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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.40
The Nuclear/Radiological Incident Annex (NRIA) of the NRF supersedes the Federal Radiological
Emergency Response Plan (FRERP) of 1996.41 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 to address the consequences of the event. 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.
“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.
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 nuclear facilities owned or operated by DoD, materials shipped by or for DoD, nuclear
weapons, and DOD satellites contain radioactive materials that impact within the United States.42
National Security Presidential Directive 46 (NSPD-46)/Homeland Security Presidential Directive
15 (HSPD-15)43 detail the policy of the United States in combating terrorism and reaffirm the lead
agencies for the management of various aspects of the counterterrorism effort. They recognizes that
states have primary responsibility in responding to terrorist incidents, including events, and the
Federal Government provides assistance as required.
8. Impact of the Homeland Security Act on the Federal Response Structure and Process
The Homeland Security Act of 2002 represented a watershed in the manner in which the federal
government organizes to respond to WMD terrorism.44 The Act established the DHS, and
consolidated the consequence management missions, assets, and personnel of numerous federal
departments and agencies into a single department.45 The primary missions of DHS include:
preventing terrorist attacks within the United States; reducing the vulnerability of the United States
40 Exec. Order No. 12580, (Superfund Implementation), 23 Jan. 1987, as amended.
41 Nuclear/Radiological Incident Annex, June 2008, p. 4.
42
Id. Table 1.
43 National Security Presidential Directive 46/Homeland Security Presidential Directive 15, “U.S. Strategy and Policy
in the War on Terror” (classified), March 6, 2006.
44 Homeland Security Act, supra note 37.
45
Id. § 101.
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to terrorism; and minimizing the damage and assisting in the recovery from terrorist attacks that
occur within the United States.46 DHS is comprised of various directorates and components
including the Coast Guard, Customs and Border Protection, Citizenship and Immigration Services,
Immigration and Customs Enforcement, and the Federal Emergency Management Agency.
The Federal Emergency Management Agency (FEMA) maintains responsibility for “reduc[ing] the
loss of life and property and protect[ing] the Nation from all hazards, including natural disasters,
acts of terrorism, and other man-made disasters.”47 Activities pursuant to this responsibility include
managing the response; directing the strategic response assets that were transferred to DHS;
overseeing the Metropolitan Medical Response System; and coordinating other federal response
resources outside of DHS in the event of a terrorist attack or major disaster. The Homeland
Security Act also directed the development of a National Incident Management System 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.48 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 federal agency.
Further, it served as the legal impetus for a revised approach to incident management, as later set
forth in Homeland Security Presidential Directive 5, discussed below.
9. Defense Against Weapons of Mass Destruction Act
Title 50 of Chapter 40 of the U.S. Code deals with 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.49 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. 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) is directed to designate an Executive Agent for its nuclear, chemical, and
biological response. The DoD and DOE Executive Agents are responsible for coordinating
assistance with federal, state, and local officials in responding to threats involving nuclear,
chemical, and biological weapons.50
B. The Stafford Act
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (The Stafford Act) provides
for assistance by the federal government to the states in the event of natural and other disasters and
emergencies.51 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
46
Id. § 101(b).
47 FEMA mission as stated on the FEMA website located at: http://www.fema.gov/about/index.shtm#0 (last visited on
Jun. 28, 2011).
48 Homeland Security Act, supra note 37, § 502.
49 Title 10 U.S.C. §12304 provides the federal authority for the mobilization of Reserve Components in response to the
use or threatened use of a weapon of mass destruction.
50
50 U.S.C. §§ 2301-2369 (2006).
51 The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., as amended by
Pub. L. No. 109-295 (2007) [hereinafter The Stafford Act].
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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.”52 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 he may exercise
in the event of a major disaster or emergency. Generally, Stafford Act assistance is rendered upon
request from a state governor53 provided certain conditions are met, primarily that the governor
certifies that the state lacks the resources and capabilities to manage the consequences of the event
without federal assistance. FEMA operates under the Stafford Act, focusing its efforts on managing
the consequences of disasters and emergencies. FEMA’s actions generally are driven by requests
from state and local governments. Figure 2-1, below, provides an overview of the process of
providing federal support to states under the Stafford Act.
Figure 2-1.
52
Id. § 5121.
53 Section 5170(a) of the Stafford Act was amended in 2006 authorizing the President, in the absence of a State request,
to provide Federal assistance.
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The Stafford Act lists the roles and responsibilities of federal agencies and departments in providing
both major disaster and emergency assistance; the Stafford Act also outlines the types of assistance
that affected state(s) may receive from the federal government. (See Table 2-4 below.)
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.54 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, e.g., housing. The FCO may coordinate all relief
efforts; however, states, localities, and relief organizations must agree. The President is also
authorized to form Emergency Support Teams (EST) of federal personnel to be deployed to the area
of the disaster or emergency.55 By delegation, the FCO may activate ESTs composed of federal
program and support personnel, to be deployed into an area affected by a major disaster or
emergency.56 These teams may also be called Emergency Response Teams (ERTs). The ERT is
the principal interagency group that supports the FCO in coordinating the overall federal disaster
assistance.
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, among others, Executive Order 12656.
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.
54
42 U.S.C. § 5143.
55
Id. § 5144.
56
44 C.F.R. 206.24 (2003).
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FEMA57
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.
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. 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.58
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 also furnish information on
the measures that have been taken at the state and local levels to mitigate the effects of the disaster.
57 Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-295 (2007), § 506. FEMA retained all
functions assigned to it under the Stafford Act and remains the lead federal agency for Stafford Act responses.
58
42 U.S.C. § 5122(2).
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In addition, the President must certify that state and local government obligations and expenditures
comply with all applicable cost-sharing requirements of the Stafford Act.59
The President’s powers after the declaration of a major disaster include the authority to provide the
following, among others, 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.60 In
addition, the President is authorized to direct federal agencies in providing essential assistance to
meet immediate threats to life and property and to coordinate all disaster relief assistance.61
b. Emergencies
The Stafford Act defines “emergency” as follows:
[A]ny occasion or instance for which, in the determination of the President, [f]ederal
assistance is needed to supplement State and local efforts and capabilities to save
lives and to protect property and public health and safety, or to lessen or avert the
threat of a catastrophe in any part of the United States.62
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 (CBRNE)-
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, 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.63
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.64 The President may coordinate all emergency relief assistance
and provide technical and advisory assistance to affected state and local governments for:
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
59
Id. § 5170.
60 See id.
§§ 5171-5186.
61
Id. § 5170(b).
62
Id. § 5122(1).
63
Id. § 5193.
64
Id. § 5192.
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with 42 U.S.C. § 5174; and assist state and local governments in the distribution of food, medicine,
and other consumable supplies.65
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.”66
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.67
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. Section 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.
3. Main Takeaways concerning the Stafford Act
First, response to a disaster or emergency is primarily the responsibility of the state and local
governments. Second, if the state or local government is overwhelmed by the incident or there is an
independent federal nexus to the event, the President may authorize major disaster assistance or
declare a federal emergency, respectively. When an emergency involves a facility for which the
federal government exercises exclusive or primary authority, the President may unilaterally direct
the provision of federal assistance under the Act. Third, when a disaster or emergency overwhelms
state and local capabilities, a governor may request the President to make a major disaster or
emergency declaration under the Stafford Act. A presidential declaration is contingent on the joint
findings of a local/state/DHS preliminary damage assessment, indicating that damages are of
sufficient severity to warrant assistance under the Stafford Act.68 Finally, an incident of WMD
terrorism is quite likely to be of sufficient severity to warrant an emergency declaration.
C. Subordinate Commander’s 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
65
Id. § 5192(a).
66
Id. § 5191(a).
67
Id. § 5170b(c).
68 NRF, supra note 14, Overview of Stafford Act Support to States, p. 1.
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assistance from a civil authority, under imminently serious conditions and if time does not permit
approval from higher authority, DoD officials (most typically installation commanders) may
provide an immediate response by temporarily employing the resources under their control, subject
to any supplemental direction provided by higher headquarters, to save lives, prevent human
suffering, or mitigate great property damage within the United States.
• However, Immediate Response Authority does not allow for actions that would subject
civilians to the use of military power that is regulatory, prescriptive, proscriptive, or
compulsory (for a detailed discussion, see Chapter 4: Military Support to Civilian Law
Enforcement and Chapter 5: Civil Disturbance Operations).
• Separately, per DoDD 3025.18.4.G.1, any decision by an Immediate Response Authority to
temporarily deploy resources requires notification to the National Joint Operations and
Intelligence Center (NJOIC).
• Finally, commanders may not normally continue support under immediate response
authority beyond seventy-two hours.
As noted in Chapter 1, all such requests from civil authorities for assistance must be evaluated for:
• Legality (compliance with laws)
• Lethality (potential use of lethal force by or against DOD Forces)
• Risk (safety of DOD Forces)
• Cost (including the source of funding and the effect on the DOD budget)
• Appropriateness (whether providing the requested support is in the interest of the
Department) and
• Readiness (impact on DoD’s ability to perform its primary mission)69
2. State Governors
As the principle authority during state emergencies, Governors may direct an immediate response
using National Guard personnel under state command and control (including personnel in a Title 32
status); however, National Guard personnel will not be placed in or extended in Title 32 status to
conduct State immediate response activities. Additionally, state leadership must coordinate with the
Chief of the National Guard Bureau to approve the continued use of personnel in a Title 32 status
responding in accordance with immediate response authority in excess of seventy-two hours.
D. Conclusion
The NRF and NIMS are a paradigmatic 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. For example, it is possible that DoD personnel or assets
69 These factors are colloquially known as the CARRLL factors (cost, appropriateness, risk, readiness, legality,
lethality).
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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 2-2 below outlines different processes by which local requests for assistance
would be handled following a Stafford Act declaration and under immediate response authority.
Figure 2-2.
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CHAPTER 3
DOD RESPONSE FOR CHEMICAL, BIOLOGICAL,
RADIOLOGICAL, NUCLEAR, AND HIGH-YIELD EXPLOSIVES
(CBRNE) CONSEQUENCE MANAGEMENT
KEY REFERENCES:
• Robert T. Stafford Disaster Relief and Emergency Assistance Act (as amended), Pub. L. No. 93
288, 42 U.S.C. §§ 5121-5207.
• The Defense Against Weapons of Mass Destruction Act, 50 U.S.C. §§ 2301-2368 (2007).
• EO 13527 Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack, December 30, 2009.
• National Response Framework, January 2008.
• DoDD 3025.18, Defense Support of Civil Authorities (DSCA), December 29, 2010.
• DoDD 3025.12, Military Assistance for Civil Disturbances (MACDIS), February 4, 1994.
• DoDD 3150.08, DOD Response to Nuclear and Radiological Incidents, January 20, 2010.
• DoDD 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, January 15, 1986,
incorporating change 1, December 20, 1989.
• CJCSI 3125.01A, “Military Assistance to Domestic Consequence Management Operations in
Response to a Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive Situation,”
March 16, 2007.
• Joint Pub 3-29, Counterterrorism, November 13, 2009.
• Joint Pub 3-28, Civil Support, September 14, 2007.
• Joint Pub 3-41, Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive
Consequence Management, October 2, 2006.
• FM 3-28, Civil Support Operations, September 2, 2010.
A. Introduction
In the wake of 9/11 and Hurricane Katrina, the Department of Homeland Security (DHS) developed
the National Response Framework.1 This document evolved from the National Response Plan
(NRP), which, in turn, was mandated under Homeland Security Presidential Directive (HSPD-5),
Management of Domestic Incidents. The intent of HSPD-5 was to develop a single, comprehensive
approach to domestic incident management2 built on the template of the National Incident
Management System (NIMS).3 The NRF provides national-level policy and operational direction
1 The National Response Framework (NRF) is addressed in more detail in Chapter 2.
2 The term “Incident Management” was introduced, under the National Response Plan (NRP), with a view toward
eliminating the distinction between crisis and consequence management. Although NRF also uses incident management
to denote both crisis and consequence management, for the purposes of this chapter, the distinctions between crisis and
consequence management remain important, especially in the response to any incident that may result from terrorist
activity. Crisis management is predominantly a law enforcement response and involves measures to identify, acquire,
plan, and employ the use of resources needed to anticipate, prevent, and/or resolve a threat or act of terrorism.
Consequence management are those actions taken to maintain or restore essential services and manage and mitigate
problems resulting from disasters and catastrophes, including natural, manmade, or terrorist incidents.
3 The National Incident Management System (NIMS) provides a doctrinal framework for incident management
designed to provide consistency at all jurisdictional levels. NIMS includes a core set of concepts, principles,
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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 contemplate the needs that must be met when the responding jurisdiction’s
capabilities are overwhelmed by the magnitude of a catastrophic incident.
The NRF is designed to ensure timely and effective federal support in response to state, tribal,
and/or local requests for assistance (RFAs). 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,4 and its activities are referred to as Defense
Support to Civilian Authorities (DSCA), or simply “civil support.”5
The NRF and NIMS provide broad direction for any type of disaster, in what is characterized as an
“all-hazards” approach.6 Consequently, the framework applies equally to natural disaster relief, the
handling of an unintentional or negligent industrial accident, or the Federal government’s response
to a terrorist’s potential domestic employment of a Chemical, Biological, Radiological, Nuclear,
and high-yield Explosives (CBRNE) weapons of mass destruction (WMD).7 Although the various
levels of government have experience in responding to natural disasters, CBRNE events pose some
of the greatest challenges facing the United States today8 and underscore the importance of
maintaining a DoD force that is ready and able to respond to the specialized threats.
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.
4 Joint Chiefs of Staff, Joint Pub. 3-28, Civil Support, at vii (14 September 2007) [hereinafter Joint Pub. 3-28].
5 U.S. DEP’T OF DEFENSE, DIR. 3025.18, Defense Support to Civil Authorities, 29 Dec. 10, at 16 (hereinafter DoDD
3025.18] defines “DSCA” as:
Support provided by U.S. Federal military forces, DoD civilians, DoD contract personnel, DoD
Component assets, and National Guard forces (when the Secretary of Defense, in coordination with
the Governors of the affected States, elects and requests to use those forces in title 32, U.S.C. status)
in response to requests for assistance from civil authorities for domestic emergencies, law
enforcement support, and other domestic activities, or from qualifying entities for special events.
Also known as civil support.
6 Federal consequence management was traditionally focused on natural disasters. Following the attacks of 9/11,
emergency planning and consequence management experts advocated for a single, “all-hazards” process for planning
and responding to both natural disasters and man-made events, including acts of terrorism. See NRF supra note 1, at 2.
7 It is important to note that while the employment of any weapon of mass destruction (WMD) will constitute a
CBRNE incident, not all CBRNE incidents are 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 would most likely result in
DoD-assisted CBRNE CM operations.
8 In 2006, DHS released National Planning Scenarios, an in-depth analysis of fifteen potential disasters that face the
nation.
Scenario 1: Nuclear Detonation - 10-kiloton Improvised Nuclear Device
Scenario 2: Biological Attack - Aerosol Anthrax
Scenario 3: Biological Disease Outbreak - Pandemic Influenza
Scenario 4: Biological Attack - Plague
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B. CBRNE CM Overview and Authorities
A CBRNE incident is any accident or intentional event involving chemical agents, biological
agents, radiological sources, nuclear devices, or high-yield explosives, and/or industrial materials
that are hazardous by themselves or when mixed with other material, including hazards from
industrial pollutants and waste, and will produce a toxic effect to an exposed person. Any action
taken to address the consequences of any inadvertent or deliberate release of a chemical, biological,
radiological, or nuclear agent constitutes a CBRNE CM operation.9 As a general proposition, a
catastrophic CBRNE event would quickly exceed the capabilities of local, state, and tribal
governments; consequently, CBRNE CM10 is normally managed at the federal level, with DoD in a
supporting role.11
The principle of “unity of effort” dictates that a single authority control the efforts of the various
responding federal assets; while DoD forces may be fully committed to CBRNE CM, they are not,
however, directed by the LFA they support. The Secretary of Defense always retains command of
federal (Title 10) military forces providing CBRNE CM. 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.
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
Scenario 5: Chemical Attack - Blister Agent
Scenario 6: Chemical Attack - Toxic Industrial Chemicals
Scenario 7: Chemical Attack - Nerve Agent
Scenario 8: Chemical Attack - Chlorine Tank Explosion
Scenario 9: Natural Disaster - Major Earthquake
Scenario 10: Natural Disaster - Major Hurricane
Scenario 11: Radiological Attack - Radiological Dispersal Devices
Scenario 12: Explosives Attack - Bombing Using Improvised Explosive Devices
Scenario 13: Biological Attack - Food Contamination
Scenario 14: Biological Attack - Foreign Animal Disease (Foot-and-Mouth Disease)
Scenario 15: Cyber Attack
See DEP’T OF HOMELAND SECURITY, NATIONAL PLANNING SCENARIOS, April, 2006. Two of the scenarios represent
natural disasters, major earthquake and major hurricane; a third highlights economic and social complications resulting
from a cyber attack; the remaining 12 scenarios focus on chemical, biological, radiological, nuclear or high-yield
explosive (CBRNE) incidents.
9 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 ESF 10; DoD
3150.8-M, “NUCLEAR WEAPON ACCIDENT RESPONSE PROCEDURES (NARP),” February 22, 2005.
10 CBRNE CM includes those measures and methods of responding to CBRNE events to alleviate damage, loss of life,
hardship or suffering caused by the incident, protect public health and safety, emergency restoration of essential
government services and infrastructure, and provide emergency relief to governments, businesses, and individuals
affected by the consequences of a CBRNE situation.
11 For example, 10 U.S.C. § 382 (2006) 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 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.
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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
small scale CBRNE incidents, and during the initial stages of larger incidents, a state’s Emergency
Operations Center (EOC) may forward requests to the FEMA region’s Defense Coordinating
Officer (DCO), who, in turn, forwards the RFA to the Assistant Secretary of Defense for Homeland
Defense and Americas’ Security Affairs (ASD(HD&ASA)).12 If the incident exceeds the
capabilities of the state and local responders, and the President has issued an emergency or disaster
declaration at the Governor’s request, the LFA will establish a Joint Field Office (JFO), and a
Federal Coordinating Officer (FCO) will be designated.
Following the establishment of the JFO, the FCO will forward RFAs from civil authorities to the
Office of the Executive Secretary of the Department of Defense, who forwards them to the
ASD(HD&ASA) and the Joint Director of Military Support (JDOMS) for validation and order
processing, respectively. Once SecDef approves a request for DOD assistance, JDOMS prepares an
order and coordinates with necessary force providers, legal counsel, and ASD(HD&ASA) to ensure
asset priority and concurrence. The order is then issued to the appropriate combatant command to
execute the mission.
12 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 (2006).
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Figure 3.1. RFA Process Decision Matrix.
Figure 3-1, above, illustrates the flow of a request for military response to a CBRNE event from the
LFA to DoD. The request is submitted to ASD(HD&ASA) for approval, who then forwards the
request to the Joint Staff for execution. JDOMS issues an Execute Order (EXORD) to Commander,
USNORTHCOM, Commander, USSOUTHCOM or Commander, USPACOM, depending upon
which Area of Responsibility encompasses the CBRNE event. The Combatant Commander then
orders the Commander, JTF-CS, to conduct consequence management operations.
Every RFA must undergo a legal review. All requests by civil authorities for DoD military
assistance shall be evaluated by DoD approval authorities against the following criteria:
• Legality (compliance with laws);
• Lethality (potential use of lethal force by or against DOD forces);
• Risk (safety of DOD forces);
• Cost (who pays, impact on DOD budget);
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• Appropriateness (whether the requested mission is in the DOD’s interest); and
• Readiness (impact on the DOD’s ability to perform its primary mission).
Military missions require legal authority. DoD’s CBRNE CM operations are generally executed
under the provisions of The Robert T. Stafford Disaster Relief and Emergency Assistance Act.13
The Stafford Act authorizes the Federal Government to assist local and state governments alleviate
the suffering and damage caused by disasters.14
Occasionally, the legal authority to use DoD forces for CBRNE incidents arises from other sources:
• For instance, DoDD 3025.18 delegates Immediate Response authority to DoD component,
military commanders and State officials to temporarily employ resources under their control—
subject to any supplemental direction provided by higher headquarters—to provide immediate
assistance to civil authorities to save lives, prevent human suffering, or mitigate great property
damage in the event of imminently serious conditions resulting from any civil emergency or
attack.15 It is important to note that this authority is extremely fact specific and expires
immediately when the facts no longer meet the threshold. It is “important for commanders to
understand that the policy is limited, restrictive, and conditional.”16 There is both a temporal
and proximity aspect to immediate response. Furthermore, current DoD and NGB policy
requires a reassessment no later than 72 hours after commencement of the response.
13 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].
14 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 a state of emergency but require federal assistance to adequately manage the incident and
consequently request federal assistance.
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.
Thus, a CBRNE incident could easily fit under this category.
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.
Thus, a fire, flood, or explosion would have to occur to trigger a major disaster declaration for a CBRNE incident.
15 DoDD 3025.18, supra note 5, paras. 4.g & f.
16 JOINT PUB 3-28, supra note 19, II-7.
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• DoDD 3025.18 provides federal military commanders with “emergency authority” to engage
temporarily in “activities that are necessary to quell large-scale, unexpected civil
disturbances…”17
• Executive Order 13527, “Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack,” provides authority for designated federal
agencies to include the DoD to provide support to operations that leverage the U.S. Postal
Service to distribute “medical countermeasures” to the general population.18
• Joint Publication 3-28 sanctions immediate response authority for various CBRNE incident-
related operations, such as search and rescue missions and debris removal.19
C. DoD Entities Responsible for CBRNE CM Operations
The National Defense Authorization Act of Fiscal Year 200320 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 for federal, state, and local officials in
responding to domestic threats or events involving nuclear, chemical, and biological weapons. As a
result, this office oversees defense support of civilian authorities (DSCA), including CBRNE CM.
17 DoDD 3025, supra note 6, para 4.h.
18 EO 13527, Establishing Federal Capability for the Timely Provision of Medical Countermeasures Following a
Biological Attack (Dec. 30, 2009).
19 See JOINT CHIEFS OF STAFF, JOINT PUB 3-28, CIVIL SUPPORT, (14 Sep 07) [hereinafter JOINT PUB. 3-28], at II-7. A
commander engaged in CBRNE CM operations:
responding to a SecDef approved DSCA mission and/or execute order (EXORD), is like any other
DoD military commander and may find the need to exercise his/her immediate response authority
with available forces. This is particularly relevant in the event of a second terrorist attack . . . within
the JOA, since trained medical and specialized CBRNE assessment/response teams are on the scene
and able to rapidly respond to time-sensitive requests from the civil sector
As soon as practical,
the military commander, or responsible official of a DoD component or agency rendering such
assistance, shall report the request, the nature of the response, and any other pertinent information
through the chain of command to the National Military Command Center, so that the information is
received within a few hours of the local commander’s decision to provide immediate response
support. Immediate response requests in the event of a CBRNE incident may include, but are not
limited to:
1. Rescue, evacuation, and emergency medical treatment of casualties, maintenance or restoration of
emergency medical capabilities, and safeguarding the public health.
2. Emergency clearance of debris, rubble, and explosives ordnance from public facilities and other
areas to permit rescue or movement of people and restoration of essential services.
3. Detection, assessment, and containment (initial steps taken to facilitate emergency evacuation and
public awareness warnings).
4. Roadway movement control and planning.
5. Emergency restoration of essential public services (including fire-fighting, water,
communications, transportation, power, and fuel).
but see, 32 C.F.R. § 185.3.
20 The Bob Stump National Defense Authorization Act of 2003, Pub. L. No. 107-314, § 902.
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The Joint Director of Military Support (JDOMS) is an action agency subordinate to ASD(HD/ASA)
that is located at the Pentagon. For DSCA, 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. For Special
Events, e.g. National Special Security Events, international sport competitions, JDOMS plans,
coordinates, and facilitates DoD support to federal, state, and local agencies and organizers for
significant international and domestic events.
In 2002, DoD also established the USNORTHCOM to consolidate under a single unified command
all existing missions previously executed by other military organizations.21 The specific mission of
USNORTHCOM, headquartered in Colorado Springs, Colorado, is to “conduct[] homeland defense,
civil support, and security operations within the assigned area of responsibility to defend, protect,
and secure the United States and its interests.”22 USNORTHCOM is designated as the command to
conduct CBRNE CM operations in support of a LFA in the forty-eight contiguous states, the
District of Columbia, Alaska, and U.S. territorial waters.23 Based upon the magnitude of the
CBRNE incident and required response, USNORTHCOM determines the appropriate level of
command for, and composition of, the DoD CBRNE Consequence Management Response Force
(CCMRF).
In 2008, USNORTHCOM designated U.S. Army North (ARNORTH) as the Joint Force Land
Component Commander (JFLCC) for domestic CM operations. ARNORTH, located at Fort Sam
Houston, Texas, is responsible for developing and unifying the military response capability for
CBRNE incidents.24 As the JFLCC, ARNORTH now has operational control of Joint Task Force
Civil Support (JTF-CS), which had previously been directly subordinate to USNORTHCOM.
JTF-CS is a standing joint task force comprised of active, reserve, and National Guard members
from the Army, Navy, Air Force, Marines, and Coast Guard, as well as civilian personnel, and is
commanded by a Federalized Army National Guard General Officer. The unit’s purpose is to save
lives, prevent injury, and provide temporary critical life support during a CBRNE incident in the
United States or its territories and possessions. The JTF-CS is the only military organization
dedicated solely to planning and integrating DoD forces for CBRNE CM support to civil authorities
in such a situation.
D. Specialized DoD CBRNE Responders
1. Joint Task Force Civil Support
Joint doctrine divides civil support (CS) operations into three broad categories:25 domestic
emergencies; designated law enforcement support;26 and other activities,27 based on the CS
21 Unified Command Plan 2002.
22 USNORTHCOM, http://www.northcom.mil/About/index.html (last visited Jun. 29, 2011).
23 CDRUSNORTHCOM CONPLAN 3500-08 (CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR AND HIGH-YIELD
EXPLOSIVES CONSEQUENCE MANAGEMENT OPERATIONS (CBRNE CM), paras. 1b(1) and 1e(1) (22 Oct. 08)(U).
24 USNORTHCOM, About NORTHCOM, http://www.northcom.mil/About/index.html (last visited July 26, 2011).
25 JOINT PUB. 3-28, supra note 4, III-1.
26 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
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definition. Although Joint Task Force Civil Support (JTF-CS) is nominally linked to broader
mission areas, the organization’s focus is far narrower; JTF-CS’ specific mission is CBRNE CM.
JTF-CS is a standing joint task force headquarters presently located at Fort Monroe, Virginia.28 It is
a deployable command and control headquarters for DoD units and personnel executing CM
operations in response to CBRNE incidents, and a source of response plans for essential DoD
support to the LFA. The unit’s mission is to plan and integrate DoD support to the designated LFA
(usually DHS/FEMA) for domestic CBRNE CM. When directed, JTF-CS will deploy to the
incident site and establish command and control of designated DoD forces to provide defense
support of civil authorities to save lives, prevent further injury, and provide temporary critical life
support. The NRF provides the coordinating framework under which JTF-CS performs its mission.
An Army or Air Force National Guard General on federal active duty status commands JTF-CS.
The staff consists of active and reserve component military from all five services, government
service personnel, and civilian contractors. Collectively, the command possesses expertise in a
wide range of functional areas to include operations, logistics, intelligence, planning,
communications, and medical services. Created by the Unified Command Plan for 1999,29 JTF-CS
provides both an operational capability and an oversight mechanism that can anticipate support
requirements for responding to a catastrophic CBRNE incident, undertake detailed analysis, conduct
exercises, and ultimately respond in support of civil authorities. The unit’s focus is entirely on
CBRNE consequence management.
On October 1, 2008, JTF-CS received operational control over various units assigned to the
CCMRF, or CBRNE Consequence Management Response Force. These units possess the military
occupational specialties required to staff DoD’s initial CBRNE CM entry force. The CCMRF is
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 4,,
Executive Summary, at x.
27 These other activities include support to special events designated by the DHS Special Events Working Group
(SEWG). “National special security event” (NSSE) is a designation given to certain special events that, by virtue of
their political, economic, social, or religious significance, may be the target of terrorism or other criminal activity. The
Secretary of Homeland Security, after consultation with the Homeland Security Council, shall be responsible for
designating special events as NSSEs. Usually, other military operations will have priority over these missions, unless
directed otherwise by the SecDef. These events will be assigned a priority by the SEWG and will normally be
monitored by the combatant command responsible for the area of responsibility in which they are conducted. See infra,
chapter 7.
28 Due to Base Realignment and Closure (BRAC), JTF-CS anticipates moving from Fort Monroe, Virginia to Fort
Eustis, Virginia during the fourth quarter of fiscal year 2011. See JOINT TASK FORCE CIVIL SUPPORT,
http://www.jtfcs.northcom.mil/ (last visited Jul. 26, 2011).
29 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 that would have 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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comprised of approximately 4,700 service members but may be augmented as necessary by force
packages tailored to the particular type of incident and response required. The CCMRF forces are
configured into subordinate task forces with specific response missions, such as medical, aviation,
and operational support. When called upon to perform its mission, JTF-CS and the CCMRF will
quickly deploy to mitigate the effects of a CBRNE incident.30
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 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 CBRNE 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 CBRNE or other incidents in their immediate area of responsibility. JPACs are tailored to fit the
type of support requested by the supported organization.
2. National Guard Weapons of Mass Destruction Civil Support Teams
Pursuant to the Defense Against Weapons of Mass Destruction (WMD) Act, and additional
authorizations by Congress, DoD is authorized a total of 55 WMD-CSTs.31 Recognizing that the
National Guard is “forward-deployed for civil support,”32 the Secretary of Defense determined that
the CSTs would be most effective if established in the National Guard. Consequently, each WMD
CST is composed of twenty-two full-time National Guard Soldiers and Airmen and contains five
elements: command, operations, administrative/ logistics, medical, and survey.
30 JOINT TASK FORCE CIVIL SUPPORT, CCMRF, http://www.jtfcs.northcom.mil/CCMRF.aspx (last visited Jul. 26,
2011).
31 The number of authorized CSTs is the culmination of legislative actions during the last decade. For a current
account overview of CSTs, see http://www.army.mil/aps/09/information_papers/national_guard_weapons.html (last
visited 19 July 2011).
32 U.S. Secretary of Defense Report to Congress pursuant to FY00 National Defense Authorization Act § 1036, 2 (24
Feb. 2000).
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The teams are designed to deploy rapidly to assist local first responders in the event of an
intentional or unintentional CBRNE incident.33 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)34 for nuclear, biological, and chemical (NBC) detection and the
Unified Command Suite (UCS) vehicle for communications.35
WMD-CST capabilities are specifically designed to complement civilian responders.36 Community
and state emergency management plans may directly incorporate WMD-CST capabilities.
WMD-CSTs will operate under the command and control of the state governor and the Adjutant
General. Individual team members serve in a full-time, Title 32 National Guard status.37 If the
teams are called to federal active duty, they will normally be attached with operational control to
JTF-CS.38
In addition, WMD-CSTs assigned to one state are authorized to operate in another state when one or
more of the following conditions are met:
• State-to-State Emergency Management Assistance Compacts (EMACs);
• State-to-State Memoranda of Agreement; or,
• Activation under Title 10.39
3. NG CBRNE Enhanced Response Force Package (NG CERFP)
The CERFP is a response capability comprised of 186 traditional and 5 Title 32 Active Guard and
Reserve (AGR) National Guard members. CERFP can be utilized in state active duty, Title 32, or
Title 10 status. There are currently 17 CERFPs in the United States. CERFP’s mission is to
respond to CBRNE incidents and assist local, state, and federal agencies in conducting consequence
management by providing capabilities to conduct patient and mass casualty decontamination,
emergency medical services, and casualty search and extraction.
33
Id.
34
Id. at 3. MALS is based on system used by the Marine Corps’ Chemical Biological Incident Response Forces with
enhanced biological detection capability.
35
Id. The UCS, built by the Navy, provides communication interface across the ICS frequencies, military command
and control elements, and technical support assets.
36
Id. at 4.
37
Id. at 5.
38
Id.
39
Id. at 6. See infra Chapter 10, Reserve Components, for a detailed discussion of EMACs.
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4. National Guard Homeland Response Force (HRF)
Presently under development, the HRF is a regional response capability. There are projected to be
ten HRFs (one per FEMA region), each with 5,660 personnel. Each HRF is essentially a CERFP-
plus security and regional C2 element. HRFs, as contemplated, will conduct command and control;
security; search and extraction; decontamination; and medical triage as needed in order to save lives
and mitigate human suffering.
E. Special Legal Considerations During CBRNE CM Operations
The parameters under which DoD operates domestically vary greatly from those in traditional
military activities. DoD domestic CBRNE CM activities raise legal issues not usually found in
more typical military operations. Depending on the circumstances, and the location of the incident,
the scope and complexity of potential legal issues will greatly vary. Of specific note, the following
four legal issues may arise in the context of a CBRNE CM operation. As 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 on the operational and tactical levels should
receive primary guidance concerning these issues through appropriate mission EXORDs and
FRAGOs. Judge advocates should also become familiar with the primary federal and state
authorities discussed below.
1. Quarantine/Isolation
Quarantine40 and isolation41 enforcement issues may arise most typically in pandemic scenarios.
State and local health authorities are most commonly 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.42 Federal power to impose quarantine and isolation measures arises concerning
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.”43
Regardless of whether the quarantine and isolation measures are imposed at the federal, state, or
local level, DoD enforcement actions will likely be subject to the Posse Comitatus Act,44 absent an
alternative statutory or constitutional authority. One such exception would be DoD enforcement of
a quarantine or isolation under circumstances that have given rise to Presidential invocation of the
Insurrection Act.45 Typically, however, any DoD support provided to quarantine and isolation
40
“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).
41
“Isolation” is defined as the “[s]eparation of infected individuals from those individuals that are not infected.” Id. at
208.
42 U.S. Congressional Research Service. Federal and State Quarantine and Isolation Authority 2 (RL33201; Jan. 23,
2007), by Kathleen S. Swendiman and Jennifer K. Elsea.
43
42 U.S.C. § 264(a). 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.
44
18 U.S.C. § 1385.
45
10 U.S.C. §§ 331-335.
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support will be limited to logistical, communications, medical, and other support commonly
envisioned by the Stafford Act.
2. Environmental Compliance
Judge advocates planning for CBRNE CM operations should assume that federal, state, and local
environmental laws and regulations will remain in place, at least insofar as they pertain to DoD
response operations. For example, the Stafford Act specifically states that NEPA applies to actions
undertaken pursuant to the Act. In the context of CBRNE CM operations, NEPA provides for an
exception to NEPA’s environmental impact statement requirement when such an action is intended
to “restore a facility substantially to its condition prior to the disaster or emergency.” Specifically,
such actions are deemed NOT a major federal action significantly affecting the quality of the human
environment.46
Although the Stafford Act does contain a blanket waiver authority of “administrative conditions for
assistance” for federal agencies,47 this authority does not overcome statutory requirements.
Additionally, the EPA or appropriate ESF 10 agencies, rather than DoD, would normally issue any
environmental waivers.
The handling and disposal of waste from CBRNE CM decontamination operations will frequently
implicate environmental compliance issues. In such a scenario, the EPA, operating under ESF 10,
would be the primary agency responsible for hazardous waste management.48 Additionally,
coordination with state authorities regarding the state’s environmental laws and regulations is
essential. Judge advocates should ensure that appropriate staff sections and levels of command
have ascertained whether the decontamination and decontaminated waste disposal procedures
outlined in FM 3-11.549 are sufficient for CBRNE CM operations, or whether those procedures
should be modified pursuant to guidance from appropriate state and federal regulatory agencies.
3. Health Care Licensure
In a domestic CBRNE event, non-fatality casualties may range from minimal to overwhelming.
The National Planning Scenarios’ casualty numbers for domestic CBRNE events range from a few
hundred (radiological dispersal device) through hundreds of thousands (improvised nuclear device)
to nearly ten million (pandemic influenza).50 The greater the number of casualties, the more likely
that any requested DoD support will include requests for DoD medical personnel to provide care for
the affected populace. Because DoD caregivers may not necessarily be licensed/credentialed in
accordance with appropriate state laws, judge advocates must be prepared to render advice on
federal and state licensure requirements during emergency support operations. Upon a command’s
receipt of any mission assignments relating to the provision of health-related services (or even prior
to receipt, if practicable), judge advocates on the operational and tactical levels should verify with
46
42 U.S.C. § 5159.
47
42 U.S.C. § 5141.
48 Dep’t of Homeland Security, National Response Framework, Emergency Support Function #10 (Oil and Hazardous
Materials Response Annex), Jan. 2008.
49 U.S. Dep’t of Army, Field Manual 3-11.5, Multiservice Tactics, Techniques, and Procedures for Chemical,
Biological, Radiological, and Nuclear Decontamination (4 Apr. 06) [hereinafter FM 3-11.5].
50 Dep’t of Homeland Security, National Planning Scenarios (6 Apr. 2006).
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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) of the statutory portability provisions
discussed below.
The primary federal statute regarding credentialing of military personnel is 10 U.S.C. § 1094
(Licensure requirement for health care professionals). This law states that an armed forces health
care professional who has a current license and is performing authorized duties for DoD may
practice his or her health care profession in any state, notwithstanding any other health care
licensure laws and regardless of whether the practice occurs in a DoD facility, a civilian facility
affiliated with DoD, or any other location authorized by SECDEF.51 DoD has promulgated
qualification and coordination requirements to this statutory portability provision as it pertains to
off-base duties.52 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.
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 is 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.53 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 so requests.54 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 chain, 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 look to either the applicable state’s Emergency
Management Assistance Compact (EMAC)55 or Article VI of the Model EMAC legislation, which
states:
If a person or entity holds a license, certificate or other permit issued by a
participating political subdivision or the state evidencing qualification in a
professional, mechanical or other skill and the assistance of that person or entity
is requested by a participating political subdivision, the person or entity shall be
51
10 U.S.C. § 1094(d)(1).
52
“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 (Jun. 11, 2004).
53 Fla. Stat. § 252.36(3)(c)1.
54 Cal. Bus. & Prof. Code § 900.
55 EMAC is governed by the National Emergency Management Association (NEMA), a non-profit organization. See
NAT’L EMERGENCY MGMT ASS’N, What is NEMA,
http://www.nemaweb.org/index.php?option=com_content&view=article&id=44&Itemid=357 (last visited Jul. 26,
2011).
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deemed to be licensed, certified or permitted in the political subdivision
requesting assistance for the duration of the declared emergency or authorized
drills or exercises and subject to any limitations and conditions the chief
executive of the participating political subdivision receiving the assistance may
prescribe by executive order or otherwise.56
Even if the state has passed the model EMAC legislation without alteration, however, judge
advocates must be cognizant of the particular state Governor’s limitations on this portability
provision.57
4. Mortuary Affairs
As with non-fatality casualties, the number of fatalities in a CBRNE event may quickly overwhelm
state and local capabilities. The National Planning Scenarios contain fatality numbers from those
low enough to be handled at the state level with federal, though not necessarily DoD, support (100
fatalities from an improvised explosive), through fatality numbers that are catastrophic (over a
quarter of a million for a improvised nuclear device, and nearly two million for pandemic
influenza).58 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,59 but in a catastrophic scenario, it is likely that DoD will be
asked to provide mortuary affairs support. Types of support DoD may be asked to provide,
potentially utilizing personnel that are not MA-skilled, may include search and recovery operations
and transportation and storage of remains, among others.60 DoD personnel who are not MA-skilled
may require training and oversight from DoD mortuary affairs personnel prior to engaging in
mortuary affairs-related missions or activities.61
Guidance on DoD personnel’s handling of human remains and their interface with the civilian
authorities will most likely be published in the form of a “fragmentary order” (FRAGO) to an
“execute order” (EXORD). For example, during Hurricane Katrina, DoD forces assisting in the
recovery effort were prohibited from touching human remains; instead, DoD forces were permitted
only to mark the locations of remains.62 Nevertheless, 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
56 NAT’L EMERGENCY MGMT ASS’N, Intrastate Mutual Aid Legislation, http://www.emacweb.org/?150, then click the
link for “2004 Model Intrastate Mutual Aid Legislation” and scroll to Article VI of the template. (last visited Jul. 26,
2011) [hereinafter Mutual Aid].
57 For a list of the fifteen states with intrastate mutual assistance agreements in effect or pending state congressional
approval, see Mutual Aid, supra note 57.
58 DEP’T OF HOMELAND SECURITY, National Planning Scenarios (6 Apr. 2006).
59 DEP’T OF HOMELAND SECURITY, National Response Framework, Emergency Support Function #8 (Public Health and
Medical Services), 8-2, January, 2008.
60 Joint Chiefs of Staff, Joint Pub 4-06, Mortuary Affairs in Joint Operations (Jun. 5, 2006), para. II-4h.
61
Id.
62 FORSCOM FRAGO 7 TO JTF KATRINA EXORD, 06XXXXZSEP05, para. 3.b.2.
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the various points of contact involved in mortuary affairs operations, including the local medical
examiner/coroner, local law enforcement, and the FBI.
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CHAPTER 4
MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT
KEY REFERENCES:
•
10 U.S.C. §§ 371-382 - Military Support for Civilian Law Enforcement.
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
•
DoDD 5525.5 - DoD Cooperation with Civilian Law Enforcement Officials, January 15, 1986.
•
DoDD 3025.12 - Military Assistance for Civil Disturbances, February 4, 1994.
•
DoDD 3025.18 - Defense Support of Civil Authorities, December 29, 2010.
•
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.
• SECNAVINST 5820.7C - Cooperation with Civilian Law Enforcement Officials, January 26,
2006.
• AFI 10-801 - Assistance to Civilian Law Enforcement Agencies, April 15, 1994.
A. Introduction
Military support to civilian law enforcement agencies has undergone significant growth in recent
years. In the wake of the events of September 11, 2001, Hurricane Katrina in 2005, and the U.S.-
Mexico border security mission beginning in June 2006, the need for support and coordination with
local, state, and federal law enforcement agencies has increased markedly. The necessity of
defending the homeland from emerging threats generated a renewed emphasis for the DoD’s role
and responsibilities in domestic operations.
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 with 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. Chapter 6 covers counterdrug support.
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B. The Posse Comitatus Act
The primary statute restricting military support to civilian law enforcement is the Posse Comitatus
Act (PCA).1 The PCA states:
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or Air Force as
a posse comitatus or otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both.
The PCA was enacted in 1878, primarily as a result of the military presence in the South during
Reconstruction following the Civil War.2 This military presence increased during the bitter
presidential election of 1876, when the Republican candidate, Rutherford B. Hayes, defeated the
Democratic candidate, Samuel J. Tilden, by one electoral vote. Many historians attribute Hayes’
victory to President Grant’s decision to send federal troops for use by U.S. Marshals at polling
places in the states of South Carolina, Louisiana, and Florida. Possibly as a result of President
Grant’s actions, Hayes won the electoral votes of these hotly contested states.3 Consequently, 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, in the enforcement of the laws of the United
States.5 The PCA is a criminal statute and violators are subject to fine and/or imprisonment. 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.
In addition to the PCA, 10 U.S.C. ch. 18, Military Support for Civilian Law Enforcement Agencies6
and Department of Defense Directive (DoDD) 5525.5, DoD Cooperation with Civilian Law
Enforcement Officials, also provide guidance in this area.7 Both authorities, discussed below,
1 Posse Comitatus Act, 18 U.S.C. § 1385. 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).
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 United States v. Red Feather, 392 F. Supp. 916, 922 (W.D.S.D. 1975).
6 See Hayes v. Hawes, 921 F.2d 100, 103 n.3 (7th Cir. 1990) (noting that 10 U.S.C. ch. 18 specifically incorporates 18
U.S.C. § 1385 and provides the primary restriction on military participation in civilian law enforcement activities).
7 U.S. Dep’t of Defense, Dir. 5525.5, DoD Cooperation with Civilian Law Enforcement Officials (Jan. 15, 1986)
[hereinafter DoDD 5525.5].
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provide additional guidance regarding restrictions the PCA places on the military when supporting
civilian law enforcement agencies.8
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.9 However, 10 U.S.C. § 375 directs the Secretary of Defense to
promulgate regulations that prohibit “direct participation by a member of the Army, Navy, Air
Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in
such activity by such member is otherwise authorized by law.”10 The Secretary of Defense
subsequently prohibited these activities in DoDD 5525.5.11 As a result, the restrictions placed on
Army and Air Force activities through the PCA apply to the Navy and Marine Corps.12 The PCA
does not apply to the Coast Guard unless it is operating under the command and control of the
Department of Defense.13
The PCA also applies to Reserve14 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,15 active duty for training, or
inactive duty training in a Title 32 duty status are not subject to the PCA. Only when members of
8 Service regulations that implement DoDD 5525.5 are: U.S. Dep’t of Navy, Secretary of the 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, Secretary of the Air Force Instr. 10-801, Assistance to Civilian Law Enforcement Agencies (15 Apr.
1994) [hereinafter AFI 10-801].
9 See, e.g., United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991) (citing congressional record that earlier
version of measure expressly extended PCA to 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).
10 Hayes, supra note 6, at 102-103 (10 U.S.C. § 375 makes the proscriptions of 18 U.S.C. § 1385 applicable to the
Navy). See also Yunis, supra note 9, at 1094 (“Regulations issued under 10 U.S.C. § 375 require Navy compliance
with the restrictions of the Posse Comitatus Act
”).
11 See DoDD 5525.5, supra note 7, para. E4.3; SECNAVINST 5820.7C, supra note 8, para. 8(a); AFI 10-801, supra
note 8, ch. 2.1. Exceptions to this prohibition as it applies to the Navy or Marine Corps may be granted by the Secretary
of Defense or the Secretary of Navy on a case-by-case basis. See also Yunis, supra, note 10, at 1094 (affirming that
DoDD 5525.5 requires the Navy to comply with the restrictions of the Posse Comitatus Act).
12 SECNAVINST 5820.7C, supra note 8, para. 8(b).
13
14 U.S.C. § 2.
14 The Reserve includes Reservists in the: Selected Reserve (SelRes), Guard/Reserve Units Individual Mobilization
Augmentees (IMAs), Active Guard/Reserve Personnel Individual Ready Reserve (IRR), and Inactive National Guard
(ING).
“The Ready Reserve consists of units or individuals, or both, liable for active duty under the provisions of 10
U.S.C. §§ 12301-12302. The Ready Reserve is comprised of the Selected Reserve and the Individual Ready Reserve
(IRR) / Inactive National Guard(ING).” 10 U.S.C. § 10142.
The SelRes is comprised of: Reserve/Guard Units: Unit members are Guard/Reserve personnel assigned to Reserve
organizations and perform in drill periods and annual training as a minimum. Individual Mobilization Augmentees
consist of Reserve personnel assigned to Active component organizations who perform in drill periods and annual
training. Active Guard/Reserve (AGR) is comprised of Reserve personnel on full-time active duty or full-time National
Guard duty to provide support to the Reserve Components. All Members of the SelRes are in an active status. Id. §
10143.
15
32 U.S.C. § 502(f).
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the National Guard are in a Title 10 duty status (federal status) are they subject to the PCA.
Members of the National Guard also perform additional duties in a State Active Duty (SAD) status
and are not subject to PCA in that capacity.16 Civilian employees of DoD are only subject to the
prohibitions of the PCA if they are under the direct command and control of a military officer.17
Finally, the PCA does not apply to a member of the Army, Navy, Air Force, or Marine Corps when
they are off-duty and acting in a private capacity. A service member is not in a private capacity
when assistance is rendered to civilian law enforcement officials under the direction or control of
DoD authorities.18
2. Where Does the PCA Apply?
Federal courts have generally held that the PCA places no restrictions on the use of the armed forces
abroad.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. §§ 371-381 have no extraterritorial application.21 However, in United
States v. Kahn22 the 9th U.S. Circuit Court of Appeals indicated that the extraterritorial application
of the PCA remains an open question.22 While recognizing that several courts held that the PCA
only applies within the territory of the United States, the Kahn court maintained that the issue has
not been definitively resolved, since the PCA imposes restrictions on the use of the armed forces
abroad through 10 U.S.C. §§ 371-381.23
Nevertheless, DoD implementing policy contained in DoDD 5525.5 applies to all members of the
armed forces wherever located. Therefore, PCA restrictions must be considered even when
contemplating military assistance to 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.24
16 See infra ch. 10, Reserve Components - Special Issues, for a detailed discussion of National Guard and Reserve
status.
17 DoDD 5525.5, supra note 7, para. E.4.2.
18
Id.
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).
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, subject: Extraterritorial
Effect of the Posse Comitatus Act (3 Nov. 1989).
22 United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994).
23
Id. 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 examples of limitations placed on the use of the armed forces abroad.
24 DoDD 5525.5, supra note 7, para. 8.1 provides:
With regard to military actions conducted outside the territorial jurisdiction of the United States,
however, the Secretary of Defense or the Deputy Secretary of Defense will consider for approval, on a
case by case basis, requests for exceptions to the policy restrictions against direct assistance by
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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. These restrictions are divided into three major
categories: (1) use of information, (2) use of military equipment and facilities, and (3) use of
military personnel. DoDD 5525.5 further divides the restrictions on the use of DoD personnel in
civilian law enforcement activities into categories of direct assistance, training, expert advice,
operation or maintenance of equipment, and other permissible assistance.25 See Figure 4-1, below.
Use of
Use of DoD
Use of Military
Information
Personnel
Equipment
(10 U.S.C. §
(10 U.S.C. §§
and Facilities
371 & DoDD
371-375 &
(10 U.S.C. §
5525.5, Encl. 2)
DoDD 5525.5,
372 & DoDD
Encl. 4)
5525.5, Encl. 3)
Training
Expert Advice
Direct
Operation and
Other
(10 U.S.C. §
(10 U.S.C. §§
Assistance
Maintenance
Permissible
373 & DoDD
373 & DoDD
(10 U.S.C. §§
of Equipment
Assistance
5525.5, Encl. 4)
5525.5, Encl. 4)
375 & DoDD
(10 U.S.C. §§
(10 U.S.C. §§
5525.5, Encl. 4)
374 & DoDD
371 & DoDD
5525.5, Encl. 4)
5525.5, Encl. 4)
Prohibited
Permissible
Direct
Direct
Assistance
Assistance
(10 U.S.C. §§
(10 U.S.C. §§
375 & DoDD
375 & DoDD
5525.5, Encl. 4)
5525.5, Encl. 4)
Military
Emergency
Civil
Other Express
Purpose
Authority*
Disturbance
Statutory
Doctrine
(DoDD 5525.5,
Statutes
Authority
(DoDD 5525.5,
Encl. 4.1.2.3)
(10 U.S.C. §§
(DoDD 5525.5,
Encl. 4.1.2.1)
331-334 &
Encl. 4.1.2.5)
DoDD 5525.5,
Encl. 4.1.2.4)
*See DoDD 3025.12 to distinguish Emergency MACDIS Authority from Immediate Response Authority.
Figure 4-1. PCA Restrictions Contained in 10 U.S.C. §§ 371-375 and DoDD 5525.5.
In addition to the above categories, 10 U.S.C. §§ 376-377 provide further limitations on the
provision of military support to civilian law enforcement. 10 U.S.C. § 376 provides an overarching
military personnel to execute the laws. Such requests for exceptions to policy outside the territorial
jurisdiction of the United States should be made only when there are compelling and extraordinary
circumstances to justify them.
25 DoDD 5525.5, supra note 7, para. E.4.1; SECNAVINST 5820.7C, supra note 8, para. 8; AFI 10-801, supra note 8,
ch. 2.1.
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restriction in the event “such support will adversely affect the military preparedness of the United
States.”26 The Secretary of Defense directed the Secretaries of the Military Departments and the
Directors of the Defense Agencies to ensure that approval authority for the disposition27 of
equipment to civilian law enforcement agencies is vested in those officials who can properly assess
the impact the disposition will have on military preparedness and national security.28
10 U.S.C. § 377 requires civilian law enforcement agencies to reimburse DoD for support provided
as required by the Economy Act29 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.30 Waiver authority for reimbursements not required by law resides with the Assistant
Secretary of Defense (Force Management and Personnel). This authority may be delegated to the
Secretaries of the Military Departments and the Directors of the Defense Agencies (or designees) on
matters within their approval authority.31
For a brief recap 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.
26
10 U.S.C. § 376 (1998). This statute reflects congressional concern over the potential dilution of military readiness
and capabilities by complying with requests for assistance from civilian law enforcement agencies.
27 DoDD 5525.5, supra note 7, para. E.3.1 states: “Military Departments and Defense Agencies may make equipment,
base facilities, or research facilities available to federal, State, or local civilian law enforcement officials for law
enforcement purposes in accordance with this enclosure.”
28
Id. para. E.4.4; SECNAVINST 5820.7C, supra note 8, para. 6(b); AFI 10-801, supra note 8, ch.3.
29
31 U.S.C. § 1535.
30
10 U.S.C. § 377.
31 DoDD 5525.5, supra note 7, para. E.5.2; SECNAVINST 5820.7C, supra note 8, para. 9; AFI 10-801, supra note 8,
ch. 5.
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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 detailees 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.
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 CBRNE 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.
Federalized National Guard in Title 10 Status
PCA Applies. See Title 10, above.
OTHER UNIFORMED SERVICES
APPLICABILITY OF THE PCA
United States Navy
PCA does not apply by statute, but by regulation.
United States Marine Corps
PCA does not apply by statute, but by regulation
United States Coast Guard
PCA does not apply.
United States Public Health Service
PCA does not apply.
National Oceanic & Atmospheric Administration
PCA does not apply.
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a. Use of DoD Information Collected During Military Operations
The sharing of intelligence information has taken on crucial importance after September 11, 2001.
The Homeland Security Act of 2002 tasked the Secretary of the Department of Homeland Security
with establishing procedures to share information between local, state, and federal entities.32 The
President is to ensure that the procedures apply to “all agencies of the Federal Government.”33
The use of information collected during military operations is codified in 10 U.S.C. § 371 and
implemented by the Secretary of Defense in Enclosure 2 of DoDD 5525.5. Under 10 U.S.C. § 371,
the Secretary of Defense may provide information collected during the normal course of military
operations to federal, state, and local law enforcement agencies if the information is relevant to a
violation of federal or state law under the jurisdiction of these officials. The Secretary of Defense
shall, to the maximum extent possible, take into account the needs of civilian law enforcement
officials when planning and executing military training and operations. Further, § 371 provides that
the Secretary of Defense shall ensure, to the extent consistent with national security, that
intelligence information held by DoD and relevant to drug interdiction and other civilian law
enforcement matters is promptly provided to the appropriate civilian law enforcement officials. 10
U.S.C. § 371, et seq., is included at Appendix 4-2.
Enclosure 2 of DoDD 5525.5 implements 10 U.S.C. § 371 with some additional restrictions.
Military departments and defense agencies are generally encouraged to provide law enforcement
officials any information collected during the normal course of military operations that may be
relevant to a criminal violation. While the Secretary of Defense shall take into account the needs of
civilian law enforcement officials to obtain intelligence when planning and executing military
training and operations in accordance with 10 U.S.C. § 371, the planning or creation of missions or
training for the primary purpose of aiding civilian law enforcement official intelligence-gathering
efforts is prohibited. Law enforcement officials may accompany regularly scheduled training
flights as observers, but point-to-point transportation and training flights for civilian law
enforcement officials solely for the purpose of information sharing are not authorized.34
Additionally, the handling of all such information must comply with DoDD 5240.1, Activities of
DoD Intelligence Components that Affect U.S. Persons;35 DoDD 5200.27, Acquisition of
Information Concerning Persons and Organizations not Affiliated with the Department of
Defense;36 and DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence
Components that Affect United States Persons.37
(For additional information concerning the use of
DoD information collected during domestic operations, see chapter 9 infra.)
32 Homeland Security Act of 2002, § 891(c), Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified primarily at 6 U.S.C.
§§ 101-557) [hereinafter HSA 2002].
33
Id. § 892(a).
34 See U.S. DEP’T OF DEFENSE, REG. 4515.13-R, AIR TRANSPORTATION ELIGIBILITY (1 Nov. 1994) for guidance on this
type of assistance. This rule does not apply to counter-drug operations. See infra ch. 6, Counterdrug Operations.
35 U.S. DEP’T OF DEFENSE, DIR. 5240.1, ACTIVITIES OF DOD INTELLIGENCE COMPONENTS THAT AFFECT U.S. PERSONS
(27 Aug. 2007) [hereinafter DoDD 5240.1].
36 U.S. DEP’T OF DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS
NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980).
37 U.S. DEP’T OF DEFENSE, REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE
COMPONENTS THAT AFFECT UNITED STATES PERSONS (1 Dec. 1982) [hereinafter DoDD 5240.1-R]. (As of July 2011,
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b. Use of DoD Military Equipment and Facilities
The loan or lease of military equipment to civilians is a difficult legal area. Each military service
has implemented its own regulations in addition to DoDD 5525.5. The Army Regulation on point is
AR 700-131.38 10 U.S.C. § 372 and Enclosure 3 of DoDD 5525.5 address the use of military
equipment and facilities by civilian law enforcement authorities. Section 372(a) allows the
Secretary of Defense to make available equipment (including associated supplies and spare parts),
base facilities, and research facilities of the Department of Defense to any federal, state, or local
civilian law enforcement official for law enforcement purposes. The provision of equipment and
facilities must be made in accordance with all other applicable law. Enclosure 3 of DoDD 5525.5
implements this provision 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 national security or military preparedness.
Approval authority under DoDD 5525.5 varies based on the type of equipment requested, the reason
for the request, and whether the equipment will be loaned39 or leased.40 The following is a list of
the approval authorities for various types of equipment and facilities:41
• Approval authority for military assistance in civil disturbances is governed by DoDD 3025.12,
Military Assistance for Civil Disturbances (MACDIS);42
• Approval authority for assistance to the government of the District of Columbia is governed by
DoDD 5030.46, Assistance to the District of Columbia Government in Combating Crime;43
• Approval authority for training, expert advice, and personnel to operate and maintain equipment
shall be made in accordance with Enclosure 4 of DoDD 5525.5;
• Approval authority for assistance from DoD intelligence components is governed by DoDD
5240.1 and, upon release, the revised DoD 5240.1-R;44
• Approval authorities for loan or lease of other equipment or facilities are the Secretaries of the
Military Departments and the Directors of the Defense Agencies unless the authority has been
retained at a higher level. The authority of the Secretaries of the Military Departments and the
Directors of the Defense Agencies may be delegated.45
DoDD 5240.1-R is currently undergoing revision; consequently, practitioners citing this reference should first ensure
DoDD 5240.1-R is still in effect.)
38 U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL (23 Aug. 2004).
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 may be made to entities outside the federal Government.
41 Since many of the applicable military regulations predate their corresponding DoD Directives, care must be
exercised in applying authority or procedures from military regulations without verifying currency of the information.
42 U.S. DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (MACDIS) (4 Feb.
1994)[hereinafter DODD 3025.12].
43 U.S. DEP’T OF DEFENSE, DIR. 5030.46, ASSISTANCE TO THE DISTRICT OF COLUMBIA GOVERNMENT IN COMBATING
CRIME (26 Mar. 1971).
44 See also U.S. DEP’T OF ARMY, REG. 381-10, U.S. ARMY INTELLIGENCE ACTIVITIES (3 May 2007).
45 DoDD 5525.5, supra note 7, para. E3.4; SECNAVINST 5820.7C, supra note 8, para. 6(b); AFI 10-801, supra note 8,
ch.3. See also DEP’T OF DEFENSE, DIR. 3025.18, MILITARY DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 Dec 2010),
which withholds approval authorities for some types of support.
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Of note, recently promulgated DoDD 3025.18.4.j reserves approval authority to the Secretary of
Defense for the assistance with assets with potential lethality, e.g. arms, vessels or aircraft, or
ammunition. (Previously, DoDD 5525.5 provided service secretaries and the directors of defense
agencies with such authority.)
Additionally, service regulations supply further guidance. For example, security bonds are often
required before the loan or lease of equipment. Approval authorities may vary depending upon the
implementing service regulation. A chart depicting Army and National Guard approval authorities
for the loan or lease of military equipment is included at Appendix 5-7, Loan, Lease and Donation
of Army Material.
10 U.S.C. § 372 provides additional guidance for chemical and biological incidents. Under §
372(b), the Secretary of Defense may make training facilities, sensors, protective clothing, antidotes
and similar items available to federal, state, or local law enforcement or emergency response
agencies to prepare for or respond to an emergency involving chemical or biological agents. Before
making these materials available, however, the Secretary of Defense must make a determination
that the items are not reasonably available from another source.46
Further, EO 13527 Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack provides additional authority for DoD to be
integrated into plans to support the delivery of “medical countermeasures” as part of a response to a
biological attack. EO 13527 provides that the Secretaries of Homeland Security, Defense, and
Health and Human Services shall develop a plan to support the U.S. Postal Service in its
distribution of efforts, to include a “plan for supplementing local law enforcement personnel, as
necessary and appropriate, with local federal law enforcement, as well as other appropriate
personnel, to escort U.S. Postal workers delivering medical countermeasures.”47
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
46 See also 10 U.S.C. § 382 for further guidance on emergency situations involving chemical or biological weapons of
mass destruction.
47 EO 13527, Establishing Federal Capability for the Timely Provision of Medical Countermeasures Following a
Biological Attack (Dec. 30, 2009).
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. Haw. 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.
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
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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
As previously mentioned, in implementing the guidance contained in 10 U.S.C., ch. 18, DoDD
5525.5 divides the PCA restrictions regarding the use of military personnel to assist civilian law
enforcement into five categories: (1) direct assistance; (2) training; (3) expert advice; (4) use of
DoD personnel to operate or maintain equipment; 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
Alcohol, Tobacco, and Firearms during its standoff with the Branch Davidians in Waco, Texas. In
advising commanders on the permissible use of military personnel in support of civilian law
enforcement activities, judge advocates must also consider possible legal ramifications of PCA
violations. Evidence may be excluded from use at trial and the military may be sued.53
(1) Direct Assistance
(a) Prohibited Direct Assistance
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. §§ 371,
374(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
18 U.S.C. § 1385.
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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 Impermissible direct assistance by military
personnel in civilian law enforcement activities is codified in 10 U.S.C. § 375 and is implemented
as DoD policy by DoDD 5525.5.55 Prohibited direct assistance by military personnel includes:
• Interdiction of a vehicle, vessel, aircraft, or other similar activity;
• A search or seizure;
• An arrest, apprehension, stop and frisk, or similar activity; or
• Use of military personnel for surveillance or pursuit of individuals, or as undercover agents,
informants, investigators, or interrogators.
(b) Permissible Direct Assistance
(i) Military Purpose Doctrine
Conversely, there are several forms of direct assistance by military personnel that are permitted
under the PCA. The first type of permitted direct assistance is action taken for the primary purpose
of furthering a military or foreign affairs function of the United States.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 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;
• Protection of DoD personnel, DoD equipment, and official guests of the DoD; and
57
• Such other actions that are undertaken primarily for a military or foreign affairs purpose.
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
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 DoDD 5525.5, supra note 7, para. E.4.1.3; SECNAVINST 5820.7C, supra note 8, para. 8(b); AFI 10-801, supra note
8, ch. 2.
56 DoDD 5525.5, supra note 7, para. E.4.1.2; SECNAVINST 5820.7C, supra note 8, para. 8(c)(1); AFI 10-801, supra
note 8, ch. 2.
57 DoDD 5525.5, supra note 7, para. E.4.1.2; SECNAVINST 5820.7C, supra note 8, para. 8(c)(1); AFI 10-801, supra
note 8, ch. 2.
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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. Further, it will only be
used under the guidance of DoDD 3025.12, Military Assistance for Civil Disturbances
(MACDIS).59 DoDD 3025.12 states: “Military Forces shall not be used in MACDIS unless
specifically authorized by the President, except in the following emergency circumstances:”60
• When the use of military forces is necessary to prevent loss of life or wanton destruction of
property, or to restore governmental functioning and public order. That “emergency authority”
applies when sudden and unexpected civil disturbances (including civil disturbances incident to
earthquake, fire, flood, or other such calamity endangering life) occur, if duly constituted local
authorities are unable to control the situation and circumstances preclude obtaining prior
authorization by the President,61 or
• When duly constituted state or local authorities are unable or decline to provide adequate
protection for federal property or federal governmental functions, federal action (including the
use of military forces) is authorized, as necessary, to protect the federal property or functions.62
Presidential approval is not a prerequisite to the use of military forces in these two limited
circumstances. However, DoD officials and military commanders must use all available means to
obtain Presidential authorization through their appropriate chains of command while applying
emergency authority.63
(iii) Civil Disturbance Statutes
The third type of permitted direct assistance by military forces to civilian law enforcement is action
taken pursuant to DoD responsibilities under the Insurrection Act, 10 U.S.C. §§ 331-334.64 This
statute contains express exceptions to the Posse Comitatus Act65 that allows for the use of military
forces to repel insurgency, domestic violence, or conspiracy that hinders the execution of state or
58 See 32 C.F.R. § 215.4.
59 DoDD 3025.12, supra note 42.
60
Id. para. 4.2.2.
61
Id. para. 4.2.2.1.
62
Id. para. 4.2.2.2.
63
Id. para. 4.2.2.
64 For more detailed guidance, see DoDD 3025.12, para. 4.
65 Insurrection Act, 10 U.S.C. §§ 331-334 (1998).
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federal law in specified circumstances. Actions under this authority are governed by DoDD
3025.12. 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;66
• A rebellion makes it impracticable to enforce the federal law through ordinary judicial
proceedings;67 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.68
10 U.S.C. § 334 requires the President to issue a proclamation ordering the insurgents to disperse
within a certain time before he can use the military to enforce the laws. The President issued such a
proclamation during the Los Angeles riots in 1992.
(iv) Other Statutory Authority
There are several statutes, other than the Insurrection Act, that provide statutory authority for the
military to assist civilian law enforcement agencies in executing the laws.69 These statutes 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);
• Emergency situations involving chemical or biological weapons of mass destruction (10 U.S.C.
§ 382) (see also 10 U.S.C. §§ 175a, 229E and 233E which authorizes the Attorney General or
other DOJ official to request SECDEF to provide assistance under 10 U.S.C. § 382);
• Assistance in the case of crimes against foreign officials, official guests of the United States,
and other internationally protected persons (18 U.S.C. §§ 112, 1116);
• Protection of the President, Vice President, and other designated dignitaries (18 U.S.C. § 1751
and the Presidential Protection Assistance Act of 1976);
• Assistance in the case of crimes against members of Congress (18 U.S.C. § 351);
• Execution of quarantine and certain health laws (42 U.S.C. § 97);
• Protection of national parks and certain other federal lands (16 U.S.C. §§ 23, 78, 593);
• Enforcement of the Magnuson-Stevens Fishery and Conservation Management Act (16 U.S.C. §
1861(a));
• Actions taken in support of the neutrality laws (22 U.S.C. §§ 408, 461-462);
• Removal of persons unlawfully present on Indian lands (25 U.S.C. § 180);
66
Id. § 331.
67
Id. § 332.
68
Id. § 333.
69 DoDD 5525.5, supra note 7, para. E.4.1.2.5; SECNAVINST 5820.7C, supra note 8, para. 9(c)(5).
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• 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); and
• Actions in support of certain customs laws (50 U.S.C. § 220).
(2) Training
The second category of restrictions on military involvement in civilian law enforcement is training.
DoD is prohibited from providing advanced military training to civilian law enforcement
agencies.70
“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.71
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.72
10 U.S.C. § 373 permits the Secretary of Defense to make DoD personnel available for the training
of federal, state, and local civilian law enforcement personnel in the operation and maintenance of
equipment, including equipment provided to civilian law enforcement by DoD under 10 U.S.C. §
372. The Secretary of Defense has implemented this guidance in DoDD 5525.5.73
DoDD 5525.5 allows the military departments and defense agencies to provide training that is not
“large scale or elaborate” and does not result in a direct or regular involvement of military
personnel in activities that are traditionally civilian law enforcement operations. Training assistance
is limited to situations where the use of non-DoD personnel would be impractical because of time or
cost. Training assistance cannot involve military personnel in a direct role in a law enforcement
operation, unless otherwise authorized by law, and this assistance will only be rendered at locations
where law enforcement confrontations are unlikely.74
(3) Expert Advice
70 Memorandum, Deputy Secretary of Defense, subject: DoD Training Support to Civilian Law Enforcement Agencies
(29 June 1996) [hereinafter Training Memorandum] (emphasis added).
71 DoD may allow local police organizations and other civic organizations to use military ranges. See 10 U.S.C. § 4309
(1998).
72 Training Memorandum, supra note 70.
73 DoDD 5525.5, supra note 7, para. E.4.1.4; SECNAVINST 5820.7C, supra note 8, para. 8(c)(7).
74
Id.
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The third category of military assistance to civilian law enforcement under DoDD 5525.5 is the
provision of expert advice. 10 U.S.C. § 373 allows the Secretary of Defense to make DoD
personnel available to provide civilian law enforcement agencies with expert advice relevant to the
purposes of 10 U.S.C., ch. 18. The Secretary of Defense has directed that military departments and
defense agencies may provide expert advice in accordance with this statute as long as military
personnel are not directly involved in activities that are fundamentally civilian law enforcement
operations.75
(4) Use of DoD Personnel to Operate or Maintain Equipment
10 U.S.C. § 374 and DoDD 5525.5, enclosure 3, address the use of DoD personnel for the operation
or maintenance of equipment, including but not limited to equipment provided under § 372, for
federal, state, or local law enforcement officials.
10 U.S.C. § 374(a) allows the Secretary of
Defense to make DoD personnel available for the maintenance of equipment. 10 U.S.C. § 374(b)
allows the Secretary of Defense, upon the request of the head of a federal law enforcement agency,
to make DoD personnel available to operate equipment with respect to:
• A criminal violation of certain specified laws;76
• Assistance that such agency is authorized to provide to a state, local, or foreign government
involved with enforcement of a similar law;
• A foreign or domestic counter-terrorism operation; or
• A rendition of a suspected terrorist from a foreign country to the United States to stand trial.
DoD personnel made available under 10 U.S.C. § 374(b) may operate equipment for the following
purposes:
• Detection, monitoring, and communication of the movement of air and sea traffic;
• Detection, monitoring, and communication of the movement of surface traffic outside of the
geographic boundary of the United States and within the United States not to exceed 25 miles of
the boundary if the initial detection occurred outside of the boundary;
• Aerial reconnaissance;
• Interception of vessels or aircraft detected outside the land area of the United States for the
purposes of communicating with such vessels and aircraft to direct such vessels and aircraft to
go to a location designated by appropriate civilian officials;
• Operation of equipment to facilitate communications in connection with law enforcement
programs specified in 10 U.S.C. § 374(4)(b)(1);
• Subject to joint approval by the Secretary of Defense and the Attorney General (and the
Secretary of State in the case of a law enforcement operation outside of the land area of the
United States):
75 DoDD 5525.5, supra note 7, para. E.4.1.5; SECNAVINST 5820.7C, supra note 8, para. 8(c)(6).
76 Controlled Substances Act, 21 U.S.C. §§ 801-904 (2006); Controlled Substances Import and Export Act, 21 U.S.C.
§§ 951-971 (2006); Immigration and Nationality Act, 8 U.S.C. §§ 1324-1328 (2006); 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; Maritime Drug Law Enforcement Act, 46 U.S.C. app. § 1901 (2006); or any foreign or domestic law
prohibiting terrorist activities.
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• the transportation of civilian law enforcement personnel along with any other civilian or
military personnel who are supporting or conducting a joint operation with civilian law
enforcement personnel;
• the operation of a base of operations for civilian law enforcement and supporting personnel;
and
• the transportation of suspected terrorists from foreign countries to the United States for trial
(so long as the requesting federal law enforcement agency provides all security for such
transportation and maintains custody over the suspect through the duration of the
transportation).
Additionally, DoD personnel made available to operate equipment for the purpose stated above may
continue to operate such equipment into the land area of the United States in cases involving the
pursuit of vessels or aircraft where the detection began outside such land area.77 Lastly, 10 U.S.C. §
374(c) provides that the Secretary of Defense may make DoD personnel available to operate
equipment for purposes other than those enumerated in 10 U.S.C. § 374(b)(2) so long as such
support does not result in DoD personnel directly participating in a civilian law enforcement
operation, unless direct participation is otherwise authorized by law.78
Not all of the provisions of 10 U.S.C. § 374 have been implemented by the Secretary of Defense
through DoDD 5525.5.79 Generally, under DoDD 5525.5, 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 because of time or cost to use non-DoD personnel. The assistance
cannot involve DoD personnel in a direct law enforcement role unless otherwise authorized by law,
and the assistance should be provided at a location where there is not a reasonable likelihood of a
law enforcement confrontation. Requests for the use of personnel to operate or maintain equipment
must come from the head of the civilian law enforcement agency making the request. 10 U.S.C. §
374, however, specifically requires that requests for the operation of equipment come from the head
of a federal law enforcement agency.80 Use of military aircraft for point-to-point transportation and
training flights for civilian law enforcement personnel is governed under the authority of DoD
4515.13-R.
Like 10 U.S.C. § 374(b), DoDD 5525.5 provides additional guidance concerning drug, customs,
immigration, and other laws. Per DoDD 5525.5, DoD personnel made available at the request of
the head of a civilian agency empowered to enforce the laws enumerated in 10 U.S.C. § 374(b)(2)
may provide the following assistance:
• Operate or maintain equipment to the extent that the equipment is used for monitoring and
communicating to civilian law enforcement officials the movement of sea and air traffic with
77 10 U.S.C. § 374(b)(3) (2006).
78 See DOPLAW Handbook, Supp., App. 4-8, Support to DOJ.
79 DoDD 5525.5, supra note 7, para. E.4.1.6. DoDD 5525.5 was last updated in 1989 while 10 U.S.C. §§ 371-382
have been updated several times since 1989. Consequently, judge advocates must be aware that DoDD 5525.5 may not
accurately reflect the state of the law regarding military support to civilian law enforcement as it stands today.
80 The U.S. Code does not mention state and local law enforcement agencies. However, under 10 U.S.C. §
374(b)(1)(B), DoD personnel may operate equipment for a state or local law enforcement agency, but only if the request
comes from the head of a federal law enforcement agency and this support is of the type the federal law enforcement
agency is authorized to provide to the state or local law enforcement agency.
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respect to any criminal violation of a law enumerated in paragraph E.4.1.2.5,81 including
communicating information concerning the relative position of civilian law enforcement
officials and other sea and air traffic; or
• Operate equipment (by, or with the assistance of DoD personnel) in an emergency situation
outside the land area of the United States (or any Commonwealth, territory, or possession of the
United States) as a base of operations by federal law enforcement officials to facilitate the
enforcement of a law enumerated in 10 U.S.C. § 374(b)(1) and to transport such law
enforcement officials in connection with such operations subject to the following limitations:
• equipment operated by or with the assistance of DoD personnel may not be used to interdict
or interrupt the passage of vessels or aircraft, except when DoD personnel are otherwise
authorized to take such action with respect to civilian law enforcement operations; and
• there must be a joint determination by the Secretary of Defense and the Attorney General
that an emergency situation exists. An emergency situation may be determined to exist for
purposes of this subparagraph only when the size and scope of the suspected criminal
activity in a given situation poses a serious threat to the United States. This emergency
authority may be used only with respect to large-scale criminal activity at a particular point
in time or over a fixed period. It does not permit use of this authority on a routine or
extended basis.
The key authorities addressing requests for maintenance and operation of equipment in support of
law enforcement agencies investigating drug, customs, and immigration violations are different.
Under 10 U.S.C. § 374, requests for DoD personnel to maintain equipment may come from federal,
state, or local authorities; however, requests for DoD personnel to operate equipment must come
from the head of a federal law enforcement agency.
DoDD 5525.5, on the other hand, does not distinguish between a request for personnel to operate or
to maintain equipment. DoDD 5525.5 only requires that the request come from the head of a
civilian law enforcement agency charged with enforcing specified federal laws.
Also, the purposes listed in 10 U.S.C. § 374(b)(2) for which DoD personnel may operate equipment
are more expansive than those listed in DoDD 5525.5. Operations such as aerial reconnaissance
and intercepting vessels outside the land area of the United States in order to direct them to a certain
area are permitted under § 374, but not under DoDD 5525.5. A judge advocate must be aware of
these discrepancies and work through the requirements closely in order to provide the best legal
advice.
(5) Other Permissible Assistance
The last category of military assistance to civilian law enforcement under DoDD 5525.5 is the
overarching category of “other permissible assistance.”82 Under 10 U.S.C. § 371, the transfer of
81 The laws enumerated in DoDD 5525.5, supra note 7, para. E.4.1.2.5 pertaining to the operation and maintenance of
equipment are the same laws listed in paragraph 3.c(1)(b)(iv) Other Statutory Authority, above, regarding the use of the
DoD personnel to enforce laws under specific statutory authority.
82 DoDD 5525.5, supra note 7, para. E.4.1.7; SECNAVINST 5820.7C, supra note 8, para. 9(d); AFI 10-801, supra note
8, ch. 4.
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information acquired in the normal course of military operations to civilian law enforcement
agencies is not a violation of the PCA.83 Additionally, DoDD 5525.5 provides that other actions
which are approved by the Secretaries of the Military Departments or the Directors of Defense
Agencies that do not subject civilians to the regulatory, prescriptive, or compulsory use of military
power are not violations of the PCA.
83 Transfer of information is discussed in greater detail in this chapter at B.3.a., Use of DoD Information Collected
During Military Operations.
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CHAPTER 5
CIVIL DISTURBANCE OPERATIONS1
KEY REFERENCES:
•
10 U.S.C. § 331-335 - The Insurrection Act
•
10 U.S.C. § 2667 - Leases: Non-Excess Property of Military Departments
•
18 U.S.C. § 231 - Civil Disorders
•
18 U.S.C. § 1382 - Entering Military, Naval, or Coast Guard Property
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA)
•
28 U.S.C. § 1346, 2671-2680 - The Federal Tort Claims Act
•
31 U.S.C. § 1535 - Agency Agreements
•
Executive Order 12656 - Assignment of Emergency Preparedness Responsibilities
•
EO 13527 - Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack, December 30, 2009.
•
DoDD 3025.12 - Military Assistance for Civil Disturbances, February 4, 1994.
•
DoDD 3025.18 - Defense Support of Civil Authorities, December 29, 2010.
•
DoDD 5111.13 - Assistant Secretary of Defense for Homeland Defense and Americas’ Security
Affairs, January 16, 2009.
•
DoDD 5525.5 - DoD Cooperation with Civilian Law Enforcement Officials, January 15, 1986.
•
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 - Civil Support, September 14, 2007.
•
Army Regulation 700-131 - Loan and Lease of Army Materiel, August 23, 2004.
•
National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June
13, 2008.
•
FM 3-07 - Stability Operations and Support Operations, October 6, 2008.
•
FM 3-19.15 - Civil Disturbances, April 18, 2005.
•
USNORTHCOM CONPLAN 3502 (S)
•
USNORTHCOM CONPLAN 3600 (S)
•
USPACOM CONPLAN 7502 (S)
A.
Introduction
Within civilian communities in the United States, the local government and the state have the
primary responsibility for protecting life and property and maintaining law and order. 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 policy reflects the Founding Fathers’ hesitancy to raise a standing army and their desire to
1 The National Response Framework (Jan. 2008) uses the phrase Defense Support of Civil Authorities (DSCA). A
copy of the National Response Framework is located at DOPLAW Handbook, Supp., App. 2-18.
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render the military subordinate to civilian authority.2 The basic policy is rooted in the Constitution3
and laws of the United States,4 and allows for exception only under extreme, emergency conditions.
The Constitution guarantees to the states that the Federal Government will aid in suppressing civil
disturbances (Civil Disturbance Operations (CDO)) and empowers Congress to create laws that
provide Federal forces for that purpose.5 Other emergency conditions, which are outside the
constitutionally and congressionally prescribed conditions, may also allow for CDO.
B. Civil Disturbance Statutes
Title 10, Chapter 15 of the United States Code,6 entitled “Insurrection,” allows the use of federal
forces to restore order during times of civil disturbance. DoD and the courts use one phrase, “civil
disturbance,” to encompass the various situations allowing the use of military assistance under the
Insurrection Act.
DoD defines civil disturbances as “group acts of violence and disorders prejudicial to public law
and order in the fifty States, the District of Columbia, the Commonwealth of Puerto Rico, U.S.
possessions and territories, or any political subdivision thereof.”7 The phrase “civil disturbance”
includes all circumstances requiring the use of force under the conditions set out in the Insurrection
Act. The Insurrection Act is the authority that allows the President, in certain domestic conditions,
to use federal forces under DoDD 3025.12.8 Courts use similar language when defining
“insurrection.”9
2 Among the several grounds stated in the Declaration of Independence for severing ties with Great Britain includes
that the King “has kept among us, in times of peace, Standing Armies without the consent of our Legislature . . . [and]
has affected to render the Military independent of and superior to the Civil power.” THE DECLARATION OF
INDEPENDENCE, para. 13, available at http://www.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), in 1 DEBATES IN THE
SEVERAL STATES CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (ELLIOT’S DEBATES), 344, 372
3 The Constitution divides authority over the Armed Forces between the President as Commander in Chief, U.S.
CONST. art. II, § 2, para. 1, and Congress, which has the authority to “raise and support Armies . . . provide and maintain
a Navy, . . . [and] make Rules for the Government and Regulation of the land and naval Forces.” Id. art. I, § 8, para. 11.
4 See, e.g., Posse Comitatus Act, 18 U.S.C. § 1385. The Posse Comitatus Act is discussed fully infra at Chapter 4,
Military Support to Civilian Law Enforcement.
5 U.S. CONST. art. I, § 8, para. 15, art. II, § 2, and art. IV, § 4. These sections provide authority to Congress and the
President to support the States by providing forces to repel an invasion and suppress domestic violence.
6
10 U.S.C. §§ 331-335.
7 U.S. DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (MACDIS) (4 Feb. 1994)
[hereinafter DODD 3025.12].
8
Id. para. E.2.1.4 See also U.S. JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-28, CIVIL SUPPORT, Part II - Terms
and Definitions (14 September 2007) [hereinafter JP 3-28].
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.) (An insurrection is a rising against civil or political authority; the open and
active opposition of a number of persons to the execution of law in city or state.).
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Under the Insurrection Act, federal forces may be used to restore law and order. As the use of
federal forces to quell civil disturbances is expressly authorized by statute, the proscriptions of the
Posse Comitatus Act (PCA) are inapplicable.10 The Insurrection Act permits the commitment of
U.S. forces by the President under three circumstances:
• To support a request from a state or territory;
• To enforce federal authority; or
• To protect constitutional rights.11
1. Supporting a State or Territorial Request
The Federal Government has an obligation to protect every state in the union, upon request, from
domestic violence.12 Pursuant to this obligation, Congress included in the Insurrection Act a
provision allowing the President to use federal forces to assist state governments. 10 U.S.C. § 331
provides:
Whenever there is an insurrection in any state against its government, the President
may, upon the request of its legislature or of its governor if the legislature cannot be
convened, call into federal service such of the militia of the other states, in the
number requested by that state, and use such of the armed forces, as he considers
necessary to suppress the insurrection.13
A request from a state for the assistance of federal armed forces is made to the President. The
President has designated the Attorney General of the United States to receive and coordinate
preliminary requests from the states for federal military assistance under this provision.14
(See
DOPLAW Handbook, Supp., App. 2-4, Executive Order 12656, Emergency Preparedness.) Should
a request for assistance be presented to a local commander, the commander should inform the
person making the request to address the request to the Attorney General. The commander must
also inform the Chairman of the Joint Chiefs of Staff of the request and all known material facts
pertaining to the request.15
10 Posse Comitatus Act, 18 U.S.C. § 1385, makes it unlawful to use any part of the Army or Air Force in a civilian law
enforcement capacity to execute local, state, or federal laws. The language of the act itself specifies that activities
expressly authorized by the Constitution or by statute are exempt from the act’s restrictions. For a more complete
discussion of the Posse Comitatus Act, see infra Chapter 4, Military Support to Civilian Law Enforcement.
11
10 U.S.C. §§ 331-335.
12 U.S. CONST. art. IV, § 4.
13
10 U.S.C. § 331.
14 See Exec. Order No. 12,656, 53 Fed. Reg. 47,491, § 1101(8) (18 Nov. 1998) [hereinafter EO 12,656]; DODD
3025.12, supra note 7, para. 4.6.1; JP 3-28, supra note 8, para. 1b (1). A copy of the Executive Order is located at
DOPLAW Handbook, Supp., App. 2-4.
15 U.S. DEP’T OF DEFENSE, DIR. 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND
AMERICAS’ SECURITY AFFAIRS, (16 Jan. 2009)[hereinafter DoDD 5111.13], appointed Assistant Secretary of Defense
for Homeland Defense & Americas’ Security Affairs as DoD Executive Agent and transferred the Director of Military
Support function from the Army to the Chairman of the Joint Chiefs of Staff .
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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,16 should have been brought to
bear on the civil disturbance.17
On 1 May 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.18 In accordance with the order of President Bush, the Secretary of Defense ordered the
federalization of the California National Guard and the deployment of Soldiers of the 7th Infantry
Division from Fort Ord and Marines from Camp Pendleton to assist in restoring order in Los
Angeles.19
(See DOPLAW Handbook, Supp., App. 5-9, Presidential Proclamation and Executive
Order 12804; App. 5-10, Acting SECDEF Memorandum “Execution of Operations to Assist in
Restoring Civil Order to Los Angeles and Other Districts in California; and App. 5-11, JTF LA
Report.)
2. Enforcing Federal Authority
The President has a constitutional duty to see that the laws of the United States are faithfully
executed.20 Within the Insurrection Act, Congress gave the President the authority to commit the
U.S. military to enforce federal law.21
10 U.S.C. § 332 provides:
Whenever the President considers that unlawful obstructions, combinations, or
assemblages, or rebellion against the authority of the United States, make it
impracticable to enforce the laws of the United States in any state or territory by the
ordinary course of judicial proceedings, he may call into federal service such of the
militia of any state, and use such of the armed forces, as he considers necessary to
enforce those laws or to suppress the rebellion.22
During the 1950s and 1960s, this statute was used to enforce public school desegregation in
Arkansas23 and Alabama24 and to control civil rights protests in Mississippi25 and Alabama.26
16 See infra Chapter 10, Reserve Components - Special Issues, which discusses the mobilization and activation of
National Guard forces.
17 See NATIONAL GUARD BUREAU, REG. 500-1/ANGI 10-8101, NATIONAL GUARD DOMESTIC OPERATIONS, PARA. 4-2d
(13 June 2008) (which anticipates that state national guard forces would exercise their primary responsibility for
providing military assistance to state and local government agencies while in state active duty status).
18 Proclamation No. 6427, 57 Fed. Reg. 19,359 (May 5, 1992).
19 Exec. Order No. 12,804, 57 Fed. Reg. 19,361 (May 5, 1992).
20 U.S. CONST. art. II, § 3.
21
10 U.S.C. § 332 (2006).
22
Id.
23 See Exec. Order No. 10,730, 22 Fed. Reg. 7,628 (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.).
24 See Exec. Order No. 11,118, 28 Fed. Reg. 9,863 (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.).
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3. Protecting Constitutional Rights
Citizens of the United States are guaranteed equal protection under the law.27 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.28
10 U.S.C. § 333 states:
The President, by using the militia or the armed forces, or both, or by any other
means, shall take such measures as he considers necessary to suppress, in a state, any
insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(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.29
Under 10 U.S.C. § 333, President Kennedy sent military troops to Alabama in April 1963 during the
civil rights protests in Birmingham, Alabama.30
C. Procedural Issues
Prior to committing federal troops under the Insurrection Act, the President must issue a
proclamation demanding that the insurgents cease and desist all acts of violence and retire
peaceably within a prescribed time.31
10 U.S.C. § 334 states,
Whenever the President considers it necessary to use the militia or the armed forces
under this chapter, he shall, by proclamation, immediately order the insurgents to
disperse and retire peaceably to their abodes within a limited time.
25 See Exec. Order No. 11,053, 27 Fed. Reg. 9,681 (Sept. 30, 1962) (Army and Air National Guard units federalized to
enforce federal court orders issued in Mississippi.).
26 See Exec. Order No. 11,111, 28 Fed. Reg. 5,709 (June 11, 1963) (Army and Air National Guard units federalized to
remove obstructions of justice and to suppress unlawful assemblies, conspiracies, and domestic violence that opposes
the laws of Alabama.).
27 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.”
28
10 U.S.C. § 333 (2006).
29
Id.
30 See Alabama v. U.S., 373 U.S. 545 (1963).
31
10 U.S.C. § 334.
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If the Presidential Proclamation does not end the disturbance, the President will issue an Executive
Order to the Secretary of Defense directing the Secretary to use such of the armed forces as are
necessary to restore order.32 Decisions of the President to issue Presidential Proclamations and
Executive Orders pursuant to the Insurrection Act are final33 and cannot be compelled by the
courts.34 An example of such a Presidential Proclamation and Executive Order (for the deployment
of military forces to Los Angeles during the 1992) can be found in the 2011 Documentary
Supplement at Appendices 5-9 through 5-11.
D. DoD Considerations concerning the Insurrection Act
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.
• Legality - compliance with the law.
• Lethality - potential use of lethal force by or against DoD forces.
• Risk - safety of DoD forces.
• Cost - who pays, impact on DoD budget.
• Appropriateness - whether DoD is the proper source.
• Readiness - impact on DoD’s ability to perform its primary mission.35
The decision to employ armed forces is made at the cabinet level in coordination with the President,
the Secretary of Defense, and the Attorney General. However, the above-criteria are helpful to
local commanders and their judge advocates when forwarding formal assistance requests to higher
headquarters for consideration.
The Secretary of Defense retains approval authority for all military support in response to civil
disturbances.36 However, the Secretary of Defense, through the Secretary of the Army—as the
“DoD Executive Agent,” has delegated certain authority to plan for and commit DoD resources in
response to requests from civil authorities.
32 See Exec. Order No. 10,703, 22 Fed. Reg. 7,628 (Sept. 24, 1957) (order authorizing use of military forces for
desegregation in Arkansas); Exec. Order No. 11,053, 27 Fed. Reg. 9,681 (Sept. 30, 1962) (order authorizing use of
military forces during riots in Mississippi); Exec. Order No. 11,111, 28 Fed. Reg. 5,709 (June 11, 1963) (order
authorizing use of military forces during riots in Alabama); Exec. Order No. 11,118, 28 Fed. Reg. 9,863 (Sept. 10,
1963) (order authorizing use of military forces for desegregation in Alabama).
33 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).
34 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).
35 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES, para. 4.e (29 Dec 2010) [hereinafter
DODD 3025.18]; see also supra note 7.
36 DODD 3025.18, supra note 35, para. 4.j.1, retains approval authority for civil disturbance operations to no lower than
the Secretary of Defense level.
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E. Other Authority
In addition to the Insurrection Act, authority to use federal troops in a law enforcement capacity to
quell civil disturbances can be found in two other major areas.37
1. Protection of Federal Property Authority
The United States has the right to protect federal property or functions through the use of federal
armed forces. The use of federal armed forces in this manner is warranted only where the need for
protection exists, and the duly constituted State or local civil authorities cannot or will not give
adequate protection.38 A military installation commander, exercising “inherent authority,”39 may
take such actions as are reasonably necessary and lawful to protect military installations. This could
include ejection from the installation or denial of access to an installation of those who threaten or
are involved in civil disturbances.40
2. Emergency Authority
Per DoDD 3025.18, Defense Support of Civil Authorities, responsible DoD officials and
commanders may approve the use of military forces in a law enforcement capacity to support
civilian authorities, during sudden and unexpected civil disturbances beyond the control of local
civilian authorities when circumstances preclude seeking prior approval from the President. The
use of military forces must be necessary to prevent the loss of life or wanton destruction of
property, or to restore governmental functioning and public order, or when duly constituted federal,
state, or local authorities are unable or decline to provide adequate protection for federal property or
federal government functions.41 This emergency provision should be used with great caution. The
37 In addition to these two major areas, there are other numerous statutory authorizations that allow the use of troops in
a law enforcement capacity to quell various civil disturbances. See infra Chapter 4, Military Support to Civilian Law
Enforcement, which discusses the Posse Comitatus Act and its exceptions.
38 DODD 3025.12, supra note 7, para. 4.2.2.2.
39 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.”).
40
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).
41 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES, para. 4.i.1-2; 3025.12, supra note
7, para. 4.2.2.1; U.S. DEP’T OF DEFENSE, DIR. 5525.5, DOD COOPERATION WITH CIVILIAN LAW ENFORCEMENT
OFFICIALS, PARA. E.4.1.2.3.1 (15 JAN. 1986) [hereinafter DODD 5525.5].
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authority granting the use of federal forces in this manner clearly states that it would be difficult to
justify such action, without prior approval, while communications facilities are operating.42
Historically, authority in these circumstances has been granted to officers of the “active Army in
command of troops” allowing them to take prompt and vigorous action designed to preserve law
and order and to protect life and property until they receive instruction from a higher
headquarters.43 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 at (719) 554-2361 by the most expeditious means of
communication available. If the commander has not received a written request at the time he
forwards the request to JDOMS, the written request should be forwarded to JDOMS as soon as it is
available.
F. Responsibilities and Relationships of Parties Involved in Civil Disturbance Operations
1. Attorney General
The Department of Justice is the primary federal agency for coordinating the Federal Government
response to restore law and order.44 As the head of the Department of Justice, the Attorney General
is the chief civilian official responsible for the Federal Government’s activities in civil disturbances.
The Attorney General provides early threat assessments and warnings to the Department of Defense
to support civil disturbance planning. States request the assistance of federal forces through the
Attorney General, who also advises the President on the use of federal military forces to restore law
and order. The Attorney General coordinates the activities of federal law enforcement agencies
with those of the local and state agencies in an area faced with a civil disturbance. Finally, the
Attorney General appoints the Senior Civilian Representatives of the Attorney General (SCRAG),
who will be located in each city where federal forces are committed.
2. Senior Civilian Representative of the Attorney General
Appointed by the Attorney General, the SCRAG is the Attorney General’s on-scene agent. The
SCRAG is responsible for the coordination of effort of all federal agencies involved in the civil
disturbance operation with the efforts of state and local agencies engaged in restoring law and order.
The SCRAG has the authority to assign missions to federal military forces and the authority to
resolve disputes arising between local law enforcement agencies and the joint task force commander
concerning the types of missions military forces may undertake.
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
42 DODD 3025.12, supra note 7, para. 4.2.2., JP 3-28, supra note 8, chapter II, para. 3.
43 JP 3-28, supra note 8, Chapter III; U.S. DEP’T OF ARMY, FIELD MANUAL 3-19.15, CIVIL DISTURBANCES, para B-45
(18 Apr. 2005) [hereinafter FM 3-19.15].
44 EO 12,656, supra note 14, § 1101(3), 1101(8).
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Justice for Civil Disturbance Operations.45 ASD(HD&ASA) is responsible for all training,
planning, and operations relating to the employment of any military resources in the event of a civil
disturbance.46
4. Chairman, Joint Chiefs of Staff, Joint Director of Military Support (JDOMS)
The Chairman, Joint Chiefs of Staff (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 civil disturbance operation. JDOMS is the point of contact within DoD for
civil disturbance matters.47
5. Combatant Commanders, U.S. Northern Command and U.S. Pacific Command
The Combatant Commanders of U.S. Northern Command (CDRUSNORTHCOM) and U.S. Pacific
Command (CDRUSPACOM) have responsibility for planning and executing civil disturbance plans
within their areas of operation. In total, these areas cover the 50 states, Puerto Rico, U.S. Virgin
Islands, Guam, American Samoa, and all U.S. territories, possessions, and territorial waters.48 The
Combatant Commander, in coordination with the SCRAG, will determine the organization and
forces required to accomplish the civil disturbance mission.
CDRUSNORTHCOM is responsible for federal civil disturbance operations in the 48 contiguous
states, Alaska, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands.
CDRUSPACOM is responsible for civil disturbance operations in Hawaii, and U.S. possessions and
territories in the Pacific.49
6. Commander, U.S. Army North
U.S. Army North (ARNORTH) is currently the lead operational authority for federal civil
disturbance response within the 48 contiguous states. The Commander, ARNORTH, designates a
Commander, Joint Civil Disturbance Task Force, receives civil disturbance units, ensures
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 the Commander for all federal forces,
including National Guard forces in Title 10 status, in a civil disturbance area of operations. He is
45 DoDD 5111.13, supra note 15.
46
Id.
47
Id.; DODD 3025.12, supra note 7, para. 5.6.4; see also FM 3-19.15, supra note 43, Appendix B.
48 DODD 3025.12, supra note 7, para. 4.3.3.
49
Id. DODD 3025.12 was promulgated in 1994 and assigned responsibilities based on the geographical responsibilities
of the Combatant Commands applicable at the time of promulgation. Pursuant to CHAIRMAN, JOINT CHIEFS OF STAFF,
UNIFIED COMMAND PLAN 2002 (30 Apr. 2002) (classified Secret) [hereinafter UCP 02], the Chairman, Joint Chiefs of
Staff (CJCS), reassigned geographical responsibilities for the Commanders of the Combatant Commands. This change
is not reflected in DoDD 3025.12, which has not been updated.
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the DoD representative in the civil disturbance area and performs civil disturbance missions
assigned by the SCRAG. Civilian officials remain in charge of civil disturbance operations.
8. National Guard Bureau
The Chief of the National Guard Bureau (CNGB) is the channel of communication for all National
Guard matters between (1) 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 (2) the States.50 In that
capacity, CNGB facilitates and deconflicts the use of National Guard forces to ensure that adequate
and balanced forces are available for domestic and foreign military operations.51
9. The National Guard
National Guard units have primary responsibility to respond to a civil disturbance, and will initially
deploy in a State Active Duty (SAD) status or under Title 32.52 In either capacity, they are not
subject to the prohibitions of the PCA and can freely support state or federal law enforcement
missions.53 National Guard forces remain under the command of state NG officers, and missions
are conducted through the NG chain of command, after coordination with civil authorities. NG
operations are normally conducted according to the unity of effort paradigm. In extreme
circumstances, National Guard units may be federalized under Title 10 pursuant to a Presidential
order.54 Once federalized, the NG conducts its mission in accordance with federal law and
CONPLANs, as discussed in the next section.
The NG’s use of force while in SAD or Title 32 status is governed by the laws of the state where the
operation occurs. Multi-state operations therefore may involve separate “Rules for the Use of
Force” (RUF) for each receiving state. One instance where a regional RUF for Title 32 NG forces
occurred was during Operation Jump Start, a border security mission conducted during 2006-
2007;55 another instance where a regional RUF was signed occurred during the POTUS
Inauguration Ceremony in 2009.56
50 U.S. DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) (21 May 2008) [hereinafter DODD
5105.77].
51
Id. para. 5.1.11.2.
52 With SecDef approval, the National Guard may conduct operational missions under 32 U.S.C. § 502(f)(2)
“operational support” authority.
53 See infra, Chapter 2, Military Support to Civilian Law Enforcement, for a complete discussion on the Posse
Comitatus Act.
54 See infra Chapter 10, Reserve Components, for a complete discussion of National Guard status.
55 See Memorandum of Agreement Between the States of Arizona, California, New Mexico, Texas, and the Department
of Defense, subj: OPERATION JUMP START (June 2006).
56 See Greg Rudl, Guardmembers flow in for inauguration support; first stop - in-processsing, NAT’L GUARD (Jan. 16,
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G. The Department of Defense Civil Disturbance Plans
Formerly, DoD’s Civil Disturbance Operations (CDO) plan was known as “GARDEN PLOT.”57
Since the creation of the Department of Homeland Security and USNORTHCOM however, DoD
has delegated to geographic combatant commanders responsibility for developing CDO
Contingency Plans (CONPLANs). These geographic commanders’ CONPLANs provide guidance
and direction for planning, coordinating, and executing military operations during domestic civil
disturbances.
1. Civil Disturbance Operations Mission
Broadly stated, the CDO mission assists civil authorities in restoring law and order in the United
States and its territories.58 This mission statement, while not duplicating the language in the
Insurrection Act allowing for the use of federal forces to “suppress” insurrection, provides wide
latitude to the President to use federal forces to assist civil law enforcement in “restoring” law and
order.
The restoration of law and order must be distinguished from the preservation of law and order.59
CDO mission statements do not allow the joint civil disturbance task force commander to undertake
preservation missions.60 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.61 Care
should be taken before a military commander accepts missions that are routine maintenance of civil
order.
2. Combatant Commanders’ CONPLANs
The CONPLANs provide the basis for all preparation, deployment, employment, and redeployment
of Department of Defense component forces, including National Guard forces called to active
federal service, for use in domestic civil disturbance operations, in support of civil authorities as
directed by the President.62 The concept of a civil disturbance operation is multi-phased: Phase 0,
Shape; Phase I, Anticipate; Phase II, Respond (deployment can occur in either Phase I or Phase II);
Phase III, Operate; Phase IV, Stabilize; and Phase V, Transition (redeployment). Prior to
57 GARDEN PLOT was published in 1991. The creation of the Department of Homeland Security and U.S. Northern
Command required a change to the plan. The UCP in 2002 moved this responsibility to the regional combatant
commands. Changes to the UCP in 2008 resulted in USNORTHCOM and USPACOM having sole responsibility for
CDO planning. Thus, GARDEN PLOT has been replaced by COCOM CONPLANs for the respective theaters.
58 JP 3-28, supra note 8, para. 3(1)(b).
59 The preservation of law and order is the responsibility of state and local governments and law enforcement
authorities. DODD 3025.12, supra note 7, para. 4.1.3; FM 3-19.15, supra note 47, I-8, para. 5(a)(2).
60 See DODD 3025.12, supra note 7, para. 4.2.7, which states, “The DoD Components shall not take charge of any
function of civil government unless absolutely necessary under conditions of extreme emergency. Any commander
who is directed, or undertakes, to control such functions shall strictly limit military actions to the emergency needs, and
shall facilitate the reestablishment of civil responsibility at the earliest time possible.”
61 FM 3-19.15, supra note 47.
62 In most of the United States, USNORTHCOM CONPLAN directs how the Joint Civil Disturbance Task Force would
plan, train, and conduct operations. See NORTHCOM CONPLAN 3502 (S) (limdis) [hereinafter NORTHCOM
CONPLAN 3502]. To review this CONPLAN, contact the NORTHCOM Staff Judge Advocate.
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deployment, military forces maintain five preparedness postures, called Civil Disturbance
Conditions (CIDCONS) in order to alert and react to potential civil disturbance operations.
Changes in the CIDCON level are directed by the JDOMS.63
PRESCRIBED LEVELS OF PREPAREDN ESS FOR A CIVIL DISTURBANCE CONTROL MISSION
C IDC ON 5
CIDCON 4
CIDCON 3
CIDCON 2
CIDCON 1
Unit in n ormal
training and
i
prep ared ness
Unit has 12 h rs.
statu s
fr om initiall
notification to f uly
ll
MACOM
attain CIDCON-4
comman der
status
wt h SCRAG
deter mines
i
Unit increases
or ganizatio n an d
monitioring and
i
Unit increas es
i
Unitim oves to
f orces requiried
analysis
i
prepar edn ess,
airfield or star t
Unit a ttains st ate
for ciiil
includin
i
ig possibly
i
i
point an d boa rds
of ma
im um
distur bance
ASD ( HD) identifies
i
pr e-positio nin
i
ig
aircr aft of
pr epar edness
misson
r econ nee ds f or
a r lf t and groun d
vehicles
l
Joint Civ
i
iil
force s
F irst aircr aft ifts
CIDCON 1
FORSCOM
Dstu rbanc e T ask
Unit co mpletes
off or first vehicle
attained as
(CONUS)
i
Force Comma nder
Unit
rea dy to
oa ding; ready to
cr osses star t
i l
i
i
H--
Hour occurs
or ap propr iate
i
com plete oa ding
deploy f irst
i
point
comman der
Unitiup dates
ni
5 hou rs an d
aircr aft or
OCONUS
movem ent needs
to depa rt ni
vehicles n
i
Unit deploys
n ominate units
6 hour s
1 hour
and Joint Civil
i
l
ASD(HD) sets
Distu rbance
t entativ
i
e H-hour ,
T ask F orce
if p ossible
Comm ander
Unit f uly attains
ASD (HD)
CIDCON-4 status;
confirms
i
read y to depart in
i
nomin
i
ation;
i
1 2 hour s
places u niti
on alert status
l
of less than
2 4 hour s
Civil Disturbance Conditions , o r CIDCONs, are req uire d leve ls o f p repa red ness th at must be a ttai ned b y u nits desi gna te d
fo r ci vil di stu rba nce ope ratio ns. CIDCONs are a mean s of mea suri ng that prep are dne ss. CIDCON 5 is the no rmal state of
p rep ared ness, wh ich can be sustai ned i nde fi nite ly. CIDCON 1 is th e sta te o f pre pa redn ess a t wh ich the un it d epl oys.
Figure 4-2. CIDCON Levels of Preparedness.
CIDCON 5 is a state of normal preparedness that is sustainable indefinitely. Forces may be
designated for a civil disturbance operation.
CIDCON 4 is declared once a civil disturbance has developed. The Joint Civil Disturbance Task
Force commander may establish reconnaissance and information requirements and may initiate
detailed planning. Upon attaining CIDCON 4, designated units are prepared to cross the start point
at home station in twelve hours.
CIDCON 3 represents an increase in preparedness. Military forces may be pre-positioned. The
President or ASD(HD&ASA) issues orders to be prepared to deploy within six hours.
63 A commander cannot unilaterally increase the CIDCON of forces under his operational control above CIDCON 4. A
commander cannot decrease the CIDCON posture without approval from JDOMS.
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CIDCON 2 reflects that the deployment of federal forces is probable. All designated units will be
moved to airfields and will have completed movement planning. CIDCON 2 is fully attained when
units are prepared to deploy in one hour.
CIDCON 1 is directed one hour prior to time for deployment (H-hour). CIDCON 1 is attained
simultaneously with H-hour, when the first units have deployed.
Once military forces are within the civil disturbance area of operations, they fall under the
operational control of the Joint Task Force commander. The Joint Civil Disturbance Task Force
commander receives missions from the SCRAG and is responsible for accomplishing the Task
Force mission.64
Throughout the employment of military forces, the Commander will maintain liaison with the
SCRAG, state law enforcement representatives, and municipal authorities. Normally, this liaison is
through the Defense Coordinating Officer from ARNORTH. The liaison will be maintained until
termination of the civil disturbance mission. The Joint Civil Disturbance Task Force Commander
will accept missions from the SCRAG, and, if reasonably possible, within the framework of his
orders, comply with requests from civil authorities.65
The SCRAG designates a single state or federal law enforcement coordinating officer, through
whom requests are typically passed. Validated requests are transmitted to the Joint Civil
Disturbance Task Force Commander for staffing. Approved missions are assigned through the
military chain of command to the appropriate unit for execution. The supported combatant
commander or SCRAG resolves discrepancies when the Joint Civil Disturbance Task Force
Commander is unable to fulfill requests from the civil authorities.
Except in a direct support relationship approved and ordered through the military chain of
command, units should not accept taskings directly from law enforcement or civilian officials.
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.66
On order, commitment of federal forces will be terminated at a specified date and time. Forces
redeploy to home station where they return to the control of their respective commands.
3. The Standing Rules for the Use of Force for U.S. Forces
Civil disturbance operations are conducted in accordance with Appendix L of the Standing Rules of
Engagement/Standing Rules for the Use of Force for U.S. Forces (SRUF). Guidance on how and
64 It is important to remember that civilian authorities retain primary authority over the employment of military forces.
See supra notes 1-4 and accompanying text; DoDD 3025.12, supra note 7, para. 4.1.5; see also 9 Op. Att’y Gen. 517
(1860) (“Under [the Insurrection Act] the President may employ the militia and the land and 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.”).
65 JP 3-28, supra note 8, Chapter III.
66
Id.
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when forces can use force in a CDO mission are detailed in that annex. Although the CJCSI is
classified, Annex L is not and can be shared with our mission partners.
a. Custody and Detention
All apprehensions should be made by the civil police force unless they are not available or require
assistance. Military forces have the authority to detain rioters, looters, or other civilians committing
criminal offenses.67 Civilians taken into custody should be transferred to civilian law enforcement
authorities as soon as possible.
All members of the force must remember that state and federal criminal law and procedure govern
apprehension. Apprehension is justified only on the basis of probable cause to believe that an
offense has been committed and that the person to be apprehended committed the offense. Soldiers
should not question detainees beyond basic pedigree such as name and address. If formal
questioning of an offender is necessary, civilian police should conduct the interview. If civilian
police are not available, CID agents or military police may conduct interviews only if the interview
is essential to the civil disturbance mission. Actions taken by Soldiers that do not conform to
criminal law constitutional standards could jeopardize future prosecution and subject Soldiers and
their Commanders to criminal and/or civil liability.68
b. Search and Seizure
CDO CONPLANs anticipate that military forces will generally not be involved in searches unless
there is “an immediate danger of violence, destruction of evidence, or escape of violent persons
unless the search is conducted without delay.” In all other cases, local authorities should conduct
searches. When required to perform searches, federal armed forces may conduct warrantless
searches under the same constitutional parameters imposed upon law enforcement officials. Joint
Civil Disturbance Task Force forces conducting a warrantless search will fully document the
reasons for the search as soon as is reasonably convenient.69 Generally these searches are limited to
the following incidents.
(1) Stop and Frisk
If there is a reasonable suspicion based upon articulable facts that a person has committed, is
committing, or is about to commit a crime, that person may be temporarily stopped and questioned
about his activities. The stop must be limited in duration to that which is reasonably necessary to
investigate the suspicion. If there is a reasonable suspicion based on articulable facts that a person
is armed or is carrying instruments of violence and that the individual presents an immediate risk of
harm, members of the armed force may conduct a “frisk” (an external “patdown” of the clothing)
for weapons. Any weapons found during a frisk may be removed from the individual and seized.70
67 JP 3-28, supra note 8, Chapter III.
68 See FM 3-19.15, supra note 47, Chapter 3.
69
Id.
70
Id.
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(2) Search Incident to Lawful Apprehension
A person lawfully detained may be searched for weapons or destructible evidence. A search for
weapons or destructible evidence may also be conducted in the area where the detained person
could reach with a sudden movement to obtain a weapon or destroy evidence.71
(3) Exigent circumstances
Military forces assisting law enforcement may make a search without a warrant when they have
reason to believe (probable cause) that weapons, objects related to criminal activity, or persons
believed to have committed an offense, are in the place to be searched; and they have reason to
believe that the delay necessary to obtain a search warrant would result in removal of the weapons
or destruction of the objects related to criminal activity. For example, Joint Civil Disturbance Task
Force forces may stop and search an automobile without a warrant when there is reason to believe
that the automobile contains weapons or instruments of violence and/or contains an individual
reasonably believed to have committed violence.72
(4) Emergency
Military forces in a civil disturbance operation may make an immediate entry into a building when
there is reason to believe that entry is necessary to prevent injury to persons, serious damage to
property, loss of evidence, to protect public safety, or to render aid to someone who is in danger.73
(5) Hot pursuit
Military forces pursuing a person who they have reason to believe has just committed a serious
crime, may enter a vehicle or building believed to be entered by the suspect and search the building
or vehicle for the person or any weapons that might be used to further his escape.74
(6) Plain View
During the course of otherwise lawful activity, military forces may seize any unlawful weapons or
objects related to criminal activity which they observe in plain view.75 When conducting
warrantless searches that require a probable cause determination, military forces can obtain advice
from a judge advocate; however, the probable cause determination must be made personally by the
individual desiring to conduct the search.
If a search warrant is required, local civil authorities should obtain judicially issued search warrants.
If local civilian authorities are not available, judge advocates need to be prepared to provide advice
on probable cause to military authorities before they approach a local judge or magistrate for a
search warrant.
71
Id.
72
Id.
73
Id.
74
Id.
75
Id.
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When feasible, all searches conducted by military personnel will be conducted by two personnel
with the actual search performed by someone of the same sex.76 A hand receipt or some similar
document should be prepared when items of personal property are seized from an individual.77
c. Confinement Facilities
The Joint Civil Disturbance Task Force should not operate a detention facility.78 Any person
apprehended should be turned over to the police for detention. Military correctional facilities
cannot be used to detain civilians. If available civilian detention facilities cannot accommodate the
number of detained persons who are awaiting arraignment,79 the Joint Civil Disturbance Task Force
commander must seek the approval of the SCRAG and Combatant Commander to set up a
temporary detention facility.80
Should the Task Force be required to operate a detention facility, the detention facility standards
and operations should conform, to the maximum extent possible, to current DoD confinement
facility operations and will be under the professional supervision and control of Military Police
personnel.81 The establishment and operation of military detention facilities is a temporary
expedient and is authorized only until such time as the custody of detained persons can be
transferred to civil authorities.82
d. Riot Control Agents
Normally, for CDO the deployment and use of riot control agents is allowed as a matter of U.S.
policy.83 However, initial approval authority for its deployment and use may be retained at a level
higher than the Joint Civil Disturbance Task Force Commander and may require a specific
request.84
76
Id. para. 3-20 to 3-37 requires the application of common sense when evaluating options to search a person of the
opposite gender and recommends that searches of the person be performed by a member of the same sex.
77 U.S. DEP’T OF ARMY, FIELD MANUAL 3-19.1, MILITARY POLICE OPERATIONS, ch. 9 (22 Mar. 2001) [hereinafter FM
3-19.1] and U.S. DEP’T OF ARMY, FIELD MANUAL 3-19.13, LAW ENFORCEMENT INVESTIGATIONS (10 JAN. 2005)
[hereinafter FM 3-19.13] contain extensive information on conducting searches and processing suspects and witnesses.
78 FM 3-19.15, supra note 47, paras. 3-38-3-40; see generally, DODD 3025.12, supra note 7, para. 4.2.7 (“DoD
Components shall not take charge of any function of civil government unless absolutely necessary under conditions of
extreme emergency.”).
79 The Task Force Commander is responsible for verifying the fact that available federal, state, and local confinement
facilities can no longer accommodate the number of persons apprehended. USNORTHCOM CONPLAN 3502, supra
note 62. CONPLAN 3502 (or Commander U.S. PACIFIC COMMAND CONPLAN 7502) specifies that detention
facilities be under the control of U.S. Army MP Corps personnel. Due to base closure and increased joint nature of
operations it is possible that U.S. Navy and U.S. Air Force confinement facilities could be used.
80 USNORTHCOM CONPLAN 3502, supra note 62; JP 3-28, supra note 8; FM 3-19.15, supra note 47.
81 See, e.g., U.S. DEP’T OF ARMY, REG. 190-47, THE ARMY CORRECTIONS SYSTEM (6 June 2006); see also FM 3-19.1,
supra note 77.
82 USNORTHCOM CONPLAN 3502, supra note 62.
83 USNORTHCOM CONPLAN 3502, supra note 62; Exec. Order No. 11,850, 40 C.F.R. 16,187 (Apr. 8, 1975);
CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 3110.07A, NUCLEAR, BIOLOGICAL, CHEMICAL DEFENSE; RIOT CONTROL
AGENTS; AND HERBICIDES (15 Dec. 1998) (classified Secret); FM 3-19.15, supra note 47.
84 See USNORTHCOM CONPLAN 3502, supra note 62, Appendix 4 to Annex E (Legal).
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4. Other Legal Considerations
a. Billeting of Troops
Selection of a location to assemble and billet troops can have significant legal implications. When
possible, assembly and quartering areas should be on military installations or federal property. If
these locations are not practical, state and other local government property should be sought for use.
Locating assembly areas on public property can reduce property damage claims, contract costs, and
adverse perceptions about the military operation.
b. Intelligence
See Chapter 9, Intelligence Law and Policy Considerations During Domestic Support Operations.
c. Claims
Negligent or wrongful acts or omissions of military forces assisting law enforcement during civil
disturbances may be covered under the Federal Tort Claims Act (FTCA).85 In order for claims
under the FTCA to be compensable, damage or injury must be caused by acts or omissions of
employees of the United States. National Guard troops in Title 10 or Title 32 status, as well as
active duty military members, are considered 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.86
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.87 The ACO in whose
geographical area a claims incident occurs is primarily responsible for investigating and processing
the claim.88 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.89
Even though primary claims investigating responsibilities fall to the ACO, judge advocates
deployed as part of a civil disturbance task force can assist in the investigation by insuring that
potential claims are documented and available information concerning the claims collected. Judge
advocates assisting the Joint Task Force can also assist by collecting information concerning the
status of National Guard troops operating within the area.90
85
28 U.S.C. §§ 1346, 2671-2680.
86 USNORTHCOM CONPLAN 3502, supra note 62.
87 U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11k (8 Feb. 2008).
88
Id. para. 2-2.
89
Id. para. 1-17(c).
90 Detailed information on claims arising during disasters can be accessed at http://www.jagcnet.army.mil/Claims, then
click the hyperlink for “Disaster Claims SOP.”
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d. Medical Support
Typically, medical personnel wear the distinctive medical arm brassard when performing medical
duties. The primary mission of medical support personnel deployed with a Joint Civil Disturbance
Task Force is to treat military personnel requiring medical care. Civilian personnel should be seen
by the civilian health care system. Military treatment facilities may be used to treat civilians only in
cases of emergency when undue suffering or the loss of life or limb is a possibility. Civilians
admitted to military treatment facilities should be transferred to a civilian hospital as soon as
medically feasible.
Military personnel should be admitted to civilian hospitals only in an emergency and should be
transferred to a military facility as soon as medically possible. In some locations military and
civilian hospitals have patient sharing agreements which would allow civilians to use the military
facility.
e. Civil Law, Ordinances, Restrictions, and Interference with Federal Forces
Federal law makes it a crime to interfere with law enforcement officers engaged in controlling civil
disorders.91 Included in the definition of “law enforcement officers” are members of the National
Guard, in both state and federal status, and members of the armed forces.92
Close coordination with local governmental authorities can assist the Joint Civil Disturbance Task
Force Commander in accomplishing the mission. Except in the unlikely event of martial law,
federal forces are unable to impose restrictions on the civil population. However, local
governments may be able to implement such restrictions to aid in the control of lawlessness. The
Joint Civil Disturbance Task Force Commander may make recommendations to local governments
concerning the appropriateness of various restrictions and then assist local authorities in carrying
them out.93
f.
Loan and Lease of Military Equipment
Approval authorities for the loan and lease of DoD materiel to federal, state, and local law
enforcement authorities and the National Guard historically has been determined 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
91
18 U.S.C. §§ 231-233.
92
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.
93 FM 3-19.15, supra note 47.
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Secretary of Defense (SECDEF). The loan or lease of fire-fighting resources, protective equipment,
body armor, clothing, searchlights and use of DoD facilities can be approved by garrison,
installation, or task force commanders.94 All loans or leases of U.S. Army materiel will be for a
period of fifteen days with the possibility of an additional fifteen day extension.95 Commanders are
authorized to approve the loan or lease of equipment as required to save human life, prevent human
suffering, or reduce large-scale property damage or destruction.
There is no specific statutory authority to loan or lease equipment for use in civil disturbance
situations. Loans to federal agencies are completed pursuant to the Economy Act and require a loan
agreement but no surety bond.96 Equipment for non-federal law enforcement agencies must be
leased under the leasing statute, which requires both a lease agreement and a surety bond.97 The
leasing statute also includes the requirement for the payment of a lease fee, which may be waived
by the Assistant Secretary of the Army (Installation, Logistics and Environment) (ASA(I, L&E)).
When commanders approve emergency loans or leases, follow-up action will be taken within five
days to formalize the action by completing a loan or lease agreement.98
(See DOPLAW Handbook,
Supp., App. 5-7, Loan, Lease and Donation of Army Material.)
94 U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF ARMY MATERIEL, para. 2-6b (1 Sept. 1996) [hereinafter
AR 700-131]. DoDD 3025.12, supra note 7, identifies MACDIS operations as unprogrammed emergency
requirements. Procedures for financing and reporting costs associated with civil disturbance operations are prescribed
in DoD Instruction 7200.9. See also NGR 500-1, supra note 17, Chap. 3-1, which governs the loan or lease of National
Guard property.
95 AR 700-131, supra note 94, at Table 2-1.
96
31 U.S.C. § 1535.
97
10 U.S.C. § 2667; see also AR 700-131, supra note 94, paras. 2-7, 2-8 (discussing loan/lease agreements and surety
bonds).
98 AR 700-131, supra note 94, para. 2-7a.
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CHAPTER 6
COUNTERDRUG OPERATIONS
KEY REFERENCES:
•
10 U.S.C. § 124 - Detection and Monitoring of Aerial and Maritime Transit of Illegal Drugs.
•
10 U.S.C. § 371-381 - Military Support for Civilian Law Enforcement Agencies.
•
10 U.S.C. § 379 - Coast Guard Law Enforcement Detachments.
•
14 U.S.C. § 89 - Coast Guard Law Enforcement Authority
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
•
32 U.S.C. § 112 - National Guard Funding.
•
National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004 (1991) (as amended).
•
DoD Financial Management Regulation, Vol. 2B, ch. 14, Drug Interdiction and Counter Drug
Activities, June 2004.
•
DepSecDef Memo, Department of Defense Counternarcotics Policy, July 31, 2002.
•
DepSecDef Memo, Department of Defense International Counternarcotics Policy, December 24,
2008.
•
DepSecDef Memo, Department Support to Domestic Law Enforcement Agencies Performing
Counternarcotics Activities, October 2, 2003.
•
DASD/CN Memo, Policy Definition of “Counterdrug Activities”, October 23, 2002.
•
DASD/CN Memo, Policy Definition of “Narcoterrorism”, April 12, 2004.
•
DASD/CN Memo, Counter Drug Support to Counter-Narcoterrorist Activities (Memo to Chief,
NGB) August, 26, 2005.
•
DASD/CN Memo, Procedures for Handling Requests for Counterdrug Narcoterrorist Support,
2006.
•
DoDD 5525.5, DoD Cooperation with Civilian Law Enforcement Officials, January 15, 1986.
•
CNGB Memo, Counter Drug Support to Counter-Narcoterrorist Activities, December 22, 2005.
•
CNGB Memo, Implementation of Procedures for Handling Requests for Counterdrug
Narcoterrorist Support, June 2, 2006.
•
NGR 500-2 - National Guard Counterdrug Support, August 28, 2008.
•
CJCSI 3121.01B - Standing Rules of Engagement/Standing Rules for the Use of Force for U.S.
Forces, June 13, 2005.
•
CJCSI 3710.01B, DoD Counterdrug Support, January 26, 2007.
•
Joint Pub 3-07.4, Joint Counterdrug Operations, June 13, 2007.
•
The President’s National Drug Control Strategy (2010).
A.
Introduction
In the 1980s, Congress determined that DoD should provide increased support to civilian law
enforcement agencies’ (LEA) counterdrug operations. Over the years, Congress increasingly
mandated support by DoD for counterdrug operations. This mandate now includes both active
components and National Guard forces engaged full-time in the mission. DoD counterdrug
operations are coordinated by the Deputy Assistant Secretary of Defense, Counter Narcotics
(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 CD program is
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administered through NGB-CD. 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.1 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.2
In 1989, Congress took additional steps, assigning specific counterdrug missions to DoD. As part
of the National Defense Authorization Act (NDAA) for Fiscal Years (FY) 1990 and 1991,3
Congress designated DoD as the single “lead” agency for the “detection and monitoring” of aerial
and maritime transit of illegal drugs into the United States.4 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.”5
Finally, in FY 1991,Congress provided specific counterdrug authority to DoD by passing Section
1004 of the NDAA.6
In addition to providing statutory authority for counterdrug support, Congress annually appropriates
funds to DoD specifically for these operations.7 The money is disbursed through DASD/CN and it
differs from the funding for most other military support to civilian law enforcement in that
reimbursement is not required.
1. National Defense Authorization Act of 1991
Congress annually gives DoD authority to support federal, state, local, and foreign agencies that
have counterdrug responsibilities. This authority has not been codified, but can be found in Section
1004 of the National Defense Authorization Act for FY 1991.8 Section 1004 is the primary
authority for DoD support to counterdrug operations.
1
10 U.S.C.A. §§ 371-382 (2006). See infra Chapter 2, Military Support to Civilian Law Enforcement.
2 See H.R. Rep. No. 97-71, 1981 U.S.C.C.A.N. 1785. The 1986 amendments to Chapter 18 were contained in the
“Defense Drug Interdiction Assistance Act.” Pub. L. 99-570, § 3051, 100 Stat. 3207-74.
3 National Defense Authorization Act of 1990, Pub. L. No. 101-189, 103 Stat. 1563 [hereinafter FY90 NDAA].
4
10 U.S.C. § 124 (2006).
5 FY90 NDAA, supra note 3, § 1206.
6 National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004, as amended, 104 Stat. 1629 [hereinafter
FY91 NDAA]. See also generally DOPLAW Handbook, Supp., App. 6. Statutes Governing DoD Support to
Counterdrug Operations.
7 The Counternarcotics Program is financed through the Drug Interdiction and Counterdrug Activities, defense
appropriation, which is a central transfer account (CTA). It is a single line that accounts for all associated counter
narcotics (CN) resources with the exception of those resources for the Active components’ military personnel, and
Service OPTEMPO. In 2009, Congress appropriated $1.06 billion for counterdrug operations. National Defense
Appropriations Act, 2009, Pub. L. No. 110-417 (2008).
8
Id. Since 1991, these authorities have been continuously amended. Many of these authorities are also reproduced in
the notes following 10 U.S.C.A. § 374 in the annotated codes.
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Under Section 1004, the Secretary of Defense may provide support for the counterdrug activities of
any federal, state, local or foreign law enforcement agencies if the support is requested by:
• The official with counterdrug responsibilities for the requesting federal department or agency;
• The appropriate state or local official for state or local support; or
• The appropriate official of a federal department or agency with counterdrug responsibilities for
foreign support.9
The following types of support may be provided by the Secretary of Defense under § 1004.
•
The maintenance and repair of equipment made available by DoD for the purpose of:
• preserving the future utility of the equipment for DoD; and
• upgrading such equipment to ensure the compatibility of such equipment with other
equipment used by DoD.
•
The maintenance, repair, or upgrading of equipment, other than equipment referred to in
subsection (a), for the purpose of:
• ensuring that the equipment being maintained or repaired is compatible with equipment used
by DoD; and
• upgrading such equipment to ensure compatibility of that equipment with equipment used
by DoD.
•
The transportation of personnel of the United States and foreign countries (including per diem
costs associated with such transportation), and the transportation of supplies and equipment, for
the purpose of facilitating counterdrug activities within or outside the United States.
•
The establishment and operation of bases of operations and training facilities for the purpose of
facilitating counterdrug activities of DoD or any federal, state, local law enforcement agency
within or outside the United States, or counterdrug activities of a foreign law enforcement
agency outside the United States.10
•
Counterdrug related training of law enforcement personnel of federal, state, or local
governments, or of foreign countries, including associated support expenses for trainees and the
provision of materials necessary to carry out such training.
•
The detection, monitoring, and communication of the movement of:
• air and sea traffic within 25 miles of, and outside the geographic boundaries of the United
States; and
9 FY91 NDAA, supra note 6, § 1004(a).
10 Section 1004(h) requires notification by the Secretary of Defense to the congressional defense committees when
military construction under this subsection is to be carried out. The project may not commence until twenty-one days
after the date written notice was received by Congress. This requirement only applies to construction projects that will
modify or repair DoD facilities for the purpose set forth in this subsection, and whose estimated cost is more than
$500,000. See id. § 1004(h).
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• surface traffic outside the geographic boundary of the United States and within the United
States not to exceed 25 miles of the boundary if the initial detection occurred outside of the
boundary.
• Construction of roads and fences and installation of lighting to block drug smuggling corridors
across international boundaries of the United States.
• Establishment of command, control, communication, and computer networks for improved
integration of law enforcement, active military, and National Guard activities.
• The provision of linguist and intelligence analyst services.
• Aerial and ground reconnaissance.11
The Secretary of Defense may contract for equipment and services to provide the above types of
support if DoD would normally acquire such equipment and services via contract to support similar
DoD activities.12
Section 1004 also provides statutory exceptions to the Posse Comitatus Act. Section 1004
counterdrug support is not subject to the requirements of 10 U.S.C., Chapter 18, with the exception
of 10 U.S.C. §§ 375 and 376.13 Further, the Secretary of Defense may provide support that will
adversely affect military preparedness in the short term in contravention of 10 U.S.C. § 376 if the
Secretary determines that the importance of providing such support outweighs the short-term
adverse impact.14 For example, § 1004(f) allows the Secretary of Defense to plan and execute
otherwise valid military training and operations for the primary purpose of aiding civilian law
enforcement agencies, which contradicts the guidance contained in Enclosure 2 of DoDD 5525.5.
2. Detection and Monitoring
10 U.S.C. § 124 makes DoD the lead federal agency for the detection and monitoring of aerial and
maritime transit of illegal drugs into the United States. This statute does not extend to the detection
and monitoring of land transit. Although detection and monitoring is now a DoD mission per §
124, it must still be carried out in support of federal, state, local, or foreign law enforcement
authorities.15
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
11
Id. § 1004(b). CHAIRMAN JOINT CHIEFS OF STAFF, INSTR. 3710.01B, DOD COUNTERDRUG SUPPORT (26 January
2007) [hereinafter CJCSI 3710.01B], provides a detailed listing and discussion of approval authorities for certain types
of DoD support to counterdrug operations.
12 FY91 NDAA, supra note 6, para. (d).
13
Id. § 1004(g).
14
Id. § 1004(e).
15
10 U.S.C. § 124(a)(2).
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• Directing that vessel or aircraft to go to a location designated by appropriate civilian officials.16
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.17 Notably, the DoD detection and monitoring mission does not authorize DoD personnel to
conduct searches or make seizures or arrests—which are prohibited under 10 U.S.C. § 375.
3. Chairman of the Joint Chiefs of Staff Implementation (CJCSI)
Authority to approve counterdrug operational support to LEAs under the statutes discussed above
has been delegated by the Secretary of Defense (SECDEF), through the Chairman of the Joint
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).18
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,
engineering support, and more. 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, contains significant guidance and
guidelines on permissible counterdrug support to LEAs and should be consulted whenever
reviewing a proposed operation.19
On 31 July 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.
A year later on 2 October 2003, the Deputy Secretary of Defense published the policy on domestic
counternarcotics activities. This policy established a goal of reducing the operational stress on Title
10 forces that conduct domestic counternarcotics activities through utilization of Title 32 National
Guard forces; concentrating DoD’s support on those unique military skills and capabilities that
domestic law enforcement agencies lack, or cannot practically replicate and employ those measures
designed to detect, interdict, disrupt, or curtail any activity that is reasonably related to narcotics
trafficking. This policy directed that 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:
16
Id. § 124(b).
17 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) (2006).
18 CJCSI 3710.01B, 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 his authority to Commander,
Joint Task Force-North (JTF-N).
19 A copy of CJCSI 3710.01B is located at DOPLAW Handbook, Supp., App. 6-6.
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• there must be a valid counterdrug activities nexus;
• there must be a proper request;20
• 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.
For all domestic counternarcotics support, requests are sent to USNORTHCOM. Commander,
USNORTHCOM, will first ensure a National Guard unit cannot provide the support. If not,
USNORTHCOM will 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. 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.
Requests sent directly to DoD will first be referred to the National Guard Bureau. If the NGB
determines that Title 32 National Guard forces cannot provide the support, the request will be
referred through the Joint Staff to Commander, USNORTHCOM, for review. If feasible and
supportable, the Commander, USNORTHCOM, will request Title 10 forces through the Joint Staff
from the appropriate service.
Detailed rules governing the use of force by military forces engaged in counterdrug support
operations within the United States are provided in CJCSI 3121.01B, Standing Rules of
Engagement/Standing Rules for the Use of Force for U.S. Forces, Appendices L and O.
4. Counterdrug Support Task Forces
Counterdrug support operations are planned, coordinated, and controlled primarily via three
headquarters: Joint Interagency Task Force (JIATF) South, located in Key West, Florida, (under
the command and control of Southern Command (USSOUTHCOM)), JIATF West, located in
Hawaii, (under the command and control of Pacific Command (USPACOM)), and Joint Task Force
North (JTF-N), located in El Paso, Texas (under the command and control of USNORTHCOM.)
While the two JIATFs do provide some support to LEAs in their Areas of Responsibility (AORs),21
their primary focus is on operations in the source and transit zones of South and Central America
and in Southeast and Southwest Asia and in international waters and airspace. This focus on
20 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 will assist the requesting agency in accomplishing its counternarcotics activities within the United
States. Third, the support is consistent with DoD’s implementation of the national Drug Control Strategy. Finally, the
support is limited to those activities that are militarily unique and significantly benefit the DoD or essential to national
security goals. Memorandum, Deputy Secretary of Defense, Subject: Department Support to Domestic Law
Enforcement Agencies Performing Counternarcotics Activities (2 Oct 2003).
21 For example, Hawaii falls within PACOM’s AOR, and Puerto Rico and the Virgin Islands fall within
NORTHCOM’s AOR.
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interdiction in the source and transit zones is consistent with priorities outlined in the President’s
National Drug Control Strategy - 2010.22
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.23 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, 1989,24 was designated the lead DoD organization
responsible for planning and coordinating all DoD support to civilian drug law enforcement
agencies in the continental United States (CONUS). Joint Task Force Six’s original AOR,
composed of the four southwest border states of Texas, New Mexico, Arizona, and California, was
expanded in 1995 to cover all of CONUS.25 On 28 September 2004, Joint Task Force Six was
officially renamed Joint Task Force North. JTF-N’s mission includes synchronizing and integrating
DoD operational, technological, training, and intelligence support to domestic law enforcement
agency counterdrug efforts in CONUS to reduce the availability of illegal drugs.
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. The command relies entirely on volunteer units to perform
its operational support missions. 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, 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) in requesting 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 components of DoD, DHS, and DOJ in other senior leadership positions.
JIATF-S conducts detection & monitoring operations in the Caribbean and Eastern Pacific source
and transit zones.26 JIATF-W combats drug-related transnational organized crime to reduce threats
22 The National Drug Control Strategy is available at
23 Memorandum, Assistant Secretary of Defense, Special Operations/Low Intensity Conflict, Subject Joint Interagency
task Force (JIATF) Area Responsibilities (1 Aug 2003).
24 Message, 152330Z Oct 89, Commander in Chief, Forces Command (CINCFOR), subject: Operations Order-
Counternarcotics Operations (15 Oct 1989).
25 Message, 212255Z Aug 95, Commander in Chief, Forces Command (CINCFOR), subject: Commander Joint Task
Force Six Expansion of Area of Responsibility for Counterdrug Support for Domestic Drug Law Enforcement Agencies
(21 Aug 1995). The AOR was expanded to include CONUS, Puerto Rico, and the Virgin Islands.
26 When JIATF-S locates suspect vessels it transfers TACON of surface assets to the U.S. Coast Guard Seventh District
(Caribbean operations) or Eleventh District (Eastern Pacific operations), at which point the U.S. Coast Guard conducts
interdiction operations. In cases in which evidence of maritime drug trafficking or other illegal activity is discovered,
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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 the war
on drugs. 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. The Coast Guard conducts
extensive maritime counterdrug operations. These operations range from enforcing drug possession
and use laws during routine recreational and other vessel boardings in all areas in which the Coast
Guard operates, to conducting sustained multi-unit operations targeting major drug traffickers far
from U.S. shores. Since the PCA does not apply to the Coast Guard,27 the PCA restrictions on
arrest, search, seizure, and the interdiction of vessels and aircraft, are inapplicable to Coast Guard
operations and personnel. Moreover, the Coast Guard has broad organic law enforcement authority
under 14 U.S.C. § 89 to enforce U.S. laws in waters subject to U.S. jurisdiction and over vessels
subject to U.S. jurisdiction wherever they may be located.28
To capitalize on the Coast Guard’s expertise and uniquely broad maritime law enforcement
authority, 10 U.S.C. § 379 requires the Secretary of Defense and the Secretary of Homeland
Security to assign Coast Guard law enforcement detachments (LEDETs) to every appropriate naval
surface vessel operating at sea in a drug interdiction area.29 See DOPLAW Handbook, Supp., App.
6-12, JP 3-07.4, Appendix E, LEDETS.
Coast Guard personnel assigned to LEDETs are trained in law enforcement and have the powers of
arrest, search, and seizure in accordance with 14 U.S.C. § 89. Coast Guard personnel assigned to
U.S. Navy vessels under § 379 will perform functions which are agreed to by the Secretary of
JIATF-S and the Coast Guard coordinate case disposition with DOJ and with foreign partners as appropriate. JIATF-S
works closely with ongoing DOJ Organized Crime Drug Enforcement Task Force investigations such as Operation
Panama Express to synthesize and evaluate available information about suspected maritime and aerial drug movement
to detect, monitor and facilitate the interdiction of suspect vessels and aircraft.
27 United States v. Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982), cert. denied, 459 U.S. 1156 (1982).
28
14 U.S.C. § 89(a) states:
The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon
the high seas and waters over which the United States has jurisdiction, for the prevention, detection,
and suppression of violations of laws of the United States. For such purposes, commissioned,
warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to
the operation of any law, of the United States, address inquiries to those on board, examine the ship’s
documents and papers, and examine, inspect, and search the vessel and use all necessary force to
compel compliance. When from such inquiries, examination, inspection, or search it appears that a
breach of the laws of the United States rendering a person liable to arrest is being, or has been
committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately
pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall
appear that a breach of the laws of the United States has been committed so as to render such vessel,
or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel,
liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure
such fine or penalty, such vessel or such merchandise, or both, shall be seized.
29
10 U.S.C. § 379(a). 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.
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Defense and Secretary of Homeland Security and which are otherwise within the Coast Guard’s
jurisdiction.30 No fewer than 500 active duty Coast Guard personnel will be assigned duties
under10 U.S.C. § 379, unless the Secretary of Homeland Security, after consulting with the
Secretary of Defense, determines that there are not enough naval surface vessels to support this
number of personnel. If this is the case, these Coast Guard personnel may be assigned duties to
enforce the laws listed under 10 U.S.C. § 374(b)(4)(A).31
Specific rules governing the use of Coast Guard LEDETs are provided in Commandant, United
States Coast Guard Instruction (COMDTINST) M16247.1D, Maritime Law Enforcement Manual.32
Chapter Five of the Maritime Law Enforcement Manual addresses the roles and responsibilities of
the Coast Guard in counterdrug operations. The primary federal statute that the Coast Guard
enforces in counterdrug operations is the Maritime Drug Law Enforcement Act (MDLEA).33 The
MDLEA prohibits any person on board an U.S. vessel, or a vessel subject to the jurisdiction of the
U.S., to knowingly or intentionally manufacture or distribute, or to possess with the intent to
manufacture or distribute, a controlled substance.34 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.35
“Vessel subject to U.S. jurisdiction” includes a foreign vessel if located:
• In U.S. customs waters;
30
10 U.S.C. § 379(b).
31
Id. § 379(c).
32 U.S. COAST GUARD MARITIME LAW ENFORCEMENT MANUAL, COMDTINST M16247, series (2010) (For Official
Use Only manual) (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 from
Commander, Atlantic Area, U.S. Coast Guard, to Commanding Officers, Regional TACLETs North, South, and Gulf,
subject: Memorandum of Agreement Concerning Deployment of Law Enforcement Detachment (5 Aug. 1993) (on file
with CLAMO).
33
46 U.S.C. §§ 70501-70507 (2006). 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 a drug-
trafficking statute, per se, the Coast Guard enforces this new law to combat the threat posed by maritime drug
traffickers who have been increasingly resorting to the use of semi-submersible vessels to transport multi-ton loads of
cocaine to avoid detection. Many of the jurisdictional provisions and definitions in the MDLEA are included in the
DTVIA as well.
34
Id. § 1903.
35
Id. § 1903(b).
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• 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.36
U.S. Navy ships with Coast Guard LEDETs aboard remain under the operational control (OPCON)
of the Unified Commander in whose area of responsibility the DoD asset is operating. OPCON is
defined as “the authority to direct the activities of a unit in the performance of its operational
mission and such additional tasks as may be assigned by competent authority; the organizational
element with OPCON of a unit is the operational commander of that unit.”37
When an U.S. Navy ship enters the boarding phase of a law enforcement operation, the U.S. Navy
ship shifts tactical control (TACON) to the Coast Guard until the boarding phase is complete.
TACON is defined as “the temporary authority to direct activities of a specific unit on a specific
mission for a specific period of time; this authority is assigned by the operational commander and
an organizational element with TACON of a unit is the tactical commander of that unit.”38 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.39
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.40
The United States and most countries in South America, Central America and the Caribbean are
parties to the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances. Article 17 of that Convention requires parties to cooperate with each other to suppress
illicit trafficking by sea. Pursuant to this mandate, the United States has entered into dozens of
bilateral agreements or understandings with partner states in the region. These standing bilateral
maritime counterdrug agreements typically address various aspects of enforcement including:
deployment of shipriders from foreign navies and coast guards on U.S. surface assets, over flight by
U.S. air assets within the territory or territorial seas of foreign partners, patrols and pursuit of
suspect vessels in the territorial seas of foreign partners, combined operations, and flag State
authorization to board, search, seize, 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
36
Id. § 1903(c).
37 See MLEM, supra note 32, para. 2.E.1.e.
38
Id.
39 CHAIRMAN JOINT CHIEFS OF STAFF, INSTR. 3121.01B, STANDING RULES OF ENGAGEMENT, Encl. H, Counterdrug
Support Operations Outside the U.S. Territory, para. 1(b) (13 June 2005). CJCSI 3121.01B is classified in part.
Enclosure H is confidential in part. The provision cited is unclassified. See also 10 U.S.C. § 637 (2006), Stopping
vessels; immunity from firing at or into vessels.
40 For a list of current counterdrug bilateral agreements, see USCG OPLAW FAST ACTION REFERENCE MATERIALS,
series (2009) (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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only be negotiated with authorization from the U.S. Department of State.41
(See DOPLAW
Handbook, Supp., App. 6-13, Sample LEDET MOA, for a sample bilateral agreement.)
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.42
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 ADA violation was based on the fact that the operation’s
primary purpose was to investigate potential federal firearms violations—not narcotics violations.43
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.44
In order to qualify for federal funding under 32 U.S.C. § 112(a), the Governor of the state
requesting such funding must submit a state drug interdiction and counterdrug activities plan to the
Secretary of Defense.45 A state drug interdiction and counterdrug activities plan shall:
41 See MLEM, supra note 32, para. 5.B. & Encl. 4.
42 Procurement of equipment cannot exceed $5,000 per purchase order unless approval is granted by the Secretary of
Defense. 32 U.S.C.A. § 112(a)(3) (2006). Further, equipment purchased, loaned, leased, or otherwise obtained using
32 U.S.C. § 112 funds will only be used for the Counterdrug Support Program except in very limited circumstances.
U.S. DEP’T OF ARMY, NAT’L GUARD BUREAU REG. 500-2, NATIONAL GUARD COUNTERDRUG SUPPORT, paras. 7-10, 7
11 (28 August 2008) [hereinafter NGR 500-2].
43 DA (FM&C) Report of Antideficiency Act Violation Case #95-09, 11 March 1997.
44 Joint Pub 3-07.4, Joint Counterdrug Operations (13 June 2007) (defining narcoterrorism); NGR 500-2, supra note
42, glossary (defining counternarcoterrorism); CNGB Memo, Implementation of Procedures for Handling Requests for
Counterdrug Narcoterrorist Support, 2 June 2006.
45 State drug interdiction and counterdrug support plans must be submitted through the Counterdrug Office of the
National Guard Bureau. NGR 500-2, supra note 42, para. 2-5.
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• 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;46
• 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 that 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.47
The National Guard Counterdrug Coordinators for each state or territory must submit their State
Plan to the National Guard Bureau for review. The National Guard Bureau submits the State Plan,
complete with original certifying signature from the respective Adjutant General, Attorney General,
and Governor, to DASD/CN. DASD/CN reviews the State Plan and, in coordination with the
Comptroller, ASD (HD & ASA), the Joint Staff, the Commander, NORTHCOM, and other
appropriate offices within the department, recommends approval or rejection to the Secretary of
Defense.48
To ensure that the use of National Guard units and personnel participating in counterdrug operations
does not degrade training and readiness, the following requirements apply in determining what
activities National Guard personnel may perform:
• The performance of the activities may not adversely affect the quality of that training or
otherwise interfere with the ability of a member or unit of the National Guard to perform the
military functions of the member or unit;
• National Guard personnel will not degrade their military skills as a result of performing the
activities;
• The performance of the activities will not result in a significant increase in the cost of training;
and,
• 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.49
The Secretary of Defense will examine the state drug interdiction and counterdrug activities plan in
consultation with the Director of National Drug Control Policy. However, if the Governor of a state
submits a plan substantially similar to the one submitted the prior fiscal year, and funds were
provided to the state under the prior plan, consultation by the Secretary of Defense with the Director
of National Drug Control Policy is not required. National Guard units can execute only those
46 See 32 U.S.C. § 502 (2006) (addressing annual drill and field exercise requirements of National Guard personnel).
47
Id. § 112(c).
48 Memorandum, Deputy Secretary of Defense, Subject: Department Support to Domestic Law Enforcement Agencies
Performing Counternarcotics Activities (2 Oct 2003).
49
32 U.S.C. § 112(b)(2)(C).
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missions approved by the Secretary of Defense in the state drug interdiction and counterdrug
activities plan.
Although federally funded, National Guard members performing counterdrug missions under 32
U.S.C. § 112 are under State command and control. In fact, 32 U.S.C. § 112(c)(2) specifically
requires the state drug interdiction and counterdrug activities plan to certify that “operations are to
be conducted at a time when the personnel involved are not in federal service.” However, 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 Act50 coverage.51 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.52 Conversely, for actions not cognizable
under the FTCA, such as a constitutional or Bivens53 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. § 50.15 and AR 27-40, chapter 4 or AFI 51-301, chapter 1. The
process of determining representation is separate and distinct from the determination of FTCA
coverage. If representation is granted, National Guard personnel remain individually-named
defendants in the action and are responsible for any criminal convictions, fines or civil judgments.
The Department of Justice is not obligated to indemnify National Guard personnel for any adverse
monetary judgments or sanctions in these cases, but may, in its sole discretion, do so upon
request.54
The Posse Comitatus Act does not apply to National Guard counterdrug missions performed under
32 U.S.C. § 112, even though these units are performing missions using federal funds and operating
under federal fiscal oversight.55 This allows Title 32 National Guard personnel more flexibility
than Title 10 forces in conducting counterdrug missions. However, the National Guard Bureau has
imposed several policy restrictions on National Guard counterdrug operations in NGR 500-2.56 As
50
28 U.S.C. §§ 2671-2680.
51 See id. § 2671 (defining “employee of the government”).
52 See id. § 2679(b). See also NGR 500-2, supra note 42, 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.”).
53 Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
54 See 32 C.F.R. § 50.15(a)(8).
55 Gilbert v. United States, 165 F.3d 470, 473-474 (6th Cir. 1999) (Where a state used National Guardsmen for purpose
of carrying out drug interdiction and counterdrug activities, in accordance with federal statute, the Guardsmen were
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 held not in 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).
56 This regulation does not address National Guard counterdrug activities performed under the authority of Title 10,
United States Code.
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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 of any evidence, except in exigent
circumstances, or when otherwise authorized.57 Exigent circumstances are defined as situations
where immediate action is necessary to protect police officers, National Guard personnel, or other
persons from death or serious injury; to prevent the loss or destruction of evidence; or to prevent the
escape of a suspect already in custody.58
The following missions have been approved for federal funding by the Secretary of Defense under
32 U.S.C. § 112:
•
Counterdrug Coordination, Liaison, and Management - Planning and coordinating state
counterdrug supply and demand reduction support;
•
Linguist Support - Providing transcription/translation of audio/video tapes, seized documents
and other information media (active/real-time conversation monitoring or direct participation in
interrogations is not allowed);
•
Investigative Case and Analyst Support - Assisting law enforcement agencies (LEAs) in the
establishment of counterdrug intelligence systems/databases and providing intelligence analysis
support;
•
Communications Support - Providing personnel to establish, operate and maintain
communications stations, bases, and equipment in support of LEA counterdrug operations;
•
Operational/Investigative Case Support - Providing assistance to LEAs in developing
investigations and cases for prosecution;
•
Engineer Support - Providing engineer support to LEAs and community organizations where
the project has a counterdrug nexus;
•
Subsurface/Diver Support - Conducting subsurface inspections of commercial vessel hulls
within U.S. territorial waters or maritime ports of entry through the use of sidescan sonobuoys
or divers to detect alien devices or containers attached to vessel hulls, or other underwater
activities;
•
Domestic Cannabis Suppression/Eradication Operations Support - Supporting LEA domestic
cannabis suppression and eradication operations;
•
Transportation Support - Providing transportation (aerial, ground, or maritime) of LEA
personnel/equipment, persons in LEA custody, seized property or contraband as part of on
going time-sensitive counterdrug operations, when security or other special circumstances
reasonably necessitate National Guard support and there is a counterdrug nexus;
•
Maintenance/Logistical Support - Providing maintenance/logistical support of LEA vehicles
and equipment to enhance the counterdrug effectiveness of the supported agency;
•
Cargo/Mail Inspection - Assisting LEAs by inspecting cargo and mail;
•
Training LEA/Military Personnel - Training LEA/military personnel in military subjects and
skills useful in the conduct of counterdrug operations or in the operation of equipment used in
counterdrug operations;
•
Surface Reconnaissance - Reconnoitering or performing area observation by land or water to
detect and report illegal drug activities that include, but are not limited to, cultivated marijuana,
57 NGR 500-2, supra note 42, para. 2-1e.
58
Id.
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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;59
• 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.60
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.61
Since National Guard personnel providing counterdrug support under 32 U.S.C. § 112 are acting
under State command and control, each State National Guard promulgates its own Rules for the Use
of Force (RUF), as they are now generally called in domestic operations. CJCSI 3121.01B, Encl.
O, Counterdrug Support Operations Within U.S. Territory, is not applicable to the National Guard
unless they are in federal service (Title 10 status). A sample National Guard RUF card is located in
the DOPLAW Handbook, Supp., App. 6-11, California National Guard Counterdrug Task Force
Standing Rules of Engagement. Consequently, judge advocates must be aware of the application of
the law of the state in which operations are being conducted.62
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
59 An additional requirement for aerial reconnaissance (otherwise known as “Mission 5a”) is that at least one person
involved in either the operation or training of the mission must attend the National Counterdrug Civil-Military Institute
(NICI) Mission 5a course. Id. para. 5-17.
60 See NGR 500-2, para. 2-7 for a detailed description of what each mission entails.
61
Id. para. 3-6. This authority may be delegated in accordance with para. 3-6(b).
62 Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the Right
Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1.
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