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involvement to full Army participation, and are characterized by detailed coordination between the
military command and community authorities.
1. National Guard Assistance for Certain Youth and Charitable Organizations
National Guard (NG) members and units, in conjunction with required military training,104 may
provide services to certain eligible youth and charitable organizations.105 The eligible organizations
are:
• Boy and Girl Scouts of America;
• Boys and Girls Clubs of America;
• Young Men’s and Young Women’s Christian Associations (YMCA/YWCA);
• Civil Air Patrol;
• U.S. Olympic Committee;
• Special Olympics;
• Campfire Boys and Girls;
•
4-H Clubs; and
•
Police Athletic Leagues.106
The Secretary of Defense is authorized to designate other youth or charitable organizations for
support. Authorized services include ground transportation, administrative support, technical
training, emergency medical assistance, and communications services. The Special Olympics are
specifically authorized air transportation.107
In providing authorized services, NG facilities and equipment including vehicles leased to the NG
and the DoD may be used.108 As with other types of domestic support operations, the provision of
services must not adversely affect the quality of NG training or otherwise interfere with the member
or unit’s ability to perform military functions. Further, training costs should not significantly
increase, and NG personnel should enhance their military skills as a result of their participation.
Lastly, the requested services must not be commercially available. If available commercially, the
commercial entity affected can waive this requirement in writing.109
2. Support and Services for Eligible Organizations and Activities Outside DoD
The military departments are also authorized to provide services and support to certain non-DoD
eligible organizations.110 See Chapter 7, Military Support to Special Events for a discussion of the
relevant authorities.
104
32 U.S.C. § 502.
105 Id. § 508.
106
Id. § 508(d).
107
Id. § 508(b).
108
Id. § 508(c).
109
Id. § 508(a).
110
10 U.S.C. § 2012(a).
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3. National Guard Civilian Youth Opportunities Program
The SECDEF, acting through the Chief, National Guard Bureau, conducts a National Guard civilian
youth opportunities program, known as the “National Guard Challenge Program.”111 Intended to
improve the life skills and employment potential of civilian youth, the Challenge Program is a youth
program directed at helping children attain a high school diploma, providing job training and
placement, improving personal and social skills, and providing health and hygiene education and
physical training.112 Soldiers work with civilian leaders to provide a comprehensive support
package ranging from choosing appropriate clothing to attending residential training facilities.
The Challenge Program uses National Guard personnel to provide military-based training, including
supervised work experience in community service and conservation projects, to civilian youth who
have not graduated from a secondary school.113 To carry out the Program, the SECDEF enters into
an agreement with a state governor or, in the case of the District of Columbia, with the commanding
general of the District of Columbia National Guard.114 Usually, the governor will delegate the
establishment, organization and administration of the Program to the state Adjutant General (TAG).
The Challenge Program is not cost-free.115 Beginning in 2001, a state must now provide at least 40
percent of the annual Challenge Program operating costs. National Guard equipment and facilities,
including U.S. military property issued to the Guard, may be used in carrying out the Challenge
Program.116 A state may supplement its cost-share out of other resources, including gifts. It is also
permissible for the Program to accept, use, and dispose of gifts or donations of money, other
property, or services.117
Individuals selected for training in the NG Challenge Program may receive the following benefits:
allowances for travel, personal and other expenses; quarters; subsistence; transportation; equipment;
clothing; recreational services and supplies; and, a temporary stipend upon the successful
completion of the training (GS-2 minimum rate of pay under 5 U.S.C. § 5332).118 A person
receiving training under the Challenge Program is considered a U.S. employee for the purposes of
Title 5 (relating to compensation of Federal employees for work injuries) and Title 28, and any
other provision of law, relating to federal liability for tortious conduct of employees.119
4. Additional Assistance Programs
Field Manual 100-19 authorizes Army involvement in a wide variety of national assistance
programs focusing on economic and social issues,120 For example, Army involvement can be found
111
32 U.S.C. § 509.
112
Id. § 509(a).
113
Id. § 509(g).
114
Id. § 509(c).
115
Id. § 509(d).
116
Id. § 509(h).
117
Id. § 509(j).
118
Id. § 509(g).
119
Id. § 509(h).
120 See FM 3-07, supra note 1, ch. 8.
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in the Civilian Community Corps, the Drug Demand Reduction Program, the Science and
Technology Academies Reinforcing Basic Aviation and Space Exploration (STARBASE) program,
the Youth Physical Fitness Clinic Program, and the Medical Readiness Program.121
F. Pandemic Influenza
In response to growing concerns about the potential for an H5N1 pandemic, the Homeland Security
Council issued the National Strategy for Pandemic Influenza during November 2005.122 Although
H5N1 has not emerged as a pandemic, the World Health Organization declared on 11 June 2009
that the H1N1 influenza had become a pandemic.123 This was followed by statements by the
Secretaries of HLS and HHS indicating that the United States had already activated their pandemic
response plans in anticipation of such a declaration.124 Although easily transmissible, the H1N1
influenza has not shown a high mortality rate. Nonetheless, leaders and planners are concerned that
a more virulent and deadly strain could present itself in the future. Accordingly, judge advocates
advising commanders need to be prepared to confront the myriad of legal challenges that a
pandemic could bring. This section provides an overview of the support DoD anticipates providing
in the event of a severe pandemic.
The DoD issued the Department of Defense Implementation Plan for Pandemic Influenza during
August 2006.125 This “Implementation Plan” includes several planning assumptions that trigger
scenarios of interest to the domestic operational lawyer. These assumptions include:
• There will be interagency requests for assistance with mortuary affairs (MA);
• The spread of H1N1 will start from multiple points of entry in the United States and spread
rapidly throughout the Nation;
• State, tribal, and local governments will not be able to ensure the provision of essential
commodities and services;
• Interstate transportation will be restricted to contain the spread of the virus;
• The security of critical infrastructure will require “Federal augmentation;”
• Both military and civilian MTFs will be overwhelmed;
• Under existing agreements, DoD will provide support to local communities medical efforts to
include the provisioning of personnel, supplies, and materiel;
• DoD will support civil authorities consistent with applicable authorities;
• DoD will support and perhaps staff key aspects of the National Critical Infrastructure; and,
• U.S. Army Reserve forces will be mobilized.126
121
Id.
122 Homeland Security Council, National Strategy for Pandemic Influenza (November 2005).
123 The end of this 2009 Pandemic was declared by the World Health Organization (WHO) International Health
Regulations Emergency Committee on 10 August 2010. See http://www.cdc.gov/h1n1flu/, last visited 12 June 2011.
124 CTRS. FOR DISEASE CONTROL AND PREVENTION, Statements by HHS Secretary Kathleen Sebelius and DHS
Secretary Janet Napolitano on WHO Decision to Declare H1N1 Virus Outbreak a Pandemic,
http://www.cdc.gov/h1n1flu/statement061109.htm (last visited Jul. 5, 2011).
125 ASD, HD, MEMORANDUM FOR SECRETARIES OF MILITARY DEPARTMENTS, Subject: Department of Defense
Implementation Plan for Pandemic Influenza (12 September 2006) [hereinafter “Implementation Plan”].
126
Id. at 8-9.
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Based upon these and other assumptions, the Implementation Plan outlines nineteen planning
categories informed by the Homeland Security Council’s (HSC) five planning priorities and thirteen
priority areas. DoD support in the following fifteen categories will require legal analysis prior to
execution:
• Category 1: Intelligence;
• Category 2: Force Protection;
• Category 4: Interagency Planning Support;
• Category 5: Surge Medical Capability to Assist Civil Authorities;
• Category 7: Patient Transport and Strategic Airlift;
• Category 8: Installation Support to Civilian Agencies;
• Category 10: Security in Support of Pharmaceutical/Vaccine Production (Critical Infrastructure
Protection (CIP));
• Category 11: Security in Support of Pharmaceutical/Vaccine Distribution;
• Category 12: Communications support to Civil Authorities;
• Category 13: Quarantine Assistance to U.S. Authorities;
• Category 14: Military Assistance for Civil Disturbances;
• Category 15: Military Assurance: Defense Industrial Base;
• Category 16: Mortuary Affairs;
• Category 17: Continuity of Operations & Continuity of Government; and,
• Category 19: Public Affairs support to Civil Authorities.127
This Handbook provides an overview of many of the authorities necessary to support the above-
referenced categories. However, if a H1N1 pandemic evolves into one characterized by both high
mortality and strike rates, the magnitude of the support requested from DoD may challenge existing
authorities and resources.
The Congressional Research Service has also developed a CRS Report for Congress that outlines
key legal issues raised by Pandemic Influenza outbreak.128 The authors note that the federal
authorities authorizing federal support for a pandemic influenza contingency include the Public
Health Service Act and the Stafford Act. These authorities involve the establishment of quarantines
and isolation facilities at borders or of an interstate nature.129 As discussed above, DoD planning
guidance directs consideration be given to the potential for DoD to provide quarantine support to
U.S. authorities.130 This would be in support of HHS’s authority “to prevent the introduction,
transmission, or spread of communicable diseases from foreign countries into the States or
possessions, or from one State or possession into any other State or possession.”131 These foreign
and interstate quarantine authorities are administered by the Director of the CDC and executed as
necessary by the Division of Global Migration and Quarantine.132 Further, DHS provides support
127
Id. at 10-11.
128 KATHLEEN S. SWENDIMAN & NANCY LEE JONES, The 2009 Influenza A (H1N1) Outbreak: Selected Legal Issues,
CRS REP’T TO CONG. (May 4, 2009) [hereinafter “CRS REP’T”].
129
Id. summary.
130 See Implementation Plan, supra note 125, at 11, Category 13.
131
42 U.S.C. 264(a).
132
See CRS REP’T, supra note 128 at 6-7.
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to the CDC through three of its agencies: U.S. Customs & Border Protection; U.S. Immigration and
Customs Enforcement; and, the United States Coast Guard.133
This authority provided to DoD will be secondary to the States which have primary quarantine and
isolation authorities under state law.134 However, upon request, or upon the determination that local
efforts are inadequate, the federal government may assume primary responsibility for such
activity.135 To the extent that state and local efforts prove ineffective, the likelihood of federal
intervention and a corresponding request for support to the DoD increases. Request for support
could be necessary in some cases because of outdated state laws136 that do not reflect a modern
understanding of disease and could hamper stated efforts to contain outbreaks.137 Such requested
support may prove unpopular. Further, the situation in affected areas may trigger broad requests or
directions of DoD support to other federal or non-federal entities.138 Such support could also
involve the detailing of military law enforcement personnel to augment civilian federal law
enforcement pursuant to the Emergency Federal Law Enforcement Assistance Act (EFLEAA).139
Such detailing is viewed by DOJ as removing the military law enforcement personnel from the
control of the armed forces and therefore outside of the restrictions found in the PCA.140
Although the WHO declared an H1N1 Pandemic in 2009, this did not translate in and of itself into
support from DoD. DoD has established a Pandemic Influenza Watchboard that tracks the DoD
Phases from 0 to 5. These phases are part of the DoD Global CONPLAN to synchronize DoD’s
response to a pandemic influenza.141 The Secretary of Defense considers several factors in
decisions to change the DoD Pandemic Phase. These are: operational; efficiency of virus
transmission; and, geographic distribution. This multifaceted approach differs from the
methodology used by the WHO which focuses primarily upon the efficiency of transmission. For
example, on 1 October 2009 the WHO Phase was level 6 while the DoD Phase was 0.142 Consistent
with the operational focus of the DoD phasing, a DoD Phase 4 Pandemic occurs when there is
“receipt of information that a highly lethal pandemic influenza virus is spreading globally from
human to human, signaling a breach in containment and failing interdiction efforts.”143 In contrast,
the WHO Pandemic Phase 6 does not focus upon lethality and related impacts, but the efficiency of
the influenza’s transmission among humans.
133
Id. at 7.
134
Id.
135 See id. at 8, n.41; see also 42 U.S.C. § 264(c); 42 C.F.R. 70.2.
136 For a survey of state quarantine and isolation authorities, see NAT’L CONFERENCE OF STATE LEGISLATURES, State
Quarantine and Isolation Studies, http://www.ncsl.org/?TabId=17104 (last visited Jul. 5, 2011).
137 KATHLEEN S. SWENDIMAN & JENNIFER K. ELSEA, Federal and State Quarantine and Isolation Authority, CRS
REP’T TO CONG. at CRS-9 (August 16, 2006) [hereinafter “CRS QUARANTINE REP’T”].
138 See Implementation Plan, supra note 125 at 10-11, Categories 1, 2, 4-5, 7-8, 10-17 & 19.
139
42 U.S.C. § 10501 et seq.
140 OAG Memorandum for the President, Summary of Legal Authorities for use in Response to an Outbreak of
Pandemic Influenza (April 25, 2009), at Attachment Page 4.
141 See DEP’T OF DEF., Pandemic Influenza Watchboard, http://fhp.osd.mil/aiWatchboard/pandemicflu.jsp (last visited
Jul. 5, 2011).
142
Id.
143
Id.
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CHAPTER 9
INTELLIGENCE OVERSIGHT AND INFORMATION HANDLING
DURING DOMESTIC AND DOMESTIC SUPPORT OPERATIONS
KEY REFERENCES:
•
National Security Act of 1947 (as amended), 50 U.S.C. § 401 et seq.
•
Foreign Intelligence Surveillance Act (as amended), 50 U.S.C. § 1801 et seq.
•
Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 [S. 2845],
December 17, 2004.
•
The Immigration and Nationality Act (as amended), 8 U.S.C. §§ 1101 et seq.
•
EO 12333 - U.S. Intelligence Activities, as amended, December 4, 1981.
•
EO 13526, Classified National Security Information, December 23, 2009.
•
DoDI 5210.52 - Security Classification of Airborne Sensor Imagery and Imaging Systems, May
18, 1989.
•
DoDD 5143.01, Undersecretary of Defense for Intelligence (USD(I)), November 23, 2005.
•
DoDD 5240.1 - DoD Intelligence Activities, August 27, 2007.
•
DoD 5240.1-R - Procedures Governing the Activities of DoD Intelligence Components That
Affect U.S. Persons, December, 1982.
•
Defense Intelligence Agency Regulation (DIAR) 50-30 - Security Classification of Airborne
Sensor Imagery, June 25, 1997.
•
Agreement Governing the Conduct of Defense Department Counterintelligence Activities in
Conjunction with the Federal Bureau of Investigation, (FOUO) April 5, 1979.
•
Supplement to 1979 FBI/DoD Memorandum of Understanding: Coordination of
Counterintelligence Matters Between the FBI and DoD, (S) June 20, 1996.
•
Joint Publications Intelligence series 2-0
•
AFPD 14-1 - ISR Planning, Resources, and Operations, April 2, 2004.
•
AFI 14-104 - Oversight of Intelligence Activities, April 14, 2005.
•
AFI 14 series on Intelligence.
•
AR 381-10 - Army Intelligence Activities, May 3, 2007.
•
AR 381-20 - The Army Counterintelligence Program, November 15, 1993.
•
AR 381-xx series on Intelligence.
•
SECNAVINST 3820.3E - Oversight of Intelligence Activities Within the Dep’t of the Navy,
September 21, 2005.
•
SECNAVINST 3850.2C - Dep’t of the Navy Counterintelligence, July 21, 2005.
•
Marine Corps Warfighting Pub 2-1 - Intelligence Operations, September 10, 2003.
•
Marine Corps Warfighting Pub 2-14 - Counterintelligence, July 13, 2004.
•
Marine Corps Warfighting Pub 2-x series on Intelligence.
•
National Guard Joint Force Headquarters State J2 Incident Awareness and Assessment
Handbook, February 27, 2009.
KEY REFERENCES FOR INFORMATION HANDLING:
•
5 U.S.C. § 552a - The Privacy Act (as amended)
•
DoDD 5400.11-R - DoD Privacy Program, May 17, 2007.
•
DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not
Affiliated with the Department of Defense, January 7, 1980.
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A. Introduction
With the ever-increasing number of domestic military missions conducted in the homeland, there
has been a concurrent search for appropriate assets and capabilities to best perform those missions.
Domestic missions are no different than overseas missions in that a key requirement for mission
success is situational awareness—the commander must be aware of the situation on the ground and
have a complete picture of the “battle space” within which the unit is operating. Overseas,
intelligence assets normally provide such a picture. How, then, can these same assets be used in the
homeland to support DoD missions while at the same time complying with applicable U.S. laws and
policies? The judge advocate’s role is especially important during domestic operations utilizing
intelligence assets and components. Judge advocates must recognize that collecting domestic
intelligence by necessity entails collecting information on U.S. persons. Therefore, the rules
regarding intelligence collection in the United States must comply with constitutional protections
against unlawful search and seizure. As a result, policies and procedures for collection of
intelligence in the United States require careful application to ensure protection of the rights of U.S.
persons.
As noted above, military commanders’ need for information and intelligence within the homeland is
on the rise—they expect force protection information and intelligence to be integrated into domestic
operations due to a heightened awareness of potential terrorist threats. These needs and
expectations pose unique issues in the information and intelligence-gathering arena. This chapter
provides a broad overview of collecting information on U.S. persons. If you are addressing an issue
of collecting information in the homeland, you should seek out expertise to assist you in this
complicated area.
Before discussing the details of collecting information or intelligence on U.S. persons, it is
important to understand first that there are two distinct groups of people that collect information in
the homeland.
• The first group is DoD intelligence components, as defined in EO 12333. In simple terms these
are the Title 10 intelligence specialists—J2s, G2s, A2s, etc. This group of people—and the
assets they use—are subject to one set of rules referred to as intelligence oversight.1
(Title 32
National Guard intelligence specialists—though not technically members of the intelligence
community—follow National Guard policies concerning intelligence oversight.)
• The second group of people is everyone else in DoD, including various security and police
forces. This group is subject to a different set of rules governed by DoDD 5200.27.
Therefore, the commander must direct his need for information or intelligence to the right
component—the component with the capability and authority to achieve the commander’s intent.
Intelligence is the domain of the DoD intelligence component; information comes from non-
intelligence DoD components. Figuring out the nature of the data and the right unit to gather it are
areas that often require judge advocate input. Therefore you must ensure that the very first question
you ask when discussing collection in the homeland is “who is doing the collecting? Intelligence
1 See U.S. DEP’T OF ARMY, REG. 381-10 ARMY INTELLIGENCE ACTIVITIES (3 May 2007) [hereinafter AR 381-10].
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assets or non-intelligence assets?” Once you answer this question, you will know what rules to
apply.
Section B of the chapter examines the proper use of DoD intelligence components during domestic
support operations. Section C examines collection of information on U.S. persons by DoD non-
intelligence components. Section D briefly addresses the policies and restrictions applicable to the
National Guard when collecting information on U.S. persons during domestic operations.
B. The Role of DoD Intelligence Components in Domestic Support Operations
DoD intelligence components2 are governed by four primary references. The National Security Act
of 1947 establishes a comprehensive program for national security and defines the roles and
missions of the intelligence community and accountability for intelligence activities. Executive
Order (EO) 12333, United States Intelligence Activities, lays out the goals and direction of the
national intelligence effort, and describes the roles and responsibilities of the different elements of
the U.S. intelligence community.3 Presently, DoD Directive (DoDD) 5240.1, DoD Intelligence
Activities4 and DoD Regulation 5240.1-R5 implement the guidance contained in EO 12333—as it
pertains to DoD. Finally, each Service has its own regulation and policy guidance.
2 DoD intelligence components are defined in DoD 5240.1 as are all DoD Components conducting intelligence
activities (defined as foreign intelligence or counterintelligence), including the following:
a. The National Security Agency/Central Security Service (NSA/CSS).
b. The Defense Intelligence Agency (DIA).
c. The offices within the Department of Defense for the collection of specialized national foreign
intelligence through reconnaissance programs.
d. The Office of the Deputy Chief of Staff for Intelligence (ODCSINT), U.S. Army.
e. The Office of Naval Intelligence (ONI).
f.
The Office of the Assistant Chief of Staff, Intelligence (OACSI), U.S. Air Force.
g.
Intelligence Division, U.S. Marine Corps.
h.
The Army Intelligence and Security Command (USAINSCOM).
i.
The Naval Intelligence Command (NIC). [No longer in existence]
j.
The Naval Security Group Command (NSGC).
k.
The Air Force Intelligence Agency (AFIA).
l.
The Electronic Security Command (ESC), U.S. Air Force.
m. The counterintelligence elements of the Naval Security and Investigative Command (NSIC).
[Now called the Naval Criminal Investigative Service (NCIS)]
n. The counterintelligence elements of the Air Force Office of Special Investigations (AFOSI).
o. The 650th Military Intelligence Group, Supreme Headquarters Allied Powers Europe (SHAPE).
p. Other intelligence and counterintelligence organizations, staffs, and offices, or elements thereof,
when used for foreign intelligence or counterintelligence purposes. The heads of such
organizations, staffs, and offices, or elements thereof, shall, however, not be considered as heads
of the DoD intelligence components for purposes of this Directive.
3
Id.
4 U.S. DEP’T OF DEFENSE, DIR. 5240.1, DOD INTELLIGENCE ACTIVITIES (25 Apr. 1988) [hereinafter DoDD 5240.1].
5 U.S. DEP’T OF DEFENSE, REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE
COMPONENTS THAT AFFECT U.S. PERSONS (Dec. 1982) [hereinafter DoD 5240.1-R]. As of July 2011, DoD 5240.1-R is
undergoing major revisions; thus, practitioners citing DoD 5240.1-R must ensure that the 1982 regulation is in effect.
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These authorities establish the operational parameters and restrictions under which DoD intelligence
components may conduct “intelligence activities,” defined in 5240.01 as “the collection, analysis,
production, and dissemination of foreign intelligence and counterintelligence pursuant to [DoDD
5143.01 and EO 12333].” Therefore intelligence activities are limited to those including foreign
intelligence (FI) and counterintelligence (CI).6 In general, this requirement translates to a
requirement that such intelligence relate to the activities of international terrorists or, foreign
powers, organizations, persons, and their agents. Moreover, to the extent that DoD intelligence
components are authorized to collect FI or CI within the United States, they may do so only in
coordination with the Federal Bureau of Investigation (FBI), which has primary responsibility for
intelligence collection within the United States.7
When DoD Intelligence Components are conducting FI or CI, intelligence oversight (IO) rules
apply. These rules govern the collection, retention, and dissemination of information concerning
U.S. persons.8 A U.S. person includes many unincorporated associations and U.S. corporations
(e.g., “Joe’s Diner”).9 Special emphasis is given to the protection of the constitutional rights and
privacy of U.S. persons so the IO rules generally prohibit the acquisition of information concerning
the domestic activities10 of any U.S. person. Questionable intelligence activities that run afoul of
these and other restrictions must be reported in accordance with Procedure 15 of DoDD 5240.1-R
under the procedures outlined in AR 381-10.11
DoD 5240.1-R is divided into fifteen separate procedures that govern the collection, retention, and
dissemination of intelligence. Collection of information on U.S. persons must be necessary to the
functions (FI or CI) of the DoD intelligence component concerned.12 Procedures 2 through 4
provide the sole authority by which DoD components may collect, retain, and disseminate
information concerning U.S. persons. Procedures 5 through 10 set forth the applicable guidance for
6
“Foreign intelligence” means information relating to the capabilities, intentions, and activities of foreign powers,
organizations, or persons, but not including counterintelligence except for information on international terrorist
activities. Exec. Order No. 12,333, U.S. Intelligence Activities, para. 3.4(d) (Dec. 4, 1981) [hereinafter EO 12333].
“Counterintelligence” means information gathered and activities conducted to protect against espionage, other
intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or
persons, or international terrorist activities, but not including personnel, physical, document, or communications
security programs. Id. para. 3.4(a).
7
Id. para 1.14(a); Agreement Governing the Conduct of Defense Department Counterintelligence Activities in
Conjunction with the Federal Bureau of Investigation (5 April 1979); and Supplement to 1979 FBI/DoD Memorandum
of Understanding: Coordination of Counterintelligence Matters Between the FBI and DoD (20 June 1996).
8 Judge advocates must read these authorities before advising a commander on the collection of information in a
domestic support operation. Further, AR 381-10 should be consulted when advising members of the intelligence
community or if a questionable intelligence activity is identified.
9
“United States person” means a United States citizen, an alien known by the intelligence agency concerned to be a
permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent
resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a
foreign government or governments. EO 12333, supra note 7, para. 3.4(i).
10
“Domestic activities” refers to activities that take place within the United States that do not involve a significant
connection with a foreign power, organization, or person. DoD 5240.1-R, supra note 5, Procedure 2, para. B3.
11 Evidence of questionable intelligence activities related to United States Persons must be reported to the TIG (SAIG
IO) though there are several approved channels for reporting the information to include the DoD General Counsel. See
paragraphs 15-2 through 15-4 of AR 381-10.
12
Id. at 4.2.1.
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the use of certain collection techniques to obtain information for foreign intelligence and
counterintelligence purposes. Procedures 11 through 15 govern other aspects of DoD intelligence
activities, including the oversight of such activities. In addition to the procedures themselves, the
Defense Intelligence Agency, has published an instructive manual entitled The Intelligence Law
Handbook (September 1995), to provide additional interpretive guidance to assist legal advisers,
intelligence oversight officials, and operators in applying DoD 5240.1-R. In the absence of any
foreign nexus, DoD intelligence components generally perform non-intelligence activities. A non-
intelligence activity would be any activity that is conducted by or with a DoD Intelligence
Component asset or capability, but which does not involve FI or CI; for example, the collection,
retention, production, and dissemination of maps, terrain analysis, and damage assessments for a
DSCA mission. When intelligence assets fly planned or disaster support missions, such as post-
hurricane operations, they are termed “incident awareness and assessment” (IAA) missions. When
a Title 10 DoD intelligence component asset or capability is needed for a non-intelligence activity,
specific authorization from the Secretary of Defense is required for both the mission and use of the
DoD intelligence Component capability or asset. The intelligence oversight (IO) rules do not apply
to non-intelligence activities so the SECDEF authorization must be sure to include any restrictions
placed upon the assets or capabilities used in the domestic or domestic support operation.
Whether DoD Intelligence Components are conducting an intelligence activity or a non-intelligence
activity, certain rules universally apply to data and imagery collected from overhead and airborne
sensors. Geospatial data, commercial imagery, and data or domestic imagery collected and
processed by the National Geospatial-Intelligence Agency (NGA) is subject to specific procedures
covering the request for geospatial data or imagery and its use. Judge advocates should ensure that
they are familiar with NGA policy on requests for geospatial data or imagery and its authorized use.
Additionally, DoDD 5210.52, Security Classification of Airborne Sensor Imagery and Imaging
Systems, and DIA Regulation (DIAR) 50-30, Security Classification of Airborne Sensor Imagery,
provide specific guidance on mandatory security classification review of all data collected by
airborne sensor platforms to determine whether it can be disseminated.
In providing guidance to commanders on authorized use of DoD Intelligence Component
capabilities and assets, and the products derived from the data collected, it is also important for
judge advocates to understand the various platforms, their sensors, and how they operate. Issues to
consider include: whether the sensor is fixed or moveable, whether the platform with the sensor can
have its course altered during a mission, how is the data collected, transmitted, and processed, and
the specific purpose of its mission. For example, a UAV may transmit data by live feed only to a
line-of-sight receiver, or by satellite to a remote location.
Evidence of a criminal act “incidentally” collected during an authorized mission using DoD
Intelligence Component capabilities can be forwarded to the appropriate law enforcement agency
(LEA); however, altering the course of an airborne sensor (such as an UAV) from an approved
collection track to loiter over suspected criminal activities would no longer be incidental collection,
and could result in a Posse Comitatus Act (PCA) violation unless specifically approved in advance.
Certain data contains classified metadata which may need to be stripped at a remote site before it
can be disseminated in an unclassified manner. Different platforms require different operational
support, which requires planning on where it is positioned, considering the intended use. A
domestic support operation using DoD Intelligence Component capabilities which includes support
to law enforcement agencies (LEAs) will probably require a separate mission authority approval by
SECDEF and will need to consider whether the data is to be exclusively transmitted to the LEA,
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and where the LEA agents are located to control or direct use of the assets. Whether the collection
platform and data transmission is wholly owned, operated, and received by a DoD Intelligence
Component, a DoD non-Intelligence Component, or a combination of both will require careful
consideration by judge advocates of the applicable rules and operational parameters and restrictions
applicable for the mission.
C. Information Handling and the Role of DoD Non-Intel Components
DoD non-intelligence components also have restrictions. These restrictions relate to the acquisition
of information concerning the activities of persons and organizations not affiliated with DoD. This
type of information is needed every day for force protection missions, to include force protection in
domestic support operations. Within the DoD, the Military Criminal Investigative Organizations
(MCIOs) have primary responsibility for gathering and disseminating information about the
domestic activities of U.S. persons that threaten DoD personnel or property.
DoD components, other than the intelligence components, may acquire information concerning the
activities of persons and organizations not affiliated with the DoD only in the limited circumstances
authorized by DoD 5200.27, Acquisition of Information Concerning Persons and Organizations Not
Affiliated with the Department of Defense. DoDD 5200.27 provides limitations on the types of
information that may be collected, processed, stored, and disseminated about the activities of
persons and organizations not affiliated with DoD. Those circumstances include the acquisition of
information essential to accomplish the following DoD missions: protection of DoD functions and
property, personnel security, and operations related to civil disturbances.
The most commonly used exception in the Directive deals with the circumstance of protection of
DoD functions and property. Initially this seems like a broad exception that would allow for the
collection of information on U.S. persons in many situations. However, the Directive further
defines an activity that threatens defense personnel, activities, and installations as “direct” threats to
DoD personnel in connection with their official duties. Understanding the difference is crucial, and
an example may assist in that understanding. It is not uncommon for protests to occur outside the
main gate of an installation. Under the broad brush of “protecting” DoD property, it might seem
appropriate to report the name of the protesting group to installation personnel. However, further
analysis is first required in order to determine if this group poses a direct threat to the installation.
If the group is quietly and calmly protesting, it’s unlikely they are a direct threat, and therefore
information should not be collected on them by name.13
Finally, note that it is a very rare situation when relevant information cannot be collected in some
form by some entity. If an intelligence component cannot collect information because it is not FI or
CI, then it may be possible for a non-intelligence component, such as the military police to collect
the information. Therefore when analyzing the collection of information concerning USPERs,
ensure that you consider both avenues of authorized collection.
13 Note that while it would be counter to DoD 5200.27 to collect information on the activities of the group by stating
“Group Against the Military (GAM) is protesting outside the front gate,” one could report all the necessary information
without naming the group and therefore collecting on its activities. One could report that “a group who is not in support
of the military is protesting outside the front gate” without losing relevant information.
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D. The National Guard
The National Guard presents a different set of challenges for the judge advocate as the NG’s
mission regularly focuses on domestic threats. Notwithstanding, the National Guard does not
generally conduct domestic intelligence operations. Primarily, domestic intelligence involving
USPER is a law enforcement matter and is the responsibly of state / local law enforcement and the
FBI. This activity, however, is not considered to be conducted by an intelligence entity so it falls
outside of Army Regulation 381-10. However, the activity is governed by DoDD 5200.27.14
The Joint Force Headquarters at the State (JFHQ-State) will have an Intelligence officer (J2) that is
responsible for coordinating intelligence requirements for intelligence preparation of the
environment (IPE) in support of state and federal missions. The J2 serves as the state’s executive
agent for foreign threat information sharing between the local, state, and the national levels to
ensure situational awareness and a common operating picture (COP). The J2 also interprets,
develops, and implements intelligence and security guidance and policy for the JFHQ-State. The
National Guard judge advocate must work in conjunction with the J2, and IG-IO in reviewing all
intelligence plans, proposals and concepts, to include Proper Use Memoranda (PUMs), for legality
and propriety. The state Provost Marshal (PM) also plays a vital role in developing the situational
picture by being the lead liaison to the civilian law enforcement community. For this reason the NG
judge advocate needs to determine four facts: 1) the status of the person doing the collecting; 2)
whether that person is operating as part of an intelligence activity; 3) how the information is being
collected; and, 4) the purpose behind the collection.
1. Status: Title 32 or Title 10
National Guard Soldiers can serve in three statuses, State Active Duty, Title 32, or Title 10, as
explain in detail in Chapter 10. A Soldier’s status has a direct impact on the authorities at issue
regarding the collection of information on USPER. This determination is therefore the first that
must be answered.
The National Guard may be called up for active duty by state governors or territorial Adjutants
General to help respond to domestic emergencies and disasters, such as those caused by hurricanes,
floods, and earthquakes. This status is commonly referred to as “state active duty” or SAD. The
National Guard may also be called up for active duty by the Federal Government under Title 32 of
the U.S. Code to perform training or other duties with or without the consent of the Soldiers. This
status is traditionally referred to as Title 32. Finally, the National Guard may be federalized and fall
under federal command and control, a status referred to as Title 10.
Members of the NG intelligence community serving in a SAD or Title 32 status are not included in
the definition of DoD intelligence component and as such are technically not regulated by
intelligence oversight. However, the Chief of the National Guard Bureau established intelligence
oversight policy that applies to all members of the National Guard serving in a Title 10 or Title 32
status. This intelligence oversight policy requires that National Guard intelligence personnel
operating in either a Title 10 or Title 32 status comply with all federal IO rules without exception.
Furthermore, the policy recognizes that while National Guard intelligence personnel operating in a
State Active Duty status are not members of the DoD intelligence community, they are limited by
14 AR 380-10, para. 17-1(f).
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their State law—to include state privacy laws—and are prohibited from engaging in what would be
a DoD intelligence or counterintelligence mission while in a SAD status. In most states the
collection, use, maintenance, and dissemination of information related to individuals by state
agencies is strictly regulated; therefore, the practical affect is that even in a SAD status NG
members cannot collect information on U.S. Persons.15
Additionally, SAD personnel are prohibited from using DoD intelligence resources and equipment
while in a SAD status. National Guard personnel in a SAD status are not authorized to engage in
DoD intelligence operations nor are they authorized to access DoD classified systems (SIPRnet /
JWICS -Joint Worldwide Intelligence Communication System) or equipment (MQ-1, border
sensors) for a SAD mission without authorization from the NGB J2.
2. Collection via an Intelligence Activity
The responsibilities of the Soldier, not the MOS or duty title per se, determine whether the Soldier
is part of an “intelligence activity.” Many states will either reassign intelligence personnel to a non-
intelligence mission to assist the J34 force protection section, or will assign them to a unit that is
specifically tasked to assist local law enforcement and authorized to provide intelligence support—
such as the NG Counter Drug Units operating under 32 U.S.C. § 112 authority. While serving in a
non-intelligence role, these individuals should not have access to intelligence-related equipment.
If the person collecting the information is a part of the intelligence activity and is conducting
missions as a member of an intelligence activity without separate special authority, then the person
must follow the rule for Intelligence Oversight as provided in section B. If the person is not
collecting the information as part of, or for an intelligence activity then the person must follow rules
for the handling of USPERS information as provided in section C.
An example of this latter group would be military law enforcement personnel. They are governed
by the provisions of DoDD 5200.27. They are responsible for tracking and analyzing criminal
threats to DoD and domestic threats to DoD. LE personnel liaise with other law enforcement
agencies to develop the criminal threat situational picture.
3. Method of Collecting
Military Intelligence Equipment may only be used to conduct foreign intelligence related missions
unless separate authorizations have been granted. This equipment therefore may only be operated
by NG intelligence personnel serving in a Title 10 or Title 32 status. States wishing to utilize this
equipment for other than foreign intelligence purpose must request authorization from the NGB J2.
Legal review by NGB JA is required prior to such authorizations. Some Military Intelligence
Equipment includes, but is not limited to, SIPRnet, JWICS (Joint Worldwide Intelligence
Communication System), and ASAS-L (All Source Analysis System-Light).
15 This policy memorandum is undergoing revision and will soon be published in a National Guard regulation titled,
“Intelligence Oversight.” Until the new issuance is released, the current guidance entitled “All States Memorandum
P08-0004, NGB Policy for Handling of U.S. Person Information (18 Jun. 2008)” remains in effect.
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The National Guard has a variety of Incident Awareness and Assessment16 tools within its arsenal,
many of which are not DoD Intelligence Assets. Some of the tools are considered to be both an
intelligence asset and a non-intelligence asset and therefore a thorough analysis will look at not only
the capability of the asset but also the sourcing and the authorized use to determine whether or not it
is a true intelligence asset subject to IO and limitations applicable to Intelligence Equipment. A
perfect example of this is the RC-26. The RC-26 in most states is a counter drug asset—not an
intelligence asset even though it is capable of collecting imagery of USPERS. In accordance with
each respective state counter-drug plan, RC-26’s mission is to assist law enforcement in the capture
of personnel involved in drug activities. However, when disaster strikes RC-26 is often called upon
to assist in life-saving situations. RC-26 provides an aerial surveillance capability that enables a
commander to understand their area of operations, provide damage assessments, obstacle and
hazard assessments, and other such non-intelligence purposes that incidentally collect information
on USPERS and is not a per se violation, but commanders must be reminded that this information
should not be retained and must be purged from military records as soon as possible. Likewise, a
platform that uses a fixed or movable camera may limit incidental collection through careful
planning of aerial surveillance routes and when possible, by avoiding populated areas. Any
incidental collection of USPER information along the planned route that is criminal in nature, can
be passed along to the appropriate law enforcement officials, but information should be purged from
the retention platform as soon as possible.
Domestic imagery collected by National Guard aerial imagery sensor platforms must be properly
documented and approved via a Proper Use Memorandum (PUM). These PUMs must be in
accordance with applicable Defense Intelligence Agency (DIA) policy, “Proper Use Statements for
Domestic Imagery.” The NGB-J2 publishes a PUM handbook to assist JFHQ-J2s on the protocol
for submitting a PUM. National Guard judge advocates are responsible for reviewing these PUMs
for compliance with federal and state law and National Guard policy.
4. Purpose of the Collection
A judge advocate must also determine whether information is being collected for an intelligence
purpose or whether it is being collected to help the commander gain situational awareness. As
mentioned earlier, information is often acquired in response to a National Guard commander’s need
to establish a common operating picture. If the answer is for situational awareness, then the judge
advocate should assist the command by helping shape the collection such that it is limited to the
information actually needed to accomplish the mission. For example, if the mission requires
imagery of ingress and egress routes, it is unnecessary for cameras to collect information regarding
the license plate numbers of those individuals traveling on the roads; but it is necessary to carefully
document the roads. Therefore, the recommendation can be to remind the collector not to focus on
specific personal identifying information.
16 Incident assessment and awareness (IAA) - The use of intelligence, surveillance and reconnaissance (ISR) DoD
intelligence capabilities for domestic non-intelligence activities approved by the Secretary of Defense, such as search
and rescue (SAR), damage assessment and situational awareness.
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The chart below illustrates the proper flow of information to remain compliant with intelligence
oversight regulations. It depicts how the J2 and Provost Marshall share and handle sensitive
information (e.g., USPER) in accordance with both Intelligence Oversight regulations and DoDD
Sensitive Information Handling JFHQ States
J34
J2
Legend
NGB
LE Community
LES info
DoD PM
Community
Intel Community
Intel Data
REDACT
REDACT
(unless Foreign
(unless Threat)
Nexus)
REDACT
FPSUMS
Warnings
(Criminal
J34 / PM
J2
INTSUMS
Stats, issues,
AT/FP
etc)
Intel Brief
Driven by
Foreign threat data
Domestic
FBI
Driven by
TAG CCIRs
Threats to DoD
Counterintelligence
TAG CCIRs
JTTF FIG
SLFC
J34 Can & Should:
Intel Can & Should:
- Pass relevant data to J2/LE without
- Pass relevant data to LE/J34 without
redaction
redaction
- Redact data when putting in FPSUM or
- Pass incidental data to LE/J34 without
briefing
redaction
- Redact or delete records within 90 days
- Review incoming data for intel value within
90 days; purge unneeded USPER data ASAP
- Redact data when putting in INTSUM or
briefing
5200.27.
E. Judge Advocate Responsibilities
Judge advocates are responsible for the following: advising the commander and staff on all
intelligence law and oversight matters within their purview; advising on the permissible acquisition
and dissemination of information on non-DoD affiliated persons and organizations; recommending
legally acceptable courses of action; establishing, in coordination with the Head Intelligence Officer
(J-2/G-2/S-2/N-2) and the Inspector General (IG), an intelligence oversight program that helps
ensure compliance with applicable law and policy; reviewing all intelligence plans, proposals, and
concepts for legality and propriety; and training members of the command who are engaged in
intelligence activities on all laws, policies, treaties, and agreements that apply to their activities.
In order to properly perform these duties, judge advocates advising commanders on collecting
intelligence and information should know and understand a variety of key types of information.
Judge advocates must be familiar with the missions, plans, and capabilities of subordinate
intelligence units, and all laws and policies (many of which are classified) that apply to their
activities. At a minimum, judge advocates should be familiar with the restrictions on the collection,
retention, and dissemination of information about U.S. persons and non-DoD persons and
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organizations, the approval authorities for the various intelligence activities performed by
subordinate units, and the requirement to report and investigate questionable activities and certain
federal crimes.17 Judge advocates must also be familiar with the jurisdictional relationship between
intelligence and counterintelligence activities as well as the parallel jurisdictions of force protection
and law enforcement activities. Finally, judge advocates should establish close working
relationships with the legal advisors of supporting intelligence agencies and organizations, all of
whom can provide expert assistance.
17 DoD 5240.1-R, supra note 4, Procedure 15.
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CHAPTER 10
RESERVE COMPONENTS, CIVIL AIR PATROL, U.S. COAST
GUARD - STATUS AND RELATIONSHIPS
KEY REFERENCES:
• DoDD 1235.10 - Activation, Mobilization, and Demobilization of the Ready Reserve,
November 26, 2008.
• DoDD 5125.01 - Assistant Secretary of Defense for Reserve Affairs, December 27, 2006 (with
Chg. 1, June 4, 2008).
• DoDD 6025.13 - Medical Quality Assurance (MQA) in the Military Health System (MHS),
May 4, 2004.
• DoDI 1215.13 - Reserve Component Member Participation Policy, May 11, 2009.
• DoDI 1215.06 - Uniform Reserve, Training and Retirement Category Administration, February
7, 2007 (with Chg. 2, December 25, 2008).
• DoDD 1200.17 - Managing the Reserve Components as an Operational Force, October 29,
2008.
A. Introduction
This chapter discusses the various reserve components and the importance of their designated status
to the missions they may perform. First, the Reserve Component (RC) plays a significant role in
domestic support operations. In numerous instances, particular military missions are located solely
within them.1 The RC provides trained and available units to its parent services in the event of war
or national emergency.2 The RC differs from the Active Component (AC) because it has unique
personnel/duty categories that are important to understand because they not only determine what
benefits and protections RC members have, but also the different types of duties that are authorized
in particular personnel categories. The Assistant Secretary of Defense for Reserve Affairs
(ASD(RA)) is responsible for overall supervision of all RC affairs in DoD and establishes the
umbrella directives that provide guidance on activation, mobilization, and training.3
Judge advocates practicing domestic operational law must also be familiar with the U.S. Coast
Guard, the National Guard in a non-federal status, and the Civil Air Patrol because these entities
have unique roles in domestic operations. In addition to being an armed force, the Coast Guard is
also a federal law enforcement agency. While in a non-federal status, the Air and Army National
1 For example, the Air Force Reserves maintains a weather reconnaissance mission and the Naval Reserves is tasked
with a mine countermeasure mission.
2
10 U.S.C. § 10102. Various efforts are underway by the services to improve mobilization processes. See
Rebalancing Forces, Easing the Stress on the Guard and Reserve, 15 January 2004, Office of the Deputy Assistant
Secretary of Defense for Reserve Affairs (Readiness, Training, and Mobilization). This report was a result of a
memorandum issued by the Secretary of Defense on 9 July 2003, entitled Rebalancing Forces, in which he directed the
services to review the use of the Reserve components and implement force rebalancing initiatives as necessary.
3 U.S. DEP’T OF DEFENSE, DIR 5125.01, ASSISTANT SECRETARY OF DEFENSE FOR RESERVE AFFAIRS (27 Dec. 2006)
[hereinafter DoDD 5125.01].
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Guard have different authorities and capabilities in domestic missions.4 Finally, the Civil Air
Patrol, a nonprofit corporation, also serves as an auxiliary to the United States Air Force.
B. Reserve Component
The RC consists of the Army Reserve, Air Force Reserve, Naval Reserve, Marine Corps Reserve,
Coast Guard Reserve, Army National Guard of the United States, and the Air National Guard of the
United States.5 Members of the RC are a true reflection and extension of civilian society. The
defense of the United States has been based in large part on the concept of these citizens who
prepare for active service during peacetime and enter active duty in times of national emergency.
These individuals have served the Nation since the Revolutionary War and continue to serve both in
contingency operations overseas and in support of domestic operations. They form a vital link
between the government, the Armed Forces, and the people.6
1. U.S. Army Reserve (USAR)7
The USAR’s mission is to meet Department of the Army contingency operations and mobilization
requirements.8 There are over 200,000 Soldiers in the USAR, most with Combat Support and
Combat Service Support missions. Troop Program Units, discussed in paragraph C.1.a.(1) below,
train together to mobilize as units.
2. U.S. Air Force Reserve (USAFR)9
The USAFR is composed of thirty-six wings that report to one of three Numbered Air Forces
(NAFs). With just over ten percent of the Air Force’s manpower, the USAFR performs more than
thirty percent of all Air Force missions. Like all of the other RCs, the role of the USAFR is to
provide trained and ready forces to the USAF. Yet the USAFR also has several unique missions
like the 731st Airlift Squadron, assigned to the 302nd Airlift Wing, Peterson Air Force Base,
Colorado, which is trained in the use of modular airborne firefighting systems that support local,
state, and federal agencies by dropping retardant chemicals to prevent the spread of fires. The 53rd
Weather Reconnaissance Squadron at Keesler Air Force Base, Mississippi, performs hurricane
reconnaissance exercises over the Atlantic, Pacific, Caribbean, and Gulf of Mexico and is the only
DoD unit tasked to perform weather reconnaissance in support of the Department of Commerce.10
4 See DOPLAW Handbook, Supp., App 10-6, Role of the NG in Domestic Support Operations.
5
10 U.S.C. § 10101.
6 See generally U.S. DEP’T OF DEFENSE, HANDBOOK 1215.15, para. C2.1. (Jun. 1996).
7 U.S. DEPT’ OF ARMY, REG. 140-1, MISSION, ORGANIZATION, AND TRAINING (1 Jan. 2004) [hereinafter AR 140-1];
U.S. DEP’T OF ARMY, REG. 140-10, ASSIGNMENTS, ATTACHMENTS, DETAILS, AND TRANSFERS (15 Aug. 2005); U.S.
DEP’T OF ARMY, REG. 140-30, ACTIVE DUTY IN SUPPORT OF THE UNITED STATES ARMY RESERVE (USAR) AND ACTIVE
GUARD RESERVE (AGR) MANAGEMENT PROGRAM (1 Sept. 1994).
8 AR 140-1, supra note 7, para. 1-8.
9 U.S. DEP’T OF AIR FORCE, INSTR. 36-2132, FULL-TIME SUPPORT TO ACTIVE AND RESERVE PROGRAM (27 Mar. 2002);
U.S. DEP’T OF AIR FORCE, INSTR. 36-2619, MILITARY PERSONNEL APPROPRIATION MAN-DAY PROGRAM (22 Jul. 1994);
U.S. DEP’T OF AIR FORCE, MANUAL, 36-8001 RESERVE PERSONNEL PARTICIPATION AND TRAINING PROCEDURES (22
Jan. 2004).
10 The unit program of the USAFR is called the “Category A” program. Personnel perform a minimum of one weekend
of inactive duty training every month, referred to as a unit training assembly (UTA), and two weeks of active duty
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3. U.S. Naval Reserve (USNR)11
The Naval Reserve is composed of both commissioned units (self-contained, deployable assets with
both personnel and mission equipment and hardware) and augmentation units (non-hardware units
that provide trained manpower to active Navy units). The USNR is a significant force multiplier for
the Navy and Marine Corps and represents twenty percent of the Navy’s total assets. Unique
missions to this reserve branch include a Mine Countermeasure Ship, Mobile Inshore Undersea
Warfare Units, and Helicopter Warfare Support Squadrons.
4. U.S. Marine Corps Reserve (USMCR)12
The Marine Corps Reserve is composed of one Marine division, one Marine air wing, one service
support group, and a Marine Corps Reserve support command. Select Marine Corps Reserve
(SMCR) units consist of more than 19,000 Reserves from 4th Marine Division (4th MARDIV);
7,000 from 4th Marine Aircraft Wing (4th MAW); 8,000 from 4th Force Service Support Group
(4th FSSG); I Marine Expeditionary Force Augmentation Command Element (I MACE), Pacific;
and II Marine Expeditionary Force Augmentation Command Element (II MACE), Atlantic. Unique
missions to this reserve branch include Civil Affairs Groups and Air-Naval Gunfire Liaison
Companies.
5. U.S. Coast Guard Reserve (USCGR)13
The USCGR, like its active duty counterpart, is an agency within the Department of Homeland
Security. Under Title 14 and Title 10 of the United States Code, the Coast Guard is at all times an
armed force, as well as a law enforcement agency. As an armed force, the Coast Guard is required
to maintain a state of readiness to function as a specialized service in the Navy in time of war or
upon Presidential declaration. The Coast Guard, discussed at paragraph f, below, is a unique
member of the Joint Force because of a mix of military, civil law enforcement, and regulatory
authorities that allows it to respond to a wide variety of national security missions at home and
abroad.
Coast Guard reservists may be called in response to serious natural or man-made disasters,
accidents, or catastrophes such as hurricanes, earthquakes, tornadoes, or floods. The Secretary of
Homeland Security is authorized to order members of the Coast Guard Ready Reserve to active
(annual training) for pay and points each fiscal year. The “Category B” program is the individual mobilization
augmentee program consisting of individual reservists assigned to major commands, field operating agencies, joint
organizations, direct reporting units and outside agencies. Although some commands allow training with other units in
the member’s local area, this decision is made on a case-by-case basis by the individual command. Inactive duty
training, or IDT, periods for pay and points, are usually performed during the week in increments of 4 IDTs per quarter.
A day is worth two IDT points. Members also perform a 12-14 day paid active duty training tour annually with one
point awarded for each day. In the “Category E” program, personnel do not earn pay for their service, but they do earn
retirement points. Examples are service with the Civil Air Patrol Assistance Program and the Chaplain reinforcement
designees.
11 U.S. DEP’T OF NAVY, CHIEF OF NAVAL OPS, INSTR. 1001.20C, STANDARDIZED POLICY AND PROCEDURE FOR ACTIVE
DUTY FOR SPECIAL WORKS (ADSW) (4 Mar. 2008).
12 U.S. Marine Corps, Order 1001.52H, Active Reserve Support to the Reserve Component (RC) (17 Dec. 1996); U.S.
Marine Corps, Order 1001.59, Active Duty for Special Work in Support of the Total Force (22 Oct. 2001).
13 U.S. COAST GUARD RESERVE POLICY MANUAL, COMDTINST M1001.28A, (18 May 2003).
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duty without their consent in a domestic emergency.14 They may be used for not more than 60 days
in any four-month period and not more than 120 days in any two-year period to augment the
Regular Coast Guard in times of serious natural or manmade disasters, accidents, or catastrophes.
A unique mission to the USCGR is port security; the USCGR provides 95% of this capability.
Under 10 U.S.C. § 12302, the USCGR also provides key support to Operation Iraqi Freedom and
Operation Enduring Freedom.
6. National Guard of the United States (NGUS)
a. Overview
The terms “Army National Guard of the United States” (ARNGUS) and “Air National Guard of the
United States” (ANGUS) refer to the guard as a reserve component of their respective service.15
The term “federal service,” is applied to National Guard members and units when ordered to active
duty in their reserve component status or called into federal service in their militia status under
various sections of Title 10 of the U.S. Code.
The terms “Army National Guard”(ARNG) and “Air National Guard” (ANG) refer to the federally
recognized (and usually federally trained under Title 32, U.S. Code) organized militia of the various
states, in other words, Guardsmen in a “state status” pursuant to Article I, Section 8, Clause 16 of
the Constitution.16
Determining whether National Guard members are in the ARNGUS/ANGUS or the ARNG/ANG is
critical to defining their roles and responsibilities. Status is also the primary factor for determining
the applicability of law for such issues as benefits, protections, and liabilities. For instance, guard
members only become subject to the Uniform Code of Military Justice (UCMJ) when federalized;
while in a state status they are subject to their respective state codes of military justice.
Additionally, some laws, such as the Posse Comitatus Act (PCA) only apply to the National Guard
when they are in a Title 10 status. National Guard members are relieved from duty in the National
Guard when on federal active duty as a member of the NGUS under 32 U.S.C. § 325. Per the
National Defense Appropriations Act for Fiscal Year 2004, 32 U.S.C. § 325 was amended to allow
National Guard officers to retain command authority over state forces with the approval of POTUS
and the consent of the Governor.17
Guard personnel in Title 10 and Title 32 (discussed under National Guard of the Several States
section below) status receive federal pay and are covered under the Federal Torts Claims Act. Title
10 personnel always receive federal military retirement credit for the performance of duty.
Similarly, Title 32 personnel also receive such credit, unless in an inactive duty training (IDT)
status. It is important to remember that the determination of whether the National Guard is in
federal or state service does not rest on the entity that funds the activity, but rather which entity has
command and control.
14
14 U.S.C. § 712.
15
10 U.S.C. §§ 101(c), 10101.
16 See 10 U.S.C. § 101; 32 U.S.C. §§ 301, 307.
17 See DOPLAW Handbook, Supp., App. 10-7 for a comparison the National Guard in their different statuses.
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b. History
In 1903, the organized militia (i.e., the National Guard) was created.18 The National Defense Act of
1916 further strengthened the organization and training of the National Guard.19 Because members
of the National Guard had to be drafted as individuals for service in World War I, Congress in 1933
amended the National Defense Act of 1916 to establish the dual status of the National Guard by
creating the “two overlapping but distinct organizations,” i.e., the National Guard of the various
states and the National Guard of the United States.20 Although Guardsmen were relieved from their
militia status while on federal status, at the conclusion of that service, they reverted to their state
status. In other words, this statute created the dual enlistment requirement that we know today.21
c. Federal Missions
Like the other RCs, ARNGUS/ANGUS22 members and units augment the Armed Forces during
wars or other conflicts. To become an ARNGUS or ANGUS member, the Guardsman or unit must
18 Dick Military Act of 1903, 57 Pub. L. No. 33, 32 Stat. 775; see also Perpich v. Department of Defense, 496 U.S. 334,
342 (1990).
19 National Defense Act of 1916, 64 Pub. L. 85; see also Perpich, 496 U.S. 334, 343-44.
20 National Guard Act of 1933, 73 Pub. L. 64, § 18. See also Perpich, 496 U.S. 334, 345-46.
21 A system that the Perpich Court recognized as a statutory creation causing a member of the militia to be relieved
from state status for the “entire period of federal service.” Perpich, 496 U.S. 334, 345-346.
22 When ANG members enter Title 10 active duty, they are transferred from their ANG units and assigned to the Air
National Guard Readiness Center (ANGRC), either directly or to a detachment of the ANGRC created for the purpose
of deploying forces in support of an active duty mission. The ANGRC is a Field Operating Agency (FOA) of HQ
USAF that executes NGB policy for the ANG and ANGUS and exercises elements of command and control over
ANGUS units and members. It is a Title 10 organization with a 32 U.S.C. § 104 commander appointed on G-series
orders. The ANGRC commander, currently a brigadier general, also serves as the Deputy Director of the ANG
Directorate and is on Title 10 orders. See also U.S. DEP’T OF AIR FORCE, INSTR. 10-402, MOBILIZATION PLANNING,
para 2.2 (9 Aug. 2007)) [hereinafter AFI 10-402]; NATIONAL GUARD BUREAU, MEMORANDUM 10-5/38-101,
ORGANIZATIONS AND FUNCTIONS OF THE NATIONAL GUARD BUREAU, ch. 4 (1 Jul. 2003).
ANGRC exercises administrative control (ADCON) over all units and members in Title 10 status (except those brought
on active duty through full mobilization) because they are assigned to ANGRC. ADCON includes: organization of
forces; personnel management; control of resources and logistics; training, readiness, and mobilization; and discipline.
ADCON flows from the National Command Authorities through the Secretary of the Air Force, Chief of Staff of the Air
Force, Major Commands, and Numbered Air Forces to a unit. A commander exercises ADCON over all assigned
forces, but not over attached forces. For attached forces, ADCON remains with the commander to whom they are
assigned. For example, when forces are assigned to ANGRC but temporarily attached to another unit, ADCON remains
with ANGRC. See U.S. DEP’T OF AIR FORCE, HANDBOOK 10-416, PERSONNEL, READINESS, AND MOBILIZATION, para
6.8.4 (22 Dec. 1994) [hereinafter AFH 10-416]. These ADCON/OPCON rules differ for full mobilization when guard
personnel become part of the active component. See AFI 10-402 para 9.5; AFH 10-416, supra paras 5.4, 6.8.3.
ANGRC/CC makes forces available to a supported active duty commander by attaching them to the gaining
organization that will exercise operational control (OPCON) over them. The Uniform Code of Military Justice (UCMJ)
gives the COMAFFOR or any active duty commander within the chain of command the right to discipline any person
serving in Title 10 status. UCMJ authority is a function of command under federal law and the Manual for Courts-
Martial. Command authority for discipline includes UCMJ authority as an element of ADCON, which, for members of
an ANGRC detachment, is within the command authority of ANGRC. Discipline is also an element of specified
ADCON, which is within the command authority of the COMAFFOR. ADCON and specified ADCON do not confer
UCMJ authority but identify those commanders who may exercise UCMJ authority as a matter of Air Force doctrine
and policy in recognition that more than one commander may have UCMJ authority over a member in a given situation.
Since disciplinary authority is shared between the commanders holding ADCON and specified ADCON, it is frequently
a matter of coordination between the two concerning which one will take disciplinary action. U.S. DEP’T OF AIR FORCE,
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also be “federally recognized.”23 To be federally recognized, the Guardsman or unit must meet
prescribed federal standards.24 NG units or members may be ordered to federal active duty in one
of two ways. One way is to order NG members or units to active federal duty, with the consent of
the governor, as members of the ARNGUS or ANGUS, the reserve components.25 The other way is
pursuant to the power of Congress to call out the militia to enforce federal law, suppress
insurrections, or repel invasions; under this authority the NG is “called” to duty as part of the militia
of the United States.26 Congress has given the President the authority to call the NG to active duty
for these purposes.27
Moreover, the National Guard has both a federal mission (when called up by Congress or activated
by the President under applicable laws) and a state mission (inherent police power authority of the
states) to ensure that the laws of the United States and the respective states are obeyed and to
protect the people and property of the United States. This domestic portion of the NGUS federal
mission is just as important as the National Guard’s federal mission to augment the Armed Forces
during wars or other conflicts outside of the United States.
d. Other Title 10 Duty
In addition to duties performed when federalized under the aforementioned authorities, members of
the National Guard serve in a full-time Title 10 status in other ways. Members in this category
include: Members of the National Guard Bureau (NGB); U.S. Property and Fiscal Officers
(USPFO) in each state serving the National Guard;28 any other National Guard members serving a
tour of duty under Title 10 in support of NGB, Major Commands, or other “seats of government”
tours.
(1) National Guard Bureau (NGB)
The 2008 National Defense Authorization Act made major changes to the roles and responsibilities
of the NGB. Significantly, NGB was designated in statute as a “joint activity” of DoD, serving as
the NG channel of communications between the Army and Air Force and the fifty-four states and
territories.29 While the NGB serves as the coordination, administrative, policy, and logistical center
INSTR. 51-202, NONJUDICIAL PUNISHMENT, para 3.7 (7 Nov. 2003) requires the USAF to coordinate with the parent
reserve organization before imposing nonjudicial punishment.
ANGRC usually creates detachments and assigns ANGUS members to them for deployments that involve 10 or more
persons for 15 days or longer. If a deployed group is less than 10 persons, or a deployment will not be for more than 15
days or does not include an officer, then ANGUS members are attached directly to the 201st Mission Support Squadron
(201MSS), a Title 10 subordinate unit to ANGRC. ADCON and OPCON apply in the same manner to those directly
attached to 201MSS as they apply to ANGRC detachments.
23
10 U.S.C. §§ 10105, 10111, 10503(7), 12201, 12211, 12212; 32 U.S.C. § 105(b).
24 See NATIONAL GUARD BUREAU, REG. 10-1, ORGANIZATION AND FEDERAL RECOGNITION OF ARMY NATIONAL
GUARD UNITS (22 NOV. 2002); U.S. DEP’T OF AIR FORCE, INSTR. 38-101, AIR FORCE ORGANIZATION (21 APR. 2004).
25 U.S. CONST. art. 1, § 8, cl. 12; Perpich, 496 U.S. at 334; 10 U.S.C. §§ 12301-12304.
26 U.S. CONST. art. I, § 8, cl. 15; 10 U.S.C. §§ 331-333 (these statutes also include the use of the Armed Forces of
which the NGUS is part); 10 U.S.C. § 12406. Although these statutes are in Title 10 of the U.S. Code, members “called
up” under these provisions retain their militia status.
27
10 U.S.C. §§ 331-333.
28
32 U.S.C. § 708.
29
10 U.S.C. § 10501.
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for the ARNG and the ANG, NGB does not command and control either the Army or Air National
Guard. Pursuant to its charter, NGB is responsible for, among other things, implementing Army
and Air Force guidance, prescribing and monitoring training discipline and requirements, and
supervising and administering the budgets of the ARNG and ANG.30
The Chief, NGB, a four-star general, is the principal advisor on NG matters to the Secretaries of the
Army and Air Force and to the Army and Air Force Chiefs of Staff. The Chief, NGB, has executive
agent responsibility for planning and coordinating the execution of NG military support operations.
The Director, ARNG, and the Director, ANG, are responsible to the Chief, NGB. The Chief
Counsel’s office at NGB provides legal advice and assistance to the Chief, NGB, the Directors of
the Army and Air National Guards, and to the full-time judge advocates at the state level. The
Chief Counsel’s office normally employs a joint staff of military and civilian attorneys in a wide
variety of disciplines, including administrative law, contract and fiscal law, international and
operational law, environmental law, legislation, labor law, and litigation.
(2) U.S. Property and Fiscal Officers (USPFO)
Each state and territory has a USPFO. As Title 10 officers assigned to the NGB, a USPFO is
detailed for duty to a state or territory and is accountable for all federal funds and property
provided to the NG of each state.31 The USPFO and his staff also perform functions relating to
supply, transportation, internal review, data processing, contracting, and financial support for the
state NG. 32 When required, the USPFO staff can support AC or other RC forces on a
reimbursable basis.
e. Other NG Authorities for Duty
Guardsmen perform Inactive Duty Training (IDT) and Annual Training (AT) in a Title 32 status.
They can also perform Active Duty for Operational Support (ADOS) in a Title 10 status to support
the ANG and ARNG at federal headquarters levels.33 As noted above, some “AGR” tours are also
in a Title 10 status. They also perform ADOS in a Title 10 status to support Active Component
requirements; this duty is paid by Army and Air Force appropriations.34
C. Reserve Component Categories
There are three Reserve categories: Ready Reserve, Standby Reserve, and Retired Reserve. Each
member of the National Guard and Reserve is assigned within one of these categories. All members
30 DEP’T OF DEFENSE DIR. 5105.77, National Guard Bureau (NGB) (21 May 2008).
31 32 U.S.C. 708.
32 National Guard Bureau Reg. 130-6/Air National Guard Instruction 36-2, United States Property and Fiscal Officer
Appointment, Duties, and Responsibilities (1 July 2007).
33 See U.S. DEP’T OF ARMY, REG. 135-200, ACTIVE DUTY FOR MISSIONS, PROJECTS, AND TRAINING FOR RESERVE
COMPONENT SOLDIERS, ch. 6 (30 Jun. 1999).
34 See id. ch. 2, sec.521 of the FY 2001 National Defense Authorization Act, which exempts reserve officers on the
reserve active-status list (RASL) serving on active duty for three years or less from placement on the active-duty list
(ADL). Previously, these Soldiers were added to the ADL for promotion.
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of the Army National Guard and Air National Guard, including those in the Inactive National Guard
(ING), are in the Ready Reserve or Retired Reserve.35
1. Ready Reserve
The Ready Reserve consists of three subgroups: the Selected Reserve, the Individual Ready
Reserve, and the Inactive National Guard. These are units and individuals subject to order to active
duty to augment the Active Forces during a time of war or national emergency.36 This chapter will
primarily address the Selected Reserve.
a. Selected Reserve
The Selected Reserve consists of Soldiers assigned to Reserve Component units, Individual
Mobilization Augmentation (IMA) Program, Drilling Individual Mobilization Augmentation
(DIMA) Program, and the Active Guard Reserve (AGR) Program. These individuals and units are
considered essential to wartime missions and have priority for training and equipment over other
RC categories.
(1) Drilling Unit Reservists
Sometimes called Troop Program Units (TPU), these units consist of Soldiers assigned to Tables of
Organization and Equipment or Tables of Distribution and Allowances who normally perform at
least 48 inactive duty training (IDT) assemblies and not less than 15 days, exclusive of travel time,
of annual training (AT) each year. In the alternative, they may perform Active Duty for Training
(ADT) for no more than 30 days each year, unless otherwise specifically prescribed by the
Secretary of Defense.37
(2) Individual Mobilization Augmentees and Drilling Individual Mobilization
Augmentees
IMAs and DIMAs are RC officers assigned to USAR Control Group—IMAs in a Selected Reserve
status and not attached to an organized Reserve unit. The IMA Program function is to provide
qualified soldiers to fill pre-designated mobilization required positions. IMAs are assigned to
Active Component organizations or Selective Service System positions that must be filled to
support mobilization requirements, contingency operations, operations other than war, or other
specialized or technical requirements. Drilling IMA positions are identified as critical elements for
mobilization during a Presidential Reserve Call-up (PRC) requiring an incumbent to maintain an
even higher level of proficiency than a regular IMA Soldier. Soldiers assigned to these positions
35 U.S. DEP’T OF DEFENSE, INST. 1215.06, UNIFORM RESERVE TRAINING AND RETIREMENT CATEGORIES, para. E5.1 (4
May 2004) [hereinafter DoDI 1215.06].
36
Id. para. E.5.1.1. These individuals and units may be involuntarily ordered to active duty during war or national
emergency under the authority of 10 U.S.C. §§ 12301, 12302 and 14 U.S.C. § 712.
37 U.S. DEP’T OF DEFENSE, INST. 1215.13, RESERVE COMPONENT MEMBER PARTICIPATION POLICY, Encl. 2, para.
1.a.(2) (11 May 2009).
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are authorized to perform 48 paid IDT period per year. The Selective Service System can perform
36 IDT periods per year. All IMAs must perform a minimum of 12 days of AT each year.38
(3) Active Guard and Reserve (AGR) Program
The AGR Program consists of Soldiers performing active duty or full-time National Guard duty
(FTNGD) for 180 days or more for the purpose of organizing, administering, recruiting, instructing,
or training the Reserves.
b. Individual Ready Reserve (IRR)
The IRR is a manpower pool of pre-trained individuals who have already served in Active
Component units or in the Selected Reserve and have some part of their Military Service Obligation
(MSO) remaining. Some members volunteer to remain in the IRR beyond their MSO or contractual
obligation and participate in programs providing a variety of professional assignments and
opportunities for earning retirement points and military benefits.39 IRR members are subject to
involuntary active duty and fulfillment of mobilization requirements.
c. The Inactive National Guard (ING)
The ING consists of National Guard personnel in an inactive status in the Ready Reserve, not in the
Selected Reserve, attached to a specific National Guard unit. These individuals must muster once a
year with their unit, but they do not participate in training activities. They may not, however, train
for points or pay and are not eligible for promotion.40
2. Standby Reserve
The Standby Reserve consists of personnel who are maintaining their military affiliation without
being in the Ready Reserve, but have been designated key civilian employees, or have a temporary
hardship or disability. They are not required to perform training and are not part of units. The
Standby Reserve is a pool of trained individuals who may be mobilized as needed to fill manpower
needs in specific skills.41
38 DoDI 1215.06, supra note 35, para. E.25.1.1.1.3. The Army National Guard and the Air National Guard do not have
IMA programs.
39
Id. para. E.5.1.1.2. The IRR also may include personnel participating in officer training programs, including the
Merchant Marine Academy, enlisted members awaiting IADT (except for those in the National Guard), who are not
authorized to perform IDT, and members of the Delayed Entry Program. Id.
40
Id. para. E.5.1.1.3. The Air National Guard does not have an inactive status.
41
Id. para. E.5.1.2. The Standby Reserve consists of the active status list and the inactive status list categories.
Members designated as key employees and personnel not having fulfilled their statutory MSO, or temporarily assigned
for hardship reasons intending to return to the Ready Reserve, are on the active status list. Those members who are not
required to remain in an active program, but who retain Reserve affiliation in a non-participating status and whose skill
may be of future use to the Armed Force are on the inactive status list. These members cannot participate in prescribed
training and are not eligible for pay or promotion and do not accrue credit for years of service. The Army National
Guard and Air National Guard do not have a Standby Reserve.
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3. Retired Reserve
This category consists of all Reserve personnel transferred to the Retired Reserve. These
individuals may voluntarily train with or without pay.42 All members retired for having completed
the requisite years of active duty service (Regular or Reserve), regardless of the retired list where
assigned, may be ordered to active duty when required by the Secretary of the Military Department
concerned.43
D. Reserve Component Training and Support
The Service Secretaries and the Commandant of the Coast Guard are required to ensure trained and
qualified RC units and individuals are available for AD throughout the entire spectrum of
requirements, including war or national emergency, contingency operations, military operations
other than war, operational support, humanitarian operations, and at such other times as the national
security may require.44 Each military department has its own regulations and instructions that
implement these training and support duties.45
1. Training
All RC members receive training according to their assignment and required readiness levels. This
training may be conducted in Active Duty, Inactive Duty for Training, or Full-Time National Guard
status.
a. Active Duty
Active Duty for Training (ADT) consists of structured individual and unit training, including on-
the-job training, or educational courses to RC members. It includes Initial Active Duty training
(IADT),46 Annual Training (AT), and Other Training Duty (OTD). Initial ADT includes basic
military training and technical skill training required for all enlisted accessions. AT is the minimum
period of active duty training that RC members must perform each year to satisfy the training
requirements associated with their RC assignment. By DoD policy, members of the Selected
Reserve must perform AT. For all members of Selected Reserve units, except for those in the
42
Id. para. E.5.1.3. The Retired Reserve consists of the following retired categories: (1) Reserve members who have
completed the requisite qualifying years creditable for non-regular retired pay and are receiving retired pay (at, or after,
age 60); (2) those who have completed the requisite qualifying years creditable for non-regular retired pay and are not
yet 60 years of age, or are age 60 and have not applied for non-regular retirement pay; (3) those members retired for
physical disability; (4) members who have completed 20 years of service creditable for regular retired pay, or are 30
percent or more disabled and otherwise qualified; (5) Reserve members who have completed the requisite years of
active service and are receiving regular retired or retainer pay (regular enlisted personnel of the Navy and Marine Corps
with 20 to 30 years of active Military Service who are transferred to the Fleet Naval Reserve or the Fleet Marine Corps
Reserve on retirement, until they have completed 30 years of total active and retired or retainer service, are not included
in this category); and (6) Reserve members drawing retired pay for other than age, service requirements, or physical
disability.
43
10 U.S.C. § 688.
44 DoDI 1215.06, supra note 35, para. 5.2.2. Combatant commanders have oversight responsibility for the training and
readiness of assigned guard and reserve forces.
45
Id.
46 DoDI 1215.06, supra note 35, para. 6.6.4.1.4.
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National Guard, that training is not less than 14 days, and not less than 12 days for the Coast Guard
Reserve. As previously noted, IMAs and DIMAs must perform 12 days of AT each year and
National Guard units must perform full-time military training for at least 15 days each year. OTD is
used to provide all other structured training, including on-the-job training and attendance at schools.
ADT is funded by the RC, but may support active component operational requirements and
missions.47
b. Inactive Duty for Training (IDT)
This training is used to provide structured individual and unit training, or educational courses to RC
members. It includes regularly scheduled training periods, additional training periods,48 and
equivalent training. It is funded by the Reserve Component.49
c. Full-time National Guard Duty (FTNGD)
The National Guard performs their federal training in a Title 32 status. Thus, while the various
terms used above also apply to the National Guard, there are variations. Full time National Guard
duty (FTNGD) is training or other duty (including support), other than inactive duty, performed by
a member of the National Guard in a member’s status as a member of the National Guard of a state,
territory under 32 U.S.C.A. §§ 316, 502, 503, 504, 505. It is considered active service pursuant to
10 U.S.C.A. § 101(d)(3), but it is not considered “active duty.” (For other reserve components,
some of the categories above are active duty.)
2. Support
RC members may be placed on Active Duty Other than for Training (ADOT), which includes the
categories of active duty for operational support (ADOS), Active Guard and Reserve (AGR) duty,
and involuntary AD. Support may also be provided during FTNGD, discussed above.50
a. Active Duty for Operational Support (ADOS)
The purpose of ADOS is to provide the necessary skilled manpower assets to support existing or
emerging requirements. Because ADOS is intended to provide only temporary support, total
cumulative FTNGD, including ADOS, is limited to 1,095 days in the previous 1,460 days.51
47 DoDI 1215.06, supra note 35, para. 6.1.4.1.
48 Additional IDT periods are for the use of drilling Reservists who are not military technicians. They include
additional training periods (ATPs) for units, components of units, and individuals for accomplishing additional required
training; additional flying and flight training periods (AFTPs) for primary aircrew members for conducting aircrew
training and combat crew qualification training; and Readiness management periods (RMPs) to support the following
functions in preparing units for training: the ongoing day-to-day operation of the unit, accomplishing unit
administration, training preparation, support activities, and maintenance functions. DoDI 1215.06, supra note 35, para.
6.1.2.
49 DoDI 1215.06, supra note 35, para. 6.1.2.1. Paid IDT periods cannot be under 4 hours. No more than two IDT
periods may be performed in any calendar day. In addition, IDT for points only (without pay) cannot be less than 2
hours with a maximum of two points authorized in any one calendar day. Further, one retirement point in any one
calendar day can be granted for attendance at a professional or trade convention, with a minimum of four hours.
50 DoDI 1215.06, supra note 35, para. 6.1.5.3.
51 DoDI 1215.06, supra note 35, para. 6.1.4.2.1.7.
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Periods of service exceeding this limitation are accounted against active duty end strength.52
ADOS may be funded by the Active Component to support AC functions. In the Army, these tours
are called Temporary Tours of Active Duty (TTAD); in the Air Force, they are called MPA man-
days. ADOS also may be funded by the RC to support RC functions.
In 2006, as a result of the increasing use of the National Guard for domestic missions of national
importance, such as the response to Hurricane Katrina, Congress amended 32 U.S.C. § 502(f) to
expressly authorize the use of the National Guard for “Support of operations or missions undertaken
by the member’s unit at the request of the President or Secretary of Defense.”53
b. Active Guard/Reserve (AGR)
This duty is funded by the RC and performed by an RC member of the Army, Navy, Air Force,
Marine Corps, Coast Guard, or FTNGD performed by a member of the NG under an order to active
duty or FTNGD for a period of 180 days or more. Unless a statutory exception exists, the scope of
duty for AGRs is limited to organizing, administering, recruiting, instructing, or training the reserve
components.54
c. Involuntary Active Duty (IAD)
IAD is used in support of military operations when the President or the Congress determines that
RC forces are required to augment the AC. IAD is funded by the AC.55
3. Military Technicians (Dual Status) (MT)56
Military Technicians are civilian employees who are required to maintain military membership in a
RC and who perform administration and training of that RC or maintenance and repair of supplies
or equipment issued to that RC. Military and civilian positions must be compatible. Though the
NG also has technicians, they are administered differently as discussed below.
E. Mobilization/Activation of Reserve Component and Calling Up the Militia
For major regional conflicts and national emergencies, access to RC units and individuals through
an order to AD without their consent is assumed. For lesser regional conflicts, domestic
emergencies, and other missions, where capabilities of the RC could be required, maximum
consideration is given to accessing volunteer RC units and individuals before seeking authority to
order member of the RC to active duty without their consent.57
It is important to distinguish the ARNGUS and ANGUS from the Air National Guard (ANG) and
the Army National Guard (ARNG). Unlike the ARNGUS and ANGUS, which are RC
52
Id.
53
32 U.S.C. § 502(f)(2).
54
10 U.S.C. § 101(d)(6)(A). Other statutes include 10 U.S.C. §§ 10211, 10302, 12310, and 12402.
55 DoDI 1215.06, supra note 35, para. E.3.1.1.2.3; see also 10 U.S.C. §§ 12301, 12302, 12304, and 14 U.S.C. § 712.
56
10 U.S.C. § 10216.
57 U.S. DEP’T OF DEFENSE, DIR. 1235.10, ACTIVATION, MOBILIZATION, AND DEMOBILIZATION OF THE READY RESERVE,
para. 4.1. (26 Nov. 2008) [hereinafter DoDD 1235.10].
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organizations under the command and control of the President of the United States, the ANG and
ARNG train for their federal military missions according to the congressionally established
disciplines under Title 32, United Stated Code, under state control as members of their respective
states’ militia. ARNG/ANG members also take oaths to obey their respective governors and abide
by state law.
Although the terms “activation” and “mobilization” are sometimes used interchangeably to describe
the process that “federalizes” reservists, the terms have different meanings. Activation is an order
to active duty, for units and individuals, (other than for training) in the federal service pursuant to
statutory authority granted to the President, Congress, or the service secretaries.58 Reservists can be
“activated” involuntarily or voluntarily with their consent (Guardsmen also need the consent of their
respective governors). Mobilization is the process of bringing all national resources to a state of
readiness for war or national emergency; it includes activating the RC.59 Levels of mobilization
include selective mobilization, partial mobilization, full mobilization, and total mobilization.
Therefore it is more helpful to use the term “activate” when referring to placing a reservist on active
duty rather than using the more encompassing term “mobilize.” The following statutes provide
authority for activating reservists/calling up the militia.”60
1. Full Mobilization (10 U.S.C. A. § 12301(a))
A full mobilization occurs through the duration of a war or emergency (plus six months). This
section may only be invoked when there is a congressional declaration of national emergency or
war, or other authorization in law.
2. Partial Mobilization (10 U.S.C. A. § 12302(a))
A presidential declaration of national emergency or “when otherwise authorized by law” allows the
involuntary partial mobilization of up to 1,000,000 members of the Ready Reserve for up to 2 years.
Applies to units, and any member not assigned to a unit organized to serve as a unit.
3. Presidential Reserve Call-up (PRC) (10 U.S.C. A. § 12304)
Involuntary activation of 200,000 members for up to 270 days (these troops are excluded from
active duty end strength calculations) by the President. Such service must be for other than training
and may not exceed 270 days. It authorizes ordering members of the RC to active duty without
their consent, without declaration of war or national emergency, for operations other than domestic
disasters except those involving a use or threatened use of a weapon of mass destruction.
58 See generally id.; JOINT CHIEFS OF STAFF, JOINT PUB. 4-05, JOINT MOBILIZATION PLANNING (11 Jan. 2006).
59 DoDD 1235.10, supra note 57.
60 Occasionally older cases, regulations, and instructions will reference former versions of these statutes and it is
helpful to know the previous citations: In Title 10 of the U.S. Code, § 672(a) is now codified at § 12301(a); § 672(b) is
now codified at § 12301(b); § 672(d) is now codified at § 12301(d); § 673 is now codified at § 12302; § 673(b) is now
codified at § 12304; and § 3500 and § 8500 are now codified at § 12406.
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4. Invasions and Rebellions (10 U.S.C. A. § 12406)
If the United States or any U.S. state or territory is invaded, or when: invasion is threatened by a
foreign nation, there is a rebellion or danger of rebellion against the U.S. Government, or the
President is unable to execute U.S. laws without active forces, the President can call the National
Guard into federal service. Any orders for these purposes are to be issued through the governors of
the states or the DC commanding general.
5. Insurrection Act (10 U.S.C. A. § 331-335)
a.
10 U.S.C. A. § 331
If there is an insurrection in a state, the President, at request of state or legislature may call militia of
other states into federal service as well as use the armed forces to suppress the insurrection.
b.
10 U.S.C. A. § 332
Whenever the President considers that unlawful obstructions, combinations, or assemblages or
rebellion against authority of United States makes it impracticable to enforce the law of the United
States in any state or territory by judicial proceedings, the President may call into federal service
such of the militia of any state and use such of the armed forces to enforce the laws or suppress the
rebellion.
(Such authority was exercised in Arkansas in 1957; Mississippi in 1962; Alabama in
1963).
c.
10 U.S.C. A. § 333
The President can use the militia and/or the armed forces to suppress insurrection, domestic
violence, unlawful combination or conspiracy if: (a) it so hinders the execution of law of that State
and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it
opposes or obstructs the execution of laws or impedes the course of justice. In the event of the
deprivation of rights, the State is deemed to have denied its citizens equal protection of laws.
6.
15-Day Involuntary Federal Active Duty (10 U.S.C. A. § 12301(b))
The Service Secretaries may order “units and any member not assigned to a unit organized to serve
as a unit” to a period of duty not to exceed 15 days (with the consent of the governor or DC
commanding general for guardsmen). Reservists are ordered to active duty as units but may be
reassigned thereafter.
7. Voluntary Federal Active Duty (10 U.S.C. A. § 12301(d))
An individual can be ordered (by an authority designated by the Secretary concerned) to active duty
with the consent of the individual (and with the consent of the governor or DC commanding general
for guardsmen) for an unlimited period of time.
8. Medical Care (10 U.S.C. A. § 12301(h))
Reservists may be ordered to AD for medical care, evaluation, or to complete a health care study.
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F. United States Coast Guard61
Per 14 U.S.C. § 1, 14 U.S.C. § 2 and 10 U.S.C. § 101 (a)(4), the United States Coast Guard is
designated as both an armed force and a federal law enforcement agency. The Coast Guard is the
principal federal agency responsible for maritime safety, security, and stewardship. As such, the
Coast Guard protects vital economic and security interests of the United States including the safety
and security of the maritime public, our natural and economic resources, the global maritime
transportation system, and the integrity of our maritime borders. The Coast Guard has eleven
missions divided into two categories, homeland security and non-homeland security, pursuant to
section 888 of the Homeland Security Act of 2002, Pub. L. 107-296 (6 U.S.C. § 468).
The homeland security missions are: (1) port, waterways and coastal security; drug interdiction;
migrant interdiction; defense readiness; and other law enforcement.
The non-homeland security missions include: marine safety; search and rescue; aids to navigation;
living marine resources; marine environmental protection; and ice operations.
Due to the multi-mission nature of the Coast Guard, Coast Guardsmen performing a non-homeland
security mission one moment, such as a trained and qualified marine safety inspector, could end up
performing a homeland security mission by interdicting illegal drugs the next moment.
The Coast Guard operates as part of the Department of Homeland Security. See 6 U.S.C. § 468.
Presently, approximately 38,000 men and women serve on active duty in the Coast Guard. 62
However, upon a declaration of war if Congress so directs in the declaration or when directed by the
President, the Coast Guard will operate as a service in the Navy. When operating as a service in the
Navy, the Coast Guard is subject to the orders of the Secretary of the Navy who may order changes
in Coast Guard operations to render them uniform with Navy operations. See 14 U.S.C. § 3. The
Coast Guard operated as a component of the Navy in World War I and World War II. Both the
Coast Guard and Navy are authorized to exchange resources and information at all times. The
Coast Guard receives equipment, armament, and training support from the Navy while providing
the Navy vessels, personnel, and equipment during contingencies and special naval operations.
Occasionally, some are confused about the Coast Guard’s authority to operate as an armed force.
Some observers have assumed that the Coast Guard must switch from a Title 14 status to a Title 10
status when acting as an armed force of the United States, perhaps believing it is like the National
Guard which changes from a state to a federal status depending on the mission. The Coast Guard
is at all times an “armed force” and “law enforcement agency” under Title 10 and Title 14. Put
another way, the Coast Guard does not switch “hats” between a military service/armed force and a
law enforcement agency—it performs both functions at all times.
61 Additional details about the history, unique missions, capabilities, and authorities of the Coast Guard are available in
Coast Guard Publication 1 (1 May 2009) available at the Maritime Operations web portal at the CLAMO website:
62 See U.S. COAST GUARD, Careers, http://www.uscg.mil/top/careers.asp (last visited Jul. 6, 2011) [hereinafter CG
Stats].
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As discussed earlier in this chapter, the Coast Guard has a reserve component. Presently,
approximately 8,000 Coast Guardsmen comprise the Coast Guard Reserve.63
Finally, the Coast Guard Auxiliary is a civilian volunteer service, but one that is specifically
authorized to “assist the Coast Guard, as authorized by the Commandant, in performing any Coast
Guard function, power, duty, role, mission, or operation authorized by law. See 14 U.S.C. § 822.
The Coast Guard Auxiliary assists both the active duty and the reserve components of the Coast
Guard in search and rescue assistance missions, environmental protection, marine safety, boater
safety education programs, and patrolling regatta and marine events.
Unique to the Coast Guard as an armed force, the Coast Guard is authorized by 14 U.S.C. § 141 to
use its personnel and equipment to assist any federal or state agency, to include DoD, when the
Coast Guard assistance sought is assistance that the Coast Guard personnel or facilities are
especially qualified to provide. Thus, Coast Guard units can be attached to DoD without the entire
Coast Guard being fully absorbed into the Navy under 14 U.S.C. § 3. In addition, 14 U.S.C. § 141
allows the Coast Guard to accept the assistance of any federal agency in the performance of any
Coast Guard function. This unique assistance authority makes the Coast Guard a powerful partner
in domestic contingency and other operations.
Because the Coast Guard is at all times a federal law enforcement agency and an armed force of the
United States, the Coast Guard has legal authority to conduct both Maritime Homeland Security
Law Enforcement (MHS) and Maritime Homeland Defense (MHD) depending on the
circumstances. Coast Guard units conducting maritime homeland security operations could find
themselves in a maritime homeland defense situation in a matter of minutes. The ability to handle
evolving scenarios as a federal law enforcement agency or an armed force is a unique characteristic
of the Coast Guard.
MHS is a federal law enforcement mission carried out by domestic law enforcement authorities,
including the Coast Guard.64 The mission is to protect the U.S. Maritime Domain and the U.S.
Marine Transportation System (MTS) and deny their use and exploitation by terrorists as a means
for attacks on U.S. territory, population, and critical infrastructure. As the lead federal agency for
MHS, the Coast Guard engages in maritime surveillance, reconnaissance, tracking, and interdiction
of threats to the security of the United States, as well as responding to the consequences of such
threats. Armed and uniformed Coast Guard law enforcement operations ashore are limited to
activities at waterfront facilities, public and commercial structures adjacent to the marine
environment, and, to the extent necessary to protect life and property, in transit ashore between such
facilities or structures.
In the event of a threat or incident requiring the exercise of national self-defense, DoD, acting
through U.S. Northern Command (USNORTHCOM) and supported by other agencies, would take
the lead in carrying out MHD operations, which involves the protection of U.S. territory, domestic
population, and critical infrastructure.
63 See CG Stats, supra note 62.
64 The Coast Guard is required to perform MHS law enforcement duties in support of the Ports and Waterways Safety
Act, the Espionage Act of 1917, the Magnuson Act of 1950, 33 C.F.R. Part 6, Homeland Security Presidential Directive
5 (HSPD-5), the National Security Strategy of the United States of America, the National Strategy for Homeland
Security, and The Coast Guard Maritime Strategy for Homeland Security.
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G. National Guard of the Several States
1. Overview
Each state code and or constitution authorizes its state or territory to have a militia. The definition
of “militia” in the United States Code includes both the organized and the unorganized militia; the
National Guard, along with the Naval Militia, is considered the organized militia.65 In the
Constitution, POTUS is the Commander in Chief of the militia only when it is “called into actual
service of the United States.”66 This section discusses the National Guard when it is under the
control of the governor, i.e., Title 32 status and State Active Duty (SAD). In a state status,
Guardsmen are subject to the military code of the respective state to which they belong.67
Each of the states and territories has an Adjutant General (TAG) or equivalent (e.g., Commanding
General for District of Columbia), a state officer whose rank may or may not be federally
recognized.68 The TAG/governor (depending on state law) is the Commander in Chief of the state
military unless it is federalized; at which time that TAG loses command and control.69
(POTUS is
Commander in Chief of the District of Columbia.) In the fifty states, District of Columbia, Virgin
Islands, and Puerto Rico, there are 88 Air Force wings in the ANG and 8 divisions, 15 enhanced
brigades, and 6 other major units in the ARNG throughout the states.
Currently, each state has a joint headquarters, State JFHQs, to provide command and control to its
ANG and ARNG; this concept was approved by Chief, NGB in October 2003. The State JFHQs
currently operate as provisional organizations pursuant to NGB Memorandum 10-5/38-101 until the
Joint Staff approval cycle has been completed approving the Joint Table of Distribution. The joint
HQs will replace the STARCs and ANG Headquarters in each state and any other joint headquarters
currently existing in the states.
2. Title 32 Status
When performing duty pursuant to Title 32, U.S. Code, a National Guard member is under the
command and control of the state but paid with federal funds. The majority of ARNG Soldiers are
traditional Guard personnel, sometimes referred to as “M-Day (Mobilization Day) Guardsmen”
because of the weekend drills of inactive duty training (IDT) and annual training (AT). Each year,
such NG Soldiers are required to perform 48 IDT drills and 15 days of AT. The operations of NG
units in Title 32 status are controlled by the individual states, supplemented by funding from federal
sources pursuant to federal regulations.70 Federal recognition of NG units and associated funding is
conditioned upon the unit continuing to meet applicable federal standards.71 ARNG and ANG
65
10 U.S.C. § 311.
66 U.S. CONST. art. II, § 2, cl. 1.
67 Pursuant to 32 U.S.C. § 327, the President or active duty commanders may convene state courts-martial. Moreover,
in 2003, Congress ordered the preparation of a model state code of military justice.
68 The U.S. President is the Commander in Chief of the National Guard of the District of Columbia. See Exec. Order
No. 11485 (3 Oct. 2001) and Title 39, District of Columbia Code.
69
32 U.S.C. § 325.
70 Illinois National Guard v. Federal Labor Relations Authority, 854 F.2d 1396, 1398 (D.C. Cir. 1988).
71
32 U.S.C. §§ 107-109.
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Soldiers performing duty in Title 32 status have Federal Tort Claims Act (FTCA) coverage as long
as they are acting within the scope of their federal employment.
Although there are many instances of the National Guard performing operations in a Title 32 status
(i.e., airport security duty, counter-drug program, WMD-CST teams), it is the current position of
OSD that such operations are unauthorized unless there is specific congressional or presidential
authority for such operations. Nevertheless, the performance of many HLS missions in a Title 32
status, instead of a Title 10 status, may be preferable because the Posse Comitatus Act (PCA) does
not apply; National Guard troops can respond more rapidly because they are in the local area;
National Guard troops have more situational awareness in domestic areas than their active duty
counterparts; and Title 10 activations result in National Guard loss of control over a state manpower
pool depriving them of flexibility. Furthermore, HLS missions can enhance National Guard
training by “training by doing.” The concept of allowing Title 32 operations has continually been
suggested by studies such as the Hart-Rudman Commission and the recent Defense Science Board
just to name a few. Moreover, various legislative proposals have been advanced to modify Title
32.72
Thus, NG personnel in a Title 32 status should not provide military support to civil authorities
(MSCA), such as disaster assistance, unless such missions receive funding and authority.73 National
Guard members should be in a State Active Duty (SAD) status (funded by the state) to perform
those functions. If TAGs approve such services to governors when NG troops are in a Title 32
status, the state may be required to reimburse the federal government for the inappropriate use of
NG pay and allowances for these personnel.
3. State Active Duty
Only the National Guard has a status entitled State Active Duty (SAD); such duty is performed
pursuant to state constitutions and statutes.74 It has no relationship to USAR/USAFR or Active
Duty (AD). In a SAD status, NG personnel are controlled by their individual state, subject to the
command and control of the respective governor and Adjutant General. National Guard units
perform duties authorized by state law, such as responding to emergencies or natural disasters
(floods, hurricanes, fires), and are paid with state funds. Because National Guard units are subject
to state control unless “federalized,” they generally respond to local emergencies, such as civil
disturbances, before active forces. For these types of operations, the governor will ordinarily
proclaim an emergency and order a unit or units to SAD. Specific legislation governs the use of RC
forces (NG and USAR) in domestic emergencies.75 DoD funds are not obligated for any personnel
or units performing SAD. However, if the President declares an emergency after a request by a
72 For example, H.R. 2073/S. 215, called “Guaranteeing a United and Resolute Defense Act of 2003,” sets forth a
mechanism that allows centralized federal funding and decentralized execution of National Guard homeland security
missions, with state command and control by funding HLS missions by the guard that are performed pursuant to state
plans similar to those submitted pursuant to 32 U.S.C. § 112 for the counter-drug program.
73 Any “duty,” other than that authorized by specific statutes, that is performed in a Title 32 status should constitute
some sort of training because of fiscal considerations. 31 U.S.C. § 1301.
74 For example, Arizona Constitution, art. 5, sec. 3; A.R.S. § 26-101 (governor as commander-in-chief of state military
forces when not in federal service), A.R.S. § 26-121 (composition of militia); A.R.S. § 26-172 (mobilization of militia
for emergencies and when necessary to protect life and property).
75
10 U.S.C. § 12301.
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governor under the Stafford Act, the state military department may be reimbursed through FEMA
for the SAD pay and allowances it has expended.76
4. ANG/ARNG Personnel Categories
On any given day in a particular state, members of the National Guard are in different personnel
categories: state employees, federal technicians, AGRs, ADSW, and part-time traditional guard
members.
a. AGRs
Every guard unit has AGRs, full-time National Guard members under 32 U.S.C. 502. 10 U.S.C. A.
§ 101(d)(6)(a) defines “active Guard and Reserve duty” as “active duty” or “full-time National
Guard duty” for a period of 180 consecutive days or more for the purpose of “organizing,
administering, recruiting, instructing, or training the reserve components.”77 AGRs receive
essentially the same benefits and pay as their active duty counterparts of the same rank. Although
they are required to perform drills with their units, they do not receive additional pay to do so. They
can also be “activated” and placed into a Title 10 status.78
b. Title 5 NG Federal Technicians
Every guard unit has Title 5 federal technicians; excepted NG military technicians are unique to the
NG.79 Technicians are federal civilian employees under the exclusive control of a state official, the
Adjutant General who hires, fires, and supervises them. NG technicians must maintain three
affiliations. In terms of their employment pursuant to 32 U.S.C. § 709, they are military technicians
(“excepted service” civilian employees) as defined in 10 U.S.C. § 10216 during the normal
workweek.80 Second, these military technicians must also maintain membership in a state NG.
Third, they must also maintain federal recognition in the grade for their position as members of
ARNGUS/ANGUS.81 Loss of NG membership terminates the full-time technician position.82
In some states, NG technicians are members of collective bargaining agreements. Their civilian job
positions are tied to their military rank and they wear military uniforms to work. When they
perform drills and other training, they are in a Title 32 status just like traditional guard members.
These members are also subject to “activation” into a Title 10 status and can also be called to
perform “state active duty.”
76
42 U.S.C. § 5121.
77 See also U.S. DEP’T OF ARMY, REG. 135-18, THE ACTIVE GUARD RESERVE (AGR) PROGRAM (10 Dec. 2003);
NATIONAL GUARD BUREAU, REG. 600-5, THE ACTIVE GUARD/RESERVE PROGRAM, TITLE 32 FULL-TIME NATIONAL
GUARD DUTY (FTNGD) (30 Feb. 1990); and AIR FORCE NATIONAL GUARD, INSTR. 36-101, THE ACTIVE
GUARD/RESERVE PROGRAM (3 May 2002).
78 For a good discussion of FTNGD status, see United States ex rel. Karr v. Castle, 746 F. Supp. 1231, 1237 (Del.
1990).
79
32 U.S.C § 709.
80 See Lopez v. Louisiana National Guard, 733 F. Supp. 1059, 1065 (E.D. La. 1990).
81
10 U.S.C. § 101(c)(3), (5).
82 NATIONAL GUARD BUREAU, REG. 635-100, TERMINATION OF APPOINTMENT AND WITHDRAWAL OF FEDERAL
RECOGNITION, ch. 6 (8 Sep. 1978).
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In their civilian “excepted service” capacity, NG technicians are responsible for the maintenance of
equipment and training and maintain employment in state headquarters, air defense, civil defense,
and aircraft operations and are covered under the Federal Tort Claims Act. In their civilian
capacity, their participation in domestic support operations is limited because any participation must
fall within the position description for the particular job the NG technician performs. Otherwise,
the NG technician will be placed in a leave status and placed on SAD orders.
However, NG technicians also have the responsibility to train and perform general military duties
with their unit and to be available to enter active federal service when their units are activated. In
many cases, state headquarters principal staff officers also serve as technicians. Because their
technician and NG roles are very similar, these staff officers play extremely important leadership
roles in domestic support operations in their non-technician status.83
c. ADOS84
If funding is available, NG units can place National Guardsmen (whether traditional or federal
technicians) on extended duty orders (as little as a day to as much as a year) to perform particular
functions. These orders should not be confused with the requirements of Guardsmen to perform
“training” (usually 15 days per year). Most Guardsmen that participate in the counter-drug program
are on ADOS orders. These members are also subject to “activation” into a Title 10 status and can
also be called to perform “state active duty.”
d. State Civilian Employees
In addition to military technicians, the state NG units employ civilians pursuant to “Master
Cooperative” agreements. These personnel are authorized to use vehicles, property, and equipment
provided to the ARNG by the federal government to accomplish their duties under the master
cooperative agreement. Many guard units employ state employees in security and in civil
engineering. These employees may or may not be members of the National Guard of that state; in
other words, membership in the National Guard is not a condition of their employment as it is with
Title 5 federal technicians discussed above. State employment should never be confused with SAD.
e.
“Traditional” Guard Members
The majority of Guardsmen at a unit are “traditional” members. In other words, they hold civilian
jobs in the community and are only in a military status when performing drills or other training
(usually 15 days per year) or military duty. These members are subject to “activation” into a Title
10 status and can also be called to perform “state active duty.”
As noted above, each member of the National Guard can be placed into several different personnel
categories (without being in more than one at a time). These categories are important when
determining, among other things, benefits, discipline, and immunities.
83
32 U.S.C. § 709.
84 Active duty for operational support - previously described in Section D.2.a., above.
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5. Unique HLS/HLD missions
a. Weapons of Mass Destruction (WMD)/Civil Support Teams (CST)85
Pursuant to 10 U.S.C. § 12310(c), these National Guard teams support emergency preparedness
programs to prepare for or to respond to any emergency involving the use of a weapon of mass
destruction. These DoD certified teams are state controlled because they perform duty pursuant to
32 U.S.C. § 502(f) although their missions are congressionally mandated. The teams are trained to
support (they are not first responders) civil authorities at a CBRNE site by identifying the
agents/substances, advising on responses, and otherwise assisting with requests for state support.
Currently there are 32 teams, with 23 more pending identification and certification (in March 2004,
pursuant to the National Defense Authorization Act for FY04, DoD identified 12 more states to
receive these teams). By statute, the WMD/CST teams may not operate OCONUS although a study
may be initiated to determine the benefits and drawbacks of OCONUS missions.
b. National Guard Enhanced Response Force Package (NG-CERFP)
Currently twelve states are establishing regional task forces called NG-CERFP that will use existing
guard units and traditional (M-day) Soldiers to provide governors or a combatant commander with
the capabilities to locate and extract victims from a contaminated area, patient and casualty
decontamination, and medical triage and treatment.86 These response forces will provide support to
civilian first responders or military authorities within the first 6 to 72 hours after a CBRNE event.
These task forces are currently located in each FEMA region and will operate in SAD, Title 32 and
Title 10 statuses. It is important for the judge advocate to know the deployed status of these forces
in order to provide legal advice. For more detailed discussion areas, see below.
6. Miscellaneous Areas of Caution
a. Command and Control
Pursuant to the Constitution, the militia is under the exclusive command and control of the governor
unless and until “called into federal service” or otherwise federalized as a Reserve Component.
Thus, federal status military officers cannot exercise command and control over state status
National Guard members nor can state status National Guard members exercise command and
control over federal troops.87 Two different statutes however, allow, under strictly prescribed
circumstances, one officer to exercise command and control over both federal and state status troops
although the authority is exercised in a mutually exclusive manner.88
85 Originally these teams were known as Rapid Assessment and Detection teams (RAID). NDAA FY99. The May
1997 Quadrennial Defense Review had recommended assigning chemical and biological counter-terrorism missions to
the National Guard.
86 The states establishing NG-CERFP’s are Hawaii, Washington, California, Colorado, Texas, Missouri, Illinois,
Florida, West Virginia, Pennsylvania, New York and Massachusetts.
87 See also Perpich v. Department of Defense, 496 U.S. 334, 348 (1990).
88 Though not true military “command and control,” coordinating authority has been used by the USAF to allow a
federal status officer to control federal and state forces. The concept works because one commander tells his forces to
obey the orders of the other commander or risk discipline. The concept has been used while fighting wildfires and it has
recently been accepted as Air Force doctrine as a method of promoting “unity of effort between Active, federalized Air
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The first statue, 10 U.S.C. § 315, allows regular members of the Army and Air Force to be detailed
to duty with the National Guard and with the permission of the President and the consent of the
governor, to accept a state commission.89 Although it has also been argued that 32 U.S.C. § 104(d)
allows the President to detail Title 10 Guardsmen or Regular Air Force officers to command Title
32 troops if the President details them, this detailing would not give the officer the ability to enforce
his own orders unless he was also commissioned in that state’s national guard.90
The second statutory basis is 32 U.S.C. § 325 as amended by the FY04 National Defense
Authorization Act which allows a National Guard officer to serve in both a federal and state status
while serving on active duty in command of a National Guard unit if the President authorizes such
service in both duty statuses and the governor of his State or Territory or Puerto Rico, or the
commanding general of the District of Columbia National Guard, as the case may be, consents to
such service in both duty statuses. This command option provides unity of command and effort and
facilitates the maintenance of a common operating picture for both the federal and state military
chains of command.
A request to implement 32 U.S.C. § 325 could come from either DoD or the TAG of a particular
state. Required implementing documents would be the Presidential authorization and the
Gubernatorial consent to use 32 U.S.C. § 325, and a Memorandum of Agreement (MOA) between
the two mutually exclusive federal and state military commands outlining the responsibilities and
authority of the dual status commander.91 While the dual status commander may receive orders
from two chains of command, those chains of command must recognize and respect that the dual
status commander exercises all authority in a completely mutually exclusive manner, i.e., either in a
federal or state status but never in both statuses at the same time. In a state status, this dual status
commander takes orders from the governor through the Adjutant General of the State and may issue
orders to National Guard forces serving in a state status. As a federal officer activated under Title
10, the dual status commander takes orders from the President or those federal officers the President
and Secretary of Defense have ordered to act on their behalf. The dual status commander, acting
pursuant to his/her federal authority may issue orders only to federal forces.
National Guard, Reserve, civilian, contract and Auxiliary Air Force personnel operating under Title 10 U.S. Code, and
non-federalized Air National Guard forces operating under Title 32 U.S. Code or state active duty.” It must be noted
that others contend that coordinating authority cannot be used during operations but only for planning, referencing the
definition of coordinating authority in JP 1- 02, supra note 15. Many contend that a state status officer cannot use
coordinating authority to supervise federal troops because of federal supremacy.
89 A legal opinion of the Office of the Judge Advocate General of the Air Force, OpJAGAF 1998/20, 19 Feb. 1998,
notes that state law will determine if a Title 10 officer who accepts such a commission may be placed in command of a
non-federalized unit and notes that this would not be necessary for Title 10 Guardsmen in their own state. OpJAGAF
1998/20, 19 Feb 1998, also states that active duty officers, or guard officers in a Title 10 status, placed in command of
non-federalized Guard units will be subject to “two simultaneous chains of command,” a “situation that is neither
legally precluded nor unusual.”
90
32 U.S.C. § 104(d) does not allow such an action if it would “displace” a “commanding officer of a unit organized
wholly with a state or territory.” OpJAGAF 1998/20, 19 Feb. 1998, opines that there would not be a displacement if the
governor, or other state authority, of the affected state concurred with the detailing of the Regular Air Force officer.
91 For example, the Utah Governor and CDRUSJFCOM executed an MOA for the Utah Olympics in 2002 (although
the command relationship was not pursuant to 32 U.S.C. § 325).
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b. State law
State law provides the legal basis for the National Guard of each state and territorial entity.
Moreover, state law provides the authority to perform missions, the basis for pay and benefits, rules
for the use of force, liability and immunity rules, and military justice, just to name a few areas.
Duty performed in a Title 32 status must also comply with federal laws and policies. Personnel in a
Title 32 status also receive protections such as the Federal Tort Claims Act and other federal
benefits.92 However, once a state has passed the Emergency Management Assistance Compact
(EMAC), discussed below, state law is modified in conformity with EMAC, so missions conducted
pursuant to its guidance are “exempted” from any contradictory state law provisions. Moreover,
because Congress consented to EMAC, this compact is now federal law.93
However, matters become more complicated when National Guard personnel cross state borders in
a state status. It is then important to remember to examine the law of both the “originating state”
and “receiving state.” For example, some state codes of military justice apply even when
Guardsmen are performing duty in another state.94 Moreover, state law may dictate if and when
non-federalized guard units may enter or leave a state for duty. For example, some states do not
allow armed guard units to enter their state without permission from the governor or legislature.95
Some states have specific authority that allows their militias to leave the state to perform duty.96
A very important issue to consider is that of professional licensing. Military health professionals in
a Title 10 status (physicians, dentists, clinical psychologists, nurses or others providing direct
patient care), properly licensed pursuant to 10 U.SC. § 1094, can practice in any DoD facility, any
civilian facility affiliated with DoD, or “any other location authorized by the Secretary of Defense”
to include practice in a state, DC, or commonwealth, territory, or possession of the United States
regardless of where actually licensed.97 Arguably this directive also applies to Guardsmen who are
in a Title 32 status. However, Guardsmen in a Title 32 status must also be acting within the scope
of their employment to receive FTCA protections. Thus, an analysis of their authority to
accomplish assigned tasks or duty is necessary. For example, federal law and directives allow Title
10 personnel to provide medical treatment to civilians (not otherwise entitled to military medical
care) during emergency situations.98 However, the Stafford Act does not provide that same
authority to National Guardsmen in a state status.99 Thus it is unclear if Title 32 Guardsmen would
receive FTCA coverage when treating civilians not otherwise entitled to military medical care.
Moreover, if, as discussed earlier, National Guard personnel cannot perform operations in a Title 32
status, it is possible that such “operational” activities will not be within the scope of employment.
92
28 U.S.C. § 2671. Title 32 Guardsmen are also provided limited administrative remedies under the National Guard
Claims Act, 32 U.S.C. § 715.
93 A congressionally sanctioned interstate compact is a federal law subject to federal construction. New York v. Hill,
528 U.S. 110, 111 (2000).
94 See e.g., 44 OKL. ST. § 229.
95 See e.g., KY CONST. § 225; MON. CONST., art. II, § 33; IDAHO CODE § 46-110; KAN. STAT.ANN. § 48-203.
96 See e.g., CONN. GEN. STAT. § 27-16; MISS. CODE ANN. § 33-7-7; NY CLS MIL § 22.
97 DoDD 6025.13 MEDICAL QUALITY ASSURANCE (MQA) IN THE MILITARY HEALTH SYSTEM (MHS) (4 May 2004).
98 E.g., 42 U.S.C. § 5121 et seq.
99 Although it would be within the scope of employment to provide military medical care to those entitled to such care.
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Furthermore, a medical professional’s ability to practice medicine is based upon state authority.
Because SAD military members are not “federal employees” under the FTCA, FTCA is not
applicable to torts committed in this status.
c. Emergency Management Assistance Compact (EMAC)
This compact, which has become law in every state and territory, establishes immunities,
authorities, and liabilities for missions executed under its authority. It allows the states to rely upon
each other in responding to, among other things, emergencies such as man-made or natural
disasters, insurgencies, or enemy attack. States can obtain reimbursement for support under this
compact. Although Article VI of EMAC states that parties agree to recognize the licenses,
certificates, or other permits issued by any other party to the compact for “professional, mechanical,
or other skills,” some opine that this section does not extend to the authority to practice medicine
because the medical credentialing process is not a license or permit.
Article VIII of this compact states “Nothing in this compact shall authorize or permit the use of
military force by the National Guard of a state at any place outside that state in any emergency for
which the President is authorized by law to call into federal service the militia, or for any purpose
for which the use of the Army or the Air Force would, in the absence of express statutory
authorization, be prohibited under 18 U.S.C. sec. 1385.” Some read this provision as prohibiting
the use of armed Guardsmen across state lines for EMAC missions. Others have opined that EMAC
does not prohibit such activity, it merely does not “authorize” it within the scope of the compact and
such authority would have to come through another agreement.
d.
“Hip-Pocket” Activation
Pursuant to 10 U.S.C. § 12301, 1st Air Force (a numbered Air Force in Air Combat Command)
developed a process to instantaneously “federalize” Air National Guard (ANG) members who, upon
the occurrence of a specified event, are called upon to perform North American Aerospace Defense
Command (NORAD) missions. This process automatically converts consenting guard members
into a Title 10 status upon the occurrence of a “triggering” event known in 1st AF as an “air
sovereignty event.” On 11 June 2003, Secretary Roche delegated the authority “to order into
federal service . . . those members of the Air National Guard who have volunteered to perform
federal active service in furtherance of the federal mission” to the Chief of Staff of the Air Force,
who has the authority to re-delegate this authority to a MAJCOM Commander who can also re-
delegate his authority.100 This “hip pocket” process is now used for other Air Force missions. This
process has been examined as a model for some Army missions, but at present is not applicable to
any Army missions.
e. Rules for the Use of Force (RUF)
State law will govern the rules for the use of force for National Guardsmen in a state status. Thus
state law must be followed when the rules for the use of force are drafted. In some states, National
Guard forces have the same authority as peace officers, meaning that certain National Guard forces
100
10 U.S.C. § 12301(d); Memorandum: Secretary of Air Force Delegation of Air National Guard Re-Call Authority,
dated 11 June 2003; DoDD 1235.10, supra note 57.
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in their home state may follow RUF established for peace officers within the state. A more detailed
discussion of the RUF may be found in Chapters 11 and 12.
H. Civil Air Patrol (CAP)
The Civil Air Patrol, a volunteer organization, is a federally chartered nonprofit corporation under
36 U.S.C. § 40301. It also functions as an auxiliary of the USAF in accordance with 10 U.S.C. §
9442.101 Although the CAP is not a military organization, as the USAF auxiliary it performs non
combat missions on behalf of DoD pursuant to statute and a Cooperative Agreement. The USAF
provides policy and oversight of the CAP in its auxiliary status and can also provide personnel,
logistical, and financial support and assistance. CAP missions are limited by internal and FAA
regulations as well as by those statutes that restrict activities of military organizations (e.g. PCA).
Missions accomplished by CAP in its auxiliary role normally include disaster relief, search and
rescue and counter-drug, although changes to statutes, doctrine and policy are contemplated to
better incorporate the CAP into the USNORTHCOM MACA force structure and thereby allow the
CAP to become more active in a broader range of homeland security missions.
The CAP is organized into eight geographical regions and performs three primary programs:
Emergency Services (assisting federal, state, and local agencies), aerospace education, and cadet
education. Although the USAF has overall responsibility for the CAP when it performs search and
rescue missions, the USA provides oversight for disaster relief missions.
Civil Air Patrol-United States Air Force (CAP-USAF) is located at Maxwell AFB in Montgomery,
Alabama; an Air Force JA provides legal support to the Commander of CAP-USAF.
I.
Judge Advocates
1. National Guard Judge Advocates
The majority of the fifty-four National Guards have a single, full-time judge advocate, normally an
AGR (Title 32) judge advocate, who may be either an ANG or ARNG judge advocate. The primary
mission of the AGR judge advocate is to advise the TAG and, usually the USPFO. Both the Army
and Air Headquarters in each state usually have a part-time headquarters judge advocate, although
the creation of the new JFHQ-S in each state may change these assignments.
ARNG and ANG legal personnel support both state and federal missions. Approximately fifty per
cent of the ARNG judge advocates are assigned to SJA sections in combat support and combat
service support units (CS/CSS). The remaining ARNG judge advocates are usually assigned to the
state or territory headquarters. Other than the ANG HQ judge advocate, ANG judge advocates are
located at the wing level in the state (usually two judge advocates and two paralegals per wing).
ARNG and ANG judge advocates typically possess a broad range of experience and expertise, both
military and civilian, and they can serve as effective liaisons with local and state governments
because of their extensive local community contacts. The senior judge advocate for the ARNG is
usually the POC for purposes of coordinating training and preparation for natural disasters, civil
101 See also U.S. DEP’T OF AIR FORCE, INSTR. 10-2701, ORGANIZATION AND FUNCTION OF THE CIVIL AIR PATROL (29
Jul. 2005, with Chg. 1, 29 Sep. 2006)); U.S. DEP’T OF AIR FORCE, INSTR. 10-2702, BOARD OF GOVERNORS OF THE CIVIL
AIR PATROL (27 Feb. 2001), U.S. DEP’T OF AIR FORCE, PD 10-27, Civil Air Patrol (27 Feb. 2001).
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disturbance, civilian assistance, and counterdrug missions within the respective state/territorial
jurisdiction. The SJA of the ARNG combat or CS/CSS unit is the POC for legal training for the
federal training/mobilization mission.
As noted previously, each of the fifty states, Guam, Puerto Rico, the Virgin Islands, and the District
of Columbia, have their own distinct, independently commanded NG. Thus, the state judge
advocate roles and missions will vary. Most states require their judge advocates to be a member of
that state’s bar.
2. U.S. Army Reserve Judge Advocates
Army Reserve judge advocates are either embedded in USAR Table of Organization and Equipment
(TOE) units or assigned to Judge Advocate General Service Organizations (JAGSOs). Unit judge
advocates train to mobilize with their units and provide legal advice to the commander. USAR
judge advocates are also found in several USAR Table of Distribution and Allowance (TDA)
organizations such as the ten Regional Readiness Commands (RRCs). The mission of these judge
advocates is to perform the traditional function of providing legal support to their respective
command.
JAGSOs are legal units that provide legal support to reserve personnel not otherwise provided the
service or backfill for CONUS Army installations. One type of JAGSO, the Legal Support
Organization, provides command and control over subordinate Legal Service Teams (LST) that
provide legal support services. Legal Services Teams, organized on the basis of one Legal Service
Team (LST) per 7,000 Soldiers, are functionally divided into three sections: the command opinions
section, the client services section, and the litigation section. Several LSOs have primary missions
to deploy outside the continental United States to provide legal support services in a particular
geographical area. These LSOs are usually affiliated with a particular AC unit, and develop a
repetitive training relationship. Other LSOs are designated as Mobilization Support Organizations
(MSOs). MSOs become part of the CONUS support base and provide mobilization legal support at
the Mobilization Stations.
The Army Reserve also has IMAs/DIMAs that are assigned to specific Army organizations that
augment legal services of that organization’s legal office. Army Reserve AGR judge advocates are
on indefinite active duty status and assigned to various Joint, Active Army and USAR
organizations.102 In USAR organizations, these judge advocates are usually responsible for day-to
day legal affairs. However, in other organizations they augment the active duty judge advocate
office and coordinate USAR support. Although the judge advocate’s primary mission is to provide
full-time legal support and USAR expertise, they also train, recruit, administer, and organize USAR
forces assigned to their units.
3. U.S. Air Force Reserve Judge Advocates
USAFR judge advocates serve in either unit positions (Category A) or IMA positions (Category B).
The Air Force JAG program is now a “Corps” rather than a department. As in the Army Reserves,
there are USAFR AGR judge advocates assigned to Air Force and Air Force Reserve organizations
to augment various missions.
102 NATIONAL GUARD BUREAU, REG. 600-10, ARNG TOUR PROGRAM (24 Feb. 1983).
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The judge advocate reinforcement designee program is available for Guard and Reserve officers.
These judge advocates are normally attached to the closest Air Force legal office to their homes and
earn retirement points by performing non-pay IDT or completing ECI courses.
4. U.S. Naval Reserve Judge Advocates
Currently, there are over 440 Officer and 180 Enlisted billets in the United States Naval Reserve
law program. Approximately two thirds of these billets are in 41 “Program 36” units directly
supporting the Office of the Judge Advocate General Headquarters, Naval Legal Service Offices,
Trial Service Offices, Trial Judiciary, Navy-Marine Corps Court of Criminal Appeals, and Naval
Justice School. The remaining billets, primarily staff JA or legal advisor billets, are in units outside
of Program 36 or are independent duty assignments. These billets support various active
component commands, including the major combatant commanders, other major shore and fleet
commands, and Naval Construction (Seabee) units. In addition, there are over 100 Officers and
Enlisted personnel drilling in Voluntary Training Units for retirement points only.
5. U.S. Marine Reserve Legal Specialists
The Marine Corps does not have a JAG Corps although the Marines are in the process of creating
an over-arching judge advocate administrative organization. All legal specialists are line officers
and fill billets that require a legal specialty as well as non-specialty billets. Commands own the
legally oriented billets.
6. U.S. Coast Guard Reserve Judge Advocates and Yeoman
Like the Marine Corps, the Coast Guard does not have a JAG Corps. Accordingly, each Coast
Guard judge advocate is a line officer with a “legal specialty.” The Coast Guard maintains Reserve
judge advocates and Reserve yeomen. Each yeoman maintains qualifications as a legal technician
and a paralegal. Coast Guard Reserve judge advocates and yeoman are typically assigned to
support Coast Guard legal offices throughout the Coast Guard.
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CHAPTER 11
RULES FOR THE USE OF FORCE FOR FEDERAL FORCES
KEY REFERENCES:
•
U.S. CONST. art. II, § 1-3 (Executive, Commander in Chief, and Execution of the Laws
Clauses, respectively).
•
U.S. CONST. amend. IV.
•
U.S. CONST. amend. V.
•
U.S. CONST. amend. VIII.
•
10 U.S.C. §§ 331-335 - The Insurrection Act.
•
10 U.S.C. § 12301.
•
18 U.S.C. § 242.
•
18 U.S.C. § 1385 - Posse Comitatus Act.
•
50 U.S.C. § 2301 et seq. - Defense Against Weapons of Mass Destruction Act.
•
Pub. L. No. 105-277, Section 101(h), as amended by Pub. L. No. 106-58, Title VI, Section 623,
Sept. 29, 1999.
•
CJCSI 3121.01B - Standing Rules of Engagement/Standing Rules for the Use of Force for U.S.
Forces, June 13, 2005.
•
AR 190-14, Carrying of Firearms and the Use of Force for Law Enforcement and Security
Duties, March 12, 1993.
•
U.S. Department of Justice, Office of Investigative Agency Policies, Resolution 14, Concerning
the Use of Deadly Force, October 16, 1995.
•
FORSCOM Augmentation Forces to Designated AMC and ATEC Sites,
•
FORSCOM and USARC Force Protection OPORDs,
•
QRF/RRF RUF,
•
EXORD ISO Consequence Management Operations in New York City and Military District of
Washington,
•
CJCS CONPLAN 0500-98,
A.
Introduction
The Standing Rules for the Use of Force (SRUF) provide the operational guidance and establish
fundamental policies and procedures governing actions taken by DoD forces performing civil
support missions (e.g., military assistance to civil authorities and military support for civilian law
enforcement agencies) and routine Service functions (including AT/FP) within the United States
and its territories. It also applies to land-based homeland defense missions occurring within the
United States and its territories. The SRUF also apply to DoD forces, civilians, and contractors
performing law enforcement and security duties at all DoD installations worldwide, unless
otherwise directed by the Secretary of Defense. The SRUF supersede CJCSI 3121.02, RUF for
DoD Personnel Providing Support to Law Enforcement Agencies Conducting CD Operations in the
United States, the rules for the use of force in the DoD Civil Disturbance Plan (Garden Plot) and the
use of force guidance contained in DoD Directive 5210.56, Enclosure 2.
The SRUF apply to Title 10 forces performing missions both for homeland defense and defense
support to civil authorities. These rules do not apply to National Guard forces in either state active
duty or Title 32 status. For information concerning National Guard rules for the use of force (RUF),
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see Chapter 12, infra. Judge advocates should coordinate with their National Guard counterparts
when operating in a joint environment to confirm the RUF the National Guard is using.
Before beginning any discussion on the use of force in an operational setting, service members need
to understand the legal, policy, and practical limitations for the use of force. The use of force for
domestic mission accomplishment is constrained or limited by federal law and the Standing Rules
for the Use of Force.
While there are some very significant differences, the development, training, and application of the
RUF and the ROE for overseas contingency operations can be similar.1 The Standing Rules for the
Use of Force provide the template for training RUF for domestic operations. Development of
hypothetical scenarios will assist in posing the ultimate question of whether the service member
may use force, up to and/or including deadly force. Often in training scenarios, the solution is not
found in the applicable RUF but rather in the rules for when a service member can use force in self-
defense and identifying either a hostile act or demonstration of hostile intent. It is imperative to
ensure commanders, as well as the service members who execute the commander’s plans,
understand the potential limits on self-defense when operating as part of a unit. Unit commanders
always retain the inherent right and obligation to exercise unit self-defense in response to a hostile
act or demonstrated hostile intent. Unless otherwise directed by the unit commander, service
members may exercise individual self-defense in response to a hostile act or demonstrated hostile
intent. When individuals are assigned and acting as part of a unit, individual self-defense becomes
a subset of unit self-defense and the unit commander may limit individual self-defense by members
of the unit.2
Use of force practice is one of the few areas in which the legal competence of the judge advocates
can potentially have life or death consequences for service members and civilians. Therefore, it is
imperative that judge advocates understand and apply legal and practical considerations when
practicing in this area. This chapter will discuss the role of judge advocates in use of force, the
practical realities involved in use of force incidents that are often not included in legal references,
the legal standard for federal use of force, the existing Army policies on use of force, the potential
legal liability involved in use of force, as well as other issues. This chapter should provide the
reader with an introduction to use of force and its key legal references.
B. The Judge Advocate’s Role in the Use of Force
Judge advocates are called upon to practice domestic use of force law in routine legal duties as well
as in domestic operations. The most common of these situations arises when judge advocates
advise on force protection and installation law enforcement activities. Many judge advocates train
service members on domestic operational RUF or use of force policies for law enforcement and
security operations. Judge advocates advise units executing domestic operations, and will also
advise or review investigations into incidents involving the use of force by a service members.
Finally, judge advocates may be involved in civil or criminal proceedings for a use of force incident
1 For a comprehensive discussion on the development, training, and application of the ROE that can be applied to the
RUF, see CENTER FOR LAW AND MILITARY OPERATIONS, RULES OF ENGAGEMENT (ROE) HANDBOOK FOR JUDGE
ADVOCATES (2000).
2 See CJCSI 3121.01B at Enclosure L (U) - Standing Rules for the Use of Force for U.S. Forces (13 June 2005)
[hereinafter SRUF], para. 4.a.
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as a trial counsel, trial defense counsel, Special Assistant U.S. Attorney, or as an attorney assisting
in defensive federal litigation in his or her respective service.
In drafting or reviewing RUF, judge advocates have to understand both the substantive law that
governs Rules for the Use of Force, as well as the procedures necessary to modify the SRUF.
Efforts to either augment or restrict the current SRUF must follow precise staffing requirements,
and, in the case of augmentation, require advanced planning and should be initiated as soon as the
need is identified.3 In most cases, however, these RUF would already be staffed and implemented
by judge advocates at higher echelons.
Judge advocates performing all of these duties must know the controlling law for domestic use of
force. For operations in areas subject to U.S. jurisdiction, the appropriate constitutional law
standards as interpreted by the courts and the executive branch control. In addition, the policies or
RUF issued by higher headquarters further define the legal requirements for use of force. In order
to properly apply those policies or RUF, judge advocates must understand the underlying legal
standards.
RUF drafters involved in planning or executing a domestic operation should consider critical factors
that are similar to those involved in Rules of Engagement. These factors include the following.
• What are your command’s mission and your commander’s concept of the operation?
• What type of unit is involved, what weapons and equipment, if any, will they deploy with, and
what is the level of training for the domestic use of force with the assigned weapons?
• What threat could your command face?4
• What kind of interaction and exposure to the general public will your service members face?
• What training resources are available for pre-deployment RUF training?
• Does the training program properly address the issues involved with RUF or do training deficits
set the conditions for misapplication of the rules with the potential for significant legal
consequences for soldiers and the command?
• Does the mission being planned nest well with the SRUF or should the local commander initiate
a process to seek augmentation of the SRUF by submitting a request for a mission specific
RUF?5
3 See SRUF, supra note 2, para. 3.a.-3.b. and CJCSI 3121.01B at Enclosure P (U). The SRUF requires Combatant
Commanders desiring to augment the SRUF to staff such actions through the CJCS to the Secretary of Defense for
approval. Restrictions to the SRUF require notification although limited flexibility is provided for time critical
situations. Enclosure P provides the template for requests for mission specific SRUF.
4 Judge advocates should base their draft SRUF and legal guidance on the worst feasible scenario. For example, a
number of JAs have been assigned duties of advising on detention or migrant and refugee camp operations. In most
cases, no one expected the detainees to violently riot. Unfortunately, rioting often occurs in extended detention
operations. Structuring your SRUF assuming the detainees will passively comply will leave your security force without
adequate guidance on how to respond to the emergency situation they will face in a riot.
5 If such a need is identified, staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a
template. As this must be staffed to the Combatant Commander for staffing through the CJCS to the Secretary of
Defense for Approval, it is imperative that this action be initiated upon the identification of the need.
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C. Practical Realities of Use of Force Situations
Judge advocates need to understand practical aspects of deadly force confrontations in order to be
competent in use of force law. Understanding the law and policy of use of force is not enough.
Judge advocates must recognize that the real world does not allow for dispassionate, reflective, and
judicious decision making on whether to use force. Thus, judge advocates should consider a
number of critical factors: what capabilities and limitations do service members bring to a potential
deadly force confrontation; what should judge advocates know about potential attackers; and, what
physical reactions will affect service members during and after use of force incidents?
1. Capabilities and Limitations
What capabilities and limitations do most service members bring to a life or death confrontation
during a domestic operation? Let’s consider the service member’s equipment, training, and use of
force knowledge.
a. Soldier Equipment
Compared to civilian law enforcement personnel, most service members are not as well-equipped
for potential confrontations with belligerent and innocent civilians. When drafting RUF for a
particular mission, commanders must decide if the mission requires service members to be issued
firearms or other non-lethal weapons.6 Further, if non-lethal weapons or non-standard weapons or
ammunition are authorized for the mission, it is critical that soldiers be well-trained in the proper
employment of these systems.
b. Skill and Training for Confrontations
Most service members do not receive extensive training on the types of skills and situations that are
involved in confrontations in domestic operations. Because service members receive little training
on tactical marksmanship and close quarters confrontations, they may not understand how to shoot
accurately under stress or how to employ lesser means of force competently. Moreover, units
generally do not conduct training emphasizing firearms engagements at closer than 10 yards, or on
how to defend oneself using bare hands. Finally, service members trained on unarmed combatives,7
must know which are deadly and which are non-deadly techniques.
c. Training on RUF Law and Policy
Many service members have not been trained on domestic law applicable to the use of force and, as
a consequence, do not understand many of the policy requirements imposed by DoD and DA
decisions.8 Additional key concepts such as hostile act and hostile intent are often misapplied or
used interchangeably. As such, it is critical that judge advocates understand the terminology and
are capable of training these concepts in a straightforward manner. In addition, very few service
6 The Army’s use of force policy advocates arming Soldiers with non-lethal equipment such as military police batons,
OC pepper spray, and military working dogs.
7 U.S. DEP’T OF ARMY, FIELD MANUAL FM 3-24.150, COMBATIVES (18 Dec. 2002).
8 Military police and special operations Soldiers are probably the only general population in the Army that routinely
learn and understand these rules.
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members receive training on the RUF or the legal and policy aspects of the investigations and
litigation that may follow a use of force incident. This increases the challenge for judge advocates
preparing units for domestic operations.
The judge advocate must also consider the nature of the threat that our service members might face.
Service members have to try to differentiate between aggressors employing various levels of force
threats, those who do not present a direct threat but against whom force is authorized, and innocent
civilians.
An attacker will generally have the service member at a disadvantage. They will almost always
have the initiative and sometimes they will have the element of surprise. One of the accepted
principles of violent confrontations is that the attacker’s “action” will defeat a “reaction” of
comparable speed by the service member.9
2. Physical and Psychological Effects
It is also imperative to keep in mind that the physical and psychological effects on the service
member during a life or death situation can be critical. The stress of a life or death encounter will
often trigger the “fight, flight, or freeze” response. Accompanying this, the body and mind undergo
a number of changes that can affect performance. Judge advocates should research these reactions
and consider their effects when drafting the RUF. They, and investigating officers, should also
consider them when judging a service member’s reactions and statements in the aftermath of a
shooting incident.
D. Legal Authority and Standard for U.S. Military Use of Force in Domestic Operations
The underlying legal authorities for use of force are grounded in the constitutional role of the
Executive Branch, and tempered by the constitutionally protected civil rights as listed in the Bill of
Rights. Against this backdrop, Congress has imposed a number of statutory provisions that help
define and limit this authority.
The competent use of force practitioner must understand these underlying authorities.10 This is
similar to the duty of the competent SROE practitioner to understand the underlying public
international law and law of war authorities affecting use of force by armed forces of the nation-
state. Finally, the use of force practitioner and SROE practitioner must understand the differences
between these two bodies of law and resist the temptation to confuse and meld terms and concepts
from one to the other.
All U.S. Army domestic use of force authority flows from the powers of the President as granted
under the Constitution. The underlying authority of the President to order routine installation force
9 This concept is central to law enforcement use of force training theory. If an officer is faced with a deadly threat, the
officer should not waste time considering whether other options will work. The immediate choice is whether the officer
needs to use deadly force to save life or limb. This is why the Federal Bureau of Investigation and the Department of
Justice emphasize that the use of force policy that applies during a confrontation is essentially a question of whether it is
objectively reasonable to use deadly force. If it is not, then the agent is free to consider other lesser alternatives.
10 Since domestic operations have generated very few reported cases involving service members, we must look to law
enforcement cases to help define the limits of military use of force.
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protection and law enforcement could be justified under the President’s executive powers.11 The
authority to order the military to defend the homeland against overt international aggression can be
clearly justified under his authority as the Commander in Chief.12 Finally, the President’s authority
to order the military to execute DSCA operations (Defense Support of Civil Authorities)13 to
enforce federal law has been based on the President’s duties to execute the laws.14 As officers of
the Executive Branch, service members conduct operations and derive authority from the
President’s Constitutional authorities.15 Similarly, whenever the military uses force to execute the
orders of the President and those he appoints, that use of force must be based on constitutional
authority.
All Executive Branch uses of force are balanced against the civil rights of the public. While three
primary provisions of the Bill of Rights limit federal use of force in domestic operations, the
primary focus is on the Fourth Amendment.16 The constitutional standard is whether the use of
force violated the Fourth Amendment prohibition against unreasonable seizures.17 The U.S.
Supreme Court has described this standard as an objective measurement based on the facts and
circumstances known to the service member at the time of the use of force.18 This rule is the very
heart of the standard for governmental use of force.
The “reasonableness” of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight
The calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation. As in other Fourth Amendment
contexts, however, the “reasonableness” inquiry in an excessive force case is an
objective one: the question is whether the officers’ actions are “objectively
reasonable” in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.19
The courts have long recognized the authority to use force, including deadly force, in the
performance of federal governmental duties.20 Judge advocates must know the limits of the mission
and how the commander intends to execute this mission to advise on the RUF that support the
operation. This makes the mission analysis portion of the planning critical. The phrasing of
11 U.S. CONST., art. II, § 1.
12
Id. § 2.
13 U.S. DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVILIAN DISTURBANCES (4 Feb. 1994).
14 U.S. CONST., art. II, § 3.
15 See e.g., In Re Neagle, 135 U.S. 1 (1890).
16 The Fifth Amendment Due Process Clause limits the ability of federal officers to use force after an arrest has
occurred. The Eighth Amendment defines the rights of a prisoner when corrections personnel use force.
17 U.S. CONST., Amend. IV, provides that “[t]he right of the people to be secure in their persons…against unreasonable
searches and seizures, shall not be violated
”
18 Graham v. Connor, 490 U.S. 386, 296 (1989).
19
Id. (emphasis added).
20 Neagle, 135 U.S. at 1.
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Operations Orders or other directives that define the mission and operation are critical to defining
the limits of this authority.
There are a number of restrictions and decision points that the SRUF imposes on our service
members or that are, in practical effect, introduced into RUF training. Judge advocates involved in
drafting mission specific RUF should carefully consider where to balance the interests of force
protection and the lives of service members against the important interest of not risking an
excessive use of force incident involving the military. Further, judge advocates involved in the
development of RUF training must be careful that the training does not introduce procedures that
effectively restrict the SRUF or introduce tactically dangerous or unsound practices.
Such errors can occur because judge advocates are mistaken in their understanding of the law or
uncomfortable with the application of the RUF. Specifically, judge advocates should never apply
Law of War to the domestic law on the use of force.21 Likewise, judge advocates should not
confuse the law of individual self-defense of a private individual with the authority of self-defense
for government officials.22
1. Minimum Force Necessary or Deadly Force as a Last Resort
The SRUF provides that, “Normally, force is to be used only as a last resort, and the force used
should be the minimum necessary.”23 The SRUF further states that, “Deadly force is to be used
only when all lesser means have failed or cannot be reasonably employed.”24 Lastly, the SRUF
imposes a reasonableness requirement stating that the force used must be “reasonable in intensity,
duration and magnitude” based on the totality of the circumstances to counter the threat.25
Federal courts, however, do not require that service members employ “minimum force necessary”
or that they employ deadly force as only a “last resort.” The courts have generally held that the
issue is solely whether deadly force was reasonably necessary. They have declined to impose a
requirement to use minimum force.26 Nor do courts require the use of feasible lesser force
alternatives to avoid the use of justified deadly force.27 Judge advocates involved in planning
domestic operations that carry a significant risk of potentially lethal encounters with armed or
dangerous elements should evaluate whether the SRUF meets the task or whether mission specific
21 As discussed above, the underlying substantive law applicable to domestic governmental use of force is the
Constitution, not the Law of War. A common example is use of language of “proportionality of response” by a Soldier
defending against an attack.
22 While related, these legal standards are significantly different. A common example of this confusion is a
requirement to retreat. Government officials using force in the performance of their duty have no duty to retreat and in
some instances could be in breach of their duty if they do retreat. It is also possible to inadvertently lose the authority to
use force under governmental authority by wording the RUF to invoke the law of individual right of self-defense of the
state law or federal common law. For example, a provision that says, “Service members retain their right to use force in
self-defense as defined by local and state law” reduces the service member’s right to use force in self-defense to the
level of a private citizen under state law. This is a significant concession of otherwise lawful defensive authority.
23 SRUF, supra note 2, para. 5.b.1.
24
Id. para. 5.c.
25 SRUF, supra note 2, para. 5.b.1.
26 See e.g., O’Neal v. DeKalb County, Ga., 850 F.2d 653, 666 (11th Cir. 1988).
27 See e.g., Deering v. Reich, 183 F.3d 645, 652-53 (7th Cir. 1999).
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RUF that more closely resembles the standards of case law should be developed and staffed for
approval by the Secretary of Defense.28
2. Mandatory Verbal Warnings
Federal courts require service members to issue a verbal warning, where feasible, in the case of
using deadly force against a fleeing criminal. This is clearly required in the seminal case of
Tennessee v. Garner.29 However, in defensive use of force there appears to be no such requirement
in law. The SRUF does not require a verbal warning but does state that “[w]hen time and
circumstances permit, the threatening force should be warned and given the opportunity to
withdraw or cease threatening actions.30 Although the type of warning that should be given is not
specifically established, it cannot take the form of a warning shot.31
3. Denial of Deadly Force in Self-Defense
Federal courts do not require that service members who are not armed in the course of their duties
be denied the authority to use deadly force in their own defense. Some commanders and judge
advocates believe that if there is no authority to arm service members, then there is no authority to
use deadly force. This presumption is not imposed by federal law. In reference to self-defense,
however, judge advocates must ensure that service members, acting as part of a unit, understand
that the SRUF specifically provides that the individual right of self-defense may be restricted. This
is rationalized by stating that when “individuals are assigned and acting as part of a unit, individual
self-defense should be considered a subset of unit self-defense. As such, commanders may limit
individual self-defense by members of their unit.”32 This is a controversial authority provided to
commanders in the SRUF and would likely be challenged by a soldier being prosecuted either for
violation of a lawful order or manslaughter.33 The SRUF also limits the use of deadly force to
situations where lesser means have failed or cannot reasonably be employed.
4. Operational Orders/Execution Orders
For those operations that have not been thoroughly anticipated, judge advocates may find that the
RUF are disseminated through message traffic with an OPORD or EXORD. Often judge advocates
will have to wait for RUF guidance from higher headquarters because the decision of whether to
draft new RUF or adopt an existing template is yet to be announced.
28 Staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a template. As this must be
staffed to the Combatant Commander for staffing through the CJCS to the Secretary of Defense for approval; it is
imperative that this staffing process be initiated upon the identification of the need.
29 Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Garner provides a three prong analysis under the Fourth
Amendment for the evaluation of whether the use of deadly force is reasonable. These prongs include: whether there is
probable cause to believe that the individual suspect is dangerous; whether the use of deadly force is necessary to
prevent the suspect’s escape; and, whether, if feasible under the circumstances, a verbal warning was given.
30 SRUF, supra note 2, para. 5.a.
31 SRUF, supra note 2, para. 5.b(3). There are some limited exceptions to this restriction, but these exceptions are
unlikely to be encountered by most U.S. Army personnel.
32 SRUF, supra note 2, para. 4.a.
33 For an excellent discussion of the historical development of the inherent right of self-defense and its modern
interpretation by American courts, see DAVID G. BOLGIANO, COMBAT SELF-DEFENSE 32-39 (2007).
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5. SRUF Authority to Use Deadly Force
In RUF, the authority to use deadly force exists for limited purposes. The SRUF provides uniform
guidance on domestic use of force. It also provides a consistent training template to avoid the ad
hoc approach previously used in domestic operations RUF practice.
a. Inherent Right of Self-defense
As discussed above, unit commanders always retain the inherent right and obligation to exercise
unit self-defense in response to hostile acts or demonstrated hostile intent. Unless otherwise
directed by the unit commander, service members may use deadly force when it appears reasonably
necessary against a hostile act or demonstrated hostile intent. Individual self-defense is a subset of
unit self-defense and as such may be limited by the unit commander when an individual service
member is acting as part of a unit. Unit self-defense includes the defense of other DoD forces in the
vicinity.
b. Defense of Others
The use of deadly force extends to the use of force to defend other non-DoD persons in limited
circumstances. Service members may use deadly force in defense of non-DoD persons who 1) are
in the vicinity, and 2) when the use of force is directly related to the assigned mission.34
c. Protection of Assets Vital to National Security
Service members may use deadly force when it appears reasonably necessary to prevent the actual
theft or sabotage to assets vital to national security. The SRUF defines assets vital to national
security as President-designated non-DoD and/or DoD property, the actual theft or sabotage of
which the President determines would seriously jeopardize the fulfillment of a national defense
mission and would create an imminent threat of death or serious bodily harm.35 The SRUF
provides a list of potential examples: nuclear assets, nuclear command and control facilities, other
designated areas that contain sensitive codes or involve special access programs. Planners and
commanders need to determine the existence of assets in their anticipated area of operations to
apply the SRUF properly so as to safeguard these designated assets.
d. Protection of Inherently Dangerous Property
Service members may use deadly force when reasonably necessary to prevent the actual theft or
sabotage of inherently dangerous property. The SRUF defines “inherently dangerous property” as
property that, in the hands of an unauthorized individual, would create an imminent threat of death
or serious bodily harm.36 Examples include portable missiles, rockets, arms, ammunition,
explosives, chemical agents, and special nuclear material. On-scene DoD commanders are
authorized to classify property as inherently dangerous.37 Command guidance in this area is
critical. Without clear and proper guidance, the commander’s intent could easily be frustrated. For
34 SRUF, supra note 2, para. 5.c.2.
35 SRUF, supra note 2, para. 4.f.
36 SRUF, supra note 2, para. 4.f.
37 SRUF, supra note 2, para. 4.f.
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example, a commander may not want to have lethal force deployed against looters who steal small
arms ammunition. Failure to provide guidance on this could lead to an engagement that was proper
under a strict reading of the SRUF but is inconsistent with the on-ground commander’s intent.
Likewise, a commander may consider all crew-served weapons as “inherently dangerous,” but a
failure to make such designations may lead to confusion over what is “inherently dangerous
property” by Soldiers on the ground.
e. National Critical Infrastructure
Service members may use deadly force when reasonably necessary to prevent the sabotage of
national critical infrastructure. National critical infrastructure for DoD purposes is President-
designated public utilities, or similar critical infrastructure, vital to public health or safety, the
damage to which the President determines would create an imminent threat of death or serious
bodily injury. Commanders and planners need to identify the existence of such infrastructure when
preparing for a domestic operation.
6. Other Mission-Related Circumstances for Use of Deadly Force
As with the circumstances described above, deadly force may be used, under limited circumstances,
when directly related to the assigned mission. Further, such force may only be used “when all
lesser means have failed or cannot reasonably be employed.”38 These additional circumstances,
where such force may be used when directly related to the assigned mission, are discussed below.
a. Prevention of Serious Crime against Persons
Service members may use deadly force when it appears reasonably necessary to prevent a serious
crime involving the threat of imminent death or serious bodily harm (hereinafter referred to in this
chapter as “serious crime”). Examples of such crimes include murder, armed robbery, and
aggravated assault. Further, attempting to set fire to an inhabited building or sniping would
constitute offenses that involve the threat of imminent death. Serious crime is a critical term to the
definition of a number of the following authorities to use deadly force.39
b. Escape40
Service members may use deadly force when it appears reasonably necessary to prevent the escape
of a prisoner, provided there is probable cause to believe that the prisoner committed or attempted
to commit a serious offense. Serious offense is defined as one that involves imminent threat of
death or serious bodily harm or an offense that would pose an imminent threat of death or serious
bodily harm to DoD forces or others in the vicinity.
38 SRUF, supra note 2, paras. 5.c & 5.d.
39 SRUF, supra note 2, para. 5.d.1.
40 SRUF, supra note 2, para. 5.d.2.
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c. Arrest/Apprehension of Persons Believed to have Committed a Serious Offense41
Service members may use deadly force when it appears reasonably necessary to arrest or apprehend
a person who they have probable cause to believe has committed a serious offense as defined in
paragraph b above.
7. Augmentation of the RUF
A unit commander that desires to augment the SRUF must staff the action to the appropriate
Combatant Commander. The Combatant Commander must then staff the request through the CJCS
to the Secretary of Defense for approval.42 Requests for augmentation must be prepared using the
template provided at Enclosure P, RUF Messaging Process, to CJCSI 3121.01B. Unit commanders,
however, may further restrict the SRUF without prior approval. However, if a restriction is
implemented by a unit commander on a Secretary of Defense-approved RUF, the Secretary must be
notified through the Joint Staff. When confronted with time critical situations, commanders can
notify the CJCS and the Secretary of Defense concurrently, or if not possible, may notify the CJCS
as soon as possible after the Secretary of Defense notification.43
E. Liability for Service Members, Leaders, and RUF Drafters in Use of Force Situations
Service members, their leaders, and the planners who draft the RUF for domestic operations face
potential personal liability for any unlawful use of force by a service member during a domestic
operation. This includes federal and state civil and criminal proceedings after an incident. In
addition, such incidents are often accompanied by a variety of investigations that can result in
adverse administrative consequences. Therefore, it is important that judge advocates consider this
liability as they draft RUF, disseminate the RUF, and participate in training for and the execution of
domestic operations under RUF. Failing to do so could unnecessarily expose service members to
the financial and emotional burdens of litigation, even if the case is ultimately dismissed.
1. Federal Civil Liability
A person injured by a service member’s use of force could seek damages in a federal civil suit
against the service member and others involved in the RUF. If the person is dead, the family
members of the decedent could file the suit. This private cause of action for damages—caused by a
service member’s use of force—is based on deprivation of a constitutional right. In most cases, this
will involve the Fourth Amendment standard of objective reasonableness. The seminal case that
created this cause of action is Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics.44
In fact, one reported Supreme Court Bivens case involves an Army Soldier and use of force against
a civilian.45
41 SRUF, supra note 2, para. 5.d.3.
42 SRUF, supra note 2, para 3.a.
43 SRUF, supra note 2, para. 3.b.
44 Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
45 See Saucier v. Katz, 533 U.S. 194 (2001). In Saucier, Katz attempted to unfurl a protest banner in close proximity to
Vice President Gore’s speaking stand on the Presidio of San Francisco. Katz brought a Bivens action against the
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Litigation is also conceivable in situations where force was not used and an innocent civilian is
killed or injured as a result. A soldier’s decision not to use force, or a commander’s decision to
limit the use of deadly force would most likely be found to be within the discretionary function
defense to claims made under the Federal Tort Claims Act (FTCA).46 However, if the decision not
to engage an otherwise lawful target was a result of a failure to train or the use of ill-conceived
training materials, the U.S. Government could be found liable for negligence under the FTCA.
While discretionary function is a closely guarded “silver bullet” defense, plaintiff’s counsel could
use faulty or inadequate training as a basis to seek to establish negligence on the part of the U.S.
Government.
a. The Application of Qualified Immunity
Judge advocates serving as advisors, investigators or litigators should understand that qualified
immunity is a critical dispositive measure to forestall unnecessary burdens on the government and
its representatives, and it can serve as a bar to trial. Recent caselaw provides guidance on how
courts apply qualified immunity.
Saucier v. Katz, a 2001 Supreme Court decision, is a noteworthy case in the context of military
support to domestic operations. Saucier, a Military Police officer assigned to protect the Vice
President, was accused by Katz of using excessive force. Pursuant to Bivens, Katz filed suit against
Saucier on the grounds that Saucier had violated Katz’ Fourth Amendment rights.
Pearson v. Callahan, a 2009 Supreme Court decision, is now the key case from which to analyze
issues of qualified immunity.47
(Pearson involved an accusation of a Fourth Amendment violation
for a warrantless search and seizure conducted by Utah state law enforcement officers.)
For judge advocates vis-à-vis their roles as RUF practitioners, it is first necessary to understand the
analysis handed down in Saucier as it may still be used by lower courts. In Saucier, the Court
mandated a two-prong analysis to determine whether an official was entitled to qualified immunity.
First, a court was required to decide: 1) “whether the facts alleged or shown by the plaintiff make
out a violation of a constitutional right, and (2) if so, whether that right was ‘clearly established’ at
the time of the defendant’s alleged misconduct.”48 This analysis was to be strictly applied and
provided an analytical paradigm that often served to direct early disposition of cases in favor of the
official without the need for extensive and costly pretrial discovery and litigation.
In Pearson however, the Supreme Court effectively reversed its position in Saucier by holding that
lower courts were no longer bound to the rigid two-prong analysis. The Court noted, however, that
the Saucier case could still be used as an appropriate analytical paradigm by lower courts in their
discretion, but that lower courts were no longer required to use the Saucier procedure.49
military police that apprehended him. Katz alleged that the military police violated his Fourth Amendment rights by use
of excessive force in forcibly removing him from the immediate vicinity of the podium and in placing him into a van.
46 United States v. Gaubert, 499 U.S. 315 (1990).
47 Pearson v. Callahan, 555 U.S. 223 (2009).
48
Saucier, 533 U.S. at 194.
49 Pearson, 555 U.S. at 223.
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Accordingly, Saucier remains an important qualified immunity case. However, in light of Pearson
and the difficulties lower courts have had with the Saucier analysis, it is uncertain how effective the
analysis will be for those attempting to assert its procedure in establishing qualified immunity in the
future.
b. State and local government use of force cases are usually based on a civil cause of
action created by 42 U.S.C. § 1983
Section 1983 has evolved into an effective basis for citizens to seek damages for alleged violations
of their rights by governmental organizations or their employees under the Fourteenth Amendment.
Section 1983 liability has also been extended to apply to those who are involved in use of force
policy and training decisions. These individuals have been found liable for civil damages if their
decisions and work contributed to an improper use of force by an individual law enforcement or
security person.50 As the SRUF specifically directs that commanders at all levels must train their
subordinates on the use of both deadly and non-deadly force,51 failure to do so may expose
commanders, their Soldiers, their advisors, and the U.S. Government to a host of legal
consequences as discussed below.
2. Federal Criminal Liability
Service members could be held criminally liable for unconstitutional or illegal use of force before a
court-martial, a federal district court, and in some cases, a state court. A federal statute prohibits
use of force under the color of law that deprives any person of their constitutional or legal rights.
Accordingly, DOJ has, in the past, investigated use of force during a domestic military operation
with a view toward seeking a Grand Jury indictment for violation of this statute.52
50 A supervisor who causes a constitutional violation by a “deliberate indifference” to constitutional standards in proper
training for officers may be liable under a Section 1983 cause of action. City of Canton v. Harris, 489 U.S. 378, 388-89
(1989). While agencies can be found liable for a lack of proper training on deadly force, agency officials have also been
found liable for a lack of training on non-deadly force (Davis v. Mason County, 927 F.2d 1473, 1483 (9th Cir. 1991))
and for training conducted that was insufficient (e.g., Berry v. city of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994)). The
judge advocate advising a commander on RUF for a domestic operation should compare the difference in effort and
attention to law between military RUF practice and the comparable efforts of federal law enforcement agencies. While
Section 1983 may provide plaintiffs with a compensable claim after a use of force encounter as a result of a failure to
train, the FTCA could also provide a potential remedy when a training requirement existed and it was either not
accomplished or it can be demonstrated that the training was inadequate or failed to apply the proper standards.
Ironically, it is conceivable that a third party that could have been covered under “defense of others” could attempt to
bring a claim under the FTCA if the individual could establish that the Government was negligent in its training of RUF
and it contributed to the injury suffered.
51 SRUF, supra note 2, para. 1.b.
52 For an excellent overview of the liability nightmare resulting from a Marine shooting that was authorized and proper
under the Rules of Engagement for JTF-Six, see Lieutenant Colonel W.A. Stafford, How to Keep Military Personnel
from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW., Nov.
2000, at 1.
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3. State Civil and Criminal Liability
Federal Supremacy Clause Immunity will not always prevent a service member from having to face
trial in state civil or criminal proceedings. In fact, in the “Ruby Ridge” use of force incident, a
federal officer was not granted immunity from a state criminal proceeding for the shooting of a
civilian involved in an armed confrontation with the FBI.53
F. Other Trial or Litigation Issues
Judge advocates involved in post-shooting procedures and litigation should consider a number of
issues. First, be prepared to advise commanders on the many investigations that could occur.
Second, be aware of the Army’s procedures on civilian litigation. Finally, know that service
members have far less legal protection against use of force liability than a federal law enforcement
agent.
Judge advocates should know that if a service member kills or injures a civilian during a domestic
operation, a number of agencies could initiate investigations of the incident that would affect both
the service member and the Army. Commanders will probably recognize the fact that the various
commanders involved, their parent services, any joint command, and the National Guard Bureau or
State National Guard authorities, could initiate an administrative investigation and Rules for Courts-
Martial (RCM) 303 inquiries.54 Commanders are often surprised to find that the following civilian
investigations could occur.
• An investigation by DOJ or the U.S. Attorney for potential federal civil or criminal disposition;
• An investigation by state, county, or municipal law enforcement authorities for state criminal
disposition; and
• An administrative investigation by the Inspector General or internal investigative element of a
federal law enforcement agency if the command was providing support to that federal agency.
Judge advocates also need to know the procedures and considerations involved in potential civil
litigation. Army Regulation 27-40, Litigation,55 Air Force Instruction 51-301, Civil Litigation,56
Navy Instruction 5800.7D, and Manual of the Judge Advocate General (JAGMAN)57 outlines
Service guidelines on issues such as whether a service member will be entitled to government-
provided representation, investigation of potential litigation cases, whether the government will
indemnify the service member for damages in civil cases, and the key points of contact when the
Service may be involved in litigation. Further, Army Pamphlet 27-162, Claims Procedures,58
53 State of Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000). Interestingly, one of the critical factors in the Court’s
analysis was the fact that a supervisor had published unlawful use of force guidance. This became an issue, even
though Special Agent Horiuchi based his decision to shoot on the lawful pre-existing RUF, rather than the flawed rules
published by his team commander.
54 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 303 (2008).
55 U.S. DEP’T OF ARMY, REG. 27-40, LITIGATION (19 Sep. 1994).
56 U.S. DEP’T OF AIR FORCE, INSTR. 51-301, CIVIL LITIGATION (1 Jul. 2002).
57 U.S. DEP’T OF NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL INSTR. 5800.7D, MANUAL OF THE JUDGE
ADVOCATE GENERAL (JAGMAN), para. 6020 (14 Mar. 2004).
58 U.S. DEP’T OF ARMY, PAM. 27-162, CLAIMS PROCEDURES (21 Mar. 2008).
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provides guidance on the management of potential claims against the U.S. Government under a
variety of theories and statutory authorities.59
Finally, judge advocates need to recognize that service members and commanders involved in use
of force incidents will probably have less legal and practical protection than their counterparts in
federal law enforcement. Caselaw defining the role of service members using force during
Homeland Security operations is extremely limited. Many of the cases interpreting governmental
use of force have expressly or impliedly based their interpretations of the “reasonableness” of the
force on the law enforcement status of the federal officers. These officers were qualified and
credentialed law enforcement officers with clear statutory investigative jurisdiction and duties to
uphold federal law and confront criminals. Service members performing non-traditional Homeland
Security operations do not have the benefit of this well-defined caselaw. Judges could potentially
decide cases of first impression involving service members less deferentially than they have for law
enforcement officials. Finally, Congress does not extend immunity that is routinely applied to
federal law enforcement to Army domestic operations.60
G. Common Issues in Drafting and Training RUF
During domestic operations planning and execution, judge advocates may draft, interpret, or
conduct training on the RUF on short notice. In this atmosphere of crisis planning, judge advocates
must carefully balance the interests of protecting the rights of the public against the force protection
concerns of service members in potentially dangerous situations. Accordingly, striking the
appropriate balance requires that judge advocates: understand the law and policies that shape this
area of practice, including key Supreme Court decisions; have a basic understanding of both
tactical engagements applying RUF; and consider the psychological and physiological responses of
citizens confronted with a use of force scenario.
1. Training of Judge Advocates
Although RUF is rarely at the forefront of training for judge advocates, leaders should seek
opportunities for their judge advocates to obtain basic training in the deployment of weapons in
tactical engagements.61 If available, training with police or special forces elements can provide
59 Claims have been paid in recent history for shootings by U.S. military personnel engaged in the performance of their
duties. For example, in 1997 U.S. Marines were sent to support the U.S. Border Patrol in Texas along the Mexican
border during a period of escalating border violence and drug related activity. Although the facts are disputed, a U.S.
person of Hispanic ancestry was under observation by U.S. Marines. The Marines claimed that the individual under
surveillance fired at them with a .22 caliber rifle that he had in his possession. The Marine claimed that he returned fire
when fired upon and he killed the individual with one shot from his M-16 rifle. There was immediate controversy that
surrounded the incident and the Navy agreed to settle the claim for an amount reported to be $1.3 million. See U.S.
Settles with Family in Fatal Border Shooting, NY TIMES (August 12, 1998),
visited Jul. 7, 2011).
60 Congress, recognizing that the scope of duties for federal law enforcement officers does not extend to enforcing laws
against simple assaults, homicides, and other types of violent crime, extended the scope of employment for federal
officers having to use force to prevent such violent crimes. The language of this statute does not make it applicable to
the majority of service members engaged in domestic operations. See Pub. L. 105-277, Section 101(h), as amended by
Pub. L. No. 106-58, Title VI, sect. 623, Sept. 29, 1999, often referred to as the Federal Good Samaritan Statute.
61 Although the law that governs RUF is different than that which governs ROE, this training will assist judge
advocates that are called to assist in the development or training of either RUF or ROE as an appreciation on the tactical
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judge advocates with great insight into the challenges confronted by a soldier in a lethal force
encounter.
Ideally the training should include the study of executive, congressional, and judicial authorities and
constraints on the use of force by government and military personnel, and tactical skills training
using both lethal and non-lethal measures. Although training such as this is resource intensive and
time consuming, it is difficult for judge advocates that have not been exposed to tactical scenarios
involving the use of weapons to provide comprehensive advice and support to training the force.
If resources or time do not permit “hands on” training, the development of scenario training packets
can assist in developing a more nuanced appreciation for application of the RUF. Although
scenario training that does not involve actual hands on experience cannot replicate the physiological
and psychological responses associated with a tactical engagement, an analysis of likely scenarios
done in conjunction with a robust discussion of controlling legal authority can help illuminate the
challenges that will be faced by those who may be called to apply RUF. Further, these scenarios
can be developed to highlight the challenges that often face RUF planners and drafters and thus
improve upon their ability to draft, provide advice concerning, and train RUF.
2. SRUF and Areas of Confusion and Concern
Most RUF practitioners will be called to advise and train on either the SRUF or mission specific
RUF crafted and approved by higher headquarters and the Secretary of Defense, respectively. RUF
practitioners whether being asked to propose mission specific RUF, advise on existing RUF, or to
train RUF need to be sensitive to several areas that often become the source of confusion or error.
The following are discussed in greater detail, supra, but care must be undertaken to understand the
interface of the following concepts with the SRUF. These include the concept of use of “minimum
force,” the general prohibition on the use of warning shots by land forces, the use of warnings to
include verbal warnings, and the introduction of restrictions that go beyond that required by the
SRUF that may have the inadvertent effect of depriving a Soldier of otherwise valid defenses
available to federal officers acting in their official capacities. Such restrictions could come from the
imposition of additional preconditions to the use of force beyond that of “reasonable belief,”
imposing a duty to retreat by inappropriately relying on state law as it relates to the use of force by
private citizens, or by attempting to further restrict the right of self-defense.
Another potential source of confusion can flow from an effort to reconcile portions of AR 190-14,
Carrying of Firearms and Use of Force for Law Enforcement and Security Duties62 with the SRUF.
The SRUF applies broadly both on and off installations and specifically provides that its provisions
apply to “DoD forces, civilians and contractors performing law enforcement and security duties at
all DoD Installations.”63
use of small arms and other lethal and non-lethal weapons will improve a judge advocate’s ability to support the
warfighter and the command significantly.
62 U.S. DEP’T OF ARMY, REG. 190-14, CARRYING OF FIREARMS AND USE OF FORCE FOR LAW ENFORCEMENT AND
SECURITY DUTIES (12 Mar. 1993).
63 SRUF, supra note 2, para. 1.a.
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However, AR 190-14, Chapter 3, was revised in 1993 to synchronize with the use of force guidance
contained in DOD Directive 5210.56. Subsequently however, the use of force guidance contained
in DoDD 5210.56 was specifically rescinded by the SRUF.64 As such, judge advocates advising in
a variety of areas related to law enforcement and security missions to include the development of
contractual provisions for contract security forces need to be aware of this disconnect between AR
190-14 and the SRUF. When the provisions of the two cannot be reconciled, the SRUF would
control as its provisions cannot be augmented without the approval of the Secretary of Defense and
cannot be further restricted without providing notice to the same.
64 SRUF, supra note 2, para. 1.b.
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CHAPTER 12
RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD
KEY REFERENCES:
•
10 U.S.C. §§ 331-335 - The Insurrection Act.
•
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
•
28 U.S.C. §§ 1346, 2671-2680 - The Federal Tort Claims Act (FTCA).
•
32 U.S.C. § 502 - Required drills and field exercises.
•
National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June
13, 2008.
• Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321, 110 Stat. 3877
(1996).
A. Introduction
The National Guard, or organized militia, is a federally-recognized state1 government entity, except
when called or ordered2 to federal active duty as an element of the National Guard of the United
States.3 The effect of this constitutionally-derived4 status is perhaps greatest in the rules for the use
of force (RUF) for the National Guard.5 The policies of DoD and service regulations governing
RUF apply to elements of that Department, but not to the National Guard when commanded by state
authorities.6 As a result, the law that is the basis for National Guard RUF is the criminal law of the
1
“State” as used here includes the fifty states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin
Islands, all of which have National Guard organizations headed by an Adjutant General and governed by state law. For
example, the District of Columbia National Guard is governed by D.C. Code Title 49.
2 Members of the National Guard are called to duty under 10 U.S.C. §§ 331-333 and are ordered to duty under 10
U.S.C. §§ 12,301-12,304.
3 See Perpich v. Department of Defense, 496 U.S. 334 (1990).
4 The National Guard derives its state status from the Militia Clauses of the U.S. Constitution. U.S. CONST., art. I, § 8,
cl. 15, 16.
5 The law forming the bases for the Rules for the Use of Force (RUF) by the National Guard is the general criminal law
of the states. There is, therefore, no single term used to describe those rules as states have referred to them variously as
rules of engagement (ROE), rules for the use of force (RUF), rules on the use of force (ROUF), and rules of interaction
(ROI). “RUF,” as used in this chapter, is used as a generic term intended to distinguish those rules of the 54 National
Guard jurisdictions which are based upon the criminal laws of those individual jurisdictions. Compare this to either the
Chairman of the Joint Chiefs Standing Rules of Engagement (SROE), CHAIRMAN, JOINT CHIEFS OF STAFF, INSTR.
3121.01B, STANDING RULES OF ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES (13 Jun.
2005) [hereinafter SRUF].
6 See, e.g., U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 Dec. 2011), U.S.
DEP’T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL DISTURBANCES (4 Feb. 1994);; U.S. DEP’T OF
DEFENSE, DIR. 5210.56, USE OF DEADLY FORCE AND THE CARRYING OF FIREARMS BY DOD PERSONNEL ENGAGED IN
LAW ENFORCEMENT AND SECURITY DUTIES (1 Nov. 2001, C1 24 Jan. 2002); and U.S. DEPARTMENT OF DEFENSE, DIR.
5525.5, DOD COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS (15 Jan. 1986, C1 20 Dec. 1989), which
apply to “the Military Departments.” U.S. DEP’T OF ARMY, REG. 190-14, CARRYING OF FIREARMS AND USE OF FORCE
FOR LAW ENFORCEMENT AND SECURITIES DUTIES (3 Dec. 1993) applies to the “Army National Guard only when called
or ordered to active duty in a federal status under the provisions of Title 10, U.S.C.”
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state in which a National Guard unit is performing the mission.7 It is the drafting and application of
state National Guard RUF, derived from state law and National Guard Bureau policy,8 that is the
subject of this chapter.9
B. RUF and State Criminal Laws
1. State Law Applicable to Both Title 32 and SAD Statuses
Most National Guard operations in support of civil authorities are in support of state civil
authorities and are undertaken on a state-funded basis, usually referred to as “state active duty”
(SAD).10 These types of operations include relief from natural disasters, quelling of or providing
security during civil disturbances and assistance to civil authorities during other state emergencies,
such as strikes at state institutions. The notable operational exceptions include National Special
Security Events (NSSE) as discussed in Chapter 7,11 the 2001-2002 National Guard airport security
mission (hereinafter airport security mission), the G8 summit, and the Democratic and Republican
National Conventions of 2008.12 These operations were performed in Title 32 status.13 As
7 A more precise explanation, discussed in the text infra subparagraph C.2, is that the criminal law of the states applies
to both members of the National Guard operating in a state status and to off-post operations (and in some instances,
some on-post activities) of the active components of the U.S. armed forces (including the National Guard called or
ordered to active federal service). See Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from
Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1.
The active component, because of its federal mission, is however largely protected from the impact of state criminal law
by the doctrine of federal Supremacy Clause immunity. Judicial opinions dealing with the application of that doctrine
to the military are discussed in the text infra subparagraph C.2.
8 National Guard Bureau policy states that use of force is governed by state law. See NATIONAL GUARD REGULATION
500-1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS (13 JUN 08) [hereinafter NGR 500-1].
9 This chapter does not include consideration of state rules for the use of force applied as part of the National Guard
counter-drug program, for that see infra Chapter 6.
10 See generally DEP’T OF DEFENSE, DIR. 2105.28, NATIONAL GUARD JOINT FORCE HEADQUARTERS-STATE (NG
JFHQS-STATE) (5 Jan. 2011). State active duty [SAD] is a status pursuant to state law only and is funded by the state,
unlike the status in which the National Guard trains for its federal mission pursuant to Title 32 of the United States
Code [Title 32 status], which is federally funded and regulated. The National Guard in an SAD status may, however,
use certain federal equipment, subject to a requirement for reimbursement for that use. In SAD status, National Guard
Bureau and Active Army regulations do not usually apply unless the state has adopted those regulations as a matter of
state law; for more information, see Chapter 10.
11 For example, the National Guard provided security support for the 1996 Summer Olympics in Atlanta, Georgia, and
the 2002 Winter Olympics in Salt Lake City, Utah.
12 The airport security mission was served as “other duty,” pursuant to 32 U.S.C. § 502(f). On September 27, 2001, the
President made a request to all of the state Governors that they call their National Guard personnel to duty, to be paid
for by the United States, according to a White House press release. Between four and five thousand National Guard
personnel served at approximately 450 commercial airports around the United States in response to the President’s
request.
A mission conducted by New York National Guard personnel in a Title 32 status after the 9/11 terrorist attacks was
armory security. See Transcript of After Action Review Conference, Office of the Staff Judge Advocate, State Area
Command (STARC), New York Army National Guard, and the Center for Law and Military Operations, at 17-18 (17-
18 May 2002) [hereinafter NYARNG Transcript] (on file with CLAMO).
Not discussed in this chapter are National Guard operations performed in support of civil authorities while in a federal
active duty status.
13 U.S. DEP’T OF ARMY, NATIONAL GUARD REG. 350-1, ARMY NATIONAL GUARD TRAINING, para. 2-1a(9) (3 June
1991) (providing that Title 32 status may be used by an Adjutant General for what would otherwise be a state (SAD)
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explained in detail in Chapter 10, both SAD and Title 32 statuses are non-federal statuses, to which
state law applies.14 As such, it is the criminal law of the states hosting the events, i.e. the Olympics
and the conventions; that governed the RUF; however, each state in which an airport was secured
by National Guard personnel applied its own criminal law,15 and airport security missions were
executed in nearly all of the 54 National Guard jurisdictions.16 Consequently, over 50 different
RUF were used in the airport security mission. Although most RUF addressed similar subjects, the
specific implementation of these subjects varied from state to state.17 Examples of state RUF
referred to throughout this chapter are, unless otherwise indicated, the RUF of the airport security
mission.
2. Subjects for Inclusion in State RUF for the National Guard
When the National Guard executes a Title 32 or SAD mission that utilizes RUF, the subjects
appropriate for the RUF are derived from the mission operation plan or operation order [hereinafter
OPLAN/OPORD].18 The RUF covers core state criminal law subjects such as the right of self
defense, including the retreat doctrine, necessary warning, proportionality, and location issues, for
instance the defender’s home or work place. The RUF should also address the right to carry and
discharge firearms, the authority of National Guard personnel as peace officers, and the authority
for apprehension, search, and seizure. Whether, and the extent to which, these basic RUF subjects
are included in a given OPLAN/OPORD are mission-dependent decisions.19
Appendix 12 includes a list of basic RUF subjects and subjects appropriate for National Guard law
enforcement, law enforcement support, and security missions. Some of the basic and mission-
dependent RUF for law enforcement, law enforcement support, or security missions are discussed
below.
mission if the Adjutant General determines that the mission will provide a training benefit for National Guard personnel
in their federal role). At least one state, New York, chose to exercise all or part of the airport security mission in SAD
status.
14 See supra Chapter 10, subparagraph B.1.a(1). However, this may not always be the case in federal use of force law
liability. For example, if National Guard personnel in a Title 32 or SAD status are inadvertently made subject to the
orders and authority of a federal commander, they could be held to a use of force standard as defined by applicable
federal law.
15 The 1996 Summer Games in Georgia and the 2002 Winter Games in Utah are two examples.
16 Several of the 54 National Guard jurisdictions, such as the District of Columbia, did not have an airport within the
jurisdiction of the Federal Aviation Administration, and therefore had no state mission (and no RUF) for that operation.
In each of these Title 32 missions, the National Guard served under the command of National Guard officers in state
status and was kept distinct from the command authority of any active Army federal support element.
17 In 2003, the Counterdrug and Operational Law Team of the Chief Counsel’s Office, National Guard Bureau,
collected and reviewed virtually all of the state RUF used in the airport security mission. All these RUF are retained by
that office in both paper and electronic format.
18 For a list of those subjects to be included in an operation plan or operation order (OPLAN/OPORDER) for civil
disturbance operations, see NGB Civil Disturbance Handbook, supra note 8, para. 5-3e.
19 For example, if the mission includes the security of certain real property, then the right to search and seize and
amount of force necessary to undertake the inspection of persons and personal property entering and leaving that
location should be included in the OPLAN/OPORD or RUF.
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a. Subjects Appropriate for Inclusion in All RUF
(1) RUF Change Authority
An important element appropriate for virtually all state National Guard RUF is an explanation of the
authority to modify the RUF. If Adjutants General have delegated that authority to subordinate
commanders, then the RUF must clearly state which part(s) of the RUF may be changed, in what
manner and by whom. If the RUF contain no delegation of authority, then either the Adjutant
General or state level task force commander retains the authority. If authority to change the RUF is
wholly denied, including the authority to further restrict the RUF, then that should also be made
clear.
(2) Right of Self-Defense
Another element appropriate for inclusion in all RUF, even for unarmed security missions, is the
right to exercise reasonable and necessary force in self defense.20 Mission analysis21 and state
law22 will determine whether, as part of the general right of self defense, National Guard personnel
will be armed. One of the early concerns for NYARNG JAs after the 11 September 2001 terrorist
attacks was the authority of New York National Guard personnel to carry weapons. Under New
York law “[p]ersons in the military service of the state of New York when duly authorized by
regulation issued by the adjutant general” are authorized to carry firearms.23 Unfortunately, such
regulations were not previously promulgated. Consequently, the judge advocates drafted
Department of Military and Naval Affairs (DMNA) Regulation 27-13, Carrying of Firearms and
Use of Force, which the Governor’s Counsel Office approved on 29 September 2001.24
20 See SRUF, supra note 5. These documents provide that service members may exercise individual self-defense in
response to a hostile act or demonstrated hostile intent, except as limited by a commander as part of unit self-defense.
The SRUF provide that a commander may place limits upon unit self-defense and, because individuals make up units, in
that way limit the right of individual self-defense. Whether state National Guard RUF may, like paragraph 2 of the
SRUF, deny the right of individual self-defense in some instances, is open to question, especially because many states
have statutes applicable to all persons within the state, including National Guard personnel, providing for the right of
self-defense. See, e.g., MONT. CODE ANN. § 45-3-102. It is likely, however, that National Guard commanders could
lawfully place restrictions on the use, for self-defense purposes, of weapons issued by the National Guard. However, if
a weapon is issued for the purposes of mission accomplishment, it may make little tactical sense to deny the use of the
same weapon for purposes of individual self-defense.
21 As used herein, “mission analysis” refers to the commander’s vision of the execution of the mission, a determination
of the amount of force necessary for mission accomplishment, and a determination, in light of known factors such as
intelligence on the nature of the threat presented to state forces, of whether National Guard personnel could be the
subject of any type of physical attack in executing the mission.
22 It is important to distinguish between the citizen’s individual right of self-defense from the right of a government
official to use force in self-defense. The rights and duties for these two different legal theories are similar, but contain
critical differences. RUF drafters must decide which legal authority they wish to invoke, and then ensure that the
description of this authority remains consistent. Ambiguities created by confusing the two authorities could lead to
confusion on the part of Soldiers, leaders, and in post-incident litigation. Almost all of the topics listed in this section
will allow for different conduct by a Soldier acting in self-defense under the two theories.
23 N.Y. PENAL LAW § 265-20.
24 NYARNG Transcript, supra note 12, at 51.
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The RUF must also address such state law topics as the right to defend others,25 the duty to
retreat,26 the use of deadly force to prevent escapes,27 the requirement or limit on the use of
warnings before the employment of deadly force in self defense,28 the requirement for the use of
proportionality,29 and whether the place where the right of self defense is exercised has legal
implications.30
(3) Special Orders
Many RUF include discussion of issues not directly related to the use of force. These issues are
called “special orders” and cover such matters as: training (including training scenarios), military
bearing and appearance, immunity, standards of conduct and treatment of civilians, safety, handling
news media, discussion of the mission with others, and handling of suspicious persons, vehicles,
and activities. Usually, the state Adjutant General or the task force commander will decide whether
to include them in the RUF or in the OPLAN/OPORD.
b. Role of State Law in Determining RUF for Law Enforcement, Law Enforcement
Support, and Security Missions
There are certainly variations between the states in the National Guard’s authority to take actions
requiring use of force in a law enforcement,31 law enforcement support,32or security operation. For
example, some states by statute give the National Guard the full authority of peace officers.33 In
other states, the National Guard has only those peace officer-type powers enjoyed by the population
25 The right to defend others is frequently the subject of the same state statutes that provides for an individual’s right to
defend him or herself. See, e.g., CONN. GEN. STAT. § 53a-19(a); COLO. REV. STAT. § 18-1-704(2).
26 The laws of several states require the duty to retreat, so, for the airport security mission, those states included the
duty in the RUF. See, e.g., Connecticut airport security mission RUF para. IIIC(b) and CONN. GEN. STAT. § 53a-19(b).
27 For a detailed discussion of the Fourth Amendment aspects of this topic in the context of FBI RUF, see Harris v.
Roderick, 126 F.3d 1189 (9th Cir. 1997).
28 Many, if not most, states included the necessity for a warning (if possible) before resorting to the use of deadly force
in the airport security mission RUF.
29 Some state RUF used for the airport security mission specifically required that action taken in self-defense must be
proportional to the force used in the attack necessitating the defense. See airport security mission RUF of the states of
Colorado, Idaho, Michigan, Texas, Virginia, and Wyoming (on file with CLAMO). It is unclear whether this duty was
imposed in the RUF as a result of a state law requirement, or whether it was an inadvertent carryover from the law of
war rule of proportionality that is reflected in the SROE.
30 In some states, the right of self-defense is greater when exercised in the defender’s home or place of work. In those
places there is often no duty to retreat. See, e.g., CONN. GEN. STAT. § 53a-19(b); N. D. CENT. CODE § 12.1-05-07.
31 Because the Posse Comitatus Act, 18 U.S.C. § 1385 (2006) [hereinafter PCA] does not apply to the National Guard
when not in federal status or under federal control, there is no federal law prohibiting the National Guard from
participating in direct law enforcement actions. Whether the National Guard forces of any state may otherwise
participate in such actions therefore depends upon the law of the individual states. Concerning application of the PCA
to the National Guard, see also text infra subparagraph C.2.
32 For the purposes of the National Guard, “law enforcement support” usually means assistance provided to civilian law
enforcement agencies at their direction or request - a meaning which may differ for purposes of the PCA regarding
federal military forces.
33 For example, Arkansas law at ARK. CODE ANN. § 12-61-112(a) provides the following:
(a) Whenever such forces or any part thereof shall be ordered out for service of any kind, they shall
have all powers, duties, and immunities of peace officers of the State of Arkansas in addition to all
powers, duties, and immunities now otherwise provided by law.
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at large.34 Still others provide that the National Guard has certain specific authorities in limited
situations.35 Depending upon the state statutes, the National Guard’s authority to act as peace
officers may apply to operations in a Title 32 status, SAD status, or both.36 Regardless, the
National Guard judge advocate must participate in the effort to tailor the RUF to the particular
mission, state law, and the policies of the state Adjutant General.37 See DOPLAW Handbook,
Supp., App. 12-3, for an information paper discussing the impact of state criminal law on RUF.
c. Subjects Appropriate for Inclusion in Law Enforcement, Law Enforcement
Support, and Security Mission RUF
(1) Use of Force and Level of Force Generally
If the National Guard mission is law enforcement, law enforcement support, or security, the mission
OPLAN/OPORD or its RUF must specify what type of government weapons, if any, may be used
for mission accomplishment and self defense. How those weapons may be used, what law
enforcement-type actions (such as search and seizure) must or may be taken, and the level of force
that may be used should also be covered. If authority is not granted for any law enforcement-type
action (such as search and seizure) under any circumstances for mission accomplishment, the RUF
or mission OPLAN/OPORD should expressly deny the use of force for the specified purpose.
Conversely, if National Guard personnel are allowed to take some law enforcement-type actions as
a last resort, such as the power to detain and question and/or search persons only when civilian law
enforcement personnel are unavailable or where National Guard personnel have been directed to do
so by civilian law enforcement personnel, this should be stated. The RUF must also address the
degree of force authorized for National Guard personnel in the execution of law enforcement-type
actions for mission accomplishment, self defense, or both.
34 See, e.g., Iowa RUF for the airport security mission “Task Force Freedom Flight - Airport Security Instructions,”
para. 4 (on file with CLAMO), and its reliance, for the purposes of arrest of civilians committing crimes in the presence
of National Guard personnel, on Iowa Code § 804.9, granting ordinary citizens the power of arrest; Nebraska Rules of
Interaction (ROI) #02, 2 Oct. 2001, para. 7 (“You must apply the use of force rules that apply to a private citizen under
state law”) (on file with CLAMO); and Use of Force and Arrest Powers of New York National Guard Soldiers, para. 5
(“a National Guardsman’s power and authority under New York state law are the same as any other citizen”) (on file
with CLAMO). When conducting SAD missions in the wake of the 11 Sept. 2001 terrorist attacks, the NYARNG had
no greater power than the normal citizen regarding arrest authority. Although a New York State Emergency Act
provided a mechanism for the NYARNG to be designated as peace officers, the provision was not used because the Act
also required a lengthy training period. See NYARNG Transcript, supra note 12, at 52.
35 See, e.g., GA. CODE ANN. § 38-2-6-38-2-6.1.
36 For example, Ark. Code Ann. § 12-61-112 applies “Whenever” National Guard forces are ordered to “service of any
kind,” but Ga. Code Ann. § 38-2-6 to 38-2-6.1, when read in toto, provide that the Governor has the power “in case of
invasion, disaster, insurrection, riot, breach of the peace, combination to oppose the enforcement of the law, or
imminent danger thereof” to declare an emergency ordering the National Guard into “the active service of the state” and
granting the National Guard the authority to “quell riots, insurrections, or a gross breach of the peace or to maintain
order.”
37 For the purposes of the airport security mission, some states adopted more restrictive RUF than state law allowed.
See, e.g., Annex E Rules of Engagement (ROE), para. 2, as approved by Wisconsin Attorney General Doyle (4 Oct.
2001) (in which Wisconsin National Guard authorities explained that the effect of Wis. Stat. Ann. § 939.22(22) was to
grant National Guard personnel the authority of peace officers, but that the policy of the National Guard was to grant
only those “specified tasks of the requesting civil authorities denoted by special operations orders”) (on file with
CLAMO).
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For example, if a law enforcement support or security mission includes guarding buildings or real
property, the RUF must address whether persons entering or leaving the property may be detained
and questioned or searched by National Guard personnel. If detention, questioning and/or search
are authorized, then the RUF must state whether and to what degree force may be used to enforce
the action.
Moreover, for missions that include guarding buildings or real property, the RUF must address
whether force, up to and including deadly force, may be used to defend the property. Some airport
security mission RUF, for instance, provided that deadly force could only be used to defend
specially designated property.38 When this device is used, National Guard judge advocates must
ensure that a statutory or other system exists for the designation of this property.
(2) Definitions
Definitions may be appropriate for inclusion in all RUF but they are particularly necessary in armed
law enforcement, law enforcement support, or security operations. Using law enforcement-type
terms that National Guard personnel may not be familiar with may create confusion and may have
unintended consequences. Terms commonly defined include: deadly weapon; firearm; reasonable,
necessary, or minimum force; peace officer; probable cause; reasonable suspicion; reasonable
belief; deadly and non-deadly force; arrest (civilian or military term); apprehension; detention;
property vital to public health or safety (or other similar phrase); forcible felony (when defense is
predicated on commission of a forcible felony); hostile act; hostile intent; proportionality or
proportional force; felony; and misdemeanor. Additional terms are included in Appendix 12.
(3) Arming Orders
If firearms or other weapons with the capability to kill or severely injure another will be issued, then
the RUF should provide for positive control by experienced NCOs or officers. This control
includes the employment of the firearms and ammunition or other weapons. One method is to
specify how Soldiers will carry their weapons, ammunition, and other ancillary equipment. This
control can be expressed through arming orders. Arming orders are a state of preparedness to use
force. They should not be confused with the authority to use force once a Soldier is faced with a
threat. Arming orders are typically written in a chart or matrix format, specifying where or how the
weapons will be carried and where ammunition will be kept, including when and where loaded
magazines should be carried and when rounds should be chambered. Use of weapons other than
firearms should also be addressed if those weapons will be issued.39 Below is an example of
arming orders used by the Indiana National Guard for the airport security mission.
38 On the other hand, the NYARNG RUF did not allow the use of deadly force to protect property. Deadly force was
only authorized in self-defense “if there was a threat of death or grievous bodily harm.” See NYARNG Transcript,
supra note 12, at 70.
39 Other weapons may include use of water, batons, pepper spray, or tasers (electric stun guns). In airport security
mission RUF, some states began their use of force matrix at a much lower level than would usually be the case, such as
with an unarmed Soldier or airman first attempting verbal persuasion, then using “unarmed defensive techniques,” then
using non-deadly physical force to restrain the aggressor, then stating that a weapon would be drawn if the aggressor
continued his or her aggression, then drawing and displaying the weapon, then stating that a round would be chambered,
etc. Commanders using this technique must of course explain that in a true tactical situation, the command does not
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Arming
Rifle or
Pistol
Baton
Chamber
Ammo
Bayonet
Weapon/
Order
Shotgun
Safety
Not
AO-1
Sling
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-2
Port
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-3
Sling
Holster
Hand
Empty
In Pouch
ON
issued
Not
AO-4
Port
Holster
Hand
Empty
In Pouch
ON
issued
In
Not
AO-5
Port
Holster
Hand
Empty
ON
Weapon
issued
Locked &
In
Not
AO-6
Port
In Hand
Belt
ON*
Loaded
Weapon
issued
* Leave safety on until ready to fire
(4) THREATCON Levels Matched to RUF
Another method of control includes adjusting the readiness posture in relation to the threat
condition,40 or THREATCON.41 One way to make RUF dependent upon THREATCON level is
through use of arming orders in which the order number (condition of readiness of the firearm or
other weapon) relates to the THREATCON in effect.42
(5) Special Orders
There are other subjects appropriate for inclusion in National Guard RUF for law enforcement, law
enforcement support, or security missions that concern use of force. Subjects to consider include:
the relationship of National Guard personnel to civilian law enforcement personnel,43 acting at the
expect that each service members must always use each and every incremental increase in the use of force; in some
instances it would be futile and could risk injury to do anything except for, drawing and firing a weapon.
40 The THREATCON levels are ALPHA, BRAVO, CHARLEY, and DELTA. U.S. DEP’TS OF ARMY AND AIR FORCE,
NATIONAL GUARD BUREAU PAM 190-1/AIR FORCE NATIONAL GUARD PAM 208-2, App. A (15 July 1986) [hereinafter
NGBP 190-1/ANGP 208-2]. Note that this is different from the Force Protection Condition (FPCON) approach used by
DoD and the Army. Army FPCONs are progressive levels of security measures implemented in response to threats
facing DoD and Army personnel, information and critical resources. See U.S. DEP’T OF DEFENSE, DIR. 2000.12, DOD
ANTITERRORRISM PROGRAM (18 Aug. 2003).
41 Texas Rules for the Use of Force for the airport security mission specifically relied on THREATCON levels. Other
states providing for “levels” of threat or RUF for the purposes of the airport security mission were Arkansas and North
Carolina.
42 The THREATCON levels provided in NGBP 190-1/ANGP 208-2, supra note 40, provide for increased security
measures depending on the particular THREATCON level then in effect. See id. App. A, paras. A-7-A-10.
43 In a mission supporting civil authorities, National Guard personnel are typically instructed to rely upon civilian law
enforcement personnel to detain and question persons, conduct searches and seizures, and to apprehend offenders, and
to take any of these steps themselves only when requested or directed by those civilian law enforcement personnel or
only in the most exigent of other circumstances. See NGR 500-1, supra note 8; and, for the purposes of the airport
security mission, 29 Sept. 2001 ARNG Airport Security Instructions, para. 2-1 [hereinafter ARNG Airport Security
Instructions] (on file with CLAMO). See id. para. 3-6b, limiting the National Guard to a law enforcement support role
during the airport security mission.
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direction of civilian law enforcement,44 defense of others, pursuit of suspects, retention of
evidence,45 use of restraints, reports of firearm discharge,46 or other use of deadly force,
accountability of weapons and ammunition, and a prohibition against use of non-issued weapons
and ammunition should be considered.
C. Specific RUF Issues
1. RUF in Interstate (Cross Border) Operations
National Guard forces have for many years crossed state borders both for training in a Title 32
status for their federal mission and for assisting neighboring states in SAD status. Naturally, for
many of these operations, especially training missions, the units carry their organic weapons. In
some states, however, state code or constitutions complicate this practice. For example, § 33 of the
Montana Constitution provides that no “armed persons . . . shall be brought into this state for the
preservation of the peace . . . except upon application of the legislature . . .” and § 431.011 of Texas
Statutes provides that a “military force from another state . . . may not enter the state without the
permission of the governor.” Statutes or constitutional provisions like these can impede the timely
flow of National Guard forces from one state to another.
Federal Supremacy Clause immunity47 may be a viable defense available to a National Guard force
crossing a state border for federal training purposes in violation of a proscription like that in Texas
statutes referred to above. If Federal Supremacy Clause immunity is successful in defense of a
violation of state law, then State RUF would not appear to be an issue in cross-border operations
(unless the RUF themselves are unconstitutional),48 except for those operations undertaken in an
SAD status.49
Cross-border operations by state National Guard units in an SAD status for the purposes of disaster
relief or other state emergencies within a second state have typically been accomplished pursuant to
the several disaster-related or “National Guard-only” interstate compacts.50 The latest adopted or
44 Actions taken at the direction of federal personnel will help support the argument that National Guard members are
shielded by federal Supremacy Clause immunity from state criminal charges. See text infra, subparagraph C.2.; also
see, West Virginia v. Laing, 133 F. 887 (4th Cir. 1904) and James River Apartments, Inc. v. Federal Hous. Admin., 136
F. Supp. 24 (D. Md. 1955), in which persons who otherwise had no federal or other governmental status were given
federal Supremacy Clause immunity by judicial opinion because they acted at the behest of federal officials. Another
benefit of taking law enforcement-type action only at the express request or direction of law enforcement personnel may
be that National Guard members are in those cases provided with state immunity from civil or criminal prosecution.
See, e.g., UTAH CODE ANN. § 76-2-404; CONN. GEN. STAT. § 53a-22(d)-(e).
45 DA Form 3316R (Detainee Turnover Record) may be used to inventory items taken from detainees.
46 ARNG Airport Security Instruction, supra note 43, para. 3-17a(3), required that the discharge of firearms, among
other matters, by National Guard personnel serving in that mission be reported to the National Guard Bureau as a
serious incident.
47 See text infra subparagraph C.2.
48 For an example of unconstitutional RUF, see Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997).
49 It is even more likely that an armed National Guard force would be seen as a threat if entering the state in an SAD
status to control civil unrest than in a purely training mission under 32 U.S.C. § 502(f). Some MSCA missions
undertaken for state purposes may be counted as training; however, under NGR 350-1, supra note 13, para. 2-1a(9), and
federal Supremacy Clause, immunity may be available to protect that mission or part of that mission.
50 AMERICAN LAW SOURCE ON-LINE, United States - Interstate Compacts, http://www.lawsource.com/also/usa.cgi?usi
(last visited Jul. 7, 2011) provides a significant listing of interstate compacts, including those of most direct concern to
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enacted of these compacts available for use in disaster relief or other state emergencies by the
National Guard, and the one most recently approved by Congress, is the Emergency Management
Assistance Compact (EMAC).51 All states now have codified the EMAC, most without change.
Since its approval by Congress in 1996, many states have used EMAC for various state emergencies
and the possibility of its use in situations where the use of force may be necessary is clearly great.52
EMAC, like all congressionally-approved interstate compacts, is federal law.53 As such, it is
applied in the same manner as other federal legislation.54 This position in the legal hierarchy
provides a basis to overcome state constitutional provisions that would otherwise serve to prohibit
the entry of National Guard members from other states.55 Further, peace officer powers granted by
the requesting state’s statutes only to the National Guard forces of that state56 may be granted to the
National Guard forces of the sending state by the use of one or more EMAC supplemental
agreements.57
Finally, National Guard judge advocates advising the State Adjutant General or Task Force
commander for the sending and/or receiving state in cross-border law enforcement operations in a
SAD or Title 32 status under EMAC should take note of Art. XIII (“Other Provisions”) of that
the National Guard, the Emergency Management Assistance Compact (EMAC); the Interstate Civil Defense and
Disaster Compact; the Interstate Emergency Management Compact; the Interstate Mutual Aid Compact; and the
National Guard Mutual Assistance Compact. This on-line list includes neither the Massachusetts Compact with New
York for Military Aid in an Emergency nor the New England States Emergency Military Aid Compact.
51 The Emergency Management Assistance Compact (EMAC) was approved by Congress in October of 1996, see PUB.
L. NO. 104-321, 110 Stat. 3877 (1996) [hereinafter EMAC]. At the time of the 9/11 terrorist attacks, New York was not
a member of the EMAC. New York did, however, have a 1951 Mutual Aid Compact with New Jersey, Vermont, and
Massachusetts. A major issue was what state would have command and control over service members from other
states. NYARNG Transcript, supra note 12, at 35-6.
52 The Emergency Management Assistance Compact Guidebook & Standard Operating Procedures manual of the
National Emergency Management Association notes that EMAC has been used for several large-scale emergencies,
such as Hurricane Andrew, and notes that it was used in response to 9/11 terrorist attacks on the World Trade Center in
New York. MUNRO, DOUGLAS P., THE EMERGENCY MANAGEMENT ASSISTANCE COMPACT GUIDEBOOK & STANDARD
OPERATING PROCEDURES (Diane Pub. Co., 1997) [hereinafter EMAC SOP manual].
53 See, e.g., Texas v. New Mexico, 462 U.S. 554 (1983).
54 See, e.g., Skamania County v. Woodall, 16 P.3d 701 (Wash. 2001).
55 The EMAC provides that a request by one party state for mutual aid from a second state is mandatory in that the
request must be honored, subject only to the second state’s right to retain within that state those resources as are
necessary for self protection. EMAC, supra note 56, art. IV, para.1.
56 See ARK. CODE ANN. § 12-61-112(a).
57 The EMAC provides that the power of arrest is granted to the emergency forces of the sending state if that power is
“specifically agreed to” by the receiving state. EMAC, supra note 51, art. IV, para. 2. If the statutes of the receiving
state grant only the National Guard forces of that state the authority of a peace officer, that limitation might be
overcome by providing for the expanded authority of those forces from the sending state into one or more
supplementary agreements pursuant to EMAC Article VII. Including this authority in a supplemental agreement could
overcome the limitations to a state’s own National Guard units because an agreement implementing an interstate
compact that has been approved by Congress has been held also to have the force and effect of federal law. See Tahoe
Reg’l Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985). A related issue is whether the executive branch
emergency forces of two states whose legislative branches have granted no peace officer authority to either of their
respective National Guard forces can nevertheless give themselves those powers and their supporting RUF by the
inclusion of those powers in an EMAC Article VII supplementary agreement.
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compact.58 This provision is untested in the courts59 but its apparent intent is to apply the PCA to
National Guard operations, by denying the use of EMAC to the National Guard60 in situations
where the PCA would prevent the active components of the Army and Air Force from providing
direct law enforcement services. Under most situations, this proscription will have little impact on
National Guard cross border operations and the RUF because National Guard activities are usually
limited to providing law enforcement support to civil authorities, rather than providing direct law
enforcement service.61 National Guard judge advocates should be mindful of this limitation,
however, so that if EMAC is relied upon for any aspect of a cross-border operation to which Art.
XIII might apply, National Guard authorities will be advised appropriately.
2. State Criminal Liability of National Guard Members for Use of Force
Immunity from state criminal charges for wrongful use of force by National Guard personnel was a
topic addressed by some National Guard RUF for the airport security mission.62 The subject is
addressed here in the context of National Guard personnel on active duty for the purpose of federal
domestic law enforcement support or federal security mission63 and both Title 32 status64 and SAD
status for the purposes of a state emergency. As discussed at the beginning of this chapter, state
criminal law and therefore state RUF apply to both missions in Title 32 and SAD statuses. The
focus of criminal liability under state law while in federal active duty status or in a state status is on
the doctrine of Federal Supremacy Clause immunity.65
58 See EMAC, supra note 51, art. XIII (providing that “[n]othing in this compact shall authorize or permit the use of
military force by the National Guard of a state at any place outside that state if any emergency for which the President is
authorized by law to call into federal service the militia or for any purpose for which the use of the Army or Air Force
would in the absence of express statutory authorization be prohibited under Section 1385 of title 18, United States
Code”).
59 Telephone Interview with Ms. Amy Hughes, Policy Analyst for the National Emergency Management Association
(NEMA), Lexington, KY (June 2003), which administers the NEMA website and provides support for the
administration of EMAC.
60 In other words, not prohibiting the National Guard from crossing a state border in a particular case but only
prohibiting the use of EMAC as the authority to do so, so that if another interstate compact exists upon which to rely, or
in the event that use of such a compact is considered unnecessary, the National Guard force may still cross the border in
an SAD status for the purposes of an armed law enforcement mission.
61 See NGR 500-1, supra note 8, para. 4-2. The National Guard instruction governing the airport security mission
contemplated cross border operations but provided that National Guard forces were not to participate in law
enforcement operations unless in exigent circumstances. ARNG Airport Security Mission Instruction, supra note 46,
paras. 2-1e, 2-8.
62 See, e.g., Airport security mission RUF for the states of Nevada, New Jersey, and New York (on file with CLAMO).
63 Such as during the 2002-2003 Air Force security mission, in which approximately 8,100 Army National Guard
Soldiers were mobilized under 10 U.S.C. § 12302 for the purposes of providing security at U.S.A.F. and Air National
Guard installations.
64 This was the case in the airport security mission.
65 Since National Guard Soldiers performing security duties may be subject to both criminal and civil liability based on
both state and federal law for use of force incidents, the concepts of federal Supremacy Clause immunity and
governmental qualified immunity under both state and federal law will be critical. For simplicity, this discussion is
limited to federal Supremacy Clause immunity.
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a. Active Duty Federal Mission
Although the early history of the doctrine of Federal Supremacy Clause immunity66 began
somewhat before the case was decided,67 the opinion of the Supreme Court in In Re Neagle, 135
U.S. 1 (1890), is regarded as the seminal case establishing the theory that the employees of the
United States cannot be limited, by prosecution under state criminal laws, by the states in their good
faith, rightful, and proper execution of their federal duties.
Mr. David Neagle, who served as a Deputy U.S. Marshal and bodyguard to Mr. Justice Stephen
Field, then a sitting member of the U.S. Supreme Court, was charged with murder by the state of
California after killing another individual, Mr. David Terry, whom Neagle thought was reaching for
a weapon in an attempt to kill Mr. Justice Field. Neagle successfully argued that in killing Mr.
Terry, he (Neagle) did no more than was required of him by his federal position as Deputy Marshal
and bodyguard and that California should not be allowed to proceed in its prosecution lest that state
by implication be allowed to control the proper execution of his federal duties.
Since the Neagle case, the defense that proved so valuable to Mr. Neagle has been applied
successfully numerous times in judicial opinions on behalf of federal employees and other persons
carrying out federal missions, including federal military personnel carrying out federal military
missions. Those federal active duty military defendants have successfully employed the “Neagle
defense” of Federal Supremacy Clause immunity against state criminal charges for improper
operations of a motor vehicle,68 defamation,69 assault,70 and murder in the course of guarding
prisoners of the U.S. Army.71 There is no limitation expressed in any of those opinions as to the
type or character of the state offense to which the doctrine might be applied on a service member’s
behalf.72
In only one reported military-related case has anything like federal military RUF been clearly the
subject of a Federal Supremacy Clause defense to state criminal charges. In United States v.
Lipsett, 156 F. 65 (W.D. Mich. 1907), a case involving the shooting of an innocent bystander by a
military guard, the Court examined the manual of guard duty used for training guards assigned to
military prisoners. The Court found that per the manual, the guard’s duty in response to an
attempted escape was to first call for the escapee to halt, and if the escapee did not halt, to then fire
upon the prisoner.73 In this case, based largely on the court’s understanding of the guard’s federal
duties, the guard was acquitted of manslaughter.
66 See U.S. CONST. art. VI, cl. 2 (Supremacy Clause).
67 A U.S. Supreme Court case predating Neagle is Tennessee v. Davis, 100 U.S. 257 (1880).
68 See Montana v. Christopher, 345 F. Supp. 60 (D. Mont. 1972) (operating a vehicle without lights); Commonwealth v.
Thomas, 612 F. Supp. 14 (W.D. Pa. 1984) (violation of state weight limits).
69 Howard v. Sikula, 627 F. Supp. 497 (S.D. Ohio 1986).
70 See Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945); Commonwealth v. Johnson, 297 F.Supp. 877 (W.D. Pa. 1969).
71 See In re Fair, 100 F. 149 (C.C.D. Neb. 1900) and United States v. Lipsett, 156 F. 65 (W.D. Mich. 907).
72 The only limitation is that the act in question be taken in good faith and that the act be truly necessary for the
purposes of the federal mission. Thus, the defense has not been judicially applied in defense to state charges of
unintentional death where the particular maneuver of a government vehicle was not required by the federal military
mission. See State v. Ivory, 906 F.2d 999 (4th Cir. 1990).
73 United States v. Lipsett, 156 F. 65 (W.D. Mich. 907).
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The only reported case found involving federal RUF is a non-military civil case involving the RUF
used by the FBI in the shootings and standoff between alleged weapons trafficker Randy Weaver
and the FBI at Ruby Ridge, Idaho, in 1992. In Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997),
the Court held the “shoot any armed male” FBI RUF to have been overly broad and to have
deprived the plaintiff of his constitutional rights under the Fourth Amendment of the Constitution.
Thus, not only may a federal officer, in the performance of his duties unlawfully deny the victim his
constitutional rights, but the RUF may be subject to the same Fourth Amendment constitutional
standard as the actions of the federal officer or agent.
b. Title 32 or SAD Status and Mission
The beginning of this chapter discussed the holding of Perpich74 that National Guard personnel in a
federal training or “other duty” status under 32 U.S.C. 502 are a state military force, and
consequently, their RUF are derived from state criminal and civil law. Under this analysis, the best
defenses to the possibility of a state criminal charge75 resulting from good faith compliance with
state RUF include:
• A state statute providing criminal immunity for National Guard personnel.76
• An agreement with the State Attorney General (possibly at the time the state Attorney General
gives any approval of the RUF77) that National Guard personnel will not be prosecuted
criminally for good faith compliance with the National Guard RUF.78
• Extension of the doctrine of Federal Supremacy Clause immunity to National Guard personnel
if acting under federal control.
The application of Federal Supremacy Clause immunity to a state military force may rest upon the
accumulation of indicia of a federal mission such as: federally-funded orders, use of federal
equipment, governance by federal regulations, execution of the mission on a federally-owned or
governed facility, application of the state RUF through execution of supplemental agreements under
EMAC,79 execution of the mission details at the direction of federal authorities such as Department
of Homeland Security personnel, contracts or memoranda of agreement (MOAs) with federal
officials, or orders to Title 32 duty at the request of federal government officials. Caselaw clearly
74 Perpich v. Department of Defense, 496 U.S. 334 (1990).
75 Of course, because the subject is the possibility of state criminal charges, there is no value to tort law “hold
harmless” agreements or the possible application of both the Federal Tort Claims Act and state tort claims laws.
76 New York, for example, has a statute that grants civil and criminal immunity to members of the New York National
Guard ordered into active service of the state for “any act or acts done by them in the performance of their duty.” N.Y.
PENAL LAW § 235. See also, NEV. REV. STAT. 412.154(1). In the case of the statutory immunity predicate for National
Guard missions for which firearms are issued, the most basic statute providing for use of force may be a statute
providing for immunity for the carrying of firearms. See, e.g., N.J. REV. STAT. § 2C: 39-6(1).
77 The ARNG airport security instruction required the National Guard RUF used for that mission be reviewed by the
state Attorney General. ARNG Airport Security Instruction, supra note 46, para. 3-6a
78 This type of agreement would have to be predicated upon the approval of the National Guard RUF by the state
Attorney General. It also must be based upon the Attorney General’s statutory or common law powers of supervision
over county or district prosecutors; the more independent the local prosecutor, the less value of any agreement with the
state Attorney General. Where local prosecutors are mostly independent, assurance can only come from the
agreement(s) of the local prosecutor(s).
79 Thus making the supplemental agreement and the RUF contained therein a matter of federal law. See, e.g., Tahoe
Regional Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985).
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indicates that Federal Supremacy Clause immunity should be applied to cases involving a federal
mission whether or not the subject of that protection is a federal employee.80
3. RUF in Mixed National Guard and Active Component Operations
Given the doctrine of Federal Supremacy Clause immunity, federal active duty Soldiers have less
reason to consider themselves bound by the exact restrictions of a state’s criminal law and more
reason to follow the requirements of the SRUF than do National Guard personnel in Title 32 or
SAD status. For this reason, in domestic law enforcement support or security operations involving
both active component and National Guard judge advocates must pay close attention to the RUF if
active duty and National Guard Soldiers have similar duties. The RUF applicable to National
Guard personnel must respect state limitations on law enforcement-type activities by the National
Guard (such as searches and seizures) and the use of force to support those activities.81
D. ROLE OF THE NATIONAL GUARD JUDGE ADVOCATE
1. Drafting RUF
While RUF are an S-3/G-3 and commander responsibility, judge advocates should assist in drafting
them. In addition, judge advocates should be directly involved in the production of RUF-related
documents, such as information papers, memoranda of law, and memoranda of agreement with
supported civil authorities.82 Some MOAs may contain hold harmless provisions83 which the judge
advocates should review, negotiate, and advise upon. If the RUF used by the National Guard in a
law enforcement, law enforcement support, or security mission refers the reader to, or adopts the
RUF currently used by a state law enforcement agency, judge advocates must review the
documents relied upon for the RUF. The documents should be carefully reviewed to ensure
compatibility with Soldiers’ skills, training, capabilities, weapons, and mission. It may be
necessary to add provisions specifically applicable to the National Guard.
80 For cases in which defendants, who had no federal employee status, were subject to state criminal charges
successfully argued the application of federal Supremacy Clause immunity based upon a federal mission, see, e.g., West
Virginia v. Lang, 133 F. 887 (4th Cir. 1904) (member of U.S. Marshal’s posse made of ordinary citizens charged with
murder); Connecticut v. Marra, 528 F. Supp. 381 (D. Conn. 1981) (informer cooperating with FBI charged with
attempting to bribe a city policeman).
81 This does not necessarily imply that state RUF will always be more restrictive than the SRUF. For example, in civil
disturbance support operations in which NGR 500-1 applies, when federal equipment is used the RUF provides that
deadly force may be used for the prevention of the destruction of “property vital to public health and safety”
(undefined). See NGR 500-1, supra note 8, paras. 4-6 and 4-6b(3)(c). Some states followed this authorization for the
purposes of the airport security operation, even though that operation was not a civil disturbance operation, but was an
airline security operation. See, e.g., Missouri RUF for airport security mission (“Commander’s Guidance on Use of
Force”), Force Continuum Deadly Force, para. 3c (on file with CLAMO). In contrast, the analogous provision of the
draft SRUF, supra note 5, para. 5c(2), authorizes the use of deadly force to protect president-designated assets vital to
national security, which by definition is property the theft or sabotage of which must create an “imminent threat of
death or serious bodily harm.”
82 The National Guard Bureau Instruction governing the airport security mission required that states execute
memoranda of understanding or memoranda of agreement (MOU/MOA) with supported airports for missions longer
than thirty days. See ARNG Airport Security Mission Instruction, supra note 46, para. 2-8a.
83 See, e.g., Memorandum of Understanding with the Kansas National Guard and supported airports, para. 11 (on file
with CLAMO).
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2. Negotiating RUF with State Agencies
Judge advocates will want to determine whether the RUF, MOA, OPLAN/OPORD, training
documents, and other matters relating to the RUF are comprehensive, legally accurate, and well
understood by the drafters and commanders. At times, other state officers or agencies, such as the
Attorney General, district attorneys, or state law enforcement agencies may be involved in drafting
or approving the RUF. In such cases, judge advocates may find it necessary to educate and
negotiate issues that meld legal requirements with operational imperatives. For example, in New
York after September 11th, New York Army National Guard judge advocates assisted in drafting
the Governor’s airport security plan, including RUF. The plan and RUF were staffed through the
Adjutant General and the Governor’s Counsel Office, and approved by the Governor on 29
September 2001.84
3. Providing Legal Advice on Liability
Counseling decision makers on the legal requirements necessary to protect Soldiers from civil and
criminal liability can be a complicated task. The primary focus of the judge advocate’s counseling
will be the state Adjutant General; the Deputy Chief of Staff for Operations; the Plans, Operations,
and Training Officer; and the Task Force or other commanders.
4. Training
Judge advocates should seek opportunities to assist trainers responsible for ensuring that individual
Soldiers learn and apply the correct standards for force. In this role, judge advocates can write or
assist in writing information papers, training vignettes, and legal memoranda. Also, the use of a
training certification process may be useful.85
84 NYARNG Transcript, supra note 12, at 184.
85 See, e.g., State of Nevada Military Department Legal Annex to Rules of Engagement, para. VI 10 and Rhode Island
Task Force Green Security Detail, App. A (Rules for the Use of Force) (copies on file with CLAMO).
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