3025.21, supra note 6.

Use of DoD

Personnel

10 U.S.C. §§

273–275

Use of Military 

Equipment 

and Facilities 

by Civilians

10 U.S.C. § 

272

Provision of

Information to 

Civilians

10 U.S.C. § 

271

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

*See DoDD 3025.18 (U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL 

AUTHORITIES (C2, 19 Mar. 2018) to distinguish Emergency Authority from Immediate Response 

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
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Chapter 4

83 Military Support to Civilian Law Enforcement

States.”25 10 U.S.C. § 277 requires civilian law enforcement agencies to reimburse DoD for 

support provided as required by the Economy Act26 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.27 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.28

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.

 25 10 U.S.C. § 276 (2012). 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.

26 31 U.S.C. § 1535 (2012).

27 10 U.S.C. § 277 (2012).

28 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 84

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 PCA does not apply as these personnel are not 

receiving agencies control (for example: Special considered part of the Army or Air Force for PCA 

Assistant United States Attorney; Special Deputy purposes.

U.S. Marshal)

Protection of Federal property Constitutional exception to the PCA.29

Response pursuant to the Insurrection Act Statutory exception to PCA.

Support to other Federal, State and local entities The PCA prohibits engaging in direct law 

that are engaged in direct law enforcement enforcement activities. Subject to DoD regulations 

activities 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 PCA does not apply, but the dissemination of 

criminal activity obtained during military information must be conducted in accordance with 

operations. 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.

Title 10 Status (“Federalized”) PCA applies (see 10 U.S.C. § 12405). 

OTHER UNIFORMED SERVICES APPLICABILITY OF THE PCA

United States Navy PCA does not apply by statute, but by DoD policy. 

United States Marine Corps PCA does not apply by statute, but by DoD policy.

United States Coast Guard PCA does not apply (but see 14 U.S.C. § 3). 

United States Public Health Service PCA does not apply.

National Oceanic & Atmospheric Administration PCA does not apply.

Figure 4-2 

 

29 See 32 C.F.R. § 215.4 (2017) for background on this Constitutional exception.
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Chapter 4

85 Military Support to Civilian Law Enforcement

4. Statutory Categories of PCA Application and Policy Implementation

a. Use of DoD Information Collected During Military Operations

10 U.S.C. § 271 regulates the use of information collected during military operations. For DoD, the 

requirements of 10 U.S.C. § 271 are implemented by the Secretary of Defense in Enclosure 7 of 

DoDI 3025.21. Under 10 U.S.C. § 271, 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. § 271(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. § 271(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.30 

Enclosure 7 of DoDI 3025.21 implements 10 U.S.C. § 271 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.31 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. § 271, the planning or creation of missions or training for 

the primary purpose of aiding civilian law enforcement official intelligence-gathering efforts is 

prohibited.32 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.33 Additionally, the handling of all such information must comply with 

DoDD 5240.01, DoD Intelligence Activities;34 DoDD 5200.27, Acquisition of Information 

Concerning Persons and Organizations not Affiliated with the Department of Defense;35 DoD 

5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that Affect United 

States Persons,36 and DoDD 5400.11-R, Department of Defense Privacy Program37 (for additional 

 30 10 U.S.C. § 271 (2012).

31 See DODI 3025.21, supra note 6, Encl. 3, para. 1.g.(2).

32 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. 

33 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.

34 U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].

35 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).

36 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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Military Support to Civilian Law Enforcement 86

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. § 272 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 272(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.38

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 loaned39 or leased.40 The following is a 

list of the approval authorities for various types of equipment and facilities:41

• 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.42

 37 U.S. DEP’T OF DEFENSE, REG. 5400.11, DOD PRIVACY PROGRAM (1 Sept. 2011) [hereinafter DoD 5400.11].

38 DoDI 3025.21, supra note 6, Encl. 8, para. 3.

39 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.

40 Leases under 10 U.S.C. § 2667 (2012) may be made to entities outside the Federal Government.

41 DoDI 3025.21, supra note 6, Encl. 8.
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87 Military Support to Civilian Law Enforcement

Judge advocates must be aware that other policies and statutes overlap with DoDI 3025.21 and 10 

U.S.C. §§ 271-275 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.43 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. § 282 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.44 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.45 

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 700-131.46 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.47 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.48 If any one of these three tests is met, the assistance may be considered a 

violation of the PCA.49 

• 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.50

 42 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. 

43 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 DEC. 2010) (C2, 19 Mar. 2018) 

[hereinafter DoDD 3025.18].

44 10 U.S.C. § 282 (2012).

45 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.”

46 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.

47 AFI 10-801, supra note 7.

48 United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991).

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

50 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.51 

• 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.52 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.53

In implementing the guidance contained in 10 U.S.C. Chapter 15 (§§ 271-284), 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).

51 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. §§ 271, 

274(b)).

52 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).

53 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.54 The restrictions 

on direct assistance by military personnel in civilian law enforcement activities is codified in 10 

U.S.C. § 275 and is implemented as DoD policy by DoDI 3025.21, Enclosure 3.55 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.56 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 

 54 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.”).

55 DoDI 3025.21, supra note 6, Encl. 3, para 1.c.

56 Id., Encl. 3.
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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 purpose57

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.58 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, 

 57 Id.

58 See 32 C.F.R. § 215.4 (2017), 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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including the use of Federal military forces, is authorized when necessary to protect Federal

property or functions.59

Presidential approval for quelling civil disturbances is not a prerequisite to the use of military forces 

in these two limited circumstances.60

(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. §§ 251-255. 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;61

• A rebellion makes it impracticable to enforce the Federal law through ordinary judicial 

proceedings;62 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.63

10 U.S.C. § 254 requires the President to issue a proclamation ordering the insurgents to disperse 

within a certain time before use of the military to enforce the 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.64 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)

 59 DoDI 3025.21, supra note 6, Encl. 3, para. 1.b.(3).

60 DoDD 3025.18, supra note 43, para. 4 (which provides specific guidance on when emergency authority may be 

used).

61 10 U.S.C. § 251 (2012).

62 10 U.S.C. § 252 (2012).

63 10 U.S.C. § 253 (2012).

64 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. 

§ 282) (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. § 282)

• 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. § 273 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. § 272. The Secretary of Defense has authorized the use of this authority in 

DoDI 3025.21, Enclosure 3.65

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.66

 65 DoDI 3025.21, supra note 6, Encl. 3, para. 1.f.

66 Id.
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DoD is prohibited from providing advanced military training to civilian law enforcement 

agencies.67 “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.68

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.69

(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. § 273 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 

3025.21.70

(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 

§ 272 and DoDI 3025.21 Enclosure 8, for Federal, State, or local law enforcement officials. DoDI 

3025.21 largely mirrors 10 U.S.C. § 274, with a few additional restrictions and differences that will 

be highlighted as the statute provisions are set forth below.71

 67 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].

68 DoD may allow local police organizations and other civic organizations to use military ranges. See 10 U.S.C. § 4309 

(1998).

69 Training Memorandum, supra note 67.

70 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.

71 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. § 274(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. § 272.72 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. § 274(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;73

• 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. § 

274. DoDI 3025.21 repeats these areas almost verbatim, with minor changes or additions.74

10 U.S.C. § 274(b)(2) states that DoD personnel made available under 10 U.S.C. § 274(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:75

• 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. § 274(a)(4)(1);

 72 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d

73 Controlled Substances Act, 21 U.S.C. §§ 801–904 (2011); Controlled Substances Import and Export Act, 21 U.S.C. 

§§ 951–971 (2011); Immigration and Nationality Act, 8 U.S.C. §§ 1324–1328 (2012); 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) (2012)); 

or any foreign or domestic law prohibiting terrorist activities. 10 U.S.C. § 274(b) (2012).

74 For example, DoDI 3025.21 adds “including support of FBI Joint Terrorism Task Forces” to the provision of 10 

U.S.C. § 274 discussing operation of equipment in the case of foreign or domestic terrorism missions. DoDI 3025.21, 

supra note 6, para. 1.d.(5).

75 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; 

and

 the transportation of suspected terrorists from foreign countries to the United States for trial 

(so long as the requesting Federal law enforcement agency provides all security for such 

transportation and maintains custody over the suspect through the duration of the 

transportation).

Additionally, DoD personnel made available to operate equipment for the 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.76 Lastly, 10 

U.S.C. § 274(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. § 274(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.77

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.78

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. § 274(a). Under 10 U.S.C. § 274(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. § 274 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. § 274 of must be made by the head of a 

civilian agency empowered to enforce any of the laws listed in footnote 75 above.79 Note that,

 76 10 U.S.C. § 274(b)(3) (2012). 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. 274(b)(2)(D) (2012).

77 10 U.S.C. § 274(c) (2012). DoDI 3025.21 contains this provision at Encl. 3, para. 1.d.(7).

78 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.(9).

79 Id., para. 1.d.(4).
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unlike 10 U.S.C. § 274, this appears to limit the circumstances under which maintenance (for 10 

U.S.C. § 274 purposes) can be approved to these categories.80

(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. § 271 is not a violation of the PCA and falls into this category.81 Criteria 

for the provision of this information are discussed infra, above.

 80 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.

81 Id., Encl. 3, para. 1.g.
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Civil Disturbance Operations 98

CHAPTER 5

CIVIL DISTURBANCE OPERATIONS

KEY REFERENCES:

• 10 U.S.C. § 251-255- 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.

• 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, Incorporating 

Change 2, Effective March 19, 2018.

• DoDD 5111.13 - Assistant Secretary of Defense for Homeland Defense and Global Security, 

March 23, 2018.

• 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 3110.07C, Guidance Concerning Chemical, Biological, Radiological, and Nuclear 

Defense and Employment of RIOT Control Agents and Herbicides (S), November 22, 2006.

• Joint Pub 3-28 -Defense Support of Civil Authorities, July 31, 2013.

• Department of Defense Dictionary of Military and Associated Terms, April 2018.

• Army Regulation 700-131 - Loan and Lease of Army Materiel, August 23, 2004.

• CNGBI 3000.04-National Guard Bureau Domestic Operations, 24 January 2018.

• NGR 500-5, National Guard Domestic Law Enforcement Support and Mission Assurance 

Operations (18 Aug. 2010).

• FM 3-07, Stability, June 2, 2014.

• USNORTHCOM CONPLAN 3500 Defense Support of Civil Authorities (S).

• USNORTHCOM CONPLAN 3500-14, Defense Support of Civil Authorities Response.

• USNORTHCOM CONPLAN3600 (S).

• USPACOM CONPLAN 7502 (S).

A. Introduction

The Code of Federal Regulations provides that within civilian communities in the United States, the 

local governments and the States have the primary responsibility for protecting life and property 

and maintaining law and order.1

 The Department of Defense is authorized to support this effort.2 

 1

 32 C.F.R. § 182.6(b)(1)(ii) (2017). 
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Generally, Federal forces are employed in support of State and local authorities to enforce civil law 

and order only when circumstances arise that overwhelm the resources of State and local 

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.3 Limiting direct military 

involvement in civilian law enforcement activities, is rooted in the Constitution4 and laws of the 

United States,5 and allows for exception only under extreme emergency conditions. However, 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.6

Department of Defense (DoD) policy no longer contains an official definition of civil disturbance, 

as the definition was removed from the DoD Dictionary of Military and Associated Terms; rather, 

“civil disturbances” are now referenced in the collective definition of “domestic emergencies.”7

Civil disturbance was previously defined as “group acts of violence and disorders prejudicial to 

public law and order.”8 Courts use similar language when defining “insurrection.”9 The Federal

Emergency Management Agency (FEMA) defines civil disturbance more broadly as “[a] civil 

unrest activity such as a demonstration, riot, or strike that disrupts a community and requires 

intervention to maintain public safety.” 

This chapter discusses how DoD personnel and assets are integrated into a civil disturbance 

response. How those forces are commanded, funded, and employed depends on the Federal or State 

authority used to activate the personnel and assets.

1. National Response Framework – Civil Disturbance 

 2

 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].

3

 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. This feeling 

resurfaced during the Constitutional Convention where Maryland Delegate Luther Martin recorded the general 

sentiment, “When a government wishes to deprive its citizens of freedom and reduce them to slavery, it generally makes 

use of a standing army.” Luther Martin’s Letter on the Federal Convention of 1787 (1787), 1 DEBATES IN THE SEVERAL 

STATES CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (ELLIOT’S DEBATES) 344, 372 (Jonathan 

Elliot ed., 1836) available at http://memory.loc.gov/ammem/amlaw/lwed.html.

4

 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, para. 11; art. II, § 2, para. 1.

5

 See, e.g., Posse Comitatus Act, 18 U.S.C. § 1385. The Posse Comitatus Act is discussed fully in Chapter 4 of this 

Handbook.

6

 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.

7

 DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 72 (April 2018) [hereinafter DoD

Terms]. 

8

 JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT GL-5 (31 July 2013) [hereinafter JOINT PUB. 3-28]. The 

previous edition of JP 3-28 contained this definition, the newest edition removed this definition.

9

 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.)
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The guide for how the Nation responds in the civil disturbance context and other emergencies is 

broadly known as the National Response Framework (NRF)10. The NRF sets out scalable, flexible,

and adaptable concepts for the national response to disasters and emergencies.

11 While responses to 

civil disturbances generally begin and end locally, the NRF provides structure for the Federal

response that may also be utilized by States to organize their response resources, capabilities, and 

authorities for managing incidents. 12 In particular, Federal response resources and capabilities are 

organized by functional areas and grouped under 15 core Emergency Support Functions (ESFs).13 

Public Safety and Security, inclusive of civil disturbance, is one of the ESFs designed to “[p]rovide 

Federal public safety and security assistance to local, State, tribal, territorial and Federal

organizations overwhelmed by the results of actual or anticipated natural/manmade disaster or an 

act of terrorism.”14 The primary agency in support of this ESF is the Department of Justice/Bureau 

of Alcohol, Tobacco, Firearms and Explosives. Support agencies include the Department of 

Defense and the Department of Homeland Security. 

2. The Tiered Response 

“The public safety and the welfare of a State’s residents are the fundamental responsibility of every 

Governor.” 15 The Governor coordinates State resources to support local governments as needed 

and coordinates assistance with other States and the Federal Government. 16 Stated very simply, 

when an incident occurs, local governments are the first to respond. If local resources are 

inadequate or exhausted, the local government may reach out to neighboring local governments 

through a variety of mutual assistance compacts or to the State for additional resources and 

capabilities. When State resources are inadequate or exhausted, the State may request and 

coordinate assistance from other States through the Emergency Assistance Compact (EMAC), 17

and/or to the Federal government resources. Among the resources available to a State and locality 

are National Guard personnel and assets of the affected State, National Guard personnel and assets 

from other States (through the EMAC), and other DoD personnel and assets.18

B. Authorities for Use of DoD Forces for a Civil Disturbance

 10 DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, Third Edition (June 2016), [hereinafter NRF], 

available at http://www.fema.gov/national-response-framework. (last visited Aug. 3, 2018). The NRF superseded the 

National Response Plan (NRP) published in 2005; see infra Chapter 2 National Framework for Incident Management. 

11 Id. at 1.

12 Id.

13 Id. at 33. Emergency Support Functions (ESFs) are the grouping of governmental and certain private sector 

capabilities into an organizational structure to provide support, resources, program implementation, and services that are 

most likely needed to save lives, protect property and the environment, restore essential services and critical 

infrastructure, and help victims and communities return to normal following domestic incidents.

https://www.phe.gov/preparedness/support/esf8/Pages/default.aspx. (last visited Aug. 3, 2018).

14 Emergency Support Function Annexes, FEMA, https://www.fema.gov/medialibrary/assets/documents/25512. (last visited Aug. 3, 2018).

15 NRF, supra note 10, at 13.

16 Id.

17 EMAC, supra note 17. 18 NRF, supra note 10.
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The U.S. Federal Armed Forces, including the reserves, are governed by Title 10 of the U.S. Code. 

National Guard forces have an additional statutory authority codified in Title 32 of the U.S. Code, 

due to their unique status as both a Federal Reserve component and as a part of the organized militia 

of their respective State or territory. The “3025-series” of DoD instructions and directives provide 

the guidance necessary to properly operate during civil support operations. More specifically, the

following core DoD policies represent the core documents used by Federal personnel: 1) 

Department of Defense Directive 3025.18, Defense Support of Civil Authorities, 2) Department of 

Defense Instruction 3025.21, Defense Support of Civilian Law Enforcement Agencies, 3) 

Department of Defense Instruction 3025.22, The Use of the National Guard for Defense Support of 

Civil Authorities. 

Employment of Federal Military Forces

The President is authorized by the Constitution and laws of the United States to employ the Title 10, 

Federal Armed Forces of the United States to suppress insurrections, rebellions, and domestic 

violence under various conditions and circumstances and to provide limited support to civilian law 

enforcement activities.19 The specifics are discussed later in this chapter.

Employment of National Guard Forces

Due to the unique status of the National Guard, National Guard forces can be employed as follows: 

1) State Active Duty (SAD) State funded, under State command and control, when called to duty by 

the State Governor in accordance with State law; 2) Title 32 status, using Federal funds, under State 

command and control, when properly assigned the mission under DSCA in accordance with Federal

law; or 3) Title 10 status, Federally funded, under Federal control, when called to Federal military 

service by the President. 

NOTE: Immediate Response Authority as set out in DoDD 3025.18, Defense Support of Civil 

Authorities (DSCA), allows Federal military commanders, heads of DoD components, and 

responsible DoD civilian officials to 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, 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.20 Immediate 

response authority is not an exception to the PCA, nor does it permit actions that would subject 

civilians to the use of military power that is regulatory, prescriptive, proscriptive, or compulsory.21

1. Defense Support of Civil Authorities

The DoD has a broad range of capabilities that can be deployed in support of civilian authorities in 

emergency situations. As discussed in sections C and D of Chapter 1, the DoD provides Federal

military assistance to civil authorities 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. This 

DoD assistance is categorized as Defense Support to Civil Authorities (DSCA). DSCA is defined 

 19 DODI 3025.21, supra note 2, at encl. 3 and 4.

20 U.S. DEP’T OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4.i (29 Dec. 2010) (C2, 19 Mar. 

2018) [hereinafter DoDD 3025.18].

21 Id.
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as, “[s]upport provided by United States Federal military forces, including Department of Defense 

civilians, contract personnel, and 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 a Title 32 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.”22 DSCA is initiated by a request for assistance to the DoD from civil 

authorities, qualifying entities, or by order of the President or Secretary of Defense.23 The process 

for requesting military assistance by civilian agencies is set out in DoD Directive 3025.18. As a 

part of the approval process, before providing assets to support civil authorities, DoD evaluates the 

request based on the “CARRLL” factors also set out in DoDD 3025.18.24 

In response to the request for assistance, forces from all branches of service on Federal active duty, 

including National Guard personnel under Federal command and control (Title 10) and National 

Guard personnel utilizing Federal funds under State command and control (Title 32) can be 

utilized.25 As discussed later in this chapter, the utilization of Federal military forces, for civil 

disturbances or law enforcement support, unless acting pursuant to The Insurrection Act or other 

exception to the Posse Comitatus Act (PCA), is restricted from performing law enforcement 

functions.26 While under the control of the Governor in a Title 32 or SAD status, the National 

Guard is not subject to the restrictions of Posse Comitatus. Accordingly, civil disturbance support 

mission and law enforcement support mission DSCA assignments are better suited to National 

Guard forces. 

2. National Guard Civil Support

When a civil disturbance escalates beyond the capabilities of local and State law enforcement 

authorities to maintain or restore law and order, in accordance with State law and at State expense, 

Governors have the authority to activate the National Guard to augment State and local law 

enforcement authorities to restore law and order. Further, in accordance with State law, Governors 

also have the authority to activate the National Guard to assist other States as requested through the 

Emergency Management Assistance Compact (EMAC). 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 through their State emergency 

management response structure.27 The National Guard Bureau refers to this support as “National 

 22 DODD 3025.18, supra note 20, at 19.

23 Id., at para. 4.c.

24 DoDD 3025.18 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, and Lethality – Potential use of lethal force by or against 

DoD forces.

25 In accordance with Title 32 USC, the Secretary of Defense, with the concurrence of the affected Governors, is the 

sole authority to authorize DOD funding of the National Guard for DOD missions including DSCA, see also DODI 

3025.22 July 26, 2013, Incorporating Change 1, May 15, 2017. 

26 Posse Comitatus Act, 18 U.S.C. § 1385 (2012), 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. 

27 NATIONAL GUARD REG. 500-5, NATIONAL GUARD DOMESTIC LAW ENFORCEMENT SUPPORT AND MISSION 

ASSURANCE OPERATIONS para. 5-3.a (18 Aug. 2010) [hereinafter NGR 500-5].
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Guard Civil Support.”28 This support is more specifically defined as “[s]upport provided by the 

National Guard while in a State Active Duty status or Title 32 status to civil authorities for domestic 

emergencies, designated law enforcement, and other activities.”29 The most recent civil disturbance 

examples in Ferguson Missouri, Baltimore, Maryland Charlottesville, Virginia, and Charlotte, North 

Carolina were supported by the respective State National Guard personnel primarily in their SAD

status. 

C. Use of National Guard Forces in a Title 32 or SAD Status (Not in Federal Service) for Civil 

Disturbance Operations

1. National Guard Civil Disturbance Mission

National Guard Forces have the primary responsibility for providing military assistance to State and 

local government agencies in civil disturbances for the protection of life, property and the 

maintenance of law and order within the territorial jurisdiction of any State.30 National Guard units 

are particularly well suited for domestic law enforcement missions and civil disturbance operations 

as the units are located in over 3,000 local communities throughout the nation, readily accessible, 

routinely perform exercises with local first responders, and have broad experience in providing 

support to neighboring communities through their many State missions including hurricane and 

winter storm responses.31 

2. National Guard Bureau and State Concept Plans (CONPLANS)

The National Guard Bureau (NGB) has the responsibility to develop and maintain an All-Hazards 

Support Plan, which describes the National Guard’s domestic All-Hazards response supporting 

Federal agencies, States, Territories and the District of Columbia.32 Each State National Guard 

prepares a State All-Hazards CONPLAN which incorporate civil disturbance operations and laws 

enforcement support. These CONPLANs provide the basis for preparation, deployment, 

employment and redeployment of National Guard Forces. 

3. National Guard (Title 32 or SAD) Civil Disturbance Planning Considerations

The following is a non-exhaustive list of standard planning considerations for CDOs: 

Command and Control: State laws and policies authorize National Guard forces in either a Title 32 

or SAD status to support law enforcement agencies and are incorporated into State emergency 

operations plans. 33 National Guard forces are generally under the control of State and local civil 

 28 CHIEF, NATIONAL GUARD BUREAU, INSTR. 3000.04, NATIONAL GUARD BUREAU DOMESTIC OPERATIONS GL-2 (24 

Jan. 2018) [hereinafter CNGBI 3000.04].

29 Id.

30 NGR 500-5, supra note 27, at para. 5-3.

31 Id., at para 5-1. 

32 CHIEF, NATIONAL GUARD BUREAU, INSTR. 5200.01, NATIONAL GUARD BUREAU ALL-HAZARDS SUPPORT PLAN para. 

4 (03 FEB 2017), 

33 NGR 500-5, supra note 27, at para. 3-2.
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authorities for mission tasking; however, these forces will remain under their normal military chain 

of command.34

Law Enforcement Functions: National Guard assistance is provided in support of civil authorities, 

not to replace civil authority. While State law may allow National Guard forces to act in a law 

enforcement capacity, apprehending, searching, seizing, and questioning should generally be left to 

civilian law enforcement. For concrete guidance, refer to the laws of each State and the State 

National Guard’s Rules for the Use of Force (RUF) developed by the Office of the Staff Judge 

Advocate (OSJA) in partnership with the State Attorney General’s office. 

Posse Comitatus: National Guard Forces in a SAD or Title 32 status supporting CDOs and 

law enforcement agencies are subject to the laws of their State; however, they are not 

subject to the restrictions of the Posse Comitatus Act.35 

EMAC Requirements: State Governors have the authority to activate their National Guard 

forces to assist other States as requested through the EMAC. National Guard personnel in 

SAD status pursuant to the EMAC, or forces serving in a Title 32 status supporting domestic 

law enforcement or CDOs, outside their home State, may support only civilian law 

enforcement as specified in a memorandum approved by the sending and receiving 

Governors.36 

RUF: National Guard Forces engaged in civil disturbance and law enforcement operations are 

governed by the laws of the State in which they are serving. Each State develops its own RUF 

based on State law. 

Intelligence Oversight: National Guard domestic intelligence activities are strictly limited by DoD 

procedures, 37 DoD directives,38 National Guard policies,39 and the Constitution.40 

Use of Federal Equipment: National Guard forces have the authority to use general purpose Federal

equipment issued to the National Guard during CDOs or other emergencies declared by the 

 34 Id., at para. 4-2.

35 Id., at para. 4-3.

36 EMAC, supra note 17. 37 U.S. DEP’T OF DEFENSE, 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS 

THAT AFFECT U.S. PERSONS (26 Apr. 2017) [hereinafter DoD 5240.1-R].

38 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. 1908) [hereinafter DoDD 5200.27].

39 CHIEF, NATIONAL GUARD BUREAU, INSTR. 2000.01B, NATIONAL GUARD INTELLIGENCE ACTIVITIES (04 Apr. 2017) 

[hereinafter CNGBI 2000.01B].

40 U.S. CONST. amend. I (granting to the people the freedom of speech, to peaceably assemble, and to petition the 

Government for a redress of grievances). The DoD Civil Liberties Program is governed under DoDI 1000.29, which 

ensures that the DoD will not maintain information on how an individual exercises rights protected by the First 

Amendment to the Constitution of the United States, including freedoms of speech, assembly, press, and religion unless 

maintaining the information is authorized by the person(s), by statute, or is pertinent to and within the scope of an 

authorized law enforcement, intelligence collection, or counterintelligence activity. See also Snyder v. Phelps, 131 

S.Ct. 1207 (2011); U.S. CONST. amend. IV (granting to the people the right to be secure in their persons, houses, papers, 

and effects, against unreasonable searches and seizures). See also DoD 5240.1-R, supra note 37.
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Governor, subject to reporting and reimbursement to the Federal government. Federal intelligence 

equipment, such as certain unmanned aircraft systems (UAS), remotely piloted aircraft (RPA), and 

the Joint Worldwide Intelligence Communication System (JWICS) cannot be used without 

SECDEF approval for such purposes.41 

Required Training: National Guard Units that have been assigned the civil disturbance mission are 

required to conduct at least annually civil disturbance training and assessment.42 Direct 

participation in in CDOs is authorized only for those who have completed the civil disturbance 

training.43 National Guard Soldiers who have not been trained and assessed in civil disturbance 

operations should serve only in a support role. 

Claims: National Guard forces serving in a Title 32 status are considered United States Employees 

for the purposes of the Federal Tort Claims Act (FTCA). National Guard Forces serving in a SAD 

status are not covered by the FTCA; rather, tort coverage would be as provided for State employees 

within the respective State. 

4. National Guard (Title 32 or SAD) Civil Disturbance Operation Mission Sets

Under the direction of proper civil authorities and supervision of civilian law enforcement and IAW 

applicable State and Federal laws and regulations, mission sets designed for civil disturbance 

operations and domestic law enforcement support included in the National Guard Civil Support 

Task List are as follows: 44 

Crowd management and Control Support: Includes crowd control activities and measures to 

preserve or restore order in response to events that could, or have escalated causing the disruption of 

public safety, public order, and interruption of essential services or destruction of critical assets.

Public Safety Support: Includes manning traffic control points, access control, presence patrols and 

other observation, escort and protective services. 

Transportation Security: Includes escort of vehicles in transit, including people or cargo deemed at 

risk for interference.

Quick Reaction Support: Includes the use of pre-identified support to State and local law 

enforcement. 

Emergency Responder Protection: Includes protection of emergency responder personnel to 

prevent public interference of emergency operations. 

 41 DoD 5240.1-R, supra note 37; CNBI 2000.01B, supra note 39. 

42 NGR 500-5, supra note 27, at para. 5-3. In accordance with this regulation, the training at a minimum includes: a) 

apprehension, search and detention, b) civil disturbance formations, c) media relations, d) non-lethal capabilities, e) riot 

shield and riot baton techniques, and f) use of force. 

43 Id., at para. 5-3.

44 CHIEF, NATIONAL GUARD BUREAU, INSTR. 3300.02, READINESS REPORTING para. 5.b (13 Nov. 2014) [hereinafter 

CNGBI 3300.02].
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Provide Area Security Support: Includes a presence mission in support of civilian law enforcement 

and may include static posts, vehicle mounted or foot patrol roving security, checkpoints, area 

denial, and access control.

Facility Security Operations: Includes maintaining a secure perimeter, performing vulnerability and 

treat assessments, and securing designated critical facilities and structures to prevent damage or 

theft.

Manage Public Safety and Security Support Assets: Includes providing direct support to the 

incident commander or other proper civilian administration to plan, coordinate, track, and supervise 

all assets providing public safety and security support. 

D. Use of Title 10 Forces During a CDO

1. Use of National Guard Forces in a Title 10 Status (in Federal Service)

When National Guard Forces are ordered into a Federal status (Title 10), the Federal military chain 

of command is followed. Also, the same Federal laws, policies, and restrictions that apply to 

Federal military forces, apply to the Federalized National Guard (e.g. the PCA). 

2. Use of Federal Military Forces in a Title 10 Status for CDOs

Posse Comitatus Limitations 

The Posse Comitatus Act (PCA),45 DoDD 3025.18, and DoDI 3025.21 prohibit the direct, active 

participation of Title 10 military forces in civilian law enforcement, unless specifically authorized 

by Federal law or the U.S. Constitution. Certain Constitutional authorities46 and the Insurrection 

Act47 provide for exceptions to the PCA and serve as the basis of authority for Title 10 Federal

military forces performing law enforcement during CDOs.

Posse Comitatus Act Exception (The Insurrection Act) 

Title 10 of the United States Code, Chapter 13, is entitled “Insurrection.” This chapter allows the 

use of Federal military forces to restore order during times of civil disturbance. The DoD currently 

classifies civil disturbance as a type of “domestic emergency.”48 While DoD policy no longer 

contains an official definition of civil disturbance, it was previously defined as, “group acts of 

 45 Posse Comitatus Act, 18 U.S.C. § 1385 (2012 & Supp. IV 2017). This Act 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 specifies that activities expressly authorized by the Constitution or by Federal statute are exempt from the 

restrictions expressed within the Act. For a more complete discussion of the Posse Comitatus Act, see Chapter 4 of this 

Handbook.

46 U.S. CONST. art. IV § 4 (tasking the U.S. Government with protecting each of the States from invasion, and upon 

application of the State’s legislature or the State’s Governor, against domestic violence).

47 The Insurrection Act of 1807, 10 U.S.C. §§ 251-55, at § 252 (2012 & Supp. IV 2017).

48 U.S. DEP’T OF DEFENSE, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 72 (April 

2018) [hereinafter DoD Dictionary].
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violence and disorders prejudicial to public law and order.”49 Courts use similar language when 

defining “insurrection.”50 Currently, the term is defined in Part II of Chief, National Guard Bureau 

Instruction 3000.04 as, “[g]roup acts of violence and disorder prejudicial to public law and order.”51

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 Federal statute, the 

proscriptions of the PCA are inapplicable when the President is exercising authority under the 

Insurrection Act. 

The Insurrection Act permits the commitment of Federal military forces by the President, 

“[w]henever 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 by the ordinary course of judicial proceedings . . . .” 52

3. Supporting a State or Territorial Request

The Federal Government has an obligation to protect every State in the union, upon request, from 

domestic violence.53 Pursuant to this obligation, Congress included in the Insurrection Act a 

provision authorizing the President to use Federal forces to assist State governments. Section 251 

of the Insurrection Act 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.54

Responsibility for the coordination of the Federal response to civil disturbances rests with the

Attorney General of the United States (Attorney General).55 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.

56 Should a request for 

assistance be presented to a local commander, the commander should inform the person making the 

request to address the request to the Attorney General. 

 49 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, DSCA, contained the definition of civil disturbance. The definition has been removed from 

the current version of JP 3-28 dated July 31, 2013. 

50 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.)

51 CNGBI 3000.04, supra note 29, at GL-2.

52 Insurrection Act, supra note 47, at § 252.

53 U.S. CONST. art. IV, § 4.

54 The Insurrection Act of 1807, 10 U.S.C. §§ 251-55, at § 251 (2012 & Supp. IV 2017).

55 See DoDI 3025.21, supra note 2, Encl. 4, at para. 1.c. 

56 Id. See also Exec. Order No. 12656, 3 C.F.R. 585, 53 Fed. Reg. 47491, § 1101(8) (Nov. 18, 1998).
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As referenced above, prior to a State requesting assistance in the form of Federal military forces, all 

local and State resources, including the National Guard in State Active Duty status,57 should have 

been brought to bear on the civil disturbance.58

One relatively recent 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.59 In accordance with the Executive Order issued by President 

Bush, and to provide Federal assistance to Los Angeles in the restoration of law and order, the 

Secretary of Defense Federalized the California National Guard and deployed Soldiers of the 7th 

Infantry Division (7ID) at Fort Ord and Marines from Camp Pendleton.60

4. Enforcing Federal Authority

The President has a Constitutional duty to see that the laws of the United States are faithfully 

executed.61 Within the Insurrection Act, Congress gave the President the authority to commit the 

U.S. military to enforce Federal law.62 10 U.S.C. § 252 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.63

During the 1950s and 1960s, the Insurrection Act statute was used to enforce public school 

desegregation in Arkansas64 and Alabama65 and to control civil rights protests in Mississippi66 and 

Alabama.67

 57 See Chapter 3 of this Handbook, which discusses the mobilization and activation of National Guard forces.

58 CNGBI 3000.04, supra note 28, at para. 4.b (which anticipates that Governors will use their State National Guards 

under their control when responding to incidents within their State).

59 Proclamation No. 6427, 57 Fed. Reg. 19359 (May 5, 1992).

60 Exec. Order No. 12804, 57 Fed. Reg. 19361 (May 5, 1992). See also JOINT CHIEFS OF STAFF, JOINT PUB 3-08,

INTERORGANIZATIONAL COOPERATION, para. 2.f.1.e (12 Oct. 2016) (validated 18 Oct. 2017).

61 U.S. CONST. art. II, § 3.

62 Insurrection Act, supra note 47, at § 252.

63 Id.

64 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.).

65 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.).

66 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.). 
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5. Protecting Constitutional Rights

Citizens of the United States are guaranteed equal protection under the law.68 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.69 10 U.S.C. § 253 states:

The President, by using the militia or the armed forces, or both, or by any other 

means, shall take such measures as he considers necessary to suppress, in a State, 

any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within 

the State, that any part or class of its people is deprived of a right, privilege, 

immunity, or protection named in the Constitution and secured by law, and the 

constituted authorities of that State are unable, fail, or refuse to protect that right, 

privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes 

the course of justice under those laws. In any situation covered by clause (1), the 

State shall be considered to have denied the equal protection of the laws secured by 

the Constitution.70

10 U.S.C. § 253 was used as an authority by President Kennedy to send Federal military troops to 

Alabama in April 1963 during the civil rights protests in Birmingham, Alabama.71

E. Taking Action under the Insurrection Act (Procedural Considerations)

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.72 10 U.S.C. § 254 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 

 67 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.).

68 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.”

69 Insurrection Act, supra note 47, at § 253.

70 Id.

71 See Alabama v. U.S., 373 U.S. 545 (1963).

72 Insurrection Act, supra note 47, at § 254. 
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necessary to restore order.73 Decisions of the President to issue Presidential Proclamations and 

Executive Orders pursuant to the Insurrection Act are made solely at the discretion of the 

Executive74 and cannot be compelled by the courts.75 Recent 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.

F. DoD Considerations Concerning the Insurrection Act 

As reviewed, above, 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.76

The decision to employ Federal military 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 Federal military support in response to 

civil disturbances,77 the above-criteria may be helpful to local commanders and their judge 

advocates as they may advise on formal assistance requests routed to higher headquarters for 

consideration.

G. Additional Posse Comitatus Exceptions

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. Under this 

provision, in extraordinary emergency circumstances where prior authorization by the President is 

impossible and local authorities are unable to control the situation, Federal military commanders 

may exercise their emergency authority to temporarily engage in activities that are necessary to 

quell large-scale, unexpected civil disturbances either because: 

 73 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).

74 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).

75 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).

76 DoDD 3025.18, para. 4.e. sets out the following “CARRLL” factors: 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.

77 Id., at para. 4.l.1 (stating that approval authority for civil disturbance operations is no lower than the Secretary of 

Defense level). 
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• 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.78

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.79

H. The Department of Defense Civil Disturbance Plans 

 78 Id., at para. 4.k.

79 The courts have approved the theory of a commander’s inherent authority, that is, authority not found in statute or 

regulation. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 893 (1961) (commanders have 

“historically unquestioned power” to exclude persons from their installations); Greer v. Spock, 424 U.S. 828, 840 

(1976) (“There is nothing in the Constitution that disables a military commander from acting to avert what he perceives 

to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.”).

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).
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DoD works closely with other Federal agencies, in particular DHS and its subordinate 

organizations, when planning for DSCA.80 DoD has delegated to geographic combatant 

commanders responsibility for developing CDO Contingency Plans (CONPLANs).81

Further, DoD coordinates with interagency partners through the Chief, National Guard Bureau 

(CNGB) to States/territories on all matters pertaining to the National Guard, to ensure DoD 

planning supports the needs of those requiring DSCA.82

1. The Federal Military Force CDO 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.83 The restoration of law and order must be distinguished 

from the preservation of law and order.84 CDO mission statements do not normally allow for 

commanders to undertake preservation missions.85 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.86 Judge advocates should assist their commanders in ensuring that they do not assume 

missions involving the routine maintenance of civil order unless absolutely necessary and 

authorized.

2. Combatant Commanders’ CONPLANs

CONPLANs provide the basis for all preparation, deployment, employment, and redeployment of 

Department of Defense component forces, including National Guard forces called to active Federal

service, for use in domestic civil disturbance operations, in support of civil authorities as directed by 

the President.

87

 80 JOINT PUB. 3-28, supra note 8, at 28.

81 DoDD 3025.21, supra note 2, at Encl. 4. The principal planning agents for DSCA are the combatant commanders, of 

United States Northern Command and (USNORTHCOM), United States Pacific Command (USPACOM), and United 

States Special Operations Command (USSOCOM). Id.

82 Id.

83 JOINT PUB. 3-28, supra note 8, at III-3,4.

84 DODI 3025.21, supra note 2, at Encl. 4, para. 1.b. The preservation of law and order is the responsibility of State and 

local governments and law enforcement authorities. Id.

85 Id. Encl. 4, para. 2.e. “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.” Id.

86 U.S. DEP’T OF ARMY, DOCTRINE PUB. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 3 (26 July 2012)

[hereinafter ADP 3-28].

87 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) (2017). 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.”).
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During the employment of military forces, the Commander will maintain liaison with the Senior 

Civilian Representative of the Attorney General (SCRAG), State law enforcement representatives, 

and municipal authorities.88 Normally, this liaison is through the Defense Coordinating Officer 

(DCO). 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.89

Unless in a direct support relationship approved and ordered through the military chain of 

command, units should not accept tasking directly from law enforcement or civilian officials. Even 

though the Joint Civil Disturbance Task Force Commander may direct subordinate elements to 

assist designated civil authorities or officials, military personnel will not be placed under the 

command of civilians. This requirement does not preclude the establishment of joint patrols or 

jointly manned operations.

I. Federal Military Forces Civil Disturbance Operation Planning Considerations

1. The Standing Rules for the Use of Force for U.S. Forces

For U.S. armed forces operating under Title 10, civil disturbance operations are conducted in 

accordance with Enclosures L and N to Chairman, Joint Chiefs of Staff Instruction (CJCSI) 

3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces 

(SRUF).90 Guidance on how and when forces can use force in a CDO mission are detailed in the 

enclosures of the policy. Although the policy is classified, Annex L is not and can be shared with 

our mission partners. In addition to this policy, 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. The National Guards in each State have a RUF, not to be confused 

with the SRUF. The RUF for each State is based on State law. Therefore, each State may have a 

different RUF. This is particularly important for Federal forces if joint patrols or other missions are 

conducted. In such case, judge advocates, both active and reserve component, should review the 

RUF for the State National Guard and the SRUF for Title 10 forces to identify where they may 

differ in the application of force. The differences should be clearly explained to commanders 

thereby enabling them to determine how to proceed. 

2. Constitutional Considerations

 88 32 C.F.R. 182.6(b)(5) (2017) (stating that the Attorney General of the United States may assign another Dept. of 

Justice entity, such as the FBI or ATF, to lead the CDO on the part of the Federal Government). 

89 DoDI 3025.21, supra note 2, at Encl. 4.

90 JOINT PUB. 3-28, supra note 8, at B-1.
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State and Federal law govern search, seizure, arrest, detention, and confinement occurring during a 

CDO. The Attorney General of the United States is responsible for setting overall guidelines 

governing the conduct of civil disturbance operators when the Federal military is involved. Judge 

advocates should familiarize themselves with any policies and procedures set forth by the 

Department of Justice. Service-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 or subject the member to 

civil or criminal liability.

a. Detention and Confinement

Whenever possible, any arrest or apprehension should be made by the civil police force unless they 

are not available or require assistance. If it is necessary for Federal military forces to make an 

apprehension, they should do so under the appropriate legal authority, work in support of civil 

authorities, and should, whenever possible, ensure that civilian authorities are present. Joint patrols 

with members of the State’s National Guard and local law enforcement officers has proven to be 

most beneficial.91

Unless otherwise authorized by law, Federal military forces should not operate detention facilities 

when supporting CDOs.92 Civil authorities have the responsibility to provide adequate detention 

facilities for all subjects. If Federal military forces are committed to support local authorities with 

arrests, commanders should coordinate with local authorities to ensure that adequate detention 

facilities are available and to learn their locations and capacities. Also, Federal military participation 

with the arrests must be in accordance with Federal law and DoD policy.93

b. Searches

Unless otherwise authorized by law, Federal forces should not be involved in warrant-backed or 

warrantless searched for evidence of a crime (i.e. searches of houses, crime scenes, etc.).94 The 

same holds true for a lawful stop and frisk conducted during patrols. Nonetheless, as Federal

military personnel support local law enforcement to restore order, the need to search civilians may 

arise. In such instances, Federal military personnel should adhere to Federal law and the 

requirements set forth by USNORTHCOM’s plan for civil disturbance operations.95

3. Billeting of Troops

Selection of a location to assemble and billet troops can have significant legal implications. When 

possible, assembly and quartering areas should be on military installations or Federal property. If 

 91 U.S. DEP’T OF ARMY, DOCTRINE REF. PUB. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4-65 (14 June 

2013) [hereinafter ADRP 3-28].

92 Id., paras. 3-38–3-40; 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.”).

93 U.S. DEP’T OF DEFENSE, INSTR. 5525.13, LIMITATION OF AUTHORITY TO DEPUTIZE DOD UNIFORMED LAW 

ENFORCEMENT PERSONNEL BY STATE AND LOCAL GOVERNMENTS (28 Sept. 2007) (C1, 29 June 2018).

94 Id. at 6.2, 6.3.

95 ADRP 3-28, supra note 91, at para. 4-80.
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these locations are not practical, State and other local government property may be sought for use.96 

Locating assembly areas on public property can reduce property damage claims, contract costs, and 

adverse perceptions about the military operation.

4. Intelligence

See Chapter 9, Intelligence and Information Acquisition and Handling During Domestic Support 

Operations, for information regarding the proper use of intelligence elements and collection of 

information during domestic civil support.

5. 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).97 In order for claims 

under the FTCA to be compensable, the damage or injury must be caused by acts or omissions of 

employees of the United States. National Guard troops in Title 10 or Title 32 status, as well as 

active duty military members, are considered U.S. employees for the purposes of the FTCA. 

National Guard forces activated pursuant to a State activation statute are not considered employees 

of the United States, and potential claims arising out of the activities of these forces should be 

directed to State authorities.

The development of disaster and civil disturbance claims plans is the responsibility of the head of 

the various Area Claims Offices (ACOs) across the United States.98 The ACO in whose 

geographical area a claims incident occurs is primarily responsible for investigating and processing 

the claim.99 With the approval of Commander, United States Army Claims Service, the responsible 

ACO can appoint a special Claims Processing Office to handle claims arising from civil disturbance 

operations.100 For a major CDO, senior judge advocates should consider requesting a claims team 

from ACO. 

Even though primary claims investigating responsibilities fall to the ACO, 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 concerning the claims is collected. 

Judge advocates can also assist by collecting information concerning the status of National Guard 

troops operating within the area.101

6. 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. When possible, civilians in need of 

medical treatment should be seen by the healthcare providers within the civilian healthcare system. 

 96 10 U.S.C. § 2679 (2012 & Supp. IV 2017); U.S. DEP’T OF DEFENSE, INSTR. 4000.19, SUPPORT AGREEMENTS (25 Apr. 

2013) (C1, 30 Nov. 2017). 

97 28 U.S.C. §§ 1346, 2671–2680 (2012 & Supp. IV 2017).

98 U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11k (8 Feb. 2008).

99 Id. para. 2-2.

100 Id. para. 1-17(c).

101 Detailed information on claims arising during disasters can be accessed at http://www.jagcnet.army.mil/Claims.
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Military treatment facilities may be used to treat civilians only 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. 

7. Interference with Federal Forces

Federal law makes it a crime to interfere with law enforcement officers engaged in controlling civil 

disorders.102 Included in the definition of “law enforcement officers” are members of the National 

Guard, in both State and Federal status, and members of the Federal armed forces.103

8. Loan and Lease of Military Equipment

There is no specific statutory authority to loan or lease equipment for use in civil disturbance 

situations. Loans to Federal agencies are completed pursuant to the Economy Act and require a 

loan agreement but no surety bond.104 Equipment for non-Federal law enforcement agencies must 

be leased under the leasing statute, 10 U.S.C. § 2667, 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)).105 

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. 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 firefighting resources, protective equipment, body armor, clothing, searchlights and use of DoD 

facilities can be approved by garrison, installation, or task force commanders.106 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. 

9. Funding

 102 18 U.S.C. §§ 231–233 (2012 & Supp. IV 2017).

103 Id. § 232 which states:

The term “law enforcement officer” means any officer or employee of the United States, any State, any political 

subdivision of a State, or the District of Columbia, while engaged in the enforcement or prosecution of any of the 

criminal laws of the United States, a State, any political subdivision of a State, or the District of Columbia; and 

such term shall specifically include members of the National Guard (as defined in section 101 of title 10), members 

of the organized militia of any State, or territory of the United States, the Commonwealth of Puerto Rico, or the 

District of Columbia not included within the National Guard (as defined in section 101 of title 10), and members of 

the Armed Forces of the United States, while engaged in suppressing acts of violence or restoring law and order 

during a civil disorder.

104 31 U.S.C. § 1535 (2012 & Supp. IV 2017).

105 10 U.S.C. § 2667 (2012 & Supp. IV 2017); see also U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF 

ARMY MATERIEL, para. 2-7, 2-8 (23 Aug. 2004) [hereinafter AR 700-131] (discussing loan/lease agreements and surety 

bonds).

106 AR 700-131, supra note 71, paras. 2-6b. NGR 500-1, supra note 58, Chap. 3-1, governs the loan or lease of 

National Guard property.
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DoD 7000.14-R, Department of Defense Financial Management Regulation, the USNORTHCOM 

CONPLAN 3501, Defense Support of Civil Authorities, and the USNORTHCOM CONPLAN 

3502, Civil Disturbance Operations, require operating agencies and supported combatant 

commanders to recover all costs for civil disturbance operations. The operating agency and 

supported commander are responsible for collecting costs for civil disturbance operations of all 

components and DoD agencies, preparing cost reports for the executive agency, consolidating 

billings, forwarding bills to DOJ, and distributing reimbursements.107

J. 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.108 As the head of the Department of Justice, the 

Attorney General is the chief civilian official responsible for the Federal Government’s activities in 

civil disturbances. The Attorney General provides early threat assessments and warnings to the 

Department of Defense to support civil disturbance planning. States request the assistance of 

Federal forces through the Attorney General, who also advises the President on the use of Federal

military forces to restore law and order. The Attorney General coordinates the activities of Federal

law enforcement agencies with those of the local and State agencies in an area faced with a civil 

disturbance. 

2. Senior Civilian Representative of the Attorney General (SCRAG)

Pursuant to 32 C.F.R. § 182.6, the Attorney General may appoint a SCRAG for a civil disturbance. 

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.109 DoD forces employed in civil disturbance operations must remain under military 

authority at all times.110

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.111 ASD(HD&ASA) is also responsible for the 

development, coordination, oversight of DoD policy for DSCA plans and activities regarding civil 

disturbances.

112

 107 JP 3-28, supra note 8, at Encl. 3, para. 3.c.

108 DoDI 3025.21, supra note 2, at Encl. 4, para. 1.c; 32 C.F.R. § 182.6(b)(5) (2017).

109 32 C.F.R. § 182.6(b)(5) (2017).

110 JP 3-28, supra note 7, at III-3, 4.

111 DoDI 3025.21, supra note 2, at Encl. 2, para. 2.b.

112 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).
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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.113

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.114

6. Commander, U.S. Army North

U.S. Army North (ARNORTH) is currently the lead operational authority for Federal civil 

disturbance support response within the continental United States.115 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.116 In that capacity, CNGB facilitates and de-conflicts the use of National Guard 

forces to ensure that adequate and balanced forces are available for domestic and foreign military 

 113 JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INST. 5711.02C, DELEGATION APPROVAL 

AUTHORITY (30 Nov. 2012). See also JP 3-28, supra note 8, at Ch. III, V.

114 DoDD 3025.21, supra note 2, Encl. 4, p. 26.

115 See ABOUT USNORTHCOM, http://www.northcom.mil/AboutUSNORTHCOM.aspx (last visited Aug. 14, 2018)

116 U.S. DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) para. 4.3 (21 May 2008) [hereinafter 

DODD 5105.77].
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operations.117 The NGB maintains a 24/7 National Guard Coordination Center providing situational 

awareness and common operating picture for any CDO. 

9. State Governor/Chief Executive of a U.S. Territory118

A State Governor coordinates State resources and provides strategic guidance needed to

prevent, mitigate, prepare for, respond to, and recover from incidents of all types.119 In addition, the 

Governor, commands the State National Guard Forces (in a SAD or Title 32 status), coordinates for 

and provides interstate mutual aid and assistance through compacts such as the EMAC, and requests 

Federal assistance.120 

10. State Homeland Security Advisor 

“The State Homeland Security Advisor serves as counsel to the Governor on homeland security 

issues and may serve as a liaison between the Governor’s office, the State homeland security 

structure, DHS, and other organizations both inside and outside of the State.”121 This role may be 

filled by the Director of the State Emergency Management or The Adjutant General of a State, 

depending on the organization of the State’s emergency management system.

11. Director, State Emergency Management Agency 

All States have laws mandating the establishment of a State emergency management agency and the 

development of emergency plans coordinated by that State.122 The director of the State emergency 

management agency is responsible for coordinating the State response in any incident. 

12. 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 32.123 In either capacity, they are not 

subject to the prohibitions of the PCA and can support State or Federal law enforcement 

missions.124 National Guard forces remain under the command of State National Guard officers, 

and missions are conducted through the National Guard chain of command, after coordination with 

civil authorities. In extreme circumstances, National Guard units may be Federalized under Title 10 

pursuant to a Presidential order.125 Once Federalized, the National Guard conducts its mission in 

accordance with DoD regulations, Federal law and under Federal control. (See “Use of National 

 117 Id. para. 5.1.11.2.

118 For this paragraph, the reference to a State Governor also references the chief executive of a US territory.

119 JP 3-28, supra note 8, at II-2.

120 Id.

121 Id. at II-3.

122 Id.

123 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.

124 See infra Chapter 4, Military Support to Civilian Law Enforcement, for a complete discussion on the Posse 

Comitatus Act.

125 See Chapter 3 of this Handbook for a complete discussion of National Guard status.
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Civil Disturbance Operations 120

Guard Forces in a Title 32 or SAD Status (Not in Federal Service)” and “Planning Considerations” 

in this chapter.) 
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121 Civil Disturbance Operations
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DoD Response to CBRN 122

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), March 19, 2018.

• DoDD 3150.08, DoD Response to Nuclear and Radiological Incidents, January

20, 2010.

• CJCSI 3125.01D, Defense Response to Chemical, Biological,

Radiological, and Nuclear (CBRN) Incidents in the Homeland, May 7, 

2015.

• Joint Pub 3-26, Counterterrorism, October 24, 2014.

• Joint Pub 3-28, Defense Support of Civil Authorities, July 31, 2013.

• Joint Pub 3-41, Chemical, Biological, Radiological, and Nuclear Response,

September 9, 2016.

A. Introduction

In the wake of 9/11 and Hurricane Katrina, the Department of Homeland Security (DHS) developed 

the National Response Framework (NRF).

2

 This document evolved from the National Response 

Plan (NRP), which was originally mandated under Homeland Security Presidential Directive 

 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, NATIONALRESPONSE FRAMEWORK, Third Edition (June, 2016) 3 [hereinafter NRF], available at

https://www.fema.gov/media-library-data/1466014682982-

9bcf8245ba4c60c120aa915abe74e15d/National_Response_Framework3rd.pdf.. 
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123 DoD Response to CBRN

(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 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 Civil Authorities (DSCA).

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 

 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 advocatesshould be aware 

the 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 July 2013) [hereinafter JP 3-28].

4

 FEMA, NATIONAL INCIDENT MANAGEMENT SYSTEM, Third Edition (Oct. 2017), available at

https://www.fema.gov/media-library/assets/documents/148019 [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,

supra, 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, supra, contains an extensive

discussion of this new model. 

6

 JP 3-28, supra note 3, at I-5.

7

 DEP’T OF DEFENSE, DIR. 3025.18, MILITARY DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 Dec. 2010) (C2, 19 Mar. 

2018) [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. 

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).
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to a terrorist’s 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

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 Overview and Authorities

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

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

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

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

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

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

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

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

Combatant Commander (NORTHCOM or PACOM). Similarly, State Governors, through their 

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

accordance with Title 32 of the United States Code.14

A request for DoD capabilities from State Governors or other Federal agencies is called a request 

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

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

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

 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 consequence management operations.

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; and the remaining 12 scenarios focus on chemical, biological, radiological, or nuclear (CBRN) incidents. 

National Planning Scenarios, http://media.washingtonpost.com/wpsrv/nation/nationalsecurity/earlywarning/NationalPlanning ScenariosApril2005.pdf (last visited May 15, 2018). 

11 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 FEMA, EMERGENCY SUPPORT FUNCTION #10 – OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX (June

2016), available at www.fema.gov; OFFICE OF THE ASSISTANT TO THE SECRETARY OF DEFENSE FOR NUCLEAR AND

CHEMICAL AND BIOLOGICAL DEFENSE PROGRAMS, DEPT. OF DEFENSE, DoD MANUAL 3150.08, NUCLEAR WEAPON

ACCIDENTRESPONSE PROCEDURES (NARP) (22 Aug. 2013).

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

to CBRN incidents. CBRN response 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-4. 13 For example, 10 U.S.C. § 382 (2012 & Supp. IV 2017) 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 (2012 & Supp. IV 2017) 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 xii, I-2, I-5.
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125 DoD Response to CBRN

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

Operations Center (EOC) may forward requests to the Federal Emergency Management Agency 

(FEMA) region’s Defense Coordinating Officer (DCO), who, in turn, forwards the RFA to the 

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

(ASD(HD&ASA)).15 If the incident exceeds the capabilities of the State and local responders, and 

the President has issued an emergency or disaster declaration at the request of the Governor and 

advice of the FEMA Administrator, 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 (normally at the JFO), 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 publishes SecDef-approved execute orders (EXORDs) to delineate support relationships, 

available forces, end state, purpose, and SecDef-approved scope of action.16 The CCDR will likely 

order the Commander, Joint Task Force–Civil Support (JTF-CS), to conduct CBRN response 

operations (see section D of this chapter).

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 are 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 response operations are generally executed 

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

(Stafford Act).

18 he Stafford Act is the primary authority for the Federal Government to assist local 

and State governments with emergencies and disasters.

19

 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 (2012 & Supp. IV 2017).

16 JP 3-28, supra note 3, at II-14.

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 
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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”). This 

policy also recognizes the authority of State officials to call on the State’s National Guard 

operating in their State Active Duty (SAD) status under State command, control, and funding. 

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 of this Handbook, 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

 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 

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.i. Within 72 hours of receipt of the request for assistance, a review of the need 

to continue DoD involvement in the response shall occur. These activities performed by the DoD during immediate 

response efforts may later transition into a Mission Assignment (MA) from the Federal Emergency Management Agency 

(FEMA) under the Stafford Act.

21 Id. at 4.k.

22 Exec. Order No. 13257, 75 Fed. Reg. 737 (Jan. 6, 2010).
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127 DoD Response to CBRN

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 DoD’s DSCA activities, including CBRN response.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, 

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

Many regularly occurring activities, called National Special Security Events, require DoD resources 

that can be planned in advance (e.g. Presidential inaugurations, and large sporting events). For 

these, JDOMS plans, coordinates, and facilitates DoD support to Federal, State, and local agencies 

and organizers. To set expectations and aid in planning for all DSCA responses, CJCS publishes a 

DSCA EXORD and a CBRN Response EXORD to allow expedited force employment in support of 

domestic incidents.

26

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

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

security cooperation to defend and secure the United States and its interests.”27 USNORTHCOM is 

designated as the command to conduct CBRN response 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 

 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).

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. The current DSCA EXORD, as of the publication of this handbook, is dated 5 June 

2018. The current CBRN EXORD is dated 24 March 2016.

27 About USNORTHCOM,USNORTHCOM, http://www.northcom.mil/About-USNORTHCOM/ (last visited June 14, 

2018).

28 CDRUSNORTHCOM, TAB B TO APPENDIX 1 TO ANNEX C TO USNORTHCOM CONPLAN 3500-14

(Chemical, Biological, Radiological, and Nuclear (CBRN) Response Branch Plan), at C-1-B-2 (17 July 2014).

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

30 About USNORTHCOM, supra note 27.
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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 Joint Task Force Civil Support 

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

JTF-CS’s specific mission is to provide DSCA during a CBRN event.34 

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

National Guard Major 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 response 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 

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

that JTF-CS may provide.

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 hese 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. 

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

http://www.jtfcs.northcom.mil/About/Factsheets/ (last visited June 14, 2018).

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.
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129 DoD Response to CBRN

incident as well. The NRF provides the coordinating framework under which JTF-CS performs its 

mission.

36

On October 1, 2008, JTF-CS received the authority to exercise operational control over various 

units assigned to the CCMRF (CBRNE Consequence Management Response Force) whenever 

those units deploy for a CBRN incident or exercise. The CCMRF transitioned to the Defense CBRN 

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 

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 or her 

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

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

planning efforts enable DoD to organize a timely flow of appropriate assets to the incident area 

upon request.

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

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

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

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

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

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

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

type of support requested by the supported organization.

 36 JOINT PUB. 3-41, supra note 1, at II-2–II-5.

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/About/Factsheets/ (last visited June 14, 

2018).
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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 WMD-CSTs 

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

composed of 22 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

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:

 39 The number of authorized WMD-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 WMD-CSTs for a current total of 57. For a general

overview of WMD-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.

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)) (2012 & Supp. IV 2017).

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

24, 2000).
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131 DoD Response to CBRN

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

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

• Activation under Title 10.47

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

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

and Reserve (AGR) National Guard members. A CERFP can be utilized in State Active Duty

(SAD), Title 32, or Title 10 status. There are currently 17 CERFPs in the United States. The 

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 WMD-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 

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 Coast Guard’s NSF deploys specialized capabilities to support lead agency, incident 

commander, and Federal on-scene coordinator preparation and response to CBRN incidents, 

hazardous substance releases, oil discharges, and other emergencies. NSF assets include the NSF 

Coordination Center in Elizabeth City, North Carolina, and three strike teams: the Atlantic Strike 

Team in Joint Base McGuire-Dix- Lakehurst, New Jersey; the Gulf Strike Team in Mobile, 

Alabama; and the Pacific Strike Team in Novato, California. NSF equipment includes CBRN 

detection; air, water, and soil sampling; Level A, B, and C personnel protection; selfdecontamination 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 

 47 Id. at 6. See Chapter 3 of this Handbook 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-bombingsite-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

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.
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DoD Response to CBRN 132

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 Response Operations

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

traditional military activities. DoD domestic CBRN response 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 response 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 

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 

 50 See Chapter 2, National Framework for Incident Management, 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).

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) (2011). Additionally, in some situations, the Federal government may intervene if it deems State 

and local control measures to be inadequate. 42 C.F.R. § 70.2 (2017).

56 18 U.S.C. § 1385 (2011)

57 42 U.S.C. § 97 (2011) specifically states “The quarantines and other restraints established by the health laws of any 

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

of the customs revenue of the United States, by the masters and crews of the several Coast Guard vessels, and by the 
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133 DoD Response to CBRN

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 

The handling and disposal of waste from CBRN response 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 3-1163 are sufficient for a specific CBRN response 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. 

 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 (2012).

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 (2011).

61 42 U.S.C. § 5159 (2011).

62 FEMA, EMERGENCY SUPPORT FUNCTION #10 – OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, pp. 10-11 (June 

2016), available at www.fema.gov.

63 U.S. DEP’T OF ARMY, FIELD MANUAL 3-11, MULTISERVICE DOCTRINE FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL,

AND NUCLEAR OPERATIONS (July 2011) [hereinafter FM 3-11].
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DoD Response to CBRN 134

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 SECDEF64 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 

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 V of the Model EMAC legislation, which 

states:

 64 10 U.S.C. § 1094(d)(1) (2012 & Supp. IV 2017).

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) (2012 & Supp. IV 2017).

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 Aug. 20, 2018).
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135 DoD Response to CBRN

Whenever any person holds a license, certificate, or other permit issued by any 

State party to the compact evidencing the meeting of qualifications for 

professional, mechanical, or other skills, and when such assistance is requested 

by the receiving party State, such person shall be deemed licensed, certified, or 

permitted by the State requesting assistance to render aid involving such skill to 

meet a declared emergency or disaster, subject to such limitations and 

conditions as the Governor of the requesting State 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 However, 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

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.

 70 See EMAC LEGISLATION, https://www.emacweb.org/index.php/learn-about-emac/emac-legislation (last visited Aug. 

20, 2018).

71 DEPARTMENT OF HEALTH AND HUMAN SERVICES, EMERGENCY SUPPORT FUNCTION #8 – PUBLIC HEALTH AND 

MEDICAL SERVICES 8-2 (June 2016), available at FEMA.gov.

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

137 Counterdrug Operations

CHAPTER 7

COUNTERDRUG OPERATIONS

KEY REFERENCES:

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

Department of Defense to be the Lead Agency.

• 10 U.S.C. § 284 - Support for Counterdrug Activities and Activities to Counter Transnational 

Organized Crime.

• 10 U.S.C. § 271-284 - Military Support for Civilian Law Enforcement Agencies.

• 10 U.S.C. § 279 - Assignment of Coast Guard Personnel to Naval Vessels for Law Enforcement 

Purposes.

• 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 Drug Interdiction and Counter-Drug Activities.

• DoD 7000.14-R, DoD Financial Management Regulation, Vol. 2B, ch. 14, Drug Interdiction 

and Counter Drug Activities, January 2011.

• 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/SOLIC 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.

• CNGB Instruction 3100.01A, National Guard Counterdrug Support, June 22, 2015.

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

under re-write as a CNGB Manual. Check for publishing at end of FY18).

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

Forces, June 13, 2005.

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

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

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

• Department of Defense Counternarcotics & Global Threats Strategy, April 27, 2011. 
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Chapter 7

Counterdrug Operations 138

A. Introduction

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

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

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

component and National Guard full-time engagement in the mission. DoD counterdrug operations1

are coordinated by the Deputy Assistant Secretary of Defense, Counter Narcotics and 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 (NGB) J3/7’s 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> 

 1

 The term “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 Aug. 2013) [hereinafter JP 3-07.4].

2

 10 U.S.C. §§ 271-282 (2012 & Supp. IV 2017). See Chapter 4 of this Handbook.

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 (2012 & Supp. IV 2017).

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 2018, Congress authorized appropriations of $750 million for counterdrug operations. See

National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017).
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139 Counterdrug Operations

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

reimbursement is not required.

1. National Defense Authorization Act of 20179

As a result of NDAA for FY 2017, authority for DoD support to counterdrug operations underwent 

significant changes. Section 1004 from the NDAA for FY 1991 was replaced by Section 1011 of 

FY17 NDAA and subsequently codified under 10 U.S.C. § 284. This authority was also extended 

through 2020 and applies to both U.S. and foreign law enforcement agencies (LEAs). In addition, 

10 U.S.C. §§ 371-382 was administratively changed to 10 U.S.C. §§ 271-284. Types of 

counterdrug support to U.S. LEAs 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 § 284(b)(1) & (2)

• Transportation support § 284(b)(3) 

• Establish and/or operate bases or training facilities (includes minor military construction 

projects) § 284(b)(4)

• Counterdrug-related training of law enforcement personnel § 284(b)(5) 

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

outside United States borders § 284(b)(6)(A) 

• Detect, monitor, and communicate the movement of surface traffic detected outside U.S. 

borders for up to 25 miles within the United States § 284(b)(6)(B)

• Engineering support (roads, fences, and lights) at U.S. borders § 284(b)(7) 

• Establish command, control, communications, and computer networks § 284(b)(8) 

• Linguist and intelligence analysis services § 284(b)(9) 

• Aerial and ground reconnaissance support § 284(b)(10) 

Types of counterdrug support to foreign LEAs under this authority include the following:

• Transportation support § 284(c)(1)(A) 

• Establish and/or operate bases or training facilities (includes small scale construction) § 284 

(c)(1)(B) 

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

outside U.S. borders § 284(c)1(C)(i) 

• Detect, monitor, and communicate movement of surface traffic outside U.S. borders § 

284(c)(1)(C)(ii) 

• Establish command, control, communications, and computer networks § 284 (c)(1)(D) 

• Linguist and intelligence analysis services § 284 (c)(1)(E) 

• Aerial and ground reconnaissance support § 284 (c)(1)(F)

Sections 271-284 also provides statutory exceptions to the Posse Comitatus Act (18 U.S.C. § 1385) 

(PCA), basically stating that counterdrug support provided under these sections is not subject to the 

requirements of 10 U.S.C., Chapter 18 (with the exception of 10 U.S.C. §§ 274 and 275).10 Further, 

 9 National Defense Authorization Act of 2017, Pub. L. 114-328, §§ 271-284, 130 Stat. 2000 [hereinafter FY17 NDAA].

10 10 U.S.C. § 274 authorizes the Secretary of Defense to make DoD personnel available to U.S. LEAs for the 

maintenance and operation of DoD or LEA equipment only to the extent that such support does not involve direct 
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Counterdrug Operations 140

the Secretary of Defense may provide support that will adversely affect military preparedness in the 

short term in contravention of 10 U.S.C. § 276 if the Secretary determines that the importance of 

providing such support outweighs the short-term adverse impact.11 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.12

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.13 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.14

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.15

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.16 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. § 275.

3. Chairman of the Joint Chiefs of Staff Instruction (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 

 participation in a civilian law enforcement operation. 10 U.S.C. §275 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. 

11 10 U.S.C. § 284(e) (2012 & Supp. IV 2017).

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

(27 Feb. 2013) [hereinafter DoDI 3025.21].

13 But, note that § 284(b)(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 of § 284; See FY17 NDAA, supra 

note 8 § 284(b)(6).

14 10 U.S.C. § 124(a)(2) (2018).

15 Id. § 124(b).

16 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) (2018).
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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).17 

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; focusing DoD’s support on 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;18

• 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 

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

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

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

18 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 U.S. Southern Command (USSOUTHCOM)); JIATF West, located in 

Honolulu, Hawaii, (under the command and control of U.S. Pacific Command (USPACOM)); and 

Joint Task Force North (JTF-N), located in El Paso, Texas, (under the command and control of U.S. 

Northern Command (USNORTHCOM)). While the two JIATFs do provide some support to LEAs 

in their Areas of Responsibility (AORs),19 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.20 

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.21 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.22 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 

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

NORTHCOM’s AOR.

20 2013 National Drug Control Strategy, available at

https://obamawhitehouse.archives.gov/sites/default/files/ondcp/policy-and-research/ndcs_2013.pdf (last visited 24 April 

2018).

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

Force (JIATF) Area Responsibilities (21 Aug 2003).

22 History of Joint Task Force North, JOINT TASK FORCE NORTH, available at http://www.jtfn.northcom.mil/AboutUs/History/ (last visited 24 April 2018)..
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domestic law enforcement agency counterdrug efforts in CONUS to reduce the availability of 

illegal drugs.

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

civilians, contractors, and service-members from all five services. Unlike the JIATFs, JTF-N has 

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

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

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.23 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,24 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.25 

 23 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 and apprehension operations. In cases in which evidence of maritime drug trafficking or other 

illegal activity is discovered, the Coast Guard coordinates case disposition with JIATF-S and DOJ or 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.

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

25 14 U.S.C. § 89(a) (2012 & Supp. IV 2017) states:
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To capitalize on the Coast Guard’s expertise and uniquely broad maritime law enforcement 

authority, 10 U.S.C. § 279 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.26 

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

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

U.S. Navy vessels under 10 U.S.C. § 279 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.27 No fewer than 500 active duty Coast Guard personnel will be assigned 

duties under 10 U.S.C. § 279, 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. § 274(b)(4)(A).28 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.29

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

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

30 

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

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

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

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

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

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

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

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

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

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

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

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

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

shall be seized.

26 10 U.S.C. § 279(a) (2012 & Supp. IV 2017). 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.

27 Id. § 279(b).

28 Id. § 279(c).

29 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 14 

U.S.C. § 637 (2012 & Supp. IV 2017), Stopping Vessels; Indemnity for Firing at or Into Vessels.

30 U.S. COAST GUARD, COMDTINST M16247, U.S. COAST GUARD MARITIME LAW ENFORCEMENT MANUAL ch. 3 

para. b.2 (2017) (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).
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Drug Law Enforcement Act (MDLEA).31 The MDLEA prohibits any person on board a U.S. 

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.32 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.33

“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.34

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.35

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 

 31 46 U.S.C. §§ 70501–70508 (2012 & Supp. IV 2017). In 2010 Congress passed the Drug Trafficking Vessel 

Interdiction Act, 18 U.S.C. § 2285 (the DTVIA) at the urging of the Coast Guard and DOJ. This law makes the 

operation of or embarkation in a stateless self-propelled semi-submersible or submersible vessel beyond any State’s 

territorial sea (or having crossed from one State’s territorial sea into another) a felony punishable by up to fifteen years 

in prison. Although not an anti- drug-trafficking statute per se, the Coast Guard uses this new law to combat the threat 

posed by maritime drug traffickers who have increasingly resorted to the use of semi-submersible vessels to avoid 

detection while transporting multi-ton loads of cocaine. This was necessary because the crews of these vessels would 

frequently scuttle them to avoid prosecution, but under the DTVIA merely being on board is a criminal violation. Many 

of the jurisdictional provisions and definitions in the MDLEA are included in the DTVIA as well.

32 46 U.S.C. § 7503(a) (2012 & Supp. IV 2017).

33 Id. § 7502(b).

34 Id. § 7502(c).

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

series (2012) (For Official Use Only manual) (copy on file with CLAMO) [hereinafter FARM]. The FARM is also 

available at the Maritime Operations Resources web portal at the CLAMO website (AKO account required). 
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bilateral agreements or understandings with partner States in the region. These standing bilateral 

maritime counterdrug agreements typically address various aspects of enforcement including: 

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

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

suspect vessels in the territorial seas of foreign partners; combined operations; 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.36

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 Act37 (ADA) violation was based on the fact 

that the operation’s primary purpose was to investigate potential Federal firearms violations—not 

narcotics violations.38

 36 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) (2012 & Supp. IV 2017). 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

paras. 7-10, 7-11 (29 August 2008) [hereinafter NGR 500-2].

37 31 U.S.C. § 1341 et seq. (2012 & Supp. IV 2017).

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

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 (State 

Plan) to the Secretary of Defense.40 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;41

• 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.42

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

Plan to the National Guard Bureau (NGB) for review. The NGB submits all 54 State Plans, 

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

and Governor, to the DASD CN>. DASD CN> reviews the State Plans and, in coordination 

with the Comptroller, ASD (HD & ASA), the Joint Staff, the Commander, USNORTHCOM, and 

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

of Defense.43

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:

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

40 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.

41 See 32 U.S.C. § 502 (2012 & Supp. IV 2017) (addressing annual drill and field exercise requirements of National 

Guard personnel).

42 Id. § 112(c).

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

Performing Counternarcotics Activities (2 Oct 2003).
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• The performance of the activities may not adversely affect the quality of that training or 

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

military functions of the member or unit;

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

activities;

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

and,

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

as a unit, the activities will support valid unit training requirements.44

The Secretary of Defense will examine the State Plans 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 Plans.

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 Act45

coverage.46 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.47 Conversely, for actions not cognizable under 

the FTCA, such as a constitutional or Bivens48 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 

 44 32 U.S.C. § 112(b)(2)(C) (2012 & Supp. IV 2017).

45 28 U.S.C. §§ 2671-2680 (2012 & Supp. IV 2017).

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

47 See id. § 2679(b). 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.”).

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

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.50 This allows Title 32 National Guard personnel more flexibility than Title 10 

forces in conducting domestic counterdrug missions. Nonetheless, DASD CN> and the NGB 

have imposed several policy restrictions on National Guard counterdrug operations in NGR 500-2.51 

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.52 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.53

NGR 500-2 paragraph 2-7 establishes that 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 sonar buoys 

 49 See 32 C.F.R. § 516.30(a)(8) (2017).

50 Gilbert v. United States, 165 F.3d 470, 473-474 (6th Cir. 1999) (Where a State used National Guard members for 

purpose of carrying out drug interdiction and counterdrug activities, in accordance with Federal statute, the National 

Guard members were found to be exempt from the Posse Comitatus Act); United States v. Benish, 5 F.3d 20, 25-26 (3rd 

Cir. 1993) (The use of a National Guard unit that was not in Federal service for civilian law enforcement involving 

surveillance of possible drug operation was not a violation of Federal law, where under Pennsylvania law the Governor 

could place members of National Guard on special state duty to support drug interdiction programs).

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

United States Code.

52 NGR 500-2, supra note 39, para. 2-1e.

53 Id.
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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;54

• Transportation Support – Providing transportation (aerial, ground, or maritime) of LEA 

personnel/equipment, persons in LEA custody, seized property or contraband as part of ongoing 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;55

• 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.56

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.57

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 

 54 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).

55 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.

56 See id., para. 2-7 for a detailed description of what each mission entails.

57 Id. para. 3-3. This authority may be delegated in accordance with para. 3-3b of NGR 500-2.
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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.58

If National Guard personnel are armed, NGR 500-2 requires the State’s TAG to consider the 

following:

• All personnel authorized to carry firearms must have received qualification training and testing 

on the type of firearm to be carried, in accordance with current regulations. Training will 

include instruction on safety functions, security, capabilities, limitations, and maintenance of the 

firearms. Testing will include qualification firing in accordance with current qualification 

standards;

• 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.59

 58 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.

59 NGR 500-2, supra note 39, para. 3-3.
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153 Military Support Operations

CHAPTER 8

MILITARY SUPPORT OPERATIONS

KEY REFERENCES:

•

• 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. § 3045- 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 (Declassified on March 18, 2014, under E.O. 13526

• 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, 13286, and 13308)

• EO 12656 - Assignment of Emergency Preparedness Responsibilities (as amended by EO 

13074, 13286) (See also amendments contained in EO 13753, Dec. 9, 2016)

• EO 12657 - Federal Emergency Management Agency Assistance In Emergency Preparedness 

Planning At Commercial Nuclear Power Plants (See also amendments contained in EO 13286, 

Feb. 28, 2003)

• 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, Incorporating 

Change 1, May 10, 2017

• DoDI 3025.20 - Defense Support of Special Events, April 6, 2012, Incorporating Change 1, 

May 24, 2017

• DoDD 3025.13 - Employment of Department of Defense Resources in Support of the United 

States Secret Service, October 8, 2010

• DoDD 3150.08 - DoD Response to Nuclear and Radiological Accidents, January 20, 2010

• DoDD 4500.9E - Transportation and Traffic Management, September 11, 2007, Incorporating 

Change 1, July 31, 2017

• DoDD 5105.60 - National Geospatial-Intelligence Agency (NGA), July 29, 2009

• DoDD 6000.12E - Health Services Operations and Readiness, January 6, 2011, Incorporating 

Change 1, October 3, 2013. 

• Deputy Secretary of Defense (DepSecDef) Policy Memorandum (PM) 16-002, Cyber Support 

and Service Provided Incidental to Military Training and National Guard Use of DOD 

Information Networks, Software, and Hardware for State Cyberspace Activities, 24 May 2016

• 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
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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 DoD’s support to 

domestic events that judge advocates will find very helpful.

There are two general types of DoD support to special events: support to designated special events 

under statutory authority, and community support as part of Innovative Readiness Training (IRT). 

Designated special events include the Boy Scout Jamboree and “National Special Security Events” 

(NSSEs)1 such as major sporting events (e.g. the Olympics, Presidential inaugurations, and 

international meetings like the 2012 NATO Summit). The IRT program allows commanders to 

conduct training in the civilian community, provided the training primarily benefits the participating 

unit notwithstanding incidental benefits to the community.

A. Support to Special Events or Organizations

Congress has specifically authorized military support to certain events, such as the Olympics or 

World Cup soccer.2 Additionally, support to a variety of unspecified designated National Special 

Security Events may be approved in accordance with DoDI 3025.20.3 

1. Types of Events and Support from DoD/National Guard

a. Sporting Events

Security and safety support for certain sporting events is authorized by 10 U.S.C. § 2564 to include 

the World Cup Soccer Games, the Goodwill Games, and the Olympics, and other events when 

special security and safety needs exist as authorized by the Attorney General.4 DoD previously 

supported other sporting events to include the World Alpine Ski Championships and the Special 

Olympics. Military forces also provided extensive support during the 1996 and 2002 Olympic 

 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

 10 U.S.C. § 2564 (a) (2012) states: 

Security and Safety Assistance. At the request of a Federal, state, or local government agency responsible for 

providing law enforcement services, security services, or safety services, the Secretary of Defense may authorize 

the commander of a military installation or other facility of the Department of Defense or the commander of a 

specified or unified combatant command to provide assistance for the World Cup Soccer Games, the Goodwill 

Games, the Olympics, and any other civilian sporting event in support of essential security and safety at such event, 

but only if the Attorney General certifies that such assistance is necessary to meet essential security and safety 

needs.

3

 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]. 

4

 10 U.S.C. § 2564(a) (2012).
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Games held in Atlanta, Georgia and Salt Lake City, Utah, respectively. Since its establishment in 

2002, U.S. Northern Command (USNORTHCOM) coordinates DoD’s support mission for these 

events.

b. Non-athletic Events

The Secretary of Defense may also direct that non-athletic events receive support. Non-athletic 

events include large events such as Presidential Inaugurations and International Summits hosted 

domestically. Many of these events are designated as National Special Security Events (NSSEs).

(1) Boy Scout Support

The Secretary of Defense is authorized, pursuant to 10 U.S.C. § 2554, to lend support for the Boy 

Scouts of America (BCA) by providing equipment to include cots, flags, tents, and other equipment 

such as expendable medical supplies without reimbursement from BCA Jamborees.5 This support 

may be provided to the BSA in support of both national and world scout jamborees.6 Further, if the 

Jamboree is conducted on a military installation, the Secretary may authorize logistical and 

personnel support on the military installation.7 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.8

 

c. National Guard Assistance for Certain Youth and Charitable Organizations

National Guard members and units, in conjunction with required military training,9 may provide 

services to certain eligible youth and charitable organizations.10 The eligible organizations are:

• Boy and Girl Scouts of America;

• Boys and Girls Clubs of America;

• Young Men’s and Young Women’s Christian Associations (YMCA/YWCA);

• Civil Air Patrol;

• U.S. Olympic Committee;

• Special Olympics;

• Campfire Boys and Girls;

• 4-H Clubs; and

• Police Athletic Leagues.11

Authorized services include ground transportation, administrative support, technical training, 

emergency medical assistance, and communications services. The Special Olympics are 

specifically authorized air transportation.12

 5

 10 U.S.C. § 2554 (2012). 

6

 10 U.S.C. § 2554(a.) (2012).

7

 10 U.S.C. § 2554(g) (2012).

8

 10 U.S.C. § 2554(b–f) (2012).

9

 32 U.S.C. § 502 (2012).

10 Id. § 508 (2012).

11 Id. § 508(d) (2012).
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In providing authorized services, National Guard facilities and equipment including vehicles leased 

to the National Guard and the DoD may be used.13 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 approve, in writing, such services provided by the National Guard.14 

(1) National Guard Civilian Youth Opportunities Program

The SECDEF, through the Chief, National Guard Bureau, conducts a National Guard civilian youth 

opportunities program, known as the “National Guard Challenge Program.”15 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.16 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.17 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.18 Usually, the Governor will 

delegate the establishment, organization and administration of the Program to The Adjutant General 

(TAG) of the State.

The Challenge Program is not cost-free.19 Since 2009, a State must 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 Program.20 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.21

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 

 12 Id. § 508(b) (2012).

13 Id. § 508(c) (2012).

14 Id. § 508(a) (2012).

15 32 U.S.C. § 509 (2012).

16 Id. § 509(a) (2012).

17 Id. § 509(g) (2012).

18 Id. § 509(c) (2012).

19 Id. § 509(d) (2012).

20 Id. § 509(h) (2012).

21 32 U.S.C. § 509(j) (2012).
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upon the successful completion of the training (GS-2 minimum rate of pay under 5 U.S.C. § 

5332).22 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.23

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).24 This determination is made after consultation with the 

Homeland Security Council.25 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.26 Military assets provided in support of 

NSSEs may include explosive ordnance disposal (EOD) teams, technical escort units (TEU),27

geospatial intelligence support,28 and chemical, biological, radiological, and nuclear threat 

identification and response forces.29

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. Certain events not designated as NSSEs may still 

receive DoD support in accordance with DoDD 3025.20. The 2004 G-8 meeting was an event 

approved for DoD support, but not designated as an NSSE. 

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 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 

 

22 Id. § 509(g) (2012).

23 Id. § 509(i) (2012).

24 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.

25 Id. 

26 DHS, DHS RISK LEXICON 52 (Sept. 2008), available at http://www.dhs.gov/xlibrary/assets/dhs_risk_lexicon.pdf.

27 TEU teams are capable of detecting, rendering safe, and transporting chemical and biological devices.

28 10 U.S.C. § 442 (2012), National Geospatial-Intelligence Agency, Missions.

29 DoDI 3025.20, Encl. 3, 2.b.(7).
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Asia Pacific Economic Coop Summit Honolulu, HI Nov. 12–13, 2011 

2012 State of the Union Address Washington, DC Jan. 24, 2012 

2018 State of the Union Address Washington, DC Jan. 30, 2018

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 

2016 Republican National Convention Cleveland, OH Jul 18-21, 2016

2016 Democratic National Convention Philadelphia, PA Jul. 25-26, 2016

2017 Presidential Inauguration Washington, DC Jan. 20, 2017

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.30 Often, this means that local police or a FBI field office requests 

the military support. 

If the initial engagement is not a written RFA, representatives of the Assistant Secretary of Defense 

for Homeland Defense and Americas’ Security Affairs (ASD (HD & ASA)) and the Joint Staff will 

confer to determine actual requirements. This may involve meetings between DoD representatives 

and event organizers, civil authorities, or qualifying entities. Once an RFA is received, it will be 

sent to the ASD (HD&ASA) and the CJCS simultaneously for staffing and recommendation. 

Additional engagement with the requestor may be required to quantify the scope of the support 

requested.31 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).32

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 

 30 DoDI 3025.20, Encl. 3. A qualifying entity is a non-governmental organization that DoD can assist by virtue of a 

statute, regulation, policy, or other approval by SECDEF or an authorized designee. 

31 Id.

32 10 U.S.C. § 2564 (2012).
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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 7.33

b. Types of Support34

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.35 Events which may be funded out of the SISC account include the Special Olympics, the 

Paralympics, and other events meeting the criteria of paragraph 2.b.(5)(d) of Enclosure 3 in DoDI 

3020.25. 

If there is no separate funding or authority for the 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.36 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.37

 33 DoDI 3025.20, supra note 4, Enc. 3.

34 Id.

35 Id.; See also 10 U.S.C. § 2564, and Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 

3009 (1996).

36 DoDI 3025.20, supra note 4, Encl. 3. See also 10 U.S.C. §§ 272-274, 277 (sections 372-384 were amended to 271-

284 in 2016),2012, 2553-2555, and 2564 (2012); 31 U.S.C. §§ 1535, 1536 (2012).

37 10 U.S.C. §§ 2564(a), 2564(b) (2012).
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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.38 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.39 Although IRT missions 

simultaneously support the unit and the local community, regulations require that steps be taken to 

ensure that IRT activities do not impermissibly compete with local commercial enterprises. This is 

accomplished by either a determination that there is no reasonably available commercial alternative, 

or, by providing a certification of non-competition from the requesting official that “the commercial 

entity that would otherwise provide the services agrees to the provision of such services by the 

armed forces.”40

IRT projects include, but are not limited to, constructing rural roads, providing medical and dental 

care to medically underserved communities, and performing small building and warehouse 

construction or re-assembly. The scope of IRT projects is open to all career fields and can include 

cybersecurity projects.41 While active components may conduct IRT programs, the National Guard 

and Reserve elements primarily provide this support.

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.42 Such assistance must be 

provided incidental to training or be otherwise authorized by law.43 Assistance is primarily 

provided by combat service support units, combat support units, and personnel serving in the areas 

of health-care services, general engineering and infrastructure support, and assistance services.44

 38 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.

39 Id. See Lieutenant Commander W. Kent Davis, Innovative Readiness Training Under 10 U.S.C. § 2012: 

Understanding the Congressional Model for Civil-Military Projects, ARMY LAW., Jul. 2001, at 21, for additional 

background. Military training in support of certain community and charitable organizations can also be accomplished 

through 32 U.S.C. § 508 and U.S. DEP’T OF DEFENSE, INST. 3025.17, CIVIL-MILITARY ASSISTANCE FOR CERTAIN 

YOUTH AND CHARITABLE ORGANIZATIONS (14 Dec. 2002).

40 DoDD 1100.20, supra note 41, paragraph 4.4.1.2.

41 See Chapter 12 of this Handbook, Cyberspace Operations in the National Guard.

42 10 U.S.C. § 2012 (2012); DoDD 1100.20,supra note 41.

43 10 U.S.C. § 2012(a) (2012).

44 DoDD 1100.20, supra note 41, para. 4.2.
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a. Requests for Assistance

Requests for assistance must come from a “responsible official” of an “eligible organization.”45 A 

responsible official is “an individual authorized to represent the organization or activity regarding 

the matter of assistance to be provided.”46 There are three categories of eligible organizations. Any 

Federal, regional, State, or local government entity is an eligible organization.47 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.48

The request for IRT assistance must specify that the requested assistance is not reasonably available 

from a commercial entity.49 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.”50 If commercial assistance is reasonably available, the 

requesting individual must certify the commercial entity agrees to the provision of such services by 

the military.51 A good resource for materials related to IRT is http://irt.defense.gov/. This site 

maintains current forms and other items of interest to those seeking to file or process an IRT 

application.

b. IRT Provision Requirements

Requested IRT assistance must meet three requirements. First, it must be related to military 

training. In the case of a military unit, the requested assistance must accomplish valid unit training 

requirements (there is an exception to this particular requirement discussed below). In the case of 

assistance provided by an individual military member, the requested assistance must involve tasks 

directly related to the individual’s military occupational specialty (MOS). Second, the provision of 

assistance cannot adversely affect the quality of training or otherwise interfere with a unit or its 

members’ abilities to perform military functions. Third, the provision of assistance cannot result in 

a significant increase in training costs.52

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.53 

The second and third requirements discussed above must still be met. In such cases, volunteers will 

 45 10 U.S.C. § 2012(c)(1) (2012).

46 DoDD 1100.20, supra note 41, para. 4.4.1.1.

47 10 U.S.C. § 2012(e)(1) (2012).

48 Id. § 2012(e)(3) (2012).

49 Id. § 2012(c)(2) (2012).

50 DoDD 1100.20, supra note 41, para. 4.4.1.2.

51 10 U.S.C. § 2012(c)(2); DoDD 1100.20, supra note 41, para. 4.4.1.2.

52 10 U.S.C. § 2012 (d)(1)(C) (2012).

53 Id. § 2012 (d)(2) (2012).
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meet manpower requests, and assistance other than manpower will be extremely limited.54 Military 

vehicles may only be used, for example, to provide transportation of personnel to and from the work 

site.55 

2. Legal Considerations for IRT Projects

a. Approval Authority for IRT Projects56

All IRT submission packets must be approved by a general officer. IRT projects that seek 

additional funding from OSD, seek support for any non-governmental organization not specified in 

32 U.S.C. § 508, or seek to reallocate IRT funds to another IRT project require approval by the 

Office of the Assistant Secretary of Defense for Reserve Affairs (OASD/RA). Major Commands 

(MACOMs) otherwise have the authority to approve Army-funded IRT projects not meeting the 

criteria above submitted by qualifying entities. This approval authority may be delegated to

commanders of major subordinate commands. 

b. Processing Requests for IRT Projects

(1) How the IRT Project Request Process Begins

First, a representative from an eligible organization will approach a commander or command 

representative with a concept for a project. The project concept must address a need that is not 

otherwise being met. The commander will evaluate the project to determine whether it is 

compatible with unit or individual training requirements. If the project is compatible, the 

commander then must determine the feasibility of using the project as a training exercise.

(2) Contents of IRT Project Requests

If the commander determines the proposed IRT project is feasible as a training exercise, the 

commander works with the requestor to assemble the IRT project request. An IRT project request 

must contain a cost analysis of the proposed project. The cost analysis includes total program costs 

and identifies whether the costs are borne by military department accounts or defense-wide 

accounts. The requesting commander must certify that the proposed project will not increase the 

cost of the training above the amount it would cost if conducted independent of an IRT project. The 

IRT project request must contain a certification of non-competition. The certification of 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.57

(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, 

 54 DoDD 1100.20, supra note 41, para. 4.4.2.1.3.

55 Id. (note that the use of military aircraft is prohibited in these instances).

56 Army IRT Policy, supra note 2, at 2.

57 See Army IRT Policy, supra note 2, at. 2. IRT medical project proposals have additional submission requirements.
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a U.S. Property and Fiscal Officer or Federal Budget Officer, and Plans, Operations and Training 

officials.58 Depending on the nature of assistance requested, additional endorsements may be 

required from medical, dental, or nursing officials.59 If applicable, the command may request 

endorsement from the State Adjutant General of the project state or intergovernmental agencies.60

c. Claims Arising From IRT Projects

Claims involving Active Duty, Reserve, or National Guard Soldiers that arise from IRT projects are 

cognizable under the Federal Tort Claims Act (FTCA) despite the fact that a non-DoD or private 

entity derives a benefit from the project. IRT projects are conducted in a Federally funded training 

status under Title 10 or Title 32 status.61 Community assistance undertaken by National Guard 

units 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.”62 The Secretary of the Army serves as the DoD Executive Agent for the MAST 

program.63 In response to a request from civilian authorities, military medical helicopter units may 

provide emergency air evacuation and recovery assistance if local civilian resources are not 

available or are not sufficient for response to emergencies.64 Circumstances for which military 

support is envisioned are:65

• 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;

 58 Id. at 1.

59 Id. at 2.

60 Id.

61 Id. at 1.

62 U.S. DEP’T OF DEFENSE, DIR. 4500.9E, TRANSPORTATION AND TRAFFIC MANAGEMENT, E4.2.1 (11 Sept. 2007) 

[hereinafter DoDD 4500.9E], Incorporating Change 1, 31 July 2017. 

63 Id. para. 1.4.

64 Id. para. E.4.2.1.

65 Id. para. E.4.3.1.
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• Medical evacuations pursuant to the provisions of DoDI 6000.11, “Patient Movement,” May 4, 

2012;66 and,

• As authorized and funded pursuant to DoD 7000.14-R, “Department of Defense Financial 

Management Regulation” (DoD FMR), Volumes 11A, 11B, and 15.67

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.68

Additionally, military units shall not compete for emergency medical evacuation missions if 

support can be provided by civilian contractors.69

DoD assets will provide interim support until civilian assets become available.70 Medical helicopter 

units must operate within their allocated training hour program.71 The Secretary of Defense or his 

or her designee is the final decision authority for commitment of resources to the MAST program.72 

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. 73 For typical SAR cases, the USAF is the recognized 

SAR coordinator for the continental U.S. aeronautical SAR Region, USPACOM is the recognized 

SAR coordinator for the Alaskan aeronautical SAR Region, and the U.S. Coast Guard is the 

recognized SAR coordinator for all other aeronautical and maritime SAR regions. The following 

paragraphs in this section address when DoD resources may be applied in a Stafford Act or other 

civil support event, outside these normal day-to-day SAR operations. 

 66 Id. para. E.4.3.3.1.

67 Id. para. E.4.3.2.

68 U.S. DEP’T OF DEFENSE, DIR. 4500.9E, TRANSPORTATION AND TRAFFIC MANAGEMENT, E.4.2.3.1 - E4.2.3.6 (11 Sept. 

2007) [hereinafter DoDD 4500.9E], Incorporating Change 1, 31 July 2017. .

69 Id. para. E.4.2.1.

70 Id. E.4.2.2.

71 Id. E.4.2.3.6.

72 Id. E.4.2.3.5.

73 See National Search and Rescue Plan of the United States, para. 22 (2007), available at

http://www.dtic.mil/dtic/tr/fulltext/u2/a486340.pdf.
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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.74 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).75 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.76

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.77

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,78 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.79

3. Employment of DoD Resources in Support of the U.S. Postal Service

When ordered by the President, DoD may be called upon to provide materials, supplies, equipment, 

services, and personnel to enable the USPS to safeguard, process, and deliver the mail in areas 

affected by postal work stoppages. Authority to support the USPS rests in the President’s authority 

to use the armed forces to prevent interference with transporting the mail80 and the authority for 

interdepartmental transfer of services and equipment prescribed by the Economy Act,81 as 

implemented by DoD Instruction 4000.19, Support Agreements.

82 Upon Presidential declaration of 

a national emergency, selective mobilization of reserve components to support the USPS would 

occur under 10 U.S.C. § 12301.83 Army and Air National Guard units would be called under 

 74 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, (June 2016), available at www.FEMA.gov.

75 FEMA, EMERGENCY SUPPORT FUNCTION #9 – SEARCH AND RESCUE, (Feb. 2011), available at www.FEMA.gov.

76 See DoDD 4515.13-R, supra note 77, at C.10.11.

77 FEMA, EMERGENCY SUPPORT FUNCTION #9 – SEARCH AND RESCUE, (June 2016), available at www.FEMA.gov

78 This could occur in the case of a large airline crash or large vessel casualty, requiring the need for a mass rescue.

79 Id.

80 In re Debs, 158 U.S. 564 (1895).

81 31 U.S.C. § 1535 (2012), implemented by 39 U.S.C. § 411 (Cooperation with other Government Agencies).

82 U.S. DEP’T OF DEFENSE, INSTR. 4000.19, SUPPORT AGREEMENTS (25 Apr. 2013), 

Incorporating Change 1, November 30, 2017.

83 10 U.S.C. §§ 12301–12304 (2012).
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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.84

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 #8.85 

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.86 

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.87 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.88 The National Guard maintains National Guard Expeditionary 

Medical Support (EMEDS) Fatality & Services Recovery Response Team packages that can 

support these missions with proper approvals.89 

 84 Exec. Order No. 13527, 75 Fed. Reg. 737 (Jan. 6, 2010).

85 FEMA, EMERGENCY SUPPORT FUNCTION #8 – PUBLIC HEALTH AND MEDICAL SERVICES, (Jan. 2008) [hereinafter ESF 

#8], available at www.FEMA.gov. The mission assignment process is discussed further at Chapter 2, infra.

86 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 (last visited Dec 

17, 2017).

87 ESF # 8, supra note 89, 8-10,11.

88 Id. at 8-11.

89 See NATIONAL GUARD REGULATION 500-1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS, para. 5-11a, 

11b (13 Jun. 08) [hereinafter NGR 500-1].
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6. Mass Migration Emergency

The Department of Homeland Security (DHS) is charged with enforcing the laws of the United 

States regarding immigration.90 The majority of this responsibility is fulfilled by the routine daily 

operations of U.S. Immigration and Customs Enforcement (ICE)91 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.92 

DoD may be tasked to assist in initial migrant reception, transportation, housing, and the full range 

of support services associated with those tasks. At no time is DoD expected to engage in law 

enforcement activities or in the processing of immigrants. FORSCOM, operating with DoD Lead 

Operational Authority, is charged by JFCOM to develop and coordinate detailed planning and 

execution of DoD support mass migration operations in the continental United States. The National 

Guard supports domestic emergencies such as mass migration emergencies in a civil support role 

while in a Title 10 status.93

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, 

safety, national security, or the environment.”94 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.95 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.96 In the event of a deliberate attack in the United States, DHS is 

the coordinating agency and DOJ is the lead law enforcement authority.97 DoDD 3150.08, DoD 

Response to Nuclear and Radiological Incidents, establishes additional policy in accordance with 

 90 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].

91 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.

92 For example, during the Mariel Boatlift approximately 124,000 Cuban migrants entered the United States between 

April and September of 1980. See Mariel Boatlift GLOBALSECURITY.ORG, 

https://www.globalsecurity.org/military/ops/mariel-boatlift.htm (last visited Aug. 22, 2018).

93 NGR 500-1, supra note 93, para. 4-2.d.

94 U.S. DEP’T OF DEFENSE, DIR. 3150.08, DOD RESPONSE TO NUCLEAR AND RADIOLOGICAL INCIDENTS (20 Jan. 2010)

[hereinafter DoDD 3150.08].

95 FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Jun 2008) 1,4,7, available at: 

http://www.fema.gov/pdf/emergency/nrf/nrf_nuclearradiologicalincidentannex.pdf (last visited Dec. 12, 2017).

96 Id. at 8.

97 Id. at 9.
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the National Response Framework regarding DoD consequence management response to U.S. 

nuclear weapon incidents and other nuclear or radiological incidents involving DoD materials.

98

8. DoD Support to Wildfires

State and local governments have the primary responsibility to prevent and control wildfires.99 

DoD support for wildland firefighting operations are the same as those for other natural disasters 

and emergencies.100 DoD provides disaster and emergency support of FEMA pursuant to approved 

FEMA mission assignments (MAs)..101 

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,102 is the nation’s 

support center for wildland firefighting103 and is a joint operation of the DOI and USDA.104 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);

• Fish and Wildlife Service (USFWS);

• National Park Service (NPS);

• National Weather Service (NWS); and, 

• Office of Aircraft Services (OAS) 105

The NIFC evolved from the “Boise Interagency Fire Center” which was established in 1965. The 

Boise Interagency Fire Center began as an effort to consolidate fire planning and response among 

the Bureau of land Management, U.S. Forest Service, and National Weather Service. In 1993, the 

name was changed to the National Interagency Fire Center to reflect a national mission. 106

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 

 98 DoDD 3150.08, supra note 99, para. 1.

99 U.S. DEP’T OF DEFENSE MANUAL, 3025.01, DEFENSE SUPPORT OF CIVIL EMERGENCIES, Vol. 2, Sec 7, para. 7.1.b. 

and table 6 (Aug. 2016) [hereinafter DoDM 3025.01]; See also approved Memorandum of Understanding Between the 

Department of Defense, National Geospatial-Intelligence Agency, the Department of Agriculture, and Department of 

the Interior, ; see also FEMA, EMERGENCY SUPPORT FUNCTION #4 – FIREFIGHTING ANNEX (May 2013), available at 

www.FEMA.gov. 

100 DoDM 3025.01, supra note 104, Sec. 4, para. 4.4.

101 DoDM 3025.01, supra note 104, Sec. 4, para. 4.4.

102 ESF #4, supra note 104.

103 DoDM 3025.01, supra note 104, Sec. 7, para. 7.1; see also National Interagency Fire Center (NIFC), available at: 

http://www.nifc.gov/aboutNIFC/about_mission.html (last visited Dec. 12, 2017).

104 DoDM 3025.01, supra note 104.

105 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last 

visited Mar. 17, 2018).

106 See NIFC History, Mission, NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/aboutNIFC/about_mission.html (last visited Dec. 17, 2017). .
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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. 107 

The National Interagency Coordination Center (NICC) is located within the NIFC. The NICC was 

established in 1975 to provide logistical support and intelligence for wildland fires across the 

nation. Because NICC is an “all-risk” coordination center, it can also provide support in response 

to other emergencies such as floods, hurricanes, and earthquakes. The NICC coordinates supplies 

and resources across the United States and provides support to incidents in foreign countries. The 

NICC includes the National Multi-Agency Coordination Group (NMAC) which is comprised of 

representatives from the BLM, USFS, Bureau of Indian Affairs (BIA), National Park Service, 

USFWS, FEMA, and National Association of State Foresters.108 

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.

109

 107 See NATIONAL INTERAGENCY FIRE CENTER, THE NATIONAL MULTI-AGENCY COORDINATING GROUP, available at: 

http://www.nifc.gov/nicc/administrative/nmac/index.html.

108 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last 

visited Dec. 17, 2017).

109 See Welcome to the National Interagency Coordination Center NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/nicc/index.htm (last visited Dec. 17, 2017).
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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.110 First, a wildland 

fire is initially managed by the local agency that has fire protection responsibility for that area. 

Engines, ground crews, smokejumpers, helicopters with water buckets, and air tankers may all be 

used for initial suppression. Various local agencies may work together, sharing personnel and 

equipment, to fight new fires and those that escape initial action. If a wildland fire grows to the 

point where local personnel and equipment cannot contain the fire, the responsible agency contacts 

one of the eleven GACCs, which is the second tier of response. The GACC will locate and dispatch 

additional firefighters and support personnel throughout the geographic area. The third tier is 

triggered when GACCs can no longer meet requests because they are supporting multiple incidents, 

or GACCs are competing for resources. When this occurs, requests for equipment and supplies are 

referred to NIFC. 111 

NIFC can request DoD assistance through several key authorities.112 Requests for DoD assistance 

is coordinated with the FEMA Region 10 DCO or the DoD Liaison at NIVC headquarters with the 

NICC.113 Only the NIFC Director, Deputy Director, or the NICC Director may sign a request for 

 110 See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last 

visited Dec. 17, 2017).

111 Id.

112 DoDM 3025.01, supra note 104, Sec. 7, para. 7.2.

113 Id., at 7.4.
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DoD assistance.114 All requests for DoD assistance to support wildland firefighting operations are 

submitted to the CCDR..115 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.116 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 members 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. 117

DoD can provide Modular Airborne Fire Fighting System (MAFFS) capable C-130 aircraft, 

MAFFS-certified aircrews, and appropriate support personnel to conduct aerial dispersal of fire

retardant on a reimbursable basis when requests for this type of assistance comply with the 

requirements of the June 2010 interagency agreement between DoD, USDA, and DOI, and DoD is 

able to provide the support..

118 Congress established the MAFFS Program in the early 1970s as a 

joint effort between U.S. Forest Service and DoD..119 The objective of the MAFFS program is to 

provide emergency capability to supplement the existing commercial air tanker support on 

wildfires.120 The NICC can activate the MAFFS when all other contract air tankers are committed, 

or are otherwise unable to meet requests for air operations.121 Approval for use of MAFFS 

equipment must be obtained from the FS Assistant Director for Operations, NIFC, prior to this 

 114 Id. 

115 DoDM 3025.1, supra note 104, Sec. 7.

116 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.

117 See More Troops Tabbed to Battle Montana Wildfires, AMERICAN FORCES PRESS SERVICE (Aug. 23, 2000), 

(Archived - http://archive.defense.gov/news/newsarticle.aspx?id=45369, (last visited Dec. 12, 2017).

118 DoDM 3025.1, 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 Dec. 12, 2017). 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.

119 U.S. Forest Service, U.S. Department of Agriculture, Modular Airborne Fire Fighting Systems, 

https://www.fs.fed.us/managing-land/fire/planes/maffs, (last visited March 17, 2018).

120 National Interagency Mobilization Guide, Chapter 18, pg. 69, March 2018, 

https://www.nifc.gov/nicc/mobguide/Chapter%2050.pdf, (last visited march 17, 2018). 

121 Id. 
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activation.

122 Governors of States where NG MAFFS units are stationed may activate MAFFS 

missions within their State boundaries when covered by a memorandum of understanding with the 

USFS. In accordance with military requirements for initial qualification and recurrent training, 

MAFFS crews are trained every year with Forest Service national aviation operations personnel.

There are currently eight MAFFS units for operational use.123 There are currently four airlift wings 

(AW) that provide MAFFS-equipped C-130s and certified crews:

• 146th Airlift Wing (AW), Channel Islands, CA (ANG);

• 152nd AW, Reno, NV (ANG);

• 153rd AW, Cheyenne, WY (ANG); and,

• 302nd AW, Peterson AFB, Colorado Springs, CO (AFR)124

The mobilization of MAAFS resources requires a pre-deployment analysis. Prior to deployment of 

these assets, local foresters are responsible for ensuring that regional, commercially-available assets 

are unavailable or already committed to a mission. Similarly, if assets are sought by the NICC, 

commercial assets must be unavailable at the national level. A Memorandum of Understanding–

Collection Agreements governs payments. These agreements are between the military authority and 

the Forestry Service.125

B. Environmental Missions126

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).127 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.128

 122 Id. 

123 U.S. Forest Service, U.S. Department of Agriculture, Modular Airborne Fire Fighting Systems, 

https://www.fs.fed.us/managing-land/fire/planes/maffs, (last visited March 17, 2018).

124 DoDM 3025.1, supra note 104, Sec. 7, para. 7.3(b).

125 See DoD 3025.1-M, supra note 103, ch. 3, para. C3; see also Modular Airborne Fire Fighting Systems (MAFFS), 

U.S. FOREST SERVICE FIRE & AVIATION MANAGEMENT, https://www.fs.fed.us/managing-land/fire/planes/maffs (last 

visited Aug. 22, 2018). 

126 Chapter 2, infra, contains additional information on environmental response and how this mission fits within the 

National Response Framework.

127 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9605 – 9675 

(2011); The Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 et. seq. (1972), as amended by 

the Oil Pollution Act of 1990 (OPA 90) (1991).

128 40 C.F.R. § 300 (2017). The NCP is required by section 105 of the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980, as amended. See also 40 C.F.R. § 300.2 (2017). Executive Orders 12580 and 

12777 delegated to the EPA responsibility to revise the NCP as necessary.
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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.129 Regional Response Teams 

(RRTs), the regional counterpart to the NRT, plan and coordinate regional preparedness and 

response actions. The EPA chairs the standing NRT, and the EPA, U.S. Coast Guard, and regional 

States chair the RRTs. RRTs coincide geographically with FEMA and EPA regions. At the local 

level in the coastal zones are the Area Committees, co-chaired by Coast Guard Captains of the 

Port130 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.131 Under the 

National Response Framework, the Environmental Protection Agency (EPA) is the coordinator for 

ESF #10 – Oil and Hazardous Materials Response Annex.132 

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 On-Scene Coordinator (OSC) 

(person who directs and supervises the response) for all hazardous substance releases, except oil 

spills, that originate from DoD facilities or vessels.133

For incidents where DoD does not provide an OSC, DoD generally will provide hazardous materials 

or oil spill incident response expertise and resources from the Navy and/or Army Corps of 

Engineers (USACE), both of whom have a representative attending NRT, RRT, and/or Area 

Committee meetings. USACE oil spill cleanup capabilities include recovery of oil using USACE 

reserve fleet vessels, contracting, construction management, real estate support services, 

engineering, environmental review and monitoring, and regulatory permitting, among other items. 

The Navy'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.134 With the exception of support

 129 Exec. Order No. 12580.

130 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.”

131 It is important to note that the NCP is a separate response regime from the National Response Framework and the 

Stafford Act, yet there can be overlap between them. Large oil or hazardous materials incidents will be addressed under 

the NCP, and not the Stafford Act, because this allows the government to direct the “responsible party” (entity 

responsible for the incident) to take response action in addition to government efforts (thus meeting Congressional 

intent of the “polluter pays” under CERLA and the FWPCA). Nonetheless, elements of the National Response 

Framework (in particular ESF #10) can be activated in addition to the NCP to address the response. See the discussion 

of the Deepwater Horizon Oil Spill, infra, as an example.

132 FEMA, EMERGENCY SUPPORT FUNCTION #10 – OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (June 2016), 

available at www.FEMA.gov.

133 40 C.F.R. § 300.120 (2017).

134 DoDD 3025.1-M, supra note 104, ch. 3, para. C3.2.1.6.4.5.3.
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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.135 JDOMS will then coordinate 

any DoD support under the NCP. Such support will typically be requested through the RRT by the 

U.S. Coast Guard or EPA OSC overseeing the response.

1. The Deepwater Horizon Oil Spill – Use of the NCP vs. Stafford Act

Major environmental contingency operations within the United States are addressed exclusively 

under the NCP without a Presidential declaration of a major disaster under the Stafford Act. During 

the Deepwater Horizon crisis in 2010, there was substantial confusion in the public and in press 

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 Act136 and the NCP. Those authorities specifically 

provide mechanisms by which the “Responsible Parties” for the discharge137 directly pay all 

removal costs and certain damages arising from the discharge.138 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,139 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 

 135 FEMA, EMERGENCY SUPPORT FUNCTION #10 – OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX 11 (June 

2016), available at www.FEMA.gov.

136 33 U.S.C. §1321(c) (2011).

137 Among the Responsible Parties in DEEPWATER HORIZON were BP and Transocean.

138 33 U.S.C. § 2702(a) (2011). In oil discharge situations, the Federal government may use the Oil Spill Liability 

Trust Fund to pay costs related to oil spill removal activities. Responsible Parties reimburse the fund for these costs. 

The statute recognizes that reimbursement may not be available when a Responsible Party is insolvent or cannot be 

identified.

139 40 C.F.R. § 300.323(c) (2017) provides that a National Incident Commander (NIC) may be appointed for a “Spill of 

National Significance.” The NIC assumes the role of the FOSC in communicating with effected parties and the public 

and coordinating Federal, State, local and international resources at the national level.
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and identifies reimbursement accounting procedures.140 Requests for assistance are routed through 

the White House Military Office or DoD Executive Secretary.141

2. Imagery Intelligence and Geospatial Support

The National Geospatial-Intelligence Agency (NGA) is tasked with organizing, directing, and 

managing NGA and all assigned resources to provide peacetime, contingency, crisis, and combat 

geospatial intelligence support to the operational military forces of the United States.142 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.143 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.144 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.145

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.146 DoDD 3020.26, Department of Defense Continuity Policy, tasks 

DoD components to prepare plans for the continuity of its operations and of government during an 

emergency.147 Continuity of Operations (COOP) is defined as “An internal effort within each DoD 

Component to ensure that essential functions continue to be performed during disruption of normal 

operations..”148 DoD and OSD Component heads will develop, coordinate, and maintain a DoD 

Component continuity program in accordance with this directive to ensure the continuation of 

 140 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).

141 Id. para. 3.4.2.

142 U.S. DEP’T OF DEFENSE, DIR. 5105.60, NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY, para. 6 (29 July 2009). 

143 See Exec. Order No. 12333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401.

144 Id. at para. 2.6(c).

145 Exec. Order No. 12656, 3 C.F.R. 585 (1988), sec. 204.

146 Id., sec. 202.

147 U.S. DEP’T OF DEFENSE, DIR. 3020.26, DEPARTMENT OF DEFENSE CONTINUITY POLICY (14 Feb. 2018).

148 Id., at Glossary.
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Component essential functions across the spectrum of threats. Minimum requirements for continuity 

planning are outlined in DoDD 3020.26.149

5. Explosive Ordnance Disposal

DoDD 5160.62, Single Manager Responsibility for Military Explosive Ordnance Disposal 

Technology and Training, establishes the Assistant Secretary of Defense for Special Operations and 

Low intensity Conflict, under the authority of the Under Secretary of Defense for Policy (USD(P)). 

as theOSD proponent for explosive ordnance disposal (EOD) program.150 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.151

The EOD mission within the Department of the Army is defined in AR 75-15, Policy for Explosive 

Ordnance. The mission includes providing assistance to public safety and law enforcement 

agencies and conducting “explosive ordnance disposal training for civil preparedness, law 

enforcement, fire protection[,] and other public officials.”152 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.”153 The Army 

should primarily provide training or advice, rather than physical assistance. AR 75-15 provides

Army EOD is not authorized without an approved exception in accordance with 32 CFR 185 and 32 

CFR 182 to respond to, or dispose of, non-DOD commercial explosives, chemicals, or other 

dangerous materials that are possessed or controlled by commercial concerns not located on DOD 

installations. 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 2005.154 Although 

H5N1 has not emerged as a pandemic, the World Health Organization declared on June 11, 2009 

 149 Id. at 2.13.

150 U.S. DEP’T OF ARMY, REG. 75-15, RESPONSIBILITIES AND PROCEDURES FOR EXPLOSIVE ORDNANCE, para. 3-1 (17 

Dec, 2013). AR 75-15 does not apply to the Army Reserves or Army National Guard. 

151 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.

152 Id. para. 1-4.

153 Id.

154 HOMELAND SECURITY COUNCIL, NATIONAL STRATEGY FOR PANDEMIC INFLUENZA (November 2005), available at .

https://www.cdc.gov/flu/pandemic-resources/pdf/pandemic-influenza-strategy-2005.pdf (last visited Dec. 12, 2017).
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that the H1N1 influenza had become a pandemic.155 This was followed by statements by the 

Secretaries of HLS and HHS indicating that the United States had already activated their pandemic 

response plans in anticipation of such a declaration.156 Although easily transmissible, the H1N1 

influenza has not shown a high mortality rate. Nonetheless, leaders and planners are concerned that 

a more virulent and deadly strain could present itself in the future. Accordingly, judge advocates 

advising commanders need to be prepared to confront the myriad of legal challenges that a 

pandemic could bring. This section provides an overview of the support DoD anticipates providing 

in the event of a severe pandemic.

The DoD issued the Department of Defense Implementation Plan for Pandemic Influenza during 

August 2006.157 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.158

Based upon these and other assumptions, the Implementation Plan outlines nineteen planning 

categories informed by the Homeland Security Council’s (HSC) five planning priorities and thirteen 

priority areas. DoD support in the following fifteen categories will require legal analysis prior to 

execution:

• Category 1: Intelligence;

• Category 2: Force Protection;

• Category 4: Interagency Planning Support;

• Category 5: Surge Medical Capability to Assist Civil Authorities;

• Category 7: Patient Transport and Strategic Airlift;

 155 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 March 9, 2018).

156 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 March 9, 2018).

157 ASD, HD, MEMORANDUM FOR SECRETARIES OF MILITARY DEPARTMENTS, DEPARTMENT OF DEFENSE 

IMPLEMENTATION PLAN FOR PANDEMIC INFLUENZA (12 Sept. 2006) [hereinafter “Implementation Plan”].

158 Id. at 8–9.
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• 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.159

The Congressional Research Service has also developed a CRS Report for Congress that outlines 

key legal issues raised by Pandemic Influenza outbreak.160 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.161 As discussed above, DoD planning 

guidance directs consideration be given to the potential for DoD to provide quarantine support to 

U.S. authorities.162 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.”163 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.164 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.165

This authority provided to DoD will be secondary to the States, which have primary quarantine and 

isolation authorities under State law.166 Upon request, or upon the determination that local efforts 

are inadequate, the Federal government may assume primary responsibility for such activity.167 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. The situation in affected areas may trigger 

broad requests or directions of DoD support to other Federal or non-Federal entities.168 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 

 159 Id. at 10–11.

160 KATHLEEN S. SWENDIMAN & NANCY LEE JONES, The 2009 Influenza Pandemic: Selected Legal Issues, CRS REP’T 

TO CONG. (October 29, 2009) [hereinafter “CRS REP’T”].

161 Id. at summary.

162 See Implementation Plan, supra note 155, at 11, Category 13.

163 42 U.S.C. § 264(a) (2011).

164 See CRS REP’T, supra note 158 at 11.

165 Id. at 7.

166 Id.

167 See id. at 8, n.41; see also 42 U.S.C. § 264(c) (2011); 42 C.F.R. § 70.2 (2017).

168 See Implementation Plan, supra note 155 at 10–11, Categories 1, 2, 4–5, 7–8, 10–17 & 19.
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Federal Law Enforcement Assistance Act (EFLEAA).169 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.170

 169 42 U.S.C. § 10501 et seq.

170 OAG MEMORANDUM FOR THE PRESIDENT, Summary of Legal Authorities for use in Response to an Outbreak of 

Pandemic Influenza (April 25, 2009).
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CHAPTER 9

INTELLIGENCE AND INFORMATION ACQUISITION AND 

HANDLING DURING DOMESTIC OPERATIONS

REFERENCES:

• National Security Act of 1947 (as amended), codified throughout 50 U.S.C. § 401 et seq. and 50 

U.S.C. § 3001 et seq.

• Foreign Intelligence Surveillance Act (as amended), 50 U.S.C. § 1801 et seq.

• Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 [S. 2845], 

December 17, 2004.

• The Immigration and Nationality Act (as amended), 8 U.S.C. §§ 1101 et seq.

• The Privacy Act (as amended), 5 U.S.C. §552a 

• 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.

• DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components That 

Affect U.S. Persons, December, 1982, Incorporating Change 2, Effective April 26, 2017.

• DoDD 3025.18, Defense Support of Civil Authorities (DSCA), December 29, 2010, 

Incorporating Change 1, September 21, 2012.

• DoDD 5143.01, Undersecretary of Defense for Intelligence (USD(I)), October 24, 2014, 

Change 1 Effective April 22, 2015.

• DoDD 5148.13, Intelligence Oversight, April 26, 2017.

• DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not 

Affiliated with the Department of Defense, January 7, 1980.

• DoDD 5240.01, DoD Intelligence Activities, August 27, 2007, Incorporating Change 1 and 

Certified Current Through August 27, 2014.

• DoDD 5400.11- DoD Privacy Program, October 29, 2014.

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

• DoDI 3115.15, Geospatial Intelligence (GEOINT), December 6, 2011.

• DoDM 5240.01, Procedures Governing the Conduct of DOD Intelligence Activities, August 8, 

2016.

• Deputy Secretary of Defense Policy Memorandum 15-002, Guidance for the Domestic Use of 

Unmanned Aircraft Systems, 27 February 2015.

• Defense Intelligence Agency Regulation (DIAR) 50-30 - Security Classification of Airborne 

Sensor Imagery, June 25, 1997.

• Agreement Governing the Conduct of Defense Department Counterintelligence Activities in 

Conjunction with the Federal Bureau of Investigation, (FOUO) April 5, 1979.

• Supplement to 1979 FBI/DoD Memorandum of Understanding: Coordination of 

Counterintelligence Matters Between the FBI and DoD, (S) June 20, 1996. 

• Joint Publications Intelligence series 2-0.

• AFPD 14-1 - ISR Planning, Resources, and Operations, April 2, 2004.

• AFI 14-104 - Oversight of Intelligence Activities, November 5, 2014.

• AFI 14 series on Intelligence.

• AR 380-13 – Acquisition and Storage of Information Concerning Non–Affiliated Persons and 

Organizations, September 30, 1974
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• AR 381-10 - Army Intelligence Activities, May 3, 2007.

• AR 381-20 - The Army Counterintelligence Program, May 25, 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) 2000.01C, National Guard Intelligence 

Activities, 14 August 2018.

• CNGBI 7500.00, Domestic Use of National Guard Bureau Unmanned Aircraft Systems, 13 

October 2016.

• Chief National Guard Bureau Manual (CNGBM) 2000.01, National Guard Intelligence 

Activities, November 26, 2012. 

• U.S. NORTHERN COMMAND Instruction 14-3, Domestic Imagery, July 29, 2014.

• U.S. NORTHERN COMMAND Instruction 14-103, Intelligence Oversight, June 14, 2017.

A. Introduction

With the ever-increasing number of domestic military missions conducted in the Homeland, there 

has been a concurrent search for appropriate assets and capabilities to best perform those missions. 

Although domestic military missions are no different than overseas missions in that a key 

requirement for mission success is maintaining a commander’s situational awareness, the operating 

environments are completely different. In a deployed or overseas location, the commander must be 

aware of the situation on the ground and have a complete picture of the “battle space” within which 

the unit is operating. Overseas, the DoD has the lead, and is in charge of most operational 

activities. There, the intelligence assets available to the commander normally provide him or her 

with the common operating picture that will establish situational awareness. However, the domestic 

operational domain is complicated by Federal statutory and Constitutional restrictions and 

protections which effectively preclude, or in a best case scenario, limit use of intelligence assets, 

capabilities and platforms, and even the use of intelligence personnel. In the absence of a 

Homeland Defense environment or direction from the President, DoD will not be the lead Federal

agency conducting operations; indeed, DoD will be supporting the lead Federal agency.1

 Further, in 

the absence of a Homeland Defense initiation order, there is no “battlespace” in the Homeland; to 

the contrary, the domain is called the “operational environment.” Due to subtle distinctions such as 

these, the conduct of domestic military operations can be extremely challenging, and in some cases, 

fraught with legal or political peril. 

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? In this regard, the judge advocate is 

 1 See U.S. DEP’T. OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 13.d (29 Dec. 2010) (C2,

19 Mar. 2018) [hereinafter DoDD 3025.18].
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critical to the conduct of domestic operations utilizing intelligence assets and components. Judge 

advocates must recognize that collecting not only domestic intelligence but also domestic 

information may include collecting information on U.S. persons,2 or persons not affiliated with the 

DoD.3 Therefore, the oversight program rules regarding information and intelligence collection in 

the United States by DoD are quite strict and more than a little complex. This is because these rules 

are designed to strike a balance between the rights of U.S. Persons and the government’s legitimate 

need for essential information. In so doing, protection of an individual’s Constitutional rights and 

privacy remains paramount while enabling collection of authorized information by the least 

intrusive means, and by restricting dissemination of this information for lawful government 

purposes only.

As a result, balancing the commander’s need for information against this domestic framework of 

protections can pose unique issues in the information and intelligence-gathering arena. This chapter 

provides a broad overview of the rules for collection of information on U.S. persons. If you are 

addressing an issue involving the collection of information in the Homeland, you may want to seek 

out additional expertise to assist you in this complicated area.

Before discussing the details of collecting information or intelligence on U.S. persons and NonDoD Affiliated Persons, it is important to understand first that there are two distinct DoD activities 

which are involved in the collection of information in the Homeland: 

• The first endeavor consists of collecting data that will be processed into intelligence.4 These 

are intelligence activities which are comprised of the collection, production and dissemination 

of foreign intelligence and counterintelligence in accordance with E.O. 12333 and E.O. 13470, 

as implemented by DoDD 5240.01, (policy documents governing collection, retention and 

dissemination by DOD intelligence components of information that identifies U.S. Persons). 

This activity is accomplished by members of the DoD Intelligence Community (DoDIC), as 

defined in E.O. 12333, and amended by E.O. 13470. In simple terms these are the Title 10 

intelligence specialists—J2s, G2s, A2s, etc. This activity is governed by one set of rules 

referred to as Intelligence Oversight (IO). (Title 32 National Guard intelligence specialists—

though not technically members of the intelligence community—follow National Guard policies 

concerning intelligence oversight.5)

 2

 U.S. DEP’T OF DEF., MANUAL 5240.01, PROCEDURES GOVERNING THE CONDUCT OF DOD INTELLIGENCE ACTIVITIES 

54 (8 Aug. 2016) [hereinafter DoDM 5240.01].

3

 See U.S. DEP’T OF DEF., DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS 

NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980) [hereinafter DoDD 5200.27]; see also U.S. DEP’T OF 

ARMY, REG. 380-13, ACQUISITION AND STORAGE OF INFORMATION CONCERNING NON-AFFILIATED PERSONS AND 

ORGANIZATIONS (30 Sept. 1974) [hereinafter AR 380-13].

4 Raw data by itself has relatively limited utility. However, when data is collected from a sensor and processed into an 

intelligible form, it becomes information and gains greater utility. In other words, raw data is collected from the 

operational environment. Raw data that is processed and exploited turns into information. Information that is analyzed 

and undergoes production into a product turns into intelligence.4

 See U.S. DEP’T OF ARMY, REG. 381-10, ARMY 

INTELLIGENCE ACTIVITIES (3 May 2007) [hereinafter AR 381-10].

5

 See CHIEF, NAT’L GUARD BUREAU, INST. 2000.01C, NATIONAL GUARD INTELLIGENCE ACTIVITIES (14 Aug. 2018) 

[hereinafter CNGBI 2000.01C].
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• The second activity deals with the acquisition of information necessary for the conduct of 

domestic military missions, for other than intelligence purposes. Those persons involved in this 

activity consist of everyone else in DoD, including various force protection, investigative units 

and police forces, who are not part of the DoDIC. Equally important however, is that with a 

growing increase in other-than-traditional military missions such as the provision of 

humanitarian aid, disaster assistance, and disaster consequence management within the United 

States, the demand for information has significantly increased to ensure effective, and timely 

mission accomplishment. This activity is subject to a different set of rules known as “Sensitive 

Information” (SI) program rules, which are governed by DoDD 5200.27, and AR 380-13. 

Therefore, commanders must direct their need for information or intelligence to the right 

component—the component with the mission and authority to achieve the commander’s intent. To 

do so effectively, the commander must not only determine the purpose the information or 

intelligence will be used for, but also the context under which the information or intelligence will be 

used.6

 Determining the nature of the data and the right unit to gather it often requires judge 

advocate input. Therefore, you must ensure that two questions are asked and answered when 

considering collection in the Homeland: 1) Who is collecting the information or data? (intelligence 

assets or non-intelligence assets); and 2) What is the purpose of the information or data needed? (for 

intelligence or non-intelligence purposes). The analysis will then lead to the oversight rules that 

govern the collection effort.

Section B of this chapter examines the proper use of DoD intelligence components during domestic 

support operations. Section C examines collection of information on Non-DoD-Affiliated Persons 

(NDAPs) by DoD components that are not part of the DoDIC, and are not involved in intelligence 

operations. Section D addresses Title 10 Domestic Imagery activities and restrictions. Section E 

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 components7 are governed by four primary references. The National Security Act 

of 1947 establishes a comprehensive program for national security and defines the roles and 

 6

 For example, a Task Force commander charged with supporting civil authorities during a natural disaster may identify 

the need for domestic imagery of the ingress and egress routes to determine if the roadways are congested with the 

civilian population fleeing the disaster zone, or seeking medical aid, food, and water. While intelligence surveillance 

and reconnaissance (ISR) platforms and packages may afford the most effective means of acquiring situational 

awareness, military commanders are prohibited from using intelligence assets for such purposes absent SecDef 

authorization. In a Defense Support of Civil Authorities (DSCA) event, a limited set of ISR platforms and capabilities 

have been approved for use. ISR conducted for DSCA purposes is called Incident Awareness and Assessment (IAA). 

When IAA is conducted, it must still be employed consistent with Intelligence Oversight program rules, and still 

requires authorization by the Commander, U.S. Northern Command (USNORTHCOM) or SecDef. The same products 

may however, be available commercially or from other Federal agencies. In this example, the commander was not 

seeking “intelligence.” The commander was seeking “information” to enhance situational awareness and establish a 

common operating picture (COP). The value of this distinction is discussed further in this chapter.

7 DODM 5240.01, supra note 1, at 46 (defining the DoD intelligence components are as the NSA/CSS, 

the DIA, the NGA, the NRO, the intelligence and CI elements of the Army, the Navy, the Air Force, and the Marine 

Corps, the Intelligence and Counterintelligence elements of the Coast Guard, and the other offices within the DoD for 

the collection of specialized national foreign intelligence through reconnaissance programs). See also, U.S. DEP’T OF 

DEFENSE, DIR. 5148.13, INTELLIGENCE OVERSIGHT (26 Apr. 2017) [hereinafter DoDD 5148.13]. 
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missions of the intelligence community and accountability for intelligence activities. Executive 

Order (E.O.) 12333, United States Intelligence Activities, lays out the goals and direction of the 

national intelligence effort, and describes the roles and responsibilities of the different elements of 

the U.S. intelligence community.8 E.O. 12333 was further amended by E.O. 13470, and in many 

ways, refined to provide for a more uniform approach to conduct U.S. Government intelligence 

activities by addressing the formation of the Office of the Director of National Intelligence 

(“ODNI”), and specifically addressing each facet of intelligence responsibilities respective members 

of the Intelligence Community (“IC”) now hold.9 Pursuant to paragraph 1.7.(f)(1), the DoDIC is 

limited to conducting defense and defense-related foreign intelligence and counterintelligence 

activities, thereby necessitating a DoD nexus for all foreign intelligence (FI) and counterintelligence 

(CI) activities conducted.10 This limitation is further buttressed by paragraph 4 of DoDD 5240.01, 

Procedures Governing the Conduct of DoD Intelligence Activities. 

Presently, DoD Directive (DoDD) 5240.01,11 DoD 5240.1-R,12 DoDM 5240.01,13 and DoDD 

5148.1314 implement the guidance contained in E.O. 12333, as amended, pertaining to DoD (see 

Diagram 1). Further, each Service also has its own regulations and policy guidance. These 

authorities establish the operational parameters and restrictions under which DoD intelligence 

components may conduct intelligence activities. “Intelligence activities” are defined in DoDD 

5240.01 as, “the collection, analysis, production, and dissemination of foreign intelligence and 

counterintelligence pursuant to [DoDD 5143.01 and E.O. 12333].”15 Therefore DoD intelligence 

activities are solely limited to the conduct of defense-related foreign intelligence (FI) 16 and 

counterintelligence (CI)17 activities. FI and CI are the only authorized intelligence mission sets for 

the DoD.

 

 8

 See, Exec. Order No. 12333, 22 Fed. Reg. 59941 (Dec. 4, 1981) (as amended by Exec. Order No. 13470, July 30, 

2008) [hereinafter E.O. 12333].

9

 Exec. Order No. 13470 sec. 2 pt. 1. (July 30, 2008) [hereinafter E.O. 13470].

10 E.O. 12333, supra note 8, at para. 1.7.f.1.

11 U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].

12 U.S. DEP’T OF DEFENSE, 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS 

THAT AFFECT U.S. PERSONS (26 Apr. 2017) [hereinafter DoD 5240.1-R].

13 DoDM 5240.01, supra note 2.

14 DoDD 5148.13, supra note 7.

15 DoDM 5240.01, supra note 2, at 49 (defining intelligence activities as “[a]ll activities that the DoD Components 

conduct pursuant to E.O. 12333.” This definition reflects a more liberal approach to the conduct of intelligence 

activities than in the past.).

16 Id. at 48 (defining foreign intelligence as, “[i]nformation relating to the capabilities, intentions, or activities of 

foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists.”). 

17 Id. at 45 (defining counterintelligence (CI) is as, “[i]nformation gathered and activities conducted to identify, 

deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted 

for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or 

activities.”).
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Diagram 1

Judge advocates may find use of the “Legality Formula” instructive when assisting their clients,

especially those in leadership roles, by helping them to shift their respective paradigms from 

OCONUS operations to Domestic Operations (DOMPOS). 

Legal Intelligence Activity = Lawful DoD Mission + General/Technical Intelligence Authority to 

perform that mission.

Simply, to conduct a legal intelligence activity in the Homeland, the activity must be rooted in a 

lawful DoD mission, and supported by authority granting intelligence policies. 

As stated in E.O. 12333 (as amended by E.O. 13470), unless otherwise directed by SecDef, the only 

authorized DoD intelligence activities (lawful missions) are defense-related foreign intelligence (FI) 
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and counterintelligence (CI) activities.

18 Further, all lawfully-assigned DoDIC missions must be 

based on the existence of a DoD nexus, a relationship between the intelligence or information 

sought and the performance of national defense responsibilities assigned to the DoD. General 

authorities to conduct intelligence activities are rooted in Articles I and II of the U.S. Constitution,

Titles 5, 10, and 50 of the U.S. Code, and Presidential E.O.s assigned to the SecDef as further 

delegated to Service Secretaries, military departments, and combatant commanders (“CCDRs”). 

Finally, Technical Intelligence Authority (“TIA”) is based on authority bestowed by the office or 

agency involved, such as the SecDef, Service Secretary, or CCDR. TIA is also derived from the 

legal authority to conduct missions assigned and managed by the agency or office that is responsible 

for conducting or overseeing the particular mission(s). For example, The National Security Agency 

(NSA)/Central Security Service (CSS) has primary (statutory) TIA for the conduct of signals 

intelligence (SIGINT). 

Overall, these intelligence mission sets address the activities of international terrorists or, foreign 

powers, organizations, persons, and their agents. Moreover, to the extent that DoD intelligence 

components are authorized to collect FI or CI within the United States, they may do so only upon 

coordination with the Federal Bureau of Investigation (FBI), which has primary responsibility for 

intelligence and counterintelligence collection within the United States.19

In short, whenever DoD Intelligence Components are conducting defense-related FI or CI, 

Intelligence Oversight (IO) rules apply.20 These rules govern the collection, retention, and 

dissemination of information concerning U.S. persons.21 A U.S. person includes any 

unincorporated associations and U.S. corporations (e.g., “Joe’s Diner”).22 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 activities23 of any U.S. Person.

Questionable intelligence activities (QIA) that run afoul of these and other restrictions must be 

reported in accordance with DoDD 5148.13.24

 18 E.O. 12333, supra note 8, at paras. 1.7.f, 1.10.

19 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).

20 DoDD 5240.01, supra note 11, at para 2; DoDM 5240.01, supra note 2, at para. 1.2(a).

21 Judge advocates should consider reading these authorities before advising a commander on the collection of 

information in a domestic support operation. Further, DoDD 5240.01 and DoD 5240.1-R should be consulted when 

advising members of the intelligence community or if a questionable intelligence activity is identified.

22 “United States Person” is a term of art for the Intelligence Oversight program which consists of a United States 

citizen, an alien known by the intelligence agency concerned to be a permanent resident alien, an unincorporated 

association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated 

in the United States, except for a corporation directed and controlled by a foreign government or governments. E.O. 

12333, supra note 8, para. 3.4(i). A person or organization in the United States is presumed to be a U.S. Person, unless 

specific information to the contrary is obtained. Conversely, a person or organization outside the United States, or 

whose location is not known to be in the United States, is presumed to be a non-U.S. Person, unless specific information 

to the contrary is obtained. DoDM 5240.01, supra note 2, at 54. 23 The term “Domestic activities” refers to activities that take place within the United States that do not involve a 

significant connection with a foreign power, organization, or person. DoDM 5240.01, supra note 2, at 48. 24 DoDD 5148.13, supra note 7, at para. 4.1(a) (stating that “DoD personnel must identify any QIA or S/HSM to their 

chain of command or supervision immediately. If it is not practical to report a QIA or S/HSM to the chain of command 

or supervision, reports may be made to the DoD Component legal counsel or IG; the GC DoD; the DoD SIOO; the Joint 
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For many members of the DoD who have been deployed OCONUS, these CONUS restrictions may 

be somewhat challenging considering the broad range of intelligence and information support 

available through DoDIC channels overseas. Upon returning to assignments and operations within 

the United States, many may be unaware of the restrictions placed upon DoD while operating 

within the Homeland; this is especially true when considering collection activities of any sort. 

While oversight rules are the same whether used OCONUS or CONUS, impacts and effects, and 

more importantly, applications, are quite different between the two locations. This difference is so 

because intelligence, information, and data collection conducted overseas are foreign by nature and 

definition. On the other hand, all such activities conducted within the Homeland and its territories, 

are, by definition, “domestic.” Therefore, unless otherwise directed by SecDef, such activities 

conducted within the Homeland do not normally fall within the authorized foreign intelligence and 

counterintelligence mission sets. Further, since the purpose of DoD intelligence and information 

collection oversight rules is to protect the Constitutional and privacy rights of U.S. and Non-DoD 

Affiliated Persons, the likelihood of inadvertently (or intentionally) collecting information on such 

persons in violation of these rules within the U.S. is significantly higher than would be the case 

overseas.25 This likelihood is due to the relatively few U.S. Persons or U.S. Citizens who are NonDoD Affiliated Persons that will normally be encountered overseas, as compared to the 

preponderance to be found stateside. For these reasons, procedural application and enforcement of 

these rules domestically is much more stringent.

The key regulatory authority for the IO program is DoDM 5240.01. This manual is divided into ten 

separate procedures that govern the collection, retention, and dissemination of intelligence. 

Collection of information on U.S. Persons must be necessary to the functions (FI or CI) of the DoD 

intelligence component concerned.26 Procedure 1 establishes the scope and administrative 

provisions for implementing DoDM 5240.01. Procedures 2 through 4 provide the sole authority by 

which DoD components may collect, retain, and disseminate information concerning U.S. Persons. 

Procedures 5 through 10 set forth the applicable guidance for the use of certain collection 

techniques to obtain information for foreign intelligence and counterintelligence purposes. 

Additionally, DoD 5240.1-R contains procedures 11 through 13 which govern other aspects of DoD 

intelligence activities, including classified contracting, assistance to law enforcement authorities, 

and prohibitions on experimentation on human subjects for intelligence purposes. Finally, DoDD

5148.13 contains Procedures 14 and 15 governing employee conduct, questionable intelligence 

activities (QIAs), and significant or highly sensitive matters (S/HSMs), respectively. See Diagram 

2 for an overview of these procedures. 

In addition to the procedures themselves, the Defense Intelligence Agency (DIA) has published an 

instructive manual entitled The Intelligence Law Handbook (September 1995), to provide additional 

interpretive guidance to assist legal advisers, intelligence oversight officials, and operators in 

applying DoD 5240.1-R.

27 In the absence of any foreign nexus, DoDICs generally perform non-

 Staff IG or intelligence oversight officer; the Legal Counsel to the CJCS; the IG DoD; or the Intelligence Community 

IG.”). 25 E.O. 13470, supra note 9, at pt. 1 para. 1.1(b); DoDD 5240.01, supra note 11, at para. 4.1; DoDM 5240.01, supra

note 2, at para. 1.2.b.2. 

26 DoDM 5240.01, supra note 2, at sec. 3.2. 27 The DIA Handbook was published well before the new DoDM 5240.01 was written, and is therefore based solely on 

DoD 5240.1-R. Although it is an outstanding resource, it is somewhat dated. Judge advocates are therefore cautioned to 

be aware of the changes that occurred moving from the latter Regulation to the new Manual. However, the content of 
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intelligence activities. A non-intelligence activity would be any activity that is conducted by or 

with a DoDIC asset or capability, but which does not involve FI or CI; for example, the collection, 

retention, production, and dissemination of maps, terrain analysis, and damage assessments for a

DSCA mission. When intelligence assets fly planned or disaster support missions, such as posthurricane operations, they are termed “incident awareness and assessment” (IAA) missions. [see 

Section D below for a more complete discussion of Domestic Imagery (DI) and IAA missions.]

 

When Title 10 DoDIC personnel, assets or capabilities are needed for a non-intelligence activity, 

specific authorization from the SecDef is required for both the mission and use of the DoDIC

capability or asset.28 Depending on the mission undertaken, and whether intelligence platforms, 

packages personnel or capabilities are used, IO rules may or may not apply to DoD non-intelligence 

activities. For this reason, requests for SecDef authorization must be sure to include whether 

intelligence capabilities are sought and what additional restrictions shall be placed upon the assets 

or capabilities used in the domestic support operation.

C. Information Handling and the Role of DoD Non-Intelligence Components

DoD organizations that are not part of the DoDIC must also comply with strict procedural 

restrictions. These restrictions relate to the acquisition of information concerning the activities of 

persons and organizations not affiliated with 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 units, other than the intelligence components, may only 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.29 Unlike the Intelligence Oversight Program, programs 

affiliated with DoDD 5200.27 are premised on the concept of collection by exception. By policy, 

DoD may only collect, report, process, or store information on individuals or organizations 

affiliated with the Department of Defense. To collect information on others, the information must 

be essential to the accomplishment of a specific DoD mission, and a clear DoD nexus must exist 

which permits the use of an exception. Non-DoD Affiliated Person Information (NDAPI) is 

information (including data and imagery/likenesses) on identified or identifiable NDAPs, that is 

acquired for non-intelligence purposes by DoD elements or organizations not part of the DoDIC nor 

performing intelligence tasks.

30 

 the explanatory information remains quite useful. See also Kevin W. Kapitan, An Introduction to Intelligence Oversight 

and Sensitive Information: The Department of Defense Rules for Protecting Americans’ Information and Privacy, THE 

ARMY LAW. 3, 3-42 (Apr. 2013) (providing more in-depth explanations and practice tips based on pre-DoDM 5240.01 

policies). 

28 Deputy Secretary of Defense Policy Memorandum 15-002 should be consulted before use of any Unmanned Aircraft 

Systems (UASs).

29 U.S. DEP’T. OF DEF., DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS NOT 

AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980) [hereinafter DoDD 5200.27]. 30 Id. at para. 3.1.
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While the term, “collection” is not defined by DoDD 5200.27, it is defined by AR 380-13 as “[t]he 

acquisition of information in any manner, including, direct observation, liaison or solicitation from 

official, unofficial or public services.” 31 Also, the term “information” is not defined by DoDD 

5200.27 nor AR 380-13. However, current custom and practice in this regard at U.S. Northern 

Command (USNORTHCOM), Headquarters, Department of the Army (HQDA), and OSD is 

consistent with IO Program rules. IO Program rules protect any information, data, personally 

identifying information (PII), or imagery32 of the individual or individuals that identifies or could 

reasonably lead to the identification of an NDAP. In this regard, the Privacy Act and related 

analogous legal parameters provide the requisite standard.

So, what exactly is an NDAP? An NDAP is anyone who has no affiliation whatsoever with the 

DoD. Thus, the NDAP classification is not exclusive to U.S. citizens in the Homeland. Basically, 

an NDAP has no relationship, professional, personal, or otherwise, with the DoD or the Armed 

Services.

The basic DoDD 5200.27 analysis may be useful to judge advocates unfamiliar with this area of law 

and policy. The questions to be asked: 

1. Has a collection, gathering or acquisition of information occurred, and by whom?

2. Who/what is the target of collection? (DoD or NDAP?)

3. Is the collection authorized or sanctioned?

4. Is the NDAP’s information essential to the accomplishment of specific DoD missions?

5. Is there a DoD nexus, or a relationship between the info, the NDAP collected on, and a 

reasonable and articulable threat or impact upon the DoD, its missions, personnel or 

resources?

6. Is there an applicable exception permitting collection?

DoDD 5200.27 provides limitations on the types of information that may be collected, processed, 

stored, and disseminated about the activities of persons and organizations not affiliated with DoD.33 

As a result, there are only three possible mission exceptions that will permit the acquisition of 

NDAP information.34 These mission exceptions consist of the acquisition of information essential 

to accomplish the following DoD missions: 1) protection of DoD functions and property; 2) 

personnel security; and 3) civil disturbance operations (CDOs). If the collection on an identified or 

 31 AR 380-13, supra note 3, at 7.

32 As of the publication of this Handbook, debate continues at the Service and OSD levels as to whether unidentified

imagery or likenesses of persons constitutes a form of PII. DODD 5400.11, The DoD Privacy Program, defines PII as, 

“Information used to distinguish or trace an individual’s identity, such as name, social security number, date and place 

of birth, mother’s maiden name, biometric records, home phone numbers, other demographic, personnel, medical, and 

financial information. PII includes any information that is linked or linkable to a specified individual, alone, or when 

combined with other personal or identifying information. For purposes of this issuance, the term PII also includes 

personal information and information in identifiable form.” 

33 See also AR 380-13, supra note 3 (implementing the original and early versions of DoDD 5200.27). 

34 DoDD 5200.27, supra note 3, at sec. 4.
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identifiable NDAP does not fall within one of these exceptions, it is not authorized under DoDD 

5200.27 nor AR 380-13. 

The most commonly used exception in DoDD 5200.27 falls under circumstances protecting DoD 

functions and property. Initially this seems like a broad exception that would allow for the 

collection of information on U.S. Persons in multiple situations. However, DoDD 5200.27 further 

defines an activity that threatens defense personnel, activities, and installations as “direct threats” to 

DoD personnel in connection with their official duties.35 Understanding the difference is crucial. 

For instance, it is not uncommon for protests to occur outside the main gate of an installation. 

Under the broad brush of “protecting” DoD property, it might seem appropriate to report the name 

of the protesting group to installation personnel. Yet, further analysis is required to determine 

whether the group poses a direct threat to the installation. If the group is quietly and calmly 

protesting, it is unlikely that they pose a direct threat. Therefore, information should not be 

collected on them by name.36

Judge advocates must also be aware of a series of restrictions that are imposed by both DoDD 

5200.27 and AR 380-13, which are otherwise absent in intelligence oversight programs. 

Specifically, there are no exceptions available for publicly available information, which permit

collection or acquisition of information on NDAPs because the information is readily available from 

public sources. Similarly, there is no stated exception for information provided by NDAP consent. 

Further, unlike the new IO rules,

37 there is no DSCA exception or exclusion. However, DoD may 

acquire information on NDAPs if that information consists of contact lists of Federal, State, and 

local officials with responsibilities related to the control of Civil Disturbances; e.g., public officials’ 

emergency contact info or business cards,

38 and information on geospatial physical data relating to 

vital public or private installations, facilities, highways, and utilities necessary to carry out an 

assigned DoD mission where geographical reference points or staging areas are necessary.39

Judge advocates should also be mindful of historical problem areas that have led to specific 

prohibitions under DoDD 5200.27.40 The Directive specifically prohibits acquisition of 

information about a person or organization solely because they protest Government policy, or 

support racial interests or civil rights.

41 The Directive also prohibits, covert or deceptive 

 35 The challenge of understanding exactly what constitutes a “threat” versus a “direct threat” is further complicated by 

not only the lack of a definition of the term “direct threat” in DoDD 5200.27, but also the numerous definitions of the 

term “threat” found in various DoD polices. See, e.g, U.S. DEP’T. OF DEF., INST. 5505.17, COLLECTION,

MAINTENANCE, USE, AND DISSEMINATION OF PERSONALLY IDENTIFIABLE INFORMATION AND LAW ENFORCEMENT 

INFORMATION BY DOD LAW ENFORCEMENT ACTIVITIES 6 (19 Dec. 2012) (C1, 29 Nov. 2016) [hereinafter DoDI 

5505.17] and U.S. DEP’T. OF DEF., INST. 5525.18, LAW ENFORCEMENT CRIMINAL INTELLIGENCE IN DOD (18 Oct. 2013) 

(C1, 29 June 2018) [hereinafter DoDI 5525.18].

36 Note that while it would be counter to DoD 5200.27 to collect information on the activities of the group by stating 

“Group Against the Military (the name of the group) is protesting outside the front gate,” one could report all the 

necessary information without naming the group and therefore collecting on its activities. For example, one could 

report that “a group not in support of the military is protesting outside the front gate” without losing relevant 

information and without violating the DoD policy.

37 See DODM 5240.01, supra note 2, at para. 3.1.a.3.b.

38 DoDD 5200.27, supra note 29, at para. 6.2.1.

39 Id. at para. 6.

40 Id. at para. 5.

41 Id. at para. 5.1.
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surveillance of civilian organizations without specific authorization from the Service Secretary or 

the Secretary’s designee.42 Finally, the Directive does not permit assignment of Army military or 

civilian personnel to attend an organization’s public or private meetings, demonstrations, or other 

similar activities held off–post, without approval by the Service Secretary or the Secretary’s 

designee.

43 

Similar caution should be exercised when considering such activities in the context of the cyber 

domain. Both DoDD 5200.27 and AR 380-13 impose prohibitions on the maintenance of 

“computerized data banks,” similarly indicating that none “shall be maintained relating to 

individuals or organizations not affiliated with the Department of Defense, unless authorized . . . 

.”44 In like fashion, infiltration or surveillance of chat room groups, or other forms of social, by 

failing to disclose one’s affiliation with the DoD, or other similar acts, cannot occur without proper 

authorization.45 

D. Title 10 Domestic Imagery Activities and Restrictions

1. Domestic Operations

Whenever the DoDIC is providing support in the Homeland, special care must be taken to comply 

with IO Program Rules and the Posse Comitatus Act (PCA). Unless otherwise directed by the 

President or SecDef, anytime an aspect of the DoDIC is used in an information gathering capacity, 

even for non-intelligence purposes, IO rules apply whether the usage is for DSCA or Homeland 

Defense (HD).46 These rules are complemented by Domestic Imagery (DI) program rules, which 

are quite similar since DI rules are derived from IO program rules. Understanding the interplay of 

these procedures and restrictions is critical when intelligence assets are used for non-intelligence

purposes.

Whether DoDIC Components (DoDICC) are conducting an intelligence activity or a nonintelligence 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 provides specific guidance on 

mandatory security classification review of all data collected by airborne sensor platforms to 

determine whether it can be disseminated.47

 42 Id. at paras. 5.3, 5.4., and 5.5.

43 Id. at para. 5.6.

44 DoDD 5200.27, supra note 29, at para. 5.7; AR 380-13, supra note 3, at para. 9.g.

45 Activities like failure to disclose one’s DoD affiliation in an attempt to infiltrate a chat group is under scrutiny at the 

HQDA and OSD levels in an effort to develop effective policy to ensure that NDAP Constitutional and privacy rights 

are adequately protected, while at the same time fulfilling DoD mission and force protection requirements.

46 CHAIRMAN, JOINT CHIEFS OF STAFF, STANDING DSCA EXECUTE ORDER (EXORD) paras. 3.C.4.J.1., 3.I.10.A. (5 June 

2018) [hereinafter DSCA EXORD].

47 See generally U.S. DEP’T. OF DEF., INST. 3115.15, GEOSPATIAL INTELLIGENCE (6 Dec. 2011) (C1, 10 May 2018) 

[hereinafter DoDI 3115.15].
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In providing guidance to commanders on authorized use of DoDIC capabilities and assets, and the 

products derived from the data collected, it is important for judge advocates to understand the 

various platforms, their sensors, and how they operate. Whether an activity is subject to IO is 

determined by the “5 P’s”: process, people, pipelines, platforms, and purpose. Issues to consider 

include: whether the sensor is fixed or moveable; whether the platform with the sensor can have its 

course altered during a mission; how is the data collected, transmitted, and processed; and the 

specific purpose of its mission. For example, an Unmanned Aircraft System (UAS) may transmit 

data by live feed only to a line-of-sight receiver, or by satellite to a remote location.

In this example, evidence of a criminal act “incidentally” collected during an authorized mission 

using DoDIC capabilities should be forwarded to the appropriate civilian law enforcement agency 

(CLEA). However, altering the course of an airborne sensor (such as an UAS) from an approved 

collection track to loiter over suspected criminal activities would no longer be incidental collection. 

Thus, unless specifically authorized in advance, such an act could result in a PCA violation.48 

Certain data contains classified metadata which may need to be stripped at a remote site before it 

can be disseminated in an unclassified manner. Different platforms require different operational 

support, which requires preposition planning as well as intended use consideration. 

A domestic support operation using DoDIC capabilities, which includes support to CLEAs,49

requires a separate mission review and authorization by SecDef. Those planning the mission should 

consider whether the date is to be exclusively transmitted to the CLEA, and whether the CLEA 

personnel are properly located to control or direct use of the assets. To determine whether the 

collection platform and data transmission are wholly owned, operated, and received by a DoDIC, a 

DoD non-IC, or a combination of both, judge advocates will need to carefully consider the 

applicable rules and operational restrictions for the mission.

2. Domestic Imagery and Intelligence Oversight Programs

There are complexities inherent in the domestic operating environment (OE) with regard to the use 

of intelligence assets. Any use of intelligence capabilities for purposes other than “traditional 

intelligence” uses (support of combat operations) must be approved by the SecDef. “Traditional 

intelligence activities” include the collection, retention and dissemination of defense-related foreign 

Intelligence (D-FI) and counterintelligence (D-CI) products by the DoDIC. The exception to permit 

use of intelligence assets, personnel and capabilities for other than traditional intelligence purposes 

first became prevalent in the DSCA context.50 In an effort “to save lives, prevent human suffering, 

or mitigate great property damage within the United States . . . ,” SecDef permitted the use of DoD 

intelligence assets for other than traditional intelligence activities.51 In so doing, DI capabilities 

were among the first to be considered for such uses.52 However, immediate challenges followed 

these decisions due to the complexities involved in employing DI assets in the Homeland. 

 48 U.S. DEP’T. OF DEF., INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES GEOSPATIAL 

INTELLIGENCE (26 FEB. 2013) (hereinafter DoDI 3025.21]; DODD 3025.18,supra note 1.

49 DoD 5240.1-R, supra note 12, at proc. 12.

50 DSCA EXORD, supra note 46, at para. 4.D.2.

51 Id. at paras. 10.L.2., 4.D.2.

52 Id. at para 4.D.2.
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There are two core regulatory authorities that provide structure and procedure with regard to DI: 

National Geospatial Intelligence Agency, National System for Geospatial Intelligence Functional 

Manager for Foreign Affairs 1806 (NSGM FA 1806)

53 and related series of policies; and, when 

operating in support of USNORTHCOM, or within the USNORTHCOM area of operations (AO), 

North American Aerospace Defense Command/U.S. Northern Command Instruction 14-3 (NNCI 

14-3).54 These policies are straightforward, but somewhat complicated procedurally. The 

complications become exacerbated due to the necessity to include IO program rules into the mix. 

Together, the interplay of all these rules may be summarized by the following:

DI captured in the Homeland, and/or processed, exploited, analyzed or disseminated 

by any component or element of the DoDIC must comply with IO program 

restrictions, unless otherwise directed by the President, SecDef or his designee; this 

compliance is certified by executing a Proper Use Memorandum (PUM).

The PUM is an integral part of the DI mission process, arguably as equally important as the 

platform and packages used to capture imagery. A PUM is a memorandum submitted by an 

organization’s Certifying Government Official and reviewed by its legal advisor.55 The Imagery 

user organization will submit this PUM to NORAD and USNORTHCOM Collection Management 

(N-NC/J23M) for approval “that defines their requirements, intended use, and contains a proper use 

statement which acknowledges their awareness of the legal and policy restrictions regarding 

domestic imagery.”56 What a PUM is not, is an authorization to collect DI. However, a PUM will 

specify the authority to collect imagery, the location, intended use, analysis or exploitation of the 

imagery, retention, security and declassification (DCLAS) review, and authorized recipients of the 

DI captured. The core purpose of the PUM is to certify compliance with IO program rules by 

providing a statement of compliance by the Certifying Intelligence Official. The PUM also contains 

a legal opinion as to whether compliance is certifiable and legally sufficient which helps to ensure

that the DI to be collected will be used for proper and lawful purposes consistent with law and 

policy.

57

3. Incident Awareness and Assessment versus Intelligence Surveillance and Reconnaissance

DI and related data are most frequently captured during the course of DSCA missions. Since, by 

definition, DSCA only occurs within the U.S. and its territories,58 DoD personnel must carefully 

review and adhere to IO rules, DoDD 5200.27, Federal laws, DoD policy, and the U.S. Constitution. 

 53 NAT’L GEOSPATIAL INTELLIGENCE AGENCY, NAT’L SYS. FOR GEOSPATIAL INTELLIGENCE FUNCTIONAL MANAGER 

FOR FOREIGN AFFAIRS 1806, DOMESTIC IMAGERY (Mar. 2009), https://nsarchive2.gwu.edu/NSAEBB/NSAEBB527-

Using-overhead-imagery-to-track-domestic-US-targets/documents/EBB-Doc17.pdf [hereinafter NSGM FA 1806].

54 N. AM. AEROSPACE DEF. COMMAND/U.S. N. COMMAND, INS’T 14-3, DOMESTIC IMAGERY (29 July 2014) [hereinafter 

NNCI 14-3]. The instructions for the North American Aerospace Defense Command (NORAD) and U.S. Northern 

Command (USNORTHCOM) are on the intranet for those commands. However, NNCI 14-3 is also on file with the 

Center for Law and Military Operations (CLAMO).

55 NNCI 14-3, supra note 54, at 20.

56 Id.

57 Id.

58 DoDD 3025.18, supra note 1, at para. 2.c.; see also U.S. DEP’T. OF DEF., DIR. 5100.46, FOREIGN DISASTER RELIEF (6

July 2012) [hereinafter DoDD 5100.46]; and JOINT CHIEFS OF STAFF, JOINT PUB. 3-29, FOREIGN HUMANITARIAN 

ASSISTANCE (3 Jan. 2014) [hereinafter JP 3-29].
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DoD (Title 10) forces involved in DSCA operations may conduct incident awareness and 

assessment (IAA). IAA is similar to intelligence, surveillance, and reconnaissance (ISR) operations 

used by DoD forces in combat. However, the differences are material as expressed through the next 

several paragraphs.

ISR is “an integrated operations and intelligence activity that synchronizes and integrates the 

planning and operation of sensors, assets, and processing, exploitation, and dissemination systems 

in direct support of current and future operations.” 59 Therefore, ISR is an integrated intelligence 

and operations function that is conducted by using intelligence assets, systems, resources, or 

capabilities consisting of platforms and packages. 

Incident Awareness and Assessment (IAA) is a subset of ISR because it constitutes the domestic use 

of ISR assets and capabilities for DSCA purposes. Based on the same concepts as ISR, IAA differs 

in its geographic scope, governing laws, and regulations. Further, IAA is a term of art used only 

during domestic operations. Because IAA only occurs domestically, it is also a subset of Domestic 

Imagery (DI), and subject to all DI rules and policies. IAA is the DoD’s term for ISR-type 

operations conducted during DSCA operations in the Homeland. So, when you read “IAA,” think 

ISR in CONUS, employed only for DSCA purposes. National ISR resources are limited and

allocated among the combatant commands. In like fashion, IAA assets are limited as well. For this 

reason, IAA assets should only be used when necessary. Finally, because IAA is a is only 

employed to support DSCA, and is not used in Homeland Defense (HD) operations, when 

intelligence activities are conducted during HD, those activities are considered to be ISR, not IAA. 

For this reason, ISR conducted within the United States is strictly regulated and requires specific 

SecDef approval on a case-by-case basis.

Since, by definition, IAA uses intelligence assets, platforms, capabilities and databases,

60 it is 

subject to IO restrictions, and any additional limitations imposed by SecDef or the Combatant 

Commander. In the instances when there is no intelligence interface, then IAA does not exist. 

Instead, there is only DI capture subject to Sensitive Information rules, the Privacy Act, Civil 

Liberties considerations, and the Fourth Amendment. ISR, IAA, and DI are different tools for 

different missions. 

Because IAA and its relationship to ISR can be confusing, the following formulaic explanations and 

bullet points are offered:

Intelligence, Surveillance, & Reconnaissance (ISR) = Collection of foreign intelligence (FI) + 

counterintelligence (CI) information/imagery

• ISR is conducted outside the U.S. and its territories, or inside the U.S. in support of 

Homeland Defense operations;

• Any domestic use of ISR requires SecDef approval of each mission and all assets used;

• Any DI missions including ISR require a Proper Use Memorandum (PUM) approved by 

Higher Headquarters (HHQ);

 59 U.S. DEP’T OF DEF., DOD DICTIONARY OF MIL. AND ASSOCIATED TERMS 116 ( Apr. 2018) [hereinafter DoD Terms]. 

60 NNCI 14-3, supra note 54, at 19.
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• All domestic ISR missions are subject to Intelligence Oversight (IO) limitations on 

collection of information on U.S. Persons.

61

Domestic Imagery (DI) = Collection of Imagery within the U.S. and its territories that may or may 

not involve use of DoDICC:

• A Domestic Imagery Legal Review (DILR) is required if no DoDICC are used;

• All DI is subject to limitations on collection of information on persons not affiliated with 

DoD (NDAPs), the Privacy Act, Civil Liberties considerations, and Fourth Amendment 

rules. 62

Incident Awareness and Assessment (IAA) = DI using DoDICC for DSCA missions:

• To determine applicability of IO Program rule sets, use the “5 Ps” test: People, Pipes 

(uplink, downlink), Process, Platforms, and Purpose;

• All IAA missions require SecDef approval;

63

• All IAA missions require a Proper Use Memorandum (PUM) approved by HHQ;

64

• All IAA missions are subject to IO limitations on collection of information on U.S.

Persons.

65

4. Domestic Imagery and Sensitive Information Programs (DoDD 5200.27 and AR 380-13)

Consider this scenario: 

Your operations center is full of people passing reports and DI around various work 

stations. Some individuals are intelligence technicians and analysts, some are 

operations personnel, and others are DoD law enforcement. All personnel have been 

mobilized under the DSCA EXORD. The intelligence personnel are using their 

technical expertise to assist in the interpretation of DI captured in a disaster zone, 

and they are doing so in non-intelligence capacities for other than traditional 

intelligence purposes. 

Which Oversight Rules will apply, and to whom and with respect to DI?

If DI is being captured, processed, exploited and disseminated by the DoD for non-intelligence 

purposes, and the activities are conducted by personnel not within the command and control of an 

intelligence organization or unit, then DoDD 5200.27 and all related regulatory authorities apply. 

 61 E.O. 12333, supra note 8.

62 DoDD 5200.27, supra note 9.

63 DSCA EXORD, supra note 45, at paras. 3.C.4.J.1, 3.B.5., and 3.I.10.C.

64 NNCI 14-3, supra note 54, at para. 2.5. 

65 DSCA EXORD, supra note 45, at paras. 3.C.4.J.1., and 3.I.10.A.
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Therefore, non-DoDIC produced DI, or DI produced for non-intelligence purposes, is always

subject to DoDD 5200.27 and AR 380-13. 

Another real-world example of this situation may be illustrative:

During DSCA operations after a natural catastrophe, ingress and egress routes to 

establish lines of communication are critical to relief efforts. The Joint Operating 

Area (JOA) commander, an active component officer, desires to get an aerial view of 

the routes. To do so, the commander wants to use rotary wing platforms from Title 

10 assets. Rotary wing assets available with the National Guard are another 

alternative. The Chief of Staff and the Operations Officer are available to advise the 

commander. However, they are not intelligence personnel. Once airborne, the JOA 

commander wants to use a U.S. Government smartphone to take photographs of 

possible routes and of the general area for purposes of situational awareness and 

damage assessment. The commander turns to you and asks your opinion. What do 

you say?

As long as the photographs are not used for intelligence purposes (FI or CI), and no intelligence 

assets, personnel or databases are used to process any images or reports, only DoDD 5200.27 and 

AR 380-13 will come into play. However, if the DSCA mission is being conducted in support of, or 

under direction by, USNORTHCOM, a Domestic Imagery Legal Review (DILR) will be required to 

be accomplished before the mission is flown.66

Specifically, a DILR is a memorandum submitted by an organization’s Certifying Government 

Official and reviewed by its legal advisor for proper use of domestic imagery collection that does 

not include use of DOD intelligence component capabilities. The imagery user organization should 

submit the DILR to NORAD and USNORTHCOM Collection Management (N-NC/J23M) for 

approval that defines their requirements, the intended use of the imagery, and contains a proper use 

statement which acknowledges awareness of the legal and policy restrictions regarding domestic 

imagery.67 In so doing, DILRs certify compliance with basic DI rules IAW DoDD 5200.27, and 

other pertinent regulatory authority. Recall also that a DILR does not constitute authority to collect 

domestic imagery; there it should specify what the authority is to collect the imagery, the location

of the imagery and its intended use, analysis or exploitation of the imagery, retention of the 

imagery, security and declassification review of the imagery (if required), authorized recipients of 

the imagery, and any further restrictions on dissemination of the imagery, and it will certify 

compliance with legal and policy requirements.68 Whenever possible, the DILR should state 

whether the imagery will be used in briefings or publications and identify the likely audiences.69 

The proper completion and filing of a DILR is necessary to create accurate and timely audit trails 

ensuring the DI captured and its dissemination does not violate DODD 5200.27 or AR 380-13, 

while conforming to a proper use statement, which acknowledges awareness of the legal and policy 

restrictions regarding capture of the domestic imagery.

 66 NNCI 14-3, supra note 54, at paras. 2.5, 2.5.3, 2.6 -2.8, 2.11, 3.1-3.3, and Attachment 4.

67 Id. at Attachment 1.

68 Id. at para. 2.5.3.

69 Id. at para. 2.6.
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5. Domestic Imagery Summary

While DI rules, regulations and procedures may seem complex, and at times, counterintuitive, they 

are formulated to ensure that the maximum protection of privacy and Constitutional rights is 

afforded to U.S. Persons and NDAPs during the conduct of domestic imagery capture missions 

within the United States and its territories. Here are some notes to try to keep it all straight: 

Any time any form of air or space-borne imagery is captured within the United States, its territories 

or protectorates, the imagery and/or data is considered Domestic Imagery (DI), and certain pertinent 

program rules will apply. Depending on who is conducting the DI capture, how it is collected, 

processed, exploited, analyzed or disseminated and for what purpose, will indicate which oversight 

program(s) and legal restrictions must be followed. When DoDIC resources are involved in the DI 

production process, Intelligence Oversight rules will apply. If the DI capture does not involve the 

DoDIC, then Sensitive Information program rules apply.

As a general rule, whenever members of the DoD are involved in the collection of intelligence for 

intelligence purposes that could affect the privacy or Constitutional rights of U.S. Persons, 

Intelligence Oversight rules apply. Whenever members of the DoD are involved in the acquisition 

of information for non-intelligence purposes that could affect the privacy or Constitutional rights of 

NDAPs (for non-intelligence purposes), Sensitive Information Program rules (DoDD 5200.27 and 

AR 380-13) will apply. Regardless of situation, unless otherwise authorized by law, whenever a 

DoD action involves collection of intelligence, one of the programs will apply.70

E. 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 or providing situational awareness. Notwithstanding, 

the National Guard does not generally conduct domestic intelligence operations. Primarily, 

domestic intelligence involving U.S. persons is a law enforcement matter and is the responsibly of 

State/local law enforcement and the FBI. The Joint Force Headquarters at the State (JFHQ-State) 

will have an Intelligence officer (J2) that is responsible for coordinating intelligence requirements 

for intelligence preparation of the environment (IPE) in support of State and Federal missions. The 

J2 serves as the State’s executive agent for foreign threat information sharing between the local, 

State, and the national levels to ensure situational awareness and a common operating picture 

(COP). The J2 also interprets, develops, and implements intelligence and security guidance and 

policy for the JFHQ-State. The National Guard judge advocate must work in conjunction with the 

J2, and the Inspector General for Intelligence Oversight (IG-IO) in reviewing all intelligence plans, 

proposals and concepts, to include Proper Use Memoranda (PUMs – the use of which is explained 

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 

 70 Conflict has arisen between the new DoDM 5240.01 and the CJCS 2013 Standing DSCA EXORD. The new manual 

has created an exclusion for DSCA operations. Specifically, it states that DoDM 5240.01 is inapplicable to such 

activities because DoDIC resources and personnel used during a DSCA operation are not being used for intelligence 

purposes. (See Section 3, paragraph 3.1.a.(3)(b).) However, the CJCS 2018 Standing DSCA EXORD consistently 

orders that Intelligence Oversight program rules are applicable to all IAA activities. (see, e.g., paragraphs 3.A.7., and 

3.l.). 
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person doing the collecting; 2) whether that person is operating as part of an intelligence activity; 3) 

how the information is being collected; and, 4) the purpose behind the collection.

1. Status: State Active Duty, Title 32 or Title 10

National Guard personnel can serve in three statuses: State Active Duty (SAD), Title 32, or Title 10, 

as explained in detail in Chapter 3. A Soldier’s status has a direct impact on the authorities at issue 

regarding the collection of information on a U.S. Person. Therefore, this determination must be 

made first.

Members of the National Guard perform their normal “drills” and “annual training” under Section 

502(a) of Title 32.71 When an emergency or disaster occurs within a State, the State’s National 

Guard may be called upon to provide civil support (National Guard Civil Support, NGCS; not to be 

confused with DSCA. Because the disaster or emergency is first the State’s responsibility, versus 

that of the Federal Government, the Governor may not initially call up the National Guard in their 

T-32 status without the approval of SecDef.72 Instead, the State’s Governor or The Adjutant 

General (TAG) may call up members of the National Guard to provide civil support by placing 

them in State Active Duty (SAD) status. With that said, there is another option under Title 32. 

Pursuant to Section 502(f) of Title 32, the National Guard may perform “additional training other 

duty” for their Federal mission or provide “operational support” as directed by POTUS or SecDef 

but with the concurrence of the State’s Governor.

73 In this status, and subject to the proper 

authorities, the National Guard may be called upon to support a Federal DSCA mission.74 The 

State’s Governor retains command and control authority. National Guard status under Section 

502(f) should not be improperly referred to using the blanket term “Title 32 status” because such a 

reference is misleading and often leads to confusion. Instead, the proper sections of Title 32 should 

be used. As noted above, status under Section 502(a) is materially different from status under 

Section 502(f) in both purpose and approval authority. 

Finally, the National Guard may be called into the service of the United States under Title 10 of the 

United States Code. In this instance, National Guard personnel fall under Federal command and 

control. As stated previously, USNORTHCOM has separate IO rules and processes in place that 

must be considered for Title 10 missions.

 71 32 U.S.C. § 502(a) (2012) (“(a) under regulations to be prescribed by the Secretary of the Army or the Secretary of 

the Air Force, as the case may be, each company, battery, squadron, and detachment of the National guard, unless 

excused by the Secretary concerned, shall (1) assemble for drill and instruction, including indoor target practice, at least 

48 times each year; and (2) participate in training at encampments, maneuvers, outdoor target practice, or other 

exercises, at least 15 days each year.”).

72 U.S. DEP’T OF DEF., INST. 3025.22 THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL AUTHORITIES 

para. 3.f.1. (26 July 2013) (C1, 15 May 2017) [hereinafter DoDI 3025.22].

73 32 U.S.C. § 502(f) (2012) (“(f)(1) Under regulations to be prescribed by the Secretary of the Army or Secretary of 

the Air Force, as the case may be, a member of the National Guard may (A) without his consent, but with the pay and 

allowances provided by law; or (B) with his consent, either with or without pay and allowances; be ordered to perform 

training or other duty in addition to that prescribed under [section 502(a)]. (f)(2) The training or duty ordered to be 

performed under paragraph (1) may include . . . (A) Support of operations or missions undertaken by the member’s unit 

at the request of the President or Secretary of Defense.”). 

74 DoDI 3025.22, supra note 72, at paras. 3.d., and 3.e.
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Members of the NG intelligence community serving in a SAD or Title 32 status are not included in 

the definition of DoDIC, and therefore are technically not regulated by IO. The Chief of the 

National Guard Bureau established an IO policy that applies to all members of the National Guard 

serving in Title 32 status.75 This IO policy requires that National Guard intelligence personnel 

operating in a Title 32 as members of the DoD intelligence component, must also “comply with all 

DoD guidance and Federal laws applicable to the component, including all intelligence oversight 

(IO) rules.”76 Furthermore, the National Guard’s Inspector General Intelligence Oversight policy 

recognizes that while National Guard intelligence personnel operating in a SAD status are not 

members of the DoDIC, they are limited by their State law—to include State privacy laws—and are 

“prohibited from using DoD intelligence resources and equipment while in a SAD status.”77 In 

most States, the collection, use, maintenance, and dissemination of information related to 

individuals by State agencies is strictly regulated. Therefore, the practical affect is that even in a 

SAD status, and unless authorized by law, members of the National Guard cannot collect 

information on U.S. Persons.78

In addition to being prohibited from prohibited from using DoD intelligence resources and 

equipment while in a SAD status, unless authorized by SecDef or SecDef’s designee, National 

Guard personnel in a SAD status are also prohibited from: 1) engaging in DoD intelligence 

operations; and 2) gaining access to access DoD classified systems (SIPRnet/JWICS - Joint 

Worldwide Intelligence Communication System) or equipment (MQ-1, border sensors).79 Further, 

National Guard personnel while in a SAD status may only access classified information if 

sponsored by a Federal executive agency pursuant to E.O. 13549. This includes National Guard 

personnel with a DoD security clearance. 

2. Collection via an Intelligence Activity

The responsibilities of the National Guard member, not the AFSC/MOS or duty title per se, 

determine whether they are part of an “intelligence activity.” Many States will either reassign 

intelligence personnel to a non-intelligence mission to assist the J34 force protection section, or will 

assign them to a unit that is specifically tasked to assist local law enforcement and authorized to 

provide intelligence support—such as the NG Counter Drug Units operating under 32 U.S.C. § 112 

authority. While serving in a non-intelligence role, these individuals should not have access to 

intelligence-related equipment.

If the person collecting the information is a part of the intelligence activity and is conducting 

missions as a member of an intelligence activity without separate special authority, then the person 

must follow the rule for IO as provided in section B of this chapter. If the person is not collecting 

the information as part of, or for, an intelligence activity then the person must follow rules for the 

handling of U.S. Person information as provided in section C of this chapter.

 75 CNGBI 2000.01C, supra note 5; CHIEF, NAT’L GUARD BUREAU, MANUAL 2000.01 NATIONAL GUARD INTELLIGENCE 

ACTIVITIES para. 2 (26 Nov. 2012) [hereinafter CNGBM 2000.01].

76 CNGBI 2000.01C, supra note 5, at para. 4.

77 CHIEF, NAT’L GUARD BUREAU, INST. 0700.01 INSPECTOR GENERAL INTELLIGENCE OVERSIGHT encl. A, para. 1.h (9 

June 2013) [hereinafter CNGBI 0700.01].

78 CNGBI 2000.01, supra note 5, at para. 4.e.

79 Id. at 4.d.
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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 counter- and foreign- intelligence 

related missions unless separate authorizations have been granted. This equipment therefore may 

only be operated by NG intelligence personnel serving in a Title 10 or Title 32 status. States 

wishing to utilize this equipment for other than counter- and foreign- intelligence purposes must 

request authorization from SECDEF or his designee. Legal review by the Office of the Chief 

Counsel at NGB is required prior to such authorizations. Military intelligence equipment includes, 

but is not limited to, JWICS (Joint Worldwide Intelligence Communication System) and ASAS-L 

(All Source Analysis System-Light).

The National Guard has a variety of Incident Awareness and Assessment80 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 PUM prior to collection.81 These PUMs must be in accordance 

with applicable Defense Intelligence Agency (DIA) policy, “Proper Use Statements for Domestic 

Imagery.” The NGB-J2 publishes a PUM handbook to assist JFHQ-J2s on the protocol for 

submitting a PUM. National Guard judge advocates are responsible for reviewing these PUMs for 

 80 Incident awareness and assessment (IAA) is the use of intelligence, surveillance and reconnaissance (ISR) DoD 

intelligence capabilities for domestic non-intelligence activities approved by the SecDef, such as search and rescue 

(SAR), damage assessment and situational awareness.

81 Note CNGM 2000.01 allows an exception for SAR whereby the PUM is filed after mission conclusion. 
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201 Intelligence Oversight and Information Handling

compliance with Federal and State law and National Guard policy (Diagram 2 outlines 

determination process as to whether a PUM is required).

Diagram 2

4. Purpose of the Collection

A judge advocate must also determine whether information is being collected for an intelligence 

purpose or whether it is being collected to help the commander gain situational awareness. As 

mentioned earlier, information is often acquired in response to a National Guard commander’s need 

to establish a common operating picture. If the information is for situational awareness, then the 

judge advocate should assist the command by helping shape the collection such that it is limited to 
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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. It is necessary to carefully 

document the roads. Therefore, the recommendation can be to remind the collector not to focus on 

specific PII.

The chart below illustrates the proper flow of information to remain compliant with IO regulations. 

It depicts how the State’s J2 and Provost Marshall share and handle sensitive information in 

accordance with both IO regulations and DoDD 5200.27.

5. Dissemination

DoDM 5240.01, Sec 3, Procedure 4 governs the dissemination of USPI collected or retained by an 

intelligence component. Generally, information may be disseminated to a variety of organizations 

if it was properly collected or retained. Dissemination to “Other DOD Elements”, “Other Federal

Government Entities”, and “State, Local, Tribal, or Territorial Governments” is permissible if the 

recipient is reasonably believed to have a need to receive such information for the performance or 

its lawful missions or functions. 

F. Judge Advocate Responsibilities

Judge advocates are responsible for the following: advising the commander and staff on all 

intelligence law and oversight matters within their purview; advising on the permissible acquisition 

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
Domestic Operational Law Handbook 2018

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203 Intelligence Oversight and Information Handling

and dissemination of information on non-DoD affiliated persons and organizations; recommending 

legally acceptable courses of action; establishing, in coordination with the Head Intelligence Officer 

(J-2/G-2/S-2/N-2) and the Inspector General (IG), an intelligence oversight program that helps 

ensure compliance with applicable law and policy; reviewing all intelligence plans, proposals, and 

concepts for legality and propriety; and training members of the command who are engaged in 

intelligence activities on all laws, policies, treaties, and agreements that apply to their activities.

In order to properly perform these duties, judge advocates advising commanders on collecting 

intelligence and information should know and understand a variety of key types of information. 

Judge advocates must be familiar with the missions, plans, and capabilities of subordinate 

intelligence units, and all laws and policies (many of which are classified) that apply to their 

activities. At a minimum, judge advocates should be familiar with the restrictions on the collection, 

retention, and dissemination of information about U.S. persons and non-DoD persons and 

organizations, the approval authorities for the various intelligence activities performed by 

subordinate units, and the requirement to report and investigate questionable activities and certain 

Federal crimes.82 Judge advocates must also be familiar with the jurisdictional relationship between 

intelligence and counterintelligence activities as well as the parallel jurisdictions of force protection 

and law enforcement activities. Finally, judge advocates should establish close working 

relationships with the legal advisors of supporting intelligence agencies and organizations, all of 

whom can provide expert assistance.

G. Conclusion

This chapter has but scratched the surface of Intelligence Oversight and Sensitive Information 

processes and authorities. The two programs are separate and independent, although in an era of 

domestic operational up-tempo, the lines between the two are becoming blurred because the 

distinctions between intelligence and information have become equally blurred. Which program 

applies depends on the user, the user’s mission, the type of information or intelligence being used, 

whether U.S. Persons or NDAPs are identified, and what will be done with the information. Judge 

advocates must be aware of these distinctions and know where answers may be found to the 

difficult questions posed by commanders. Familiarity with, and understanding of, this chapter is a 

good start, but it is only the beginning. A careful review of all referenced materials is therefore 

suggested. See Table 1 for a summary of the applicable DoD policies referenced in this chapter.

 82 DoD 5240.1-R, supra note 6, Procedure 15.
Domestic Operational Law Handbook 2018

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Intelligence Oversight and Information Handling 204

Table 1
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205 Intelligence Oversight and Information Handling
Domestic Operational Law Handbook 2018

Chapter 10

RUF for Federal Forces 206

CHAPTER 10

RULES FOR THE USE OF FORCE (RUF) FOR FEDERAL

FORCES

KEY REFERENCES:

• U.S. CONST. art. II, § 1–3 (Executive, Commander in Chief, and Execution of the Laws 

Clauses, respectively).

• U.S. CONST. amend. IV.

• U.S. CONST. amend. V.

• U.S. CONST. amend. VIII.

• 10 U.S.C. §§ 251–255 - The Insurrection Act.

• 10 U.S.C. § 12301 - Reserve Components Generally.

• 18 U.S.C. § 242 - Deprivation of Rights Under Color of Law.

• 18 U.S.C. § 1385 - Posse Comitatus Act.

• 50 U.S.C. § 2301 et seq. - Defense Against Weapons of Mass Destruction Act.

• Pub. L. No. 105-277 (Omnibus Consolidated and Emergency Appropriations Act 1999), Section 

101(h), as amended by Pub. L. No. 106-58, Title VI, Section 623, Sept. 29, 1999.

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

Forces, June 13, 2005 (S). *** 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.*** 

• DoD Directive 5210.56, Arming and the Use of Force, November 2018, 2016

• AR 190-14, Carrying of Firearms and the Use of Force for Law Enforcement and Security 

Duties, March 12, 1993.

• Current Policies Concerning the Use of Deadly Force.FORSCOM Augmentation Forces to 

Designated AMC and ATEC Sites.

• FORSCOM and USARC Force Protection OPORDs.

• DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, Encl. 4 (DoD Support 

of Civil Disturbance Operations), February 27, 2013.

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 document is classified overall Secret, however the 

portions discussed and referenced in this chapter are unclassified.

Per CJCSI 3121.01B, the SRUF also apply to land-based homeland defense missions within the 

United States and its territories. With respect to personnel, the SRUF apply to DoD forces, 

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 (SAD) or Title 32 status. For information concerning National Guard rules for the use of
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207 RUF for Federal Forces

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. 

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.1

 

Use of force practice is one of the areas in which the legal competence of judge advocates can have 

potential life or death consequences for service-members and civilians. Therefore, it is vital that 

judge advocates understand and apply appropriate legal and practical considerations when 

practicing in this area. 

This chapter will provide the reader with an introduction to use of force and its key legal references. 

It will discuss the role of judge advocates in use of force training and implementation, the practical 

realities involved in use of force incidents that are often not included in legal references, the legal 

standard for Federal use of force, the existing Army policies on use of force, and the potential legal 

liability involved in use of force. 

B. The Judge Advocate’s Role in the Use of Force

Judge advocates 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 

 1

 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. 
Domestic Operational Law Handbook 2018

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RUF for Federal Forces 208

routine force protection and installation law enforcement activities. Many judge advocates will 

need to train service-members on domestic operational RUF or use of force policies for law 

enforcement and security operations. Judge advocates advise units executing domestic operations, 

and will also advise on or review investigations into incidents involving the use of force by a 

service-members. Judge advocates may be involved in civil or criminal proceedings for a use of 

force incident as a trial counsel, trial defense counsel, Special Assistant U.S. Attorney, or as an 

attorney assisting in defensive Federal litigation involving his or her respective service.

Judge advocates may also be called upon to draft mission-specific RUF. There are differing 

opinions as to whether judge advocates should be tasked with directly drafting RUF, or if they 

should simply handle their review. The fact remains, commanders may task an attorney to draft 

RUF directly, so judge advocates should be prepared to do so. Executing this task should be done 

in coordination with the unit staff, to include law enforcement professionals (when applicable), and 

higher headquarters.

In drafting or reviewing RUF, judge advocates have to understand both the substantive law that 

governs the use of force, as well as the procedures necessary to modify the SRUF. Efforts to either 

augment or restrict the current SRUF must follow precise staffing requirements, and, in the case of 

augmentation, require advanced planning and should be initiated (if not already done by higher 

headquarters) as soon as the need is identified.2 

Judge advocates performing these duties must know the controlling law for domestic use of force. 

For operations in areas subject to U.S. jurisdiction, the appropriate constitutional law standards as 

interpreted by the courts and the executive branch regulate the use of force. As important, the 

policies or RUF issued by higher headquarters further define the legal requirements for use of force. 

RUF drafters involved in planning or executing a domestic operation should consider critical factors 

that are similar to those involved in SROE development. These factors include the following.

• What is your mission and your commander’s concept of operation?

• What type of unit is involved, what weapons and equipment, if any, will be deployed, and what 

is the level of training of members with the assigned weapons?

• What threat could your command face?3

• 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?

 2

 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.

3

 Judge advocates should consider basing their draft SRUF and legal guidance on the worst feasible scenario. For 

example, attorneys often advise on detention or migrant and refugee camp operations. In most cases, no one expects the 

detainees to violently riot. Unfortunately, rioting can occur in extended detention operations. Structuring your SRUF 

assuming the detainees will passively comply will leave your security force without adequate guidance on how to 

respond to an emergency situation should they face one.
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209 RUF for Federal Forces

• 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?4

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 

Due to the understandable focus on overseas missions, many Title 10 service-members do not 

receive extensive training on the types of confrontations that are involved in domestic operations.5

 

Because of limited exposure to domestic missions, to include training focused in this area, servicemembers may require further tactical marksmanship and close quarters training in order to 

effectively and appropriately respond to domestic threats or how to employ lesser means of force 

competently. 

Many service-members have not been trained on domestic law applicable to the use of force and, as 

a consequence, do not understand many of the policy requirements imposed by DoD or their 

service.6

 Additionally, service-members may also not be sufficiently experienced in applying 

deadly vs. non-deadly techniques. Judge advocates should assist commands in ensuring members 

 4

 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.

5

 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.

6

 Military police and special operations Soldiers may be part of general population in the Army that routinely learn and 

understand these rules due to the nature of their missions.
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RUF for Federal Forces 210

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 conscious of 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 (as an example) can specifically flow from an 

effort to reconcile portions of AR 190-14, Carrying of Firearms and Use of Force for Law 

Enforcement and Security Duties7

 with the SRUF. The SRUF applies broadly both on and off 

installations and specifically provides that its provisions apply to “DoD forces, civilians and 

contractors performing law enforcement and security duties at all DoD Installations.”8

 AR 190-14, 

Chapter 3, was revised in 1993 to synchronize with the use of force guidance contained in a 

contemporary publication of DOD Directive 5210.56. Subsequently, the use of force guidance 

contained in DoDD 5210.56 was specifically superceded by the SRUF.9

 Additionally, DOD 

Directive 5210.56 has subsequently revised several times, the latest update occurring in November, 

 7

 U.S. DEP’T OF ARMY, REG. 190-14, CARRYING OF FIREARMS AND USE OF FORCE FOR LAW ENFORCEMENT AND 

SECURITY DUTIES (12 Mar. 1993).

8

 CJCSI 3121.01B, supra note 2, para. 1.a.

9

 CJCSI 3121.01B, supra note 2, para. 1.b.
Domestic Operational Law Handbook 2018

Chapter 10

211 RUF for Federal Forces

2016. Judge advocates advising in a variety of areas related to law enforcement and security 

missions to include the development of provisions for contract security forces need to be aware of 

this disconnect between AR 190-14 and the SRUF. They also must do due diligence to ensure that 

the most updated regulations, directives, and authorities are used. When the provisions two or more 

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.10 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.11 The authority to order 

the military to defend the homeland against international aggression can be found in the President’s 

authority as the Commander in Chief.12 Finally, the President’s authority to order the military to 

execute DSCA operations (Defense Support of Civil Authorities)13 to enforce Federal law is based 

on the President’s duty to execute the laws.14 As officers of the Executive Branch, servicemembers conduct operations and derive authority from the President’s constitutional authorities.15 

Whenever the military uses force to execute the orders of the President or those he appoints, that 

use of force must be based on constitutional authority.

All Executive Branch uses of force are balanced against the civil rights of the public. While three 

primary provisions of the Bill of Rights limit Federal use of force in domestic operations, the main 

focus is on the Fourth Amendment.16 The constitutional standard is whether the use of force 

 10 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.

11 U.S. CONST., art. II.

12 Id.

13 U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb. 

2013). See also, U.S. DEP’T OF DEFENSE, DIRECTIVE 3025.18, DEFENSE SUPPORT TO CIVILIAN AUTHORITIES (29 

Dec.2010).

14 U.S. CONST., art. II.

15 See e.g., In Re Neagle, 135 U.S. 1 (1890).

16 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.
Domestic Operational Law Handbook 2018

Chapter 10

RUF for Federal Forces 212

violates the Fourth Amendment prohibition against unreasonable seizures.17 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.18 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.19

The courts have long recognized the authority to use force, including deadly force, in the 

performance of Federal governmental duties.20 Judge advocates must know the limits of the 

mission and how the commander intends to execute this mission in order to advise on the RUF that 

support the operation. This makes the mission analysis portion of planning critical. The phrasing 

of Operations Orders or other directives that define the mission and operation are vital to defining 

the limits of this authority.

Judge advocates involved in drafting mission specific RUF should carefully consider where to 

balance the interests of force protection and the lives of service-members against the important 

interest of not risking an excessive use of force incident involving the military. Further, judge 

advocates involved in the development of RUF training must be careful that the training does not 

introduce procedures that introduce tactically dangerous or unsound practices.

Such errors can occur because judge advocates are mistaken in their understanding of the law or 

less familiar with the application of the RUF. Specifically, judge advocates should never apply Law 

of War to the domestic law on the use of force.21 Likewise, judge advocates should not confuse the 

law of individual self-defense of a private individual with the authority of self-defense for 

government officials.22

 17 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 . . . .”

18 Graham v. Connor, 490 U.S. 386 (1989).

19 Id. (emphasis added).

20 In Re Neagle, 135 U.S. 1 (1890).

21 As discussed above, the underlying substantive law applicable to domestic governmental use of force is the 

Constitution, not the Law of War. 

22 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 
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213 RUF for Federal Forces

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.”23 The SRUF further states that, “Deadly force is to be used only when all 

lesser means have failed or cannot be reasonably employed.”24 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.25

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.26 Nor do courts require the use of feasible lesser force 

alternatives to avoid the use of justified deadly force.27 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.28

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.

29 The SRUF does not specifically require a verbal warning but does state that “[w]hen 

time and circumstances permit, the threatening force should be warned and given the opportunity to 

withdraw or cease threatening actions.30 Although the type of warning that should be given is not 

specifically established, it cannot take the form of a warning shot.31 Exceptions to the restriction on 

warning shots general apply to Naval vessels; Navy as well as Coast Guard authorities should be 

consulted to determine the application, if any, of such exceptions.

 level of a private citizen under State law. This is a significant (and unnecessary) concession of otherwise lawful 

defensive authority. Conversely, as of the publishing of this documents, some States have pending litigation regarding 

the application of so-called “stand your ground” laws and whether they apply to law enforcement. 

23 CJCSI 3121.01B, supra note 2, Encl. L, para. 5.b.1.

24 Id. para. 5.c.

25 Id. para. 5.b.1.

26 See e.g., O’Neal v. DeKalb County, Ga., 850 F.2d 653, 666 (11th Cir. 1988).

27 See e.g., Deering v. Reich, 183 F.3d 645, 652–53 (7th Cir. 1999).

28 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.

29 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.

30 CJCSI 3121.01B, supra note 2, Encl. L para. 5.a.

31 Id. para. 5.b(3). There are some limited exceptions to this restriction, but these exceptions are unlikely to be 

encountered by most U.S. Army personnel.
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RUF for Federal Forces 214

3. Denial of Deadly Force in Self-Defense

Federal courts do not require that service-members who are not armed in the course of their duties 

be denied the authority to use deadly force in their own defense. Some commanders and judge 

advocates believe that if there is no authority to arm service-members, then there is no authority to 

use deadly force. This presumption is not imposed by Federal law. In reference to self-defense, 

however, judge advocates must ensure that service-members, acting as part of a unit, understand 

that the SRUF specifically provides that the individual right of self-defense may be restricted. This 

is rationalized by stating that when “individuals are assigned and acting as part of a unit, individual 

self-defense should be considered a subset of unit self-defense. As such, commanders may limit 

individual self-defense by members of their unit.”32

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. 

a. Inherent Right of Self-defense

As discussed above, unit commanders always retain the inherent right and obligation to exercise 

unit self-defense in response to hostile acts or demonstrated hostile intent. Unless otherwise 

directed by the unit commander, service-members may use deadly force when it appears reasonably 

necessary to respond to a hostile act or demonstrated hostile intent. Individual self-defense is a 

subset of unit self-defense and as such may be limited by the unit commander when an individual 

service-member is acting as part of a unit. Unit self-defense includes the defense of other DoD 

forces in the vicinity.

b. Defense of Others

The use of deadly force extends to the use of force to defend other non-DoD persons in limited 

circumstances. Service-members may use deadly force in defense of non-DoD persons who 1) are 

in the vicinity when there is probable cause to believe the target of that force poses an actual or 

imminent threat of death or bodily harm, and 2) when the use of force is directly related to the 

assigned mission.33

 32 Id. para. 4.a.

33 Id. para. 5.c.2. See also, U.S. DEP’T OF DEFENSE, DIRECTIVE 5210.56, ARMING AND THE USE OF FORCE (18 Nov. 

2016).
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215 RUF for Federal Forces

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.34 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.35 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.36 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. As a reminder, if a subordinate commander chooses to 

emplace restrictions that go beyond the mission-specific RUF that was issued by a higher command, 

notification of these restrictions up to the Secretary of Defense is required per the SRUF.

e. National Critical Infrastructure37

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.

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 

 34 Id. para. 4.e.

35 Id. para. 4.f.

36 Id.

37 Id. para. 4.g.
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lesser means have failed or cannot reasonably be employed.”38 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.39

b. Escape40

Service-members may use deadly force when it appears reasonably necessary to prevent the escape 

of a prisoner, provided there is 1) probable cause to believe that the prisoner committed or 

attempted to commit a serious offense involving the infliction or threatened infliction of serious 

physical injury or death; and 2) that escape of the subject would pose an actual or imminent threat 

of death or serious bodily harm to DoD personnel or others in the vicinity. Serious offense is 

defined as one that involves an imminent threat of death or serious bodily harm, or an offense that 

would pose an imminent threat of death or serious bodily harm to DoD forces or others in the 

vicinity.

c. Arrest/Apprehension of Persons Believed to have Committed a Serious Offense41

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.42 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 of Defense must be 

notified through the Joint Staff. When confronted with time critical situations, commanders can 

notify the CJCS and the Secretary of Defense concurrently, or if not possible, may notify the CJCS

as soon as possible after the Secretary of Defense notification.43

 38 Id., paras. 5.c & 5.d.

39 Id., para. 5.d.1.

40 Id., para. 5.d.2.

41 Id., para. 5.d.3.

42 Id., para 3.a.

43 Id., para. 3.b.
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217 RUF for Federal Forces

F. Liability for Service-Members, Leaders, and RUF Drafters in Use of Force Situations

Service-members, their leaders, and the planners who draft the RUF for domestic operations face 

potential personal liability for any unlawful use of force by a service-member during a domestic 

operation. This includes Federal or State civil or criminal proceedings after an incident. In 

addition, such incidents are often accompanied by a variety of investigations that could result in 

adverse administrative consequences. Therefore, it is important that judge advocates be aware of 

this liability as they draft RUF, disseminate the RUF, and participate in training for and the 

execution of domestic operations under RUF. Appropriate attorney involvement can reduce the risk 

a member is unnecessarily exposed to the financial and emotional burdens of litigation.

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,

44 a civilian law enforcement case. There is caselaw concerning DoD civil support that 

addresses this issue. . One reported Supreme Court case (discussed below) involves an Army 

soldier and use of force against a civilian.45

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).46 But if the decision not to engage an 

otherwise lawful target was a result of a failure to train or the use of ill-conceived training materials, 

the U.S. Government could be found liable for negligence under the FTCA. 

a. The Application of Qualified Immunity

Judge advocates serving as advisors, investigators or litigators should understand that qualified 

immunity is a critical dispositive measure to forestall unnecessary burdens on the government and 

its representatives, and it can serve as a bar to trial. Pertinent case law provides guidance on how 

courts apply qualified immunity.

Saucier v. Katz, a 2001 Supreme Court decision, is a noteworthy case in the context of military 

support to domestic operations. Saucier, a Military Police officer assigned to protect the Vice 

 44 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. 

45 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.

46 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.47 (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.”48 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.49

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.50 As the SRUF specifically directs that commanders at all levels must train their 

 47 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.

48 Saucier, 533 U.S. at 194.

49 Pearson, 555 U.S. at 223.

50 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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219 RUF for Federal Forces

subordinates on the use of both deadly and non-deadly force,51 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.52

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.53

3. State Civil and Criminal Liability

Immunity from Federal liability (under the Supremacy Clause) will not always prevent a servicemember from having to face trial in State civil or criminal proceedings. In fact, in the “Ruby 

Ridge” use of force incident, a Federal officer was not granted immunity from a State criminal 

proceeding for the shooting of a civilian involved in an armed confrontation with the FBI.54

G. Other Trial or Litigation Issues

Judge advocates involved in post-use of force procedures and litigation should be prepared to 

address a number of other issues. First, be prepared to advise commanders on the many 

investigations that could occur. Second, be aware of their service’s procedures on civilian 

litigation. Finally, know that service-members potentially have less legal protection against use of 

force liability than a Federal law enforcement agent due not only to potential UCMJ liability, but 

also punitive administrative options.

Judge advocates should know that if a service-member kills or injures a civilian during a domestic 

operation, a number of agencies could initiate investigations of the incident that would affect both 

the service-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.55 Commanders 

 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.

51 CJCSI 3121.01B, supra note 2, Encl. L para. 1.b.

52 18 U.S.C. § 242 (2011).

53 For an comprehensive overview of the liability issues resulting from a Marine shooting that was authorized and 

proper under the Rules of Engagement (the correct term at the time) 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.

54 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.

55 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 303 (2012).
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and judge advocates should be aware that the following civilian investigations could occur in 

addition to their own service’s criminal and/or administrative investigation:

• An investigation by DOJ or the U.S. Attorney for potential Federal civil or criminal disposition;

• An investigation by State, county, or municipal law enforcement authorities for State criminal 

disposition; and

• An administrative investigation by 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,56 Air Force Instruction 51-301, Civil 

Litigation,57 Navy Instruction 5800.7D, and Manual of the Judge Advocate General (JAGMAN)58

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,59 provides guidance on the management of potential claims against the U.S. 

Government under a variety of theories and statutory authorities.60 Finally, they should contact the 

litigation divisions of their respective services for further information.

Finally, judge advocates need to recognize that service-members and commanders involved in use 

of force incidents may have less legal and practical protection than their counterparts in Federal law 

enforcement. Case law defining the role of service-members using force during Homeland Security 

operations is extremely limited. Many of the cases interpreting governmental use of force have 

expressly or impliedly based their interpretations of the “reasonableness” of the force on the law 

enforcement status of the Federal officers involved. These were qualified and credentialed law 

enforcement officers with clear statutory investigative jurisdiction and duties to uphold Federal law 

and confront criminals. Service-members performing non-traditional Homeland Security operations 

may not have the benefit of this well-defined case law. Finally, Congress has not extended 

immunity that is routinely applied to Federal law enforcement to military domestic operations.

61

 56 U.S. DEP’T OF ARMY, REG. 27-40, LITIGATION (19 Sep. 1994).

57 U.S. DEP’T OF AIR FORCE, INSTR. 51-301, CIVIL LITIGATION (20 Jun. 2002).

58 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).

59 U.S. DEP’T OF ARMY, PAM. 27-162, CLAIMS PROCEDURES (21 Mar. 2008).

60 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 between $1.3 and $1.9 

million dollars. See U.S. Settles with Family in Fatal Border Shooting, NY TIMES (August 12, 1998), available at 

http://www.nytimes.com/1998/08/12/us/national-news-briefs-us-settles-with-family-in-fatal-border-shooting.html.

61 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 
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221 RUF for Federal Forces

H. Training of Judge Advocates

Ideally, attorney training should include the study of executive, congressional, and judicial 

authorities and constraints on the use of force by government and military personnel, and tactical 

skills training using both lethal and non-lethal measures. Leaders should seek opportunities for 

their judge advocates to obtain basic training in the deployment of weapons in tactical engagements 

under the RUF vs. the extensive training based on the ROE/LOAC.62 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.

 applicable to the majority of service-members engaged in domestic operations. See Pub. L. 105-277, Section 101(h), as 

amended by Pub. L. No. 106-58, Title VI, sect. 623, Sept. 29, 1999, often referred to as the Federal Good Samaritan 

Statute.

62 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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223 RUF for the National Guard

CHAPTER 11

RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD

KEY REFERENCES:

• 10 U.S.C. §§ 251-255 - The Insurrection Act.

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

• 28 U.S.C. §§ 1346, 2671 - 2680 - The Federal Tort Claims Act (FTCA).

• 32 U.S.C. § 502 - Required drills and field exercises.

• National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June 

13, 2008.

• National Guard Regulation 500-5/ANGI 10-208 - National Guard Domestic Law Enforcement 

Support and Mission Assurance Operations, August 18, 2010.

• 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 Some policies of DoD and service regulations 

apply to the National Guard when they are in Federal status but not when they are commanded by 

 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.*** 
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State authorities.6 As a result, the law that is the basis for National Guard RUF is the criminal law 

of the State 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 Criminal Laws

1. State Law Applicable to Both Title 32 and SAD Statuses

Most 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 infra,

11 the 2001–2002 National Guard airport security mission 

(hereinafter airport security mission), 12 the 2012 NATO Summit in Chicago, and the Democratic 

 6

 For example, CJCSI 3121.01B SRUF applies to the National Guard only when called or ordered to active duty in a 

Federal status under the provisions of Title 10, U.S.C. See, e.g., U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE 

SUPPORT OF CIVIL AUTHORITIES (29 Dec. 2010) (C2, 19 Mar. 2018); U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE 

SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb. 2013). NATIONAL GUARD REGULATION 500-

1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS (13 Jun. 08) [hereinafter NGR 500-1]. 

However, Army regulations and Air Force instructions govern the National Guard not in the active Federal service in 

the same manner as they do the regular components, when such regulations or instructions have been made applicable to 

the National Guard. Specific applicability is indicated in departmental regulations and instructions. See NGR 500-1, 

para. 3-2.

7

 See NATIONAL GUARD REGULATION 500-5/ANGI 10-802 - National Guard Domestic Law Enforcement Support and 

Mission Assurance Operations (18 Aug. 10) [hereinafter NGR 500-5], para. 4-4. A more in-depth explanation is that 

the criminal law of the States applies to both members of the National Guard operating in a State status and to off-post 

operations (and in some instances, some on-post activities) of the active components of the U.S. armed forces (including 

the 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. NGR 500-5, supra note 7, para. 4-4.b. 

See, e.g., NGR 500-1, supra note 6, para. 3-2.c.(2). 

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 NGR 500-5, supra note 7, para. 4-1. DEP’T OF DEFENSE, DIR. 5101.83, NATIONAL GUARD JOINT FORCE 

HEADQUARTERS-STATE (NG JFHQS-STATE) (5 Jan. 2011). 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 an 

SAD status may, however, use certain Federal equipment, subject to a requirement for reimbursement for that use. In 

SAD status, many National Guard Bureau and Active Army regulations may not apply unless the State has adopted 

those regulations as a matter of State law; for more information, see Chapter 3 infra.

11 For example, the 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 
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225 RUF for the National Guard

and Republican National Conventions of 2016. These operations were performed in Title 32 

status.13 As explained in detail in Chapter 3 infra, both SAD and Title 32 statuses are non-Federal

and State law applies.14 As such, it is the criminal 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 criminal law.15 Consequently, multiple sets of 

RUF were used during the airport security mission. Although most rules addressed similar subjects, 

the specific implementation of these rules varied depending on the jurisdiction.16 Examples of State 

RUF referred to throughout this chapter are, unless otherwise indicated, the RUF of the airport 

security mission.

2. Subjects for Inclusion in State RUF for the 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 criminal law subjects such as the right of self 

defense (including the retreat doctrine) necessary warning, proportionality, and location issues (for 

instance the defender’s home or 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 

 request. Additionally, New York National Guard personnel in a Title 32 status after the 9/11 terrorist attacks performed 

another mission in the form of armory security. See Transcript of After Action Review Conference, Office of the Staff 

Judge Advocate, State Area Command (STARC), New York Army National Guard, and the Center for Law and 

Military Operations, at 17–18 (17–18 May 2002) [hereinafter NYARNG Transcript] (on file with CLAMO).

13 NATIONAL GUARD REG. 350-1, ARMY NATIONAL GUARD TRAINING, para. 3-9.j.4 Aug. 2009) [hereinafter NGR 350-

1] (providing that Title 32 status may be used by an Adjutant General for what would otherwise be a State (SAD) 

mission if 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.

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 Operational Law and Counterdrug 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. The Operational Law and Counterdrug Team has continued to collect 

and review the State RUFs since 2003, including those used in hurricane responses such as Hurricanes Harvey, Irma 

and Nate in 2018. 

17 For example, if the mission includes the security of certain real property, then the right to search and seize and 

amount of force necessary to undertake the inspection of persons and personal property entering and leaving that 

location should be included in the OPLAN/OPORD or RUF.
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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

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 

 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(1).

24 The laws of several States require the duty to retreat, so, for the airport security mission, those States included the 

duty in the RUF. See, e.g., Connecticut airport security mission RUF para. IIIC(b) and CONN. GEN. STAT. § 53a-19(b).
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warnings before the employment of deadly force in self defense,26 the requirement for the use of 

proportionality,27 and whether the place where the right of self defense is exercised imposes 

additional legal implications.28

(3) Special Orders

Many RUF include discussion of issues not directly related to the use of force. These issues are 

called “special orders” and cover such matters as: training (including training scenarios), military 

bearing and appearance, immunity, standards of conduct and treatment of civilians, safety, handling 

news media, discussion of the mission with others, and handling of suspicious persons, vehicles, 

and activities. Usually, The Adjutant General (TAG) of the State or the task force commander will 

decide whether to include them in the RUF or in the OPLAN/OPORD.

b. Role of State Law in Determining RUF for Law Enforcement, Law Enforcement 

Support, and Security Missions

There are variations between the States regarding 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 

 25 For a detailed discussion of the Fourth Amendment aspects of this topic in the context of FBI RUF, see Harris v. 

Roderick, 126 F.3d 1189 (9th Cir. 1997).

26 Many, if not most, States included the necessity for a warning (if possible) before resorting to the use of deadly force 

in the airport security mission RUF.

27 Some State RUF used for the airport security mission specifically required that action taken in self-defense must be 

proportional to the force used in the attack necessitating the defense. It is unclear whether this duty was imposed in the 

RUF as a result of a State law requirement, or whether it was an inadvertent carryover from the law of war rule of 

proportionality that is reflected in the SROE.

28 In some States, the right of self-defense is greater when exercised in the defender’s home or place of work. In those 

places there is often no duty to retreat. See, e.g., CONN. GEN. STAT. § 53a-19(b); N. D. CENT. CODE § 12.1-05-07.

29 Because the Posse Comitatus Act, 18 U.S.C. § 1385 (2016) [hereinafter PCA] does not apply to the 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 
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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 

advocate must participate in the effort to tailor the RUF to the particular mission, State law, and the 

policies of the TAG..35 

c. Subjects Appropriate for Inclusion in Law Enforcement, Law Enforcement 

Support, and Security Mission RUF

(1) Use of Force and Level of Force Generally

If the 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. Some 

airport security mission RUF, for instance, provided that deadly force could only be used to defend 

specially designated property.36 When this device is used, National Guard judge advocates must 

ensure that a statutory or other system exists for the designation of such property.

 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, when read in toto, provide that the Governor has the power “in case of 

invasion, disaster, insurrection, riot, breach of the peace, combination to oppose the enforcement of the law, or 

imminent danger thereof” to declare an emergency ordering the National Guard into “the active service of the State” 

and granting the National Guard the authority to “quell riots, insurrections, or a gross breach of the peace or to maintain 

order.”

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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229 RUF for the National Guard

(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; 

property vital to public health or safety (or other similar phrase); forcible felony (when defense 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

Not AO-1 Sling Holster Belt Empty In Pouch ON issued

Not AO-2 Port Holster Belt Empty In Pouch ON issued

Not AO-3 Sling Holster Hand Empty In Pouch ON issued

Not AO-4 Port Holster Hand Empty In Pouch ON issued

In Not AO-5 Port Holster Hand Empty ON Weapon issued

Locked & In Not AO-6 Port In Hand Belt ON* Loaded Weapon issued

 

37 Other weapons may include use of water, batons, pepper spray, or tasers (electric stun guns). In airport security 

mission RUF, some States began their use of force matrix at a much lower level than would usually be the case, such as 

with an unarmed member first attempting verbal persuasion, then using “unarmed defensive techniques,” then using 

non-deadly physical force to restrain the aggressor, then stating that a weapon would be drawn if the aggressor 

continued his or her aggression, then drawing and displaying the weapon, then stating that a round would be chambered, 

etc. Commanders using this technique must of course explain that in a true tactical situation, the command does not 

expect that each service-member must always use each and every incremental increase in the use of force; in some 

instances it would be futile and could risk injury to do anything except for, drawing and firing a weapon.
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* Leave safety on until ready to fire

(4) 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,38 acting at the direction of civilian 

law enforcement,39 defense of others, pursuit of suspects, retention of evidence,40 use of restraints, 

reports of firearm discharge,41 or other use of deadly force, accountability of weapons and 

ammunition, and a prohibition against use of non-issued weapons and ammunition.

C. Specific RUF Issues

1. RUF in Interstate (Cross Border) Operations

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 immunity42 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 

 38 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 6; 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).

39 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).

40 DA Form 4237-R (Detainee Personnel Record) may be used to inventory items taken from detainees.

41 ARNG Airport Security Instruction, supra note 41, para. 3-17a(3), required that the discharge of firearms, among 

other matters, by National Guard personnel serving in that mission be reported to the National Guard Bureau as a 

serious incident.

42 See text infra subparagraph C.2.
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231 RUF for the National Guard

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),43 unless operations undertaken 

in an SAD status are involved.44 

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 an SAD status for the purposes 

of disaster relief or other State emergencies within a second State have typically been accomplished 

pursuant to the several disaster-related or “National Guard-only” interstate compacts.45 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).46 As table 11-1 demonstrates below, all States now have codified the EMAC, 

most without change. Since its approval by Congress in 1996, many States have used EMAC for 

various State emergencies. The possibility of its use in situations where the use of force may be 

necessary exists.47

EMAC, like all congressionally-approved interstate compacts, is Federal law.48 As such, it is 

applied in the same manner as other Federal legislation.49 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.50 Further, peace officer powers granted by 

the requesting State’s statutes only to the National Guard forces of that State51 may be granted to 

 43 For an example of unconstitutional RUF, see Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997).

44 It is even more likely that an armed National Guard force would be seen as a threat if entering the State in a SAD 

status to control civil unrest, rather than under a pure training mission pursuant to 32 U.S.C. § 502(f). Also note that 

some civil support missions undertaken for State purposes may be counted as training; however, under NGR 350-1, 

supra note 13, para. 3-9.j., and Federal Supremacy Clause, immunity may be available to protect that mission or part of 

that mission.

45 AMERICAN LAW SOURCE ON-LINE, United States – Interstate Compacts, http://www.lawsource.com/also/usa.cgi?usi

(last visited Apr. 20, 2018) 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.

46 The Emergency Management Assistance Compact (EMAC) was approved by Congress in October of 1996, see Pub. 

L. No. 104-321, 110 Stat. 3877 (1996) [hereinafter EMAC]. At the time of the 9/11 terrorist attacks, New York was not 

a member of the EMAC. New York did, however, have a 1951 Mutual Aid Compact with New Jersey, Vermont, and 

Massachusetts. A major issue that arose was what State would have command and control over service-members from 

other States. NYARNG Transcript, supra note 12, at 35-6.

47 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].

48 See, e.g., Texas v. New Mexico, 462 U.S. 554 (1983).

49 See, e.g., Skamania County v. Woodall, 16 P.3d 701 (Wash. 2001).

50 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.

51 See ARK. CODE ANN. § 12-61-112(a).
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the National Guard forces of the sending State by the use of one or more EMAC supplemental 

agreements.52 Under most situations, National Guard cross border operations are usually limited to 

providing law enforcement support to civil authorities, rather than providing direct law enforcement 

service.53 However, National Guard can in some instances be used for Domestic Law Enforcement 

Operations.54

State EMAC Legislation

Alabama Ala. Code § 31-9-40 

Alaska Alaska Stat. § 26.23.135 

Arizona Ariz. Rev. Stat. § 26-402 

Arkansas Ark. Code § 12-49-402 

California Cal. Gov’t Code §§ 179-179.9 

Colorado Colo. Rev. Stat. § 24-60-2901 

Connecticut Conn. Gen. Stat. § 28-23a

Delaware Del. Code tit. 20, § 3401 

District of D.C. Code § 7-2331 

Columbia 

Florida Fla. Stat. §§ 252.921-933 

Georgia Ga. Code § 38-3-81 

 

52 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.

53 See NGR 500-5, supra note 7, para. 4-2. The National Guard instruction governing the airport security mission 

contemplated cross border operations but provided that 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.. 

54 See generally, NGR 500-5, supra note 7, Chapter 5
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233 RUF for the National Guard

Guam Guam Pub. L. 29-29 

Hawaii Haw. Rev. Stat. § 128F-2 

Idaho Idaho Code § 46-1018A 

Illinois 45 Ill. Comp. Stat. 151 

Indiana Ind. Code §§ 10-14-5-1 to 16 

Iowa Iowa Code § 29C.21 

Kansas Kan. Stat. § 48-9a01 

Kentucky Ky. Rev. Stat. § 39a.950 

Louisiana La. Stat. § 29:733 

Maine Me. Rev. Stat. tit. 37-B, § 921-933 

Maryland Md. Code, Pub. Safety § 14-702 

Massachusetts 2000 Mass. Acts ch. 339 

Michigan Mich. Comp. Laws § 3.991 

Minnesota Minn. Stat. § 192.89 

Mississippi Miss. Code § 45-18-3 

Missouri Mo. Rev. Stat. § 44.415 

Montana Mont. Code 10-3-1001 

Nebraska Neb. Rev. Stat. § A1-124 

Nevada Nev. Rev. Stat. § 415. 010 

New N.H. Rev. Stat. §§ 108:1-3 

Hampshire 

New Jersey N.J. Stat §§ 38A:20-4, 20-5 

New Mexico N.M. Stat. §§ 12-10-14, 15

New York N.Y. Exec. Law § 29-g 

North N.C. Gen. Stat. § 166A-40 to 53 

Carolina
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North Dakota N.D. Cent. Code §37-17.1-14.5

Ohio Ohio Rev. Code § 5502.40

Oklahoma Okla. Stat. tit. 63, §§ 684.1-13

Oregon Or. Rev. Stat. § 402.105

Pennsylvania 35 Pa. Cons. Stat §§ 7601-7604

Puerto Rico P.R. Laws tit. 1, §§ 621-633

Rhode Island 30 R.I. Gen. Laws §§ 30-15.9 to 14

South 

Carolina

S.C. Code §§ 25-9-410, 25-9-420

South Dakota S.D. Codified Laws §34-48A-53

Tennessee Tenn. Code § 58-2-403

Texas Tex. Health & Safety Code § 778.001

Utah Utah Code §§ 53-2a-401 to 403

Vermont Vt. Stat. tit. 20, §§ 101-112

Virgin Islands V.I. Code tit. 23, §§ 1051-1064

Virginia Va. Code § 44-146.28:1

Washington Wash. Rev. Code § 38.10.010

West Virginia W. Va. Code § 15-5-22

Wisconsin Wis. Stat. § 323.80

Wyoming Wyo. Stat. §§ 19-13-401 to 414

Table 11-1. State EMAC Legislation

2. State Criminal Liability of 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.

55 The subject is 

 55 See, e.g., Airport security mission RUF for the States of Nevada, New Jersey, and New York. 
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235 RUF for the National Guard

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,56 and both Title 32 status57 and SAD 

status for the purposes of a State emergency. As discussed at the beginning of this chapter, State 

criminal law and therefore State RUF apply to both missions in Title 32 and SAD statuses. The 

focus of criminal liability under State law while in Federal active duty status or in a State status is 

on the doctrine of Federal Supremacy Clause immunity.58

a. Active Duty Federal Mission

Although the early history of the doctrine of Federal Supremacy Clause immunity59 began 

somewhat before the case was decided,60 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 

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,61 defamation,62 assault,63 and murder in the course of guarding prisoners of the U.S. 

 56 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.

57 This was the case in the airport security mission.

58 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.

59 See U.S. CONST. art. VI, cl. 2 (Supremacy Clause).

60 A U.S. Supreme Court case predating Neagle is Tennessee v. Davis, 100 U.S. 257 (1880).

61 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).

62 Howard v. Sikula, 627 F. Supp. 497 (S.D. Ohio 1986).

63 See Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945); Commonwealth v. Johnson, 297 F.Supp. 877 (W.D. Pa. 1969).
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Army.64 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.65

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.66 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, not only may a 

Federal officer, in the performance of his duties under a set of rules unlawfully deny the victim his 

constitutional rights, but the RUF at issue may be considered unconstitutional on their face as well.

b. Title 32 or SAD Status and Mission

The holding of Perpich v. Dep’t of Defense67 (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 

defenses to the possibility of a State criminal charge68 resulting from good faith compliance with 

State RUF include:

• A State statute providing criminal immunity for National Guard personnel.69

• An agreement with the State Attorney General (possibly at the time the State Attorney General 

gives any approval of the RUF70) that National Guard personnel will not be prosecuted 

criminally for good faith compliance with the National Guard RUF.71

 64 See In re Fair, 100 F. 149 (C.C.D. Neb. 1900) and United States v. Lipsett, 156 F. 65 (W.D. Mich. 907).

65 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).

66 United States v. Lipsett, 156 F. 65 (W.D. Mich. 1907).

67 Perpich v. Department of Defense, 496 U.S. 334 (1990).

68 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.

69 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).

70 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.
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237 RUF for the National Guard

• 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,72 execution of the mission details at the direction of Federal authorities such as 

Department of Homeland Security personnel, contracts or memoranda of agreement (MOAs) with 

Federal officials, or orders to Title 32 duty at the request of Federal Government officials. Case law 

clearly indicates that Federal Supremacy Clause immunity should be applied to cases involving a 

Federal mission whether or not the subject of that protection is a Federal employee.73

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 

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 

enforcement-type activities by the National Guard (such as searches and seizures) and the use of 

force to support those activities.74

D. Role of the National Guard Judge Advocate

1. Drafting RUF

While RUF are an S-3/G-3 and commander responsibility, judge advocates should assist in drafting 

them (and may be tasked directly to draft them nonetheless). In addition, judge advocates should be 

directly involved in the production of RUF-related documents, such as information papers, 

 71 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).

72 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).

73 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).

74 This does not necessarily imply that State RUF will always be more restrictive than the SRUF. For example, in civil 

disturbance support operations in which NGR 500-5 applies. See NGR 500-5, supra note 7, para. 404, In contrast, the 

analogous provision of the draft SRUF, CJCSI 3121.01B supra note 5, Encl. L para. 5.c.(2), authorizes the use of 

deadly force to protect president-designated assets vital to national security, which by definition is property the theft or 

sabotage of which must create an “imminent threat of death or serious bodily harm.”
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memoranda of law, and memoranda of agreement with supported civil authorities.75 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 drafting 

or approving the RUF. In such cases, judge advocates may find it necessary to educate and 

negotiate issues that meld legal requirements with operational imperatives. For example, in New 

York after September 11th, New York Army 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 on 29 

September 2001.76

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 State’s TAG; the Deputy Chief of Staff for Operations; the Plans, Operations, and Training 

Officer; and the Task Force or other commanders.

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 SAD, the rules for the use of 

force are based on the State law where the mission is taking place. 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 providing advice on the drafting of the RUF must also tailor their RUF to the specific 

 75 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.

76 NYARNG Transcript, supra note 12, at 184.
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239 RUF for the National Guard

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’s RUF prior to engaging in operations.
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241 Funding Domestic Operations

CHAPTER 12

FUNDING DOMESTIC OPERATIONS

KEY REFERENCES:

• 10 U.S.C. §§ 271-284 - Military Support For Civilian Law Enforcement Agencies.

• 10 U.S.C. §§ 251-255 - 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. § 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.

• 18 U.S.C. § 1385 - Posse Comitatus Act.

• 31 U.S.C. § 1301 - The Purpose Statute

• 31 U.S.C. §§ 1341-44, 1350-51, 1511-19 - Amount and the Anti-Deficiency Act

• 31 U.S.C. § 1502 - The Time Statute

• 31 U.S.C. § 1535 - Economy Act.

• 31 U.S.C. § 3302 - Miscellaneous Receipts.

• 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.

• DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012 (C2, March 18, 

2018).

• DoDD 5200.31E - DoD Military Working Dog (MWD) Program, August 10, 2011.

• DoDI 3025.20 - Defense Support of Special Events, April 6, 2012.

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

• DoD Financial Management Regulation (FMR) 7000.14-R vol. 14 - Administrative Control of 

Funds and Anti-Deficiency Act Violations

• DoD Financial Management Regulation (FMR) 7000.14-R, vol.12, ch. 6 - Defense Emergency 

Response Fund.

• Department of the Army Financial Management Guidance for Disaster Relief Operations, 

February 14, 2014

• CNGBI 3000.04 - National Guard Bureau Domestic Operations, January 24, 2018 (Cancels and 

incorporates NGR 500-1/ ANGI 10-8101).

• 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, February 22, 

2005.

• 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.

• AFI 10-801 - Defense Support of Civil Authorities (DSCA), September 19, 2012.

• AFI 31-202 - Military Working Dog Program, May 16, 2009.

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 sanctions against those responsible for funding violations. 

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 

 1

 See U.S. CONST. art. I, § 7. 
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243 Funding Domestic Operations

obligation and expenditure of appropriated funds.2 To that end, the Comptroller of the United 

States at the Government Accountability Office (GAO) developed a three-part “necessary expense” 

test to ensure that Federal funds are expended properly: 1) the expenditure must have a logical 

relationship to the appropriation charged; 2) the expenditure must not be prohibited by law; and 3) 

the expenditure must not be otherwise provided for. 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 to DoD for this purpose. For 

other authorized activities, Congress has established special “no year” accounts (such as the 

Disaster Relief Fund (DRF) 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. Once O&M funds are transferred into such an account, the funds are available for 

the same purposes and for the same time period as the appropriation to which transferred. 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 (the purpose of the funds appears in the language of the appropriation and normally follows 

the word “for”); (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) (remember, “current year funds 

for current year needs”; and (3) obligations must be within the amounts authorized by Congress (no 

spending in advance of nor in excess of an appropriation). With that said, there are certain statutory 

exceptions to these fiscal controls. When dealing in a domestic operations scenario, most of the 

expenditures are unplanned and emergent. It is the responsibility of the judge advocate to work 

with the Contracting Officer, or in the case of the National Guard, the United States Property and 

Fiscal Officer (USPFO), to identify legal courses of action then properly advise the commander.

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

 

 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 (2012).

3

 See 31 U.S.C. § 1301(a) (2012).
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Funding Domestic Operations 244

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.

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

 If two funds are equally available for a given purpose, an agency may 

elect to use either, but once the election is made, the agency must continue to charge the same 

fund.6 This concept is known legally as the “election doctrine,” and the election is binding even 

after the chosen appropriation is exhausted.7

Unless otherwise authorized by law, a Federal unit’s O&M funds, cannot be used to provide support 

to civil authorities. The same holds true for equipment procured with Federal funds. So, the 

question becomes, “What law or policy authorizes a unit to expend funds or incur expenses when 

providing support to civil authorities?” The answer is discussed in-depth further in this chapter. 

Likewise, if a Federal agency accepts funds outside the normal appropriations process, then the 

agency is augmenting the funds that Congress has appropriated. In addition, retaining those funds 

violates the Miscellaneous Receipts Statute.8 When these retained funds are expended, this also 

violates the Constitutional requirement for an appropriation.9 These legal principles prohibit 

unauthorized doD expenditures to further State missions. These principles also prohibit units from 

accepting resources directly from State and local entities. 

There are, however, statutory [and GAO-sanctioned] exceptions to the Miscellaneous Receipts 

Statute. For example intra- and intergovernmental acquisition authorities allow agencies to retain 

and use funds from sources other than those appropriated by Congress directly to that particular 

agency.10 The Economy Act authorizes a Federal agency to order supplies or services from another 

Federal agency. For these transactions, the requesting agency must reimburse the performing 

agency fully for the direct and indirect costs of providing the goods and services.11 This stage is 

 4

 See Nonreimbursable Transfer of Admin. Law Judges, B-221585, 65 Comp. Gen. 635 (1986); cf. 31 U.S.C. § 1532 

(2012) (prohibiting transfers from one appropriation to another except as authorized by law).

5

 Secretary of the Navy, 20 Comp. Gen. 272 (1940).

6

 See Funding for Army Repair Projects, Comp. Gen. B-272191, Nov. 4, 1997, 97-2 CPD P141.

7

 Honorable Clarence Cannon, B-139510, May 13, 1959, available at http://www.gao.gov/products/403911 (Rivers and 

Harbors Appropriation exhausted; Shipbuilding and Conversion, Navy, unavailable for used to dredge channel to 

shipyard).

8

 See 31 U.S.C. § 3302(b) (2012); Interest Earned on Unauthorized Loans of Fed. Grant Funds, B-246502, 71 Comp. 

Gen. 387 (1992).

9

 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).

10 See, e.g., Economy Act, 31 U.S.C. § 1535 (2012).

11 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).
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245 Funding Domestic Operations

also where misunderstandings arise regarding the National Guard in terms of State Active Duty 

(SAD) missions. That is, when a State performs a SAD mission using Federal equipment (e.g., 

vehicles and helicopters), the United States Property and Fiscal Officer (USPFO) is required under 

National Guard Regulation NGR) 500-5 to seek reimbursement from the State.12 However, the 

request from the USPFO to the State is not an Economy Act transaction, and therefore the 

reimbursement authority at 31 USC 1536 is not applicable. Judge advocates may wish to consult 

agency regulations for order approval requirements.13 

 12 U.S. DEP’T OF ARMY AND AIR FORCE, NAT’L GUARD, REG. 500-5, NATIONAL GUARD DOMESTIC LAW 

ENFORCEMENT AND MISSION ASSURANCE OPERATIONS para. 5-5.c (18 Aug. 2010) [hereinafter NGR 500-5].

13 See, e.g., GEN. SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. Subpart 17.5 (Aug 2018) [hereinafter FAR]; 

Defense Federal Acquisition Regulation Subpart 217.5; Army Federal Acquisition Regulation Supplement Subpart 

17.5.
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Congress also has 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.14 Another statutory provision 

authorizes operations or training to be conducted for the sole purpose of providing CLEAs with 

specific categories of support.15 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.

 14 See 10 U.S.C. § 377 (2012).

15 See § 1004 of the 1991 National Defense Authorization Act (FY91 NDAA), as amended (10 U.S.C. § 374, note).

Practice Scenario: A major storm pummels your base and the surrounding local 

area. The community has suffered major damage. Also, 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 funds. What do you do first? What 

advice would you provide?

Answer: If you are in the active component, your first step should be to contact the 

Contracting Officer. If you are in the National Guard, you should first contact the 

USPFO. You will be able to perform quick work with them to develop viable 

courses of action to present to the commander. Also, the judge advocates and 

commanders do not have a warrants authorizing them to obligate the Government. 

However, Contracting Officers and USPFOs do. Yes, it is true that absent specific 

authority, unit O&M funds are for the operation and maintenance of the unit. Thus, 

on the surface, it would appear that the commander is about to commit a Purpose 

Statute violation if funds were expended to purchase bottled water for the local 

community. However, simply telling the commander “No!” may not be the best 

answer. Ask yourself, “What is the commander’s intent?” It is not to commit a 

violation of the law. It is to help local citizens get water during the disaster or 

emergency. Thus, a little more research may help answer the mail. By speaking with 

the Contracting Officer or USPFO, you may find that emergency procurement of 

bottled water has already been authorized. Thus, in the instant situation, usage of 

Federally appropriated funds to procure bottled water would not be a violation of the 

Purpose Statute. Further, many DoD, and National Guard units maintain water 

purification systems that are typically used during the conduct of missions overseas. 

Maybe the commander can deploy those systems. The U.S. Army Corps of Engineers 

(USACE) also maintains an inventory of already awarded contracts, pre-positioned to 

support major emergency response missions. There is yet another option. Many 

States maintain multi-agency response guidance to provide water to local citizens 

during emergency situations such as this one (see, e.g., Multi-Agency Response 

Guidance for Emergency Drinking Water Procurement and Distribution,” maintained 

by the California Office of Emergency Services.) In summation, you should first 

speak with the Contracting Officer or USPFO. After speaking with them, advise the 

commander of the options available that will help get water to the local community. 
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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). 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.16 This is commonly referred to as using current year funds for current needs.

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, the 

current year need must be documented. Note that there are “lead-time” and “stock-level” 

exceptions to the general rule governing purchases of supplies.17 In any event, “stockpiling” items 

is prohibited.18 

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 (or 

other agreement) 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 (or other agreement) is 

executed. Non-severable 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.19 

The issue in the performance of domestic operations is two-pronged. First, when it comes to major 

disasters and emergencies, the request for DoD assistance is normally unplanned. Thus, it is likely 

that no funds with a period of availability were appropriated for this specific purpose. Second, 

 16 See 31 U.S.C. § 1502(a) (2012).

17 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].

18 See Mr. H.V. Higley, B-134277, Dec. 18, 1957, available at http://redbook.gao.gov/6/fl0029466.php.

19 See DFAS-IN 37-1, supra note 17, ch. 8.
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hurricanes normally hit near the end of the fiscal year. In this case, there are two concerns that a 

judge advocate should remember: 1) Current year funds should be used for current year needs; and 

2) Federal Acquisition Regulation (FAR) Part 18, Emergency Acquisitions, is a good resource to 

use.

Practice Scenario: You can barely hear the commander as you make your way up

the stairs from the basement. You have never experienced a tornado before, and you 

are still a bit shaken. The commander is furious that the local Mayor refused some 

troops and equipment that the commander sent out to assist in the tornado clean-up 

efforts downtown. As a result, the commander wants to bill the Mayor for the fuel 

used in the vehicles to get to and from downtown. He also wants to send a bill for the 

food purchased for the local community. The food was on the vehicles carrying the 

Soldiers. The intent was to for the Soldiers to arrive downtown, participate in the 

clean-up, and give the food away to local citizens. What fiscal issues, if any, do you 

see?

Answer: Recall what you learned in the DSCA policy, 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

[,including commanders,] may provide an immediate response by temporarily 

employing the resources under their control, subject to any supplemental direction 

provided by higher headquarters.” Here, there is no indication that the Mayor 

requested assistance from the commander. Thus, the commander had no authority to 

send troops and equipment downtown to assist in the tornado clean-up efforts. 

Without the proper authority, the commander may not seek reimbursement from the 

Mayor. Next, it appears that the commander may have purchased food in violation of 

the Purpose Statute. To make this determination, perform the 3-prong “Necessary 

Expense Test.” First, the procurement must be necessary and incident to the 

appropriation. Second, the procurement must not be prohibited by law. Third, the 

procurement must not be otherwise provided for. Here, the first prong of the test 

cannot be satisfied because using O&M funds to procure food for the local 

community is not logically related to expending funds for the normal, day-to-day, 

operation and maintenance of the unit. However, this violation does not 

automatically mean that the commander has committed a violation of the antideficiency act (ADA). There is a 2-prong correction test that must be performed. To 

avoid a violation of the ADA in this instance, 1) the proper funds must have been 

available in the proper account, in the right amount, at the time of the expenditure, 

and 2) the proper funds must be available in the proper account, in the right amount, 

at the time of the correction. Here, the first prong of the correction test cannot be 

satisfied because, in general, commanders do not have accounts set up for the 

purposes of procuring food to give away to the local community. As a result, the 

commander may have committed a violation of the Purpose Statute and the ADA. 
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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,20 making or 

authorizing an expenditure or incurring an obligation in excess of a formal subdivision of funds, or 

in excess of amounts permitted by regulations prescribed under 31 U.S.C. § 1514(a);21 or from 

accepting voluntary services, unless authorized by law.22

 20 See 31 U.S.C. § 1341 (2012).

21 See 31 U.S.C. § 1517 (2012).

22 See 31 U.S.C. § 1342 (2012).
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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 

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.23 

Commanders must investigate suspected violations to establish responsibility and discipline 

violators. Regulations require “flash reporting” of possible ADA violations.24 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.25 In previous cases, 

lawyers, commanders, contracting officers, and resource managers all have been found to be 

responsible for violations. 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 activities stockpile supply 

items in excess of those required to maintain normal inventory levels.

• Exceeding a statutory limit (e.g., funding a contingency construction project in excess of $2M 

with O&M; acquiring investment items in excess of an aggregate $250K 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 where there is no regulatory or case law support for the purchase or where Congress 

has placed a funding prohibition).

C. Military Assistance to Civil Authorities

The Federal military’s primary mission is to fight and win the nation’s wars. From time to time, the 

DoD will provide support to civil authorities while the civil authorities retain primary responsibility 

for and control over the incident. The starting point for all DoD support to civil authorities is DoD 

Directive (DoDD) 3025.18, Defense Support of Civil Authorities (DSCA). When speaking of the 

National Guard, it is important to separate National Guard Civil Support (NGCS) from DSCA. 

NGCS is, “[s]upport provided by the National Guard while in a State Active Duty status or Title 32 

status to civil authorities for domestic emergencies, designated law enforcement, and other 

activities.”26 In contrast, DSCA is, “[s]upport provided by U.S. Federal military forces, DoD 

 23 See 31 U.S.C. § 1514(a) (2012) (requiring agencies to subdivide and control appropriations by establishing 

administrative subdivisions); 31 U.S.C. § 1517 (2013); DFAS-IN 37-1, supra note 17, ch. 4.

24 See DEPARTMENT OF DEFENSE, DoD 7000.14-R, FINANCIAL MANAGEMENT REGULATION vol. 14 (May 2015) 

[hereinafter DoD 7000.14-R]; DFAS-IN 37-1, supra note 17, ch. 4.

25 31 U.S.C. §§ 1349 -1350 (2012).

26 CHIEF, NAT’L GUARD BUREAU, INST. 3000.04, NATIONAL GUARD BUREAU DOMESTIC OPERATIONS GL-2 (24 Jan.

2018) [hereinafter CNGBI 3000.04].
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civilians, DoD contract personnel, DoD Component assets, and National Guard forces [but, for the 

purposes of this definition, only in their 32 U.S.C. § 502(f)(2) 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.”27 The National Guard only 

performs DSCA when supporting a mission that has been assigned to the DoD by the Federal

Emergency Management Agency (FEMA), and when performing this mission, the National Guard 

personnel are in their 32 U.S.C. 502(f)(2) status.28 Otherwise, when providing civil support, the 

National Guard is performing NGCS where DoDD 3025.18 does not apply. 

The Posse Comitatus Act (18 U.S.C. § 1385) provides limitations on the types of support that the 

Federal military may provide to civil authorities. The following are areas of common allowable 

military support and their governing policies and authorities:29

• Civil disasters and emergencies. Stafford Act (42 U.S.C. §§ 5121, et seq.), DoDD 3025.18

• Civil disturbances; Insurrection Act. 10 U.S.C. §§ 251-255, DoDI 3025.21

• Support to civilian law enforcement:

 Sharing information. 10 U.S.C. § 271, DoDI 3025.21

 Loan of equipment and use of facilities. 10 U.S.C. § 272, DoDI 3025.21

 Training and provision of expert advice. 10 U.S.C. § 273, DoDI 3025.21

 Maintenance and operation of equipment. 10 U.S.C. § 274, 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 Supporting 

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

 27 U.S. DEP’T. OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES 19 (29 Dec. 2010) (C2, 19 Mar. 2018) 

[hereinafter DoDD 3025.18].

28 U.S. DEP’T. OF DEF., DIR. 3025.22, THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL 

AUTHORITIES paras. 3.d, and 3.e (26 Jul. 2013) (C2, 15 May 2018) [hereinafter DoDD 3025.22]; see also 32 U.S.C. 

502(f)(2).

29 See generally U.S. DEP’T. OF DEF., INS’T. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES

(27 Feb. 2013) [hereinafter DoDD 3025.21].
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• 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

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. This policy provides six 

criteria 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. These criteria are 

commonly known as the CARRLL factors:

• 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 DoD 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 

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.30 

As noted above, DoDD 3025.18 is the DSCA policy for the DoD. Distinction must be made when 

considering the usage of the National Guard to support a DSCA mission assigned to the DoD by 

FEMA. At this juncture, DoDD 3025.22 must be reviewed because this policy and DoDD 3025.18 

become applicable to members of the National Guard but only when serving in their 32 US.C. § 

502(f)(2) status.31

 30 DoDD 3025.21, supra note 27 (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.”). 

31 DoDD 3025.22, supra note 28.
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E. Disaster and Emergency Relief32

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 disaster33; the President may 

declare the area an emergency34; the President may send in DoD assets on an emergency basis to 

“preserve life and property”;35 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.36

The Department of Homeland Security (DHS), through FEMA, directs and coordinates the Federal

response on behalf of the President. DHS has prepared the National Response Framework (NRF), 

which defines fifteen Emergency Support Functions (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.

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 Department of Defense 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, or those expenses incurred by the agency providing the military assistance that—

but for the request for assistance—would not otherwise have incurred these expenses. 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

 32 See generally Disaster Relief Act Amendments of 1974 (Stafford Act), Pub. L. No. 93-288, 88 Stat. 143 (1974); 

DoDD 3025.18, supra note 27; U.S. DEP’T OF DEFENSE, MAN. DOD 3025.1-M, DOD MANUAL FOR CIVIL EMERGENCIES 

(Jun. 1994) [hereinafter DOD 3025.1-M]; CNGBI 3000.04, supra note 26; 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].

33 See 42 U.S.C. § 5170 (2012).

34 See 42 U.S.C. § 5191 (2012) (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).

35 See 42 U.S.C. § 5170b(c) (2012).

36 See 42 U.S.C. § 5191(b) (2012).
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• 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.

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.37

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 

need for immediate response should be reassessed not less than 72 hours after the civil authority 

submitted the request for assistance.38 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. In some cases, the State and local governments may not have the 

available funding to reimburse. With that said, all is not lost. “Ongoing [S]tate and local response 

activity may be reimbursed if a declaration is issued, including for evacuations, sheltering and other 

 37 DoDD 3025.18, supra note 27, at para. 4.i.6.

38 Id. at para. 4.i.5.
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emergency protective measures.”39 Should the State have funding available to reimburse the DoD, 

funding is not send directly to a unit account. Instead, “States must reimburse the United States 

Treasury in accordance with section 9701 [Fees and Charges for Government Services and Things 

of Value] of [Title 31 of the United States Code].”40 May the support be provided on a nonreimbursable basis? Yes, but it must be authorized by law, like under the Stafford Act for instance, 

and approved by the appropriate DoD official, such as SecDef or the President.41 Even if the civil 

authority was unaware of this rule, and paid the money directly to the unit, Federal military 

personnel must still comply with the rules governing “money for the Government” more commonly 

referred to as the Miscellaneous Receipts Statute, 31 USC 3302(b). The same applies to mutual aid 

agreements. (see DoDM 3025.01 Vol 2; DoDI 6055.06 Encl 2; and 42 USC Section 1855(d)) 

2. Emergency Response Fund ERF

The ERF was created in the FY90 National Defense Appropriation Act, Pub. L. 101-165, in 

response to Hurricane Hugo. Under this provision, “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 ERF 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 were unable or unwilling to reimburse 

the DoD, the command would forward a request for reimbursement to the ERF.42 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.

Since November 2003, the ERF has been closed out.43 The Act that closed out ERF provided that, 

effective November 1, 2003, adjustments to obligations that before such date would have been 

properly chargeable to the ERF shall be charged to current appropriations available for the same 

purpose.44 Now, it may be possible to seek reimbursement through FEMA. In some instances, 

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. What a commander may 

 39 Federal EMERGENCY MANAGEMENT AGENCY, DISASTER OPERATIONS LEGAL REFERENCE VER. 3.0 1-3 (20 Jan. 2017) 

[hereinafter Disaster Ops Legal Reference 3.0].

40 DoDD 3025.18, supra note 27, at para. 4.d.

41 Id.

42 See DoD 7000.14-R, supra note 24, ch. 6.

43 Closed out in § 1105 of the FY04 Emergency Supplemental Appropriations Act. 

44 Id.
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find is the support previously provided under the commanders immediate response authority rolled 

under a mission assignment from FEMA for which reimbursement is available via the disaster relief 

fund in accordance with the Stafford Act. Another option is the usage of DoD resources to perform 

emergency work “during the immediate aftermath of an incident which may ultimately qualify for 

assistance under [the Stafford Act].”45 The Governor may request the President to direct SecDef to 

use DoD assets to perform emergency work for up to 10 days before the formal declaration of a 

major disaster or emergency.46 Thus, even though the ERF no longer exists, there are multiple 

ways for Federal military units to be properly reimbursed for support to civil authorities legally 

provided before a declaration or mission assignment.

F. Civil Disturbance Operations (CDOs)47

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 

these authorities to conduct law enforcement activities is a specific exception to the Posse 

Comitatus Act (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 SAD status; (3) Federal civil 

law enforcement officials; and (4) Federal military troops, to include, if necessary, National Guard 

personnel called to active Federal service.

The insurrection statutes permit the President to use the Federal 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.48 At the end of that time period, the President may issue an Executive Order 

directing the use of Federal 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.49 Although the civilian authorities have the primary responsibility for civil 

disturbances, Federal military forces shall remain under Federal military command and control at all 

times. Federal military forces shall not be used for civil disturbances unless specifically directed by 

the President (pursuant to 10 U.S.C. §§ 251-255), except for emergency employment of Federal

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.

 45 42 U.S.C. § 5170b c.1 (2012) [hereinafter Emergency Work].

46 Id.

47 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. §§ 251–255 (2012); 

DODI 3025.21,supra note 29.

48 See 10 U.S.C. § 334 (2012). 

49 See DoDD 3025.18, supra note 27, para. 4.j.
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• 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 Federal military forces, the DoD may use O&M funds to cover the cost.

G. Support to Civilian Law Enforcement50

Although certain activities could be considered law enforcement type activities, they do not violate 

the PCA because they do not involve use of Federal 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. 

Under 10 U.S.C. § 274(a), SecDef may make DoD personnel available for the maintenance of 

equipment provided, to include equipment provided pursuant to 10 U.S.C. § 272. Under 10 U.S.C. 

§ 274(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. § 274(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 

 50 See generally 10 U.S.C. §§ 272–274, 277; DODI 3025.21, supra note 29; CNGBI 3000.04, supra note 32; 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) [hereinafter AR 700-131]; AFI 10-801, supra note 32.
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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. § 277, 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.51 The content defines the type of support to be rendered and the 

reimbursement to be provided.

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 legal authority, like the Economy Act, that allows an agency to retain the money. 

Currently, the Economy Act does not apply to National Guard in the performance of SAD missions. 

Further, although the language in 10 U.S.C. § 272 et seq. authorizes support to State and local 

civilian law enforcement agencies, the reimbursement provision in 10 U.S.C. § 277 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 to 

the U.S. Treasury as a Miscellaneous Receipt. 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 non-lethal 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 

 51 FAR, supra note 13, at pt. 2.101. 
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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 

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. 

4. Expert Advice and Training52

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.53 

Direct assistance by DoD personnel in activities that are fundamentally civilian law enforcement 

operations is not permitted, except as specifically authorized by DoDI 3025.21.54 

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 

 52 See generally 10 U.S.C. §§ 273, 275, 277 (2012); 50 U.S.C. § 2316; DODI 3025.21, supra note 29, Encl. 5; 

SECNAVINST 5820.7C, supra note 50, paras. 9.a.(4)–(5); AFI 10-801, supra note 33.

53 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 (2017).

54 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 29, Encl. 3.
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elaborate DoD training, and does not 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 41 infra). 

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 

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 Secretary of Defense 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 Secretary of Defense 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 infra 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 of 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 Secretary of Defense, as 

appropriate.55

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 

 55 DODI 3025.21, supra note 29.
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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 

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 Information56

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.57

H. Counterdrug Support58

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.

 56 10 U.S.C. § 371 (2012); DoDI 3025.21, supra note 34, Encl. 7; SECNAVINST 5820.7C, supra note 50, para. 7; AFI 

10-801, supra note 32, Attachment 1, ch. 3.

57 10 U.S.C. § 371(b) (2012).

58 10 U.S.C. § 124 (2012); 32 U.S.C. § 112 (2012); 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).
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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.59 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 

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 (United States 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 

 59 10 U.S.C. § 124 (2012). 
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Secretary of Defense is the approval authority. The approval will typically be reflected in a CJCSissued 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 flag officer. The delegation 

from SECDEF depends on the type of support provided, the number of personnel provided, and the 

length of the mission.60 One example is: for certain missions along the southwest 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.

I. Innovative Readiness Training61

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 

 60 See CJCSI 3710.01B, supra note 58.

61 10 U.S.C. § 2012 (2012); 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) [hereinafter DoDD 1100.20].
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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.

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 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.62 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 ($20 million in FY03) 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 Events63

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.

 62 19 July 1999, DoD Policy Memorandum Regarding Innovative Readiness Training O&M Funds (on file with 

CLAMO).

63 10 U.S.C. § 2564 (2012); 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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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, the Support for International Sporting Competitions (SISC) 

account that funds support of International Sporting Competitions. Support provided under this 

statute, 10 U.S.C. § 2564, 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.

The SISC account is a “no year” account that consolidated appropriations of previous events. As 

noted earlier, 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 (SAD) and full-time National Guard (FTNG) to be included in the 

definition of “active duty.” Under this change, the SISC account could fund the pay and non-travelrelated 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.
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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

DoD is allowed by 10 U.S.C. § 2558 to 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 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 Department64

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 

material will only be loaned or leased under compelling circumstances and when the material 

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:

 64 10 U.S.C. § 2667 (2012); U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL

(23 Aug. 2004) [hereinafter AR 700-131]; U.S. DEP’T OF ARMY, REG. 725-1, SPECIAL AUTHORIZATION AND 

PROCEDURES FOR ISSUES, SALES, AND LOANS (17 Oct. 2003) [hereinafter AR 725-1].
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• 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, AR 700-131 provides a comprehensive list of the categories 

of equipment that may be loaned or leased, and the proper approval authority. Army 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.
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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.

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 entered into 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 Traffic65

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. Also, 

participation in the MAST program shall not cause an increase in the funding required to operate 

the unit. 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 

 65 DOD 3025.1-M, supra note 32.
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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 Disposal66

Explosive Ordnance Disposal (EOD) is the detection, identification, field evaluation, rendering safe, 

recovery, and final disposition of unexploded explosive ordnance (UXO).67 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 

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.68 Each service is responsible for 

all self-caused Explosive Ordnance contamination on its own installations and operation bases.69 

EOD assistance involving formerly used defense sites (FUDS) will be funded from the Environment 

Restoration Accounts.70 Services must request reimbursement for EOD services rendered for nonDoD incidents from the requesting agency.71 

O. Military Working Dogs72

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.73 Requests for 

assistance may only be honored from civilian authorities, not private citizens.

74 Requesting 

agencies must agree to meet reimbursement requirements and utilize DD Form 1926 (Explosive 

Ordnance Disposal Civil Release and Reimbursement Agreement).75 

 66 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 29, Encl. 5.

67 AR 75-14, supra note 66, para. 3f.

68 Id. para. 7b(3).

69 Id. at para. 7d(3)(a).

70 Id. at para. 7d(3)(e).

71 AR 75-15, supra note 66, para. 3-2d.

72 DODD 5200.31E, supra note 53; U.S. DEP’T OF ARMY, REG. 190-12, MILITARY WORKING DOGS (11 Mar. 2013) 

[hereinafter AR 190-12].

73 Id. at para. 4-11a(1).

74 Id. at para. 4-11b(1).

75 Id. at para. 4-11b(2).
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P. Miscellaneous Support76

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.

Q. Miscellaneous Exceptions

DoDI 3025.21, Encl. 3, para. 1.b., contains a list of situations containing express authorization for 

the use of military forces to enforce the civil law. Among them are the protection of the President, 

Vice President, and other dignitaries; and assistance in the case of crimes against members of 

Congress, foreign officials, or involving nuclear materials.

R. Funding Issues Related to the Use of the National Guard in Domestic Operations

The National Guard is both an “organized militia” of a State, as well as a reserve component of both 

the Army and the Air Force. When referring to the National Guard’s Federal reserve component 

status, the appropriate term is “National Guard of the United States.” In terms of domestic 

operations, it is important to recognize that as a general rule, National Guard members are in one of 

three statuses: (1) Title 10, (2) Title 32 and (3) State Active Duty (SAD). When National Guard 

members are mobilized and placed on Title 10 orders, they are Federally funded and under a 

Federal chain of command like any other active component Airman or Soldier. Typically, this is 

seen when a National Guard unit is mobilized for OCONUS military operations. When they are 

serving in a Title 32 capacity, they are Federally funded, but operating under a “State” chain of 

command up to the State’s Governor. The most typical use of National Guard members in a Title 

32 status is when they are performing their required weekend training or their two-weeks of Annual 

Training. When they are serving in a SAD status, they are funded by the State, and are under a 

State chain of command. That is, often times when a National Guard unit is performing a State 

emergency response (e.g., flood, wildfires, etc.) they are often in a purely State status, and being 

paid out of that State’s funding (as opposed to Federal funding). 

In terms of Domestic Operations, there is a specific DoD Instruction that covers the employment of 

National Guard personnel in a Title 32 status—DoDI 3025.22, “The Use of the National Guard for 

Defense Support to Civil Authorities.” That DoDI explains that the Secretary of Defense, with the 

concurrence of the affected Governors, is the “sole authority” to authorize DoD funding of the 

 76 10 U.S.C. §§ 379, 382 (2012); 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) [hereinafter DoDD 5210.36].
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National Guard for DoD operations or missions, including DSCA. If authorized by SECDEF to 

perform Federally-funded (Title 32) domestic operations, the National Guard personnel are 

typically performing such operations pursuant to 32 U.S.C § 502(f). Accordingly, the National 

Guard service-members performing such operations are paid out of the Army National Guard and 

Air National Guard personnel accounts. If this type of Title 32 duty is being carried out pursuant to 

a Mission Assignment from FEMA, those military personnel accounts may be reimbursed by 

FEMA under the Stafford Act. That is, assuming that SECDEF determines that the National Guard 

is the appropriate sourcing solution for a FEMA mission assignment, SECDEF would authorize the 

use National Guard service-members to perform the mission in a Title 32 status, to be reimbursed 

later by FEMA from Disaster Relief Funds. This use of Federal funding for a SECDEF-authorized 

use of the NG for DSCA should not be confused with the use of a State’s National Guard in a SAD 

status. Again, when National Guard members are performing operations in a SAD status, the costs 

of that type of mission are borne by the State, and not by DoD. 

Finally, in order to understand the Federal funding for the National Guard, it is important for judge 

advocates to understand the role of the National Guard Bureau (NGB), and NGB’s United States 

Property and Fiscal Officers, (USPFOs). The National Guard Bureau is “Joint Activity of the 

Department of Defense,” with statutory authority stemming from 10 U.S.C. § 10501-10508. The 

primary DoD-level implementation of that authority is set out in the NGB Charter—DoDD 5105.77. 

NGB is led by the Chief of NGB (CNGB) a four-star general and member of the Joint Chiefs of 

Staff. CNGB is responsible for planning and administering the budgets of the Army National 

Guard and the Air National Guard of the United States. CNGB is also responsible for supervising 

the acquisition/supply/accountability for Federal property issue to the National Guard through the 

USPFO. See 10 U.S.C. § 10503. 

As applied to Domestic Operations (DOMOPs), the USPFOs (as the agents of SECARMY and 

SECAF through CNGB) play a central role at the State National Guard level in terms of providing 

oversight for the Federal funds and Federal equipment that is in the possession of their State’s 

National Guard. During a SAD mission, the State’s Adjutant General (Commander of that State’s 

National Guard) has the authority to use Federal equipment for State emergency response as 

determined by the Governor. The USPFOs are responsible for ensuring that the Federal equipment 

(particularly vehicles and helicopters) are being tracked for reimbursement purposes. Following a 

SAD mission, the USPFO presents a bill to the State for reimbursement.
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273 Cyberspace Operations in the National Guard

CHAPTER 13

CYBERSPACE OPERATIONS IN THE NATIONAL GUARD

KEY REFERENCES:

• Support and services for eligible organizations and activities outside Department of Defense, 

10 U.S.C. §2012 et seq.

• The Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq.

• The Wiretap Act, 18 U.S.C. §2511 et seq.

• The Stored Communications Act, 18 U.S.C. §2701 et seq.

• The Pen Trap and Trace Act, 18 U.S.C. §3121 et seq.

• The Economy Act, 31 U.S.C. §1535 et seq.

• Executive Order (EO) 12333 - U.S. Intelligence Activities, December 4, 1981, as amended 

by EO 13284 (2003), EO 13355 (2004) and EO 13470 (2008).

• National Guard, 32 U.S.C. §502 et seq.

• Presidential Policy Directive 20, United States Cyber Operations Policy, 16 October 2012

• Presidential Policy Directive 41, United States Cyber Incident Coordination, 26 July 2016

• Department of Defense, Cyber Strategy, (Washington, D.C. 2015)

• Department of Defense Directive (DoDD) 1100.20, Support and Services for Eligible 

Organizations and Activities Outside the Department of Defense, 12 April 2004

• DoDD 3020.40, Mission Assurance, 29 November 2016

• DoDD 3025.18, Defense Support of Civil Authorities (DSCA), 29 December 2010, 

Incorporating Change 2, 19 March 2018

• DoDD 5240.01, DoD Intelligence Activities, 27 August 2007, Incorporating Change 1 and 

Certified Current Through 27 August 2014

• DoDD 5148.13, Intelligence Oversight, 26 April 2017

• Department of Defense Instruction (DoDI) 1215.06, Uniform Reserve, Training and 

Retirement Categories, 11 March 2014, Incorporating Change 1, Effective 19 May 2015

• DoDI 3025.22, The Use of National Guard for Defense Support of Civil Authorities, 26 July 

2013, Incorporating Change 1, Effective 15 May 2017

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

• DoDI 4000.19, Support Agreements, 25 April 2013, Incorporating Change 1, 30 November 

2017

• DoD Manual 5240.01, Procedures Governing the Conduct of Intelligence Activities, 8 

August 2016

• DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that 

Affect United States Persons, December 1982, Incorporating Change 2, Effective 26 April 

2017

• Joint Publication 3-12(R), Cyberspace Operations, 5 February 2013

• Directive Type Memorandum (DTM) 17-007, Interim Policy and Guidance for Defense 

Support to Cyber Incident Response, 21 June 2017

• Deputy Secretary of Defense (DepSecDef) Policy Memorandum (PM) 16-002, Cyber 

Support and Service Provided Incidental to Military Training and National Guard Use of 
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DoD Information Networks, Software, and Hardware for State Cyberspace Activities, 

24 May 2016

• SecDef Memorandum, Leveraging Military Training for Incidental Support of Civil 

Authorities, 16 Dec 2013

• National Guard Cyber Strategy, 5 Jan 2018

• National Guard Regulation (NGR) 5-2, National Guard Support Agreements, 14 Oct 2010

• NGR 500-5/ANGI 10-208, National Guard Domestic Law Enforcement Support and Mission 

Assurance Operations, 18 August 2010

• NGR 350-1, Army National Guard Training, 4 August 2009

• Chief, National Guard Bureau Instruction 2000.01C, National Guard Intelligence Activities, 

14 August 2018

• Chief, National Guard Bureau Manual 2000.01, National Guard Intelligence Activities, 26 

November 2012

• Air National Guard Instruction 36-2001, Management of Training and Operational Support 

within the Air National Guard, 19 October 2009, Certified Current 28 April 2014

• OpJAGAF 2005/36, 28 July 2005, AIR NATIONAL GUARD JAO

• Department of Homeland Security, National Preparedness System, (November 2011)

• Department of Homeland Security, National Response Framework, (June 2016)

• Department of Homeland Security, National Cyber Incident Response Plan, (December 

2016)

A. Introduction

Cyber operations are not the future. They are now. The National Guard faces the same 

constraints in cyberspace as in the traditional kinetic realm. However, cyberspace presents some 

unique challenges. For instance, most military equipment is not governed by restrictive licensing 

agreements. However, software-licensing agreements may restrict who may use a cyber-tool kit 

and how that kit may be used. Additionally, cyberspace activities are generally not linear in 

nature. For example, one computer does not normally interact directly with another computer. 

Rather, the data is transferred through multiple routers and servers, all of which may not be in 

the same town, State or even country. As a result, actions intended to have a domestic effect in 

cyberspace could have international consequences. Additionally, attribution in cyberspace is not 

as clear as it is in the kinetic realm. What may appear to be an action taken by a local resident 

could very well be an action orchestrated by a foreign actor. This complex and evolving battle 

space requires legal practitioners to have both a basic understanding of how the cyberspace 

works as well as the laws and policies governing those actions.

B. DoD Cyber Missions

The DoD has three primary cyber missions: (1) DoD must defend its own networks, systems, and 

information; (2) DoD must be prepared to defend the United States and its interests against 
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275 Cyberspace Operations in the National Guard

cyberattacks of significant consequences; (3) if directed by the President or SecDef, DoD must 

provide integrated cyber capabilities to support military operations and contingency plans. 1

As depicted in Figure 1, DoD cyber missions can be categorized as defensive or offensive 

operations.

2

 Categorization depends on the capability and the effects of that capability. It is 

important to note that capability does not mean authority. Understanding the effects of cyber 

capabilities is key to determining the authority necessary to perform the mission. 

1. Protect the DoD Information Network (DODIN)

Protecting DODIN is defensive in nature and includes actions such as designing, building, 

configuring, securing, operating, maintaining, and sustaining the information environment relied 

upon for operations by activities, such as correcting known IT vulnerabilities, encrypting data, 

and ensuring user and administrative training and compliance. 

 1 U.S. DEP’T OF DEFENSE, CYBER STRATEGY (2015), https://dod.defense.gov/Portals/1/features/2015/0415_cyberstrategy/Final_2015_DoD_CYBER_STRATEGY_for_web.pdf [hereinafter CYBER STRATEGY].

2

 Brett T. Williams, The Joint Force Commander’s Guide to Cyberspace Operations, 73 J. FORCE Q., 12, 14 (2d Q. 

2014).
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2. Defensive Cyberspace Operations (DCO)

The objective of DCO is to ensure freedom of maneuver in cyberspace. DCOs are both passive 

and active cyberspace defense activities3 that allow the outmaneuvering of an adversary.4

 DCO 

provides the ability to discover, detect, analyze, and mitigate threats, to include insider threats.5 

DCO is prioritized against key cyber terrain to ensure data moves securely across the information 

environment. DCO is executed against specific threats that have both malicious capability and 

intent to affect key cyber terrain.6

DCO-Internal Defensive Measures (DCO-IDM) are those actions taken internally to friendly 

cyberspace.7 The essential tasks for DCO-IDM are actively hunting for advanced internal threats 

as well as the internal responses to these threats.8 DCO-IDMs respond to unauthorized activity 

or alerts/threat information within the DODIN, as well as leverage intelligence, 

counterintelligence, law enforcement, and other military capabilities as required.9

 In other 

words, DCO-IDMs include hunting on friendly cyber terrain for threats attempting to evade 

security protocols and directing appropriate internal responses.10 

DCO-Response Actions (DCO-RA) are taken outside the DODIN to stop or block the attack. An 

example of DCO-RA is shutting down an external router from which malicious activity is 

emanating. The essential tasks for DCO-RA are deliberate, authorized defensive measures or 

activities taken external to the DODIN to defeat ongoing or imminent threats to defend DoD

cyberspace capabilities or other designated systems.11 DCO-RAs must be authorized in 

accordance with policy, procedures, and applicable standing rules of engagement and any 

applicable supplemental rules of engagement and may rise to the level of use of force.12 In other 

words, DCO-RAs include activities outside friendly network space to stop an attack before it 

reaches our key cyber terrain.13 To use a metaphor, we “catch arrows” with DCO-IDM and we 

“kill the archer” with DCO-RA.

3. Offensive Cyberspace Operations (OCO)

OCO “project power by the application of force in or through cyberspace.”14 An example is 

hacking an adversary’s computer. Authorities governing OCO activities are classified and a 

 3

 JOINT CHIEFS OF STAFF, JOINT PUB. 3-12(R), CYBERSPACE OPERATIONS II-2 (5 Feb. 2013) [hereinafter JP 3-

12(R)].

4

 WILLIAMS, supra note 2, at 5.

5

 JP 3-12(R), supra note 3, at II-3.

6

 WILLIAMS, supra note 2, at 15.

7

 Id.

8

 JP 3-12(R), supra note 3, at II-3.

9

 Id.

10 WILLIAMS, supra note 2, at 16.

11 JP 3-12(R), supra note 3, at II-3.

12 Id.

13 WILLIAMS, supra note 2, at 16.

14 JP 3-12(R), supra note 3, at GL-4.
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detailed description is outside the scope of this chapter. However, briefly stated, OCO represents 

a synergy between Title 50 (national intelligence) authorities to collect signals intelligence, and 

Title 10 (military) authorities to apply force in the cyber realm. For full situational awareness and 

to advise on mission capability and authority, judge advocates must obtain the appropriate 

security clearance to fully understand the DoD cyber missions, responsibilities, authorities, laws 

and regulations, including classified materials related to those missions.

C. DoD Cyber Mission Force (CMF)

The active component CMF is comprised of cyber operators organized into 133 teams primarily 

aligned as follows: Cyber Protection Team (CPT), National Mission Team (NMT), Combat 

Mission Team (CMT), and support teams. Combatant commands integrate CMTs and CPTs into 

plans and operations and employ them in cyberspace, while the NMT operates under the 

Commander of USCYBERCOM. “[T]eams can also be used to support other missions as 

required by DoD.”15 Furthermore, the National Guard has Defensive Cyberspace OperationsElements (DCO-Es), which by design do not have an active component CMF mission.

1. Cyber Protection Team (CPT)

The mission of CPTs is to “[d]efend priority DoD networks and systems against priority 

threats”16 by augmenting traditional defensive measures through their unique capabilities.

17 In 

other words, CPTs provide mission assurance and threat mitigation support to U.S. Critical 

Infrastructure Key Resources (CIKR), U.S. military services, and key terrain of combatant 

commands. 

While in Title 10 status, CPTs provide surge support to active duty cyber component (such as 

USCYBERCOM, AFCYBER, or ARCYBER) and support DCOs by removing adversary 

capabilities, defending the supported commander's key cyberspace terrain and critical assets, and 

preparing local cyberspace defenders to sustain advanced cyberspace defense tactics, techniques 

and procedures (TTP). CPTs are the forces tasked with the DCO-IDM mission under 

USCYBERCOM.18 

While in a Title 32 status, CPTs train for the Federal mission.

2. National Mission Teams (NMT)

NMTs and their associated support teams defend the United States and its interests against 

cyberattacks of significant consequence.19 NMTs are the forces tasked with the DCO-RA 

mission under USCYBERCOM.20

 15 CYBER STRATEGY, supra note 1, at 6.

16 U.S. DEP’T OF DEFENSE, https://dod.defense.gov/News/Special-Reports/0415_Cyber-Strategy/ (last visited Aug. 

27, 2018).

17 CYBER STRATEGY, supra note 1, at 6.

18 WILLIAMS, supra note 2, at 16.

19 CYBER STRATEGY, supra note 1, at 6.
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3. Combat Mission Teams (CMT)

CMTs “support combatant commands by generating integrated cyberspace effects in support of 

operational plans and contingency operations.”21

4. Support and Other Teams

Support teams “provide analytic and planning support to the [NMTs] and [CMTs].”22 Other 

teams include Cyber Intelligence, Surveillance and Reconnaissance Squadrons; Information 

Aggressor Squadrons; Cyber Training Squadrons; and Data Processing Units. These teams have 

specific mission sets with a nexus to DoD’s cyber mission.

5. DCO-E

Although not part of the CMF, DCO-Es are State assets serving as a military first responder for 

Governors and The Adjutants General (TAGs) for cyber emergencies. DCO-Es may provide 

surge capacity of the same capability of Title 10 assets but are prohibited from being mobilized, 

as a unit, for Title 10 missions.

D. Title 32 Cyberspace Activities

The National Guard must have both proper fiscal authority and an authorized mission to conduct 

cyberspace activities while in a Title 32 status.

Congress funds the National Guard to train for the Federal mission. Inactive Duty Training 

(IDT) and Annual Training (AT) are conducted under 32 U.S.C. §502(a) as part of a published 

training plan.23 Chief, National Guard Bureau (CNGB) has the inherent authority to authorize

additional training funds under 32 U.S.C. §502(f)(1). This broad statutory authority enables the 

conduct of training activities that also have a significant operational benefit. However, the broad 

nature of this authority warrants scrutiny, and cautious analysis, as further described herein. 

Finally, the President and the SecDef have authority to authorize operational missions under 32 

U.S.C. §502(f)(2).24

When in their SAD or Title 32 statuses, the National Guard may not conduct DCO-RA and 

OCO.25 These activities must be conducted in a Title 10 status.26 Therefore, the National Guard 

 20 WILLIAMS, supra note 2, at 16.

21 CYBER STRATEGY, supra note 1, at 6.

22 U.S. DEP’T OF DEFENSE, https://dod.defense.gov/News/Special-Reports/0415_Cyber-Strategy/ (last visited Aug. 

27, 2018).

23 Training plans must be in accordance with National Guard Bureau (NGB) NGB 350-1 and Air National Guard 

Instruction (ANGI) 36-2001.

24 Civil support teams, counterdrug, and homeland defense are operational missions authorized by statute under 32 

U.S.C. §502(f)(2). There are currently no operational cyber missions.

25 See generally U.S. DEP’T OF DEF., POL’Y MEM. 16-002, CYBER SUPPORT AND SERVICE PROVIDED INCIDENTAL TO 

MILITARY TRAINING AND NATIONAL GUARD USE OF DOD INFORMATION NETWORKS, SOFTWARE, AND HARDWARE 

FOR STATE CYBERSPACE ACTIVITIES (24 May 2016) [hereinafter PM 16-002]. This memorandum is also commonly 
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279 Cyberspace Operations in the National Guard

can train for the Federal mission in a Title 32 status but is limited to DODIN operations and 

DCO-IDM activities.

Nevertheless, commanders are not limited to computer-based training or exercises on their own 

systems. Title 32 training authorities can be leveraged to provide support to (1) active 

component, (2) civil authorities, and (3) other statutorily eligible entities.

1. Support to Active Component. The National Guard can provide an incidental 

operational benefit while conducting training.27 The key is that the primary purpose of the 

activity must be military training. Enclosure 4, paragraph 1, of DoDI 1215.06, encourages 

maximum Reserve Component utilization to the extent that, “all training duty planned and 

performed by Reserve Components members shall capitalize on Reserve Components 

capabilities to accomplish operational requirements while maintaining their mission readiness for 

domestic and overseas operations. RC members may be employed to support active component 

mission requirements as part of conducting training duty.”28 Additionally, “support to mission 

requirements, (i.e., [operational support]),” may occur “as a result of the training.”29 The 

following analysis is suggested to help commanders determine whether the conduct of training 

that provides an incidental operational benefit is authorized:

1. Is National Guard performance of the Federal operational mission consistent with the 

National Guard unit's formalized training program? If not, then the activity runs the risk of 

violating fiscal laws by the use of appropriated funds for an improper purpose.

2. Can the Federal mission be performed without support from the National Guard? If not, 

then the National Guard has moved beyond a support role into an operational role and is 

exceeding the scope of its authority.

3. Is the use of full-time National Guard (FTNG) personnel disproportionate? FTNG may 

participate in activities other than organizing, administering, recruiting, instructing, and training 

(OARIT) on a non-interference basis. Disproportionate use runs the risk of violating fiscal laws 

by the use of appropriated funds for an improper purpose. 

In order to answer these questions, the facts must reveal the proposed task, duration, and scope. 

If the training is not within scope of the National Guard unit’s formalized training program, then 

the question becomes whether the training will nevertheless benefit DoD. This analysis should 

consider policy issues with risk assessment and the appropriateness when using the National 

 referred to as the “CTAA” memo. CTAA stands for coordinate, train, advise, and assist cyber support and services 

provided by members of the National Guard incidental to military training when using DoD information networks 

(DoDIN), software, and hardware for State cyberspace activities.

26 PRESIDENTIAL POL’Y DIR. 20, UNITED STATES CYBER OPERATIONS POLICY (16 Oct. 2012) [hereinafter PPD 20].

27 U.S. DEP’T OF DEF., INSTR. 1215.06, UNIFORM RESERVE, TRAINING AND RETIREMENT CATEGORIES (19 May 

2015) [hereinafter DoDI 1215.06].

28 Id. at encl. 4, para. 1.

29 Id. at encl. 3, para. 2.a.1.
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Guard similar to the CARRLL factors used when considering whether to support a request for 

assistance from civil authorities.

2. Support to Civil Authorities – Generally. The National Guard can provide defense 

support to civil authorities, commonly referred to as DSCA, when a qualifying entity requests 

assistance.30 DoD publications on DSCA focus on a response in Title 10 or 32 U.S.C. §502(f)(2) 

status. Currently, Directive-Type Memorandum (DTM) 17-007 is the only publication on DSCA 

for cyber operations, or Defense Support to Cyber Incident Response (DSCIR).31 DSCIR may 

be provided for a cyber incident in response to a request for assistance from a lead Federal

department or agency for asset response or threat response outside DODIN as described in PPD41.32 This includes DSCIR for immediate response authority to save lives, present human 

suffering, or mitigate great property damage.33 Based on the nature of support, liability waivers, 

memorandums of understanding or agreements (including permission from asset owner to access 

appropriate information and information systems), non-disclosure agreements, or other 

appropriate legal documents requested by DoD must be signed before providing DSCIR.34

DSCIR does not preclude support to civil authorities in other statuses, such as training which 

provides an incidental operational benefit.

3. Support to Civil Authorities – Intelligence Support to Law Enforcement. Cyber 

teams likely have intelligence personnel assigned to them. Executive Order 12333 and 

associated Intelligence Oversight rules and procedures will apply if cyber intelligence personnel 

provide support to law enforcement.35 While any domestic intelligence activities (including 

collection) must be done in a Title 10 or Title 50 status with proper mission and authority, 

SecDef approval is required for the use of intelligence assets for anything other than foreign 

intelligence, counterintelligence, or intelligence training.36 These activities include the conduct 

of training with an incidental operational benefit. Intelligence support to law enforcement 

requires SecDef approval in accordance with Procedure 12 under DoD 5240.1-R.37

4. Support to Civil Authorities – Economy Act. The Economy Act allows Federal

agencies to provide support to other Federal agencies on a reimbursable basis, unless the support 

 30 U.S. DEP’T OF DEF., INSTR. 3025.22, THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL 

AUTHORITIES para. 3 (26 July 2013) (ch. 1, 15 May 2017) [hereinafter DoDI 3025.22].

31 Directive-Type Memorandum (DTM) 17-007 is set to expire on 21 June 2019 and will be converted to a new 

issuance. 

32 PRESIDENTIAL POL’Y DIR. 41, UNITED STATES CYBER INCIDENT COORDINATION (26 July 2016) [hereinafter PPD 

41].

33 U.S. DEP’T OF DEF., DIRECTIVE TYPE MEM. 17-007, INTERIM POLICY AND GUIDANCE FOR DEFENSE SUPPORT TO 

CYBER INCIDENT RESPONSE (21 June 2017) [hereinafter DTM 17-007].

34 Id.

35 See generally CHIEF, NAT’L GUARD BUREAU, INST. 2000.01C, NATIONAL GUARD INTELLIGENCE ACTIVITIES (14 

Aug. 2018) [hereinafter CNGBI 2000.01C].

36 Id. at encl. A, para. 13.c.6.

37 Id.
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is provided in the normal course of training or operations, or the support results in a substantially 

equivalent training value.38

5. Other Entities. Deputy Secretary of Defense Policy Memorandum (DepSecDef PM)

16-002, “Cyber Support and Services Provided Incidental to Military Training and National 

Guard Use of DoD Information Networks, Software and hardware for State Cyberspace 

Activities,” commonly referred to as the “CTAA memo,” provided guidance on the National 

Guard providing cyber support and services incidental to military training through Innovative 

Readiness Training (IRT) projects.39 IRT projects have traditionally been used for engineering 

and construction (such as building a bike trail for a local government or fixing shelters for the 

Boy Scouts), or for providing medical care to underserved communities. The CTAA memo 

clarified that IRT includes cybersecurity projects. Specifically, the CTAA memo provides 

guidance that coordinating, training, advising, and assisting certain qualifying mission partners 

must be done in accordance with IRT eligibility and program requirements under 10 U.S.C. 

§2012 or, alternatively, with SecDef approval.40 An example of a cybersecurity IRT project 

might be a request from a local government entity to enhance network security measures.

It is important to note that the CTAA memo does not preclude consultation or other methods of 

training under other authorities like the Economy Act or Stafford Act.41

E. National Cyber Incident Response Plan (NCIRP)

The National Preparedness System outlines an organized process for the whole of community to 

move forward with their preparedness activities and achieve the National Preparedness Goal.42 

The National Preparedness System integrates efforts across five areas – Prevention, Protection, 

Mitigation, Response, and Recovery. The NCIRP is part of the broader National Preparedness 

System under the Response Framework and establishes the strategic framework and doctrine for 

a whole-of-Nation approach to mitigating, responding to, and recovering from a cyber-incident. 

Presidential Policy Directive (PPD) 41, U.S. Cyber Incident Coordination, sets forth principles 

governing the Federal Government’s response to any cyber incident, provides an architecture for 

coordinating the response to significant cyber incidents, and requires the Department of 

Homeland Security (DHS) to develop the NCIRP for the purpose of addressing cybersecurity 

risks to critical infrastructure. 

 38 31 U.S.C. §1535 (2012) [hereinafter The Economy Act].

39 On March 1, 2018, the expiration date of the CTAA memorandum was extended to March 1, 2019 or when the 

original guidance is incorporated into permanent issuances, whichever occurs first.

40 PM 16-002, supra note 25.

41 Outside of CTAA activities, the CTAA memorandum provides guidance that consulting with government entities 

and with public and private utilities, critical infrastructure owners, the Defense Industrial Base, and other nongovernmental entities, as needed, in order to protect DODIN, software, and hardware, enhance DoD cyber 

situational awareness, provide for DoD mission assurance requirements, and provide cybersecurity unity of effort 

are outside the context of CTAA training activities. 

42 See generally DEP’T OF HOMELAND SECURITY, NATIONAL PREPAREDNESS SYSTEM (Nov. 2011) [hereinafter NPS

2011].
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The Department of Justice (DoJ) is the lead Federal agency for threat response during a 

significant cyber incident, acting through the Federal Bureau of Investigation and National Cyber 

Investigative Joint Task Force.43 DHS is the lead Federal agency for asset response during a 

significant cyber incident, acting through the National Cybersecurity and Communications 

Integration Center (NCCIC).44 Threat response activities, asset response activities, and 

significant cyber incident are further discussed and defined in PPD 41.45

According to the NCIRP, the DoD is responsible for threat response to cyber incidents affecting 

DoD assets and DODIN.46 DoD can also support civil authorities for cyber incidents outside the 

DODIN when requested by the lead Federal agency, and approved by the appropriate DoD

official, or directed by the President. Such support would be provided based upon the needs of 

the incident, the capabilities required, and the readiness of available forces.

DHS, in coordination with the heads of other appropriate Federal departments and agencies and 

in accordance with the NCIRP is required to regularly update, maintain, and exercise the Cyber 

Incident Annex to the National Response Framework (NRF).47 The NRF is part of the NPS and 

is a guide on how the Nation responds to all types of disaster and emergencies. The NRF 

contains 14 Emergency Support Functions (ESF) and annexes that describe the Federal

coordinating structures to group resources and capabilities into functional area that are most 

frequently needed in a national response.48 ESF #2 Communications addresses cyber security 

issues that result from or occur in conjunction with incidents. However, for incidents that are 

primarily cyber in nature, the Cyber Incident Annex is used and ESF #2 supports responses to 

cyber incidents as directed.

49

F. State Active Duty (SAD)

Personnel in SAD status are under the command and control of their Governor. As such, State 

laws govern issues in discipline, ethics, information protection, privacy, and liability. However, 

certain Federal laws may apply in areas such as HIPAA and the Computer Fraud and Abuse Act. 

States cannot engage in international warfare, i.e. a State cannot attack a foreign country by 

cyber or kinetic means. Any attempts of activities that could be considered DCO-RA or OCO 

must be carefully reviewed and should receive a written opinion from the State Attorney General 

in order to set parameters of activities.

 43 PPD 41, supra note 32, sec. V, para. B.c.1.

44 Id. at sec. V, para. B.c.2.

45 Id.

46 DEP’T OF HOMELAND SECURITY, NATIONAL CYBER INCIDENT RESPONSE PLAN 11 (Dec. 2016) [hereinafter 

NCIRP 2016].

47 Id. at 9.

48 DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK (June 2016) [hereinafter NRF 2016].

49 DEP’T OF HOMELAND SECURITY, EMERGENCY SUPPORT FUNCTION 2, COMMUNICATIONS ANNEX (June 2016),

https://www.fema.gov/media-library-data/1473679033823-

d7c256b645e9a67cbf09d3c08217962f/ESF_2_Communications_FINAL.pdf [hereinafter ESF 2].
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DoD rules generally do not apply to SAD personnel, but will apply to use of equipment procured 

through a Federal trace, including reimbursement requirements for the use of USG equipment.50 

Licensing requirements may limit the use of Federal cyberspace equipment or programs to 

Federal use for Federal systems only and therefore would not be authorized for State use in a 

SAD status or outside of the DODIN. Executive Orders (EOs) 12968 and 13549, as amended,

and DoD implementing guidance govern access and use of “DoDINs, software, hardware, 

systems, tools, tactics, techniques, and procedures beyond the classification level of SECRET.”51 

Further, National Guard members serving in their SAD status are prohibited from using this 

equipment and software.

52

G. Federal Laws Governing Cyber Activities 

National Guard personnel may be subject to Federal criminal laws if they exceed the scope of 

their mission.53 This is particularly important for non-Federalized National Guard personnel

who may exceed the scope of authorized activities if performing other than DCO-IDM activities. 

National Guard personnel may only perform actions on a network when they have permission 

from the network owner to do so, otherwise, they may be subject to Federal and/or State criminal 

laws.

1. Computer Fraud and Abuse Act (18 U.S.C. §1030)

In 1984, the Computer Fraud and Abuse Act as related to fraud and related activity in connection 

with computers was added to Title 18, Chapter 47, Fraud and False Statements. The Act 

prohibits theft of information through unauthorized access or exceeded authorization on a 

“protected” computer.54 A protected computer is a computer that is “(a) exclusively used by a 

financial institution or USG; or used by financial institute or USG and conduct that affects that 

use; or (b) used in or affecting interstate or foreign commerce or communication, including 

computers outside the US, and conduct that affects that use.”55

The Computer Fraud and Abuse Act also prohibits damage by “(a) knowingly causing the 

transmission of a program, information, code, or command, and as a result of such conduct, 

intentionally causes damage without authorization, to a protected computer; (b) intentionally 

accessing a protected computer without authorization, and as a result of such conduct, recklessly 

 50 U.S. DEP’T OF ARMY AND AIR FORCE, NAT’L GUARD REG. 500-5, NATIONAL GUARD DOMESTIC LAW 

ENFORCEMENT SUPPORT AND MISSION ASSURANCE OPERATIONS (18 Aug. 2010) [hereinafter NGR 500-5]. 51 PM 16-002, supra note 25, at 3.

52 Id.

53 The Computer Fraud and Abuse Act, Wiretap Act, Pen Trap and Trace Act, and Stored Communications Act are 

the most common Federal laws governing cyber activities. Other Federal laws that are relevant include the Privacy

Act, the Health Insurance Portability and Accountability Act (HIPAA), and the Freedom of Information Act (FOIA). 

For further reading, see Congressional Research Service (CRS) Report R42507, Federal Laws Relating to 

Cybersecurity: Overview of Major Issues, Current Laws, and Proposed Legislation, by Eric. A Fischer.

54 18 U.S.C. §§ 1030(a)(1), (2) (2012).

55 18 U.S.C. § 1030(e) (2012).
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causes damage; or (c) intentionally accessing a protected computer without authorization, and as 

a result of such conduct, causes damage and loss.”56

2. Wiretap Act (18 U.S.C. §2511)

The Wiretap Act prohibits the “intentional interception of any wire, oral, or electronic 

communication.”57 It also prohibits “intentional disclosure or use of the contents of any wire, 

oral, or electronic communication while knowing or having reason to know that the information 

was obtained illegally.”58

3. Pen Register and Trap and Trace Act (18 U.S.C. §3121)

The Pen Register and Trap and Trace Act prohibits the real-time interception of the non-contents 

of communications by a “pen register or a trap and trace device without first obtaining a court 

order.”59 However, the prohibition does not apply to a service provider for the “operations, 

maintenance, and testing” of the service.60 It also does not apply to a service provider in the 

“protection of the rights or property of such service provider, or to the protection of users of that 

service from abuse of service or unlawful use of service.”61

4. Stored Communications Act (18 U.S.C. §2701)

The Stored Communications Act governs unlawful access to stored communications by 

prohibiting “(a) intentionally accessing, without authorization, of a facility through which an 

electronic communication service is provided; or (b) intentionally exceeding an authorization to 

access that facility and thereby obtaining, altering, or preventing authorized access to a wire or 

electronic communication while it is in electronic storage in such system.”62

H. Judge Advocate Responsibilities

Through the Economy Act or NRF, the National Guard can partner with Federal agencies, such 

as DHS, just like any other incident response preparation through the NPS. In the cyberspace 

domain, there are unique rules for the use of cyber that need to be reviewed and agreed upon by 

the National Guard and the asset owner through Memoranda of Understanding/Agreement and 

Nondisclosure Agreements. It is key to develop relationships with the State Attorney General’s 

office to be aware of any State specific rules that may apply as well as the constraints that apply 

to Federal equipment. Some of the issues for JAs to consider are:

• written permission from asset/network owner to access their system

 56 18 U.S.C. §1030(a)(5) (2012).

57 18 U.S.C. §§ 2511(1)(a), (b) (2012).

58 18 U.S.C. § 2511(1)(c) (2012).

59 18 U.S.C. § 3121(a) (2012).

60 18 U.S.C. § 3121(b) (2012).

61 18 U.S.C. § 3121(b) (2012).

62 18 U.S.C. § 2701(a) (2012).
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• scope of assistance to be provided (assessment and report finding; mitigation and 

remediation; responses outside scope of assistance)

• status of military personnel (SAD, Title 32), command and control, and legal basis for 

disciplinary actions

• destruction/storage of data obtained, to include privacy and security restrictions

• confidentiality of proprietary data or information (ie, certain Federal cyber equipment 

may report all data to USCYBERCOM)

• whether the system will only scan or actively respond to the adversary action (ie, hack or 

hackback which is prohibited outside of Title 10 status)

• privacy balanced with required disclosure of criminal/fraudulent activity 

• privacy of network users (union, contractor, etc.)

• privacy of business to not publicize discovered activity requiring criminal investigation

• industry regulatory requirements to disclose incident

• liability for unintended impact to operations

• Intelligence Oversight requirements (ie, collection of USPI)

• payment for services (look to the FAR and DFARS for specific requirements)

• disputes resolution mechanism

• conflicts of interest (use of a proprietary tool in which a National Guardsman may have 

personal pecuniary interest)

• licensing limitations for use of a cyberspace capability and data rights for TTPs or 

software developed in conjunction with private entities as part of a cyber-response or 

exercise

• other relevant laws (State specific, Privacy, HIPAA, FOIA, FTCA, etc.)

The laws governing cyber activities are constantly changing in response to new technology and

uses of cyber capabilities in warfare. It is critical to ensure the latest laws are examined when 

providing advice to commanders in this new and ever evolving area of the law. If you are 

addressing an issue involving the cyber law, you should seek out additional expertise to assist 

you in this complicated area.
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