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U.S.C. § 112). These members are also subject to “Federalization” under Title 10 and can also be
called to serve in SAD status.
d. State Civilian Employees
In addition to Federal Technicians, the State NG units employ civilians pursuant to Master
Cooperative Agreements (MCAs). These personnel are authorized to use vehicles, property, and
equipment provided to the ARNG by the Federal government to accomplish their duties under the
master cooperative agreement. Many guard units employ State employees in security and in civil
engineering. These employees may or may not be members of the National Guard of that State. In
other words, membership in the National Guard is not a condition of their employment as it is for
Federal Technicians.
e.
“Traditional” National Guard Members
The majority of the members of the National Guard within a State are “traditional” members. In
other words, they hold civilian jobs in the community and are only in a military status when
performing drill, training, or other military duty. These members may also be called to serve in two
other statuses:
1) “Federalized” status under Title 10, and 2) SAD status under State law. Each
member of the National Guard can be placed into different personnel categories, one at a time.
These categories are important when determining matters such as command authority, benefits,
discipline, and immunities.
5.
Personnel with Unique HLS/HLD Missions
a. Weapons of Mass Destruction (WMD)/Civil Support Teams (CST)
Pursuant to 10 U.S.C. § 12310(c), WMD-CSTs support emergency preparedness programs to
prepare for or to respond to any emergency involving the use of a weapon of mass destruction.
These DoD-certified teams are State controlled because they perform duty pursuant to 32 U.S.C. §
502(f), although their missions are Congressionally mandated. WMD-CSTs are trained to support
(they are not first responders) civil authorities at a Chemical, Biological, Radiological, or Nuclear
(CBRN) incident site by identifying the agents/substances, advising on responses, and otherwise
assisting with requests for State support. Currently there are 57 full-time teams: at least one in
every U.S. State, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. By
Federal statute, the WMD/CST teams may not operate outside of the continental United States
(OCONUS). WMD-CSTs are discussed in greater depth in Chapter 6 of this Handbook.
b. National Guard Enhanced Response Force Package (NG-CERFP)
The initial establishment of CERFPs placed at least one in each FEMA Region. There are currently
17 validated CERFPs.111 NG-CERFPs typically use M-Day Soldiers to provide Governors or a
combatant commander with the capabilities to locate and extract victims from a contaminated area,
provide patient and casualty decontamination, and perform medical triage and treatment. These
111 Homeland Response Force, National Guard,
et%20(Dec.%202017).pdf (last visited Jul. 19, 2018).
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response forces may provide support to civilian first responders within the first 6 to 72 hours after a
CBRN event. NG-CERFPs may operate in SAD, Title 32, and Title 10 statuses. It is important for
the judge advocate to know the deployed status of these forces if required to provide them legal
advice. CERFPs are also briefly discussed in Chapter 6 of this Handbook.
6. Miscellaneous Areas of Caution
a. Command and Control - Dual Status Commanders
Pursuant to the Constitution, the militia is under the exclusive command and control of the
Governor unless and until “called into Federal service” or otherwise Federalized as a Reserve
Component. Thus, Federal status military officers cannot normally exercise command and control
over State status National Guard members nor can State status National Guard members exercise
command and control over Federal troops.112 Under strictly prescribed circumstances, two statutes
authorize one officer to exercise command and control over Federal and State status service-
members even though such authority is exercised in a mutually exclusive manner.113 The dual
status command option provides unity of effort and facilitates the maintenance of a common
operating picture for both the Federal and State military chains of command.
The first statute, 10 U.S.C. § 315, allows regular a commissioned officer in the Army and Air Force,
with the permission of the President and the consent of the State’s Governor, to accept a National
Guard commission and be detailed to duty with the State’s National Guard.114 Although it has also
been argued that 32 U.S.C. § 104(d) allows the President to detail commissioned officers of the
National Guard, the Regular Army, or Regular Air Force to command Title 32 troops, this detailing
would not give the officer the ability to issue direct orders to those troops unless the commanding
officer was also commissioned in that State’s National Guard.115 The second statute, 32 U.S.C. §
325, as amended by the FY04 National Defense Authorization Act,116 allows a commissioned
112 See also Perpich, 496 U.S. 334, 348 (1990).
113 Though not true military “command and control,” coordinating authority has been used by the USAF to allow a
Federal status officer to control Federal and State forces. The concept works because one commander tells his forces to
obey the orders of the other commander or risk discipline. The concept has been used while fighting wildfires and it has
recently been accepted as Air Force doctrine as a method of promoting “unity of effort between Active, Federalized Air
National Guard, Reserve, civilian, contract and Auxiliary Air Force personnel operating under Title 10 U.S. Code, and
non-Federalized Air National Guard forces operating under Title 32 U.S. Code or [S]tate [A]ctive [D]uty.” It must be
noted that others contend that coordinating authority cannot be used during operations but only for planning, referencing
the definition of coordinating authority in JOINT CHIEFS OF STAFF, JP 1- 02, DEP’T OF DEFENSE DICTIONARY OF
MILITARY AND ASSOCIATED TERMS (8 Nov. 2010). Many contend that a State status officer cannot use coordinating
authority to supervise Federal troops because of Federal supremacy.
114 A legal opinion of the OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE, OpJAGAF 1998/20, (19 Feb.
1998), notes that State law will determine whether a Title 10 officer who accepts such a commission may be placed in
command of a non-Federalized unit. The legal opinion also notes that such a determination is not necessary for
Federalized National Guard members serving in their own State. It also states that active duty officers, or guard officers
in a Title 10 status, placed in command of non-Federalized Guard units will be subject to “two simultaneous chains of
command,” a “situation that is neither legally precluded nor unusual.”
115
32 U.S.C. § 104(d) does not allow such an action if it would “displace” a “commanding officer of a unit organized
wholly with a [S]tate or territory.” OpJAGAF 1998/20, supra note 114, opines that there would not be a displacement
if the Governor, or other State authority, of the affected State concurred with the detailing of the Regular Air Force
officer.
116 Title 32 U.S.C. § 325 currently reads as follows (amendments are underlined):
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officer in a State’s National Guard to also accept a commission in the Federal military, and serve in
dual command, so long as the President grants the authority and the State’s Governor consents (in
the case of the District of Columbia National Guard, Commanding General). On 14 April 2011,
President Obama delegated the Presidential functions and authority under both Title 32 U.S.C. §§
325 and 315 to the Secretary of Defense.
A request to establish a Dual Status Commander under 32 U.S.C. § 325 could come from either
DoD or the TAG of a particular State. Required implementation documents would be the
Presidential authorization, Gubernatorial consent, and a Memorandum of Understanding (MOU)
between the two mutually exclusive Federal and State military commands outlining the
responsibilities and authority of the Dual Status Commander.117 While the Dual Status Commander
may receive orders from two chains of command, those chains of command must recognize and
respect that the Dual Status Commander exercises all authority in a completely mutually exclusive
manner, i.e., either in a Federal or State status but never in both statuses at the same time. In a State
status, this Dual Status Commander takes orders from the Governor through the Adjutant General of
the State and may issue orders to National Guard forces serving in a State status. As a Federal
officer activated under Title 10, the Dual Status Commander takes orders from the President or
those Federal officers the President and Secretary of Defense have ordered to act on their behalf.
When acting pursuant to their Federal commission, Dual Status Commanders may issue orders only
to Federal forces. The same holds true for the National Guard when the Dual Status Commander is
acting pursuant to their State National Guard commission under Title 32.
Because a Dual Status Commander holds a commission under Title 32 as well as Title 10, the
officer is subject to the Posse Comitatus Act, the Federal Tort Claims Act, the Uniform Code of
Military Justice and Federal pay and entitlements. When commanding Soldiers in a non-Federal
status, the Dual Status Commander receives legal advice from a State legal advisor. Conversely,
when commanding Soldiers in a Federal status, the Dual Status Commander receives legal advice
from a Federal legal advisor.
32 U.S.C. § 325. Relief from National Guard duty when ordered to Active Duty
(a) Relief required.
(1) Except as provided in paragraph (2), each member of the Army National Guard of the United States or
the Air National Guard of the United States who is ordered to active duty is relieved from duty in the
National Guard of his State or Territory, or of Puerto Rico, or the District of Columbia, as the case may be,
from the effective date of his order to active duty until he is relieved from that duty.
(2) An officer of the Army National Guard of the United States or the Air National Guard of the United
States is not relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the
District of Columbia, under paragraph (1) while serving on active duty in command of a National Guard
unit if—
(A) the President authorizes such service in both duty statuses; and
(B) the Governor of his State or Territory or Puerto Rico, or the Commanding General of the District of
Columbia National Guard, as the case may be, consents to such service in both duty statuses.
(b) Return to State status. So far as practicable, members, organizations, and units of the Army National
Guard of the United States or the Air National Guard of the United States ordered to active duty shall be
returned to their National Guard status upon relief from that duty.
117 Pre -coordinated Memorandums of Understanding between all States and the Department of Defense covering the
appointment and use of qualified and vetted National Guard Dual Status Commanders have been executed and are
available through the National Guard Bureau.
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This “dual status” commander concept under 32 U.S.C. § 325 has been used several times since
October 2003, first with the G8 Summit at Sea Island, GA, in June 2004; followed by the
Republican and Democratic National Conventions in the summer of 2004; Operation Winter Freeze
in Vermont during the winter of 2004-05; for the brigade and battalion commanders of the Ground
Base Missile Defense system in Colorado in Alaska, respectively, in 2006; the Republican and
Democratic National Conventions in the summer of 2008; the G20 Summit in Pittsburgh, PA, in
2009. Dual Status Commanders were also used for Hurricane Irene in 2011, the 2012 NATO
Summit in Chicago, IL, the Colorado wildfires in 2012, the 2012 Republican and Democratic
National Conventions, Tropical Storm Isaac in 2012, Hurricane Sandy in 2012, and Hurricanes
Harvey, Irma, and Maria in 2017.
Section 515(c) (1) and (2) of the National Defense Authorization Act, for FY12 provided guidance
on when a dual status arrangement should be used. It states when the Armed Forces and the
National Guard are employed simultaneously in support of civil authorities in the United States,
appointment of a Dual Status Commander should be the “usual and customary” command and
control arrangement, including for missions involving a major disaster or emergency as those terms
are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. § 5122).118 Additionally, when a major disaster or emergency occurs in any area
subject to the laws of any State, Territory, or the District of Columbia, the Governor of the State
affected should be the principle civil authority supported by the lead Federal agency and its
supporting Federal entities. The Adjutant General of the State military, or the appropriate person
with delegated authority, should be the principal military authority supported by the Dual Status
Commander when acting in his or her State capacity.
b. State law
State law provides the legal basis for the National Guard of each State and territorial entity.
Moreover, State law provides the authority to perform missions, the basis for pay and benefits, rules
for the use of force, liability and immunity rules, and military justice, just to name a few areas.
Duty performed in a Title 32 status must also comply with Federal laws and policies. Personnel in a
Title 32 status also receive protections such as the Federal Tort Claims Act (FTCA) and other
Federal benefits.119 Additionally, Congress consented to the Emergency Management Assistance
Compact (EMAC) in 1996.120 Each State, territory, and the District of Columbia has ratified
EMAC.121
118 It is important to note that despite a Dual Status Commander being the “usual” arrangement in such situations, this
language “does not limit, in any way, the authorities of the President, the Secretary of Defense, or the Governor of any
State to direct, control, and prescribe command and control arrangements for forces under their command.” National
Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515(c), 125 Stat. 1395 (2011), 32
U.S.C. § 317, note.
119
28 U.S.C. § 2671 (2012 & Supp. IV 2017). Members of the National Guard in a Title 32 status are also provided
limited administrative remedies under the National Guard Claims Act, 32 U.S.C. § 715 (2012 & Supp. IV 2017).
120 The Emergency Management Assistance Compact (EMAC) was ratified by Congress in October of 1996, see Pub.
L. No. 104-321, Stat. 3877 (1996) [hereinafter EMAC]; EMERGENCY MGMT. ASSISTANCE COMPACT
http://www.emacweb.org/ (last visited Jul. 31, 2018).
121 A Congressionally sanctioned interstate compact is a Federal law subject to Federal construction. New York v. Hill,
528 U.S. 110, 111 (2000). Chapter 11, infra, contains a discussion on the impacts of the EMAC on rules for the Use of
Force for the National Guard.
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Matters become more complicated when National Guard personnel cross State borders in a State
status. It is then important to remember to examine the law of both the “originating State” and
“receiving State.” For example, some State codes of military justice apply even when members of a
State’s National Guard are performing duty in another State.122 Moreover, State law may dictate if
and when non-Federalized National Guard units may enter or leave a State for duty. For example,
some States do not allow armed National Guard units to enter their State without permission from
the Governor or legislature.123 Some States have specific authority that allows their militias to leave
the State to perform duty.124
Another very important issue to consider is that of professional licensing. Military health
professionals in a Title 10 status (physicians, dentists, clinical psychologists, nurses or others
providing direct patient care), properly licensed pursuant to 10 U.SC. § 1094, can practice in any
DoD facility, any civilian facility affiliated with DoD, or “any other location authorized by the
Secretary of Defense” to include practice in a State, D.C., or commonwealth, territory, or
possession of the United States regardless of where actually licensed.125 Arguably, this also applies
to members of the National Guard who are in a Title 32 status. However, the service-members in a
Title 32 status must also be acting within the scope of their employment to receive FTCA
protections. Thus, an analysis of their authority to accomplish assigned tasks or duty is necessary.
For example, Federal law and directives allow Title 10 personnel to provide medical treatment to
civilians (not otherwise entitled to military medical care) during emergency situations.126 The
Stafford Act does not provide that same authority to members of the National Guard in a State
Active Duty status. While National Guard personnel do receive FTCA protections while operating
in their Title 32 status, the activities performed, including medical treatment. Further, under Article
VI of the EMAC, out of state practitioners are considered “agents of the requesting State for tort
liability and immunity purposes; and no part State or its officers or employees rendering aid in
another State pursuant to this compact shall be liable on account of any act or omission in good
faith.”127 Willful misconduct, gross negligence, or recklessness are outside the scope of the
coverage offered under EMAC. EMAC is further discussed in Chapter 11 of this Handbook. The
Good Samaritan Laws of each State, listed in Table 3-1 below, may also provide insight on the
additional protections that an out-of-State healthcare professional may have in another State.
State
Good Samaritan Legislation
Alabama
Ala. Code §§ 6-5-332 to 332.4
Alaska
Alaska Stat. §§ 09.65.090-191
Arizona
Ariz. Rev. Stat. § 32-1471
122 See e.g., 44 OKL. ST. § 229.
123 See e.g., KY CONST. § 225; MON. CONST., art. II, § 33; IDAHO CODE § 46-110; KAN. STAT.ANN. § 48-203.
124 See e.g., CONN. GEN. STAT. § 27-16; MISS. CODE ANN. § 33-7-7; NY CLS MIL § 22.
125 DoDI 6025.13 MEDICAL QUALITY ASSURANCE (MQA) AND CLINICAL QUALITY MANAGEMENT IN THE MILITARY
HEALTH SYSTEM (MHS) (17 Feb. 2011).
126 E.g., 42 U.S.C. § 5121 (2012 & Supp. IV 2017) et seq.
127 EMAC, supra note 120.
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Arkansas
Ark. Code § 17-95-101
California
Cal. Health and Safety Code §
1799.102; Cal. Gov’t Code § 50086
Colorado
Colo. Rev. Stat. § 13-21-108
Connecticut
D.C. Code §§ 7-401 to 402
Delaware
Del. Code tit. 16, §§ 6801-6802
District of
D.C. Code §§ 7-401 to 402
Columbia
Florida
Fla. Stat. § 768.13
Georgia
Ga. Code §§ 51-1-29 to 29.2
Guam
7 Guam Code §§ 16101-16107
Hawaii
Haw. Rev. Stat. § 663-1.5
Idaho
Idaho Code § 5-330
Illinois
745 Ill. Comp. Stat. 49
Indiana
Ind. Code §§ 34-30-12, 13.5
Iowa
Iowa Code § 613.17
Kansas
Kan. Stat. §§ 65-2891, 2891b
Kentucky
Ky. Rev. Stat. §§ 411.148, 311.668
Louisiana
La. Stat. § 9:2793-2793.9
Maine
Me. Rev. Stat. tit. 14, §164
Maryland
Md. Code, Cts. & Jud. Proc § 5-603
Massachusetts
Mass. Gen. Laws ch. 112, § 12v
Michigan
Mich. Comp. Laws §§ 41.711a,
691.1501-1507
Minnesota
Minn. Stat. §§ 604A.01-.05
Mississippi
Miss. Code § 73-25-37
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Missouri
Mo. Rev. Stat. § 537.037
Montana
Mont. Code § 27-1-714
Nebraska
Neb. Rev. Stat. § 25-21, 186
Nevada
Nev. Rev. Stat. § 41.500
New
N.H. Rev. Stat. §§ 508:12, 508.12c
Hampshire
New Jersey
N.J. Stat § 2A:62A-1
New Mexico
N.M. Stat. § 24-10-3
New York
N.Y. Pub. Health Law § 3000-a, 3013
North
N.C. Gen. Stat. § 90-21.14
Carolina
North Dakota
N.D. Cent. Code § 90-21.14
Ohio
Ohio Rev. Code § 2305.23
Oklahoma
Okla. Stat. tit. 76, § 5, 5.1, 5.9
Oregon
Or. Rev. Stat. § 30.800
Pennsylvania
42 Pa. Cons. Stat §§ 8331, 8332
Puerto Rico
2009 P.R. Laws S.B. 1091
Rhode Island
9 R.I. Gen. Laws § 9-1-27.1
South
S.C. Code §15-1-310
Carolina
South Dakota
S.D. Codified Laws §§ 20-9-4 to 4.4,
20-9-3, 36-4A-26.3
Tennessee
Tenn. Code § 63-6-218
Texas
Tex. Civ. Prac. & Rem. Code §§
74.151-154
Utah
Utah Code §§ 26-8a-601, 58-13-12 ,
78b-4-501
Vermont
Vt. Stat. tit. 12, § 519
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Virgin Islands
V.I. Code tit. 27, § 42
Virginia
Va. Code §§ 8.01-225 to 225.02,
8.01-225.3
Washington
Wash. Rev. Code §§ 4.24.300-310
West Virginia
W. Va. Code § 55-7-15
Wisconsin
Wis. Stat. §§ 448.03, 895.48
Wyoming
Wyo. Stat. § 1-1-120
Table 3-1. State Good Samaritan Legislation
c. The District of Columbia National Guard
In 1802, the Congress of the United States enacted legislation officially establishing the District of
Columbia (D.C.) Militia, which today is known as the D.C. National Guard (DCNG).128 The
modern DCNG is comprised of a Joint Force Headquarters and Army National Guard (DCARNG)
and Air (DCANG) components. The overall mission of the DCNG is to “provide mission-ready
personnel and units for active duty in the armed services in the time of war or national
emergency.”129 In addition to the general civil support activities performed by the National Guards
of other States and territories, the DCNG also “retains the mission as protector of the District of
Columbia,”130 which is not a State and has no Governor.
In accordance with D.C. Code § 49-409 passed by Congress, the President of the United States is at
all times the Commander-in-Chief of the DCNG.131 Executive Order (E.O.) 11485 delegated
Presidential authority to command, supervise, administer, and control the DCNG in a militia status
to the Secretary of Defense (SECDEF).132 By memorandum, the SECDEF further delegated this
authority, as it pertains to the DCARNG to the Secretary of the Army, and as it pertains to the
DCANG to the Secretary of the Air Force.133 The Secretaries exercise this authority through the
Commanding General of the DCNG. Both Secretaries may, but have not, further delegate this
authority to their Assistant Secretary for Manpower and Reserve Affairs. As an exception to this
delegation of authority to the Secretaries, whenever the DCARNG or DCANG are used to support
civil authorities, the Secretary of the Army, through the Commanding General, exercises sole
command of the DCNG.
128 U.S. Statutes at Large, 2:215, https://www.loc.gov/law/help/statutes-at-large/6th-congress/c6.pdf.
129 D.C. National Guard, Mission Statement, available at https://dc.ng.mil/Welcome/Pages/default.aspx.
130 Id.
131 D.C. CODE § 49-409 (2018).
132 Exec. Order No. 11485, 34 Fed, Reg. 15411, (3 Oct. 2001).
133 SECRETARY OF DEFENSE, MEMORANDUM, SUPERVISION AND CONTROL OF THE NATIONAL GUARD OF THE DISTRICT
OF COLUMBIA (10 Oct. 1969).
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In accordance with E.O. 11485 and D.C. Code § 49-301, command of DCNG military operations is
exercised through the Commanding General of the DCNG rather than through an Adjutant General
as is the practice in all of the States and territories. The Commanding General of the DCNG is
appointed by the President. An officer appointed to serve as the Commanding General must be
Federally recognized by the Senate in a general officer grade. Last, in accordance with D.C. Code §
49-304, an Adjutant General may also be assigned by the President. The Adjutant General is
subordinate to and subject to the orders of the Commanding General.
The Mayor of the District of Columbia has no formal command authority over the DCNG. As a
matter of practice, whenever the Mayor desires civil support from the DCNG, the Mayor submits a
request to the Commanding General of the DCNG, who notifies the Secretary of the Army.
Pursuant to E.O. 11485, the law enforcement policies to be used by DCNG military forces when
aiding the civil authority of the District are established by consultation between the Department of
Defense and the Attorney General.
In his advice to the SECDEF and the Secretary of the Army regarding employment of the DCNG in
support of civil authority, the Attorney General routinely refers to D.C. Code § 49-404, as authority
for the DCNG to aid civil authority in its status as a subset of the enrolled militia as defined by the
D.C. Code.
The DCNG performs all National Guard missions in either a Title 10 or Title 32 status. Title 49 of
the D.C. Code implements the District of Columbia Militia Act of 1889.134 It authorizes the Mayor,
the U.S. Marshal for the District of Columbia, or the National Capital Service Director, to request
that the Commander-in-Chief order out the militia to aid the civil authorities in suppressing a public
disturbance.135 When the DCNG is mobilized under these circumstances, it acts in a “militia status”
on behalf of the District.
Historically, the DCNG always provided civil support to the District in a Title 32 training status.
The Secretary of the Army has broad authority to determine what constitutes appropriate “training”
for credit and compensation under 32 U.S.C. § 502(d)(3). In the role of rendering decisions on
questions involving the use of, and accountability for, public funds, the Comptroller General opined
in view of the Secretary’s broad discretion in this regard, there would be no objection should the
Secretary consider a State’s use of the National Guard for disaster relief as annual training under
Title 32. The Secretary of the Army requested a decision as to whether appropriated funds for
annual training are available for disaster relief, whereby it was determined the disaster relief duty
constituted proper and adequate annual training. Provided the Secretaries concerned first determine
that the duty in question (i.e. disaster relief) constitutes proper and adequate training for the units
involved, the execution of such duties in a Title 32 status and the payment of participating National
Guard personnel from Title 32 appropriated funds, is appropriate. Consequently, the fact that the
performance of such a “training” mission produces a collateral “operational” benefit does not render
the mission objectionable.
Whenever service in a Title 32 status in support of the District of Columbia civil authorities may
involve the exercise of law enforcement-like functions, the Secretary of the Army and the Attorney
134 D.C. CODE, Title 49.
135 D.C. CODE § 49-103 (2018).
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General must consent to the provision of such support. Consent to the provision is subject to the
Mayor’s designation of members of the DCNG as special police (or “special privates”) pursuant to
D.C. Code § 5-129.03. This provision of the law allows the Mayor, upon “any emergency of riot,
pestilence, invasion, insurrection, or during any day of public election, ceremony, or celebration” to
appoint from among the citizens “special privates without pay,” who while so serving possess the
powers and privileges, and perform the duties of a District of Columbia Metropolitan Police
Officer.136 Historically, this special status has been conferred upon DCNG and other National
Guard personnel in support of Presidential Inaugurations. When performing such duties, DCNG
personnel wear a special brassard authorized by the Mayor. Title 32 orders issued to DCNG
personnel include authority to act under the provisions of Title 5 of the D.C. Code. Although they
have “special private” status, DCNG personnel remain under the command and control of their
superior military officers at all times. The Commanding General of the DCNG and the Chief of the
District of Columbia Metropolitan Police Department coordinate their respective command
structures and personnel with a view towards maximizing unity of effort.
Although the chain-of-command of the DCNG, whether operating in a Title 10 or Title 32 status,
always runs through the Department of Defense to the President, the applicability of the
proscriptions of the Posse Comitatus Act (PCA), 18 U.S.C. § 1385, depends on the status of each
individual DCNG service-member and his chain-of-command within the DCNG. If the service-
member and his DCNG chain of command are serving in a Title 10 status, they are considered part
of the “Army or Air Force” for PCA purposes and are subject to the PCA’s prohibition on
participation in the execution of civil laws. On the other hand, if the service-member and his
DCNG chain of command are in a Title 32 status, they are not considered part of the “Army or Air
Force” and thus are not subject to PCA restrictions. Whether in a Title 10 or Title 32 status, all
members of the DCNG must comply with all applicable Department of Defense directives and
instructions.
Historically, the DCNG has been mobilized in a Federalized status on limited occasions. Pursuant
to 10 U.S.C. § 12302, the DCNG has been Federalized in support of operations such as Operations
Desert Storm, Desert Shield, Enduring Freedom, Iraqi Freedom, and Noble Eagle. In addition, the
Insurrection Act was employed to order the DCNG into active Federal service to complement
Federal forces deployed to quell the disorder associated with the rioting that ensued after the death
of Dr. Martin Luther King in April 1968.
d.
“Hip-Pocket” Activation
Pursuant to 10 U.S.C. § 12301(d), 1st Air Force (1st AF, a numbered Air Force in Air Combat
Command) developed a process to instantaneously “Federalize” Air National Guard (ANG)
members who, upon the occurrence of a specified event, are called upon to perform North American
Aerospace Defense Command (NORAD) missions. This process automatically converts consenting
members of the Air National Guard into a Title 10 status upon the occurrence of a “triggering”
event, known by 1st AF as an “air sovereignty event.”137 On 11 June 2003, authority “to order into
136 D.C. CODE § 5-129.03 (2018).
137 See for example 11th Air Force Instruction (AFI) 38-101. This AFI outlines the status conversion process and
defines an “air sovereignty event” as “any event that involves the Federal mission of aerospace warning and control, and
includes but is not limited to, the surveillance of the assigned airspace, the identification of unknown aircraft, the
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Federal service . . . those members of the Air National Guard who have volunteered to perform
Federal active service in furtherance of the Federal mission” was delegated to the Chief of Staff of
the Air Force, who has the authority to re-delegate this authority to a MAJCOM Commander who
can also re-delegate his authority.138 This “hip pocket” process is now used for other Air Force
missions. This process has been examined as a model for some ARNG missions, but at present is
not utilized for any ARNG missions. Instead, ARNG missions such as Ground-based Mid-course
Defense (GMD) have used a paradigm where Title 32 AGR members convert to Title 10 status
upon arrival at the duty location for that day’s duty and revert to Title 32 status when released from
that duty by their commander.
e. Rules for the Use of Force (RUF)
State law will govern the rules for the use of force for members of the National Guard in a State
status. Thus, State law must be followed when the rules for the use of force are drafted. In some
States, National Guard forces have the same authority as peace officers, meaning that certain
National Guard forces in their home State may follow RUF established for peace officers within the
State. A more detailed discussion of the RUF may be found in Chapters 10 and 11, infra.
H. Civil Air Patrol (CAP)
The CAP, a volunteer organization, is a Federally chartered nonprofit corporation under 36 U.S.C. §
40301. It also functions as an auxiliary of the USAF in accordance with 10 U.S.C. § 9442.139
Although the CAP is not a military organization, as the USAF auxiliary it performs non-combat
missions on behalf of DoD pursuant to statute and a Cooperative Agreement. The USAF provides
policy and oversight of the CAP in its auxiliary status and can also provide personnel, logistical,
and financial support and assistance. CAP missions are limited by internal and FAA regulations as
well as by those statutes that restrict activities of military organizations (e.g. PCA). Missions
accomplished by CAP in its auxiliary role normally include disaster relief, search and rescue and
counter-drug, although changes to statutes, doctrine and policy are contemplated to better
incorporate the CAP into the USNORTHCOM Military Assistance for Civil Authorities (MACA)
force structure and thereby allow the CAP to become more active in a broader range of homeland
security missions.
The CAP is organized into eight geographical regions and performs three primary programs:
Emergency Services (assisting Federal, State, and local agencies), aerospace education, and cadet
education. Although the USAF has overall responsibility for the CAP when it performs search and
rescue missions, the Army provides oversight for disaster relief missions. Last, Civil Air Patrol-
initiation and authorization of an active air scramble, and the control of aircraft engaged in an active air scramble or
North American Aerospace Defense Command (NORAD) mission.”
138
10 U.S.C. § 12301(d) (2012 & Supp. IV 2017); MEMORANDUM: SECRETARY OF AIR FORCE DELEGATION OF AIR
NATIONAL GUARD RE-CALL AUTHORITY, dated 11 June 2003
139 See also U.S. DEP’T OF AIR FORCE, INSTR. 10-2701, ORGANIZATION AND FUNCTION OF THE CIVIL AIR PATROL (29
Jul. 2005, with Chg. 1, 29 Sep. 2006); U.S. DEP’T OF AIR FORCE, INSTR. 10-2702, BOARD OF GOVERNORS OF THE CIVIL
AIR PATROL (27 Feb. 2001), U.S. DEP’T OF AIR FORCE, PD 10-27, CIVIL AIR PATROL (27 Feb. 2001). CIVIL AIR
PATROL-UNITED STATES AIR FORCE, INSTRUCTION 10-2701, CIVIL AIR PATROL OPERATIONS AND TRAINING (3 Aug.
2007, Incorporating Interim Change 1, 13 Jun. 2008).
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United States Air Force (CAP-USAF) is located at Maxwell AFB in Montgomery, Alabama; an Air
Force JA provides legal support to the Commander of CAP-USAF.
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CHAPTER 4
MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT
KEY REFERENCES:
10 U.S.C. §§ 271 - 284 - Military Support for Civilian Law Enforcement.
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
DoDI 3025.21 - Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.
DoDD 3025.18 - Defense Support of Civil Authorities, March 19, 2018.
DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not
Affiliated with the Department of Defense, January 7, 1980.
DoDD 5240.01 - DoD Intelligence Activities, August 27, 2007.
AFI 10-801 - Defense Support of Civil Authorities (DSCA), September 19, 2012.
SECNAVINST 5820.7C - Cooperation with Civilian Law Enforcement Officials, January 26,
2006.
A. Introduction
U.S. military resources include specialized personnel, equipment, facilities, and training that may be
useful to civilian law enforcement agencies. The provision of DoD resources, however, must be
consistent with the limits Congress placed on military support to civilian law enforcement through
the Posse Comitatus Act and other laws. Judge advocates must also weigh and advise on the
political sensitivity of employing U.S. military forces in law enforcement roles involving U.S.
civilians.
This chapter begins with a discussion of the Posse Comitatus Act. It then discusses the applicable
provisions of the U.S. Code addressing military support to civilian law enforcement and the DoD
regulations that implement this guidance. As it is a large DoD mission, separate information
relating specifically to counterdrug support in this context is discussed in the Chapter 7, infra.
B. The Posse Comitatus Act
The primary statute restricting military support to civilian law enforcement is the Posse Comitatus
Act (PCA).1 The PCA states:
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or Air Force as
a posse comitatus or otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both.
1 Posse Comitatus Act, 18 U.S.C. § 1385 (2011). The phrase “posse comitatus” is literally translated from Latin as the
“power of the county” and is defined in common law to refer to all those over the age of 15 upon whom a sheriff could
call for assistance in preventing any type of civil disorder. See United States v. Hartley, 796 F.2d 112, 114, n.3 (5th Cir.
1986).
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The PCA was enacted in 1878, primarily as a result of the military presence in the South during
Reconstruction following the Civil War.2 This military presence increased during the bitter
presidential election of 1876, when the Republican candidate, Rutherford B. Hayes, defeated the
Democratic candidate, Samuel J. Tilden, by one electoral vote. Many historians attribute Hayes’
victory to President Grant’s decision to send Federal troops for use by U.S. Marshals at polling
places in the States of South Carolina, Louisiana, and Florida. Hayes won the electoral votes of
these hotly contested States, possibly as a result of President Grant’s actions.3 The use of the
military in this manner by a President led Congress to enact the PCA in 1878.4
The intent of the PCA was to limit direct military involvement with civilian law enforcement,
absent congressional or constitutional authorization. The PCA is a criminal statute and violators are
subject to fine and/or imprisonment.5 The PCA does not, however, prohibit all military
involvement with civilian law enforcement. A considerable amount of military participation with
civilian law enforcement is permissible, either as indirect support or under one of the numerous
PCA exceptions.
10 U.S.C. Chapter 15 (§§ 271-284 of Title 10 U.S.C.), 32 C.F.R. § 182, and DoDI 3025.21
(Defense Support of Civilian Law Enforcement Agencies),6 discussed below, provide guidance
regarding restrictions the PCA places on the military when supporting civilian law enforcement
agencies.7
1. To Whom Does the PCA Apply?
On its face, the PCA only applies to active duty members of the Army and the Air Force.
Accordingly, Federal courts have consistently read the plain language of the PCA to limit its
application to these two services.8 10 U.S.C. § 375 (now section § 275) directed the Secretary of
Defense to promulgate regulations that prohibit “direct participation by a member of the Army,
2 See, e.g., MATTHEW C. HAMMOND, The Posse Comitatus Act: A Principle in Need of Renewal, 75 WASH. U. L.Q.
953, 954 (1997) [hereinafter HAMMOND]; H.W.C. Furman, Restrictions Upon Use of the Army Imposed by the Posse
Comitatus Act, 27 MIL. L. REV. 85, 94-95 (1960).
3 HAMMOND, supra note 2, at 954. The states of South Carolina, Louisiana, and Florida sent in double returns. The
electoral boards of these three states, which were dominated by Republicans, certified that the states had voted for
Hayes even though it was widely believed that each state had a majority of Democrats. The Democrats sent in their
own returns which showed that Tilden won each of the three states. Congress, which held a Republican majority,
eventually appointed an electoral commission to recount the entire vote. Hayes was declared the winner by one
electoral vote. Tilden won the popular vote with 51% over Hayes’ 48%.
4 Id.
5 Although there are harsh penalties for violators of the PCA, courts have not yet found reason to allow for the
exclusion of evidence seized during a PCA violation. Courts have not found PCA violations pervasive enough to
necessitate the application of this sanction. See U.S. v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979); U.S. v. Al-Talib, 55
F.3d 923, 930 (4th Cir 1995); U.S. v. Griley, 814 F.2d 967, 976 (4th Cir. 1987).
6 U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb.
2013) [hereinafter DoDI 3025.21].
7 U.S. DEP’T OF NAVY, SEC’Y NAVY INSTR. 5820.7C, COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS (26
Jan. 2006) [hereinafter SECNAVINST 5820.7C]; and U.S. DEP’T OF AIR FORCE, INSTR. 10-801, DEFENSE SUPPORT OF
CIVIL AUTHORITIES (DSCA) (19 Sept. 2012) [hereinafter AFI 10-801] implement DoDI 3025.21.
8 See United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991) (citing congressional record that earlier version of
measure expressly extended PCA to the Navy but final version deleted any mention of application to the Navy); United
States v. Roberts, 779 F. 2d 565 (9th Cir. 1986), cert. denied, 479 U.S. 839 (1986).
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Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless
participation in such activity by such member is otherwise authorized by law.”9 The Secretary of
Defense promulgated DoDD 5525.5, DoD Cooperation with Civilian Law Enforcement Officials
(Jan. 15, 1986) to comply with this requirement. This directive, along with DoDD 3025.12,
Military Assistance for Civil Disturbances (MACDIS), has been superseded by DoDI 3025.21,
Defense Support of Civilian Law Enforcement Agencies (27 Feb. 2013),10 In accordance with
DoDI 3025.21, the restrictions placed on Army and Air Force activities through the PCA apply to
the Navy and Marine Corps.11 While the PCA does not apply to the Coast Guard, its activities may
align with the Navy when attached during time of war.12
The PCA also applies to Reserve13 members of the Army, Navy, Air Force, and Marine Corps who
are on active duty, active duty for training, or inactive duty training in a Title 10 duty status.
Members of the National Guard performing operational support duties,14 active duty for training, or
inactive duty training in a Title 32 duty status are not subject to the PCA. Only when members of
the National Guard are in a Title 10 duty status (Federal status) are they subject to the PCA.
Members of the National Guard may also perform duties in a State Active Duty (SAD) status and
are not subject to PCA in that capacity.15 Civilian employees of DoD are only subject to the
prohibitions of the PCA and DODI 3025.21 if they are under the direct command and control of a
military officer.16
Finally, the PCA does not apply to a member of the active component Army, Navy, Air Force, or
Marine Corps when they are off-duty and acting in their private capacity. A service-member is not
in a private capacity if assistance is rendered to civilian law enforcement officials under the
direction or control of DoD authorities.17
9 See 32 C.F.R. § 182.6 (2017); See also Hayes v. Hawes, 921 F.2d 100, 102-103 (10 U.S.C. § 375 makes the
proscriptions of 18 U.S.C. § 1385 applicable to the Navy). See also Yunis, 924 F.2d at 1094 (“Regulations issued under
10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act
”). Exceptions to this
prohibition as it applies to the Navy or Marine Corps may be granted by the Secretary of Defense or the Secretary of
Navy on a case-by-case basis. See DoDI 3025.21, supra note 6, Encl. 3, para.3.
10 See DoDI 3025.21, supra note 6.
11 See DoDI 3025.21, supra note 6, Encl. 1; see also SECNAVINST 5820.7C, supra note 7, para. 8(b).
12 See 14 U.S.C. §§2, 89 (2012) which describe the Coast Guard’s role as a domestic law enforcement agency. More
information on the specific authorities of the Coast Guard can be found infra in Chapter 3, Reserve Components, Civil
Air Patrol, U.S. Coast Guard - Status and Relationships.
13 The Reserve includes Ready Reserve, Standby Reserve, and Retired Reserve. The Ready Reserve is units or
individuals liable for active duty as provided in 10 U.S.C. §§ 12301-12302. The Ready Reserve consists of: (1) the
Selected Reserve, including unit members assigned to Reserve organizations and performing drill periods and annual
training, Individual Mobilization Augmentees (IMA) performing drills and annual training assigned to Active
component organizations, and active guard and reserve (AGR) on full time active duty or full time National Guard duty
in Reserve organizations; (2) the Individual Ready Reserve (IRR); and (3) the inactive National Guard (ING). All
members of the Selected Reserve are in an active status. 10 U.S.C. §§ 10142-10144. See also U.S. DEP’T OF DEFENSE,
DIR. 1215.06, UNIFORM RESERVE, TRAINING, AND RETIREMENT CATEGORIES FOR THE RESERVE COMPONENTS (11 Mar.
2014).
14 As per 32 U.S.C. § 502(f) (2011).
15 See infra Chapter 3, Reserve Components, Civil Air Patrol, U.S. Coast Guard - Status and Relationships for a
detailed discussion of National Guard and Reserve status.
16 DoDI 3025.21, supra note 6, Encl. 3, para. 2.
17 Id.
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2. Where Does the PCA Apply?
a. What the Law Says
There is no definitive statement of the scope of the Posse Comitatus Act.18 Federal courts have
generally held that the PCA places no restrictions on the use of the armed forces to enforce the law
abroad.19 The courts, noting that Congress intended to preclude military involvement in domestic
law enforcement activities, have been unwilling to apply the PCA extraterritorially.20 In addition, a
1989 Department of Justice Office of Legal Counsel Opinion concluded that the PCA and the
restrictions in 10 U.S.C. §§ 271-284 have no extraterritorial application.21
b. What Policy Says
Nevertheless, DoD implementing policy contained in DoDI 3025.21 states that the prohibitions on
direct civilian law enforcement assistance apply to all actions of DoD personnel worldwide.22
Therefore, PCA restrictions must be considered even when contemplating military assistance in law
enforcement overseas. In cases of compelling or extraordinary circumstances, the Secretary of
Defense may consider exceptions to the prohibition against direct military assistance to law
enforcement outside the territorial jurisdiction of the United States.23
3. When Does the PCA Apply?
10 U.S.C. §§ 371 - 375 outline the restrictions of the PCA as they apply to participation by the
military in civilian law enforcement activities. Under these statutes, regulation of military activity
is divided into three major categories: (1) use of information, (2) use of military equipment and
facilities, and (3) use of military personnel.
18 United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994)
19 See, e.g., Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949); D’Aquino
v. United States, 192 F.2d 338, 351 (9th Cir. 1951), cert. denied, 343 U.S. 935 (1952). Commentators agree. See
H.W.C. Furman, Restrictions Upon the Use of the Army Imposed by the Posse Comitatus Act, 7 MIL L. REV. 85, 107
(1960).
20 Id. at 936 (The PCA was “the type of criminal statute which is properly presumed to have no extraterritorial
application in the absence of statutory language indicating a contrary intent.”).
21 Memorandum from Office of the Assistant Attorney General to General Brent Scowcroft, Extraterritorial Effect of
the Posse Comitatus Act (3 Nov. 1989). But see United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994). The Kahn
court cites 10 U.S.C. § 374(b)(2)(F) (mentioning “law enforcement operations outside of the land area of the United
States”), § 379(a) (mentioning “naval vessels at sea”), and § 379(d) (mentioning “area outside the land area of the
United States”) as evidence of limitations placed on the use of the armed forces abroad. While recognizing that several
courts held the PCA only applies within the territory of the United States, the Kahn court maintained that the law
contained evidence of PCA restrictions applying outside the United States. The court in Kahn ultimately held there was
no PCA violation because the Navy only provided indirect assistance to the Coast Guard during the operation leading to
the arrest of the defendant. Thus, Navy involvement in Coast Guard drug interdiction operations is an area for PCA
challenges. See United States v. Rasheed, 802 F.Supp. 312 (D. Hawai’i 1992) as another example of this type of
challenge. Although this is an area for potential challenge, Congress has explicitly authorized the Navy to assist in the
enforcement of the Maritime Drug Law Enforcement Act (46 U.S.C. Chapter 705) and these operations are conducted
frequently.
22 DoDI 3025.21, supra note 6, at 3.
23 Id. (note that only the Secretary of Defense or Deputy Secretary of Defense may grant such exceptions).
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DoDI 3025.21 contains several enclosures discussing areas of permissible DoD activity, including:
Participation in Law Enforcement (Enclosure 3), Support of Civil Disturbance Operations
(Enclosure 4), Domestic EOD Support for Law Enforcement (Enclosure 5), Domestic Terrorism
Incident Support, Use of Information Collected During Military Operations (Enclosure 7), and the
Use of DoD Equipment and Facilities (Enclosure 8).24 Figure 4.1 summarizes PCA restrictions in
10 U.S.C. §§ 371-375 and major areas of guidance from DoDI 3025.21:
Figure 4-1
Provision
Use of
Use of
of
DoD
Military
Informati
Personnel
Equipme
on to
10 U.S.C.
nt and
Ci ili
§§
F iliti
Direct Assistance
Prohibited Unless
“Indirect”
Other
Expert Advice,
Permissi
Training, and
Permissibl
ble
Equipment
e Direct
Indirect
Operation &
Assistance
Assistanc
DoDI
Military
Emergen
Civil
Other
Transfer
or
cy
Disturban
Express
of Info to
Foreign
Authority
ce
Statutory
Law
Examples: Execution of Quarantine, Assistance with
Nuclear Materials Crimes, Assistance with Crimes Against
*See DoDD 3025.18 (U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE
SUPPORT OF CIVIL
AUTHORITIES (C2, 19 Mar. 2018) to distinguish Emergency Authority
from Immediate Response
Authority.
In addition to the above categories, 10 U.S.C. §§ 276-277 provide further limitations on the
provision of military support to civilian law enforcement. 10 U.S.C. § 276 provides an overarching
restriction in the event “such support will adversely affect the military preparedness of the United
States.”25
10 U.S.C. § 277 requires civilian law enforcement agencies to reimburse DoD for support
provided as required by the Economy Act26 or other applicable law. Civilian law enforcement
agencies do not have to provide reimbursement for support under this statute if the support: (1) is
provided in the normal course of military training or operations, or (2) results in a benefit to DoD
24 DoDI 3025.21, supra note 6.
25
10 U.S.C. § 276 (2012). This statute reflects congressional concern over the potential dilution of military readiness
and capabilities by complying with requests for assistance from civilian law enforcement agencies.
26
31 U.S.C. § 1535 (2012).
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that is substantially equivalent to that which would otherwise be obtained through military training
or operations.27 Waiver authority for reimbursement not required by law resides with the Assistant
Secretary of Defense (Force Management and Personnel). This authority may be delegated to the
Secretaries of the Military Departments and the Directors of the Defense Agencies (or designees) on
matters within their approval authority.28
For a brief overview of PCA scenarios and the applicability of the PCA to each scenario, see Figure
4-2 on the next page. Please note that Figure 4-2 is merely a beginning point in any potential legal
analysis of DoD support to civilian law enforcement.
27
10 U.S.C. § 277 (2012).
28 See, e.g. SECNAVINST 5820.7C, supra note 7, para. 9; AFI 10-801, supra note 7, ch. 5.
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US ARMY & AIR FORCE, TITLE 10
APPLICABILITY OF THE PCA
Normal Status
PCA applies. Title 10 personnel in normal status
may not engage in direct law enforcement activities
to include: Interdiction of vehicles, vessels or
aircraft; search or seizure of civilian personnel and
effects; arrest or detention of civilians; or as
undercover investigators or to conduct surveillance
for law enforcement purposes.
In execution of a Military Purpose
The PCA does not apply. This is a narrowly
construed exception to the PCA that exempts
activity conducted to further a military interest.
Detailed to another Federal agency subject to
PCA does not apply as these personnel are not
receiving agencies control (for example: Special
considered part of the Army or Air Force for PCA
Assistant United States Attorney; Special Deputy
purposes.
U.S. Marshal)
Protection of Federal property
Constitutional exception to the PCA.29
Response pursuant to the Insurrection Act
Statutory exception to PCA.
Support to other Federal, State and local entities
The PCA prohibits engaging in direct law
that are engaged in direct law enforcement
enforcement activities. Subject to DoD regulations
activities
and approvals, technical, and logistical assistance
may be rendered.
Response to a CBRN attack or threat
Subject to Presidential directives, DoD regulations
and approvals, constitutional, or statutory
exceptions to the PCA exist.
Transfer of information regarding potential
PCA does not apply, but the dissemination of
criminal activity obtained during military
information must be conducted in accordance with
operations.
applicable regulations.
Off-duty Title 10 personnel
PCA does not apply unless acting under the
direction of DoD authorities.
Homeland Defense Operations
PCA does not apply to Homeland Defense
operations.
NATIONAL GUARD
APPLICABILITY OF THE PCA
State Active Duty (SAD)
The PCA does not apply.
Title 32 Status
The PCA does not apply.
Title 10 Status (“Federalized”)
PCA applies (see 10 U.S.C. § 12405).
OTHER UNIFORMED SERVICES
APPLICABILITY OF THE PCA
United States Navy
PCA does not apply by statute, but by DoD policy.
United States Marine Corps
PCA does not apply by statute, but by DoD policy.
United States Coast Guard
PCA does not apply (but see 14 U.S.C. § 3).
United States Public Health Service
PCA does not apply.
National Oceanic & Atmospheric Administration
PCA does not apply.
Figure 4-2
29 See 32 C.F.R. § 215.4 (2017) for background on this Constitutional exception.
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4.
Statutory Categories of PCA Application and Policy Implementation
a. Use of DoD Information Collected During Military Operations
10 U.S.C. § 271 regulates the use of information collected during military operations. For DoD, the
requirements of 10 U.S.C. § 271 are implemented by the Secretary of Defense in Enclosure 7 of
DoDI 3025.21. Under 10 U.S.C. § 271, the Secretary of Defense may provide information collected
during the normal course of military operations to Federal, State, and local law enforcement
agencies if the information is relevant to a violation of Federal or State law within the jurisdiction of
these officials. Under 10 U.S.C. § 271(b), the Secretary of Defense is required, to the maximum
extent practicable, take into account the needs of civilian law enforcement officials for information
when planning and executing military training and operations. Lastly, 10 U.S.C. § 271(c) provides
that the Secretary of Defense shall ensure, to the extent consistent with national security, that
intelligence information held by DoD and relevant to drug interdiction and other civilian law
enforcement matters is promptly provided to the appropriate civilian law enforcement officials.30
Enclosure 7 of DoDI 3025.21 implements 10 U.S.C. § 271 with some additional restrictions.
Military departments and defense agencies are generally encouraged to provide law enforcement
officials any information collected during the normal course of military operations that may be
relevant to a violation of the law. Information may not be transferred if its acquisition violated
applicable law protecting privacy or constitutional rights, or if it would have been illegal for the
civilian agency to obtain the information or use the procedures employed by DoD to obtain the
information.31 While the Secretary of Defense shall take into account the needs of civilian law
enforcement officials to obtain intelligence when planning and executing military training and
operations in accordance with 10 U.S.C. § 271, the planning or creation of missions or training for
the primary purpose of aiding civilian law enforcement official intelligence-gathering efforts is
prohibited.32 Law enforcement officials may accompany regularly scheduled training flights as
observers, but point-to-point transportation and training flights for civilian law enforcement
officials are not authorized.33 Additionally, the handling of all such information must comply with
DoDD 5240.01, DoD Intelligence Activities;34 DoDD 5200.27, Acquisition of Information
Concerning Persons and Organizations not Affiliated with the Department of Defense;35 DoD
5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that Affect United
States Persons,36 and DoDD 5400.11-R, Department of Defense Privacy Program37 (for additional
30
10 U.S.C. § 271 (2012).
31 See DODI 3025.21, supra note 6, Encl. 3, para. 1.g.(2).
32 See id., Encl. 7, para. 1.e. Training or missions for the purpose of routinely collecting information about U.S.
citizens is prohibited as well. Id.
33 See U.S. DEP’T OF DEFENSE, REG. 4515.13-R, AIR TRANSPORTATION ELIGIBILITY (1 Nov. 1994) for guidance on this
type of assistance. Flights related to counter-drug operations are allowed and are covered by this regulation. See infra
Chapter 7, Counterdrug Operations.
34 U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].
35 U.S. DEP’T OF DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS
NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980).
36 U.S. DEP’T OF DEFENSE, REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE
COMPONENTS THAT AFFECT UNITED STATES PERSONS (1 Dec. 1982) [hereinafter DoDD 5240.1-R]. (As of August 2014
DoDD 5240.1-R is undergoing revision; consequently, practitioners citing this reference should first ensure DoDD
5240.1-R is still in effect.).
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information concerning the use of DoD information collected during domestic operations, see
Intelligence Oversight and Information Handling During Domestic Support Operations, Chapter 9
infra).
b. Use of DoD Military Equipment and Facilities
10 U.S.C. § 272 and Enclosure 8 of DoDI 3025.21 address the use of military equipment and
facilities by civilian law enforcement authorities (not to be confused with the separate provisions
under Enclosure 3 regarding the use of DOD personnel to operate or maintain equipment discussed
below). Section 272(a) allows the Secretary of Defense to make available equipment (including
associated supplies and spare parts), base facilities, and research facilities of the Department of
Defense to any Federal, State, or local civilian law enforcement official for law enforcement
purposes. The provision of equipment and facilities must be made in accordance with all other
applicable law. Enclosure 8 of DoDI 3025.21 implements this statute and allows military
departments and defense agencies to make equipment, base facilities, or research facilities available
to Federal, State, or local law enforcement authorities if the assistance does not adversely affect
military preparedness.38
Approval authority under DoDI 3025.21 varies based on the type of equipment requested, the
reason for the request, and whether the equipment will be loaned39 or leased.40 The following is a
list of the approval authorities for various types of equipment and facilities:41
Requests for equipment or facilities outside the U.S. (other than arms, ammunition, combat
vehicles, vessels and aircraft) shall be in accordance with procedures established by the
applicable DoD component
Requests from other Federal agencies to purchase equipment may be submitted directly to the
DoD component at issue
Requests for training, expert advice, and personnel to operate and maintain equipment shall be
made in accordance with Enclosure 3 of DoDI 3025.21
For loans pursuant to Reference 31 U.S.C. § 1535 (the Economy Act) or 31 U.S.C. §§ 6501-
6508 (the Intergovernmental Cooperation Act), which are limited to agencies of the Federal
Government, and for leases pursuant to 10 U.S.C. § 2667, which may be made to entities
outside the Federal Government, this guidance applies:
¾ Requests for arms, ammunition, combat vehicles, vessels, and aircraft shall be submitted to
the Secretary of Defense for approval.
¾ Requests for loan or lease or other use of equipment or facilities are subject to approval by
the heads of the DoD Components, unless approval by a higher official is required by statute
or DoD issuance applicable to the particular disposition.42
37 U.S. DEP’T OF DEFENSE, REG. 5400.11, DOD PRIVACY PROGRAM (1 Sept. 2011) [hereinafter DoD 5400.11].
38 DoDI 3025.21, supra note 6, Encl. 8, para. 3.
39 Transfers under the Economy Act, 31 U.S.C. § 1535, are limited to executive branch agencies of the Federal
government. The Economy Act does not govern loans.
40 Leases under 10 U.S.C. § 2667 (2012) may be made to entities outside the Federal Government.
41 DoDI 3025.21, supra note 6, Encl. 8.
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Judge advocates must be aware that other policies and statutes overlap with DoDI 3025.21 and 10
U.S.C. §§ 271-275 with regard to authorities and approvals in this area. For example, DoDD
3025.18 also discusses the approval authority of the Secretary of Defense for the assistance with
assets with potential lethality, e.g. arms, vessels or aircraft, or ammunition.43 As discussed,
approval authority for assistance from DoD intelligence components is governed by DoDD 5240.01
and other relevant authorities discussed above. 10 U.S.C. § 282 provides additional authority for
the provision of certain types of equipment; it states DoD may provide resources to the Department
of Justice in a weapons of mass destruction situation.44 Further, E.O. 13527 Establishing Federal
Capability for the Timely Provision of Medical Countermeasures Following a Biological Attack
provides additional authority for DoD integration into plans to support the delivery of “medical
countermeasures” as part of a response to a biological attack.45
Aside from authorities and approvals, the provision of military equipment to civilians is further
complicated by specific procedures needed to accomplish the transfer. The Army Regulation on
point is AR 700-131.46 In non-emergency situations, AFI 23-119, Exchange, Sale, or Temporary
Custody of Non-Excess Personal Property and AFI 32-9003, Granting Temporary Use of Air Force
Real Property set forth the Air Force process in this area.47 Judge advocates will not only need to
ensure that the proper authority has approved the transaction, but that the proper service-specific
procedures are followed to effect the transaction.
c. Participation of DoD Personnel in Civilian Law Enforcement Activities
The Federal courts have enunciated three tests to determine whether the use of military personnel
violates the PCA.48 If any one of these three tests is met, the assistance may be considered a
violation of the PCA.49
The first test is whether the actions of military personnel are “active” or “passive.” Only the
active, or direct, use of military personnel to enforce the laws is a violation of the PCA.50
42 This authority of the Secretaries of the Military Departments and the Directors of the Defense Agencies may be
delegated. See, e.g SECNAVINST 5820.7C, supra note 7, para. 6(b); AFI 10-801, supra note 7, ch.3.
43 U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 DEC. 2010) (C2, 19 Mar. 2018)
[hereinafter DoDD 3025.18].
44
10 U.S.C. § 282 (2012).
45 Exec. Order No. 13257, 75 Fed. Reg. 737 (Jan. 6, 2010). E.O. 13527 provides that the Secretaries of Homeland
Security, Defense, and Health and Human Services shall develop a plan to support the U.S. Postal Service in its
distribution of efforts, to include a “plan for supplementing local law enforcement personnel, as necessary and
appropriate, with local Federal law enforcement, as well as other appropriate personnel, to escort U.S. Postal workers
delivering medical countermeasures.”
46 U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL (23 Aug. 2004). Since
many of the applicable military regulations predate their corresponding DoD Directives, judge advocates must exercise
care in applying their procedures.
47 AFI 10-801, supra note 7.
48 United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991).
49 United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).
50 United States v. Rasheed, 802 F. Supp. 312, 324-25, (D. Hawai’i. 1992) (finding that the Navy’s providing of aerial
reconnaissance and intercepting ship, as well as providing back-up security while the ship was searched and defendants
arrested, was passive involvement, and consequently did not violate PCA); United States v. Red Feather, 392 F. Supp.
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The second test is whether the use of military personnel pervades the activities of civilian law
enforcement officials. Under this test, military personnel must fully subsume the role of civilian
law enforcement officials.51
The third test is whether the military personnel subjected citizens to the exercise of military
power that was regulatory, proscriptive, or compulsory in nature. A power “regulatory in
nature” is one which controls or directs. A power “proscriptive in nature” is one that prohibits
or condemns. A power “compulsory in nature” is one that exerts some coercive force.52 Note
that under DoDD 3025.21, Immediate Response Authority may not be used when it may subject
civilians to military power that is “regulatory, prescriptive, proscriptive, or compulsory.” Thus,
Immediate Response Authority may not be used to circumvent the PCA.53
In implementing the guidance contained in 10 U.S.C. Chapter 15 (§§ 271-284), DoDI 3025.21
divides the PCA regulation of the use of military personnel to assist civilian law enforcement into
five categories: (1) permissible direct assistance; (2) use of DoD personnel to operate or maintain
equipment; (3) expert advice; (4) training; and (5) other permissible assistance.
DoD personnel involvement in support to civilian law enforcement will often be subject to intense
scrutiny, for example: the 3d U.S. Army and the 82d Airborne Division’s support in the aftermath
of Hurricane Katrina, and the National Guard and the Special Forces assistance provided to the
Bureau of Alcohol, Tobacco, and Firearms during its standoff with the Branch Davidians in Waco,
Texas were both scrutinized heavily. When advising commanders on the permissible use of
916, 925 (W.D.S.D. 1975) (Activities which constitute active role in law enforcement by military are: arrest, seizure of
evidence, search of a person, search of a building, investigation of crime, interviewing witnesses, pursuit of an escaped
prisoner, search of an area for a suspect, and other like activities. Activities which constitute a passive role are: mere
presence of military personnel under orders to report on necessity for military intervention, preparation of contingency
plans to be used if military intervention is ordered, advice or recommendations given to civilian law enforcement
officials regarding tactics or logistics, presence of military personnel to deliver military equipment and supplies, training
civilian law enforcement officials on the use and maintenance of equipment, aerial reconnaissance flights, and similar
activities).
51 Kahn, 35 F.3d at 431-432 (holding that Navy’s involvement in apprehension, arrest, and detention of defendant in
international waters was passive and thus did not violate PCA because the FBI was in charge of operation at all times,
and Navy merely provided necessary support services); Hayes v. Hawes, 921 F.2d 100, 103-104 (7th Cir. 1990)
(actions of undercover NIS agent in acting as a drug buyer and signaling civilian law enforcement officers when the
transaction was complete, was not so pervasive as to violate the PCA since the NIS agent did not become involved in
the arrest and search of the defendant or the seizure and transportation of evidence); United States v. Hartley, 796 F.2d
112, 115 (5th Cir. 1986) (Air Force allowing a U.S. Customs Service officer to ride aboard an AWACS aircraft,
tracking defendant’s aircraft, and reporting its location to U.S. Customs Service agents on the ground was not so
pervasive as to violate the PCA. The court further noted that these actions are specifically allowed by 10 U.S.C. §§ 271,
274(b)).
52 Yunis, 924 F.2d at 895-96 (The Navy’s involvement in apprehension, arrest, and transportation of defendant was not
regulatory, proscriptive, or compulsory use of military power because defendant was under exclusive custody and
control of FBI at all times); United States v. Casper, 541 F.2d 1275, 1278 (8th Cir. 1976) (holding that the use of
military equipment by civilian law enforcement officers, presence of military personnel ordered there to observe and
report whether Federal military intervention would be required, drafting of contingency plans by military personnel for
intervention of military, and aerial reconnaissance by military aircraft, was not regulatory, proscriptive, or compulsory
use of military power which would result in violation of PCA).
53 DoDD 3025.18, supra note 43, para. 4.
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military personnel in support of civilian law enforcement activities, judge advocates must not only
consider possible legal ramifications of PCA violations, but also potential negative public
perception that may result from certain types of legal, but controversial assistance.
(1) Direct Assistance
(a) Prohibited Direct Assistance
The first category of PCA regulation of military activity with civilian law enforcement agencies
addresses direct assistance. Direct assistance and participation by military personnel in the
execution and enforcement of the law is the heart of the prohibition of the PCA.54 The restrictions
on direct assistance by military personnel in civilian law enforcement activities is codified in 10
U.S.C. § 275 and is implemented as DoD policy by DoDI 3025.21, Enclosure 3.55 Direct assistance
is prohibited (unless authorized in enclosure 3 or 4 of DoDI 3025.21) as follows:
Interdiction of a vehicle, vessel, aircraft, or other similar activity
A search or seizure
An arrest, apprehension, stop and frisk, interview, interrogation, canvassing, questioning
potential witnesses, or similar activities
Using force violence, brandishing or using a weapon, or threatening to discharge or use a
weapon (except in self-defense, in defense of other DoD persons in the vicinity, or in defense of
non-DoD persons, including civilian law enforcement personnel in the vicinity when directly
related to an assigned activity or mission)
Evidence collection, security functions, crowd and traffic control, and operating, manning, or
staffing checkpoints.
Surveillance or pursuit of individuals, vehicles, items, transactions, or physical locations, or
acting as undercover agents, informants, investigators, or interrogators.
Forensic investigations or other testing of evidence obtained from a suspect for use in a civilian
law enforcement investigation in the United States unless there is a DoD nexus or the
responsible civilian law enforcement official requesting such testing declares in writing that the
evidence to be examined was obtained by consent. SECDEF may authorize exceptions to this
policy.
(b) Permissible Direct Assistance
(i) Military Purpose Doctrine
There are several forms of direct assistance by military personnel that are permitted under the PCA.
The first type of permitted direct assistance is action taken for the primary purpose of furthering a
military or foreign affairs function of the United States.56 This category is often referred to as the
“Military Purpose Doctrine” and covers actions the primary purpose of which is to further a military
interest. While civilian agencies can receive an incidental benefit, this section should be construed
54 Red Feather, 392 F. Supp. at 923 (W.D.S.D. 1975) (“It is clear from the legislative history that Congress intended 18
U.S.C. § 1385 to prevent the direct, active use of Federal troops to execute the laws.”).
55 DoDI 3025.21, supra note 6, Encl. 3, para 1.c.
56 Id., Encl. 3.
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narrowly and cannot be used as a subterfuge for getting around the PCA. For example, the
scheduling of a military exercise for the sole purpose of benefiting a civilian law enforcement
agency is contrary to the intent of the military purpose doctrine. Military actions under the military
purpose doctrine include:
Investigations and other actions related to enforcement of the Uniform Code of Military Justice
(UCMJ)
Investigations and other actions that are likely to result in administrative proceedings by DoD,
regardless of whether there is a related civil or criminal proceeding
Investigations and other actions related to the commander’s inherent authority to maintain law
and order on a military installation or facility
Protection of classified military information or equipment or controlled unclassified information
Protection of DoD personnel, DoD equipment, and official guests of the DoD
Such other actions that are undertaken primarily for a military or foreign affairs purpose57
It is important to note that use of military forces in the national defense of the United States is not
support to civilian law enforcement agencies. Rather, it is homeland defense under the President’s
authority as Commander in Chief under Article II of the Constitution. The use of military forces in
a national defense role is not subject to the PCA and other restrictions on military participation in
law enforcement.
(ii) Emergency Authority
A second type of direct assistance that may be permitted is action that falls under the “emergency
authority” of the United States.58 These actions are taken pursuant to the inherent authority of the
Federal government under the Constitution. Actions permitted in accordance with this authority are
those necessary to preserve public order and to carry out governmental operations within U.S.
territorial limits, or otherwise in accordance with applicable law. In such circumstances, force may
be used if necessary.
“Emergency authority” is reserved for extremely unusual circumstances. When authorized under
the provisions of DoDD 3025.18, Federal military commanders have the authority, in extraordinary
emergency circumstances where prior authorization by the President is impossible and duly
constituted local authorities are unable to control the situation, to engage temporarily in activities
that are necessary to quell large-scale, unexpected civil disturbances because:
Such activities are necessary to prevent significant loss of life or wanton destruction of property
and are necessary to restore governmental function and public order; or,
When duly constituted Federal, State, or local authorities are unable or decline to provide
adequate protection for Federal property or Federal governmental functions. Federal action,
57 Id.
58 See 32 C.F.R. § 215.4 (2017), which notes the Constitution authorizes “prompt and vigorous Federal action,
including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental
functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger
life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are
unable to control the situations.”
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including the use of Federal military forces, is authorized when necessary to protect Federal
property or functions.59
Presidential approval for quelling civil disturbances is not a prerequisite to the use of military forces
in these two limited circumstances.60
(iii) Civil Disturbance Statutes
The third type of permitted direct assistance by military forces to civilian law enforcement is action
taken pursuant to DoD responsibilities under the Insurrection Act, 10 U.S.C. §§ 251-255. This
statute contains express exceptions to the Posse Comitatus Act that allow for the use of military
forces to repel insurgency, domestic violence, or conspiracy that hinders the execution of State or
Federal law in specified circumstances. Actions under this authority are governed by DoDD
3025.21. The Insurrection Act permits the President to use the armed forces to enforce the law
when:
There is an insurrection within a State, and the State legislature (or Governor if the legislature
cannot be convened) requests assistance from the President;61
A rebellion makes it impracticable to enforce the Federal law through ordinary judicial
proceedings;62 or
An insurrection or domestic violence opposes or obstructs Federal law, or so hinders the
enforcement of Federal or State laws that residents of that State are deprived of their
constitutional rights and the State is unable or unwilling to protect these rights.63
10 U.S.C. § 254 requires the President to issue a proclamation ordering the insurgents to disperse
within a certain time before use of the military to enforce the laws. The President issued such a
proclamation during the Los Angeles riots in 1992.
(iv) Other Authority
There are several statutes and authorities, other than the Insurrection Act, that allow for direct DoD
participation in civil law enforcement.64 They permit direct military participation in civilian law
enforcement, subject to the limitations within each respective statute. This section does not contain
detailed guidance; therefore, specific statutes and other references must be consulted before
determining whether military participation is permissible. A brief listing of these statutes includes:
Prohibited transactions involving nuclear material (18 U.S.C. § 831)
59 DoDI 3025.21, supra note 6, Encl. 3, para. 1.b.(3).
60 DoDD 3025.18, supra note 43, para. 4 (which provides specific guidance on when emergency authority may be
used).
61
10 U.S.C. § 251 (2012).
62
10 U.S.C. § 252 (2012).
63
10 U.S.C. § 253 (2012).
64 DoDI 3025.21, supra note 6, Encl. 3, para. 1.b.(5).
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Emergency situations involving chemical or biological weapons of mass destruction (10 U.S.C.
§ 282) (see also 10 U.S.C. §§ 175a, 229E and 233E which authorizes the Attorney General or
other DOJ official to request SECDEF to provide assistance under 10 U.S.C. § 282)
Assistance in the case of crimes against foreign officials, official guests of the United States,
and other internationally protected persons (18 U.S.C. §§ 112, 1116)
Protection of the President, Vice President, and other designated dignitaries (18 U.S.C. § 1751
and the Presidential Protection Assistance Act of 1976)
Assistance in the case of crimes against members of Congress (18 U.S.C. § 351)
Execution of quarantine and certain health laws (42 U.S.C. § 97)
Protection of national parks and certain other Federal lands (16 U.S.C. §§ 23, 78, 593)
Enforcement of the Magnuson-Stevens Fishery and Conservation Management Act (16 U.S.C. §
1861(a))
Actions taken in support of the neutrality laws (22 U.S.C. §§ 408, 461-462)
Removal of persons unlawfully present on Indian lands (25 U.S.C. § 180)
Execution of certain warrants relating to enforcement of specified civil rights laws (42 U.S.C. §
1989)
Removal of unlawful enclosures from public lands (43 U.S.C. § 1065)
Protection of the rights of a discoverer of a guano island (48 U.S.C. § 1418)
Support of territorial Governors if a civil disorder occurs (48 U.S.C. §§ 1422, 1591)
Actions in support of certain customs laws (50 U.S.C. § 220)
Actions taken to provide search and rescue support domestically under the authorities provided
in the National Search and Rescue Plan
(2) Training
The second main category of regulation on DoD personnel assistance to civilian law enforcement
involves training.
10 U.S.C. § 273 permits the Secretary of Defense to make DoD personnel
available for the training of Federal, State, and local civilian law enforcement personnel in the
operation and maintenance of equipment, including equipment provided to civilian law enforcement
by DoD under 10 U.S.C. § 272. The Secretary of Defense has authorized the use of this authority in
DoDI 3025.21, Enclosure 3.65
DoDI 3025.21 allows the military departments and defense agencies to provide training that is not
“large scale or elaborate” and does not result in a direct or regular involvement of military
personnel in activities that are traditionally civilian law enforcement operations. Training assistance
is limited to situations where the use of non-DoD personnel would be unfeasible or impractical
because of time or cost. Training assistance cannot involve military personnel in a direct role in a
law enforcement operation, unless otherwise authorized by law, and this assistance will only be
rendered at locations where law enforcement confrontations are not reasonably likely.66
65 DoDI 3025.21, supra note 6, Encl. 3, para. 1.f.
66 Id.
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DoD is prohibited from providing advanced military training to civilian law enforcement agencies.67
“Advanced” military training is defined as high intensity training which focuses on the tactics,
techniques, and procedures required to apprehend, arrest, detain, search for, or seize a criminal
suspect when the potential for violent confrontation exists. Examples of advanced military training
include: advanced marksmanship and sniper training, military operations in urbanized terrain
(MOUT), close quarters battle/close quarters combat (CQB/CQC) training, and other similar
training. Advanced military training does not include basic military skills such as basic
marksmanship, patrolling, mission planning, medical, and survival skills.68
A single general exception to the above policy is provided to the U.S. Army Military Police School
which is authorized to train civilian law enforcement agencies in the Counterdrug Special Reaction
Team Course, the Counterdrug Tactical Police Operations Course, and the Counterdrug
Marksman/Observer Course. Additionally, the Commander, U.S. Special Operations Command
(USSOCOM) may approve similar training by special operations forces on an exceptional basis.69
(3) Expert Advice
The third main category of regulation on DoD personnel assistance to civilian law enforcement is
the provision of expert advice. 10 U.S.C. § 273 allows the Secretary of Defense to make DoD
personnel available to provide civilian law enforcement agencies with expert advice relevant to the
purposes of 10 U.S.C., Chapter 18. This does not permit direct assistance with activities that are
fundamentally civilian law enforcement operations, except as otherwise authorized in DoDI
3025.21.70
(4) Use of DoD Personnel to Operate or Maintain Equipment
10 U.S.C. § 374 and DoDI 3025.21, Enclosure 3, address the use of DoD personnel for the
operation or maintenance of equipment, including but not limited to equipment provided under
§ 272 and DoDI 3025.21 Enclosure 8, for Federal, State, or local law enforcement officials. DoDI
3025.21 largely mirrors 10 U.S.C. § 274, with a few additional restrictions and differences that will
be highlighted as the statute provisions are set forth below.71
67 DoD Training Support to U.S. Civilian Law Enforcement Agencies, June 29, 1996, (available from the Office of the
Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD(HD&ASA)), room 3D247,
2600 Defense Pentagon, Washington D.C. 20301) [hereinafter Training Memorandum].
68 DoD may allow local police organizations and other civic organizations to use military ranges. See 10 U.S.C. § 4309
(1998).
69 Training Memorandum, supra note 67.
70 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.
71 The operation or maintenance of equipment for a civilian agency, or the assistance in operating or maintaining such
equipment, is subject to the following general restrictions from DoDI 3025.21: The use of DoD personnel to operate or
maintain, or to assist in the operation or maintenance of equipment, will be limited to situations where it would be
impractical or unfeasible to use non-DoD personnel for this purpose. The use of DoD personnel under these provisions
must not compromise military preparedness. The assistance cannot involve DoD personnel in a direct law enforcement
role unless otherwise authorized, and the assistance should be provided at a location where there is not a reasonable
likelihood of a law enforcement confrontation. Lastly, military aircraft for point-to-point transportation and training
flights for civilian law enforcement personnel may only be provided in accordance with DoD 4515.13-R.
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10 U.S.C. § 274(a) allows the Secretary of Defense to make DoD personnel available for the
maintenance of equipment for Federal, State, and local civilian law enforcement officials, including
equipment made available under 10 U.S.C. § 272.72 The statute does not specify who a request for
maintenance must come from. Request specifics for maintenance and operation under DoDI
3025.21 are discussed further below.
10 U.S.C. § 274(b)(1) allows the Secretary of Defense, upon request from the head of a Federal law
enforcement agency, to make DoD personnel available to operate equipment under certain laws and
operations as follows:
A criminal violation of certain specified laws;73
Assistance that such agency is authorized to provide to a State, local, or foreign government
involved with enforcement of a similar law;
A foreign or domestic counter-terrorism operation; or
A rendition of a suspected terrorist from a foreign country to the United States to stand trial.
These categories are best understood as “areas” the DoD can operate in with respect to 10 U.S.C. §
274. DoDI 3025.21 repeats these areas almost verbatim, with minor changes or additions.74
10 U.S.C. § 274(b)(2) states that DoD personnel made available under 10 U.S.C. § 274(b) may
operate equipment for the certain purposes. This is best understood as what functions DoD
personnel can perform when operating under the areas above. The following purposes are
authorized under the statute:75
Detection, monitoring, and communication of the movement of air and sea traffic;
Detection, monitoring, and communication of the movement of surface traffic outside of the
geographic boundary of the United States and within the United States not to exceed 25 miles of
the boundary if the initial detection occurred outside of the boundary;
Aerial reconnaissance;
Interception of vessels or aircraft detected outside the land area of the United States for the
purposes of communicating with such vessels and aircraft to direct such vessels and aircraft to
go to a location designated by appropriate civilian officials;
Operation of equipment to facilitate communications in connection with law enforcement
programs specified in 10 U.S.C. § 274(a)(4)(1);
72 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d
73 Controlled Substances Act, 21 U.S.C. §§ 801-904 (2011); Controlled Substances Import and Export Act, 21 U.S.C.
§§ 951-971 (2011); Immigration and Nationality Act, 8 U.S.C. §§ 1324-1328 (2012); a law relating to the arrival or
departure of merchandise (as defined in § 401 of the Tariff Act of 1930) into or out of the customs territory of the
United States; Chapter 705 of Title 46 (The Maritime Drug Law Enforcement Act (46 U.S.C. §§ 70501-70508) (2012));
or any foreign or domestic law prohibiting terrorist activities. 10 U.S.C. § 274(b) (2012).
74 For example, DoDI 3025.21 adds “including support of FBI Joint Terrorism Task Forces” to the provision of 10
U.S.C. § 274 discussing operation of equipment in the case of foreign or domestic terrorism missions. DoDI 3025.21,
supra note 6, para. 1.d.(5).
75 DoDI 3025.21 reiterates all of these approved purposes virtually identically, including those subject to joint approval.
DoDI.21 adds one other authorized purpose - the detection, monitoring, and tracking of the movement of weapons of
mass destruction under the circumstances described in para. 1.d. of Enclosure 3 and when outside the United States.
DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.(5)(b)7.
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Subject to joint approval by the Secretary of Defense and the Attorney General (and the
Secretary of State in the case of a law enforcement operation outside of the land area of the
United States):
¾ the transportation of civilian law enforcement personnel along with any other civilian or
military personnel who are supporting or conducting a joint operation with civilian law
enforcement personnel;
¾ the operation of a base of operations for civilian law enforcement and supporting personnel;
and
¾ the transportation of suspected terrorists from foreign countries to the United States for trial
(so long as the requesting Federal law enforcement agency provides all security for such
transportation and maintains custody over the suspect through the duration of the
transportation).
Additionally, DoD personnel made available to operate equipment for the purposes stated above
may continue to operate such equipment into the land area of the United States in cases involving
the pursuit of vessels or aircraft where the detection began outside such land area.76 Lastly, 10
U.S.C. § 274(c) provides that the Secretary of Defense may make DoD personnel available to
operate equipment for purposes other than those enumerated in 10 U.S.C. § 274(b)(2) so long as
such support does not result in DoD personnel directly participating in a civilian law enforcement
operation, unless direct participation is otherwise authorized by law.77
DoDI 3025.21 contains the additional provisions that 1) nothing in its guidance prohibits the use of
emergency action authority under DoDD 3025.18, and 2) When DoD personnel are otherwise
assigned to provide assistance with respect to the laws specified in subparagraph 1.b.(5) of DoDI
3025.21 Enclosure 3, the participation of such personnel shall be consistent with the limitations in
such laws, if any, and such restrictions as may be established by policy or the DoD Components
concerned.78
The process for requests for operation and maintenance of equipment differ slightly between the
statute and DoDI 3025.21. No specific guidance is given regarding requests for equipment
maintenance under 10 U.S.C. § 274(a). Under 10 U.S.C. § 274(b) requests for equipment operation
must come from the head of a Federal law enforcement agency.
DoDI 3025.21 states that a request for DoD personnel to operate or maintain equipment (or assist
with these actions) must be made pursuant to section 10 U.S.C. § 274 or other applicable law that
permits DoD personnel to provide such assistance to civilian law enforcement officials. It goes on
to state a request that is made pursuant to section 10 U.S.C. § 274 of must be made by the head of a
civilian agency empowered to enforce any of the laws listed in footnote 75 above.79 Note that,
76
10 U.S.C. § 274(b)(3) (2012). DoDI 3025.21 differs slightly and states that personnel may operate equipment for
both the detection, monitoring, and communication of the movement of air and sea traffic and the interception of
vessels or aircraft in accordance with 10 U.S.C. 274(b)(2)(D) (2012).
77
10 U.S.C. § 274(c) (2012). DoDI 3025.21 contains this provision at Encl. 3, para. 1.d.(7).
78 DoDI 3025.21, supra note 6, Encl. 3, para. 1.d.(9).
79 Id., para. 1.d.(4).
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unlike 10 U.S.C. § 274, this appears to limit the circumstances under which maintenance (for 10
U.S.C. § 274 purposes) can be approved to these categories.80
(5) Other Permissible Assistance
The last main category of regulation over DoD personnel assistance to civilian law enforcement
under DoDI 3025.21 is the overarching category of “other permissible assistance.” The transfer of
information acquired in the normal course of military operations to civilian law enforcement
agencies under 10 U.S.C. § 271 is not a violation of the PCA and falls into this category.81 Criteria
for the provision of this information are discussed infra, above.
80 Note also the difference in request language for operation assistance - the statute uses the term “Federal agency” and
DoDI 3025.21 uses the term “civilian agency empowered” to enforce certain laws.
81 Id., Encl. 3, para. 1.g.
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CHAPTER 5
CIVIL DISTURBANCE OPERATIONS
KEY REFERENCES:
10 U.S.C. § 251-255- The Insurrection Act.
10 U.S.C. § 2667 - Leases: Non-Excess Property of Military Departments.
18 U.S.C. § 231 - Civil Disorders.
18 U.S.C. § 1382 - Entering Military, Naval, or Coast Guard Property.
18 U.S.C. § 1385 - The Posse Comitatus Act.
28 U.S.C. § 1346, 2671-2680 - The Federal Tort Claims Act.
31 U.S.C. § 1535 - Agency Agreements.
Executive Order 12656 - Assignment of Emergency Preparedness Responsibilities.
Executive Order 13527 - Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack, December 30, 2009.
DoDD 3025.18 - Defense Support of Civil Authorities, December 29, 2010, Incorporating
Change 2, Effective March 19, 2018.
DoDD 5111.13 - Assistant Secretary of Defense for Homeland Defense and Global Security,
March 23, 2018.
DoDI 3025.21 Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.
DoDI 5525.13 Limitation of Authority to Deputize DoD Uniformed Law Enforcement
Personnel by State and Local Governments, September 28, 2007.
CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules For the Use of Force for U.S.
Forces (S), June 13, 2005.
CJCSI 3110.07C, Guidance Concerning Chemical, Biological, Radiological, and Nuclear
Defense and Employment of RIOT Control Agents and Herbicides (S), November 22, 2006.
Joint Pub 3-28 -Defense Support of Civil Authorities, July 31, 2013.
Department of Defense Dictionary of Military and Associated Terms, April 2018.
Army Regulation 700-131 - Loan and Lease of Army Materiel, August 23, 2004.
CNGBI 3000.04-National Guard Bureau Domestic Operations, 24 January 2018.
NGR 500-5, National Guard Domestic Law Enforcement Support and Mission Assurance
Operations (18 Aug. 2010).
FM 3-07, Stability, June 2, 2014.
USNORTHCOM CONPLAN 3500 Defense Support of Civil Authorities (S).
USNORTHCOM CONPLAN 3500-14, Defense Support of Civil Authorities Response.
USNORTHCOM CONPLAN3600 (S).
USPACOM CONPLAN 7502 (S).
A.
Introduction
The Code of Federal Regulations provides that within civilian communities in the United States, the
local governments and the States have the primary responsibility for protecting life and property
and maintaining law and order.1 The Department of Defense is authorized to support this effort.2
1
32 C.F.R. § 182.6(b)(1)(ii) (2017).
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Generally, Federal forces are employed in support of State and local authorities to enforce civil law
and order only when circumstances arise that overwhelm the resources of State and local
authorities. This basic rule reflects the Founding Fathers’ hesitancy to raise a standing army and
their desire to render the military subordinate to civilian authority.3 Limiting direct military
involvement in civilian law enforcement activities, is rooted in the Constitution4 and laws of the
United States,5 and allows for exception only under extreme emergency conditions. However, the
Constitution also guarantees to the States that the Federal Government will aid in suppressing civil
disturbances and empowers Congress to create laws that provide Federal forces for that purpose.6
Department of Defense (DoD) policy no longer contains an official definition of civil disturbance,
as the definition was removed from the DoD Dictionary of Military and Associated Terms; rather,
“civil disturbances” are now referenced in the collective definition of “domestic emergencies.”7
Civil disturbance was previously defined as “group acts of violence and disorders prejudicial to
public law and order.”8 Courts use similar language when defining “insurrection.”9 The Federal
Emergency Management Agency (FEMA) defines civil disturbance more broadly as “[a] civil
unrest activity such as a demonstration, riot, or strike that disrupts a community and requires
intervention to maintain public safety.”
This chapter discusses how DoD personnel and assets are integrated into a civil disturbance
response. How those forces are commanded, funded, and employed depends on the Federal or State
authority used to activate the personnel and assets.
1. National Response Framework - Civil Disturbance
2 U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES Encl. 4,
para. 1.b. (27 Feb. 2013) [hereinafter DoDI 3025.21].
3 Among the several grounds stated in the Declaration of Independence for severing ties with Great Britain includes the
fact that the King “has kept among us, in times of peace, Standing Armies without the consent of our Legislature . . .
[and] has affected to render the Military independent of and superior to the Civil power.” THE DECLARATION OF
INDEPENDENCE, para. 13, available at http://www.loc.gov/rr/program/bib/ourdocs/DeclarInd.html. This feeling
resurfaced during the Constitutional Convention where Maryland Delegate Luther Martin recorded the general
sentiment, “When a government wishes to deprive its citizens of freedom and reduce them to slavery, it generally makes
use of a standing army.” Luther Martin’s Letter on the Federal Convention of 1787 (1787), 1 DEBATES IN THE SEVERAL
STATES CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (ELLIOT’S DEBATES) 344, 372 (Jonathan
Elliot ed., 1836) available at http://memory.loc.gov/ammem/amlaw/lwed.html.
4 The Constitution divides authority over the Armed Forces between the President as Commander in Chief, and
Congress, which has the authority to “raise and support Armies . . . provide and maintain a Navy, . . . [and] make Rules
for the Government and Regulation of the land and naval Forces.” U.S. CONST. art. I, § 8, para. 11; art. II, § 2, para. 1.
5 See, e.g., Posse Comitatus Act, 18 U.S.C. § 1385. The Posse Comitatus Act is discussed fully in Chapter 4 of this
Handbook.
6 U.S. CONST. art. I, § 8, para. 15, art. II, § 2, and art. IV, § 4. These sections provide authority to Congress and the
President to support the States by providing forces to repel an invasion and suppress domestic violence.
7 DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 72 (April 2018) [hereinafter DoD
Terms].
8 JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT GL-5 (31 July 2013) [hereinafter JOINT PUB. 3-28]. The
previous edition of JP 3-28 contained this definition, the newest edition removed this definition.
9 See e.g., In re Charge to Grand Jury, 62 F. 828 (N.D. Ill. 1894) (The open and active opposition of a number of
persons to the execution of the laws of the United States, of so formidable a nature as to defy for the time being the
authority of the government, constitutes an insurrection, though not accompanied by bloodshed, and not of sufficient
magnitude to render success probable.)
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The guide for how the Nation responds in the civil disturbance context and other emergencies is
broadly known as the National Response Framework (NRF)10. The NRF sets out scalable, flexible,
and adaptable concepts for the national response to disasters and emergencies.11 While responses to
civil disturbances generally begin and end locally, the NRF provides structure for the Federal
response that may also be utilized by States to organize their response resources, capabilities, and
authorities for managing incidents. 12 In particular, Federal response resources and capabilities are
organized by functional areas and grouped under 15 core Emergency Support Functions (ESFs).13
Public Safety and Security, inclusive of civil disturbance, is one of the ESFs designed to “[p]rovide
Federal public safety and security assistance to local, State, tribal, territorial and Federal
organizations overwhelmed by the results of actual or anticipated natural/manmade disaster or an
act of terrorism.”14 The primary agency in support of this ESF is the Department of Justice/Bureau
of Alcohol, Tobacco, Firearms and Explosives. Support agencies include the Department of
Defense and the Department of Homeland Security.
2. The Tiered Response
“The public safety and the welfare of a State’s residents are the fundamental responsibility of every
Governor.” 15 The Governor coordinates State resources to support local governments as needed
and coordinates assistance with other States and the Federal Government. 16 Stated very simply,
when an incident occurs, local governments are the first to respond. If local resources are
inadequate or exhausted, the local government may reach out to neighboring local governments
through a variety of mutual assistance compacts or to the State for additional resources and
capabilities. When State resources are inadequate or exhausted, the State may request and
coordinate assistance from other States through the Emergency Assistance Compact (EMAC), 17
and/or to the Federal government resources. Among the resources available to a State and locality
are National Guard personnel and assets of the affected State, National Guard personnel and assets
from other States (through the EMAC), and other DoD personnel and assets.18
B. Authorities for Use of DoD Forces for a Civil Disturbance
10 DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, Third Edition (June 2016), [hereinafter NRF],
available at http://www.fema.gov/national-response-framework. (last visited Aug. 3, 2018). The NRF superseded the
National Response Plan (NRP) published in 2005; see infra Chapter 2 National Framework for Incident Management.
11 Id. at 1.
12 Id.
13 Id. at 33. Emergency Support Functions (ESFs) are the grouping of governmental and certain private sector
capabilities into an organizational structure to provide support, resources, program implementation, and services that are
most likely needed to save lives, protect property and the environment, restore essential services and critical
infrastructure, and help victims and communities return to normal following domestic incidents.
https://www.phe.gov/preparedness/support/esf8/Pages/default.aspx. (last visited Aug. 3, 2018).
library/assets/documents/25512. (last visited Aug. 3, 2018).
15 NRF, supra note 10, at 13.
16 Id.
17 EMAC, supra note 17.
18 NRF, supra note 10.
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The U.S. Federal Armed Forces, including the reserves, are governed by Title 10 of the U.S. Code.
National Guard forces have an additional statutory authority codified in Title 32 of the U.S. Code,
due to their unique status as both a Federal Reserve component and as a part of the organized militia
of their respective State or territory. The “3025-series” of DoD instructions and directives provide
the guidance necessary to properly operate during civil support operations. More specifically, the
following core DoD policies represent the core documents used by Federal personnel: 1)
Department of Defense Directive 3025.18, Defense Support of Civil Authorities, 2) Department of
Defense Instruction 3025.21, Defense Support of Civilian Law Enforcement Agencies, 3)
Department of Defense Instruction 3025.22, The Use of the National Guard for Defense Support of
Civil Authorities.
Employment of Federal Military Forces
The President is authorized by the Constitution and laws of the United States to employ the Title 10,
Federal Armed Forces of the United States to suppress insurrections, rebellions, and domestic
violence under various conditions and circumstances and to provide limited support to civilian law
enforcement activities.19 The specifics are discussed later in this chapter.
Employment of National Guard Forces
Due to the unique status of the National Guard, National Guard forces can be employed as follows:
1) State Active Duty (SAD) State funded, under State command and control, when called to duty by
the State Governor in accordance with State law; 2) Title 32 status, using Federal funds, under State
command and control, when properly assigned the mission under DSCA in accordance with Federal
law; or 3) Title 10 status, Federally funded, under Federal control, when called to Federal military
service by the President.
NOTE: Immediate Response Authority as set out in DoDD 3025.18, Defense Support of Civil
Authorities (DSCA), allows Federal military commanders, heads of DoD components, and
responsible DoD civilian officials to provide an immediate response by temporarily employing the
resources under their control, subject to any supplemental direction provided by higher
headquarters, to save lives, prevent human suffering, or mitigate great property damage within the
United States, in response to a request for assistance from a civil authority, under imminently
serious conditions and if time does not permit approval from higher authority.20 Immediate
response authority is not an exception to the PCA, nor does it permit actions that would subject
civilians to the use of military power that is regulatory, prescriptive, proscriptive, or compulsory.21
1. Defense Support of Civil Authorities
The DoD has a broad range of capabilities that can be deployed in support of civilian authorities in
emergency situations. As discussed in sections C and D of Chapter 1, the DoD provides Federal
military assistance to civil authorities only when civil resources are insufficient, when requested to
do so by appropriate civil authorities, and when properly ordered to do so by DoD officials. This
DoD assistance is categorized as Defense Support to Civil Authorities (DSCA). DSCA is defined
19 DODI 3025.21, supra note 2, at encl. 3 and 4.
20 U.S. DEP’T OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4.i (29 Dec. 2010) (C2, 19 Mar.
2018) [hereinafter DoDD 3025.18].
21 Id.
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as, “[s]upport provided by United States Federal military forces, including Department of Defense
civilians, contract personnel, and component assets, and National Guard forces (when the Secretary
of Defense, in coordination with the Governors of the affected States, elects and requests to use
those forces in a Title 32 status) in response to requests for assistance from civil authorities for
domestic emergencies, law enforcement support, and other domestic activities, or from qualifying
entities for special events.”22 DSCA is initiated by a request for assistance to the DoD from civil
authorities, qualifying entities, or by order of the President or Secretary of Defense.23 The process
for requesting military assistance by civilian agencies is set out in DoD Directive 3025.18. As a
part of the approval process, before providing assets to support civil authorities, DoD evaluates the
request based on the “CARRLL” factors also set out in DoDD 3025.18.24
In response to the request for assistance, forces from all branches of service on Federal active duty,
including National Guard personnel under Federal command and control (Title 10) and National
Guard personnel utilizing Federal funds under State command and control (Title 32) can be
utilized.25 As discussed later in this chapter, the utilization of Federal military forces, for civil
disturbances or law enforcement support, unless acting pursuant to The Insurrection Act or other
exception to the Posse Comitatus Act (PCA), is restricted from performing law enforcement
functions.26 While under the control of the Governor in a Title 32 or SAD status, the National
Guard is not subject to the restrictions of Posse Comitatus. Accordingly, civil disturbance support
mission and law enforcement support mission DSCA assignments are better suited to National
Guard forces.
2. National Guard Civil Support
When a civil disturbance escalates beyond the capabilities of local and State law enforcement
authorities to maintain or restore law and order, in accordance with State law and at State expense,
Governors have the authority to activate the National Guard to augment State and local law
enforcement authorities to restore law and order. Further, in accordance with State law, Governors
also have the authority to activate the National Guard to assist other States as requested through the
Emergency Management Assistance Compact (EMAC). National Guard units and personnel, in
non-Federal status and under the command of their respective Governors, have primary
responsibility for providing military assistance to local governments through their State emergency
management response structure.27 The National Guard Bureau refers to this support as “National
22 DODD 3025.18, supra note 20, at 19.
23 Id., at para. 4.c.
24 DoDD 3025.18 requires all requests for military support be evaluated against six criteria prior to the decision to
employ forces: Cost - Who pays and the impact on DoD budget, Appropriateness - Whether it is in the interest of
DoD to provide the requested support, Readiness - Impact on DoD’s ability to perform its primary mission, Risk -
Safety of DoD forces, Legality - Compliance with the law, and Lethality - Potential use of lethal force by or against
DoD forces.
25 In accordance with Title 32 USC, the Secretary of Defense, with the concurrence of the affected Governors, is the
sole authority to authorize DOD funding of the National Guard for DOD missions including DSCA, see also DODI
3025.22 July 26, 2013, Incorporating Change 1, May 15, 2017.
26 Posse Comitatus Act, 18 U.S.C. § 1385 (2012), makes it unlawful to use any part of the Army or Air Force to act in a
civilian law enforcement capacity to execute local, State, or Federal laws.
27 NATIONAL GUARD REG. 500-5, NATIONAL GUARD DOMESTIC LAW ENFORCEMENT SUPPORT AND MISSION
ASSURANCE OPERATIONS para. 5-3.a (18 Aug. 2010) [hereinafter NGR 500-5].
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Guard Civil Support.”28 This support is more specifically defined as “[s]upport provided by the
National Guard while in a State Active Duty status or Title 32 status to civil authorities for domestic
emergencies, designated law enforcement, and other activities.”29 The most recent civil disturbance
examples in Ferguson Missouri, Baltimore, Maryland Charlottesville, Virginia, and Charlotte, North
Carolina were supported by the respective State National Guard personnel primarily in their SAD
status.
C. Use of National Guard Forces in a Title 32 or SAD Status (Not in Federal Service) for Civil
Disturbance Operations
1. National Guard Civil Disturbance Mission
National Guard Forces have the primary responsibility for providing military assistance to State and
local government agencies in civil disturbances for the protection of life, property and the
maintenance of law and order within the territorial jurisdiction of any State.30 National Guard units
are particularly well suited for domestic law enforcement missions and civil disturbance operations
as the units are located in over 3,000 local communities throughout the nation, readily accessible,
routinely perform exercises with local first responders, and have broad experience in providing
support to neighboring communities through their many State missions including hurricane and
winter storm responses.31
2. National Guard Bureau and State Concept Plans (CONPLANS)
The National Guard Bureau (NGB) has the responsibility to develop and maintain an All-Hazards
Support Plan, which describes the National Guard’s domestic All-Hazards response supporting
Federal agencies, States, Territories and the District of Columbia.32 Each State National Guard
prepares a State All-Hazards CONPLAN which incorporate civil disturbance operations and laws
enforcement support. These CONPLANs provide the basis for preparation, deployment,
employment and redeployment of National Guard Forces.
3. National Guard (Title 32 or SAD) Civil Disturbance Planning Considerations
The following is a non-exhaustive list of standard planning considerations for CDOs:
Command and Control: State laws and policies authorize National Guard forces in either a Title 32
or SAD status to support law enforcement agencies and are incorporated into State emergency
operations plans. 33 National Guard forces are generally under the control of State and local civil
28 CHIEF, NATIONAL GUARD BUREAU, INSTR. 3000.04, NATIONAL GUARD BUREAU DOMESTIC OPERATIONS GL-2 (24
Jan. 2018) [hereinafter CNGBI 3000.04].
29 Id.
30 NGR 500-5, supra note 27, at para. 5-3.
31 Id., at para 5-1.
32 CHIEF, NATIONAL GUARD BUREAU, INSTR. 5200.01, NATIONAL GUARD BUREAU ALL-HAZARDS SUPPORT PLAN para.
4 (03 FEB 2017),
33 NGR 500-5, supra note 27, at para. 3-2.
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authorities for mission tasking; however, these forces will remain under their normal military chain
of command.34
Law Enforcement Functions: National Guard assistance is provided in support of civil authorities,
not to replace civil authority. While State law may allow National Guard forces to act in a law
enforcement capacity, apprehending, searching, seizing, and questioning should generally be left to
civilian law enforcement. For concrete guidance, refer to the laws of each State and the State
National Guard’s Rules for the Use of Force (RUF) developed by the Office of the Staff Judge
Advocate (OSJA) in partnership with the State Attorney General’s office.
Posse Comitatus: National Guard Forces in a SAD or Title 32 status supporting CDOs and
law enforcement agencies are subject to the laws of their State; however, they are not
subject to the restrictions of the Posse Comitatus Act.35
EMAC Requirements: State Governors have the authority to activate their National Guard
forces to assist other States as requested through the EMAC. National Guard personnel in
SAD status pursuant to the EMAC, or forces serving in a Title 32 status supporting domestic
law enforcement or CDOs, outside their home State, may support only civilian law
enforcement as specified in a memorandum approved by the sending and receiving
Governors.36
RUF: National Guard Forces engaged in civil disturbance and law enforcement operations are
governed by the laws of the State in which they are serving. Each State develops its own RUF
based on State law.
Intelligence Oversight: National Guard domestic intelligence activities are strictly limited by DoD
procedures, 37 DoD directives,38 National Guard policies,39 and the Constitution.40
Use of Federal Equipment: National Guard forces have the authority to use general purpose Federal
equipment issued to the National Guard during CDOs or other emergencies declared by the
34 Id., at para. 4-2.
35 Id., at para. 4-3.
36 EMAC, supra note 17.
37 U.S. DEP’T OF DEFENSE, 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS
THAT AFFECT U.S. PERSONS (26 Apr. 2017) [hereinafter DoD 5240.1-R].
38 U.S. DEP’T OF DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS
NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1908) [hereinafter DoDD 5200.27].
39 CHIEF, NATIONAL GUARD BUREAU, INSTR. 2000.01B, NATIONAL GUARD INTELLIGENCE ACTIVITIES (04 Apr. 2017)
[hereinafter CNGBI 2000.01B].
40 U.S. CONST. amend. I (granting to the people the freedom of speech, to peaceably assemble, and to petition the
Government for a redress of grievances). The DoD Civil Liberties Program is governed under DoDI 1000.29, which
ensures that the DoD will not maintain information on how an individual exercises rights protected by the First
Amendment to the Constitution of the United States, including freedoms of speech, assembly, press, and religion unless
maintaining the information is authorized by the person(s), by statute, or is pertinent to and within the scope of an
authorized law enforcement, intelligence collection, or counterintelligence activity. See also Snyder v. Phelps, 131
S.Ct. 1207 (2011); U.S. CONST. amend. IV (granting to the people the right to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures). See also DoD 5240.1-R, supra note 37.
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Governor, subject to reporting and reimbursement to the Federal government. Federal intelligence
equipment, such as certain unmanned aircraft systems (UAS), remotely piloted aircraft (RPA), and
the Joint Worldwide Intelligence Communication System (JWICS) cannot be used without
SECDEF approval for such purposes.41
Required Training: National Guard Units that have been assigned the civil disturbance mission are
required to conduct at least annually civil disturbance training and assessment.42 Direct
participation in in CDOs is authorized only for those who have completed the civil disturbance
training.43 National Guard Soldiers who have not been trained and assessed in civil disturbance
operations should serve only in a support role.
Claims: National Guard forces serving in a Title 32 status are considered United States Employees
for the purposes of the Federal Tort Claims Act (FTCA). National Guard Forces serving in a SAD
status are not covered by the FTCA; rather, tort coverage would be as provided for State employees
within the respective State.
4. National Guard (Title 32 or SAD) Civil Disturbance Operation Mission Sets
Under the direction of proper civil authorities and supervision of civilian law enforcement and IAW
applicable State and Federal laws and regulations, mission sets designed for civil disturbance
operations and domestic law enforcement support included in the National Guard Civil Support
Task List are as follows: 44
Crowd management and Control Support: Includes crowd control activities and measures to
preserve or restore order in response to events that could, or have escalated causing the disruption of
public safety, public order, and interruption of essential services or destruction of critical assets.
Public Safety Support: Includes manning traffic control points, access control, presence patrols and
other observation, escort and protective services.
Transportation Security: Includes escort of vehicles in transit, including people or cargo deemed at
risk for interference.
Quick Reaction Support: Includes the use of pre-identified support to State and local law
enforcement.
Emergency Responder Protection: Includes protection of emergency responder personnel to
prevent public interference of emergency operations.
41 DoD 5240.1-R, supra note 37; CNBI 2000.01B, supra note 39.
42 NGR 500-5, supra note 27, at para. 5-3. In accordance with this regulation, the training at a minimum includes: a)
apprehension, search and detention, b) civil disturbance formations, c) media relations, d) non-lethal capabilities, e) riot
shield and riot baton techniques, and f) use of force.
43 Id., at para. 5-3.
44 CHIEF, NATIONAL GUARD BUREAU, INSTR. 3300.02, READINESS REPORTING para. 5.b (13 Nov. 2014) [hereinafter
CNGBI 3300.02].
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Provide Area Security Support: Includes a presence mission in support of civilian law enforcement
and may include static posts, vehicle mounted or foot patrol roving security, checkpoints, area
denial, and access control.
Facility Security Operations: Includes maintaining a secure perimeter, performing vulnerability and
treat assessments, and securing designated critical facilities and structures to prevent damage or
theft.
Manage Public Safety and Security Support Assets: Includes providing direct support to the
incident commander or other proper civilian administration to plan, coordinate, track, and supervise
all assets providing public safety and security support.
D. Use of Title 10 Forces During a CDO
1. Use of National Guard Forces in a Title 10 Status (in Federal Service)
When National Guard Forces are ordered into a Federal status (Title 10), the Federal military chain
of command is followed. Also, the same Federal laws, policies, and restrictions that apply to
Federal military forces, apply to the Federalized National Guard (e.g. the PCA).
2. Use of Federal Military Forces in a Title 10 Status for CDOs
Posse Comitatus Limitations
The Posse Comitatus Act (PCA),45 DoDD 3025.18, and DoDI 3025.21 prohibit the direct, active
participation of Title 10 military forces in civilian law enforcement, unless specifically authorized
by Federal law or the U.S. Constitution. Certain Constitutional authorities46 and the Insurrection
Act47 provide for exceptions to the PCA and serve as the basis of authority for Title 10 Federal
military forces performing law enforcement during CDOs.
Posse Comitatus Act Exception (The Insurrection Act)
Title 10 of the United States Code, Chapter 13, is entitled “Insurrection.” This chapter allows the
use of Federal military forces to restore order during times of civil disturbance. The DoD currently
classifies civil disturbance as a type of “domestic emergency.”48 While DoD policy no longer
contains an official definition of civil disturbance, it was previously defined as, “group acts of
45 Posse Comitatus Act, 18 U.S.C. § 1385 (2012 & Supp. IV 2017). This Act makes it unlawful to use any part of the
Army or Air Force to act in a civilian law enforcement capacity to execute local, State, or Federal laws. The language
of the Act specifies that activities expressly authorized by the Constitution or by Federal statute are exempt from the
restrictions expressed within the Act. For a more complete discussion of the Posse Comitatus Act, see Chapter 4 of this
Handbook.
46 U.S. CONST. art. IV § 4 (tasking the U.S. Government with protecting each of the States from invasion, and upon
application of the State’s legislature or the State’s Governor, against domestic violence).
47 The Insurrection Act of 1807, 10 U.S.C. §§ 251-55, at § 252 (2012 & Supp. IV 2017).
48 U.S. DEP’T OF DEFENSE, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 72 (April
2018) [hereinafter DoD Dictionary].
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violence and disorders prejudicial to public law and order.”49 Courts use similar language when
defining “insurrection.”50 Currently, the term is defined in Part II of Chief, National Guard Bureau
Instruction 3000.04 as, “[g]roup acts of violence and disorder prejudicial to public law and order.”51
Under the Insurrection Act, Federal forces may be used to restore law and order. As the use of
Federal forces to quell civil disturbances is expressly authorized by Federal statute, the
proscriptions of the PCA are inapplicable when the President is exercising authority under the
Insurrection Act.
The Insurrection Act permits the commitment of Federal military forces by the President,
“[w]henever the President considers that unlawful obstructions, combinations, or assemblages, or
rebellion against the authority of the United States, make it impracticable to enforce the laws of the
United States in any State by the ordinary course of judicial proceedings
” 52
3. Supporting a State or Territorial Request
The Federal Government has an obligation to protect every State in the union, upon request, from
domestic violence.53 Pursuant to this obligation, Congress included in the Insurrection Act a
provision authorizing the President to use Federal forces to assist State governments. Section 251
of the Insurrection Act provides:
Whenever there is an insurrection in any State against its government, the President
may, upon the request of its legislature or of its Governor if the legislature cannot be
convened, call into Federal service such of the militia of the other States, in the
number requested by that State, and use such of the armed forces, as he considers
necessary to suppress the insurrection.54
Responsibility for the coordination of the Federal response to civil disturbances rests with the
Attorney General of the United States (Attorney General).55 In the case of State requests for
assistance, the Attorney General is responsible for receiving the State requests for military assistance,
coordinating the requests with SECDEF and other appropriate Federal officials, and presenting the
requests to the President, who will determine what Federal action will be taken.56 Should a request for
assistance be presented to a local commander, the commander should inform the person making the
request to address the request to the Attorney General.
49 JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT GL-5 (31 Jul. 2013) [hereinafter JOINT PUB. 3-28]. The
previous edition of JP 3-28, DSCA, contained the definition of civil disturbance. The definition has been removed from
the current version of JP 3-28 dated July 31, 2013.
50 See e.g., In re Charge to Grand Jury, 62 F. 828 (N.D. Ill. 1894) (The open and active opposition of a number of
persons to the execution of the laws of the United States, of so formidable a nature as to defy for the time being the
authority of the government, constitutes an insurrection, though not accompanied by bloodshed, and not of sufficient
magnitude to render success probable.)
51 CNGBI 3000.04, supra note 29, at GL-2.
52 Insurrection Act, supra note 47, at § 252.
53 U.S. CONST. art. IV, § 4.
54 The Insurrection Act of 1807, 10 U.S.C. §§ 251-55, at § 251 (2012 & Supp. IV 2017).
55 See DoDI 3025.21, supra note 2, Encl. 4, at para. 1.c.
56 Id. See also Exec. Order No. 12656, 3 C.F.R. 585, 53 Fed. Reg. 47491, § 1101(8) (Nov. 18, 1998).
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As referenced above, prior to a State requesting assistance in the form of Federal military forces, all
local and State resources, including the National Guard in State Active Duty status,57 should have
been brought to bear on the civil disturbance.58
One relatively recent example of a State requesting such assistance was the response to the Los
Angeles riots of 1992. On May 1, 1992, pursuant to the Insurrection Act, California Governor Pete
Wilson requested Federal military support from President George H.W. Bush to assist with
restoring law and order in Los Angeles. Governor Wilson advised President Bush that the domestic
violence exceeded the capabilities of available law enforcement resources, including National
Guard forces mobilized a day earlier.59 In accordance with the Executive Order issued by President
Bush, and to provide Federal assistance to Los Angeles in the restoration of law and order, the
Secretary of Defense Federalized the California National Guard and deployed Soldiers of the 7th
Infantry Division (7ID) at Fort Ord and Marines from Camp Pendleton.60
4.
Enforcing Federal Authority
The President has a Constitutional duty to see that the laws of the United States are faithfully
executed.61 Within the Insurrection Act, Congress gave the President the authority to commit the
U.S. military to enforce Federal law.62 10 U.S.C. § 252 provides:
Whenever the President considers that unlawful obstructions, combinations, or
assemblages, or rebellion against the authority of the United States, make it
impracticable to enforce the laws of the United States in any State or territory by the
ordinary course of judicial proceedings, he may call into Federal service such of the
militia of any State, and use such of the armed forces, as he considers necessary to
enforce those laws or to suppress the rebellion.63
During the 1950s and 1960s, the Insurrection Act statute was used to enforce public school
desegregation in Arkansas64 and Alabama65 and to control civil rights protests in Mississippi66 and
Alabama.67
57 See Chapter 3 of this Handbook, which discusses the mobilization and activation of National Guard forces.
58 CNGBI 3000.04, supra note 28, at para. 4.b (which anticipates that Governors will use their State National Guards
under their control when responding to incidents within their State).
59 Proclamation No. 6427, 57 Fed. Reg. 19359 (May 5, 1992).
60 Exec. Order No. 12804, 57 Fed. Reg. 19361 (May 5, 1992). See also JOINT CHIEFS OF STAFF, JOINT PUB 3-08,
INTERORGANIZATIONAL COOPERATION, para. 2.f.1.e (12 Oct. 2016) (validated 18 Oct. 2017).
61 U.S. CONST. art. II, § 3.
62 Insurrection Act, supra note 47, at § 252.
63 Id.
64 See Exec. Order No. 10730, 22 Fed. Reg. 7628 (Sept. 24, 1957) (Army and Air National Guard units were
Federalized to remove obstructions to justice in respect to enrollment and attendance at public schools in Little Rock,
Arkansas.).
65 See Exec. Order No. 11118, 28 Fed. Reg. 9863 (Sept. 10, 1963) (Army and Air National Guard units were
Federalized to remove obstructions to justice in respect to enrollment and attendance at public schools in Alabama.).
66 See Proclamation No. 3497, Exec. Order No. 11053, 27 Fed. Reg. 9681 (Sept. 30, 1962) (Army and Air National
Guard units Federalized to enforce Federal court orders issued in Mississippi.).
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5.
Protecting Constitutional Rights
Citizens of the United States are guaranteed equal protection under the law.68 The final
Congressional grant of authority to the President for the use of the U.S. military during times of
insurrection is for the protection of citizens in States that cannot protect the Constitutional rights of
its citizens.69
10 U.S.C. § 253 states:
The President, by using the militia or the armed forces, or both, or by any other
means, shall take such measures as he considers necessary to suppress, in a State,
any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within
the State, that any part or class of its people is deprived of a right, privilege,
immunity, or protection named in the Constitution and secured by law, and the
constituted authorities of that State are unable, fail, or refuse to protect that right,
privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes
the course of justice under those laws. In any situation covered by clause (1), the
State shall be considered to have denied the equal protection of the laws secured by
the Constitution.70
10 U.S.C. § 253 was used as an authority by President Kennedy to send Federal military troops to
Alabama in April 1963 during the civil rights protests in Birmingham, Alabama.71
E. Taking Action under the Insurrection Act (Procedural Considerations)
Prior to utilizing the Federalized militia or Federal troops under the Insurrection Act, the President
must issue a proclamation demanding that the insurgents cease and desist all acts of violence and
retire peaceably within a prescribed time.72 10 U.S.C. § 254 states,
Whenever the President considers it necessary to use the militia or the armed forces
under this chapter, he shall, by proclamation, immediately order the insurgents to
disperse and retire peaceably to their abodes within a limited time.
If the Presidential Proclamation does not end the disturbance, the President will issue an Executive
Order to the Secretary of Defense directing the Secretary to use such of the armed forces as are
67 See Exec. Order No. 11111, 28 Fed. Reg. 5709 (Jun. 11, 1963) (Army and Air National Guard units Federalized to
remove obstructions to justice and to suppress unlawful assemblies, conspiracies, and domestic violence that opposed
the laws of Alabama.).
68 U.S. CONST. amend. XIV, § 1 which States in part “No State shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny any person within its jurisdiction equal protection of the laws.”
69 Insurrection Act, supra note 47, at § 253.
70 Id.
71 See Alabama v. U.S., 373 U.S. 545 (1963).
72 Insurrection Act, supra note 47, at § 254.
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necessary to restore order.73 Decisions of the President to issue Presidential Proclamations and
Executive Orders pursuant to the Insurrection Act are made solely at the discretion of the
Executive74 and cannot be compelled by the courts.75 Recent examples of a proclamation and
follow-on order are Proclamation No. 6427 and Executive Order 12804, cited above, used during
the Los Angeles riots of 1992.
F. DoD Considerations Concerning the Insurrection Act
As reviewed, above, Department of Defense Directive (DoDD) 3025.18, Defense Support of Civil
Authorities, requires all requests for military support be evaluated against six criteria prior to the
decision to employ forces.76
The decision to employ Federal military forces for Civil Disturbance Operations (CDO) is made in
coordination between the President, the Secretary of Defense, and the Attorney General. Although
the Secretary of Defense retains approval authority for all Federal military support in response to
civil disturbances,77 the above-criteria may be helpful to local commanders and their judge
advocates as they may advise on formal assistance requests routed to higher headquarters for
consideration.
G. Additional Posse Comitatus Exceptions
In addition to the Insurrection Act, authority to use Federal troops in a law enforcement capacity to
address civil disturbances can be found in two other major areas.
1.
Emergency Authority
Under DoDD 3025.18, Federal military commanders are provided emergency authority. Under this
provision, in extraordinary emergency circumstances where prior authorization by the President is
impossible and local authorities are unable to control the situation, Federal military commanders
may exercise their emergency authority to temporarily engage in activities that are necessary to
quell large-scale, unexpected civil disturbances either because:
73 See Exec. Order No. 10703, 22 Fed. Reg. 7,628 (Sept. 24, 1957) (order authorizing use of military forces for
desegregation in Arkansas); Exec. Order No. 11053, 27 Fed. Reg. 9,681 (Sept. 30, 1962) (order authorizing use of
military forces during riots in Mississippi); Exec. Order No. 11111, 28 Fed. Reg. 5,709 (June 11, 1963) (order
authorizing use of military forces during riots in Alabama); Exec. Order No. 11118, 28 Fed. Reg. 9,863 (Sept. 10, 1963)
(order authorizing use of military forces for desegregation in Alabama).
74 See, e.g., Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp. 1249 (D.D.C. 1973), aff’d, 497 F.2d 683,
aff’d, 497 F.2d 684 (D.C. Cir. 1977), cert. denied, 419 U.S. 1021 (1974), aff’d, 497 F.2d 685 (D.C. Cir. 1974) (decision
whether to use troops or militia to quell civil disorder is exclusively within the province of the President, and
presidential discretion in exercising powers granted in U.S. Constitution Article 2, § 2 and Article 4, § 4, and the
Insurrection Act is not subject to judicial review).
75 See Consolidated Coal and Coke Co. v. Beale et al., 282 F. 934 (S.D. Ohio 1922) (ruling that court could not compel
President to issue Proclamation or exercise discretion under Insurrection Act).
76 DoDD 3025.18, para. 4.e. sets out the following “CARRLL” factors: Cost - Who pays and the impact on DoD
budget, Appropriateness - Whether it is in the interest of DoD to provide the requested support, Readiness - Impact on
DoD’s ability to perform its primary mission, Risk - Safety of DoD forces, Legality - Compliance with the law,
Lethality - Potential use of lethal force by or against DoD forces.
77 Id., at para. 4.l.1 (stating that approval authority for civil disturbance operations is no lower than the Secretary of
Defense level).
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Such activities are necessary to prevent significant loss of life or wanton destruction of
property and are necessary to restore governmental function and public order; or,
if duly constituted Federal, State, or local authorities are unable or decline to provide
adequate protection for Federal property or Federal governmental functions, then Federal
action, including the use of Federal military forces, is authorized when necessary to protect
the Federal property or functions.78
Oral requests from local officials to a commander should be reduced to writing as soon as possible.
An officer exercising emergency authority must report the facts surrounding the request, the
command’s response, and any other relevant information through the chain of command to the
Chairman of the Joint Chiefs of Staff, Joint Director of Military Support (JDOMS) with copy to
USNORTHCOM Domestic Warning Center expeditiously. If the commander has not received a
written request at the time he forwards the request to JDOMS, the written request should be
forwarded to JDOMS as soon as it is available.
2.
Barment or Removal Authority
A military installation commander, exercising “inherent authority” may take such actions that are
reasonably necessary and lawful to protect military installations. This is outside of emergency
authority or Insurrection Act authority discussed above, and is not exercised in concert with the type
of force that may occur in those situations. Although it can involve civil unrest situations, it
involves non-emergency situations where there is time to apply authority allowing for the removal
or barment of a person from an installation to remedy a situation. Violations of such orders to stay
off an installation carry civil and criminal penalties.79
H. The Department of Defense Civil Disturbance Plans
78 Id., at para. 4.k.
79 The courts have approved the theory of a commander’s inherent authority, that is, authority not found in statute or
regulation. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 893 (1961) (commanders have
“historically unquestioned power” to exclude persons from their installations); Greer v. Spock, 424 U.S. 828, 840
(1976) (“There is nothing in the Constitution that disables a military commander from acting to avert what he perceives
to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command.”).
18 U.S.C. § 1382 states:
Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation,
post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever
reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been
removed therefrom or ordered not to reenter by any officer or person in command or charge thereof, shall be fined
under this title or imprisoned not more than six months, or both.
From this Federal trespass statute, courts have inferred military power of apprehension of civilians trespassing on
Federal installations. See United States v. Banks, 539 F.2d 14 (9th Cir. 1976), cert. denied, 429 U.S. 1024 (1976). For
a complete analysis of law enforcement authority over civilians, see Major Matthew Gilligan, Opening the Gate?: An
Analysis of Military Law Enforcement Authority over Civilian Lawbreakers on and off the Federal Installation, 161
Mil. L. Rev. 1 (1999).
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DoD works closely with other Federal agencies, in particular DHS and its subordinate
organizations, when planning for DSCA.80 DoD has delegated to geographic combatant
commanders responsibility for developing CDO Contingency Plans (CONPLANs).81
Further, DoD coordinates with interagency partners through the Chief, National Guard Bureau
(CNGB) to States/territories on all matters pertaining to the National Guard, to ensure DoD
planning supports the needs of those requiring DSCA.82
1. The Federal Military Force CDO Mission
The CDO mission is conducted to restore order or enforce Federal law after a major public
emergency (e.g., natural disaster, serious public health emergency, or terrorist attack) when
requested by the State Governor or when the President determines that the authorities of the State
are incapable of maintaining public order.83 The restoration of law and order must be distinguished
from the preservation of law and order.84 CDO mission statements do not normally allow for
commanders to undertake preservation missions.85 It is generally agreed that missions to restore
law and order include dispersing unauthorized assemblages, patrolling disturbed areas, maintaining
essential transportation and communications systems, setting up roadblocks, and cordoning off
areas.86 Judge advocates should assist their commanders in ensuring that they do not assume
missions involving the routine maintenance of civil order unless absolutely necessary and
authorized.
2. Combatant Commanders’ CONPLANs
CONPLANs provide the basis for all preparation, deployment, employment, and redeployment of
Department of Defense component forces, including National Guard forces called to active Federal
service, for use in domestic civil disturbance operations, in support of civil authorities as directed by
the President.87
80 JOINT PUB. 3-28, supra note 8, at 28.
81 DoDD 3025.21, supra note 2, at Encl. 4. The principal planning agents for DSCA are the combatant commanders, of
United States Northern Command and (USNORTHCOM), United States Pacific Command (USPACOM), and United
States Special Operations Command (USSOCOM). Id.
82 Id.
83 JOINT PUB. 3-28, supra note 8, at III-3,4.
84 DODI 3025.21, supra note 2, at Encl. 4, para. 1.b. The preservation of law and order is the responsibility of State and
local governments and law enforcement authorities. Id.
85 Id. Encl. 4, para. 2.e.
“The DoD Components shall not take charge of any function of civil government unless
absolutely necessary under conditions of extreme emergency. Any commander who is directed, or undertakes, to
control such functions shall strictly limit military actions to the emergency needs, and shall facilitate the reestablishment
of civil responsibility at the earliest time possible.” Id.
86 U.S. DEP’T OF ARMY, DOCTRINE PUB. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 3 (26 July 2012)
[hereinafter ADP 3-28].
87 It is important to remember that any employment of Federal military forces in a CDO must maintain the primacy of
civilian authority. See 32 C.F.R. 182.6(b) (2017). See also 9 Op. Att’y Gen. 517 (1860) (“Under [the Insurrection Act]
the President may employ the militia and the land and naval forces for the purpose of causing the laws to be executed;
but when a military force is called into the field for that purpose, its operations must be purely defensive, and the
military power on such occasion must be kept in strict subordination to the civil authority.”).
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During the employment of military forces, the Commander will maintain liaison with the Senior
Civilian Representative of the Attorney General (SCRAG), State law enforcement representatives,
and municipal authorities.88 Normally, this liaison is through the Defense Coordinating Officer
(DCO). The liaison will be maintained until termination of the civil disturbance mission. The Joint
Civil Disturbance Task Force Commander (or COCOM) will accept missions, and if reasonably
possible within the framework of orders, comply with requests from civil authorities.89
Unless in a direct support relationship approved and ordered through the military chain of
command, units should not accept tasking directly from law enforcement or civilian officials. Even
though the Joint Civil Disturbance Task Force Commander may direct subordinate elements to
assist designated civil authorities or officials, military personnel will not be placed under the
command of civilians. This requirement does not preclude the establishment of joint patrols or
jointly manned operations.
I. Federal Military Forces Civil Disturbance Operation Planning Considerations
1. The Standing Rules for the Use of Force for U.S. Forces
For U.S. armed forces operating under Title 10, civil disturbance operations are conducted in
accordance with Enclosures L and N to Chairman, Joint Chiefs of Staff Instruction (CJCSI)
3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces
(SRUF).90 Guidance on how and when forces can use force in a CDO mission are detailed in the
enclosures of the policy. Although the policy is classified, Annex L is not and can be shared with
our mission partners. In addition to this policy, as part of operating in an inter-agency environment
in support of civil authorities, judge advocates must make themselves familiar with State and local
laws regarding the use of force. The National Guards in each State have a RUF, not to be confused
with the SRUF. The RUF for each State is based on State law. Therefore, each State may have a
different RUF. This is particularly important for Federal forces if joint patrols or other missions are
conducted. In such case, judge advocates, both active and reserve component, should review the
RUF for the State National Guard and the SRUF for Title 10 forces to identify where they may
differ in the application of force. The differences should be clearly explained to commanders
thereby enabling them to determine how to proceed.
2. Constitutional Considerations
88
32 C.F.R. 182.6(b)(5) (2017) (stating that the Attorney General of the United States may assign another Dept. of
Justice entity, such as the FBI or ATF, to lead the CDO on the part of the Federal Government).
89 DoDI 3025.21, supra note 2, at Encl. 4.
90 JOINT PUB. 3-28, supra note 8, at B-1.
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State and Federal law govern search, seizure, arrest, detention, and confinement occurring during a
CDO. The Attorney General of the United States is responsible for setting overall guidelines
governing the conduct of civil disturbance operators when the Federal military is involved. Judge
advocates should familiarize themselves with any policies and procedures set forth by the
Department of Justice. Service-members should be trained in advance on proper legal procedures
for search, seizure, arrest, and detention, and should be aware that actions not conforming to
Constitutional standards could jeopardize prosecution of criminal actors or subject the member to
civil or criminal liability.
a. Detention and Confinement
Whenever possible, any arrest or apprehension should be made by the civil police force unless they
are not available or require assistance. If it is necessary for Federal military forces to make an
apprehension, they should do so under the appropriate legal authority, work in support of civil
authorities, and should, whenever possible, ensure that civilian authorities are present. Joint patrols
with members of the State’s National Guard and local law enforcement officers has proven to be
most beneficial.91
Unless otherwise authorized by law, Federal military forces should not operate detention facilities
when supporting CDOs.92 Civil authorities have the responsibility to provide adequate detention
facilities for all subjects. If Federal military forces are committed to support local authorities with
arrests, commanders should coordinate with local authorities to ensure that adequate detention
facilities are available and to learn their locations and capacities. Also, Federal military participation
with the arrests must be in accordance with Federal law and DoD policy.93
b. Searches
Unless otherwise authorized by law, Federal forces should not be involved in warrant-backed or
warrantless searched for evidence of a crime (i.e. searches of houses, crime scenes, etc.).94 The
same holds true for a lawful stop and frisk conducted during patrols. Nonetheless, as Federal
military personnel support local law enforcement to restore order, the need to search civilians may
arise. In such instances, Federal military personnel should adhere to Federal law and the
requirements set forth by USNORTHCOM’s plan for civil disturbance operations.95
3. Billeting of Troops
Selection of a location to assemble and billet troops can have significant legal implications. When
possible, assembly and quartering areas should be on military installations or Federal property. If
91 U.S. DEP’T OF ARMY, DOCTRINE REF. PUB. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4-65 (14 June
2013) [hereinafter ADRP 3-28].
92 Id., paras. 3-38-3-40; see generally, DODI 3025.21, supra note 1, Encl. 4 (“DoD Components shall not take charge
of any function of civil government unless absolutely necessary under conditions of extreme emergency.”).
93 U.S. DEP’T OF DEFENSE, INSTR. 5525.13, LIMITATION OF AUTHORITY TO DEPUTIZE DOD UNIFORMED LAW
ENFORCEMENT PERSONNEL BY STATE AND LOCAL GOVERNMENTS (28 Sept. 2007) (C1, 29 June 2018).
94 Id. at 6.2, 6.3.
95 ADRP 3-28, supra note 91, at para. 4-80.
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these locations are not practical, State and other local government property may be sought for use.96
Locating assembly areas on public property can reduce property damage claims, contract costs, and
adverse perceptions about the military operation.
4. Intelligence
See Chapter 9, Intelligence and Information Acquisition and Handling During Domestic Support
Operations, for information regarding the proper use of intelligence elements and collection of
information during domestic civil support.
5. Claims
Negligent or wrongful acts or omissions of military forces assisting law enforcement during civil
disturbances may be covered under the Federal Tort Claims Act (FTCA).97 In order for claims
under the FTCA to be compensable, the damage or injury must be caused by acts or omissions of
employees of the United States. National Guard troops in Title 10 or Title 32 status, as well as
active duty military members, are considered U.S. employees for the purposes of the FTCA.
National Guard forces activated pursuant to a State activation statute are not considered employees
of the United States, and potential claims arising out of the activities of these forces should be
directed to State authorities.
The development of disaster and civil disturbance claims plans is the responsibility of the head of
the various Area Claims Offices (ACOs) across the United States.98 The ACO in whose
geographical area a claims incident occurs is primarily responsible for investigating and processing
the claim.99 With the approval of Commander, United States Army Claims Service, the responsible
ACO can appoint a special Claims Processing Office to handle claims arising from civil disturbance
operations.100 For a major CDO, senior judge advocates should consider requesting a claims team
from ACO.
Even though primary claims investigating responsibilities fall to the ACO, judge advocates
deployed as part of a civil disturbance task force can assist in investigations by ensuring that
potential claims are documented and available information concerning the claims is collected.
Judge advocates can also assist by collecting information concerning the status of National Guard
troops operating within the area.101
6. Medical Support
The primary mission of medical support personnel deployed with a Joint Civil Disturbance Task
Force is to treat military personnel requiring medical care. When possible, civilians in need of
medical treatment should be seen by the healthcare providers within the civilian healthcare system.
96
10 U.S.C. § 2679 (2012 & Supp. IV 2017); U.S. DEP’T OF DEFENSE, INSTR. 4000.19, SUPPORT AGREEMENTS (25 Apr.
2013) (C1, 30 Nov. 2017).
97
28 U.S.C. §§ 1346, 2671-2680 (2012 & Supp. IV 2017).
98 U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11k (8 Feb. 2008).
99 Id. para. 2-2.
100 Id. para. 1-17(c).
101 Detailed information on claims arising during disasters can be accessed at http://www.jagcnet.army.mil/Claims.
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Military treatment facilities may be used to treat civilians only in cases of emergency when undue
suffering or grievous bodily harm is a possibility. Civilians admitted to military treatment facilities
should be transferred to a civilian hospital as soon as medically feasible.
7. Interference with Federal Forces
Federal law makes it a crime to interfere with law enforcement officers engaged in controlling civil
disorders.102 Included in the definition of “law enforcement officers” are members of the National
Guard, in both State and Federal status, and members of the Federal armed forces.103
8. Loan and Lease of Military Equipment
There is no specific statutory authority to loan or lease equipment for use in civil disturbance
situations. Loans to Federal agencies are completed pursuant to the Economy Act and require a
loan agreement but no surety bond.104 Equipment for non-Federal law enforcement agencies must
be leased under the leasing statute, 10 U.S.C. § 2667, which requires both a lease agreement and a
surety bond. The leasing statute also includes the requirement for the payment of a lease fee, which
in the case of the Army may be waived by the Assistant Secretary of the Army (Installation,
Logistics and Environment) (ASA(I, L&E)).105
Approval authorities for the loan and lease of DoD materiel to Federal, State, and local law
enforcement authorities are based upon the type of equipment to be provided. Requests for the loan
or lease of personnel, arms, ammunition, tactical vehicles, vessels and aircraft, riot control agents,
and concertina wire for expected civil disturbances will be forwarded through the Chairman of the
Joint Chiefs of Staff (JDOMS) to the Secretary of Defense (SECDEF). The loan or lease of fire-
fighting resources, protective equipment, body armor, clothing, searchlights and use of DoD
facilities can be approved by garrison, installation, or task force commanders.106 See U.S. Army
Reg. 700-131, Loan and Lease of Army Materiel (23 Aug. 2004), for more specific guidance on the
loan and lease of material.
9. Funding
102
18 U.S.C. §§ 231-233 (2012 & Supp. IV 2017).
103 Id. § 232 which states:
The term “law enforcement officer” means any officer or employee of the United States, any State, any political
subdivision of a State, or the District of Columbia, while engaged in the enforcement or prosecution of any of the
criminal laws of the United States, a State, any political subdivision of a State, or the District of Columbia; and
such term shall specifically include members of the National Guard (as defined in section 101 of title 10), members
of the organized militia of any State, or territory of the United States, the Commonwealth of Puerto Rico, or the
District of Columbia not included within the National Guard (as defined in section 101 of title 10), and members of
the Armed Forces of the United States, while engaged in suppressing acts of violence or restoring law and order
during a civil disorder.
104
31 U.S.C. § 1535 (2012 & Supp. IV 2017).
105
10 U.S.C. § 2667 (2012 & Supp. IV 2017); see also U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF
ARMY MATERIEL, para. 2-7, 2-8 (23 Aug. 2004) [hereinafter AR 700-131] (discussing loan/lease agreements and surety
bonds).
106 AR 700-131, supra note 71, paras. 2-6b. NGR 500-1, supra note 58, Chap. 3-1, governs the loan or lease of
National Guard property.
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DoD 7000.14-R, Department of Defense Financial Management Regulation, the USNORTHCOM
CONPLAN 3501, Defense Support of Civil Authorities, and the USNORTHCOM CONPLAN
3502, Civil Disturbance Operations, require operating agencies and supported combatant
commanders to recover all costs for civil disturbance operations. The operating agency and
supported commander are responsible for collecting costs for civil disturbance operations of all
components and DoD agencies, preparing cost reports for the executive agency, consolidating
billings, forwarding bills to DOJ, and distributing reimbursements.107
J. Responsibilities and Relationships of Parties Involved in Civil Disturbance Operations
1. Attorney General
The Department of Justice is the primary Federal agency responsible for coordinating the Federal
Government response to restore law and order.108 As the head of the Department of Justice, the
Attorney General is the chief civilian official responsible for the Federal Government’s activities in
civil disturbances. The Attorney General provides early threat assessments and warnings to the
Department of Defense to support civil disturbance planning. States request the assistance of
Federal forces through the Attorney General, who also advises the President on the use of Federal
military forces to restore law and order. The Attorney General coordinates the activities of Federal
law enforcement agencies with those of the local and State agencies in an area faced with a civil
disturbance.
2.
Senior Civilian Representative of the Attorney General (SCRAG)
Pursuant to 32 C.F.R. § 182.6, the Attorney General may appoint a SCRAG for a civil disturbance.
The SCRAG is responsible for the coordination of effort of all Federal agencies involved in the civil
disturbance operation with the efforts of State and local agencies engaged in restoring law and
order. Note that the appointment of such an official does not replace the military chain of
command.109 DoD forces employed in civil disturbance operations must remain under military
authority at all times.110
3.
Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
The Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
(ASD(HD&ASA)) acts as the principal point of contact between DoD and the Department of
Justice for Civil Disturbance Operations.111 ASD(HD&ASA) is also responsible for the
development, coordination, oversight of DoD policy for DSCA plans and activities regarding civil
disturbances.112
107 JP 3-28, supra note 8, at Encl. 3, para. 3.c.
108 DoDI 3025.21, supra note 2, at Encl. 4, para. 1.c; 32 C.F.R. § 182.6(b)(5) (2017).
109
32 C.F.R. § 182.6(b)(5) (2017).
110 JP 3-28, supra note 7, at III-3, 4.
111 DoDI 3025.21, supra note 2, at Encl. 2, para. 2.b.
112 U.S. DEP’T OF DEFENSE, DIRECTIVE 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND
AMERICAS’ SECURITY AFFAIRS (ASD(HD&ASA)), para. 4.b.(1) (16 Jan. 2009).
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4.
Joint Director of Military Support (JDOMS)
JDOMS is the action agent within DoD with responsibility for planning, coordinating, and directing
the commitment of all designated Federal military resources during civil disturbance operations.
JDOMS coordinates with the supported Combatant Commander (CC) for a CDO, and releases the
execute order (EXORD) designating supported and supporting Combatant Commanders and tasking
force providers to give the ordered support.113
5.
Combatant Commanders, U.S. Northern Command and U.S. Pacific Command
The Commanders of USNORTHCOM, USPACOM, and USSOCOM, as the DoD planning agents
for CDO, lead the CDO planning activities of the DoD Components in these areas:
USNORTHCOM - The 48 contiguous States, Alaska, the District of Columbia, the
Commonwealth of Puerto Rico, and the U.S. Virgin Islands.
USPACOM - Hawaii and the U.S. possessions and territories in the Pacific area.
USSOCOM - CDO activities involving special operations forces.114
6. Commander, U.S. Army North
U.S. Army North (ARNORTH) is currently the lead operational authority for Federal civil
disturbance support response within the continental United States.115 The Commander,
ARNORTH, designates a Commander, Joint Civil Disturbance Task Force in the event of CDO,
receives civil disturbance units, ensures their preparedness, and deploys forces to the objective area.
7. Commander, Joint Civil Disturbance Task Force
The Commander of the Joint Civil Disturbance Task Force is an appointed Commander for all
Federal forces, including National Guard forces in Title 10 status, in a civil disturbance area of
operations. He or she will be the DoD representative in the civil disturbance area and performs civil
disturbance missions assigned.
8. National Guard Bureau
The Chief of the National Guard Bureau (CNGB) is the channel of communication for all National
Guard matters between Federal military elements (including the Secretary of Defense, the Chairman
of the Joint Chiefs of Staff, the DoD Components, and the Departments of the Army and Air Force)
and the States.116 In that capacity, CNGB facilitates and de-conflicts the use of National Guard
forces to ensure that adequate and balanced forces are available for domestic and foreign military
113 JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INST. 5711.02C, DELEGATION APPROVAL
AUTHORITY (30 Nov. 2012). See also JP 3-28, supra note 8, at Ch. III, V.
114 DoDD 3025.21, supra note 2, Encl. 4, p. 26.
116 U.S. DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) para. 4.3 (21 May 2008) [hereinafter
DODD 5105.77].
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operations.117 The NGB maintains a 24/7 National Guard Coordination Center providing situational
awareness and common operating picture for any CDO.
9. State Governor/Chief Executive of a U.S. Territory118
A State Governor coordinates State resources and provides strategic guidance needed to
prevent, mitigate, prepare for, respond to, and recover from incidents of all types.119 In addition, the
Governor, commands the State National Guard Forces (in a SAD or Title 32 status), coordinates for
and provides interstate mutual aid and assistance through compacts such as the EMAC, and requests
Federal assistance.120
10. State Homeland Security Advisor
“The State Homeland Security Advisor serves as counsel to the Governor on homeland security
issues and may serve as a liaison between the Governor’s office, the State homeland security
structure, DHS, and other organizations both inside and outside of the State.”121 This role may be
filled by the Director of the State Emergency Management or The Adjutant General of a State,
depending on the organization of the State’s emergency management system.
11. Director, State Emergency Management Agency
All States have laws mandating the establishment of a State emergency management agency and the
development of emergency plans coordinated by that State.122 The director of the State emergency
management agency is responsible for coordinating the State response in any incident.
12.
The National Guard
National Guard units have the primary responsibility to respond to a civil disturbance, initially
deploying in a State Active Duty (SAD) status or under Title 32.123 In either capacity, they are not
subject to the prohibitions of the PCA and can support State or Federal law enforcement
missions.124 National Guard forces remain under the command of State National Guard officers,
and missions are conducted through the National Guard chain of command, after coordination with
civil authorities. In extreme circumstances, National Guard units may be Federalized under Title 10
pursuant to a Presidential order.125 Once Federalized, the National Guard conducts its mission in
accordance with DoD regulations, Federal law and under Federal control. (See “Use of National
117 Id. para. 5.1.11.2.
118 For this paragraph, the reference to a State Governor also references the chief executive of a US territory.
119 JP 3-28, supra note 8, at II-2.
120 Id.
121 Id. at II-3.
122 Id.
123 With SecDef approval, the National Guard may conduct operational missions under 32 U.S.C. § 502(f)(2)
“operational support” authority. See DoDD 3025.18, supra note 34, para. 4.h.
124 See infra Chapter 4, Military Support to Civilian Law Enforcement, for a complete discussion on the Posse
Comitatus Act.
125 See Chapter 3 of this Handbook for a complete discussion of National Guard status.
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Guard Forces in a Title 32 or SAD Status (Not in Federal Service)” and “Planning Considerations”
in this chapter.)
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CHAPTER 6
DOD RESPONSE FOR CHEMICAL, BIOLOGICAL,
RADIOLOGICAL, AND NUCLEAR (CBRN)1 INCIDENTS
KEY REFERENCES:
Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No.
93-288, 42
U.S.C. § 5121, et seq., as amended.
The Defense Against Weapons of Mass Destruction Act, 50 U.S.C. §§ 2301-
2371 (2011).
E.O. 13527 Establishing Federal Capability for the Timely
Provision of Medical Countermeasures Following a Biological
Attack, December 30, 2009.
National Response Framework, May 2013.
DoDD 3025.18, Defense Support of Civil Authorities (DSCA), March 19, 2018.
DoDD 3150.08, DoD Response to Nuclear and Radiological Incidents, January
20, 2010.
CJCSI 3125.01D, Defense Response to Chemical, Biological,
Radiological, and Nuclear (CBRN) Incidents in the Homeland, May 7,
2015.
Joint Pub 3-26, Counterterrorism, October 24, 2014.
Joint Pub 3-28, Defense Support of Civil Authorities, July 31, 2013.
Joint Pub 3-41, Chemical, Biological, Radiological, and Nuclear Response,
September 9, 2016.
A.
Introduction
In the wake of 9/11 and Hurricane Katrina, the Department of Homeland Security (DHS) developed
the National Response Framework (NRF).2 This document evolved from the National Response
Plan (NRP), which was originally mandated under Homeland Security Presidential Directive
1 This acronym used to include the term “high yield explosive” and was stated “CBRNE.” Current policies have
shifted to the CBRN term and eliminated “high yield explosives.” See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT
CHIEFS OF STAFF INSTRUCTION 3125.01C, DEFENSE RESPONSE TO CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND
NUCLEAR (CBRN) INCIDENTS IN THE HOMELAND (4 Jun. 2012) [hereinafter CJCSI 3125.01C], para. 4.a. (noting that a
high-yield explosive incident is not addressed in CJCSI 3025.01C because those incidents do not generate similar initial
or residual hazards. Responses to high yield explosive incidents without CBRN elements will be provided in
accordance with DoDD 3025.18, Defense Support of Civil Authorities, and the current year CJCS Defense Support of
Civil Authorities (DSCA) EXORD. CJCSI 3125.01C Encl. 3, para. 3.f. Note, however, that some publications still
discuss high explosives (albeit separately from CBRN) because they may be tied to or part of the delivery for CBRN
elements. See, e.g. JOINT CHIEFS OF STAFF, JOINT PUB. 3-41, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR
CONSEQUENCE MANAGEMENT, at I-15 (21 Jun. 2012) [hereinafter JP 3-41].
2 DHS, NATIONAL RESPONSE FRAMEWORK, Third Edition (June, 2016) 3 [hereinafter NRF], available at
9bcf8245ba4c60c120aa915abe74e15d/National_Response_Framework3rd.pdf..
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(HSPD-5), Management of Domestic Incidents. The intent of HSPD-5 was to develop a single,
comprehensive approach to domestic incident management3 built on the template of the National
Incident Management System (NIMS).4 The NRF provides national-level policy and operational
direction for all Federal agencies involved in the response to domestic disasters or emergencies.
While responses to incidents should generally be handled at the lowest capable jurisdictional level,
the NRF and NIMS address the needs that must be met when the responding jurisdiction’s
capabilities are overwhelmed by the magnitude of a catastrophic incident.5
The NRF is designed to ensure timely and effective Federal support in response to State, tribal,
and/or local requests. The NRF is the product of DHS, but it applies to all Federal departments and
agencies that have jurisdiction for, or responsibility to support, any response or recovery effort.
When Federal resources are necessary, DoD may provide advice, assistance, and assets in support
of the Lead Federal Agency (LFA). DoD plays only a supporting role, unless otherwise directed by
the President,6 and its activities are referred to as Defense Support to Civil Authorities (DSCA).7
The NRF and NIMS provide broad direction for any type of disaster, in what is characterized as an
all-hazards approach.8 Consequently, the framework applies equally to natural disaster relief, the
handling of an unintentional or negligent industrial accident, or the Federal government’s response
3 The term “incident management” is designed to eliminate the prior distinction between crisis and consequence
management with respect to domestic incidents. HSPD-5 states that the objective of the United States government is to
ensure that all levels of government across the nation have the capability to work efficiently together using a national
approach to domestic incident management, and in these efforts, the United States government treats crisis management
and consequence management as a single integrated function. See Homeland Security Presidential Directive 5,
Management of Domestic Incidents (Feb. 28, 2003) [hereinafter HSPD-5], available at
http://www.gpo.gov/fdsys/pkg/PPP-2003-book1/pdf/PPP-2003-book1-doc-pg229.pdf. Judge advocates should be aware
the the terms crisis and consequence management may still be found in policies addressing incident management. For
example, JOINT PUB 3-28 addresses CBRN response in terms of consequence management. See JOINT CHIEFS OF STAFF,
JOINT PUB. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES II-10 (31 July 2013) [hereinafter JP 3-28].
4 FEMA, NATIONAL INCIDENT MANAGEMENT SYSTEM, Third Edition (Oct. 2017), available at
https://www.fema.gov/media-library/assets/documents/148019 [hereinafter NIMS]. The National Incident Management
System (NIMS) is a doctrinal framework for incident management designed to provide consistency at all jurisdictional
levels. NIMS includes a core set of concepts, principles, terminology, and technologies covering the incident command
system; multi-agency coordination systems; unified command; training; identification and management of resources
(including systems for classifying types of resources); qualifications and certification; and the collection, tracking, and
reporting of incident information and incident resources. Chapter 2, National Framework for Incident Management,
supra, contains more discussion on NIMS.
5 National Incident Management doctrine and policy has expanded significantly since the publication of the first NRF.
The NRF is now part of the National Preparedness System, which includes four other Frameworks designed to achieve
the National Preparedness Goal. Chapter 2, National Framework for Incident Management, supra, contains an extensive
discussion of this new model.
6 JP 3-28, supra note 3, at I-5.
7 DEP’T OF DEFENSE, DIR. 3025.18, MILITARY DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 Dec. 2010) (C2, 19 Mar.
2018) [hereinafter DoDD 3025.18] defines “DSCA” as:
Support provided by U.S. Federal military forces, DoD civilians, DoD contract personnel, DoD Component assets,
and National Guard forces (when the Secretary of Defense, in coordination with the Governors of the affected
States, elects and requests to use those forces in title 32, U.S.C. status) in response to requests for assistance from
civil authorities for domestic emergencies, law enforcement support, and other domestic activities, or from
qualifying entities for special events.
8 See NRF, supra note 2, at i (noting the NRF describes specific authorities and best practices for managing incidents
that range from the serious but purely local to large scale terrorist attacks or catastrophic natural disasters).
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to a terrorist’s domestic employment of a Chemical, Biological, Radiological, or Nuclear weapon of
mass destruction (WMD).9 Although the various levels of government have experience in
responding to natural disasters, CBRN events pose some of the greatest challenges facing the
United States today10 and underscore the importance of maintaining a DoD force that is ready and
able to respond to these specialized threats.
B. CBRN Overview and Authorities
A CBRN incident is any occurrence resulting from the use of CBRN weapons or devices, or the
release of CBRN hazards, to include toxic industrial materials from any source.11 Any action taken
to address the consequences of any inadvertent or deliberate release of a chemical, biological,
radiological, or nuclear agent constitutes a CBRN CM operation.12 As a general proposition, a
catastrophic CBRN event would quickly exceed the capabilities of local, State, and tribal
governments; consequently, CBRN CM is normally managed at the Federal level, with DoD in a
supporting role.13 Although an LFA leads and coordinates the overall Federal response to an
emergency, supporting DoD entities remain under the command and control of the supported
Combatant Commander (NORTHCOM or PACOM). Similarly, State Governors, through their
Adjutants General, control National Guard forces when performing duty in a State status or in
accordance with Title 32 of the United States Code.14
A request for DoD capabilities from State Governors or other Federal agencies is called a request
for assistance (RFA). In most cases, these requests for emergency support are written and are
processed through formal RFA process. The processing of an RFA varies depending upon the size
and urgency of the incident, the level of Federal involvement, and the originator of the request. For
9 It is important to note that not all CBRN incidents may be the result of a WMD. A domestic accident on the scale of
the radiation release in Chernobyl, Ukraine; Fukushima, Japan; or the pesticide release in Bhopal, India in the U.S.
would most likely result in DoD-assisted CBRN consequence management operations.
10 The Homeland Security Council has developed fifteen scenarios depicting “a diverse set of high-consequence threat
scenarios of both potential terrorist attacks and natural disasters.” Two of the scenarios represent natural disasters,
major earthquake and major hurricane; a third highlights economic and social complications resulting from a cyber
attack; and the remaining 12 scenarios focus on chemical, biological, radiological, or nuclear (CBRN) incidents.
National Planning Scenarios, http://media.washingtonpost.com/wp-
srv/nation/nationalsecurity/earlywarning/NationalPlanning ScenariosApril2005.pdf (last visited May 15, 2018).
11 JP 3-41, supra note 1, at I-1. An exception to this general classification is the Government’s response to incidents
involving U.S. nuclear weapons within DoD custody or fissionable materials within Department of Energy custody. See
generally FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX (June
2016), available at www.fema.gov; OFFICE OF THE ASSISTANT TO THE SECRETARY OF DEFENSE FOR NUCLEAR AND
CHEMICAL AND BIOLOGICAL DEFENSE PROGRAMS, DEPT. OF DEFENSE, DoD MANUAL 3150.08, NUCLEAR WEAPON
ACCIDENT RESPONSE PROCEDURES (NARP) (22 Aug. 2013).
12 CBRN response includes having plans, policies, procedures, training, and equipment necessary to effectively respond
to CBRN incidents. CBRN response provides the operational framework for authorized DoD measures in preparation
for anticipated CBRN incidents to mitigate the loss of life and property and to assist with the response and short-term
recovery that may be required. JP 3-41, supra note 1, at I-4.
13 For example, 10 U.S.C. § 382 (2012 & Supp. IV 2017) authorizes the Attorney General to request DoD support when
an emergency situation involving a biological or chemical weapon of mass destruction exists. Additionally, as an
exception to the Posse Comitatus Act, 18 U.S.C. § 831 (2012 & Supp. IV 2017) authorizes the Attorney General—
during an emergency situation—to request DoD support in enforcing laws against the unlawful dispersal of nuclear
material or nuclear byproducts.
14 JP 3-41, supra note 1, at xii, I-2, I-5.
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small scale CBRN incidents, and during the initial stages of larger incidents, a State’s Emergency
Operations Center (EOC) may forward requests to the Federal Emergency Management Agency
(FEMA) region’s Defense Coordinating Officer (DCO), who, in turn, forwards the RFA to the
Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
(ASD(HD&ASA)).15 If the incident exceeds the capabilities of the State and local responders, and
the President has issued an emergency or disaster declaration at the request of the Governor and
advice of the FEMA Administrator, the LFA will establish a Joint Field Office (JFO), and a Federal
Coordinating Officer (FCO) will be designated.
Following the establishment of the JFO, the FCO will forward RFAs from civil authorities to the
Office of the Secretary of Defense, Executive Secretariat. SecDef-approved RFAs are assigned to
the appropriate Combatant Commander (CCDR). If a DCO is on-site (normally at the JFO), RFAs
are validated through the DCO and forwarded to the designated DoD entities for approval and
sourcing. Once SecDef approves a request for DoD assistance, a supported CCDR is designated.
The CJCS publishes SecDef-approved execute orders (EXORDs) to delineate support relationships,
available forces, end state, purpose, and SecDef-approved scope of action.16 The CCDR will likely
order the Commander, Joint Task Force-Civil Support (JTF-CS), to conduct CBRN response
operations (see section D of this chapter).
Every RFA must undergo a legal review. All requests by civil authorities for DoD military
assistance shall be evaluated by DoD approval authorities against the following criteria (the
“CARRLL” factors are discussed in other chapters, including chapter 1):17
Cost (who pays, impact on DOD budget)
Appropriateness (whether the requested mission is in the DOD’s interest)
Risk (safety of DOD forces)
Readiness (impact on the DOD’s ability to perform its primary mission)
Legality (compliance with laws)
Lethality (potential use of lethal force by or against DOD forces)
Military missions require legal authority. DoD’s CBRN response operations are generally executed
under the provisions of The Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act).18 he Stafford Act is the primary authority for the Federal Government to assist local
and State governments with emergencies and disasters.19
15 The ASD(HD/ASA) is the DoD Executive Agent responsible for approving and monitoring DoD assistance for
Federal, State, and local officials in responding to domestic threats or events involving nuclear, chemical, and biological
weapons. See 50 U.S.C. § 2313 (2012 & Supp. IV 2017).
16 JP 3-28, supra note 3, at II-14.
17 DODD 3025.18, supra note 7, at. 4.
18 The Robert T. Stafford Disaster Relief and Emergency Assistance Act, (Public Law 93-288) (42 U.S.C. § 5121, et
seq.) (as amended) [hereinafter Stafford Act].
19 The Stafford Act is outlined in Chapter 2. The Secretary of Homeland Security is responsible for overall
coordination of Federal Stafford and non-Stafford incident management activities. Requests for DoD assistance may
occur under Stafford Act or non-Stafford Act conditions. In general, a Stafford Act incident is one in which State and
local authorities declare an emergency or disaster but require and consequently request Federal assistance to adequately
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Occasionally, the legal authority to use DoD forces for CBRN incidents arises from other sources.
Three examples are:
DoDD 3025.18 delegates Immediate Response Authority to Heads of DoD Components,
Federal military commanders, and/or DoD civilian officials (collectively “DoD officials”). This
policy also recognizes the authority of State officials to call on the State’s National Guard
operating in their State Active Duty (SAD) status under State command, control, and funding.
In response to a request for assistance from a civil authority under imminently serious
conditions, and if time does not permit approval from higher authority, DoD officials may
provide assistance to authorities to save lives, prevent human suffering, or mitigate great
property damage. This is subject to any supplemental direction provided by higher
headquarters. It is important to note that this authority is extremely fact-specific and expires
immediately when the facts no longer meet the threshold.20
DoDD 3025.18 also provides Federal military commanders with emergency authority to engage
temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.21
See Military Support to Civilian Law Enforcement, chapter 4 of this Handbook, for an in-depth
discussion of this authority.
Executive Order 13527, “Establishing Federal Capability for the Timely Provision of Medical
Countermeasures Following a Biological Attack,” provides authority for designated Federal
agencies (including DoD) to provide support to operations that leverage the U.S. Postal Service
to distribute “medical countermeasures” to the general population.22
manage the incident.
42 U.S.C. 5122 (1) defines an emergency as:
[A]ny occasion or instance for which, in the determination of the President, Federal assistance is
needed to supplement State and local efforts and capabilities to save lives and to protect property
and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the
United States.
42 U.S.C. § 5122(2) defines a major disaster as:
[A]ny natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water,
tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought),
or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the
determination of the President causes damage of sufficient severity and magnitude to warrant
major disaster assistance under this Act to supplement the efforts and available resources of States,
local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or
suffering caused thereby.
A CBRN incident clearly falls into the definition of emergency. Technically, a fire, flood, or explosion would have to
occur to trigger a major disaster declaration for a CBRN incident.
20 DoDD 3025.18, supra note 7, para. 4.i. Within 72 hours of receipt of the request for assistance, a review of the need
to continue DoD involvement in the response shall occur. These activities performed by the DoD during immediate
response efforts may later transition into a Mission Assignment (MA) from the Federal Emergency Management Agency
(FEMA) under the Stafford Act.
21 Id. at 4.k.
22 Exec. Order No. 13257, 75 Fed. Reg. 737 (Jan. 6, 2010).
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C. DoD Entities Responsible for CBRN CM Operations
The National Defense Authorization Act of Fiscal Year 200323 established what later became the
Office of The Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs
(ASD(HD/ASA)). The ASD(HD/ASA) assumed responsibilities as DoD’s Executive Agent
responsible for approving and monitoring DoD assistance to Federal, State, and local officials
responding to domestic threats or events involving nuclear, chemical, and biological weapons. As a
result, this office oversees DoD’s DSCA activities, including CBRN response.24
The Joint Director of Military Support (JDOMS) is an action agency subordinate to ASD(HD/ASA)
that is located at the Pentagon. For DSCA missions, JDOMS plans, coordinates, and monitors DoD
support within the U.S. and territories in response to requests from Federal agencies. Accordingly,
JDOMs produces military orders for DSCA, including consequence management operations.25
Many regularly occurring activities, called National Special Security Events, require DoD resources
that can be planned in advance (e.g. Presidential inaugurations, and large sporting events). For
these, JDOMS plans, coordinates, and facilitates DoD support to Federal, State, and local agencies
and organizers. To set expectations and aid in planning for all DSCA responses, CJCS publishes a
DSCA EXORD and a CBRN Response EXORD to allow expedited force employment in support of
domestic incidents.26
In 2002, DoD established USNORTHCOM. The specific mission of USNORTHCOM,
headquartered in Colorado Springs, Colorado, is to “conduct homeland defense, civil support and
security cooperation to defend and secure the United States and its interests.”27 USNORTHCOM is
designated as the command to conduct CBRN response operations in support of an LFA in the
forty-eight contiguous States, the District of Columbia, Alaska, and U.S. territorial waters.28
In 2008, USNORTHCOM designated U.S. Army North (ARNORTH) as the Joint Force Land
Component Commander (JFLCC) for domestic CM operations.29 ARNORTH, located at Fort Sam
Houston, Texas, is responsible for developing and unifying the military response capability for
CBRN incidents.30
23 The Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, § 902, 116 Stat.
2458 (2002).
24 DEP’T OF DEFENSE, DIR. 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND AMERICAS’
SECURITY AFFAIRS (ASD(HD&ASA)) (16 Jan. 2009).
25 JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION CJCSI 5711.02C, DELEGATION
APPROVAL AUTHORITY, 5.d. (30 Nov. 2012).
26 JP 3-28, supra note 3, at II-14. The current DSCA EXORD, as of the publication of this handbook, is dated 5 June
2018. The current CBRN EXORD is dated 24 March 2016.
27 About USNORTHCOM,USNORTHCOM, http://www.northcom.mil/About-USNORTHCOM/ (last visited June 14,
2018).
28 CDRUSNORTHCOM, TAB B TO APPENDIX 1 TO ANNEX C TO USNORTHCOM CONPLAN 3500-14
(Chemical, Biological, Radiological, and Nuclear (CBRN) Response Branch Plan), at C-1-B-2 (17 July 2014).
29 JOINT PUB. 3-41, supra note 1, at II-5.
30 About USNORTHCOM, supra note 27.
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D. Specialized DoD CBRN Responders
1.
Joint Task Force Civil Support31
Joint Task Force Civil Support (JTF-CS) will be involved in domestic emergencies, law
enforcement support,32 and other civil support activities.33 Although Joint Task Force Civil Support
(JTF-CS) is nominally linked to broader mission areas, the organization’s focus is far narrower:
JTF-CS’s specific mission is to provide DSCA during a CBRN event.34
JTF-CS is a standing joint task force headquartered at Fort Eustis, Virginia. An Army or Air Force
National Guard Major General on Federal active duty status commands JTF-CS. The staff consists
of active and reserve component military from all five services, government service personnel, and
civilian contractors. Collectively, the command possesses expertise in a wide range of functional
areas including operations, logistics, intelligence, planning, communications, and medical services.
Created by the Unified Command Plan for 1999,35 JTF-CS provides both an operational capability
and an oversight mechanism that can anticipate support requirements for responding to a
catastrophic CBRN incident, undertake detailed analysis, conduct exercises, and ultimately respond
in support of civil authorities. USNORTHCOM has command authority over JTF-CS, and
ARNORTH has OPCON over the unit. It is a deployable command and control headquarters for
DoD units and personnel executing CBRN response operations, and it is a source of response plans
for essential DoD support to the LFA. When directed, JTF-CS will deploy to the incident site and
establish command and control of designated DoD forces, providing defense support of civil
authorities to save lives and prevent further injury. JTF-CS may deploy in support of a USPACOM
31 See infra, Chapter 8, Military Support Operations, for more examples of non-emergency or law enforcement support
that JTF-CS may provide.
32 When situations are beyond the capability of the State, the Governor requests Federal assistance through the
President. DoD support or assistance to restore public services and civil order may include augmentation of local first
responders and equipment. It may include law enforcement support, continuity of operations/continuity of government
measures to restore essential government services, protect public health and safety, and provide emergency relief to
affected governments, businesses, and individuals. Responses occur under the primary jurisdiction of the affected State
and local government, and the Federal government provides assistance when required. See JOINT PUB. 3-28, supra note
3, at x.
33 hese other activities include support to special events designated by the DHS Special Events Working Group
(SEWG). “National special security event” (NSSE) is a designation given to certain special events that, by virtue of their
political, economic, social, or religious significance, may be the target of terrorism or other criminal activity. The
Secretary of Homeland Security, after consultation with the Homeland Security Council, shall be responsible for
designating special events as NSSEs. Usually, other military operations will have priority over these missions, unless
directed otherwise by the SecDef. These events will be assigned a priority by the SEWG and will normally be monitored
by the combatant command responsible for the area in which they are conducted.
34 Joint Task Force Civil Support Fact Sheet, JOINT TASK FORCE CIVIL SUPPORT,
http://www.jtfcs.northcom.mil/About/Factsheets/ (last visited June 14, 2018).
35 Even though the Unified Command Plan for 1999 doesn’t specifically mention JTF-CS, the SECDEF memo
accompanying the plan when forwarded to the President notified the President that the SECDEF intended to establish a
standing Joint Task Force for Civil Support. The unit would report to the SECDEF through the U.S. Joint Forces
Command and the Chairman of the Joint Chiefs of Staff. Its principle focus would be to plan for and integrate DoD’s
support to the lead Federal agency with the responsibility to manage the consequences of a domestic weapons of mass
destruction (WMD) event. The SECDEF felt that, due to the catastrophic nature of a WMD terrorist event that would
quickly overwhelm State and local authorities, the structure that existed for providing DoD support needed to be
expanded.
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incident as well. The NRF provides the coordinating framework under which JTF-CS performs its
mission.36
On October 1, 2008, JTF-CS received the authority to exercise operational control over various
units assigned to the CCMRF (CBRNE Consequence Management Response Force) whenever
those units deploy for a CBRN incident or exercise. The CCMRF transitioned to the Defense CBRN
Response Force (DCRF) in 2011, and now has approximately 5,000 personnel in 88 units at 35
installations across the U.S.37 DCRF units are used to support LFAs in the event of a CBRN
incident and operate under the NRF when deployed to assist.38
JTF-CS employs a three-fold process that enables the command to gain and maintain situational
awareness prior to an execution order. First, JTF-CS staffs an around-the-clock operations center
tasked with gaining and maintaining situational awareness. Second, the command has liaison
officers who routinely interact with interagency partners to ensure familiarity with their operations,
facilitate interagency communications and operations, and gain first-hand understanding of their
emergency response plans. Third, when an incident actually occurs, but prior to the receipt of an
execution order, JTF-CS is prepared to send an assessment element to the incident area. This
element is referred to as the NORTHCOM Situational Awareness Team (NSAT). The NSAT’s
purpose is to establish the “ground truth” concerning what emergency assets and capabilities are
either at-hand or available to emergency managers through intrastate or interstate compacts. The
NSAT provides this information to the Commander, USNORTHCOM, to assist in his or her
decision-making. Additionally, the information enables JTF-CS planners to perform predictive
analysis regarding the types of missions that the LFA may ask DoD to perform. These extensive
planning efforts enable DoD to organize a timely flow of appropriate assets to the incident area
upon request.
Upon receipt of an execution order, JTF-CS has the ability to reconfigure into two command posts
to ensure continuity of operations at home station, while deploying forward to the incident site. The
magnitude of the CBRN incident determines the size of the deploying command post.
Additionally, JTF-CS routinely provides support to other commands during real-world events with
Joint Planning Augmentation Cells (JPACs). JPACs consist of five to fifteen individuals with
extensive consequence management planning skills that can help other staffs plan for and respond
to CBRN or other incidents in their immediate area of responsibility. JPACs are tailored to fit the
type of support requested by the supported organization.
36 JOINT PUB. 3-41, supra note 1, at II-2-II-5.
37 Kelley Vlahos, Public Safety Today: CBRN Protection - From CCMRF to DCRF: Changing Letters for Better
Results, HOMELAND SECURITY TODAY (Jul. 3, 2012)
38 DCRF, JOINT TASK FORCE CIVIL SUPPORT, http://www.jtfcs.northcom.mil/About/Factsheets/ (last visited June 14,
2018).
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2.
National Guard Weapons of Mass Destruction Civil Support Teams (WMD-CSTs)
Pursuant to 10 U.S.C. § 12310(c), and additional authorizations by Congress and through SECDEF
validation, DoD is authorized a total of 57 WMD-CSTs.39 Recognizing that the National Guard is
“forward-deployed for civil support,”40 the Secretary of Defense determined that the WMD-CSTs
would be most effective if established in the National Guard. Consequently, each WMD-CST is
composed of 22 full-time National Guard Soldiers and Airmen and contains five elements:
command, operations, administrative/logistics, medical, and survey.
The teams are designed to deploy rapidly to assist local first responders in the event of a CBRN
incident.41 Specifically, the mission of each State National Guard WMD-CSTs is to deploy to an
area of operations and:
Assess a suspected event in support of a local incident commander;
Advise the local incident commander and civilian responders; and
Facilitate requests for assistance to expedite arrival of additional State and Federal assets to help
save lives, prevent human suffering, and mitigate great property damage.
WMD-CSTs are specially equipped and trained. Special equipment includes the Mobile Analytical
Laboratory System (MALS)42 for nuclear, biological, and chemical (NBC) detection and the
Unified Command Suite (UCS) vehicle for communications.43
WMD-CST capabilities are specifically designed to complement civilian responders.44 Community
and State emergency management plans may directly incorporate WMD-CST capabilities.
WMD-CSTs operate under the command and control of the State Governor and the Adjutant
General. Individual team members serve in a full-time, Title 32 National Guard status.45 If the
teams are called to Federal active duty, they will normally be attached to JTF-CS.46
In addition, WMD-CSTs assigned to one State are authorized to operate in another State pursuant
to:
39 The number of authorized WMD-CSTs is the culmination of legislative actions during the last decade. Most recently,
the National Defense Authorization Act for Fiscal Year 2013, Pub. L. 112-239, 126 Stat. 1632 (2012) amended 10
U.S.C.
12310 leading to the establishment of two additional WMD-CSTs for a current total of 57. For a general
overview of WMD-CSTs, see 2009 Army Posture Statement,
http://www.army.mil/aps/09/information_papers/national_guard_weapons.html (last visited Aug. 20, 2014).
40 U.S. Secretary of Defense Report to Congress pursuant to FY00 National Defense Authorization Act § 1036, 2 (Feb
24, 2000).
41 Id.
42 Id. at 3. MALS is based on system used by the Marine Corps’ Chemical Biological Incident Response Forces with
enhanced biological detection capability.
43 Id. The UCS, built by the Navy, provides communication interface across the ICS frequencies, military command
and control elements, and technical support assets.
44 Id. at 4.
45 Id. at 5; 10 U.S.C. § 12310(c)) (2012 & Supp. IV 2017).
46 U.S. Secretary of Defense Report to Congress pursuant to FY00 National Defense Authorization Act § 1036, 5 (Feb
24, 2000).
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State-to-State Emergency Management Assistance Compacts (EMACs);
State-to-State Memoranda of Agreement; or,
Activation under Title 10.47
3. National Guard CBRN Enhanced Response Force Package (CERFP)
Each CERFP is a response capability comprised of 186 traditional and five Title 32 Active Guard
and Reserve (AGR) National Guard members. A CERFP can be utilized in State Active Duty
(SAD), Title 32, or Title 10 status. There are currently 17 CERFPs in the United States. The
CERFP’s mission is to respond to CBRN incidents and assist local, State, and Federal agencies in
conducting consequence management by providing capabilities to effect patient and mass casualty
decontamination, emergency medical services, and casualty search and extraction. CERFP teams
function as either follow-on or pre-positioned forces and work closely with WMD-CSTs.48
4. National Guard Homeland Response Force (HRF)
DoD, based on recommendations from the Quadrennial Defense Review (QDR), directed the
National Guard to create 10 Homeland Response Forces (HRFs): two in FY11 and eight in FY12.
Each HRF is essentially a CERFP with security and a regional command and control element. They
are composed of approximately 566 personnel and bring capabilities including search and
extraction, decontamination, emergency medical service, security, and command and control.
There are ten HRFs (one per FEMA region).49
5. USCG National Strike Force (NSF) Coordination Center and Strike Teams
The Coast Guard’s NSF deploys specialized capabilities to support lead agency, incident
commander, and Federal on-scene coordinator preparation and response to CBRN incidents,
hazardous substance releases, oil discharges, and other emergencies. NSF assets include the NSF
Coordination Center in Elizabeth City, North Carolina, and three strike teams: the Atlantic Strike
Team in Joint Base McGuire-Dix- Lakehurst, New Jersey; the Gulf Strike Team in Mobile,
Alabama; and the Pacific Strike Team in Novato, California. NSF equipment includes CBRN
detection; air, water, and soil sampling; Level A, B, and C personnel protection; self-
decontamination equipment; hazardous material packaging; mobile command posts; and other field
operational equipment. NSF equipment is pre-packed for immediate deployment by truck or
aircraft. Additionally, as elements of the Coast Guard, NSF units have the organic authority to
respond domestically to many types of hazardous materials
(chemical) incidents under the
National Contingency Plan, either as lead responders in the coastal zone or as an assisting agency to
47 Id. at 6. See Chapter 3 of this Handbook for a detailed discussion of EMACs. A recent example of this was the
deployment of the 24th CST from Fort Hamilton, NY to Boston, MA in support of post-Boston Marathon bombing
operations. See Paula Katinas, Fort Hamilton Anti-Terror Unit Sent to Boston Bombing Site, BROOKLYN DAILY EAGLE,
July 22, 2013, available at: http://www.brooklyneagle.com/articles/fort-hamilton-anti-terror-unit-sent-boston-bombing-
site-2013-04-17-163000.
48 National Guard CERFP Teams, UNITED STATES ARMY NATIONAL GUARD (Dec. 20, 2010),
49 National Guard Homeland Response Force, NATIONAL GUARD.MIL (Jan. 2012),
of-year-review-v1.pdf.
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the Environmental Protection Agency (EPA) in the inland zone.50 The NSF may also deploy
detachments to support overseas military environmental response operations.51
E. Special Legal Considerations During CBRN Response Operations
The parameters under which DoD operates domestically vary greatly from those involved in
traditional military activities. DoD domestic CBRN response activities raise legal issues not found
in typical non-civil support operations. Depending on the circumstances, and the location of the
incident, the scope and complexity of potential legal issues will greatly vary. Below are four
common legal issues that would likely arise in the context of any CBRN response operation. As
operations involving these areas are largely driven by policy decisions at the SECDEF level or
higher - and are additionally vetted through the normal mission assignment process - judge
advocates should receive primary guidance concerning these issues through appropriate mission
OPORDs, EXORDs, FRAGOs, or relevant service-specific field guidance. Judge advocates should,
however, familiarize themselves beforehand with issues they may encounter in these areas, as well
as primary Federal and State authorities discussed below.
1.
Quarantine/Isolation
Quarantine52 and isolation53 enforcement issues may arise most typically in pandemic scenarios.
State and local health authorities are primarily responsible for decisions to impose quarantine or
isolation, and the power to enforce these is generally considered to be part of a jurisdiction’s police
powers.54 Federal power to impose quarantine and isolation measures arises with attempts to halt or
impede the “introduction, transmission, or spread of communicable diseases from foreign countries
into the States or possessions, or from one State or possession into any other State or possession.”55
Regardless of whether the quarantine and isolation measures are imposed at the Federal, State, or
local level, DoD enforcement actions may be subject to the Posse Comitatus Act (PCA),56 absent an
alternative statutory or constitutional authority. A potential exception to PCA restrictions is 42
U.S.C. § 97 (involving State quarantine laws), which is listed in DoDI 3025.21 as one of the
specific laws that allows direct DoD participation in law enforcement, subject to applicable
limitations.57 It is also possible that a quarantine or isolation actions could lead to conditions
50 See Chapter 2, National Framework for Incident Management, for more background on the National Contingency
Plan.
51 See JP 3-41, supra note 1, at II-11.
52
“Quarantine” is defined as the “[s]eparation of individuals who have been exposed to an infection but are not yet ill
from other individuals who have not been exposed to the transmissible infection.” Homeland Security Council,
National Strategy for Pandemic Influenza: Implementation Plan 209 (GPO May 2006).
53
“Isolation” is defined as the “[s]eparation of infected individuals from those individuals that are not infected.” Id. at
208.
54 Kathleen S. Swendiman and Jennifer K. Elsea , Federal and State Quarantine and Isolation Authority 2, U.S.
Congressional Research Service, RL33201, (Jan. 23, 2007).
55
42 U.S.C. § 264(a) (2011). Additionally, in some situations, the Federal government may intervene if it deems State
and local control measures to be inadequate. 42 C.F.R. § 70.2 (2017).
56
18 U.S.C. § 1385 (2011)
57
42 U.S.C. § 97 (2011) specifically states “The quarantines and other restraints established by the health laws of any
State, respecting any vessels arriving in, or bound to, any port or district thereof, shall be duly observed by the officers
of the customs revenue of the United States, by the masters and crews of the several Coast Guard vessels, and by the
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necessitating a Presidential invocation of the Insurrection Act.58 Typically, however, any DoD
support provided to quarantine and isolation support will be limited to logistical, communications,
medical, and other support commonly envisioned by the Stafford Act. Measures provided by DoD
may or may not amount to direct participation in law enforcement activity, and, therefore, a strict
analysis of PCA applicability should occur in all cases.59
2.
Environmental Compliance
Judge advocates planning for CBRN CM operations should assume that Federal, State, and local
environmental laws and regulations will remain in place, at least as they pertain to DoD response
operations. Specific laws that may apply include the Endangered Species Act (ESA), Federal Water
Pollution Control Act (FWPCA), National Historic Preservation Act, and the National
Environmental Policy Act (NEPA), to name a few. For example, the Stafford Act specifically states
that NEPA applies to actions undertaken pursuant to the Act.60 There are some laws that streamline
applicability of environmental regulations or exempt their application during a response. For
example, to streamline the application of NEPA, actions performed under certain sections of the
Stafford Act aimed at restoring facilities are not considered “major Federal actions” that would
normally trigger more NEPA scrutiny.61
The handling and disposal of waste from CBRN response decontamination operations will
frequently implicate environmental compliance issues. In such a scenario, the EPA, operating
under ESF #10, would be the primary agency responsible for hazardous waste management.62
Additionally, coordination with State authorities regarding the State’s environmental laws and
regulations is essential. For example, judge advocates should ensure that appropriate staff sections
and levels of command have ascertained whether the decontamination and waste disposal
procedures outlined in FM 3-1163 are sufficient for a specific CBRN response operation, or whether
those procedures should be modified pursuant to guidance from appropriate State agencies.
3. Health Care Licensure
In a domestic CBRN event, non-fatality casualties may range from minimal to overwhelming. The
greater the number of casualties, the more likely there will be requests for DoD medical personnel
to provide care for the affected populace. Because DoD caregivers may not necessarily be
licensed/credentialed in accordance with appropriate State laws, judge advocates must be prepared
to render advice on Federal and State licensure requirements during emergency support operations.
military officers commanding in any fort or station upon the seacoast; and all such officers of the United States shall
faithfully aid in the execution of such quarantines and health laws, according to their respective powers and within their
respective precincts, and as they shall be directed, from time to time, by the Secretary of Health and Human Services.”
58
10 U.S.C. §§ 331-335 (2012).
59 Chapter 4, Military Support to Civilian Law Enforcement infra has an extensive discussion on how to ensure
compliance with the PCA.
60 42 U.S.C. § 5170c (2011).
61
42 U.S.C. § 5159 (2011).
62 FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, pp. 10-11 (June
63 U.S. DEP’T OF ARMY, FIELD MANUAL 3-11, MULTISERVICE DOCTRINE FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL,
AND NUCLEAR OPERATIONS (July 2011) [hereinafter FM 3-11].
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Upon a command’s receipt of any mission assignments relating to the provision of health-related
services (or even prior to receipt, if practicable), judge advocates on the operational and tactical
levels should verify with higher headquarters that any health care licensure requirements have been
met or waived by appropriate authorities, and that there is a common understanding between the
various agencies involved (including DoD, ESF #8, and State and local agencies) regarding the
statutory portability provisions discussed below.
The primary Federal statute regarding credentialing of military personnel is 10 U.S.C. § 1094,
Licensure requirement for health care professionals. This law states that an armed forces health care
professional who has a current license and is performing authorized duties for DoD may practice his
or her health care profession in any State, notwithstanding any other health care licensure laws and
regardless of whether the practice occurs in a DoD facility, a civilian facility affiliated with DoD, or
any other location authorized by SECDEF64 DoD has promulgated qualification and coordination
requirements for this statutory portability provision as it pertains to off-base duties.65 The various
qualification/coordination with State licensing board requirements pertaining to health care
personnel involved in off-base duties can be found in DoD 6025.13-R, para. C.4.2.
10 U.S.C. § 1094 only applies to those “performing authorized duties for the Department of
Defense” and Title 32 forces in a § 502(f) status.66 National Guard members in State status may
need to look to State laws for guidance on their status. On the State level, many jurisdictions have
passed emergency management provisions containing portability of licensure provisions. For
example, the Florida Governor’s proclamation of a major or catastrophic disaster provides authority
for a health care practitioner licensed in another State to assist in providing health care in the
disaster area according to the provisions specified in the proclamation.67 Similarly, California
permits health care providers licensed in other States to provide health care during a statutorily
defined state of emergency, if the emergency overwhelms California health care practitioners’
response capabilities and California’s Director of the Emergency Medical Service Authority
requests assistance.68 Although during a Stafford Act response DoD support will not normally be
provided absent a specific request from State authorities, judge advocates, through their technical
chains, should ensure that all appropriate agencies and levels of command have a common
understanding of the State laws and rules regarding licensure and how those laws complement Title
10 provisions.
Also, at the State level, judge advocates can also look to either the applicable State’s Emergency
Management Assistance Compact (EMAC)69 or Article V of the Model EMAC legislation, which
states:
64
10 U.S.C. § 1094(d)(1) (2012 & Supp. IV 2017).
65
“Off base duties” are “[o]fficially assigned professional duties performed at an authorized location outside a MTF
and any military installation.” U.S. DEP’T OF DEFENSE, REG. 6025.13-R, MILITARY HEALTH SYSTEM CLINICAL
QUALITY ASSURANCE PROGRAM, para. DL1.1.32 (11 Jun. 2004).
66
10 U.S.C. § 1094(d)(2) and (d)(3) (2012 & Supp. IV 2017).
67 Fla. Stat. § 252.36(3)(c)1.
68 Cal. Bus. & Prof. Code § 900.
69 For more information on EMAC, see EMERGENCY MGMT. ASSISTANCE COMPACT, http://www.emacweb.org/ (last
visited Aug. 20, 2018).
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Whenever any person holds a license, certificate, or other permit issued by any
State party to the compact evidencing the meeting of qualifications for
professional, mechanical, or other skills, and when such assistance is requested
by the receiving party State, such person shall be deemed licensed, certified, or
permitted by the State requesting assistance to render aid involving such skill to
meet a declared emergency or disaster, subject to such limitations and
conditions as the Governor of the requesting State may prescribe by executive
order or otherwise.70
Even if the State has passed the model EMAC legislation without alteration, judge advocates must
be cognizant of the particular State Governor’s limitations on this portability provision.
4.
Mortuary Affairs
As with non-fatality casualties, the number of fatalities in a CBRN event may quickly overwhelm
state and local capabilities. As in other aspects of emergency management, primary responsibility
for mortuary affairs (MA) operations lies at the local level, normally with the local medical
examiner and/or coroner. The National Response Framework gives ESF #8 the responsibility for
mass fatality management in the Federal response.,71 However, in a catastrophic scenario, it is likely
that DoD will be asked to provide mortuary affairs support. Types of support DoD may be asked to
provide, potentially utilizing personnel that are not MA-skilled, may include search and recovery
operations, and transportation and storage of remains, among others.72 DoD personnel who are not
MA-skilled may require training in mortuary affairs (which the civilian agencies responding must
provide) prior to engaging in decedent-related missions or activities.73
During operations, judge advocates should become familiar with the relevant State laws,
regulations, and licensure requirements regarding the handling, transportation, and disposition of
human remains, and ensure that these requirements have either been met or waived by appropriate
authorities. Judge advocates should also be cognizant of the various points of contact involved in
mortuary affairs operations, including the local medical examiner/coroner, local law enforcement,
and the FBI.
70 See EMAC LEGISLATION, https://www.emacweb.org/index.php/learn-about-emac/emac-legislation (last visited Aug.
20, 2018).
71 DEPARTMENT OF HEALTH AND HUMAN SERVICES, EMERGENCY SUPPORT FUNCTION #8 - PUBLIC HEALTH AND
MEDICAL SERVICES 8-2 (June 2016), available at FEMA.gov.
72 JOINT CHIEFS OF STAFF, JOINT PUB. 4-06, CIVIL SUPPORT VII-7 (12 Oct. 2011).
73 Id. at VII-8.
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CHAPTER 7
COUNTERDRUG OPERATIONS
KEY REFERENCES:
10 U.S.C. § 124 - Detection and Monitoring of Aerial and Maritime Transit of Illegal Drugs:
Department of Defense to be the Lead Agency.
10 U.S.C. § 284 - Support for Counterdrug Activities and Activities to Counter Transnational
Organized Crime.
10 U.S.C. § 271-284 - Military Support for Civilian Law Enforcement Agencies.
10 U.S.C. § 279 - Assignment of Coast Guard Personnel to Naval Vessels for Law Enforcement
Purposes.
14 U.S.C. § 89 - Coast Guard Law Enforcement Authority.
18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).
32 U.S.C. § 112 - National Guard Drug Interdiction and Counter-Drug Activities.
DoD 7000.14-R, DoD Financial Management Regulation, Vol. 2B, ch. 14, Drug Interdiction
and Counter Drug Activities, January 2011.
Deputy Secretary of Defense Memorandum, Department of Defense Counternarcotics Policy,
July 31, 2002.
Deputy Secretary of Defense Memorandum, Department of Defense International
Counternarcotics Policy, December 24, 2008.
Deputy Secretary of Defense Memorandum, Department Support to Domestic Law Enforcement
Agencies Performing Counternarcotics Activities, October 2, 2003.
Deputy Secretary of Defense Memorandum, OSD/SOLIC Counternarcotics Mission Transfer
Plan, February 13, 2003 (FOUO).
Deputy Assistant Secretary of Defense/CN Memorandum, Policy Definition of “Counterdrug
Activities”, October 23, 2002.
Deputy Assistant Secretary of Defense /CN Memorandum, Policy Definition of
“Narcoterrorism”, April 12, 2004.
Deputy Assistant Secretary of Defense /CN Memorandum, Counter Drug Support to Counter-
Narcoterrorist Activities (Memo to Chief, NGB) August, 26, 2005.
Deputy Assistant Secretary of Defense /CN Memorandum, Procedures for Handling Requests
for Counterdrug Narcoterrorist Support, 2006.
DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.
CNGB Memo, Counter Drug Support to Counter-Narcoterrorist Activities, December 22, 2005.
CNGB Memo, Implementation of Procedures for Handling Requests for Counterdrug
Narcoterrorist Support, June 2, 2006.
CNGB Instruction 3100.01A, National Guard Counterdrug Support, June 22, 2015.
NGR 500-2/ANGI 10-801, National Guard Counterdrug Support, August 28, 2008 (Currently
under re-write as a CNGB Manual. Check for publishing at end of FY18).
CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S.
Forces, June 13, 2005.
CJCSI 3710.01B, DoD Counterdrug Support, January 26, 2007.
Joint Pub 3-07.4, Joint Counterdrug Operations, June 13, 2007.
The President’s National Drug Control Strategy (2013).
Department of Defense Counternarcotics & Global Threats Strategy, April 27, 2011.
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A. Introduction
In the 1980s, Congress determined the DoD should provide increased support to civilian law
enforcement agencies’ (LEA) counterdrug operations. Over the years, Congress increasingly
mandated support by DoD for counterdrug operations. This support now includes both active
component and National Guard full-time engagement in the mission. DoD counterdrug operations1
are coordinated by the Deputy Assistant Secretary of Defense, Counter Narcotics and Global
Threats (DASD/CN>), which is located within the Office of the Assistant Secretary of Defense
for Special Operations and Low Intensity Conflict (ASD(SO/LIC)). The National Guard
Counterdrug (CD) program is administered through the National Guard Bureau (NGB) J3/7’s J32-
CD Division. This chapter examines support by both the active duty military and the National
Guard.
B. Title 10 Support to Counterdrug Operations
In 1981, Congress passed Chapter 18 of Title 10 entitled Military Cooperation with Civilian Law
Enforcement Officials.2 Although Chapter 18 permits general military cooperation with civilian law
enforcement agencies, Congress passed the Act and its subsequent amendments with the intent of
enabling DoD to provide increased counterdrug support.3
In 1989, Congress took additional steps and assigned specific counterdrug missions to DoD. As
part of the National Defense Authorization Act (NDAA) for Fiscal Years (FY) 1990 and 1991,4
Congress designated DoD as the lead agency for the “detection and monitoring” of the aerial and
maritime transit of illegal drugs into the United States.5 Section 1206 of the same act stated that the
“Secretary of Defense shall direct that the armed forces, to the maximum extent practicable,
conduct military training exercises in drug interdiction areas.”6 In FY 1991,Congress provided
more specific counterdrug authority to DoD by passing Section 1004 of the NDAA, discussed
further below.7
In addition to providing statutory authority for counterdrug support, Congress annually appropriates
funds to DoD specifically for these operations.8 The money is disbursed through DASD/CN>
1 The term “counterdrug operations” is defined as, “those active measures taken to detect, monitor, and counter the
production, trafficking, and use of illegal drugs. Also called ‘CD’ and counternarcotics (CN).” See JOINT CHIEFS OF
STAFF, JOINT PUB. 3-07.4, JOINT COUNTERDRUG OPERATIONS (14 Aug. 2013) [hereinafter JP 3-07.4].
2
10 U.S.C. §§ 271-282 (2012 & Supp. IV 2017). See Chapter 4 of this Handbook.
3 See H.R. Rep. No. 97-71, 1981 U.S.C.C.A.N. 1785. The 1986 amendments to Chapter 18 were contained in the
Defense Drug Interdiction Assistance Act, Pub. L. 99-570, § 3051, 100 Stat. 3207.
4 National Defense Authorization Act of 1990, Pub. L. No. 101-189, 103 Stat. 1563 [hereinafter FY90 NDAA].
5
10 U.S.C. § 124 (2012 & Supp. IV 2017).
6 FY90 NDAA, supra note 4, § 1206.
7 National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004, as amended, 104 Stat. 1629 [hereinafter
FY91 NDAA].
8 The Counternarcotics Program is financed through the Drug Interdiction and Counterdrug Activities defense
appropriation, which is a central transfer account (CTA). It is a single line that accounts for all associated counter
narcotics (CN) resources with the exception of those resources for the active components’ military personnel and
service OPTEMPO. In 2018, Congress authorized appropriations of $750 million for counterdrug operations. See
National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017).
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and it differs from the funding for most other military support to civilian law enforcement in that
reimbursement is not required.
1.
National Defense Authorization Act of 20179
As a result of NDAA for FY 2017, authority for DoD support to counterdrug operations underwent
significant changes. Section 1004 from the NDAA for FY 1991 was replaced by Section 1011 of
FY17 NDAA and subsequently codified under 10 U.S.C. § 284. This authority was also extended
through 2020 and applies to both U.S. and foreign law enforcement agencies (LEAs). In addition,
10 U.S.C. §§ 371-382 was administratively changed to 10 U.S.C. §§ 271-284. Types of
counterdrug support to U.S. LEAs under this authority include the following:
Maintenance and repair of loaned defense equipment to preserve the potential future utility or to
upgrade to ensure compatibility of that equipment § 284(b)(1) & (2)
Transportation support § 284(b)(3)
Establish and/or operate bases or training facilities (includes minor military construction
projects) § 284(b)(4)
Counterdrug-related training of law enforcement personnel § 284(b)(5)
Detect, monitor, and communicate the movement of air and sea traffic within 25 miles of and
outside United States borders § 284(b)(6)(A)
Detect, monitor, and communicate the movement of surface traffic detected outside U.S.
borders for up to 25 miles within the United States § 284(b)(6)(B)
Engineering support (roads, fences, and lights) at U.S. borders § 284(b)(7)
Establish command, control, communications, and computer networks § 284(b)(8)
Linguist and intelligence analysis services § 284(b)(9)
Aerial and ground reconnaissance support § 284(b)(10)
Types of counterdrug support to foreign LEAs under this authority include the following:
Transportation support § 284(c)(1)(A)
Establish and/or operate bases or training facilities (includes small scale construction) § 284
(c)(1)(B)
Detect, monitor, and communicate movement of air and sea traffic within 25 miles of and
outside U.S. borders § 284(c)1(C)(i)
Detect, monitor, and communicate movement of surface traffic outside U.S. borders §
284(c)(1)(C)(ii)
Establish command, control, communications, and computer networks § 284 (c)(1)(D)
Linguist and intelligence analysis services § 284 (c)(1)(E)
Aerial and ground reconnaissance support § 284 (c)(1)(F)
Sections 271-284 also provides statutory exceptions to the Posse Comitatus Act (18 U.S.C. § 1385)
(PCA), basically stating that counterdrug support provided under these sections is not subject to the
requirements of 10 U.S.C., Chapter 18 (with the exception of 10 U.S.C. §§ 274 and 275).10 Further,
9 National Defense Authorization Act of 2017, Pub. L. 114-328, §§ 271-284, 130 Stat. 2000 [hereinafter FY17 NDAA].
10
10 U.S.C. § 274 authorizes the Secretary of Defense to make DoD personnel available to U.S. LEAs for the
maintenance and operation of DoD or LEA equipment only to the extent that such support does not involve direct
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the Secretary of Defense may provide support that will adversely affect military preparedness in the
short term in contravention of 10 U.S.C. § 276 if the Secretary determines that the importance of
providing such support outweighs the short-term adverse impact.11 Lastly, judge advocates should
be aware that the policy limits on assistance to law enforcement agencies set forth in DoDI 3025.21,
Defense Support to Civilian Law Enforcement Agencies, do not apply to counternarcotics
activities.12
2.
Detection and Monitoring
10 U.S.C. § 124 makes DoD the lead Federal agency for the detection and monitoring of aerial and
maritime transit of illegal drugs into the United States. This statute does not extend to the detection
and monitoring of land transit.13 Although detection and monitoring is now a DoD mission per §
124, it must still be carried out in support of Federal, State, local, or foreign law enforcement
authorities.14
In order to perform the detection and monitoring mission, DoD personnel may operate DoD
equipment to intercept a vessel or an aircraft detected outside the land area of the United States for
the purposes of:
Identifying and communicating with that vessel or aircraft; and
Directing that vessel or aircraft to go to a location designated by appropriate civilian officials.15
In cases where a vessel or aircraft is detected outside the land area of the United States, DoD
personnel may begin, or continue, pursuit of that vessel or aircraft over the land area of the United
States.16 Notably, the DoD detection and monitoring mission does not authorize DoD personnel to
conduct searches or make seizures or arrests—which are prohibited under 10 U.S.C. § 275.
3.
Chairman of the Joint Chiefs of Staff Instruction (CJCSI)
Authority to approve counterdrug operational support to LEAs under the statutes discussed above
has been delegated by the Secretary of Defense (SECDEF), through the Chairman of the Joint
participation in a civilian law enforcement operation. 10 U.S.C. §275 directed the Secretary of Defense to promulgate
regulations that prohibit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search,
seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by
law.
11
10 U.S.C. § 284(e) (2012 & Supp. IV 2017).
12 U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES para. 2.f.(1)
(27 Feb. 2013) [hereinafter DoDI 3025.21].
13 But, note that § 284(b)(6) authorizes “[a]erial and ground reconnaissance outside, at, or near the borders of the
United States” in support of other agencies and in accordance with other provisions of § 284; See FY17 NDAA, supra
note 8 § 284(b)(6).
14
10 U.S.C. § 124(a)(2) (2018).
15 Id. § 124(b).
16 The term “United States,” as used in 10 U.S.C. § 124, means the land area of the several States and any territory,
commonwealth, or possession of the United States. 10 U.S.C. § 124(c) (2018).
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Chiefs of Staff, to the Commanders of the Unified Combatant Commands (with the authority to
further delegate to flag and general officers within their chains of command).17
CJCSI 3710.01B provides a specific list of the types of counterdrug missions that may be approved,
such as certain types of aerial reconnaissance, transportation support, intelligence analyst support,
and engineering support, among others. Authority to approve counterdrug support missions
involving ground reconnaissance, detection and monitoring operations, and deployments for longer
than 179 days or involving more than 400 personnel is specifically withheld from this delegation.
These missions require specific SECDEF approval. CJCSI 3710.01B should be consulted whenever
reviewing a proposed operation.
On July 31, 2002, the Deputy Secretary of Defense published the DoD Counternarcotics Policy.
This policy states that DoD will focus its counternarcotics activities on programs that: enhance the
readiness of the DoD; satisfy DoD’s statutory detection and monitoring responsibilities; contribute
to the war on terrorism; advance DoD’s security cooperation goals; or enhance national security.
On October 2, 2003, the Deputy Secretary of Defense published the policy on domestic
counternarcotics activities. This policy established the goals of reducing the operational stress on
Title 10 forces that conduct domestic counternarcotics activities through utilization of Title 32
National Guard forces; focusing DoD’s support on areas of unique military skills and capabilities
that domestic law enforcement agencies lack or cannot practically replicate; and employing those
measures designed to detect, interdict, disrupt, or curtail any activity reasonably related to narcotics
trafficking. This policy directed that the Under Secretary of Defense for Policy shall be responsible
for reviewing and approving Title 10 counternarcotics support, except where that authority was
delegated pursuant to CJCSI 3710.01B.
This policy also dictates that all requests for department support must satisfy the following criteria:
there must be a valid counterdrug activities nexus;
there must be a proper request;18
the support must improve unit readiness or mission capability;
the support must provide a training opportunity that contributes to combat readiness; and
Title 10 forces will not be used for continuing, on-going, long-term operational support
commitments at the same location.
USNORTHCOM reviews all domestic counternarcotics support requests. Commander,
USNORTHCOM, will first ensure a National Guard unit cannot provide the support. If the NGB
determines that Title 32 National Guard forces cannot provide the support, USNORTHCOM will
17 See CJCSI 3710.01B, supra note 10, Encl. A, paras. 1 & 8.g. U.S. Northern Command (USNORTHCOM) further
delegated its authority to the Joint Force Land Component Commander (JFLCC), who further delegated this authority to
Commander, Joint Task Force-North (JTF-N).
18 A proper request must be from an appropriate official of a Federal, State, or local government agency who has
responsibility for counternarcotics activities. First, Federal law must authorize DoD to provide the requested support.
Second, the support must assist the requesting agency with accomplishing its counternarcotics activities within the
United States. Third, the support must be consistent with DoD’s implementation of the National Drug Control Strategy.
Finally, the support must be limited to those activities that are militarily unique and significantly benefit the DoD or are
essential to national security goals. See, e.g. Memorandum, Deputy Secretary of Defense, Department Support to
Domestic Law Enforcement Agencies Performing Counternarcotics Activities (2 Oct. 2003).
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determine whether the requested support is feasible, supportable, and consistent with DoD policy.
If approval is authorized under CJCSI 3710.01B, Commander, USNORTHCOM, or his or her
delegated authority, may approve the request and will request Title 10 forces through the Joint Staff
from the appropriate service. All other requests will be forwarded through the Joint Staff
deployment order process, to the DASD/CN> and Under Secretary of Defense for Policy for
consideration.
Detailed rules governing the use of force by military forces engaged in counterdrug support
operations within the United States are provided in CJCSI 3121.01B, Standing Rules of
Engagement/Standing Rules for the Use of Force for U.S. Forces, Appendices L and O.
4.
Counterdrug Support Task Forces
Counterdrug support operations are planned, coordinated, and controlled primarily via three
headquarters: Joint Interagency Task Force (JIATF) South, located in Key West, Florida, (under
the command and control of U.S. Southern Command (USSOUTHCOM)); JIATF West, located in
Honolulu, Hawaii, (under the command and control of U.S. Pacific Command (USPACOM)); and
Joint Task Force North (JTF-N), located in El Paso, Texas, (under the command and control of U.S.
Northern Command (USNORTHCOM)). While the two JIATFs do provide some support to LEAs
in their Areas of Responsibility (AORs),19 their primary focus is on detection and monitoring of
illicit traffic in the source and transit zones of South and Central America, Southeast and Southwest
Asia, and in international waters and airspace. This enables interdiction by law enforcement in the
source and transit zones consistent with priorities outlined in the President’s National Drug Control
Strategy.20
To deconflict and identify interim and long-term solutions for command and control arrangements
between USNORTHCOM, USSOUTHCOM, and USPACOM, the ASD (SO/LIC) established
specific areas of responsibility for JIATF-S, JIATF-W, and JTF-N.21 While the JIATFs focus their
attention on international AORs, the bulk of domestic counterdrug support is provided by JTF-N.
Joint Task Force Six, activated on November 13, 1989, was designated as the lead DoD
organization responsible for planning and coordinating all DoD support to civilian drug law
enforcement agencies in the continental United States (CONUS). Joint Task Force Six’s original
AOR, composed of the four southwest border States of Texas, New Mexico, Arizona, and
California, was expanded in 1995 to cover all of CONUS.22 On 28 September 2004, Joint Task
Force Six was officially renamed Joint Task Force North (JTF-N). JTF-N’s mission includes
synchronizing and integrating DoD operational, technological, training, and intelligence support to
19 For example, Hawaii falls within PACOM’s AOR, and Puerto Rico and the Virgin Islands fall within
NORTHCOM’s AOR.
20
2013 National Drug Control Strategy, available at
https://obamawhitehouse.archives.gov/sites/default/files/ondcp/policy-and-research/ndcs_2013.pdf (last visited 24 April
2018).
21 Memorandum, Assistant Secretary of Defense (Special Operations/Low Intensity Conflict) Joint Interagency Task
Force (JIATF) Area Responsibilities (21 Aug 2003).
22 History of Joint Task Force North, JOINT TASK FORCE NORTH, available at http://www.jtfn.northcom.mil/About-
Us/History/ (last visited 24 April 2018)..
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domestic law enforcement agency counterdrug efforts in CONUS to reduce the availability of
illegal drugs.
Located at Fort Bliss, Texas, there are approximately 175 personnel assigned to JTF-N, including
civilians, contractors, and service-members from all five services. Unlike the JIATFs, JTF-N has
no LEA representatives assigned to or working in the command. Joint Task Force North has no
assigned units and no tasking authority. It solicits volunteer units from all four DoD branches to
execute the support missions requested by the Department of Justice and Department of Homeland
Security. From its inception as JTF-6, JTF-N has completed over 6,000 counterdrug support
missions throughout CONUS. These included aerial and ground reconnaissance missions, detection
and monitoring, use of mobile training teams, and engineer support missions.
Co-located with JTF-N is Operation Alliance, a headquarters comprised of representatives from
Federal law enforcement agencies. Operation Alliance serves as the single point of contact for all
law enforcement agencies (Federal, State, and local) to request DoD counterdrug support.
Operation Alliance verifies the counterdrug nexus, prioritizes LEA support requests, and then
forwards their requests to JTF-N for review and consideration.
JIATF-S and JIATF-W are both under the direction of Coast Guard Rear Admirals with senior
representatives from DoD, DHS, and DOJ components in other senior leadership positions. JIATF-
S conducts detection & monitoring operations in the Caribbean and Eastern Pacific source and
transit zones.23 JIATF-W combats drug-related transnational organized crime to reduce threats in
the Asia-Pacific region in order to protect U.S. national security interests and promote regional
stability.
5.
Coast Guard Law Enforcement Detachments
As the primary enforcer of U.S. maritime law, the U.S. Coast Guard plays a critical role in drug
enforcement. The Coast Guard has the lead role in maritime drug interdiction and shares the lead
role in air interdiction with the U.S. Customs and Border Protection agency. The Coast Guard
conducts extensive maritime counterdrug operations year-round. These operations range from
enforcing drug possession and use laws during routine recreational and other vessel boardings in all
areas where the Coast Guard operates, to conducting sustained multi-unit operations targeting major
drug traffickers far from U.S. shores. Since the PCA does not apply to the Coast Guard,24 the PCA
restrictions on arrest, search, seizure, and the interdiction of vessels and aircraft are inapplicable to
Coast Guard operations and personnel. Moreover, the Coast Guard has broad law enforcement
authority under 14 U.S.C. § 89 to enforce U.S. laws in waters subject to U.S. jurisdiction and over
vessels subject to U.S. jurisdiction wherever they may be located.25
23 When JIATF-S locates suspect vessels, it transfers TACON of surface assets to the U.S. Coast Guard Seventh
District (Caribbean operations) or Eleventh District (Eastern Pacific operations), at which point the U.S. Coast Guard
conducts interdiction and apprehension operations. In cases in which evidence of maritime drug trafficking or other
illegal activity is discovered, the Coast Guard coordinates case disposition with JIATF-S and DOJ or with foreign
partners, as appropriate. JIATF-S works closely with ongoing DOJ Organized Crime Drug Enforcement Task Force
investigations such as Operation Panama Express to synthesize and evaluate available information about suspected
maritime and aerial drug movement to detect, monitor, and facilitate the interdiction of suspect vessels and aircraft.
24 United States v. Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982), cert. denied, 459 U.S. 1156 (1982).
25
14 U.S.C. § 89(a) (2012 & Supp. IV 2017) states:
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To capitalize on the Coast Guard’s expertise and uniquely broad maritime law enforcement
authority, 10 U.S.C. § 279 requires the Secretary of Defense and the Secretary of Homeland
Security to assign Coast Guard law enforcement detachments (LEDETs) to every appropriate naval
surface vessel operating at sea in a drug interdiction area.26
Coast Guard personnel assigned to LEDETs are trained in law enforcement and have the powers of
arrest, search, and seizure in accordance with 14 U.S.C. § 89. Coast Guard personnel assigned to
U.S. Navy vessels under 10 U.S.C. § 279 will perform functions which are agreed to by the
Secretary of Defense and Secretary of Homeland Security and which are otherwise within the Coast
Guard’s jurisdiction.27 No fewer than 500 active duty Coast Guard personnel will be assigned
duties under 10 U.S.C. § 279, unless the Secretary of Homeland Security, after consulting with the
Secretary of Defense, determines that there are not enough naval surface vessels to support this
number of personnel. If this is the case, these Coast Guard personnel may be assigned duties to
enforce the laws listed under 10 U.S.C. § 274(b)(4)(A).28 U.S. Navy ships transporting Coast Guard
LEDETs under TACON of the Coast Guard will follow the Use-of-Force Policy issued by the
Commandant, USCG, regarding use of warning shots and disabling fire.29
Specific rules governing the use of Coast Guard LEDETs are provided in Commandant, United
States Coast Guard Instruction (COMDTINST) M16247.1G, Maritime Law Enforcement Manual.30
The primary Federal statute that the Coast Guard enforces in counterdrug operations is the Maritime
The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas
and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of
violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any
time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States,
address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the
vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or
search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has
been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued
and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the
laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof,
on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel
liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both,
shall be seized.
26
10 U.S.C. § 279(a) (2012 & Supp. IV 2017). A “drug interdiction area” is defined as an area outside the land area of
the United States in which the Secretary of Defense, after consulting with the Attorney General, determines that
activities involving smuggling of drugs into the United States are ongoing.
27 Id.
§ 279(b).
28 Id. § 279(c).
29 JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, STANDING RULES OF
ENGAGEMENT, Encl. H, Counterdrug Support Operations Outside the U.S. Territory, para. 1(b) (13 June 2005). CJCSI
3121.01B is classified in part. Enclosure H is confidential in part. The provision cited is unclassified.; See also 14
U.S.C. § 637 (2012 & Supp. IV 2017), Stopping Vessels; Indemnity for Firing at or Into Vessels.
30 U.S. COAST GUARD, COMDTINST M16247, U.S. COAST GUARD MARITIME LAW ENFORCEMENT MANUAL ch. 3
para. b.2 (2017) (FOUO) (copy on file with CLAMO) [hereinafter MLEM]. The MLEM is also available at the
Maritime Operations Resources web portal at the CLAMO website (AKO account required). See also Memorandum,
Commander, Atlantic Area, U.S. Coast Guard, to Commanding Officers, Regional TACLETs North, South, and Gulf,
Memorandum of Agreement Concerning Deployment of Law Enforcement Detachment (5 Aug. 1993) (on file with
CLAMO).
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Drug Law Enforcement Act (MDLEA).31 The MDLEA prohibits any person on board a U.S.
vessel, or a vessel subject to the jurisdiction of the U.S., from knowingly or intentionally
manufacturing or distributing, or possessing with the intent to manufacture or distribute, a
controlled substance.32 The term “U.S. vessel” includes:
Federally documented or State numbered vessels;
Vessels owned in whole or in part by:
the U.S. or a territory, commonwealth, or possession of the U.S.;
a State or political subdivision thereof;
a citizen or national of the U.S.; or
a corporation created under the laws of the U.S. or any State, the District of Columbia, or
any territory, commonwealth, or possession of the U.S.; and
U.S. documented vessels sold or registered in a foreign country in violation of U.S. law.33
“Vessel subject to U.S. jurisdiction” includes a foreign vessel if located:
In U.S. customs waters;
On the high seas and the flag State has consented or waived objection to the enforcement of
U.S. law; or
In the territorial waters of another nation and that coastal State consents to the enforcement of
U.S. law.34
In addition to placing LEDETs on U.S. Navy ships, the Coast Guard also relies on extensive
bilateral and multilateral agreements between the United States and other nations to place LEDETs
on the ships of foreign countries. These agreements can take various forms—from standing formal
memoranda of agreements to ad hoc verbal agreements.35
The United States and most countries in South America, Central America and the Caribbean are
parties to the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances. Article 17 of that Convention requires parties to cooperate with each other to suppress
illicit trafficking by sea. Pursuant to this mandate, the United States has entered into dozens of
31
46 U.S.C. §§ 70501-70508 (2012 & Supp. IV 2017). In 2010 Congress passed the Drug Trafficking Vessel
Interdiction Act, 18 U.S.C. § 2285 (the DTVIA) at the urging of the Coast Guard and DOJ. This law makes the
operation of or embarkation in a stateless self-propelled semi-submersible or submersible vessel beyond any State’s
territorial sea (or having crossed from one State’s territorial sea into another) a felony punishable by up to fifteen years
in prison. Although not an anti- drug-trafficking statute per se, the Coast Guard uses this new law to combat the threat
posed by maritime drug traffickers who have increasingly resorted to the use of semi-submersible vessels to avoid
detection while transporting multi-ton loads of cocaine. This was necessary because the crews of these vessels would
frequently scuttle them to avoid prosecution, but under the DTVIA merely being on board is a criminal violation. Many
of the jurisdictional provisions and definitions in the MDLEA are included in the DTVIA as well.
32
46 U.S.C. § 7503(a) (2012 & Supp. IV 2017).
33 Id. § 7502(b).
34 Id. § 7502(c).
35 For a list of current counterdrug bilateral agreements, see USCG OPLAW FAST ACTION REFERENCE MATERIALS,
series (2012) (For Official Use Only manual) (copy on file with CLAMO) [hereinafter FARM]. The FARM is also
available at the Maritime Operations Resources web portal at the CLAMO website (AKO account required).
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