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bilateral agreements or understandings with partner States in the region. These standing bilateral

maritime counterdrug agreements typically address various aspects of enforcement including:

deployment of shipriders from foreign navies and coast guards on U.S. surface assets; over flight by

U.S. air assets within the territory or territorial seas of foreign partners; patrols and pursuit of

suspect vessels in the territorial seas of foreign partners; combined operations; flag State

authorization to board, search, seize, or make arrests; and procedures by which foreign partners may

waive jurisdiction over vessels and persons in favor of prosecution in the United States when

appropriate. As with all international agreements, these bilateral and multilateral agreements can

only be negotiated by following Department of State approval procedures.

C. National Guard Support to Counterdrug Operations

National Guard forces are authorized by 32 U.S.C. § 112(a) to use CD funds for “drug interdiction

and counterdrug activities.” This includes:

 Pay, travel, allowances, clothing, subsistence, gratuities, travel, and related expenses, as

authorized by State law, for National Guard personnel used for drug interdiction and

counterdrug activities while not in Federal service;

 The operation and maintenance of National Guard equipment and facilities used for drug

interdiction and counterdrug activities; and

 The procurement of services and equipment, and the leasing of equipment, by the National

Guard for the purpose of drug interdiction and counterdrug activities.³⁶

Funds provided by the Secretary of Defense under 32 U.S.C. § 112 are part of the DoD counterdrug

appropriation and cannot be used for purposes other than the National Guard counterdrug support

program. Authority to spend CD funds depends on whether the primary purpose of the mission is to

conduct CD activities. Evidence that CD is a purpose, but not the primary purpose, is insufficient

to justify the expenditure. For example, a Purpose Act violation occurred when the Texas National

Guard used counterdrug funds in January 1993 in support of the joint ATF-FBI operation

concerning the Branch Davidians near Waco, Texas. The finding was returned despite evidence

that a former Branch Davidian had stated to the ATF that there was a methamphetamine lab in the

compound, and David Koresh had stated to an undercover ATF agent that the compound would be

an ideal location for a meth lab. The Anti-Deficiency Act³⁷ (ADA) violation was based on the fact

that the operation’s primary purpose was to investigate potential Federal firearms violations—not

narcotics violations.³⁸

³⁶ Procurement of equipment cannot exceed $5,000 per purchase order unless approval is granted by the Secretary of

Defense. 32 U.S.C. § 112(a)(3) (2012 & Supp. IV 2017). Further, equipment purchased, loaned, leased, or otherwise

obtained using 32 U.S.C. § 112 funds will only be used for the Counterdrug Support Program except in very limited

circumstances. NATIONAL GUARD BUREAU, REG. 500-2/ANGI 10-801, NATIONAL GUARD COUNTERDRUG SUPPORT

paras. 7-10, 7-11 (29 August 2008) [hereinafter NGR 500-2].

31 U.S.C. § 1341 et seq. (2012 & Supp. IV 2017).

³⁸ Department of the Army (FM&C), Report of Antideficiency Act Violation Case # 95-09 (11 Mar. 1997).

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CD funds may also be used for the purpose of drug interdiction and counterdrug activities in which

(1) drug traffickers use terrorism to further their aims of drug trafficking, or (2) terrorists benefit

from or use drug trafficking to further their aims of drug trafficking.³⁹

In order to qualify for Federal funding under 32 U.S.C. § 112(a), the Governor of the State

requesting such funding must submit a State drug interdiction and counterdrug activities plan (State

Plan) to the Secretary of Defense.⁴⁰ A State drug interdiction and counterdrug activities plan shall:

 Specify how personnel of the National Guard of that State are to be used in drug interdiction and

counterdrug activities;

 Certify that those operations are to be conducted at a time when the personnel involved are not

in Federal service;

 Certify that participation by National Guard personnel in those operations is service in addition

to training required under 32 U.S.C. § 502;⁴¹

 Certify that any engineer-type activities (as defined by the Secretary of Defense) under the plan

will be performed only by units and members of the National Guard;

 Include a certification by the State Attorney General that the use of the National Guard for the

activities proposed under the plan is authorized by, and is consistent with, State law; and

 Certify that the Governor or a civilian law enforcement official of the State designated by the

Governor has determined that any activities included in the plan that are carried out in

conjunction with Federal law enforcement agencies serve a State law enforcement purpose.⁴²

The National Guard Counterdrug Coordinators for each State or territory must submit their State

Plan to the National Guard Bureau (NGB) for review. The NGB submits all 54 State Plans,

complete with original certifying signature from the respective Adjutant General, Attorney General,

and Governor, to the DASD CN>. DASD CN> reviews the State Plans and, in coordination

with the Comptroller, ASD (HD & ASA), the Joint Staff, the Commander, USNORTHCOM, and

other appropriate offices within the department, recommends approval or rejection to the Secretary

of Defense.⁴³

To ensure that the use of National Guard units and personnel participating in counterdrug operations

does not degrade training and readiness, the following requirements apply in determining what

activities National Guard personnel may perform:

³⁹ JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINT COUNTERDRUG OPERATIONS (13 Jun. 2007) (defining

narcoterrorism); NGR 500-2, supra note 39, glossary (defining counternarcoterrorism); Memorandum, Chief of the

National Guard Bureau, Implementation of Procedures for Handling Requests for Counterdrug Narcoterrorist Support

(2 Jun. 2006).

⁴⁰ State drug interdiction and counterdrug support plans must be submitted through the Counterdrug Office of the

National Guard Bureau. NGR 500-2, supra note 39, para. 2-5.

⁴¹ See 32 U.S.C. § 502 (2012 & Supp. IV 2017) (addressing annual drill and field exercise requirements of National

Guard personnel).

⁴² Id. § 112(c).

⁴³ Memorandum, Deputy Secretary of Defense, Department Support to Domestic Law Enforcement Agencies

Performing Counternarcotics Activities (2 Oct 2003).

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 The performance of the activities may not adversely affect the quality of that training or

otherwise interfere with the ability of a member or unit of the National Guard to perform the

military functions of the member or unit;

 National Guard personnel will not degrade their military skills as a result of performing the

activities;

 The performance of the activities will not result in a significant increase in the cost of training;

and,

 in the case of drug interdiction and counterdrug activities performed by a unit organized to serve

as a unit, the activities will support valid unit training requirements.⁴⁴

The Secretary of Defense will examine the State Plans in consultation with the Director of National

Drug Control Policy. If the Governor of a State submits a plan substantially similar to the one

submitted the prior fiscal year, and funds were provided to the State under the prior plan,

consultation by the Secretary of Defense with the Director of National Drug Control Policy is not

required. National Guard units can execute only those missions approved by the Secretary of

Defense in the State Plans.

Although Federally funded, National Guard members performing counterdrug missions under 32

U.S.C. § 112 are under State command and control. In fact, 32 U.S.C. § 112(c)(2) specifically

requires the State drug interdiction and counterdrug activities plan to certify that “operations are to

be conducted at a time when the personnel involved are not in Federal service.” 32 U.S.C. § 112(b)

also requires that CD personnel serve in a full-time National Guard duty (FTNGD) status pursuant

to 32 U.S.C. § 502(f). As with all National Guard personnel performing duties pursuant to 32

U.S.C. §§ 115, 316, 502, 503, 504, or 505, National Guard members performing CD activities in

FTNGD status are employees of the Federal government for purposes of Federal Tort Claims Act⁴⁵

coverage.⁴⁶ If the appropriate United States Attorney determines that a Title 32 National Guard

member was acting within the scope of employment when an alleged tort occurred, then the

plaintiff’s exclusive remedy would be against the United States, which would accordingly be

substituted as the defendant in any FTCA litigation.⁴⁷ Conversely, for actions not cognizable under

the FTCA, such as a constitutional or Bivens⁴⁸ action against a National Guard member in his or her

individual capacity, the United States could not be substituted as the defendant in the action. In

such cases, the National Guard member may request representation from the Department of Justice

pursuant to 32 C.F.R. § 516.30 and AR 27-40, chapter 4 or AFI 51-301, chapter 1. The process of

determining representation is separate and distinct from the determination of FTCA coverage. If

representation is granted, National Guard personnel remain individually-named defendants in the

action and are responsible for any criminal convictions, fines or civil judgments. The Department

32 U.S.C. § 112(b)(2)(C) (2012 & Supp. IV 2017).

28 U.S.C. §§ 2671-2680 (2012 & Supp. IV 2017).

⁴⁶ See id. § 2671 (defining “employee of the government”).

⁴⁷ See id. § 2679(b). See also NGR 500-2, supra note 39, para. 2-4a (“National Guard members acting within the scope

of their authority and performing approved support (listed in the Governor's State Plan and approved by the SECDEF)

are immune from suit except for certain constitutional torts, i.e., when a negligent act or omission constitutes a violation

of the constitutional rights of the injured party, including persons suspected of criminal activity, and certain intentional

torts, such as assault and battery, false arrest and imprisonment.”).

⁴⁸ Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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of Justice is not obligated to indemnify National Guard personnel for any adverse monetary

judgments or sanctions in these cases, but may, in its sole discretion, do so upon request.⁴⁹

The PCA does not apply to National Guard counterdrug missions performed under 32 U.S.C. § 112,

even though these units are performing missions using Federal funds and operating under Federal

fiscal oversight.⁵⁰ This allows Title 32 National Guard personnel more flexibility than Title 10

forces in conducting domestic counterdrug missions. Nonetheless, DASD CN> and the NGB

have imposed several policy restrictions on National Guard counterdrug operations in NGR 500-2.⁵¹

As a matter of policy, National Guard personnel will not directly participate in the arrest of

suspects, conduct searches which include direct contact of National Guard members with suspects

or the general public, or become involved in the chain of custody for any evidence, except in

exigent circumstances, or when otherwise authorized.⁵² Exigent circumstances are defined as

situations where immediate action is necessary to: protect police officers, National Guard

personnel, or other persons from death or serious injury; prevent the loss or destruction of

evidence; to prevent the escape of a suspect already in custody.⁵³

NGR 500-2 paragraph 2-7 establishes that the following missions have been approved for Federal

funding by the Secretary of Defense under 32 U.S.C. § 112:

 Counterdrug Coordination, Liaison, and Management - Planning and coordinating State

counterdrug supply and demand reduction support;

 Linguist Support - Providing transcription/translation of audio/video tapes, seized documents

and other information media (active/real-time conversation monitoring or direct participation in

interrogations is not allowed);

 Investigative Case and Analyst Support - Assisting law enforcement agencies (LEAs) in the

establishment of counterdrug intelligence systems/databases and providing intelligence analysis

support;

 Communications Support - Providing personnel to establish, operate and maintain

communications stations, bases, and equipment in support of LEA counterdrug operations;

 Operational/Investigative Case Support - Providing assistance to LEAs in developing

investigations and cases for prosecution;

 Engineer Support - Providing engineer support to LEAs and community organizations where

the project has a counterdrug nexus;

 Subsurface/Diver Support - Conducting subsurface inspections of commercial vessel hulls

within U.S. territorial waters or maritime ports of entry through the use of sidescan sonar buoys

⁴⁹ See 32 C.F.R. § 516.30(a)(8) (2017).

⁵⁰ Gilbert v. United States, 165 F.3d 470, 473-474 (6th Cir. 1999) (Where a State used National Guard members for

purpose of carrying out drug interdiction and counterdrug activities, in accordance with Federal statute, the National

Guard members were found to be exempt from the Posse Comitatus Act); United States v. Benish, 5 F.3d 20, 25-26 (3rd

Cir. 1993) (The use of a National Guard unit that was not in Federal service for civilian law enforcement involving

surveillance of possible drug operation was not a violation of Federal law, where under Pennsylvania law the Governor

could place members of National Guard on special state duty to support drug interdiction programs).

⁵¹ This regulation does not address National Guard counterdrug activities performed under the authority of Title 10,

United States Code.

⁵² NGR 500-2, supra note 39, para. 2-1e.

⁵³ Id.

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or divers to detect alien devices or containers attached to vessel hulls, or other underwater

activities;



Domestic Cannabis Suppression/Eradication Operations Support - Supporting LEA domestic

cannabis suppression and eradication operations;⁵⁴



Transportation Support - Providing transportation (aerial, ground, or maritime) of LEA

personnel/equipment, persons in LEA custody, seized property or contraband as part of on-

going time-sensitive counterdrug operations, when security or other special circumstances

reasonably necessitate National Guard support and there is a counterdrug nexus;



Training LEA/Military Personnel - Training LEA/military personnel in military subjects and

skills useful in the conduct of counterdrug operations or in the operation of equipment used in

counterdrug operations;



Surface Reconnaissance - Reconnoitering or performing area observation by land or water to

detect and report illegal drug activities that include, but are not limited to, cultivated marijuana,

suspected isolated drug trafficking airstrips, drug drop zones, drug trafficking corridors, illegal

drug laboratories, suspicious aircraft, watercraft, or motor vehicles;



Aerial Reconnaissance - Conducting reconnaissance/observation of airspace, maritime or

surface areas (land and internal waterways of the U.S. and territories) for illegal drug activities

which include, but are not limited to, cultivation of marijuana or delivery of illegal drugs;⁵⁵



Drug Demand Reduction Support - Providing support to community based activities primarily

designed to educate, train, or otherwise prevent drug abuse among youth, and providing

information about drug abuse or drug abuse programs;



Drug Demand Reduction Education and Programs - Supporting community based activities that

focus on educational institutions, or otherwise have an educational institution as the primary

sponsor, and are primarily designed to educate, train, or otherwise prevent drug abuse;



Leadership Development - Supporting camps, retreats, seminars and programs, not primarily

associated with educational institutions that focus on developing drug abuse prevention

leadership skills in youth and adults; and



Coalition Development - Assisting in the development of functioning community-based

coalitions organized to reduce the illegal use of legitimate drugs and the use of illegal drugs.⁵⁶

National Guard personnel carrying out the above missions serve in a support role to LEAs and will

not be directly involved in law enforcement duties. Consequently, National Guard members will

only be armed at the request of the supported law enforcement agency and after meeting certain

criteria. A mission risk analysis will be conducted by The Adjutant General (TAG) of that State to

determine whether National Guard personnel should be armed as a force protection measure.⁵⁷

Since National Guard personnel providing counterdrug support under 32 U.S.C. § 112 are acting

under State command and control, they operate under their own State Rules for the Use of Force

(RUF). CJCSI 3121.01B, Encl. O, Counterdrug Support Operations Within U.S. Territory, is not

⁵⁴ Note that the destruction of contraband portion of the marijuana eradication mission is no longer authorized. See

Memorandum, Assistant Secretary of Defense (SO/LI-C), Counternarcotics Mission Transfer Plan (13 Feb. 2003).

⁵⁵ An additional requirement for aerial reconnaissance (otherwise known as “Mission 5a”) is that at least one person

involved in either the operation or training of the mission must attend the National Counterdrug Civil-Military Institute

(NICI) Mission 5a course. NGR 500-2, supra note 39, para. 5-16.

⁵⁶ See id., para. 2-7 for a detailed description of what each mission entails.

⁵⁷ Id. para. 3-3. This authority may be delegated in accordance with para. 3-3b of NGR 500-2.

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applicable to the National Guard unless they are in Federal service (Title 10 status). Sample

National Guard RUF cards are on file with CLAMO. Consequently, judge advocates must be aware

of the application of the law of the State in which operations are being conducted.⁵⁸

If National Guard personnel are armed, NGR 500-2 requires the State’s TAG to consider the

following:



All personnel authorized to carry firearms must have received qualification training and testing

on the type of firearm to be carried, in accordance with current regulations. Training will

include instruction on safety functions, security, capabilities, limitations, and maintenance of the

firearms. Testing will include qualification firing in accordance with current qualification

standards;



Arms and ammunition will be secured at all times in accordance with appropriate regulations

and policies. Rounds will be chambered only on order of the commander/senior officer/senior

noncommissioned officer present, in coordination and in conjunction with the supported LEA,

except in cases of exigent circumstances;



Firearms will not be discharged from moving vehicles (except in self-defense or to defend other

persons);



Pilots in command of aircraft have the authority to override an order to chamber rounds while

on board an aircraft;



Possession or use of non-issued or personally owned firearms and/or ammunition during

counterdrug support operations is prohibited. National Guard personnel will not accept offers of

weapons or ammunition from LEAs except for use on LEA operated ranges for training

purposes only. The only weapons used for counterdrug support operations will be Federally

owned military weapons listed on the unit’s property books;



Federally owned military weapons will not be secured in private dwellings at any time;



The counterdrug coordinator will direct additional weapons training when, in his judgment, it is

advisable, regardless of the level of training indicated by training and qualification records;



National Guard units may use minimum force for the following purposes:

 To defend themselves or other persons;

 To protect property, or prevent loss/destruction of evidence;

 To make arrests if they have arrest powers pursuant to State law and exigent circumstances

require such action.



The discharge of any firearm is always considered deadly force; and



National Guard members will be thoroughly briefed on the Rules of Engagement and Use of

Force prior to the commencement of any operation.⁵⁹

⁵⁸ See, e.g. Lieutenant Colonel Wendy A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the

Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, ARMY LAW, Nov. 2000, at 1.

⁵⁹ NGR 500-2, supra note 39, para. 3-3.

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CHAPTER 8

MILITARY SUPPORT OPERATIONS

KEY REFERENCES:



10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside DoD



10 U.S.C. § 2554 - Equipment and other services: Boy Scout Jamborees



32 U.S.C. § 508 - Assistance for Certain Youth and Charitable Organizations



50 U.S.C. § 3045- National Mission of National Geospatial-Intelligence Agency



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

2003



PDD-62 - Protection Against Unconventional Threats to the Homeland and Americans

Overseas, May 22, 1998 (Declassified on March 18, 2014, under E.O. 13526



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



EO 12333 - United States Intelligence Activities (as amended by EO 13355 and 13470)



EO 12580 - Superfund Implementation (as amended by EO 12777, 13286, and 13308)



EO 12656 - Assignment of Emergency Preparedness Responsibilities (as amended by EO

13074, 13286) (See also amendments contained in EO 13753, Dec. 9, 2016)



EO 12657 - Federal Emergency Management Agency Assistance In Emergency Preparedness

Planning At Commercial Nuclear Power Plants (See also amendments contained in EO 13286,

Feb. 28, 2003)



DoDD 1100.20 - Support and Services for Eligible Organizations and Activities Outside the

Department of Defense, April 12, 2004



DoDD 3020.26 - Department of Defense Continuity Programs, January 9, 2009, Incorporating

Change 1, May 10, 2017



DoDI 3025.20 - Defense Support of Special Events, April 6, 2012, Incorporating Change 1,

May 24, 2017



DoDD 3025.13 - Employment of Department of Defense Resources in Support of the United

States Secret Service, October 8, 2010



DoDD 3150.08 - DoD Response to Nuclear and Radiological Accidents, January 20, 2010



DoDD 4500.9E - Transportation and Traffic Management, September 11, 2007, Incorporating

Change 1, July 31, 2017



DoDD 5105.60 - National Geospatial-Intelligence Agency (NGA), July 29, 2009



DoDD 6000.12E - Health Services Operations and Readiness, January 6, 2011, Incorporating

Change 1, October 3, 2013.



Deputy Secretary of Defense (DepSecDef) Policy Memorandum (PM) 16-002, Cyber Support

and Service Provided Incidental to Military Training and National Guard Use of DOD

Information Networks, Software, and Hardware for State Cyberspace Activities, 24 May 2016



AR 95-1 - Flight Regulations, March 11, 2014



AR 500-3 - U.S. Army Continuity of Operations Program Policy and Planning, April 18, 2008



NGR 500-1/ANGI 10-8101, National Guard Domestic Operations, June 13, 2008

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Introduction - Military Support to Special Events

The Department of Defense (DoD) supports a wide variety of special events held within the United

States. Judge advocates must carefully analyze requests, approvals, and types of support when

advising commanders on these kinds of operations. In addition to the sources cited within, the

Center for Law and Military Operations (CLAMO) at the Judge Advocate General’s Legal Center

and School has numerous after action reports providing lessons learned from DoD’s support to

domestic events that judge advocates will find very helpful.

There are two general types of DoD support to special events: support to designated special events

under statutory authority, and community support as part of Innovative Readiness Training (IRT).

Designated special events include the Boy Scout Jamboree and “National Special Security Events”

(NSSEs)¹ such as major sporting events (e.g. the Olympics, Presidential inaugurations, and

international meetings like the 2012 NATO Summit). The IRT program allows commanders to

conduct training in the civilian community, provided the training primarily benefits the participating

unit notwithstanding incidental benefits to the community.

A. Support to Special Events or Organizations

Congress has specifically authorized military support to certain events, such as the Olympics or

World Cup soccer.² Additionally, support to a variety of unspecified designated National Special

Security Events may be approved in accordance with DoDI 3025.20.³

1. Types of Events and Support from DoD/National Guard

a. Sporting Events

Security and safety support for certain sporting events is authorized by 10 U.S.C. § 2564 to include

the World Cup Soccer Games, the Goodwill Games, and the Olympics, and other events when

special security and safety needs exist as authorized by the Attorney General.⁴ DoD previously

supported other sporting events to include the World Alpine Ski Championships and the Special

Olympics. Military forces also provided extensive support during the 1996 and 2002 Olympic

32 C.F.R. § 183.3 defines National Special Security Event as “An event of national significance as determined by the

Secretary of Homeland Security. These national or international events, occurrences, contests, activities, or meetings,

which, by virtue of their profile or status, represent a significant target, and therefore warrant additional preparation,

planning, and mitigation efforts. The USSS, FBI, and FEMA are the Federal agencies with lead responsibilities for

NSSEs; other Federal agencies, including DoD, may provide support to the NSSE if authorized by law.”

10 U.S.C. § 2564 (a) (2012) states:

Security and Safety Assistance. At the request of a Federal, state, or local government agency responsible for

providing law enforcement services, security services, or safety services, the Secretary of Defense may authorize

the commander of a military installation or other facility of the Department of Defense or the commander of a

specified or unified combatant command to provide assistance for the World Cup Soccer Games, the Goodwill

Games, the Olympics, and any other civilian sporting event in support of essential security and safety at such event,

but only if the Attorney General certifies that such assistance is necessary to meet essential security and safety

needs.

³ U.S. DEP’T OF DEFENSE, INST. 3025.20, DEFENSE SUPPORT OF SPECIAL EVENTS, Encl. 2, para. 2.c. (6 Apr. 2012)

[hereinafter DoDI 3025.20].

10 U.S.C. § 2564(a) (2012).

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Games held in Atlanta, Georgia and Salt Lake City, Utah, respectively. Since its establishment in

2002, U.S. Northern Command (USNORTHCOM) coordinates DoD’s support mission for these

events.

b. Non-athletic Events

The Secretary of Defense may also direct that non-athletic events receive support. Non-athletic

events include large events such as Presidential Inaugurations and International Summits hosted

domestically. Many of these events are designated as National Special Security Events (NSSEs).

(1) Boy Scout Support

The Secretary of Defense is authorized, pursuant to 10 U.S.C. § 2554, to lend support for the Boy

Scouts of America (BCA) by providing equipment to include cots, flags, tents, and other equipment

such as expendable medical supplies without reimbursement from BCA Jamborees.⁵ This support

may be provided to the BSA in support of both national and world scout jamborees.⁶ Further, if the

Jamboree is conducted on a military installation, the Secretary may authorize logistical and

personnel support on the military installation.⁷ Certain expenses such as those associated with

transportation must be reimbursed and in some cases a payment bond must be secured before the

support is rendered.⁸

c. National Guard Assistance for Certain Youth and Charitable Organizations

National Guard members and units, in conjunction with required military training,⁹ may provide

services to certain eligible youth and charitable organizations.¹⁰ The eligible organizations are:

 Boy and Girl Scouts of America;

 Boys and Girls Clubs of America;

 Young Men’s and Young Women’s Christian Associations (YMCA/YWCA);

 Civil Air Patrol;

 U.S. Olympic Committee;

 Special Olympics;

 Campfire Boys and Girls;



4-H Clubs; and



Police Athletic Leagues.¹¹

Authorized services include ground transportation, administrative support, technical training,

emergency medical assistance, and communications services. The Special Olympics are

specifically authorized air transportation.¹²

10 U.S.C. § 2554 (2012).

10 U.S.C. § 2554(a.) (2012).

10 U.S.C. § 2554(g) (2012).

10 U.S.C. § 2554(b-f) (2012).

32 U.S.C. § 502 (2012).

¹⁰ Id. § 508 (2012).

¹¹ Id. § 508(d) (2012).

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In providing authorized services, National Guard facilities and equipment including vehicles leased

to the National Guard and the DoD may be used.¹³ As with other types of domestic support

operations, the provision of services must not adversely affect the quality of National Guard training

or otherwise interfere with the member or unit’s ability to perform military functions. Further,

training costs should not significantly increase as a result, and National Guard personnel should

enhance their military skills as a result of their participation. Lastly, the requested services must not

be commercially available. If services are available commercially, the commercial entity affected

can approve, in writing, such services provided by the National Guard.¹⁴

(1) National Guard Civilian Youth Opportunities Program

The SECDEF, through the Chief, National Guard Bureau, conducts a National Guard civilian youth

opportunities program, known as the “National Guard Challenge Program.”¹⁵ Intended to improve

the life skills and employment potential of civilian youth, the Challenge Program is a youth

program directed at helping children attain a high school diploma, providing job training and

placement, improving personal and social skills, and providing health and hygiene education and

physical training.¹⁶ Soldiers work with civilian leaders to provide a comprehensive support package

ranging from choosing appropriate clothing to attending residential training facilities.

The Challenge Program uses National Guard personnel to provide military-based training, including

supervised work experience in community service and conservation projects, to civilian youth who

have not graduated from a secondary school.¹⁷ To carry out the Program, the SECDEF enters into

an agreement with a State Governor or, in the case of the District of Columbia, with the

commanding general of the District of Columbia National Guard.¹⁸ Usually, the Governor will

delegate the establishment, organization and administration of the Program to The Adjutant General

(TAG) of the State.

The Challenge Program is not cost-free.¹⁹ Since 2009, a State must provide at least 25 percent of

the annual Challenge Program operating costs. National Guard equipment and facilities, including

U.S. military property issued to the Guard, may be used to carry out the Challenge Program.²⁰ A

State may supplement its cost-share out of other resources, including gifts. It is also permissible for

the Program to accept, use, and dispose of gifts or donations of money, other property, or services.²¹

Individuals selected for training in the National Guard Challenge Program may receive the

following benefits: allowances for travel, personal and other expenses; quarters; subsistence;

transportation; equipment; clothing; recreational services and supplies; and, a temporary stipend

¹² Id. § 508(b) (2012).

¹³ Id. § 508(c) (2012).

¹⁴ Id. § 508(a) (2012).

32 U.S.C. § 509 (2012).

¹⁶ Id. § 509(a) (2012).

¹⁷ Id. § 509(g) (2012).

¹⁸ Id. § 509(c) (2012).

¹⁹ Id. § 509(d) (2012).

²⁰ Id. § 509(h) (2012).

32 U.S.C. § 509(j) (2012).

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upon the successful completion of the training (GS-2 minimum rate of pay under 5 U.S.C. §

5332).²² A person receiving training under the Challenge Program is considered a U.S. employee

for the purposes of Title 5 (relating to compensation of Federal employees for work injuries) and

Title 28, and any other provision of law relating to Federal liability for tortious conduct of

employees.²³

d. National Special Security Events

Pursuant to Homeland Security Presidential Directive 7 (HSPD-7), the Secretary of the Department

of Homeland Security (DHS) makes the final determination as to whether to designate an event as a

national special security event (NSSE).²⁴ This determination is made after consultation with the

Homeland Security Council.²⁵ Other events may be categorized through the use of the Special

Events Assessment Rating (SEAR) process used by the Department of Homeland Security to

address events that do not rise to the level of an NSSE.²⁶ Military assets provided in support of

NSSEs may include explosive ordnance disposal (EOD) teams, technical escort units (TEU),²⁷

geospatial intelligence support,²⁸ and chemical, biological, radiological, and nuclear threat

identification and response forces.²⁹

The designation of an NSSE by the Secretary, DHS, is based upon an analysis of several factors.

These factors include: the anticipated attendance of United States and foreign officials, the size of

the event, and the significance of the event. Certain events not designated as NSSEs may still

receive DoD support in accordance with DoDD 3025.20. The 2004 G-8 meeting was an event

approved for DoD support, but not designated as an NSSE.

For a list of designated NSSEs in recent years, see Table 7-1 below.

Event

Location

Date

2009 Presidential Inauguration

Washington, DC

Jan. 20, 2009

2009 Presidential Address to Congress

Washington, DC

Feb. 24, 2009

2009 G-20 Pittsburgh Summit

Pittsburgh, PA

Sep. 24 25, 2009

2010 State of the Union Address

Washington, DC

Jan. 27, 2010

2010 Nuclear Security Summit

Washington, DC

Apr. 12-13, 2010

2011 State of the Union Address

Washington, DC

Jan. 25, 2011

²² Id. § 509(g) (2012).

²³ Id. § 509(i) (2012).

²⁴ HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 7, CRITICAL INFRASTRUCTURE IDENTIFICATION, PRIORITIZATION,

AND PROTECTION para. 26 (Dec. 17, 2003) [hereinafter HSPD-7], available at:

http://emilms.fema.gov/IS700aNEW/NIMS0102040t1.htm.

²⁵ Id.

²⁶ DHS, DHS RISK LEXICON 52 (Sept. 2008), available at http://www.dhs.gov/xlibrary/assets/dhs_risk_lexicon.pdf.

²⁷ TEU teams are capable of detecting, rendering safe, and transporting chemical and biological devices.

10 U.S.C. § 442 (2012), National Geospatial-Intelligence Agency, Missions.

²⁹ DoDI 3025.20, Encl. 3, 2.b.(7).

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Asia Pacific Economic Coop Summit

Honolulu, HI

Nov. 12-13, 2011

2012 State of the Union Address

Washington, DC

Jan. 24, 2012

2018 State of the Union Address

Washington, DC

Jan. 30, 2018

38^th G8 Summit

Chicago, IL

May 19-21, 2012

NATO 2012 Chicago Summit

Chicago, IL

May 19-21, 2012

2012 Republican National Convention

Tampa, FL

Aug. 27-31, 2012

2012 Democratic National Convention

Charlotte, NC

Sep. 3-6, 2012

2013 Presidential Inauguration

Washington, DC

Jan. 20, 2013

2016 Republican National Convention

Cleveland, OH

Jul 18-21, 2016

2016 Democratic National Convention

Philadelphia, PA

Jul. 25-26, 2016

2017 Presidential Inauguration

Washington, DC

Jan. 20, 2017

Table 7-1 Recent Designated NSSEs

2. Requests for Support and Coordination

a. Processing Requests for Support

Requests for assistance (RFAs) to a special event may be made to DoD by Federal, State, or local

authorities, or a qualifying entity.³⁰ Often, this means that local police or a FBI field office requests

the military support.

If the initial engagement is not a written RFA, representatives of the Assistant Secretary of Defense

for Homeland Defense and Americas’ Security Affairs (ASD (HD & ASA)) and the Joint Staff will

confer to determine actual requirements. This may involve meetings between DoD representatives

and event organizers, civil authorities, or qualifying entities. Once an RFA is received, it will be

sent to the ASD (HD&ASA) and the CJCS simultaneously for staffing and recommendation.

Additional engagement with the requestor may be required to quantify the scope of the support

requested.³¹ If the authority for the event is 10 U.S.C. § 2564 (sporting event support), and safety

and security support is sought, the Attorney General must certify that the DoD assistance is

necessary to meet “essential security and safety needs” (unless an event excepted under the statute,

such as the Special Olympics, is involved).³²

For NSSEs and events that may require the employment of military forces and centralized

command and control, the Chairman, Joint Chiefs of Staff (CJCS) will issue a planning order

requesting a Combatant Commander initiate planning and notify potential supporting commands

and the Chief, NGB, as appropriate. When possible, established CJCS-directed planning procedures

will be used by the Combatant Commander to provide an assessment and request for forces. The

³⁰ DoDI 3025.20, Encl. 3. A qualifying entity is a non-governmental organization that DoD can assist by virtue of a

statute, regulation, policy, or other approval by SECDEF or an authorized designee.

³¹ Id.

10 U.S.C. § 2564 (2012).

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NSSE designation process generally is initiated by a formal written request to the Secretary of

Homeland Security by the State or local government hosting the event. In other situations where the

event is Federally sponsored, an appropriate Federal official will make the request. As stated

above, the Secretary of Homeland Security makes the final determination to designate an event as

an NSSE pursuant to Homeland Security Presidential Directive 7.³³

b. Types of Support³⁴

Support that the DoD can provide includes, but is not limited to:

 Aviation

 Communications

 Security equipment

 Operations and command centers

 Explosive ordnance detection and disposal

 Logistics (transportation, temporary facilities, food, lodging)

 Ceremonial support (in coordination with the ASD(PA))

 Chemical, biological, radiological, and nuclear threat identification, reduction, and response

capabilities

 Incident response capabilities (in coordination with the Department of Justice, DHS, the

Department of Health and Human Services, and in consultation with appropriate State and local

authorities)

c. Funding Support

Military support may be provided on a reimbursable or non-reimbursable basis depending on the

authority involved. Logistical and security support for certain international sporting competitions

may be paid, in part, from the support for international sporting competitions (SISC) defense

account.³⁵ Events which may be funded out of the SISC account include the Special Olympics, the

Paralympics, and other events meeting the criteria of paragraph 2.b.(5)(d) of Enclosure 3 in DoDI

3020.25.

If there is no separate funding or authority for the DoD to provide the type of support requested, the

support must be approved by the Secretary of Defense and must be provided on a reimbursable

basis in accordance with the Economy Act or other applicable reimbursement authorities.³⁶ Note

that for a single event, certain types of support may require reimbursement, and other types of

support may not. For example, essential safety and security support to the Olympics need not be

reimbursed, but other logistical support provided to the same event must be reimbursed.³⁷

³³ DoDI 3025.20, supra note 4, Enc. 3.

³⁴ Id.

³⁵ Id.; See also 10 U.S.C. § 2564, and Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat.

3009 (1996).

³⁶ DoDI 3025.20, supra note 4, Encl. 3. See also 10 U.S.C. §§ 272-274, 277 (sections 372-384 were amended to 271-

284 in 2016),2012, 2553-2555, and 2564 (2012); 31 U.S.C. §§ 1535, 1536 (2012).

10 U.S.C. §§ 2564(a), 2564(b) (2012).

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Congress has provided specific appropriations to fund support to NSSEs. In addition to general

funding for NSSEs that began in FY2006, Congress has also designated funds for specified NSSEs

since 2004. Examples of NSSEs receiving specific appropriations include the Presidential

Nominating Conventions for both parties in 2004 and 2008.

B. Innovative Readiness Training

Through innovative readiness training (IRT), military units and personnel can sometimes be used to

assist eligible organizations and activities in “addressing community and civic needs” in the United

States, to include U.S. territories and possessions.³⁸ The purpose of IRT is to build upon the long-

standing tradition of the Armed Forces of the United States, acting as good neighbors at the local

level, in applying military personnel to assist worthy community needs.³⁹ Although IRT missions

simultaneously support the unit and the local community, regulations require that steps be taken to

ensure that IRT activities do not impermissibly compete with local commercial enterprises. This is

accomplished by either a determination that there is no reasonably available commercial alternative,

or, by providing a certification of non-competition from the requesting official that “the commercial

entity that would otherwise provide the services agrees to the provision of such services by the

armed forces.”⁴⁰

IRT projects include, but are not limited to, constructing rural roads, providing medical and dental

care to medically underserved communities, and performing small building and warehouse

construction or re-assembly. The scope of IRT projects is open to all career fields and can include

cybersecurity projects.⁴¹ While active components may conduct IRT programs, the National Guard

and Reserve elements primarily provide this support.

Innovative Readiness Training Procedures

Military units may provide this support to certain eligible organizations in the United States, its

territories and possessions, and the Commonwealth of Puerto Rico.⁴² Such assistance must be

provided incidental to training or be otherwise authorized by law.⁴³ Assistance is primarily

provided by combat service support units, combat support units, and personnel serving in the areas

of health-care services, general engineering and infrastructure support, and assistance services.⁴⁴

³⁸ U.S. DEP’T OF DEFENSE, DIR. 1100.20, SUPPORT AND SERVICES FOR ELIGIBLE ORGANIZATIONS AND ACTIVITIES

OUTSIDE THE DEPARTMENT OF DEFENSE para. 4.1 (12 Apr. 2004) [hereinafter DoDD 1100.20]. DoDD 1100.20

implements 10 U.S.C. § 2012.

³⁹ Id. See Lieutenant Commander W. Kent Davis, Innovative Readiness Training Under 10 U.S.C. § 2012:

Understanding the Congressional Model for Civil-Military Projects, ARMY LAW., Jul. 2001, at 21, for additional

background. Military training in support of certain community and charitable organizations can also be accomplished

through 32 U.S.C. § 508 and U.S. DEP’T OF DEFENSE, INST. 3025.17, CIVIL-MILITARY ASSISTANCE FOR CERTAIN

YOUTH AND CHARITABLE ORGANIZATIONS (14 Dec. 2002).

⁴⁰ DoDD 1100.20, supra note 41, paragraph 4.4.1.2.

⁴¹ See Chapter 12 of this Handbook, Cyberspace Operations in the National Guard.

10 U.S.C. § 2012 (2012); DoDD 1100.20, supra note 41.

10 U.S.C. § 2012(a) (2012).

⁴⁴ DoDD 1100.20, supra note 41, para. 4.2.

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a. Requests for Assistance

Requests for assistance must come from a “responsible official” of an “eligible organization.”⁴⁵ A

responsible official is “an individual authorized to represent the organization or activity regarding

the matter of assistance to be provided.”⁴⁶ There are three categories of eligible organizations. Any

Federal, regional, State, or local government entity is an eligible organization.⁴⁷ Eligible

organizations also include youth and charitable organizations as specified in 32 U.S.C. § 508.

Finally, an entity can be approved as an eligible organization by the Secretary of Defense on a case-

by-case basis.⁴⁸

The request for IRT assistance must specify that the requested assistance is not reasonably available

from a commercial entity.⁴⁹ An organization may request Innovative Readiness Training assistance

from a military unit or individual members. In determining whether assistance from a commercial

entity is reasonably available, it is permissible to consider whether the requesting organization

“would be able, financially or otherwise, to address the specific civic or community need(s) without

the assistance of the Armed Forces.”⁵⁰ If commercial assistance is reasonably available, the

requesting individual must certify the commercial entity agrees to the provision of such services by

the military.⁵¹ A good resource for materials related to IRT is http://irt.defense.gov/. This site

maintains current forms and other items of interest to those seeking to file or process an IRT

application.

b. IRT Provision Requirements

Requested IRT assistance must meet three requirements. First, it must be related to military

training. In the case of a military unit, the requested assistance must accomplish valid unit training

requirements (there is an exception to this particular requirement discussed below). In the case of

assistance provided by an individual military member, the requested assistance must involve tasks

directly related to the individual’s military occupational specialty (MOS). Second, the provision of

assistance cannot adversely affect the quality of training or otherwise interfere with a unit or its

members’ abilities to perform military functions. Third, the provision of assistance cannot result in

a significant increase in training costs.⁵²

There is one exception to the requirement that requested IRT assistance must accomplish valid unit

training requirements. In cases where the assistance consists primarily of military manpower and

will not exceed 100 man-hours, the assistance need not accomplish unit training requirements.⁵³

The second and third requirements discussed above must still be met. In such cases, volunteers will

10 U.S.C. § 2012(c)(1) (2012).

⁴⁶ DoDD 1100.20, supra note 41, para. 4.4.1.1.

10 U.S.C. § 2012(e)(1) (2012).

⁴⁸ Id. § 2012(e)(3) (2012).

⁴⁹ Id. § 2012(c)(2) (2012).

⁵⁰ DoDD 1100.20, supra note 41, para. 4.4.1.2.

10 U.S.C. § 2012(c)(2); DoDD 1100.20, supra note 41, para. 4.4.1.2.

10 U.S.C. § 2012 (d)(1)(C) (2012).

⁵³ Id. § 2012 (d)(2) (2012).

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meet manpower requests, and assistance other than manpower will be extremely limited.⁵⁴ Military

vehicles may only be used, for example, to provide transportation of personnel to and from the work

site.⁵⁵

Legal Considerations for IRT Projects

a. Approval Authority for IRT Projects⁵⁶

All IRT submission packets must be approved by a general officer. IRT projects that seek

additional funding from OSD, seek support for any non-governmental organization not specified in

32 U.S.C. § 508, or seek to reallocate IRT funds to another IRT project require approval by the

Office of the Assistant Secretary of Defense for Reserve Affairs (OASD/RA). Major Commands

(MACOMs) otherwise have the authority to approve Army-funded IRT projects not meeting the

criteria above submitted by qualifying entities. This approval authority may be delegated to

commanders of major subordinate commands.

b. Processing Requests for IRT Projects

(1) How the IRT Project Request Process Begins

First, a representative from an eligible organization will approach a commander or command

representative with a concept for a project. The project concept must address a need that is not

otherwise being met. The commander will evaluate the project to determine whether it is

compatible with unit or individual training requirements. If the project is compatible, the

commander then must determine the feasibility of using the project as a training exercise.

(2) Contents of IRT Project Requests

If the commander determines the proposed IRT project is feasible as a training exercise, the

commander works with the requestor to assemble the IRT project request. An IRT project request

must contain a cost analysis of the proposed project. The cost analysis includes total program costs

and identifies whether the costs are borne by military department accounts or defense-wide

accounts. The requesting commander must certify that the proposed project will not increase the

cost of the training above the amount it would cost if conducted independent of an IRT project. The

IRT project request must contain a certification of non-competition. The certification of non-

competition must determine that the requested assistance is not reasonably available from a

commercial entity, or the existing commercial entities agree to the provision of such services by the

military. The IRT project request must also contain an environmental assessment.⁵⁷

(3) IRT Request Review

All IRT project requests must be reviewed for full compliance with applicable guidelines and law.

All IRT project requests must be reviewed and endorsed by a Staff Judge Advocate or legal officer,

⁵⁴ DoDD 1100.20, supra note 41, para. 4.4.2.1.3.

⁵⁵ Id. (note that the use of military aircraft is prohibited in these instances).

⁵⁶ Army IRT Policy, supra note 2, at 2.

⁵⁷ See Army IRT Policy, supra note 2, at. 2. IRT medical project proposals have additional submission requirements.

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a U.S. Property and Fiscal Officer or Federal Budget Officer, and Plans, Operations and Training

officials.⁵⁸ Depending on the nature of assistance requested, additional endorsements may be

required from medical, dental, or nursing officials.⁵⁹ If applicable, the command may request

endorsement from the State Adjutant General of the project state or intergovernmental agencies.⁶⁰

c. Claims Arising From IRT Projects

Claims involving Active Duty, Reserve, or National Guard Soldiers that arise from IRT projects are

cognizable under the Federal Tort Claims Act (FTCA) despite the fact that a non-DoD or private

entity derives a benefit from the project. IRT projects are conducted in a Federally funded training

status under Title 10 or Title 32 status.⁶¹ Community assistance undertaken by National Guard

units is accomplished in a State Active Duty (SAD) status and is not IRT. Therefore, claims

generated incident to projects accomplished in SAD status are solely a State responsibility.

II. Miscellaneous Domestic Support Operations

Domestic support operations supplement the efforts and resources of State and local governments,

and can include a variety of lesser-known types of support. This chapter will address these areas

that may not frequently arise in domestic support operations, but nonetheless contain significant

legal implications and thus are worthy of discussion.

A. Disaster and Domestic Emergency Assistance

1. Military Assistance to Safety and Traffic

The Military Assistance to Safety and Traffic (MAST) program is designed to “assist civilian

communities in providing medical emergency helicopter services beyond the capability of the

community.”⁶² The Secretary of the Army serves as the DoD Executive Agent for the MAST

program.⁶³ In response to a request from civilian authorities, military medical helicopter units may

provide emergency air evacuation and recovery assistance if local civilian resources are not

available or are not sufficient for response to emergencies.⁶⁴ Circumstances for which military

support is envisioned are:⁶⁵

 Those of a life-saving nature;

 Those specifically authorized by statute;

 Those in direct support of a DoD Mission;

 Those requested by an Agency head pursuant to 31 U.S.C. §§ 1535-36;

⁵⁸ Id. at 1.

⁵⁹ Id. at 2.

⁶⁰ Id.

⁶¹ Id. at 1.

⁶² U.S. DEP’T OF DEFENSE, DIR. 4500.9E, TRANSPORTATION AND TRAFFIC MANAGEMENT, E4.2.1 (11 Sept. 2007)

[hereinafter DoDD 4500.9E], Incorporating Change 1, 31 July 2017.

⁶³ Id. para. 1.4.

⁶⁴ Id. para. E.4.2.1.

⁶⁵ Id. para. E.4.3.1.

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 Medical evacuations pursuant to the provisions of DoDI 6000.11, “Patient Movement,” May 4,

2012;⁶⁶ and,

 As authorized and funded pursuant to DoD 7000.14-R, “Department of Defense Financial

Management Regulation” (DoD FMR), Volumes 11A, 11B, and 15.⁶⁷

Military support is subject to the following limitations:

 Assistance may be provided only in areas where military units able to provide such assistance

regularly are assigned.

 Military units shall not be transferred from one area to another to provide such assistance.

 Assistance may be provided only to the extent that it does not interfere with the performance of

military missions.

 The provision of assistance shall not cause any increase in funds required for DoD operation.

 The Secretary of Defense, or designee, shall be the final decision authority for commitment of

DoD resources to the MAST program.

 DoD costs incurred in the program shall be funded by the Military Departments within their

annual training program.⁶⁸

Additionally, military units shall not compete for emergency medical evacuation missions if

support can be provided by civilian contractors.⁶⁹

DoD assets will provide interim support until civilian assets become available.⁷⁰ Medical helicopter

units must operate within their allocated training hour program.⁷¹ The Secretary of Defense or his

or her designee is the final decision authority for commitment of resources to the MAST program.⁷²

Search and Rescue Operations (SAR)

The U.S. Air Force, U.S. Pacific Command (USPACOM), and U.S. Coast Guard all have

significant day-to-day SAR responsibilities.⁷³ For typical SAR cases, the USAF is the recognized

SAR coordinator for the continental U.S. aeronautical SAR Region, USPACOM is the recognized

SAR coordinator for the Alaskan aeronautical SAR Region, and the U.S. Coast Guard is the

recognized SAR coordinator for all other aeronautical and maritime SAR regions. The following

paragraphs in this section address when DoD resources may be applied in a Stafford Act or other

civil support event, outside these normal day-to-day SAR operations.

⁶⁶ Id. para. E.4.3.3.1.

⁶⁷ Id. para. E.4.3.2.

⁶⁸ U.S. DEP’T OF DEFENSE, DIR. 4500.9E, TRANSPORTATION AND TRAFFIC MANAGEMENT, E.4.2.3.1 - E4.2.3.6 (11 Sept.

2007) [hereinafter DoDD 4500.9E], Incorporating Change 1, 31 July 2017. .

⁶⁹ Id. para. E.4.2.1.

⁷⁰ Id. E.4.2.2.

⁷¹ Id. E.4.2.3.6.

⁷² Id. E.4.2.3.5.

⁷³ See National Search and Rescue Plan of the United States, para. 22 (2007), available at

http://www.dtic.mil/dtic/tr/fulltext/u2/a486340.pdf.

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If Emergency Support Functions (ESFs) have been activated (typically during a Stafford Act

response), DoD may have a large role in land-based search and rescue. ESF #9 identifies DoD as a

primary agency for land SAR. During a Stafford Act or other civil support incident, DoD may

provide SAR support following a request by FEMA as directed by JDOMS and approved by

SECDEF.⁷⁴ In this capacity, under the National Response Framework DoD assists civil authorities

by conducting SAR missions on a reimbursable basis (pursuant to the Stafford Act or Economy Act

as appropriate).⁷⁵ Note that local commanders may also provide SAR support when an

“imminent[ly] serious” threat to “public health and safety” exists and time does not permit prior

approval.⁷⁶

When requested, DoD, through U.S. Northern Command (USNORTHCOM) and/or USPACOM,

coordinates facilities and resources according to applicable directives, plans, guidelines, and

agreements. Per the National SAR Plan and as mentioned above, the U.S. Air Force and

USPACOM provide resources for the organization and coordination of civil SAR services and

operations within their assigned SAR regions and, when requested, to assist Federal, State, tribal,

and local authorities.⁷⁷

If DoD SAR capabilities deploy at the direction of an Air Force Rescue Coordination Center in

support of the National SAR Plan (during a typical SAR mission as mentioned above), and the

Stafford Act is subsequently invoked,⁷⁸ those capabilities will then be administered under the

National Response Framework and ESF #9. As soon as practical, a DHS/FEMA or other

department/agency mission assignment will then be submitted to DoD for those capabilities’

continued support.⁷⁹

3. Employment of DoD Resources in Support of the U.S. Postal Service

When ordered by the President, DoD may be called upon to provide materials, supplies, equipment,

services, and personnel to enable the USPS to safeguard, process, and deliver the mail in areas

affected by postal work stoppages. Authority to support the USPS rests in the President’s authority

to use the armed forces to prevent interference with transporting the mail⁸⁰ and the authority for

interdepartmental transfer of services and equipment prescribed by the Economy Act,⁸¹ as

implemented by DoD Instruction 4000.19, Support Agreements.⁸² Upon Presidential declaration of

a national emergency, selective mobilization of reserve components to support the USPS would

occur under 10 U.S.C. § 12301.⁸³ Army and Air National Guard units would be called under

⁷⁴ U.S. DEPARTMENT OF DEFENSE, DoDD 4515.13-R AIR TRANSPORTATION ELIGIBILITY, (Nov. 1994) [hereinafter

DoDD 4515.13-R], through change 3, April 9, 1998, para. C5.7; see also FEMA, EMERGENCY SUPPORT FUNCTION #9 -

SEARCH AND RESCUE, (June 2016), available at www.FEMA.gov.

⁷⁵ FEMA, EMERGENCY SUPPORT FUNCTION #9 - SEARCH AND RESCUE, (Feb. 2011), available at www.FEMA.gov.

⁷⁶ See DoDD 4515.13-R, supra note 77, at C.10.11.

⁷⁷ FEMA, EMERGENCY SUPPORT FUNCTION #9 - SEARCH AND RESCUE, (June 2016), available at www.FEMA.gov

⁷⁸ This could occur in the case of a large airline crash or large vessel casualty, requiring the need for a mass rescue.

⁷⁹ Id.

⁸⁰ In re Debs, 158 U.S. 564 (1895).

31 U.S.C. § 1535 (2012), implemented by 39 U.S.C. § 411 (Cooperation with other Government Agencies).

⁸² U.S. DEP’T OF DEFENSE, INSTR. 4000.19, SUPPORT AGREEMENTS (25 Apr. 2013),

Incorporating Change 1, November 30, 2017.

10 U.S.C. §§ 12301-12304 (2012).

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authority granted in 10 U.S.C. § 12406. Note also that, consistent with this use of authority, EO

13527, Establishing Federal Capability for the Timely Provision of Medical Countermeasures

Following a Biological Attack (Dec. 30, 2009) directs the integration of DoD into plans to provide

support to the USPS delivery of medical countermeasures in the event of biological attack.⁸⁴

Public Health or Medical Emergencies

In a large-scale public health or medical response, DoD will likely provide civil support to the

Department of Health and Human Services (HHS), which is the primary agency responsible for this

mission under ESF #8. DoD may be asked to provide support for casualty clearing and staging,

patient treatment, and services such as laboratory diagnostics. DoD resources may be needed to

assist with the protection of food and water, the provision of medical supplies, coordination of

patient processing, and/or the management of human remains, among other items. All activities

would be coordinated through the mission assignment process under ESF #8.⁸⁵

The new Public Health Emergency Medical Countermeasures Enterprise (PHEMCE)

Implementation Plan (December 2012) is another part of the response framework for public health

emergencies. It establishes the PHEMCE as an interagency coordinating body led by the HHS

Assistant Secretary for Preparedness and Response (ASPR), and comprises the Centers for Disease

Control (CDC), the National Institutes of Health (NIH), the Food and Drug Administration (FDA),

as well as interagency partners at the Department of Veterans Affairs (VA), Defense (DoD),

Homeland Security (DHS), and Agriculture (USDA). It coordinates the development, acquisition,

stockpiling, and use of medical products that are needed to effectively respond to a variety of

potential high-consequence public health emergencies, whether naturally occurring or intentional.⁸⁶

5. Animal and Plant Disease Eradication

Under ESF #8, USDA is responsible for providing the resources to control and eradicate an

outbreak of highly contagious or economically devastating animal disease.⁸⁷ DoD’s role under ESF

#8 is to support this function when requested by providing available military medical personnel for

the protection of public health (to include food and water supplies), and for the support of the

medical treatment of animals.⁸⁸ The National Guard maintains National Guard Expeditionary

Medical Support (EMEDS) Fatality & Services Recovery Response Team packages that can

support these missions with proper approvals.⁸⁹

⁸⁴ Exec. Order No. 13527, 75 Fed. Reg. 737 (Jan. 6, 2010).

⁸⁵ FEMA, EMERGENCY SUPPORT FUNCTION #8 - PUBLIC HEALTH AND MEDICAL SERVICES, (Jan. 2008) [hereinafter ESF

#8], available at www.FEMA.gov. The mission assignment process is discussed further at Chapter 2, infra.

⁸⁶ See U.S. Department of Health and Human Services, Public Health Emergency Medical Countermeasures Enterprise

(PHEMCE) Implementation Plan (Dec. 2012), available at

http://www.phe.gov/Preparedness/mcm/phemce/Documents/2012-PHEMCE-Implementation-Plan.pdf (last visited Dec

17, 2017).

⁸⁷ ESF # 8, supra note 89, 8-10,11.

⁸⁸ Id. at 8-11.

⁸⁹ See NATIONAL GUARD REGULATION 500-1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS, para. 5-11a,

11b (13 Jun. 08) [hereinafter NGR 500-1].

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Mass Migration Emergency

The Department of Homeland Security (DHS) is charged with enforcing the laws of the United

States regarding immigration.⁹⁰ The majority of this responsibility is fulfilled by the routine daily

operations of U.S. Immigration and Customs Enforcement (ICE)⁹¹ under DHS. When individuals

enter the United States illegally, they are subject to apprehension by law enforcement authorities.

ICE then takes action to deport or resettle these immigrants. If the number of illegal immigrants

exceeds the capacity of the ICE, the President may declare a Mass Immigration Emergency and

DoD may be called on to provide support to DHS.⁹²

DoD may be tasked to assist in initial migrant reception, transportation, housing, and the full range

of support services associated with those tasks. At no time is DoD expected to engage in law

enforcement activities or in the processing of immigrants. FORSCOM, operating with DoD Lead

Operational Authority, is charged by JFCOM to develop and coordinate detailed planning and

execution of DoD support mass migration operations in the continental United States. The National

Guard supports domestic emergencies such as mass migration emergencies in a civil support role

while in a Title 10 status.⁹³

Nuclear and Radiological Incidents

Nuclear/Radiological incidents are defined as an “unexpected event involving the release or

potential release of radioactive material that poses an actual or perceived hazard to public health,

safety, national security, or the environment.”⁹⁴ The Nuclear/Radiological Incident Annex of the

National Response Framework provides national policy for and assigns responsibility to designated

Federal departments for the release of nuclear or radiologic materials, whether purposeful or

inadvertent, and whether the incident involves government or privately owned materials.⁹⁵ Per this

policy, DoD is the coordinating agency for incidents occurring on all DoD owned or operated

facilities, and for incidents involving a nuclear weapon, special nuclear material, or nuclear

components under DoD custody.⁹⁶ In the event of a deliberate attack in the United States, DHS is

the coordinating agency and DOJ is the lead law enforcement authority.⁹⁷ DoDD 3150.08, DoD

Response to Nuclear and Radiological Incidents, establishes additional policy in accordance with

⁹⁰ See 6 U.S.C. § 101B, Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified

primarily at 6 U.S.C. §§ 101-557) [hereinafter HSA 2002].

⁹¹ ICE is the investigative arm of the Department of Homeland Security (DHS). The agency is comprised of several

components from the former Immigration and Naturalization Service (INS), the U.S. Customs Service, and the Federal

Protective Service (FPS). The agency combines the investigative, detention and removal, and intelligence functions of

the former INS with the investigative, intelligence, and air & marine functions of the former Customs Service. All the

functions of the former FPS are also part of ICE.

⁹² For example, during the Mariel Boatlift approximately 124,000 Cuban migrants entered the United States between

April and September of 1980. See Mariel Boatlift GLOBALSECURITY.ORG,

https://www.globalsecurity.org/military/ops/mariel-boatlift.htm (last visited Aug. 22, 2018).

⁹³ NGR 500-1, supra note 93, para. 4-2.d.

⁹⁴ U.S. DEP’T OF DEFENSE, DIR. 3150.08, DOD RESPONSE TO NUCLEAR AND RADIOLOGICAL INCIDENTS (20 Jan. 2010)

[hereinafter DoDD 3150.08].

⁹⁵ FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Jun 2008) 1,4,7, available at:

http://www.fema.gov/pdf/emergency/nrf/nrf_nuclearradiologicalincidentannex.pdf (last visited Dec. 12, 2017).

⁹⁶ Id. at 8.

⁹⁷ Id. at 9.

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the National Response Framework regarding DoD consequence management response to U.S.

nuclear weapon incidents and other nuclear or radiological incidents involving DoD materials.⁹⁸

8. DoD Support to Wildfires

State and local governments have the primary responsibility to prevent and control wildfires.⁹⁹

DoD support for wildland firefighting operations are the same as those for other natural disasters

and emergencies.¹⁰⁰ DoD provides disaster and emergency support of FEMA pursuant to approved

FEMA mission assignments (MAs)..¹⁰¹

The primary Federal entity responsible for coordinating the Federal response to wildfires is the

National Interagency Fire Center (NIFC). The NIFC, located in Boise, Idaho,¹⁰² is the nation’s

support center for wildland firefighting¹⁰³ and is a joint operation of the DOI and USDA.¹⁰⁴ Seven

Federal agencies operate from the NIFC and work together to coordinate and support fire disaster

operations. These agencies are:

 Bureau of Indian Affairs (BIA);

 Bureau of Land Management (BLM);

 Forest Service (USFS);

 Fish and Wildlife Service (USFWS);

 National Park Service (NPS);

 National Weather Service (NWS); and,

 Office of Aircraft Services (OAS)¹⁰⁵

The NIFC evolved from the “Boise Interagency Fire Center” which was established in 1965. The

Boise Interagency Fire Center began as an effort to consolidate fire planning and response among

the Bureau of land Management, U.S. Forest Service, and National Weather Service. In 1993, the

name was changed to the National Interagency Fire Center to reflect a national mission.¹⁰⁶

If a national fire situation becomes severe, the National Multi-Agency Coordinating (NMAC)

Group is activated. This group consists of representatives of each of the Federal wildland

⁹⁸ DoDD 3150.08, supra note 99, para. 1.

⁹⁹ U.S. DEP’T OF DEFENSE MANUAL, 3025.01, DEFENSE SUPPORT OF CIVIL EMERGENCIES, Vol. 2, Sec 7, para. 7.1.b.

and table 6 (Aug. 2016) [hereinafter DoDM 3025.01]; See also approved Memorandum of Understanding Between the

Department of Defense, National Geospatial-Intelligence Agency, the Department of Agriculture, and Department of

the Interior, ; see also FEMA, EMERGENCY SUPPORT FUNCTION #4 - FIREFIGHTING ANNEX (May 2013), available at

www.FEMA.gov.

¹⁰⁰ DoDM 3025.01, supra note 104, Sec. 4, para. 4.4.

¹⁰¹ DoDM 3025.01, supra note 104, Sec. 4, para. 4.4.

¹⁰² ESF #4, supra note 104.

¹⁰³ DoDM 3025.01, supra note 104, Sec. 7, para. 7.1; see also National Interagency Fire Center (NIFC), available at:

http://www.nifc.gov/aboutNIFC/about_mission.html (last visited Dec. 12, 2017).

¹⁰⁴ DoDM 3025.01, supra note 104.

¹⁰⁵ See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last

visited Mar. 17, 2018).

¹⁰⁶ See NIFC History, Mission, NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/aboutNIFC/about_mission.html (last visited Dec. 17, 2017). .

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firefighting agencies. Representatives from the General Services Administration, the U.S. military,

and State forestry services may also participate. The Federal and State representatives of this group

are responsible for responding to wildland fires and other emergency events. Depending on the

national fire situation, the NMAC group helps set priorities for critical, and occasionally scarce,

equipment, supplies, and personnel.¹⁰⁷

The National Interagency Coordination Center (NICC) is located within the NIFC. The NICC was

established in 1975 to provide logistical support and intelligence for wildland fires across the

nation. Because NICC is an “all-risk” coordination center, it can also provide support in response

to other emergencies such as floods, hurricanes, and earthquakes. The NICC coordinates supplies

and resources across the United States and provides support to incidents in foreign countries. The

NICC includes the National Multi-Agency Coordination Group (NMAC) which is comprised of

representatives from the BLM, USFS, Bureau of Indian Affairs (BIA), National Park Service,

USFWS, FEMA, and National Association of State Foresters.¹⁰⁸

Subordinate to the NICC are eleven “Geographic Area Coordination Centers” (GACCs). Each

GACC is composed of Federal and State wildland fire agencies. See Figure 8-1.¹⁰⁹

¹⁰⁷ See NATIONAL INTERAGENCY FIRE CENTER, THE NATIONAL MULTI-AGENCY COORDINATING GROUP, available at:

http://www.nifc.gov/nicc/administrative/nmac/index.html.

¹⁰⁸ See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last

visited Dec. 17, 2017).

¹⁰⁹ See Welcome to the National Interagency Coordination Center NATIONAL INTERAGENCY FIRE CENTER,

http://www.nifc.gov/nicc/index.htm (last visited Dec. 17, 2017).

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Figure 8-1. Map of Geographical Area Coordination Centers.

The NICC uses a three-tiered coordination system to respond to wildland fires.¹¹⁰ First, a wildland

fire is initially managed by the local agency that has fire protection responsibility for that area.

Engines, ground crews, smokejumpers, helicopters with water buckets, and air tankers may all be

used for initial suppression. Various local agencies may work together, sharing personnel and

equipment, to fight new fires and those that escape initial action. If a wildland fire grows to the

point where local personnel and equipment cannot contain the fire, the responsible agency contacts

one of the eleven GACCs, which is the second tier of response. The GACC will locate and dispatch

additional firefighters and support personnel throughout the geographic area. The third tier is

triggered when GACCs can no longer meet requests because they are supporting multiple incidents,

or GACCs are competing for resources. When this occurs, requests for equipment and supplies are

referred to NIFC.¹¹¹

NIFC can request DoD assistance through several key authorities.¹¹² Requests for DoD assistance

is coordinated with the FEMA Region 10 DCO or the DoD Liaison at NIVC headquarters with the

NICC.¹¹³ Only the NIFC Director, Deputy Director, or the NICC Director may sign a request for

¹¹⁰ See About Us, NATIONAL INTERAGENCY COORDINATION CENTER, http://www.nifc.gov/nicc/about/about.htm (last

visited Dec. 17, 2017).

¹¹¹ Id.

¹¹² DoDM 3025.01, supra note 104, Sec. 7, para. 7.2.

¹¹³ Id., at 7.4.

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DoD assistance.¹¹⁴ All requests for DoD assistance to support wildland firefighting operations are

submitted to the CCDR..¹¹⁵ NIFC normally requests a specific number of firefighters and/or items

of equipment. NIFC taskings will provide the necessary information, such as incident name,

location, agency representation, and duration of assignment.

Normally, as part of the efforts of State and local governments to prevent and control wildfires, the

National Guard (NG) will respond in State Active Duty (SAD) status.¹¹⁶ For example, during the

summer of 2000, ten States provided more than 1,500 National Guard soldiers and airmen who

served in SAD status. The National Guard personnel provided law enforcement support for traffic

control, transportation and aviation support, and firefighters. The Air National Guard (ANG) and

Air Force Reserve (AFR) provided eight C-130 aircraft equipped with the modular airborne

firefighting system (MAFFS). Additionally, Federal firefighting officials at NIFC formally

requested assistance from DoD. More than 4,600 active duty members were committed to augment

Federal and local firefighters and law enforcement officials. NIFC instituted a “Preparedness Level

5” indicating that all Federal firefighting resources were fully committed.¹¹⁷

DoD can provide Modular Airborne Fire Fighting System (MAFFS) capable C-130 aircraft,

MAFFS-certified aircrews, and appropriate support personnel to conduct aerial dispersal of fire

retardant on a reimbursable basis when requests for this type of assistance comply with the

requirements of the June 2010 interagency agreement between DoD, USDA, and DOI, and DoD is

able to provide the support..¹¹⁸ Congress established the MAFFS Program in the early 1970s as a

joint effort between U.S. Forest Service and DoD..¹¹⁹ The objective of the MAFFS program is to

provide emergency capability to supplement the existing commercial air tanker support on

wildfires.¹²⁰ The NICC can activate the MAFFS when all other contract air tankers are committed,

or are otherwise unable to meet requests for air operations.¹²¹ Approval for use of MAFFS equipment

must be obtained from the FS Assistant Director for Operations, NIFC, prior to this activation.¹²²

¹¹⁴ Id.

¹¹⁵ DoDM 3025.1, supra note 104, Sec. 7.

¹¹⁶ This is different from Title 32 or Title 10 status for National Guard personnel. See infra Chapter 3, Reserve

Components, for further information on National Guard member status.

¹¹⁷ See More Troops Tabbed to Battle Montana Wildfires, AMERICAN FORCES PRESS SERVICE (Aug. 23, 2000),

(Archived - http://archive.defense.gov/news/newsarticle.aspx?id=45369, (last visited Dec. 12, 2017).

¹¹⁸ DoDM 3025.1, supra note 103, ch. 3, para. C3.; see also Aviation, U.S. FOREST SERVICE FIRE & AVIATION

MANAGEMENT, http://www.fs.fed.us/fire/aviation (last visited Dec. 12, 2017). A MAFFS is a self-contained and

pressurized, reusable 3,000 gallon aerial fluid dispersal system that allows Lockheed C-130 cargo/utility aircraft to be

converted to wildland firefighting air tankers without structural modification to the aircraft. The 3,000 gallons of

retardant are discharged in about five seconds through two tubes exiting the rear ramp of the plane. Most MAFFS are

“single-shot” systems, meaning the full load is discharged at one time. One load may lay down a “line” about one-

quarter-mile-long and sixty feet wide. The units are loaded with either water or retardant—a chemical that inhibits the

combustion potential of vegetation on the ground. This allows firefighters on the ground to rapidly take advantage of

the retardant effect, which helps in line-building efforts. The retardant’s bright red or fuchsia color helps pilots observe

the accuracy of their drops on the edge of the fire.

¹¹⁹ U.S. Forest Service, U.S. Department of Agriculture, Modular Airborne Fire Fighting Systems,

https://www.fs.fed.us/managing-land/fire/planes/maffs, (last visited March 17, 2018).

¹²⁰ National Interagency Mobilization Guide, Chapter 18, pg. 69, March 2018,

https://www.nifc.gov/nicc/mobguide/Chapter%2050.pdf, (last visited march 17, 2018).

¹²¹ Id.

¹²² Id.

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Governors of States where NG MAFFS units are stationed may activate MAFFS missions within

their State boundaries when covered by a memorandum of understanding with the USFS. In

accordance with military requirements for initial qualification and recurrent training, MAFFS crews

are trained every year with Forest Service national aviation operations personnel.

There are currently eight MAFFS units for operational use.¹²³ There are currently four airlift wings

(AW) that provide MAFFS-equipped C-130s and certified crews:



146th Airlift Wing (AW), Channel Islands, CA (ANG);



152nd AW, Reno, NV (ANG);



153rd AW, Cheyenne, WY (ANG); and,



302nd AW, Peterson AFB, Colorado Springs, CO (AFR)¹²⁴

The mobilization of MAAFS resources requires a pre-deployment analysis. Prior to deployment of

these assets, local foresters are responsible for ensuring that regional, commercially-available assets

are unavailable or already committed to a mission. Similarly, if assets are sought by the NICC,

commercial assets must be unavailable at the national level. A Memorandum of Understanding-

Collection Agreements governs payments. These agreements are between the military authority and

the Forestry Service.¹²⁵

B. Environmental Missions¹²⁶

Military services carry out environmental compliance programs focused internally on DoD

facilities. DoD may also be called upon to provide assistance during domestic contingency

operations involving a major Federal response to an environmental disaster. DoD has

representation on the national and regional response teams that oversee response planning for oil

and hazardous materials incidents under the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) and the Federal Water Pollution Control Act or Clean

Water Act of (1972).¹²⁷ The National Oil and Hazardous Substances Pollution Contingency Plan

(NCP), 40 C.F.R. § 300, sets forth the responsibilities of all State and Federal entities with a role in

environmental response under these laws.¹²⁸

Executive Order 12580 directs creation of a National Response Team (NRT) for national planning

and coordination of preparedness and response actions. The NRT is composed of representatives of

¹²³ U.S. Forest Service, U.S. Department of Agriculture, Modular Airborne Fire Fighting Systems,

https://www.fs.fed.us/managing-land/fire/planes/maffs, (last visited March 17, 2018).

¹²⁴ DoDM 3025.1, supra note 104, Sec. 7, para. 7.3(b).

¹²⁵ See DoD 3025.1-M, supra note 103, ch. 3, para. C3; see also Modular Airborne Fire Fighting Systems (MAFFS),

U.S. FOREST SERVICE FIRE & AVIATION MANAGEMENT, https://www.fs.fed.us/managing-land/fire/planes/maffs (last

visited Aug. 22, 2018).

¹²⁶ Chapter 2, infra, contains additional information on environmental response and how this mission fits within the

National Response Framework.

¹²⁷ Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9605 - 9675

(2011); The Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 et. seq. (1972), as amended by

the Oil Pollution Act of 1990 (OPA 90) (1991).

¹²⁸ 40 C.F.R. § 300 (2017). The NCP is required by section 105 of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended. See also 40 C.F.R. § 300.2 (2017). Executive Orders 12580 and

12777 delegated to the EPA responsibility to revise the NCP as necessary.

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appropriate Federal departments and agencies, including DoD.¹²⁹ Regional Response Teams

(RRTs), the regional counterpart to the NRT, plan and coordinate regional preparedness and

response actions. The EPA chairs the standing NRT, and the EPA, U.S. Coast Guard, and regional

States chair the RRTs. RRTs coincide geographically with FEMA and EPA regions. At the local

level in the coastal zones are the Area Committees, co-chaired by Coast Guard Captains of the

Port¹³⁰ and their geographic State counterparts.

The NCP is the Federal government’s plan for emergency response to discharges of oil into the

navigable waters of the United States or releases of chemicals into the environment.¹³¹ Under the

National Response Framework, the Environmental Protection Agency (EPA) is the coordinator for

ESF #10 - Oil and Hazardous Materials Response Annex.¹³²

The NCP provides that a predesignated on-scene coordinator (OSC) shall direct response efforts at

the scene of a discharge or release. Inland, the Environmental Protection Agency (EPA) is the lead

response agency and provides OSCs for responses. In coastal areas, the U.S. Coast Guard is the

lead response agency for coordinating the Federal response and provides the OSC. States typically

have concurrent jurisdiction with the EPA/USCG, and will provide a State OSC with significant

authority granted under the NCP and State law. DoD provides the On-Scene Coordinator (OSC)

(person who directs and supervises the response) for all hazardous substance releases, except oil

spills, that originate from DoD facilities or vessels.¹³³

For incidents where DoD does not provide an OSC, DoD generally will provide hazardous materials

or oil spill incident response expertise and resources from the Navy and/or Army Corps of

Engineers (USACE), both of whom have a representative attending NRT, RRT, and/or Area

Committee meetings. USACE oil spill cleanup capabilities include recovery of oil using USACE

reserve fleet vessels, contracting, construction management, real estate support services,

engineering, environmental review and monitoring, and regulatory permitting, among other items.

The Navy's Supervisor of Salvage has an extensive array of specialized equipment and personnel

for use in ship salvage, shipboard damage control, and diving - all of which may be critical needs

during a spill occurring from a large oil-carrying cargo vessel.¹³⁴ With the exception of support

provided under Immediate Response Authority, the use of DoD resources to support requests for

¹²⁹ Exec. Order No. 12580.

¹³⁰ Per 33 C.F.R. § 1.01-30 Coast Guard “Captains of the Port and their representatives enforce within their respective

areas port safety and security and marine environmental protection regulations, including, without limitation,

regulations for the protection and security of vessels, harbors, and waterfront facilities; anchorages; security zones;

safety zones; regulated navigation areas; deepwater ports; water pollution; and ports and waterways safety.”

¹³¹ It is important to note that the NCP is a separate response regime from the National Response Framework and the

Stafford Act, yet there can be overlap between them. Large oil or hazardous materials incidents will be addressed under

the NCP, and not the Stafford Act, because this allows the government to direct the “responsible party” (entity

responsible for the incident) to take response action in addition to government efforts (thus meeting Congressional

intent of the “polluter pays” under CERLA and the FWPCA). Nonetheless, elements of the National Response

Framework (in particular ESF #10) can be activated in addition to the NCP to address the response. See the discussion

of the Deepwater Horizon Oil Spill, infra, as an example.

¹³² FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (June 2016),

available at www.FEMA.gov.

133

40 C.F.R. § 300.120 (2017).

¹³⁴ DoDD 3025.1-M, supra note 104, ch. 3, para. C3.2.1.6.4.5.3.

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assistance is subject to the approval of the Secretary of Defense.¹³⁵ JDOMS will then coordinate

any DoD support under the NCP. Such support will typically be requested through the RRT by the

U.S. Coast Guard or EPA OSC overseeing the response.

The Deepwater Horizon Oil Spill - Use of the NCP vs. Stafford Act

Major environmental contingency operations within the United States are addressed exclusively

under the NCP without a Presidential declaration of a major disaster under the Stafford Act. During

the Deepwater Horizon crisis in 2010, there was substantial confusion in the public and in press

reports regarding the applicability of the Stafford Act to response operations. There was never a

Stafford Act declaration during the Deepwater Horizon response.

Despite the magnitude of that emergency, all operations were conducted under the President’s

delegable authorities under the Clean Water Act¹³⁶ and the NCP. Those authorities specifically

provide mechanisms by which the “Responsible Parties” for the discharge¹³⁷ directly pay all

removal costs and certain damages arising from the discharge.¹³⁸ Consequently, a Stafford Act

declaration was not necessary during Deepwater Horizon because the primary responsible party,

BP, directly funded all removal costs. The National Incident Commander,¹³⁹ Admiral Thad Allen,

U.S. Coast Guard, and the FOSC (a position occupied during 2010 by several Coast Guard flag and

senior-level officers) managed the response and directed BP’s activities in close coordination with

State and local leaders.

If other events caused or exacerbated damage to the Gulf Coast during the Deepwater Horizon

clean-up efforts, e.g., a hurricane or similar event, a Stafford Act response could have been directed

for those contingencies in addition to the environmental response already ongoing pursuant to the

Clean Water Act and the NCP.

C. Miscellaneous Missions in Support of Law Enforcement

1. Support of United States Secret Service

DoDD 3025.13, Employment of DoD Capabilities in Support of the U.S. Secret Service (USSS),

Department of Homeland Security (DHS), provides for reimbursable support for the Secret Service

¹³⁵ FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX 11 (June

2016), available at www.FEMA.gov.

136

33 U.S.C. §1321(c) (2011).

¹³⁷ Among the Responsible Parties in DEEPWATER HORIZON were BP and Transocean.

138

33 U.S.C. § 2702(a) (2011). In oil discharge situations, the Federal government may use the Oil Spill Liability

Trust Fund to pay costs related to oil spill removal activities. Responsible Parties reimburse the fund for these costs.

The statute recognizes that reimbursement may not be available when a Responsible Party is insolvent or cannot be

identified.

139

40 C.F.R. § 300.323(c) (2017) provides that a National Incident Commander (NIC) may be appointed for a “Spill of

National Significance.” The NIC assumes the role of the FOSC in communicating with effected parties and the public

and coordinating Federal, State, local and international resources at the national level.

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and identifies reimbursement accounting procedures.¹⁴⁰ Requests for assistance are routed through

the White House Military Office or DoD Executive Secretary.¹⁴¹

2. Imagery Intelligence and Geospatial Support

The National Geospatial-Intelligence Agency (NGA) is tasked with organizing, directing, and

managing NGA and all assigned resources to provide peacetime, contingency, crisis, and combat

geospatial intelligence support to the operational military forces of the United States.¹⁴² Although

the use of intelligence assets are subject to extensive regulation, NGA capabilities can provide

appropriate Federal agencies access to real-time and near real-time imagery and geospatial support.

Intelligence activities in the United States are governed broadly by Executive Order 12333. EO

12333 prohibits directed collection on U.S. persons through the use of overhead reconnaissance by

intelligence agencies.¹⁴³ EO 12333, however, grants broad authority to U.S. intelligence agencies to

provide direct support to other Federal agencies. This support may be extended to local law

enforcement in circumstances where lives are at risk.¹⁴⁴ Such support, however, requires approval

of the General Counsel of the Supporting Agency. Chapter 9, infra, contains much more specific

guidance regarding the use of intelligence during domestic operations.

3. Critical Asset Assurance Program

EO 12656 requires that every Federal department and agency identify and develop plans to protect

facilities and resources essential to the nation’s defense and welfare, in order to minimize

disruptions of essential services during national security emergencies. Such security emergencies

could result from natural disasters, military attack, or any other event that seriously degrades the

security of the United States.¹⁴⁵

4. Continuity of Operations Policies and Planning

EO 12656 requires heads of Federal agencies to ensure the continuity of essential functions during a

national security emergency.¹⁴⁶ DoDD 3020.26, Department of Defense Continuity Policy, tasks

DoD components to prepare plans for the continuity of its operations and of government during an

emergency.¹⁴⁷ Continuity of Operations (COOP) is defined as “An internal effort within each DoD

Component to ensure that essential functions continue to be performed during disruption of normal

operations..”¹⁴⁸ DoD and OSD Component heads will develop, coordinate, and maintain a DoD

Component continuity program in accordance with this directive to ensure the continuation of

¹⁴⁰ U.S. DEP’T OF DEFENSE, DIR. 3025.13, EMPLOYMENT OF DOD CAPABILITIES IN SUPPORT OF THE U.S. SECRET

SERVICE (USSS), DEPARTMENT OF HOMELAND SECURITY (DHS), (8 Oct. 2010).

¹⁴¹ Id. para. 3.4.2.

¹⁴² U.S. DEP’T OF DEFENSE, DIR. 5105.60, NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY, para. 6 (29 July 2009).

¹⁴³ See Exec. Order No. 12333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401.

¹⁴⁴ Id. at para. 2.6(c).

¹⁴⁵ Exec. Order No. 12656, 3 C.F.R. 585 (1988), sec. 204.

¹⁴⁶ Id., sec. 202.

¹⁴⁷ U.S. DEP’T OF DEFENSE, DIR. 3020.26, DEPARTMENT OF DEFENSE CONTINUITY POLICY (14 Feb. 2018).

¹⁴⁸ Id., at Glossary.

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Component essential functions across the spectrum of threats. Minimum requirements for continuity

planning are outlined in DoDD 3020.26.¹⁴⁹

5. Explosive Ordnance Disposal

DoDD 5160.62, Single Manager Responsibility for Military Explosive Ordnance Disposal

Technology and Training, establishes the Assistant Secretary of Defense for Special Operations and

Low intensity Conflict, under the authority of the Under Secretary of Defense for Policy (USD(P)).

as theOSD proponent for explosive ordnance disposal (EOD) program.¹⁵⁰ Army Regulation 75-

14/OPNAVINST 8027.1E/ARF 136-8/MCO 8027.1B, Interservice Responsibilities for Explosive

Ordnance Disposal, delineates EOD areas of responsibilities for the Army, Navy, Marine Corps,

and Air Force.¹⁵¹

The EOD mission within the Department of the Army is defined in AR 75-15, Policy for Explosive

Ordnance. The mission includes providing assistance to public safety and law enforcement

agencies and conducting “explosive ordnance disposal training for civil preparedness, law

enforcement, fire protection[,] and other public officials.”¹⁵² It also includes providing “explosive

ordnance disposal support to the Departments of Energy and Justice in the neutralization of

improvised nuclear devices in accordance with current agreements and directives.”¹⁵³ The Army

should primarily provide training or advice, rather than physical assistance. AR 75-15 provides

Army EOD is not authorized without an approved exception in accordance with 32 CFR 185 and 32

CFR 182 to respond to, or dispose of, non-DOD commercial explosives, chemicals, or other

dangerous materials that are possessed or controlled by commercial concerns not located on DOD

installations. Thus, EOD forces should only provide physical assistance when the explosive is a

DoD munition or when necessary under immediate response authority to save lives.

D. Pandemic Influenza

In response to growing concerns about the potential for an H5N1 pandemic, the Homeland Security

Council issued the National Strategy for Pandemic Influenza during November 2005.¹⁵⁴ Although

H5N1 has not emerged as a pandemic, the World Health Organization declared on June 11, 2009

¹⁴⁹ Id. at 2.13.

¹⁵⁰ U.S. DEP’T OF ARMY, REG. 75-15, RESPONSIBILITIES AND PROCEDURES FOR EXPLOSIVE ORDNANCE, para. 3-1 (17

Dec, 2013). AR 75-15 does not apply to the Army Reserves or Army National Guard.

¹⁵¹ Id. paras. 1-1, 2-1. The Army has EOD responsibility on Army installations and on landmass areas not specifically

assigned as the responsibility of the Navy, Marine Corps, or the Air Force. The Department of the Navy is responsible

for: EOD activities on Navy installations; explosive ordnance in the physical possession of the Navy; in assigned

operational areas; within the oceans and contiguous waters, up to the high water mark of sea coasts, inlets, bays,

harbors, and rivers; in any rivers, canals or enclosed bodies of water; and for the rendering safe and disposal of

underwater explosive ordnance. The Department of the Air Force and the Marine Corps have EOD responsibility on

their own installations, for explosive ordnance in their physical possession, and in assigned operational areas.

¹⁵² Id. para. 1-4.

¹⁵³ Id.

¹⁵⁴ HOMELAND SECURITY COUNCIL, NATIONAL STRATEGY FOR PANDEMIC INFLUENZA (November 2005), available at .

https://www.cdc.gov/flu/pandemic-resources/pdf/pandemic-influenza-strategy-2005.pdf (last visited Dec. 12, 2017).

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that the H1N1 influenza had become a pandemic.¹⁵⁵ This was followed by statements by the

Secretaries of HLS and HHS indicating that the United States had already activated their pandemic

response plans in anticipation of such a declaration.¹⁵⁶ Although easily transmissible, the H1N1

influenza has not shown a high mortality rate. Nonetheless, leaders and planners are concerned that

a more virulent and deadly strain could present itself in the future. Accordingly, judge advocates

advising commanders need to be prepared to confront the myriad of legal challenges that a

pandemic could bring. This section provides an overview of the support DoD anticipates providing

in the event of a severe pandemic.

The DoD issued the Department of Defense Implementation Plan for Pandemic Influenza during

August 2006.¹⁵⁷ This “Implementation Plan” includes several planning assumptions that trigger

scenarios of interest to the domestic operational lawyer. These assumptions include:

 There will be interagency requests for assistance with mortuary affairs (MA);

 The spread of H1N1 will start from multiple points of entry in the United States and spread

rapidly throughout the Nation;

 State, tribal, and local governments will not be able to ensure the provision of essential

commodities and services;

 Interstate transportation will be restricted to contain the spread of the virus;

 The security of critical infrastructure will require “Federal augmentation;”

 Both military and civilian MTFs will be overwhelmed;

 Under existing agreements, DoD will provide support to local communities medical efforts to

include the provisioning of personnel, supplies, and materiel;

 DoD will support civil authorities consistent with applicable authorities;

 DoD will support and perhaps staff key aspects of the National Critical Infrastructure; and,

 U.S. Army Reserve forces will be mobilized.¹⁵⁸

Based upon these and other assumptions, the Implementation Plan outlines nineteen planning

categories informed by the Homeland Security Council’s (HSC) five planning priorities and thirteen

priority areas. DoD support in the following fifteen categories will require legal analysis prior to

execution:

 Category 1: Intelligence;

 Category 2: Force Protection;

 Category 4: Interagency Planning Support;

 Category 5: Surge Medical Capability to Assist Civil Authorities;

 Category 7: Patient Transport and Strategic Airlift;

¹⁵⁵ The end of this 2009 Pandemic was declared by the World Health Organization (WHO) International Health

Regulations Emergency Committee on 10 August 2010. See 2009 H1N1 Flu, CTRS. FOR DISEASE CONTROL AND

PREVENTION, http://www.cdc.gov/h1n1flu/ (last visited March 9, 2018).

¹⁵⁶ Statements by HHS Secretary Kathleen Sebelius and DHS Secretary Janet Napolitano on WHO Decision to Declare

H1N1 Virus Outbreak a Pandemic, CTRS. FOR DISEASE CONTROL AND PREVENTION,

http://www.cdc.gov/h1n1flu/statement061109.htm (last visited March 9, 2018).

¹⁵⁷ ASD, HD, MEMORANDUM FOR SECRETARIES OF MILITARY DEPARTMENTS, DEPARTMENT OF DEFENSE

IMPLEMENTATION PLAN FOR PANDEMIC INFLUENZA (12 Sept. 2006) [hereinafter “Implementation Plan”].

¹⁵⁸ Id. at 8-9.

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 Category 8: Installation Support to Civilian Agencies;

 Category 10: Security in Support of Pharmaceutical/Vaccine Production (Critical Infrastructure

Protection (CIP));

 Category 11: Security in Support of Pharmaceutical/Vaccine Distribution;

 Category 12: Communications support to Civil Authorities;

 Category 13: Quarantine Assistance to U.S. Authorities;

 Category 14: Military Assistance for Civil Disturbances;

 Category 15: Military Assurance: Defense Industrial Base;

 Category 16: Mortuary Affairs;

 Category 17: Continuity of Operations & Continuity of Government; and,

 Category 19: Public Affairs support to Civil Authorities.¹⁵⁹

The Congressional Research Service has also developed a CRS Report for Congress that outlines

key legal issues raised by Pandemic Influenza outbreak.¹⁶⁰ The authors note that the Federal

authorities authorizing Federal support for a pandemic influenza contingency include the Public

Health Service Act and the Stafford Act. These authorities involve the establishment of quarantines

and isolation facilities at borders, or of an interstate nature.¹⁶¹ As discussed above, DoD planning

guidance directs consideration be given to the potential for DoD to provide quarantine support to

U.S. authorities.¹⁶² This would be in support of HHS’s authority “to prevent the introduction,

transmission, or spread of communicable diseases from foreign countries into the States or

possessions, or from one State or possession into any other State or possession.”¹⁶³ These foreign

and interstate quarantine authorities are administered by the Director of the CDC and executed as

necessary by the Division of Global Migration and Quarantine.¹⁶⁴ Further, DHS provides support to

the CDC through three of its agencies: U.S. Customs & Border Protection; U.S. Immigration and

Customs Enforcement; and, the United States Coast Guard.¹⁶⁵

This authority provided to DoD will be secondary to the States, which have primary quarantine and

isolation authorities under State law.¹⁶⁶ Upon request, or upon the determination that local efforts

are inadequate, the Federal government may assume primary responsibility for such activity.¹⁶⁷ To

the extent that State and local efforts prove ineffective, the likelihood of Federal intervention and a

corresponding request for support to the DoD increases. The situation in affected areas may trigger

broad requests or directions of DoD support to other Federal or non-Federal entities.¹⁶⁸ Such

requested support may prove unpopular. It could also involve the detailing of military law

enforcement personnel to augment civilian Federal law enforcement pursuant to the Emergency

¹⁵⁹ Id. at 10-11.

¹⁶⁰ KATHLEEN S. SWENDIMAN & NANCY LEE JONES, The 2009 Influenza Pandemic: Selected Legal Issues, CRS REP’T

TO CONG. (October 29, 2009) [hereinafter “CRS REP’T”].

¹⁶¹ Id. at summary.

¹⁶² See Implementation Plan, supra note 155, at 11, Category 13.

163

42 U.S.C. § 264(a) (2011).

¹⁶⁴ See CRS REP’T, supra note 158 at 11.

¹⁶⁵ Id. at 7.

¹⁶⁶ Id.

¹⁶⁷ See id. at 8, n.41; see also 42 U.S.C. § 264(c) (2011); 42 C.F.R. § 70.2 (2017).

¹⁶⁸ See Implementation Plan, supra note 155 at 10-11, Categories 1, 2, 4-5, 7-8, 10-17 & 19.

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CHAPTER 9

INTELLIGENCE AND INFORMATION ACQUISITION AND

HANDLING DURING DOMESTIC OPERATIONS

REFERENCES:



National Security Act of 1947 (as amended), codified throughout 50 U.S.C. § 401 et seq. and 50

U.S.C. § 3001 et seq.



Foreign Intelligence Surveillance Act (as amended), 50 U.S.C. § 1801 et seq.



Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 [S. 2845],

December 17, 2004.



The Immigration and Nationality Act (as amended), 8 U.S.C. §§ 1101 et seq.



The Privacy Act (as amended), 5 U.S.C. §552a



EO 12333 - U.S. Intelligence Activities, December 4, 1981, as amended by EO 13284 (2003),

EO 13355 (2004) and EO 13470 (2008).



EO 13526, Classified National Security Information, December 23, 2009.



DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components That

Affect U.S. Persons, December, 1982, Incorporating Change 2, Effective April 26, 2017.



DoDD 3025.18, Defense Support of Civil Authorities (DSCA), December 29, 2010,

Incorporating Change 1, September 21, 2012.



DoDD 5143.01, Undersecretary of Defense for Intelligence (USD(I)), October 24, 2014,

Change 1 Effective April 22, 2015.



DoDD 5148.13, Intelligence Oversight, April 26, 2017.



DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not

Affiliated with the Department of Defense, January 7, 1980.



DoDD 5240.01, DoD Intelligence Activities, August 27, 2007, Incorporating Change 1 and

Certified Current Through August 27, 2014.



DoDD 5400.11- DoD Privacy Program, October 29, 2014.



DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.



DoDI 3115.15, Geospatial Intelligence (GEOINT), December 6, 2011.



DoDM 5240.01, Procedures Governing the Conduct of DOD Intelligence Activities, August 8,

2016.



Deputy Secretary of Defense Policy Memorandum 15-002, Guidance for the Domestic Use of

Unmanned Aircraft Systems, 27 February 2015.



Defense Intelligence Agency Regulation (DIAR) 50-30 - Security Classification of Airborne

Sensor Imagery, June 25, 1997.



Agreement Governing the Conduct of Defense Department Counterintelligence Activities in

Conjunction with the Federal Bureau of Investigation, (FOUO) April 5, 1979.



Supplement to 1979 FBI/DoD Memorandum of Understanding: Coordination of

Counterintelligence Matters Between the FBI and DoD, (S) June 20, 1996.



Joint Publications Intelligence series 2-0.



AFPD 14-1 - ISR Planning, Resources, and Operations, April 2, 2004.



AFI 14-104 - Oversight of Intelligence Activities, November 5, 2014.



AFI 14 series on Intelligence.



AR 380-13 - Acquisition and Storage of Information Concerning Non-Affiliated Persons and

Organizations, September 30, 1974

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

AR 381-10 - Army Intelligence Activities, May 3, 2007.



AR 381-20 - The Army Counterintelligence Program, May 25, 2010.



AR 381-xx series on Intelligence.



SECNAVINST 3820.3E - Oversight of Intelligence Activities Within the Dep’t of the Navy,

September 21, 2005.



SECNAVINST 3850.2C - Dep’t of the Navy Counterintelligence, July 20, 2005.



Marine Corps Warfighting Pub 2-1 - Intelligence Operations, September 10, 2003.



Marine Corps Warfighting Pub 2-6 - Counterintelligence, July 13, 2004.



Marine Corps Warfighting Pub 2-x series on Intelligence.



National Guard Joint Force Headquarters State J2 Incident Awareness and Assessment

Handbook, February 27, 2009.



Chief National Guard Bureau Instruction (CNGBI) 2000.01C, National Guard Intelligence

Activities, 14 August 2018.



CNGBI 7500.00, Domestic Use of National Guard Bureau Unmanned Aircraft Systems, 13

October 2016.



Chief National Guard Bureau Manual (CNGBM) 2000.01, National Guard Intelligence

Activities, November 26, 2012.



U.S. NORTHERN COMMAND Instruction 14-3, Domestic Imagery, July 29, 2014.



U.S. NORTHERN COMMAND Instruction 14-103, Intelligence Oversight, June 14, 2017.

A. Introduction

With the ever-increasing number of domestic military missions conducted in the Homeland, there

has been a concurrent search for appropriate assets and capabilities to best perform those missions.

Although domestic military missions are no different than overseas missions in that a key

requirement for mission success is maintaining a commander’s situational awareness, the operating

environments are completely different. In a deployed or overseas location, the commander must be

aware of the situation on the ground and have a complete picture of the “battle space” within which

the unit is operating. Overseas, the DoD has the lead, and is in charge of most operational

activities. There, the intelligence assets available to the commander normally provide him or her

with the common operating picture that will establish situational awareness. However, the domestic

operational domain is complicated by Federal statutory and Constitutional restrictions and

protections which effectively preclude, or in a best case scenario, limit use of intelligence assets,

capabilities and platforms, and even the use of intelligence personnel. In the absence of a

Homeland Defense environment or direction from the President, DoD will not be the lead Federal

agency conducting operations; indeed, DoD will be supporting the lead Federal agency.¹ Further, in

the absence of a Homeland Defense initiation order, there is no “battlespace” in the Homeland; to

the contrary, the domain is called the “operational environment.” Due to subtle distinctions such as

these, the conduct of domestic military operations can be extremely challenging, and in some cases,

fraught with legal or political peril.

How, then, can these same assets be used in the Homeland to support DoD missions while at the

same time complying with applicable U.S. laws and policies? In this regard, the judge advocate is

¹ See U.S. DEP’T. OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 13.d (29 Dec. 2010) (C2,

19 Mar. 2018) [hereinafter DoDD 3025.18].

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critical to the conduct of domestic operations utilizing intelligence assets and components. Judge

advocates must recognize that collecting not only domestic intelligence but also domestic

information may include collecting information on U.S. persons,² or persons not affiliated with the

DoD.³ Therefore, the oversight program rules regarding information and intelligence collection in

the United States by DoD are quite strict and more than a little complex. This is because these rules

are designed to strike a balance between the rights of U.S. Persons and the government’s legitimate

need for essential information. In so doing, protection of an individual’s Constitutional rights and

privacy remains paramount while enabling collection of authorized information by the least

intrusive means, and by restricting dissemination of this information for lawful government

purposes only.

As a result, balancing the commander’s need for information against this domestic framework of

protections can pose unique issues in the information and intelligence-gathering arena. This chapter

provides a broad overview of the rules for collection of information on U.S. persons. If you are

addressing an issue involving the collection of information in the Homeland, you may want to seek

out additional expertise to assist you in this complicated area.

Before discussing the details of collecting information or intelligence on U.S. persons and Non-

DoD Affiliated Persons, it is important to understand first that there are two distinct DoD activities

which are involved in the collection of information in the Homeland:

 The first endeavor consists of collecting data that will be processed into intelligence.⁴ These

are intelligence activities which are comprised of the collection, production and dissemination

of foreign intelligence and counterintelligence in accordance with E.O. 12333 and E.O. 13470,

as implemented by DoDD 5240.01, (policy documents governing collection, retention and

dissemination by DOD intelligence components of information that identifies U.S. Persons).

This activity is accomplished by members of the DoD Intelligence Community (DoDIC), as

defined in E.O. 12333, and amended by E.O. 13470. In simple terms these are the Title 10

intelligence specialists—J2s, G2s, A2s, etc. This activity is governed by one set of rules

referred to as Intelligence Oversight (IO). (Title 32 National Guard intelligence specialists—

though not technically members of the intelligence community—follow National Guard policies

concerning intelligence oversight.⁵)

² U.S. DEP’T OF DEF., MANUAL 5240.01, PROCEDURES GOVERNING THE CONDUCT OF DOD INTELLIGENCE ACTIVITIES

54 (8 Aug. 2016) [hereinafter DoDM 5240.01].

³ See U.S. DEP’T OF DEF., DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS

NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980) [hereinafter DoDD 5200.27]; see also U.S. DEP’T OF

ARMY, REG. 380-13, ACQUISITION AND STORAGE OF INFORMATION CONCERNING NON-AFFILIATED PERSONS AND

ORGANIZATIONS (30 Sept. 1974) [hereinafter AR 380-13].

⁴ Raw data by itself has relatively limited utility. However, when data is collected from a sensor and processed into an

intelligible form, it becomes information and gains greater utility. In other words, raw data is collected from the

operational environment. Raw data that is processed and exploited turns into information. Information that is analyzed

and undergoes production into a product turns into intelligence.⁴ See U.S. DEP’T OF ARMY, REG. 381-10, ARMY

INTELLIGENCE ACTIVITIES (3 May 2007) [hereinafter AR 381-10].

⁵ See CHIEF, NAT’L GUARD BUREAU, INST. 2000.01C, NATIONAL GUARD INTELLIGENCE ACTIVITIES (14 Aug. 2018)

[hereinafter CNGBI 2000.01C].

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 The second activity deals with the acquisition of information necessary for the conduct of

domestic military missions, for other than intelligence purposes. Those persons involved in this

activity consist of everyone else in DoD, including various force protection, investigative units

and police forces, who are not part of the DoDIC. Equally important however, is that with a

growing increase in other-than-traditional military missions such as the provision of

humanitarian aid, disaster assistance, and disaster consequence management within the United

States, the demand for information has significantly increased to ensure effective, and timely

mission accomplishment. This activity is subject to a different set of rules known as “Sensitive

Information” (SI) program rules, which are governed by DoDD 5200.27, and AR 380-13.

Therefore, commanders must direct their need for information or intelligence to the right

component—the component with the mission and authority to achieve the commander’s intent. To

do so effectively, the commander must not only determine the purpose the information or

intelligence will be used for, but also the context under which the information or intelligence will be

used.⁶ Determining the nature of the data and the right unit to gather it often requires judge

advocate input. Therefore, you must ensure that two questions are asked and answered when

considering collection in the Homeland: 1) Who is collecting the information or data? (intelligence

assets or non-intelligence assets); and 2) What is the purpose of the information or data needed? (for

intelligence or non-intelligence purposes). The analysis will then lead to the oversight rules that

govern the collection effort.

Section B of this chapter examines the proper use of DoD intelligence components during domestic

support operations. Section C examines collection of information on Non-DoD-Affiliated Persons

(NDAPs) by DoD components that are not part of the DoDIC, and are not involved in intelligence

operations. Section D addresses Title 10 Domestic Imagery activities and restrictions. Section E

briefly addresses the policies and restrictions applicable to the National Guard when collecting

information on U.S. persons during domestic operations.

B. The Role of DoD Intelligence Components in Domestic Support Operations

DoD intelligence components⁷ are governed by four primary references. The National Security Act

of 1947 establishes a comprehensive program for national security and defines the roles and

⁶ For example, a Task Force commander charged with supporting civil authorities during a natural disaster may identify

the need for domestic imagery of the ingress and egress routes to determine if the roadways are congested with the

civilian population fleeing the disaster zone, or seeking medical aid, food, and water. While intelligence surveillance

and reconnaissance (ISR) platforms and packages may afford the most effective means of acquiring situational

awareness, military commanders are prohibited from using intelligence assets for such purposes absent SecDef

authorization. In a Defense Support of Civil Authorities (DSCA) event, a limited set of ISR platforms and capabilities

have been approved for use. ISR conducted for DSCA purposes is called Incident Awareness and Assessment (IAA).

When IAA is conducted, it must still be employed consistent with Intelligence Oversight program rules, and still

requires authorization by the Commander, U.S. Northern Command (USNORTHCOM) or SecDef. The same products

may however, be available commercially or from other Federal agencies. In this example, the commander was not

seeking “intelligence.” The commander was seeking “information” to enhance situational awareness and establish a

common operating picture (COP). The value of this distinction is discussed further in this chapter.

⁷ DODM 5240.01, supra note 1, at 46 (defining the DoD intelligence components are as the NSA/CSS,

the DIA, the NGA, the NRO, the intelligence and CI elements of the Army, the Navy, the Air Force, and the Marine

Corps, the Intelligence and Counterintelligence elements of the Coast Guard, and the other offices within the DoD for

the collection of specialized national foreign intelligence through reconnaissance programs). See also, U.S. DEP’T OF

DEFENSE, DIR. 5148.13, INTELLIGENCE OVERSIGHT (26 Apr. 2017) [hereinafter DoDD 5148.13].

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missions of the intelligence community and accountability for intelligence activities. Executive

Order (E.O.) 12333, United States Intelligence Activities, lays out the goals and direction of the

national intelligence effort, and describes the roles and responsibilities of the different elements of

the U.S. intelligence community.⁸ E.O. 12333 was further amended by E.O. 13470, and in many

ways, refined to provide for a more uniform approach to conduct U.S. Government intelligence

activities by addressing the formation of the Office of the Director of National Intelligence

(“ODNI”), and specifically addressing each facet of intelligence responsibilities respective members

of the Intelligence Community (“IC”) now hold.⁹ Pursuant to paragraph 1.7.(f)(1), the DoDIC is

limited to conducting defense and defense-related foreign intelligence and counterintelligence

activities, thereby necessitating a DoD nexus for all foreign intelligence (FI) and counterintelligence

(CI) activities conducted.¹⁰ This limitation is further buttressed by paragraph 4 of DoDD 5240.01,

Procedures Governing the Conduct of DoD Intelligence Activities.

Presently, DoD Directive (DoDD) 5240.01,¹¹ DoD 5240.1-R,¹² DoDM 5240.01,¹³ and DoDD

5148.13¹⁴ implement the guidance contained in E.O. 12333, as amended, pertaining to DoD (see

Diagram 1). Further, each Service also has its own regulations and policy guidance. These

authorities establish the operational parameters and restrictions under which DoD intelligence

components may conduct intelligence activities. “Intelligence activities” are defined in DoDD

5240.01 as, “the collection, analysis, production, and dissemination of foreign intelligence and

counterintelligence pursuant to [DoDD 5143.01 and E.O. 12333].”¹⁵ Therefore DoD intelligence

activities are solely limited to the conduct of defense-related foreign intelligence (FI)¹⁶ and

counterintelligence (CI)¹⁷ activities. FI and CI are the only authorized intelligence mission sets for

the DoD.

⁸ See, Exec. Order No. 12333, 22 Fed. Reg. 59941 (Dec. 4, 1981) (as amended by Exec. Order No. 13470, July 30,

2008) [hereinafter E.O. 12333].

⁹ Exec. Order No. 13470 sec. 2 pt. 1. (July 30, 2008) [hereinafter E.O. 13470].

¹⁰ E.O. 12333, supra note 8, at para. 1.7.f.1.

¹¹ U.S. DEP’T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DoDD 5240.01].

¹² U.S. DEP’T OF DEFENSE, 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS

THAT AFFECT U.S. PERSONS (26 Apr. 2017) [hereinafter DoD 5240.1-R].

¹³ DoDM 5240.01, supra note 2.

¹⁴ DoDD 5148.13, supra note 7.

¹⁵ DoDM 5240.01, supra note 2, at 49 (defining intelligence activities as “[a]ll activities that the DoD Components

conduct pursuant to E.O. 12333.” This definition reflects a more liberal approach to the conduct of intelligence

activities than in the past.).

¹⁶ Id. at 48 (defining foreign intelligence as, “[i]nformation relating to the capabilities, intentions, or activities of

foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists.”).

¹⁷ Id. at 45 (defining counterintelligence (CI) is as, “[i]nformation gathered and activities conducted to identify,

deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted

for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or

activities.”).

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and counterintelligence (CI) activities.¹⁸ Further, all lawfully-assigned DoDIC missions must be

based on the existence of a DoD nexus, a relationship between the intelligence or information

sought and the performance of national defense responsibilities assigned to the DoD. General

authorities to conduct intelligence activities are rooted in Articles I and II of the U.S. Constitution,

Titles 5, 10, and 50 of the U.S. Code, and Presidential E.O.s assigned to the SecDef as further

delegated to Service Secretaries, military departments, and combatant commanders (“CCDRs”).

Finally, Technical Intelligence Authority (“TIA”) is based on authority bestowed by the office or

agency involved, such as the SecDef, Service Secretary, or CCDR. TIA is also derived from the

legal authority to conduct missions assigned and managed by the agency or office that is responsible

for conducting or overseeing the particular mission(s). For example, The National Security Agency

(NSA)/Central Security Service (CSS) has primary (statutory) TIA for the conduct of signals

intelligence (SIGINT).

Overall, these intelligence mission sets address the activities of international terrorists or, foreign

powers, organizations, persons, and their agents. Moreover, to the extent that DoD intelligence

components are authorized to collect FI or CI within the United States, they may do so only upon

coordination with the Federal Bureau of Investigation (FBI), which has primary responsibility for

intelligence and counterintelligence collection within the United States.¹⁹

In short, whenever DoD Intelligence Components are conducting defense-related FI or CI,

Intelligence Oversight (IO) rules apply.²⁰ These rules govern the collection, retention, and

dissemination of information concerning U.S. persons.²¹ A U.S. person includes any

unincorporated associations and U.S. corporations (e.g., “Joe’s Diner”).²² Special emphasis is given

to the protection of the Constitutional rights and privacy of U.S. persons, so the IO rules generally

prohibit the acquisition of information concerning the domestic activities²³ of any U.S. Person.

Questionable intelligence activities (QIA) that run afoul of these and other restrictions must be

reported in accordance with DoDD 5148.13.²⁴

¹⁸ E.O. 12333, supra note 8, at paras. 1.7.f, 1.10.

¹⁹ Id. para 1.14(a); Agreement Governing the Conduct of Defense Department Counterintelligence Activities in

Conjunction with the Federal Bureau of Investigation (5 Apr. 1979); and Supplement to 1979 FBI/DoD Memorandum

of Understanding: Coordination of Counterintelligence Matters Between the FBI and DoD (20 Jun. 1996).

²⁰ DoDD 5240.01, supra note 11, at para 2; DoDM 5240.01, supra note 2, at para. 1.2(a).

²¹ Judge advocates should consider reading these authorities before advising a commander on the collection of

information in a domestic support operation. Further, DoDD 5240.01 and DoD 5240.1-R should be consulted when

advising members of the intelligence community or if a questionable intelligence activity is identified.

“United States Person” is a term of art for the Intelligence Oversight program which consists of a United States

citizen, an alien known by the intelligence agency concerned to be a permanent resident alien, an unincorporated

association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated

in the United States, except for a corporation directed and controlled by a foreign government or governments. E.O.

12333, supra note 8, para. 3.4(i). A person or organization in the United States is presumed to be a U.S. Person, unless

specific information to the contrary is obtained. Conversely, a person or organization outside the United States, or

whose location is not known to be in the United States, is presumed to be a non-U.S. Person, unless specific information

to the contrary is obtained. DoDM 5240.01, supra note 2, at 54.

²³ The term “Domestic activities” refers to activities that take place within the United States that do not involve a

significant connection with a foreign power, organization, or person. DoDM 5240.01, supra note 2, at 48.

²⁴ DoDD 5148.13, supra note 7, at para. 4.1(a) (stating that “DoD personnel must identify any QIA or S/HSM to their

chain of command or supervision immediately. If it is not practical to report a QIA or S/HSM to the chain of command

or supervision, reports may be made to the DoD Component legal counsel or IG; the GC DoD; the DoD SIOO; the Joint

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For many members of the DoD who have been deployed OCONUS, these CONUS restrictions may

be somewhat challenging considering the broad range of intelligence and information support

available through DoDIC channels overseas. Upon returning to assignments and operations within

the United States, many may be unaware of the restrictions placed upon DoD while operating

within the Homeland; this is especially true when considering collection activities of any sort.

While oversight rules are the same whether used OCONUS or CONUS, impacts and effects, and

more importantly, applications, are quite different between the two locations. This difference is so

because intelligence, information, and data collection conducted overseas are foreign by nature and

definition. On the other hand, all such activities conducted within the Homeland and its territories,

are, by definition, “domestic.” Therefore, unless otherwise directed by SecDef, such activities

conducted within the Homeland do not normally fall within the authorized foreign intelligence and

counterintelligence mission sets. Further, since the purpose of DoD intelligence and information

collection oversight rules is to protect the Constitutional and privacy rights of U.S. and Non-DoD

Affiliated Persons, the likelihood of inadvertently (or intentionally) collecting information on such

persons in violation of these rules within the U.S. is significantly higher than would be the case

overseas.²⁵ This likelihood is due to the relatively few U.S. Persons or U.S. Citizens who are Non-

DoD Affiliated Persons that will normally be encountered overseas, as compared to the

preponderance to be found stateside. For these reasons, procedural application and enforcement of

these rules domestically is much more stringent.

The key regulatory authority for the IO program is DoDM 5240.01. This manual is divided into ten

separate procedures that govern the collection, retention, and dissemination of intelligence.

Collection of information on U.S. Persons must be necessary to the functions (FI or CI) of the DoD

intelligence component concerned.²⁶ Procedure 1 establishes the scope and administrative

provisions for implementing DoDM 5240.01. Procedures 2 through 4 provide the sole authority by

which DoD components may collect, retain, and disseminate information concerning U.S. Persons.

Procedures 5 through 10 set forth the applicable guidance for the use of certain collection

techniques to obtain information for foreign intelligence and counterintelligence purposes.

Additionally, DoD 5240.1-R contains procedures 11 through 13 which govern other aspects of DoD

intelligence activities, including classified contracting, assistance to law enforcement authorities,

and prohibitions on experimentation on human subjects for intelligence purposes. Finally, DoDD

5148.13 contains Procedures 14 and 15 governing employee conduct, questionable intelligence

activities (QIAs), and significant or highly sensitive matters (S/HSMs), respectively. See Diagram

2 for an overview of these procedures.

In addition to the procedures themselves, the Defense Intelligence Agency (DIA) has published an

instructive manual entitled The Intelligence Law Handbook (September 1995), to provide additional

interpretive guidance to assist legal advisers, intelligence oversight officials, and operators in

applying DoD 5240.1-R.²⁷ In the absence of any foreign nexus, DoDICs generally perform non-

Staff IG or intelligence oversight officer; the Legal Counsel to the CJCS; the IG DoD; or the Intelligence Community

IG.”).

²⁵ E.O. 13470, supra note 9, at pt. 1 para. 1.1(b); DoDD 5240.01, supra note 11, at para. 4.1; DoDM 5240.01, supra

note 2, at para. 1.2.b.2.

²⁶ DoDM 5240.01, supra note 2, at sec. 3.2.

²⁷ The DIA Handbook was published well before the new DoDM 5240.01 was written, and is therefore based solely on

DoD 5240.1-R. Although it is an outstanding resource, it is somewhat dated. Judge advocates are therefore cautioned to

be aware of the changes that occurred moving from the latter Regulation to the new Manual. However, the content of

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intelligence activities. A non-intelligence activity would be any activity that is conducted by or

with a DoDIC asset or capability, but which does not involve FI or CI; for example, the collection,

retention, production, and dissemination of maps, terrain analysis, and damage assessments for a

DSCA mission. When intelligence assets fly planned or disaster support missions, such as post-

hurricane operations, they are termed “incident awareness and assessment” (IAA) missions. [see

Section D below for a more complete discussion of Domestic Imagery (DI) and IAA missions.]

When Title 10 DoDIC personnel, assets or capabilities are needed for a non-intelligence activity,

specific authorization from the SecDef is required for both the mission and use of the DoDIC

capability or asset.²⁸ Depending on the mission undertaken, and whether intelligence platforms,

packages personnel or capabilities are used, IO rules may or may not apply to DoD non-intelligence

activities. For this reason, requests for SecDef authorization must be sure to include whether

intelligence capabilities are sought and what additional restrictions shall be placed upon the assets

or capabilities used in the domestic support operation.

Information Handling and the Role of DoD Non-Intelligence Components

DoD organizations that are not part of the DoDIC must also comply with strict procedural

restrictions. These restrictions relate to the acquisition of information concerning the activities of

persons and organizations not affiliated with DoD. This type of information is needed every day for

force protection missions, to include force protection in domestic support operations. Within the

DoD, the Military Criminal Investigative Organizations (MCIOs) have primary responsibility for

gathering and disseminating information about the domestic activities of U.S. persons that threaten

DoD personnel or property.

DoD units, other than the intelligence components, may only acquire information concerning the

activities of persons and organizations not affiliated with the DoD only in the limited circumstances

authorized by DoD 5200.27, Acquisition of Information Concerning Persons and Organizations Not

Affiliated with the Department of Defense.²⁹ Unlike the Intelligence Oversight Program, programs

affiliated with DoDD 5200.27 are premised on the concept of collection by exception. By policy,

DoD may only collect, report, process, or store information on individuals or organizations

affiliated with the Department of Defense. To collect information on others, the information must

be essential to the accomplishment of a specific DoD mission, and a clear DoD nexus must exist

which permits the use of an exception. Non-DoD Affiliated Person Information (NDAPI) is

information (including data and imagery/likenesses) on identified or identifiable NDAPs, that is

acquired for non-intelligence purposes by DoD elements or organizations not part of the DoDIC nor

performing intelligence tasks.³⁰

the explanatory information remains quite useful. See also Kevin W. Kapitan, An Introduction to Intelligence Oversight

and Sensitive Information: The Department of Defense Rules for Protecting Americans’ Information and Privacy, THE

ARMY LAW. 3, 3-42 (Apr. 2013) (providing more in-depth explanations and practice tips based on pre-DoDM 5240.01

policies).

²⁸ Deputy Secretary of Defense Policy Memorandum 15-002 should be consulted before use of any Unmanned Aircraft

Systems (UASs).

²⁹ U.S. DEP’T. OF DEF., DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS NOT

AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980) [hereinafter DoDD 5200.27].

³⁰ Id. at para. 3.1.

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While the term, “collection” is not defined by DoDD 5200.27, it is defined by AR 380-13 as “[t]he

acquisition of information in any manner, including, direct observation, liaison or solicitation from

official, unofficial or public services.” ³¹ Also, the term “information” is not defined by DoDD

5200.27 nor AR 380-13. However, current custom and practice in this regard at U.S. Northern

Command (USNORTHCOM), Headquarters, Department of the Army (HQDA), and OSD is

consistent with IO Program rules. IO Program rules protect any information, data, personally

identifying information (PII), or imagery³² of the individual or individuals that identifies or could

reasonably lead to the identification of an NDAP. In this regard, the Privacy Act and related

analogous legal parameters provide the requisite standard.

So, what exactly is an NDAP? An NDAP is anyone who has no affiliation whatsoever with the

DoD. Thus, the NDAP classification is not exclusive to U.S. citizens in the Homeland. Basically,

an NDAP has no relationship, professional, personal, or otherwise, with the DoD or the Armed

Services.

The basic DoDD 5200.27 analysis may be useful to judge advocates unfamiliar with this area of law

and policy. The questions to be asked:

1. Has a collection, gathering or acquisition of information occurred, and by whom?

2. Who/what is the target of collection? (DoD or NDAP?)

3. Is the collection authorized or sanctioned?

4. Is the NDAP’s information essential to the accomplishment of specific DoD missions?

5. Is there a DoD nexus, or a relationship between the info, the NDAP collected on, and a

reasonable and articulable threat or impact upon the DoD, its missions, personnel or

resources?

6. Is there an applicable exception permitting collection?

DoDD 5200.27 provides limitations on the types of information that may be collected, processed,

stored, and disseminated about the activities of persons and organizations not affiliated with DoD.³³

As a result, there are only three possible mission exceptions that will permit the acquisition of

NDAP information.³⁴ These mission exceptions consist of the acquisition of information essential

to accomplish the following DoD missions: 1) protection of DoD functions and property; 2)

personnel security; and 3) civil disturbance operations (CDOs). If the collection on an identified or

³¹ AR 380-13, supra note 3, at 7.

³² As of the publication of this Handbook, debate continues at the Service and OSD levels as to whether unidentified

imagery or likenesses of persons constitutes a form of PII. DODD 5400.11, The DoD Privacy Program, defines PII as,

“Information used to distinguish or trace an individual’s identity, such as name, social security number, date and place

of birth, mother’s maiden name, biometric records, home phone numbers, other demographic, personnel, medical, and

financial information. PII includes any information that is linked or linkable to a specified individual, alone, or when

combined with other personal or identifying information. For purposes of this issuance, the term PII also includes

personal information and information in identifiable form.”

³³ See also AR 380-13, supra note 3 (implementing the original and early versions of DoDD 5200.27).

³⁴ DoDD 5200.27, supra note 3, at sec. 4.

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identifiable NDAP does not fall within one of these exceptions, it is not authorized under DoDD

5200.27 nor AR 380-13.

The most commonly used exception in DoDD 5200.27 falls under circumstances protecting DoD

functions and property. Initially this seems like a broad exception that would allow for the

collection of information on U.S. Persons in multiple situations. However, DoDD 5200.27 further

defines an activity that threatens defense personnel, activities, and installations as “direct threats” to

DoD personnel in connection with their official duties.³⁵ Understanding the difference is crucial.

For instance, it is not uncommon for protests to occur outside the main gate of an installation.

Under the broad brush of “protecting” DoD property, it might seem appropriate to report the name

of the protesting group to installation personnel. Yet, further analysis is required to determine

whether the group poses a direct threat to the installation. If the group is quietly and calmly

protesting, it is unlikely that they pose a direct threat. Therefore, information should not be

collected on them by name.³⁶

Judge advocates must also be aware of a series of restrictions that are imposed by both DoDD

5200.27 and AR 380-13, which are otherwise absent in intelligence oversight programs.

Specifically, there are no exceptions available for publicly available information, which permit

collection or acquisition of information on NDAPs because the information is readily available from

public sources. Similarly, there is no stated exception for information provided by NDAP consent.

Further, unlike the new IO rules,³⁷ there is no DSCA exception or exclusion. However, DoD may

acquire information on NDAPs if that information consists of contact lists of Federal, State, and

local officials with responsibilities related to the control of Civil Disturbances; e.g., public officials’

emergency contact info or business cards,³⁸ and information on geospatial physical data relating to

vital public or private installations, facilities, highways, and utilities necessary to carry out an

assigned DoD mission where geographical reference points or staging areas are necessary.³⁹

Judge advocates should also be mindful of historical problem areas that have led to specific

prohibitions under DoDD 5200.27.⁴⁰ The Directive specifically prohibits acquisition of

information about a person or organization solely because they protest Government policy, or

support racial interests or civil rights.⁴¹ The Directive also prohibits, covert or deceptive

³⁵ The challenge of understanding exactly what constitutes a “threat” versus a “direct threat” is further complicated by

not only the lack of a definition of the term “direct threat” in DoDD 5200.27, but also the numerous definitions of the

term “threat” found in various DoD polices. See, e.g, U.S. DEP’T. OF DEF., INST. 5505.17, COLLECTION,

MAINTENANCE, USE, AND DISSEMINATION OF PERSONALLY IDENTIFIABLE INFORMATION AND LAW ENFORCEMENT

INFORMATION BY DOD LAW ENFORCEMENT ACTIVITIES 6 (19 Dec. 2012) (C1, 29 Nov. 2016) [hereinafter DoDI

5505.17] and U.S. DEP’T. OF DEF., INST. 5525.18, LAW ENFORCEMENT CRIMINAL INTELLIGENCE IN DOD (18 Oct. 2013)

(C1, 29 June 2018) [hereinafter DoDI 5525.18].

³⁶ Note that while it would be counter to DoD 5200.27 to collect information on the activities of the group by stating

“Group Against the Military (the name of the group) is protesting outside the front gate,” one could report all the

necessary information without naming the group and therefore collecting on its activities. For example, one could

report that “a group not in support of the military is protesting outside the front gate” without losing relevant

information and without violating the DoD policy.

³⁷ See DODM 5240.01, supra note 2, at para. 3.1.a.3.b.

³⁸ DoDD 5200.27, supra note 29, at para. 6.2.1.

³⁹ Id. at para. 6.

⁴⁰ Id. at para. 5.

⁴¹ Id. at para. 5.1.

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surveillance of civilian organizations without specific authorization from the Service Secretary or

the Secretary’s designee.⁴² Finally, the Directive does not permit assignment of Army military or

civilian personnel to attend an organization’s public or private meetings, demonstrations, or other

similar activities held off-post, without approval by the Service Secretary or the Secretary’s

designee.⁴³

Similar caution should be exercised when considering such activities in the context of the cyber

domain. Both DoDD 5200.27 and AR 380-13 impose prohibitions on the maintenance of

“computerized data banks,” similarly indicating that none “shall be maintained relating to

individuals or organizations not affiliated with the Department of Defense, unless authorized

.”⁴⁴ In like fashion, infiltration or surveillance of chat room groups, or other forms of social, by

failing to disclose one’s affiliation with the DoD, or other similar acts, cannot occur without proper

authorization.⁴⁵

D. Title 10 Domestic Imagery Activities and Restrictions

1. Domestic Operations

Whenever the DoDIC is providing support in the Homeland, special care must be taken to comply

with IO Program Rules and the Posse Comitatus Act (PCA). Unless otherwise directed by the

President or SecDef, anytime an aspect of the DoDIC is used in an information gathering capacity,

even for non-intelligence purposes, IO rules apply whether the usage is for DSCA or Homeland

Defense (HD).⁴⁶ These rules are complemented by Domestic Imagery (DI) program rules, which

are quite similar since DI rules are derived from IO program rules. Understanding the interplay of

these procedures and restrictions is critical when intelligence assets are used for non-intelligence

purposes.

Whether DoDIC Components (DoDICC) are conducting an intelligence activity or a non-

intelligence activity, certain rules universally apply to data and imagery collected from overhead

and airborne sensors. Geospatial data, commercial imagery, and data or domestic imagery collected

and processed by the National Geospatial-Intelligence Agency (NGA) is subject to specific

procedures covering the request for geospatial data or imagery and its use. Judge advocates should

ensure that they are familiar with NGA policy on requests for geospatial data or imagery and its

authorized use. Additionally, DoDI 3115.15, Geospatial Intelligence provides specific guidance on

mandatory security classification review of all data collected by airborne sensor platforms to

determine whether it can be disseminated.⁴⁷

⁴² Id. at paras. 5.3, 5.4., and 5.5.

⁴³ Id. at para. 5.6.

⁴⁴ DoDD 5200.27, supra note 29, at para. 5.7; AR 380-13, supra note 3, at para. 9.g.

⁴⁵ Activities like failure to disclose one’s DoD affiliation in an attempt to infiltrate a chat group is under scrutiny at the

HQDA and OSD levels in an effort to develop effective policy to ensure that NDAP Constitutional and privacy rights

are adequately protected, while at the same time fulfilling DoD mission and force protection requirements.

⁴⁶ CHAIRMAN, JOINT CHIEFS OF STAFF, STANDING DSCA EXECUTE ORDER (EXORD) paras. 3.C.4.J.1., 3.I.10.A. (5 June

2018) [hereinafter DSCA EXORD].

⁴⁷ See generally U.S. DEP’T. OF DEF., INST. 3115.15, GEOSPATIAL INTELLIGENCE (6 Dec. 2011) (C1, 10 May 2018)

[hereinafter DoDI 3115.15].

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In providing guidance to commanders on authorized use of DoDIC capabilities and assets, and the

products derived from the data collected, it is important for judge advocates to understand the

various platforms, their sensors, and how they operate. Whether an activity is subject to IO is

determined by the “5 P’s”: process, people, pipelines, platforms, and purpose. Issues to consider

include: whether the sensor is fixed or moveable; whether the platform with the sensor can have its

course altered during a mission; how is the data collected, transmitted, and processed; and the

specific purpose of its mission. For example, an Unmanned Aircraft System (UAS) may transmit

data by live feed only to a line-of-sight receiver, or by satellite to a remote location.

In this example, evidence of a criminal act “incidentally” collected during an authorized mission

using DoDIC capabilities should be forwarded to the appropriate civilian law enforcement agency

(CLEA). However, altering the course of an airborne sensor (such as an UAS) from an approved

collection track to loiter over suspected criminal activities would no longer be incidental collection.

Thus, unless specifically authorized in advance, such an act could result in a PCA violation.⁴⁸

Certain data contains classified metadata which may need to be stripped at a remote site before it

can be disseminated in an unclassified manner. Different platforms require different operational

support, which requires preposition planning as well as intended use consideration.

A domestic support operation using DoDIC capabilities, which includes support to CLEAs,⁴⁹

requires a separate mission review and authorization by SecDef. Those planning the mission should

consider whether the date is to be exclusively transmitted to the CLEA, and whether the CLEA

personnel are properly located to control or direct use of the assets. To determine whether the

collection platform and data transmission are wholly owned, operated, and received by a DoDIC, a

DoD non-IC, or a combination of both, judge advocates will need to carefully consider the

applicable rules and operational restrictions for the mission.

2. Domestic Imagery and Intelligence Oversight Programs

There are complexities inherent in the domestic operating environment (OE) with regard to the use

of intelligence assets. Any use of intelligence capabilities for purposes other than “traditional

intelligence” uses (support of combat operations) must be approved by the SecDef. “Traditional

intelligence activities” include the collection, retention and dissemination of defense-related foreign

Intelligence (D-FI) and counterintelligence (D-CI) products by the DoDIC. The exception to permit

use of intelligence assets, personnel and capabilities for other than traditional intelligence purposes

first became prevalent in the DSCA context.⁵⁰ In an effort “to save lives, prevent human suffering,

or mitigate great property damage within the United States . . . ,” SecDef permitted the use of DoD

intelligence assets for other than traditional intelligence activities.⁵¹ In so doing, DI capabilities

were among the first to be considered for such uses.⁵² However, immediate challenges followed

these decisions due to the complexities involved in employing DI assets in the Homeland.

⁴⁸ U.S. DEP’T. OF DEF., INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES GEOSPATIAL

INTELLIGENCE (26 FEB. 2013) (hereinafter DoDI 3025.21]; DODD 3025.18, supra note 1.

⁴⁹ DoD 5240.1-R, supra note 12, at proc. 12.

⁵⁰ DSCA EXORD, supra note 46, at para. 4.D.2.

⁵¹ Id. at paras. 10.L.2., 4.D.2.

⁵² Id. at para 4.D.2.

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There are two core regulatory authorities that provide structure and procedure with regard to DI:

National Geospatial Intelligence Agency, National System for Geospatial Intelligence Functional

Manager for Foreign Affairs 1806 (NSGM FA 1806)⁵³ and related series of policies; and, when

operating in support of USNORTHCOM, or within the USNORTHCOM area of operations (AO),

North American Aerospace Defense Command/U.S. Northern Command Instruction 14-3 (NNCI

14-3).⁵⁴ These policies are straightforward, but somewhat complicated procedurally. The

complications become exacerbated due to the necessity to include IO program rules into the mix.

Together, the interplay of all these rules may be summarized by the following:

DI captured in the Homeland, and/or processed, exploited, analyzed or disseminated

by any component or element of the DoDIC must comply with IO program

restrictions, unless otherwise directed by the President, SecDef or his designee; this

compliance is certified by executing a Proper Use Memorandum (PUM).

The PUM is an integral part of the DI mission process, arguably as equally important as the

platform and packages used to capture imagery. A PUM is a memorandum submitted by an

organization’s Certifying Government Official and reviewed by its legal advisor.⁵⁵ The Imagery

user organization will submit this PUM to NORAD and USNORTHCOM Collection Management

(N-NC/J23M) for approval “that defines their requirements, intended use, and contains a proper use

statement which acknowledges their awareness of the legal and policy restrictions regarding

domestic imagery.”⁵⁶ What a PUM is not, is an authorization to collect DI. However, a PUM will

specify the authority to collect imagery, the location, intended use, analysis or exploitation of the

imagery, retention, security and declassification (DCLAS) review, and authorized recipients of the

DI captured. The core purpose of the PUM is to certify compliance with IO program rules by

providing a statement of compliance by the Certifying Intelligence Official. The PUM also contains

a legal opinion as to whether compliance is certifiable and legally sufficient which helps to ensure

that the DI to be collected will be used for proper and lawful purposes consistent with law and

policy.⁵⁷

3. Incident Awareness and Assessment versus Intelligence Surveillance and Reconnaissance

DI and related data are most frequently captured during the course of DSCA missions. Since, by

definition, DSCA only occurs within the U.S. and its territories,⁵⁸ DoD personnel must carefully

review and adhere to IO rules, DoDD 5200.27, Federal laws, DoD policy, and the U.S. Constitution.

⁵³ NAT’L GEOSPATIAL INTELLIGENCE AGENCY, NAT’L SYS. FOR GEOSPATIAL INTELLIGENCE FUNCTIONAL MANAGER

FOR FOREIGN AFFAIRS 1806, DOMESTIC IMAGERY (Mar. 2009), https://nsarchive2.gwu.edu/NSAEBB/NSAEBB527-

Using-overhead-imagery-to-track-domestic-US-targets/documents/EBB-Doc17.pdf [hereinafter NSGM FA 1806].

⁵⁴ N. AM. AEROSPACE DEF. COMMAND/U.S. N. COMMAND, INS’T 14-3, DOMESTIC IMAGERY (29 July 2014) [hereinafter

NNCI 14-3]. The instructions for the North American Aerospace Defense Command (NORAD) and U.S. Northern

Command (USNORTHCOM) are on the intranet for those commands. However, NNCI 14-3 is also on file with the

Center for Law and Military Operations (CLAMO).

⁵⁵ NNCI 14-3, supra note 54, at 20.

⁵⁶ Id.

⁵⁷ Id.

⁵⁸ DoDD 3025.18, supra note 1, at para. 2.c.; see also U.S. DEP’T. OF DEF., DIR. 5100.46, FOREIGN DISASTER RELIEF (6

July 2012) [hereinafter DoDD 5100.46]; and JOINT CHIEFS OF STAFF, JOINT PUB. 3-29, FOREIGN HUMANITARIAN

ASSISTANCE (3 Jan. 2014) [hereinafter JP 3-29].

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DoD (Title 10) forces involved in DSCA operations may conduct incident awareness and

assessment (IAA). IAA is similar to intelligence, surveillance, and reconnaissance (ISR) operations

used by DoD forces in combat. However, the differences are material as expressed through the next

several paragraphs.

ISR is “an integrated operations and intelligence activity that synchronizes and integrates the

planning and operation of sensors, assets, and processing, exploitation, and dissemination systems

in direct support of current and future operations.”⁵⁹ Therefore, ISR is an integrated intelligence

and operations function that is conducted by using intelligence assets, systems, resources, or

capabilities consisting of platforms and packages.

Incident Awareness and Assessment (IAA) is a subset of ISR because it constitutes the domestic use

of ISR assets and capabilities for DSCA purposes. Based on the same concepts as ISR, IAA differs

in its geographic scope, governing laws, and regulations. Further, IAA is a term of art used only

during domestic operations. Because IAA only occurs domestically, it is also a subset of Domestic

Imagery (DI), and subject to all DI rules and policies. IAA is the DoD’s term for ISR-type

operations conducted during DSCA operations in the Homeland. So, when you read “IAA,” think

ISR in CONUS, employed only for DSCA purposes. National ISR resources are limited and

allocated among the combatant commands. In like fashion, IAA assets are limited as well. For this

reason, IAA assets should only be used when necessary. Finally, because IAA is a is only

employed to support DSCA, and is not used in Homeland Defense (HD) operations, when

intelligence activities are conducted during HD, those activities are considered to be ISR, not IAA.

For this reason, ISR conducted within the United States is strictly regulated and requires specific

SecDef approval on a case-by-case basis.

Since, by definition, IAA uses intelligence assets, platforms, capabilities and databases,⁶⁰ it is

subject to IO restrictions, and any additional limitations imposed by SecDef or the Combatant

Commander. In the instances when there is no intelligence interface, then IAA does not exist.

Instead, there is only DI capture subject to Sensitive Information rules, the Privacy Act, Civil

Liberties considerations, and the Fourth Amendment. ISR, IAA, and DI are different tools for

different missions.

Because IAA and its relationship to ISR can be confusing, the following formulaic explanations and

bullet points are offered:

Intelligence, Surveillance, & Reconnaissance (ISR) = Collection of foreign intelligence (FI) +

counterintelligence (CI) information/imagery

 ISR is conducted outside the U.S. and its territories, or inside the U.S. in support of

Homeland Defense operations;

 Any domestic use of ISR requires SecDef approval of each mission and all assets used;

 Any DI missions including ISR require a Proper Use Memorandum (PUM) approved by

Higher Headquarters (HHQ);

⁵⁹ U.S. DEP’T OF DEF., DOD DICTIONARY OF MIL. AND ASSOCIATED TERMS 116 ( Apr. 2018) [hereinafter DoD Terms].

⁶⁰ NNCI 14-3, supra note 54, at 19.

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 All domestic ISR missions are subject to Intelligence Oversight (IO) limitations on

collection of information on U.S. Persons.⁶¹

Domestic Imagery (DI) = Collection of Imagery within the U.S. and its territories that may or may

not involve use of DoDICC:

 A Domestic Imagery Legal Review (DILR) is required if no DoDICC are used;

 All DI is subject to limitations on collection of information on persons not affiliated with

DoD (NDAPs), the Privacy Act, Civil Liberties considerations, and Fourth Amendment

rules. ⁶²

Incident Awareness and Assessment (IAA) = DI using DoDICC for DSCA missions:

 To determine applicability of IO Program rule sets, use the “5 Ps” test: People, Pipes

(uplink, downlink), Process, Platforms, and Purpose;

 All IAA missions require SecDef approval;⁶³

 All IAA missions require a Proper Use Memorandum (PUM) approved by HHQ;⁶⁴

 All IAA missions are subject to IO limitations on collection of information on U.S.

Persons.⁶⁵

4. Domestic Imagery and Sensitive Information Programs (DoDD 5200.27 and AR 380-13)

Consider this scenario:

Your operations center is full of people passing reports and DI around various work

stations. Some individuals are intelligence technicians and analysts, some are

operations personnel, and others are DoD law enforcement. All personnel have been

mobilized under the DSCA EXORD. The intelligence personnel are using their

technical expertise to assist in the interpretation of DI captured in a disaster zone,

and they are doing so in non-intelligence capacities for other than traditional

intelligence purposes.

Which Oversight Rules will apply, and to whom and with respect to DI?

If DI is being captured, processed, exploited and disseminated by the DoD for non-intelligence

purposes, and the activities are conducted by personnel not within the command and control of an

intelligence organization or unit, then DoDD 5200.27 and all related regulatory authorities apply.

⁶¹ E.O. 12333, supra note 8.

⁶² DoDD 5200.27, supra note 9.

⁶³ DSCA EXORD, supra note 45, at paras. 3.C.4.J.1, 3.B.5., and 3.I.10.C.

⁶⁴ NNCI 14-3, supra note 54, at para. 2.5.

⁶⁵ DSCA EXORD, supra note 45, at paras. 3.C.4.J.1., and 3.I.10.A.

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Therefore, non-DoDIC produced DI, or DI produced for non-intelligence purposes, is always

subject to DoDD 5200.27 and AR 380-13.

Another real-world example of this situation may be illustrative:

During DSCA operations after a natural catastrophe, ingress and egress routes to

establish lines of communication are critical to relief efforts. The Joint Operating

Area (JOA) commander, an active component officer, desires to get an aerial view of

the routes. To do so, the commander wants to use rotary wing platforms from Title

10 assets. Rotary wing assets available with the National Guard are another

alternative. The Chief of Staff and the Operations Officer are available to advise the

commander. However, they are not intelligence personnel. Once airborne, the JOA

commander wants to use a U.S. Government smartphone to take photographs of

possible routes and of the general area for purposes of situational awareness and

damage assessment. The commander turns to you and asks your opinion. What do

you say?

As long as the photographs are not used for intelligence purposes (FI or CI), and no intelligence

assets, personnel or databases are used to process any images or reports, only DoDD 5200.27 and

AR 380-13 will come into play. However, if the DSCA mission is being conducted in support of, or

under direction by, USNORTHCOM, a Domestic Imagery Legal Review (DILR) will be required to

be accomplished before the mission is flown.⁶⁶

Specifically, a DILR is a memorandum submitted by an organization’s Certifying Government

Official and reviewed by its legal advisor for proper use of domestic imagery collection that does

not include use of DOD intelligence component capabilities. The imagery user organization should

submit the DILR to NORAD and USNORTHCOM Collection Management (N-NC/J23M) for

approval that defines their requirements, the intended use of the imagery, and contains a proper use

statement which acknowledges awareness of the legal and policy restrictions regarding domestic

imagery.⁶⁷ In so doing, DILRs certify compliance with basic DI rules IAW DoDD 5200.27, and

other pertinent regulatory authority. Recall also that a DILR does not constitute authority to collect

domestic imagery; there it should specify what the authority is to collect the imagery, the location

of the imagery and its intended use, analysis or exploitation of the imagery, retention of the

imagery, security and declassification review of the imagery (if required), authorized recipients of

the imagery, and any further restrictions on dissemination of the imagery, and it will certify

compliance with legal and policy requirements.⁶⁸ Whenever possible, the DILR should state

whether the imagery will be used in briefings or publications and identify the likely audiences.⁶⁹

The proper completion and filing of a DILR is necessary to create accurate and timely audit trails

ensuring the DI captured and its dissemination does not violate DODD 5200.27 or AR 380-13,

while conforming to a proper use statement, which acknowledges awareness of the legal and policy

restrictions regarding capture of the domestic imagery.

⁶⁶ NNCI 14-3, supra note 54, at paras. 2.5, 2.5.3, 2.6 -2.8, 2.11, 3.1-3.3, and Attachment 4.

⁶⁷ Id. at Attachment 1.

⁶⁸ Id. at para. 2.5.3.

⁶⁹ Id. at para. 2.6.

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5. Domestic Imagery Summary

While DI rules, regulations and procedures may seem complex, and at times, counterintuitive, they

are formulated to ensure that the maximum protection of privacy and Constitutional rights is

afforded to U.S. Persons and NDAPs during the conduct of domestic imagery capture missions

within the United States and its territories. Here are some notes to try to keep it all straight:

Any time any form of air or space-borne imagery is captured within the United States, its territories

or protectorates, the imagery and/or data is considered Domestic Imagery (DI), and certain pertinent

program rules will apply. Depending on who is conducting the DI capture, how it is collected,

processed, exploited, analyzed or disseminated and for what purpose, will indicate which oversight

program(s) and legal restrictions must be followed. When DoDIC resources are involved in the DI

production process, Intelligence Oversight rules will apply. If the DI capture does not involve the

DoDIC, then Sensitive Information program rules apply.

As a general rule, whenever members of the DoD are involved in the collection of intelligence for

intelligence purposes that could affect the privacy or Constitutional rights of U.S. Persons,

Intelligence Oversight rules apply. Whenever members of the DoD are involved in the acquisition

of information for non-intelligence purposes that could affect the privacy or Constitutional rights of

NDAPs (for non-intelligence purposes), Sensitive Information Program rules (DoDD 5200.27 and

AR 380-13) will apply. Regardless of situation, unless otherwise authorized by law, whenever a

DoD action involves collection of intelligence, one of the programs will apply.⁷⁰

E. The National Guard

The National Guard presents a different set of challenges for the judge advocate as the NG’s

mission regularly focuses on domestic threats or providing situational awareness. Notwithstanding,

the National Guard does not generally conduct domestic intelligence operations. Primarily,

domestic intelligence involving U.S. persons is a law enforcement matter and is the responsibly of

State/local law enforcement and the FBI. The Joint Force Headquarters at the State (JFHQ-State)

will have an Intelligence officer (J2) that is responsible for coordinating intelligence requirements

for intelligence preparation of the environment (IPE) in support of State and Federal missions. The

J2 serves as the State’s executive agent for foreign threat information sharing between the local,

State, and the national levels to ensure situational awareness and a common operating picture

(COP). The J2 also interprets, develops, and implements intelligence and security guidance and

policy for the JFHQ-State. The National Guard judge advocate must work in conjunction with the

J2, and the Inspector General for Intelligence Oversight (IG-IO) in reviewing all intelligence plans,

proposals and concepts, to include Proper Use Memoranda (PUMs - the use of which is explained

below), for legality and propriety. The State Provost Marshal (PM) also plays a vital role in

developing the situational picture by being the lead liaison to the civilian law enforcement

community. Thus in this area, NG judge advocates need to determine four facts: 1) the status of the

⁷⁰ Conflict has arisen between the new DoDM 5240.01 and the CJCS 2013 Standing DSCA EXORD. The new manual

has created an exclusion for DSCA operations. Specifically, it states that DoDM 5240.01 is inapplicable to such

activities because DoDIC resources and personnel used during a DSCA operation are not being used for intelligence

purposes. (See Section 3, paragraph 3.1.a.(3)(b).) However, the CJCS 2018 Standing DSCA EXORD consistently

orders that Intelligence Oversight program rules are applicable to all IAA activities. (see, e.g., paragraphs 3.A.7., and

3.l.).

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person doing the collecting; 2) whether that person is operating as part of an intelligence activity; 3)

how the information is being collected; and, 4) the purpose behind the collection.

Status: State Active Duty, Title 32 or Title 10

National Guard personnel can serve in three statuses: State Active Duty (SAD), Title 32, or Title 10,

as explained in detail in Chapter 3. A Soldier’s status has a direct impact on the authorities at issue

regarding the collection of information on a U.S. Person. Therefore, this determination must be

made first.

Members of the National Guard perform their normal “drills” and “annual training” under Section

502(a) of Title 32.71 When an emergency or disaster occurs within a State, the State’s National

Guard may be called upon to provide civil support (National Guard Civil Support, NGCS; not to be

confused with DSCA. Because the disaster or emergency is first the State’s responsibility, versus

that of the Federal Government, the Governor may not initially call up the National Guard in their

T-32 status without the approval of SecDef.⁷² Instead, the State’s Governor or The Adjutant

General (TAG) may call up members of the National Guard to provide civil support by placing

them in State Active Duty (SAD) status. With that said, there is another option under Title 32.

Pursuant to Section 502(f) of Title 32, the National Guard may perform “additional training other

duty” for their Federal mission or provide “operational support” as directed by POTUS or SecDef

but with the concurrence of the State’s Governor.⁷³ In this status, and subject to the proper

authorities, the National Guard may be called upon to support a Federal DSCA mission.⁷⁴ The

State’s Governor retains command and control authority. National Guard status under Section

502(f) should not be improperly referred to using the blanket term “Title 32 status” because such a

reference is misleading and often leads to confusion. Instead, the proper sections of Title 32 should

be used. As noted above, status under Section 502(a) is materially different from status under

Section 502(f) in both purpose and approval authority.

Finally, the National Guard may be called into the service of the United States under Title 10 of the

United States Code. In this instance, National Guard personnel fall under Federal command and

control. As stated previously, USNORTHCOM has separate IO rules and processes in place that

must be considered for Title 10 missions.

32 U.S.C. § 502(a) (2012) (“(a) under regulations to be prescribed by the Secretary of the Army or the Secretary of

the Air Force, as the case may be, each company, battery, squadron, and detachment of the National guard, unless

excused by the Secretary concerned, shall (1) assemble for drill and instruction, including indoor target practice, at least

48 times each year; and (2) participate in training at encampments, maneuvers, outdoor target practice, or other

exercises, at least 15 days each year.”).

⁷² U.S. DEP’T OF DEF., INST. 3025.22 THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL AUTHORITIES

para. 3.f.1. (26 July 2013) (C1, 15 May 2017) [hereinafter DoDI 3025.22].

32 U.S.C. § 502(f) (2012) (“(f)(1) Under regulations to be prescribed by the Secretary of the Army or Secretary of

the Air Force, as the case may be, a member of the National Guard may (A) without his consent, but with the pay and

allowances provided by law; or (B) with his consent, either with or without pay and allowances; be ordered to perform

training or other duty in addition to that prescribed under [section 502(a)]. (f)(2) The training or duty ordered to be

performed under paragraph (1) may include . . . (A) Support of operations or missions undertaken by the member’s unit

at the request of the President or Secretary of Defense.”).

⁷⁴ DoDI 3025.22, supra note 72, at paras. 3.d., and 3.e.

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Members of the NG intelligence community serving in a SAD or Title 32 status are not included in

the definition of DoDIC, and therefore are technically not regulated by IO. The Chief of the

National Guard Bureau established an IO policy that applies to all members of the National Guard

serving in Title 32 status.⁷⁵ This IO policy requires that National Guard intelligence personnel

operating in a Title 32 as members of the DoD intelligence component, must also “comply with all

DoD guidance and Federal laws applicable to the component, including all intelligence oversight

(IO) rules.”⁷⁶ Furthermore, the National Guard’s Inspector General Intelligence Oversight policy

recognizes that while National Guard intelligence personnel operating in a SAD status are not

members of the DoDIC, they are limited by their State law—to include State privacy laws—and are

“prohibited from using DoD intelligence resources and equipment while in a SAD status.”⁷⁷ In

most States, the collection, use, maintenance, and dissemination of information related to

individuals by State agencies is strictly regulated. Therefore, the practical affect is that even in a

SAD status, and unless authorized by law, members of the National Guard cannot collect

information on U.S. Persons.⁷⁸

In addition to being prohibited from prohibited from using DoD intelligence resources and

equipment while in a SAD status, unless authorized by SecDef or SecDef’s designee, National

Guard personnel in a SAD status are also prohibited from: 1) engaging in DoD intelligence

operations; and 2) gaining access to access DoD classified systems (SIPRnet/JWICS - Joint

Worldwide Intelligence Communication System) or equipment (MQ-1, border sensors).⁷⁹ Further,

National Guard personnel while in a SAD status may only access classified information if

sponsored by a Federal executive agency pursuant to E.O. 13549. This includes National Guard

personnel with a DoD security clearance.

2. Collection via an Intelligence Activity

The responsibilities of the National Guard member, not the AFSC/MOS or duty title per se,

determine whether they are part of an “intelligence activity.” Many States will either reassign

intelligence personnel to a non-intelligence mission to assist the J34 force protection section, or will

assign them to a unit that is specifically tasked to assist local law enforcement and authorized to

provide intelligence support—such as the NG Counter Drug Units operating under 32 U.S.C. § 112

authority. While serving in a non-intelligence role, these individuals should not have access to

intelligence-related equipment.

If the person collecting the information is a part of the intelligence activity and is conducting

missions as a member of an intelligence activity without separate special authority, then the person

must follow the rule for IO as provided in section B of this chapter. If the person is not collecting

the information as part of, or for, an intelligence activity then the person must follow rules for the

handling of U.S. Person information as provided in section C of this chapter.

⁷⁵ CNGBI 2000.01C, supra note 5; CHIEF, NAT’L GUARD BUREAU, MANUAL 2000.01 NATIONAL GUARD INTELLIGENCE

ACTIVITIES para. 2 (26 Nov. 2012) [hereinafter CNGBM 2000.01].

⁷⁶ CNGBI 2000.01C, supra note 5, at para. 4.

⁷⁷ CHIEF, NAT’L GUARD BUREAU, INST. 0700.01 INSPECTOR GENERAL INTELLIGENCE OVERSIGHT encl. A, para. 1.h (9

June 2013) [hereinafter CNGBI 0700.01].

⁷⁸ CNGBI 2000.01, supra note 5, at para. 4.e.

⁷⁹ Id. at 4.d.

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An example of this latter group would be military law enforcement personnel. They are governed

by the provisions of DoDD 5200.27. They are responsible for tracking and analyzing criminal

threats to DoD and domestic threats to DoD. LE personnel liaise with other law enforcement

agencies to develop the criminal threat situational picture.

3. Method of Collecting

Military Intelligence Equipment may only be used to conduct counter- and foreign- intelligence

related missions unless separate authorizations have been granted. This equipment therefore may

only be operated by NG intelligence personnel serving in a Title 10 or Title 32 status. States

wishing to utilize this equipment for other than counter- and foreign- intelligence purposes must

request authorization from SECDEF or his designee. Legal review by the Office of the Chief

Counsel at NGB is required prior to such authorizations. Military intelligence equipment includes,

but is not limited to, JWICS (Joint Worldwide Intelligence Communication System) and ASAS-L

(All Source Analysis System-Light).

The National Guard has a variety of Incident Awareness and Assessment⁸⁰ tools within its arsenal,

many of which are not DoD Intelligence Assets. Some of the tools are considered to be both an

intelligence asset and a non-intelligence asset and therefore a thorough analysis will look at not only

the capability of the asset but also the sourcing and the authorized use to determine whether or not it

is a true intelligence asset subject to IO and limitations applicable to Intelligence Equipment. A

perfect example of this is the RC-26 fixed wing aircraft used by the National Guard. The RC-26 in

most States is a counter-drug asset, not an intelligence asset, even though it is capable of collecting

imagery of U.S. persons. In accordance with each respective State counter-drug plan, RC-26’s

mission is to assist law enforcement in the capture of personnel involved in drug activities. When

disaster strikes RC-26 is often called upon to assist in life-saving situations. RC-26 provides an

aerial surveillance capability that enables a commander to understand their area of operations.

While conducting damage assessments, obstacle and hazard assessments, and other such non-

intelligence missions the incidental collection of information on U.S. persons is not a per se

violation. Commanders must be reminded that this information should not be retained and must be

purged from military records as soon as possible. Likewise, a platform that uses a fixed or movable

camera may limit incidental collection, and the careful planning of aerial surveillance routes when

possible (such as to avoid populated areas) may accomplish this as well. Any incidental collection

of U.S. person information along the planned route that is criminal in nature can be passed along to

the appropriate law enforcement officials, but information should be purged from the retention

platform as soon as possible.

Domestic imagery collected by National Guard aerial imagery sensor platforms must be properly

documented and approved via a PUM prior to collection.⁸¹ These PUMs must be in accordance

with applicable Defense Intelligence Agency (DIA) policy, “Proper Use Statements for Domestic

Imagery.” The NGB-J2 publishes a PUM handbook to assist JFHQ-J2s on the protocol for

submitting a PUM. National Guard judge advocates are responsible for reviewing these PUMs for

⁸⁰ Incident awareness and assessment (IAA) is the use of intelligence, surveillance and reconnaissance (ISR) DoD

intelligence capabilities for domestic non-intelligence activities approved by the SecDef, such as search and rescue

(SAR), damage assessment and situational awareness.

⁸¹ Note CNGM 2000.01 allows an exception for SAR whereby the PUM is filed after mission conclusion.

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the information actually needed to accomplish the mission. For example, if the mission requires

imagery of ingress and egress routes, it is unnecessary for cameras to collect information regarding

the license plate numbers of those individuals traveling on the roads. It is necessary to carefully

document the roads. Therefore, the recommendation can be to remind the collector not to focus on

specific PII.

The chart below illustrates the proper flow of information to remain compliant with IO regulations.

It depicts how the State’s J2 and Provost Marshall share and handle sensitive information in

accordance with both IO regulations and DoDD 5200.27.

Sensitive Information Handling JFHQ States

J34

Legend

LE Community

NGB

LES info

DoD PM

Community

Intel Community

Intel Data

REDACT

(unless Foreign

(unless Threat)

Nexus)

REDACT

FPSUMS

Warnings

(Criminal

J34 / PM

INTSUMS

Stats, issues,

AT/FP

etc)

Intel Brief

Driven by

Foreign threat data

Domestic

FBI

Driven by

TAG CCIRs

Threats to DoD

Counterintelligence

TAG CCIRs

JTTF FIG

SLFC

J34 Can & Should:

Intel Can & Should:

- Pass relevant data to J2/LE without

- Pass relevant data to LE/J34 without

redaction

- Redact data when putting in FPSUM or

- Pass incidental data to LE/J34 without

briefing

redaction

- Redact or delete records within 90 days

- Review incoming data for intel value within

90 days; purge unneeded USPER data ASAP

- Redact data when putting in INTSUM or

briefing

5. Dissemination

DoDM 5240.01, Sec 3, Procedure 4 governs the dissemination of USPI collected or retained by an

intelligence component. Generally, information may be disseminated to a variety of organizations

if it was properly collected or retained. Dissemination to “Other DOD Elements”, “Other Federal

Government Entities”, and “State, Local, Tribal, or Territorial Governments” is permissible if the

recipient is reasonably believed to have a need to receive such information for the performance or

its lawful missions or functions.

Judge Advocate Responsibilities

Judge advocates are responsible for the following: advising the commander and staff on all

intelligence law and oversight matters within their purview; advising on the permissible acquisition

and dissemination of information on non-DoD affiliated persons and organizations; recommending

legally acceptable courses of action; establishing, in coordination with the Head Intelligence Officer

(J-2/G-2/S-2/N-2) and the Inspector General (IG), an intelligence oversight program that helps

ensure compliance with applicable law and policy; reviewing all intelligence plans, proposals, and

concepts for legality and propriety; and training members of the command who are engaged in

intelligence activities on all laws, policies, treaties, and agreements that apply to their activities.

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In order to properly perform these duties, judge advocates advising commanders on collecting

intelligence and information should know and understand a variety of key types of information.

Judge advocates must be familiar with the missions, plans, and capabilities of subordinate

intelligence units, and all laws and policies (many of which are classified) that apply to their

activities. At a minimum, judge advocates should be familiar with the restrictions on the collection,

retention, and dissemination of information about U.S. persons and non-DoD persons and

organizations, the approval authorities for the various intelligence activities performed by

subordinate units, and the requirement to report and investigate questionable activities and certain

Federal crimes.⁸² Judge advocates must also be familiar with the jurisdictional relationship between

intelligence and counterintelligence activities as well as the parallel jurisdictions of force protection

and law enforcement activities. Finally, judge advocates should establish close working

relationships with the legal advisors of supporting intelligence agencies and organizations, all of

whom can provide expert assistance.

Conclusion

This chapter has but scratched the surface of Intelligence Oversight and Sensitive Information

processes and authorities. The two programs are separate and independent, although in an era of

domestic operational up-tempo, the lines between the two are becoming blurred because the

distinctions between intelligence and information have become equally blurred. Which program

applies depends on the user, the user’s mission, the type of information or intelligence being used,

whether U.S. Persons or NDAPs are identified, and what will be done with the information. Judge

advocates must be aware of these distinctions and know where answers may be found to the

difficult questions posed by commanders. Familiarity with, and understanding of, this chapter is a

good start, but it is only the beginning. A careful review of all referenced materials is therefore

suggested. See Table 1 for a summary of the applicable DoD policies referenced in this chapter.

⁸² DoD 5240.1-R, supra note 6, Procedure 15.

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CHAPTER 10

RULES FOR THE USE OF FORCE (RUF) FOR FEDERAL

FORCES

KEY REFERENCES:



U.S. CONST. art. II, § 1-3 (Executive, Commander in Chief, and Execution of the Laws

Clauses, respectively).



U.S. CONST. amend. IV.



U.S. CONST. amend. V.



U.S. CONST. amend. VIII.



10 U.S.C. §§ 251-255 - The Insurrection Act.



10 U.S.C. § 12301 - Reserve Components Generally.



18 U.S.C. § 242 - Deprivation of Rights Under Color of Law.



18 U.S.C. § 1385 - Posse Comitatus Act.



50 U.S.C. § 2301 et seq. - Defense Against Weapons of Mass Destruction Act.



Pub. L. No. 105-277 (Omnibus Consolidated and Emergency Appropriations Act 1999), Section

101(h), as amended by Pub. L. No. 106-58, Title VI, Section 623, Sept. 29, 1999.



CJCSI 3121.01B - Standing Rules of Engagement/Standing Rules for the Use of Force for U.S.

Forces, June 13, 2005 (S). *** NOTE: As of the publishing of this Handbook, the current

SROE/SRUF remains under revision. Judge advocates should check to see if the 2005

SROE/SRUF have been updated.***



DoD Directive 5210.56, Arming and the Use of Force, November 2018, 2016



AR 190-14, Carrying of Firearms and the Use of Force for Law Enforcement and Security

Duties, March 12, 1993.



Current Policies Concerning the Use of Deadly Force.FORSCOM Augmentation Forces to

Designated AMC and ATEC Sites.



FORSCOM and USARC Force Protection OPORDs.



DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, Encl. 4 (DoD Support

of Civil Disturbance Operations), February 27, 2013.

Introduction

CJCSI 3121.01B, which contains the Standing Rules for the Use of Force (SRUF), provides

operational guidance and establishes fundamental policies and procedures governing actions taken

by DoD forces performing civil support missions and routine service functions (including AT/FP)

within the United States and its territories. The document is classified overall Secret, however the

portions discussed and referenced in this chapter are unclassified.

Per CJCSI 3121.01B, the SRUF also apply to land-based homeland defense missions within the

United States and its territories. With respect to personnel, the SRUF apply to DoD forces,

civilians, and contractors performing law enforcement and security duties at all DoD installations

worldwide, unless otherwise directed by the Secretary of Defense.

The SRUF apply to Title 10 forces performing missions both for homeland defense and defense

support to civil authorities. These rules do not apply to National Guard forces in either State Active

Duty (SAD) or Title 32 status. For information concerning National Guard rules for the use of

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force (RUF), see Chapter 11, infra. Judge advocates should coordinate with the National Guard

when operating in a joint environment to review the RUF the National Guard is using and ensure

compatibility if joint missions are contemplated.

Before beginning any discussion on the use of force in an operational setting, members need to

understand the basic legal, policy, and practical limitations for the use of force. The use of force for

domestic mission accomplishment is constrained by Federal law and the Standing Rules for the Use

of Force. Members should also always be aware of the practical ramifications their actions may

have on the greater mission; they must understand the commander’s intent and ensure they

understand specific limitations that apply to a specific mission in addition to normal policy and

legal limitations.

Overall, the SRUF provide the template for training on RUF for domestic operations. The

development of hypothetical scenarios will assist in posing the ultimate question of whether the

service-member may use force, up to and/or including deadly force. While there are some very

significant differences between the Standing Rules of Engagement (SROE) and SRUF, SROE

training concepts for overseas operations can be useful in developing training for SRUF application.

It is imperative to ensure commanders, as well as the service-members who execute the

commander’s plans, understand the potential limits on self-defense when operating as part of a unit.

Unit commanders always retain the inherent right and obligation to exercise unit self-defense in

response to a hostile act or demonstrated hostile intent. Unless otherwise directed by the unit

commander, service-members may exercise individual self-defense in response to a hostile act or

demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual

self-defense becomes a subset of unit self-defense and the unit commander may limit individual

self-defense by members of the unit.¹

Use of force practice is one of the areas in which the legal competence of judge advocates can have

potential life or death consequences for service-members and civilians. Therefore, it is vital that

judge advocates understand and apply appropriate legal and practical considerations when

practicing in this area.

This chapter will provide the reader with an introduction to use of force and its key legal references.

It will discuss the role of judge advocates in use of force training and implementation, the practical

realities involved in use of force incidents that are often not included in legal references, the legal

standard for Federal use of force, the existing Army policies on use of force, and the potential legal

liability involved in use of force.

B. The Judge Advocate’s Role in the Use of Force

Judge advocates are frequently called upon to practice domestic use of force law in routine legal

duties as well as in domestic operations. This need commonly arises when attorneys advise on

¹ See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, STANDING RULES OF

ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES, Enclosure L (U) para. 4.a. (13 June 2005)

[hereinafter CJCSI 3121.01B]. Note that the SRUF supersede CJCSI 3121.02, RUF for DoD Personnel Providing

Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States.

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routine force protection and installation law enforcement activities. Many judge advocates will

need to train service-members on domestic operational RUF or use of force policies for law

enforcement and security operations. Judge advocates advise units executing domestic operations,

and will also advise on or review investigations into incidents involving the use of force by a

service-members. Judge advocates may be involved in civil or criminal proceedings for a use of

force incident as a trial counsel, trial defense counsel, Special Assistant U.S. Attorney, or as an

attorney assisting in defensive Federal litigation involving his or her respective service.

Judge advocates may also be called upon to draft mission-specific RUF. There are differing

opinions as to whether judge advocates should be tasked with directly drafting RUF, or if they

should simply handle their review. The fact remains, commanders may task an attorney to draft

RUF directly, so judge advocates should be prepared to do so. Executing this task should be done

in coordination with the unit staff, to include law enforcement professionals (when applicable), and

higher headquarters.

In drafting or reviewing RUF, judge advocates have to understand both the substantive law that

governs the use of force, as well as the procedures necessary to modify the SRUF. Efforts to either

augment or restrict the current SRUF must follow precise staffing requirements, and, in the case of

augmentation, require advanced planning and should be initiated (if not already done by higher

headquarters) as soon as the need is identified.²

Judge advocates performing these duties must know the controlling law for domestic use of force.

For operations in areas subject to U.S. jurisdiction, the appropriate constitutional law standards as

interpreted by the courts and the executive branch regulate the use of force. As important, the

policies or RUF issued by higher headquarters further define the legal requirements for use of force.

RUF drafters involved in planning or executing a domestic operation should consider critical factors

that are similar to those involved in SROE development. These factors include the following.

 What is your mission and your commander’s concept of operation?

 What type of unit is involved, what weapons and equipment, if any, will be deployed, and what

is the level of training of members with the assigned weapons?

 What threat could your command face?³

 What kind of interaction and exposure to the general public will your service-members face?

 What training resources are available for pre-deployment RUF training?

 Does the training program properly address the issues involved with RUF or do training deficits

raise the potential for misapplication of the rules?

² See CJCSI 3121.01B, supra note 2, Enclosure L (U) para. 3.a.-3.b. and Enclosure P (U). The SRUF requires

Combatant Commanders desiring to augment the SRUF to staff such actions through the CJCS to the Secretary of

Defense for approval. Restrictions to the SRUF require notification although limited flexibility is provided for time

critical situations. Enclosure P provides the template for requests for mission specific SRUF.

³ Judge advocates should consider basing their draft SRUF and legal guidance on the worst feasible scenario. For

example, attorneys often advise on detention or migrant and refugee camp operations. In most cases, no one expects the

detainees to violently riot. Unfortunately, rioting can occur in extended detention operations. Structuring your SRUF

assuming the detainees will passively comply will leave your security force without adequate guidance on how to

respond to an emergency situation should they face one.

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 Does the mission being planned fit well with the existing SRUF or should the local commander

initiate a process to seek augmentation of the SRUF by submitting a request for a mission

specific RUF?⁴

C. Practical Realities of Use of Force Situations

Judge advocates need to understand practical aspects of deadly force confrontations in order to be

competent in use of force law. Understanding the law and policy of use of force is not enough.

Judge advocates must recognize that the real world does not always allow for dispassionate,

reflective, and judicious decision making on whether to use force. Thus, judge advocates should

consider a number of critical factors when advising on civil support missions. These include: the

capabilities and limitations service-members bring to a potential deadly force confrontation; what is

known about potential attackers; and, what physical reactions may affect service-members during

and after use of force incidents.

Capabilities and Limitations

a. Soldier Equipment

Compared to civilian law enforcement personnel, most service-members are not as well-equipped

for potential confrontations with civilians involving use of force. When drafting RUF for a

particular mission, commanders must decide if the mission requires service-members to be issued

firearms or other non-lethal weapons. Further, if non-lethal weapons or non-standard weapons or

ammunition are authorized for the mission, it is critical that soldiers be well-trained in the proper

employment of these systems.

b. Skill and Training

Due to the understandable focus on overseas missions, many Title 10 service-members do not

receive extensive training on the types of confrontations that are involved in domestic operations.⁵

Because of limited exposure to domestic missions, to include training focused in this area, service-

members may require further tactical marksmanship and close quarters training in order to

effectively and appropriately respond to domestic threats or how to employ lesser means of force

competently.

Many service-members have not been trained on domestic law applicable to the use of force and, as

a consequence, do not understand many of the policy requirements imposed by DoD or their

service.⁶ Additionally, service-members may also not be sufficiently experienced in applying

deadly vs. non-deadly techniques. Judge advocates should assist commands in ensuring members

⁴ If such a need is identified, staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a

template. As this must be staffed to the Combatant Commander for staffing through the CJCS to the Secretary of

Defense for approval, it is imperative that this action be initiated upon the identification of the need.

⁵ An exception to this is the U.S. Coast Guard. Coast Guard members often operate in a law enforcement environment

and have extensive RUF training.

⁶ Military police and special operations Soldiers may be part of general population in the Army that routinely learn and

understand these rules due to the nature of their missions.

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not only get the right legal and policy training but also the right operational training if they see a

gap.

Potential Threat

Judge advocates must also consider the nature of the threat that service-members might face since

this can factor into advice given for an operation. Service-members must be able to correctly apply

force and distinguish between threats and innocent civilians. Judge advocates should be aware of

any background information on a threat in an operating area to better inform advice given to

commanders.

3. Physical and Psychological Effects

It is also important to keep in mind that physical and psychological effects on a member resulting

from a life or death situation can be critical. The stress of a life or death encounter will often trigger

the “fight, flight, or freeze” response. Accompanying this, the body and mind undergo a number of

changes that can affect performance. Judge advocates may have to research these reactions and

consider their effects if tasked to investigate a use of force incident.

D. SRUF and Areas of Confusion and Concern

Most RUF practitioners will be called to advise and train on either the SRUF or mission specific

RUF crafted and approved by higher headquarters and the Secretary of Defense. RUF practitioners,

whether being asked to propose mission specific RUF, advise on existing RUF, or to train RUF

need to be conscious of several areas that often become the source of confusion or error.

Example areas include the concept of use of “minimum force,” the general prohibition on the use of

warning shots by land forces, the use of warnings to include verbal warnings, and the introduction

of restrictions that go beyond what is required by the SRUF, any of which may have the inadvertent

effect of depriving a member of otherwise valid defenses available to Federal officers acting in their

official capacities. For example, State law may impose a duty to retreat as it relates to the use of

force by private citizens. Judge advocates should ensure Federal forces and their RUF are not

improperly limited by concepts that are not applicable to Federal RUF.

Another potential source of confusion for the Army (as an example) can specifically flow from an

effort to reconcile portions of AR 190-14, Carrying of Firearms and Use of Force for Law

Enforcement and Security Duties⁷ with the SRUF. The SRUF applies broadly both on and off

installations and specifically provides that its provisions apply to “DoD forces, civilians and

contractors performing law enforcement and security duties at all DoD Installations.”⁸ AR 190-14,

Chapter 3, was revised in 1993 to synchronize with the use of force guidance contained in a

contemporary publication of DOD Directive 5210.56. Subsequently, the use of force guidance

contained in DoDD 5210.56 was specifically superceded by the SRUF.⁹ Additionally, DOD

Directive 5210.56 has subsequently revised several times, the latest update occurring in November,

⁷ U.S. DEP’T OF ARMY, REG. 190-14, CARRYING OF FIREARMS AND USE OF FORCE FOR LAW ENFORCEMENT AND

SECURITY DUTIES (12 Mar. 1993).

⁸ CJCSI 3121.01B, supra note 2, para. 1.a.

⁹ CJCSI 3121.01B, supra note 2, para. 1.b.

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2016. Judge advocates advising in a variety of areas related to law enforcement and security

missions to include the development of provisions for contract security forces need to be aware of

this disconnect between AR 190-14 and the SRUF. They also must do due diligence to ensure that

the most updated regulations, directives, and authorities are used. When the provisions two or more

cannot be reconciled, the SRUF will control as its provisions cannot be augmented without the

approval of the Secretary of Defense and cannot be further restricted without providing notice to the

same.

E. Legal Authority and Standard for U.S. Military Use of Force in Domestic Operations

The underlying legal authorities for use of force are grounded in the constitutional role of the

Executive Branch, and are tempered by the constitutionally protected civil rights as listed in the Bill

of Rights. Against this backdrop, Congress has imposed a number of statutory provisions that help

define and limit this authority.

The competent use of force practitioner must understand these underlying authorities.¹⁰ This is

similar to the duty of the competent SROE practitioner to understand the underlying public

international law and law of war authorities guiding their actions. The use of force practitioner and

SROE practitioner must also understand the differences between these two bodies of law and resist

the temptation to confuse and meld terms and concepts from one to the other.

Domestic use of force authority flows from the powers of the President as granted under the

Constitution. The underlying authority of the President to order routine installation force protection

and law enforcement is justified under the President’s executive powers.¹¹ The authority to order

the military to defend the homeland against international aggression can be found in the President’s

authority as the Commander in Chief.¹² Finally, the President’s authority to order the military to

execute DSCA operations (Defense Support of Civil Authorities)¹³ to enforce Federal law is based

on the President’s duty to execute the laws.¹⁴ As officers of the Executive Branch, service-members

conduct operations and derive authority from the President’s constitutional authorities.¹⁵ Whenever

the military uses force to execute the orders of the President or those he appoints, that use of force

must be based on constitutional authority.

All Executive Branch uses of force are balanced against the civil rights of the public. While three

primary provisions of the Bill of Rights limit Federal use of force in domestic operations, the main

focus is on the Fourth Amendment.¹⁶ The constitutional standard is whether the use of force

¹⁰ Since domestic operations have generated very few reported cases involving service-members, we must look to

civilian agency law enforcement cases to help define the limits of military use of force.

¹¹ U.S. CONST., art. II.

¹² Id.

¹³ U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb.

2013). See also, U.S. DEP’T OF DEFENSE, DIRECTIVE 3025.18, DEFENSE SUPPORT TO CIVILIAN AUTHORITIES (29

Dec.2010).

¹⁴ U.S. CONST., art. II.

¹⁵ See e.g., In Re Neagle, 135 U.S. 1 (1890).

¹⁶ The other two are the Fifth Amendment Due Process Clause, which limits the ability of Federal officers to use force

after an arrest has occurred, and the Eighth Amendment, which defines the rights of a prisoner when corrections

personnel use force.

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violates the Fourth Amendment prohibition against unreasonable seizures.¹⁷ The U.S. Supreme

Court has described this standard as an objective measurement based on the facts and circumstances

known to the service-member at the time of the use of force.¹⁸ This rule is the very heart of the

standard for governmental use of force.

The “reasonableness” of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight

The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation. As in other Fourth Amendment

contexts, however, the “reasonableness” inquiry in an excessive force case is an

objective one: the question is whether the officers’ actions are “objectively

reasonable” in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.¹⁹

The courts have long recognized the authority to use force, including deadly force, in the

performance of Federal governmental duties.²⁰ Judge advocates must know the limits of the

mission and how the commander intends to execute this mission in order to advise on the RUF that

support the operation. This makes the mission analysis portion of planning critical. The phrasing

of Operations Orders or other directives that define the mission and operation are vital to defining

the limits of this authority.

Judge advocates involved in drafting mission specific RUF should carefully consider where to

balance the interests of force protection and the lives of service-members against the important

interest of not risking an excessive use of force incident involving the military. Further, judge

advocates involved in the development of RUF training must be careful that the training does not

introduce procedures that introduce tactically dangerous or unsound practices.

Such errors can occur because judge advocates are mistaken in their understanding of the law or

less familiar with the application of the RUF. Specifically, judge advocates should never apply Law

of War to the domestic law on the use of force.²¹ Likewise, judge advocates should not confuse the

law of individual self-defense of a private individual with the authority of self-defense for

government officials.²²

¹⁷ U.S. CONST., Amend. IV, provides that “[t]he right of the people to be secure in their persons…against unreasonable

searches and seizures, shall not be violated

”

¹⁸ Graham v. Connor, 490 U.S. 386 (1989).

¹⁹ Id. (emphasis added).

²⁰ In Re Neagle, 135 U.S. 1 (1890).

²¹ As discussed above, the underlying substantive law applicable to domestic governmental use of force is the

Constitution, not the Law of War.

²² While related, these legal standards are significantly different. A common example of this confusion is a

requirement to retreat. Government officials using force in the performance of their duty have no duty to retreat and in

some instances could be in breach of their duty if they do retreat. It is also possible to inadvertently lose the authority to

use force under governmental authority by wording the RUF to invoke the law of individual right of self-defense of the

state law or Federal common law. For example, a provision that says, “Service-members retain their right to use force

in self-defense as defined by local and state law” reduces the service-member’s right to use force in self-defense to the

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Minimum Force Necessary or Deadly Force as a Last Resort

The SRUF states “Normally, force is to be used only as a last resort, and the force used should be

the minimum necessary.”²³ The SRUF further states that, “Deadly force is to be used only when all

lesser means have failed or cannot be reasonably employed.”²⁴ Lastly, the SRUF imposes a

reasonableness requirement stating that the force used must be “reasonable in intensity, duration

and magnitude” based on the totality of the circumstances to counter the threat.²⁵

Federal courts, however, do not require that service-members employ “minimum force necessary”

or that they employ deadly force as only a “last resort.” The courts have generally held that the

issue is solely whether deadly force was reasonably necessary. They have declined to impose a

requirement to use minimum force.²⁶ Nor do courts require the use of feasible lesser force

alternatives to avoid the use of justified deadly force.²⁷ Judge advocates involved in planning

domestic operations that carry a significant risk of potentially lethal encounters with armed or

dangerous elements should evaluate whether the SRUF meets the task or whether augmented

mission specific RUF that more closely resembles the standards of case law (and therefore may

provide more flexibility) should be developed and staffed for approval by the Secretary of

Defense.²⁸

Mandatory Verbal Warnings

Federal courts require the issuance of a verbal warning, where feasible, in the case of using deadly

force against a fleeing criminal. This is clearly required in the seminal case of Tennessee v.

Garner.²⁹ The SRUF does not specifically require a verbal warning but does state that “[w]hen time

and circumstances permit, the threatening force should be warned and given the opportunity to

withdraw or cease threatening actions.³⁰ Although the type of warning that should be given is not

specifically established, it cannot take the form of a warning shot.³¹ Exceptions to the restriction on

warning shots general apply to Naval vessels; Navy as well as Coast Guard authorities should be

consulted to determine the application, if any, of such exceptions.

level of a private citizen under State law. This is a significant (and unnecessary) concession of otherwise lawful

defensive authority. Conversely, as of the publishing of this documents, some States have pending litigation regarding

the application of so-called “stand your ground” laws and whether they apply to law enforcement.

²³ CJCSI 3121.01B, supra note 2, Encl. L, para. 5.b.1.

²⁴ Id. para. 5.c.

²⁵ Id. para. 5.b.1.

²⁶ See e.g., O’Neal v. DeKalb County, Ga., 850 F.2d 653, 666 (11th Cir. 1988).

²⁷ See e.g., Deering v. Reich, 183 F.3d 645, 652-53 (7th Cir. 1999).

²⁸ Staffing of the request should be initiated using Enclosure P to CJCSI 3121.01B as a template. As this must be

staffed to the Combatant Commander for staffing through the CJCS to the Secretary of Defense for approval; it is

imperative that this staffing process be initiated upon the identification of the need.

²⁹ Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Garner provides a three prong analysis under the Fourth

Amendment for the evaluation of whether the use of deadly force is reasonable. These prongs include: whether there is

probable cause to believe that the individual suspect is dangerous; whether the use of deadly force is necessary to

prevent the suspect’s escape; and, whether, if feasible under the circumstances, a verbal warning was given.

³⁰ CJCSI 3121.01B, supra note 2, Encl. L para. 5.a.

³¹ Id. para. 5.b(3). There are some limited exceptions to this restriction, but these exceptions are unlikely to be

encountered by most U.S. Army personnel.

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Denial of Deadly Force in Self-Defense

Federal courts do not require that service-members who are not armed in the course of their duties

be denied the authority to use deadly force in their own defense. Some commanders and judge

advocates believe that if there is no authority to arm service-members, then there is no authority to

use deadly force. This presumption is not imposed by Federal law. In reference to self-defense,

however, judge advocates must ensure that service-members, acting as part of a unit, understand

that the SRUF specifically provides that the individual right of self-defense may be restricted. This

is rationalized by stating that when “individuals are assigned and acting as part of a unit, individual

self-defense should be considered a subset of unit self-defense. As such, commanders may limit

individual self-defense by members of their unit.”³²

Operational Orders/Execution Orders

For those operations that have not been thoroughly anticipated, attorneys may find that the RUF are

disseminated through message traffic with an OPORD or EXORD. Often judge advocates will have

to wait for RUF guidance from higher headquarters because the decision on whether to draft new

RUF or adopt an existing template has not yet been announced.

SRUF Authority to Use Deadly Force

In RUF, the authority to use deadly force exists for limited purposes. The SRUF provides uniform

guidance on domestic use of force.

a. Inherent Right of Self-defense

As discussed above, unit commanders always retain the inherent right and obligation to exercise

unit self-defense in response to hostile acts or demonstrated hostile intent. Unless otherwise

directed by the unit commander, service-members may use deadly force when it appears reasonably

necessary to respond to a hostile act or demonstrated hostile intent. Individual self-defense is a

subset of unit self-defense and as such may be limited by the unit commander when an individual

service-member is acting as part of a unit. Unit self-defense includes the defense of other DoD

forces in the vicinity.

b. Defense of Others

The use of deadly force extends to the use of force to defend other non-DoD persons in limited

circumstances. Service-members may use deadly force in defense of non-DoD persons who 1) are

in the vicinity when there is probable cause to believe the target of that force poses an actual or

imminent threat of death or bodily harm, and 2) when the use of force is directly related to the

assigned mission.³³

³² Id. para. 4.a.

³³ Id. para. 5.c.2. See also, U.S. DEP’T OF DEFENSE, DIRECTIVE 5210.56, ARMING AND THE USE OF FORCE (18 Nov.

2016).

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c. Protection of Assets Vital to National Security

Service-members may use deadly force when it appears reasonably necessary to prevent the actual

theft or sabotage to assets vital to national security. The SRUF defines assets vital to national

security as President-designated non-DoD and/or DoD property, the actual theft or sabotage of

which the President determines would seriously jeopardize the fulfillment of a national defense

mission and would create an imminent threat of death or serious bodily harm.³⁴ The SRUF provides

a list of potential examples: nuclear assets, nuclear command and control facilities, other designated

areas that contain sensitive codes or involve special access programs. Planners and commanders

need to determine the existence of assets in their anticipated area of operations to apply the SRUF

properly so as to safeguard these designated assets.

d. Protection of Inherently Dangerous Property

Service-members may use deadly force when reasonably necessary to prevent the actual theft or

sabotage of inherently dangerous property. The SRUF defines “inherently dangerous property” as

property that, in the hands of an unauthorized individual, would create an imminent threat of death

or serious bodily harm.³⁵ Examples include portable missiles, rockets, arms, ammunition,

explosives, chemical agents, and special nuclear material. On-scene DoD commanders are

authorized to classify property as inherently dangerous.³⁶ Command guidance in this area is

critical. Without clear and proper guidance, the commander’s intent could easily be frustrated. For

example, a commander may not want to have lethal force deployed against looters who steal small

arms ammunition. Failure to provide guidance on this could lead to an engagement that was proper

under a strict reading of the SRUF but is inconsistent with the on-ground commander’s intent.

Likewise, a commander may consider all crew-served weapons as “inherently dangerous,” but a

failure to make such designations may lead to confusion over what is “inherently dangerous

property” by members on the ground. As a reminder, if a subordinate commander chooses to

emplace restrictions that go beyond the mission-specific RUF that was issued by a higher command,

notification of these restrictions up to the Secretary of Defense is required per the SRUF.

e. National Critical Infrastructure³⁷

Service-members may use deadly force when reasonably necessary to prevent the sabotage of

national critical infrastructure. National critical infrastructure for DoD purposes is President-

designated public utilities, or similar critical infrastructure, vital to public health or safety, the

damage to which the President determines would create an imminent threat of death or serious

bodily injury. Commanders and planners need to identify the existence of such infrastructure when

preparing for a domestic operation.

Other Mission-Related Circumstances for Use of Deadly Force

As with the circumstances described above, deadly force may be used, under limited circumstances,

when directly related to the assigned mission. Further, such force may only be used “when all

³⁴ Id. para. 4.e.

³⁵ Id. para. 4.f.

³⁶ Id.

³⁷ Id. para. 4.g.

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lesser means have failed or cannot reasonably be employed.”³⁸ These additional circumstances,

where such force may be used when directly related to the assigned mission, are discussed below.

a. Prevention of Serious Offenses against Persons

Service-members may use deadly force when it appears reasonably necessary to prevent a serious

offense involving the threat of imminent death or serious bodily harm. Examples of such crimes

include murder, armed robbery, and aggravated assault. Further, attempting to set fire to an

inhabited building or sniping would constitute offenses that involve the threat of imminent death.³⁹

b. Escape⁴⁰

Service-members may use deadly force when it appears reasonably necessary to prevent the escape

of a prisoner, provided there is 1) probable cause to believe that the prisoner committed or

attempted to commit a serious offense involving the infliction or threatened infliction of serious

physical injury or death; and 2) that escape of the subject would pose an actual or imminent threat

of death or serious bodily harm to DoD personnel or others in the vicinity. Serious offense is

defined as one that involves an imminent threat of death or serious bodily harm, or an offense that

would pose an imminent threat of death or serious bodily harm to DoD forces or others in the

vicinity.

c. Arrest/Apprehension of Persons Believed to have Committed a Serious Offense⁴¹

Service-members may use deadly force when it appears reasonably necessary to arrest or apprehend

a person who they have probable cause to believe has committed a serious offense as defined above.

Augmentation of the RUF

A unit commander that desires to augment the SRUF must staff the action to the appropriate

Combatant Commander. The Combatant Commander must then staff the request through the CJCS

to the Secretary of Defense for approval.⁴² Requests for augmentation must be prepared using the

template provided at Enclosure P, RUF Messaging Process, to CJCSI 3121.01B. Unit commanders

may further restrict the SRUF without prior approval; however, if a restriction is implemented by a

unit commander on a Secretary of Defense-approved RUF, the Secretary of Defense must be

notified through the Joint Staff. When confronted with time critical situations, commanders can

notify the CJCS and the Secretary of Defense concurrently, or if not possible, may notify the CJCS

as soon as possible after the Secretary of Defense notification.⁴³

³⁸ Id., paras. 5.c & 5.d.

³⁹ Id., para. 5.d.1.

⁴⁰ Id., para. 5.d.2.

⁴¹ Id., para. 5.d.3.

⁴² Id., para 3.a.

⁴³ Id., para. 3.b.

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F. Liability for Service-Members, Leaders, and RUF Drafters in Use of Force Situations

Service-members, their leaders, and the planners who draft the RUF for domestic operations face

potential personal liability for any unlawful use of force by a service-member during a domestic

operation. This includes Federal or State civil or criminal proceedings after an incident. In

addition, such incidents are often accompanied by a variety of investigations that could result in

adverse administrative consequences. Therefore, it is important that judge advocates be aware of

this liability as they draft RUF, disseminate the RUF, and participate in training for and the

execution of domestic operations under RUF. Appropriate attorney involvement can reduce the risk

a member is unnecessarily exposed to the financial and emotional burdens of litigation.

Federal Civil Liability

A person injured by a service-member’s use of force could seek damages in a Federal civil suit

against the service-member and others involved in the RUF. If the person is dead, the family

members of the decedent could file the suit. This private cause of action for damages—caused by a

service-member’s use of force—is based on deprivation of a Constitutional right. In most cases,

this will involve the Fourth Amendment standard of objective reasonableness. The seminal case

that created this cause of action is Bivens v. Six Unknown Agents of the Federal Bureau of

Narcotics,⁴⁴ a civilian law enforcement case. There is caselaw concerning DoD civil support that

addresses this issue. . One reported Supreme Court case (discussed below) involves an Army

soldier and use of force against a civilian.⁴⁵

Litigation can also occur in situations where force was not used and an innocent civilian is killed or

injured as a result. A soldier’s decision not to use force, or a commander’s decision to limit the use

of deadly force would most likely be found to be within the “discretionary function” defense to

claims made under the Federal Tort Claims Act (FTCA).⁴⁶ But if the decision not to engage an

otherwise lawful target was a result of a failure to train or the use of ill-conceived training materials,

the U.S. Government could be found liable for negligence under the FTCA.

a. The Application of Qualified Immunity

Judge advocates serving as advisors, investigators or litigators should understand that qualified

immunity is a critical dispositive measure to forestall unnecessary burdens on the government and

its representatives, and it can serve as a bar to trial. Pertinent case law provides guidance on how

courts apply qualified immunity.

Saucier v. Katz, a 2001 Supreme Court decision, is a noteworthy case in the context of military

support to domestic operations. Saucier, a Military Police officer assigned to protect the Vice

⁴⁴ Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In that case, the Court held

that the warrantless entry of Federal agents into the petitioner’s apartment, under color of Federal authority, provided a

Federal cause of action for damages under the Fourth Amendment.

⁴⁵ See Saucier v. Katz, 533 U.S. 194 (2001). In Saucier, Katz attempted to unfurl a protest banner in close proximity to

Vice President Gore’s speaking stand on the Presidio of San Francisco. Katz brought a Bivens action against the

military police that apprehended him. Katz alleged that the military police violated his Fourth Amendment rights by use

of excessive force in forcibly removing him from the immediate vicinity of the podium and in placing him into a van.

The Court held the military police member was entitled to qualified immunity.

⁴⁶ United States v. Gaubert, 499 U.S. 315 (1990).

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President, was accused by Katz of using excessive force. Pursuant to Bivens, Katz filed suit against

Saucier on the grounds that Saucier had violated Katz’ Fourth Amendment rights. Pearson v.

Callahan, a 2009 Supreme Court decision, is now the key case from which to analyze issues of

qualified immunity.⁴⁷ (Pearson involved an accusation of a Fourth Amendment violation for a

warrantless search and seizure conducted by Utah State law enforcement officers.). Both cases are

relevant for judge advocates and discussed below.

For judge advocates vis-à-vis their roles as RUF practitioners, it is first necessary to understand the

analysis handed down in Saucier as it may still be used by lower courts. In Saucier, the Court

mandated a two-prong analysis to determine whether an official was entitled to qualified immunity.

First, a court was required to decide: 1) “whether the facts alleged or shown by the plaintiff make

out a violation of a constitutional right, and (2) if so, whether that right was ‘clearly established’ at

the time of the defendant’s alleged misconduct.”⁴⁸ This analysis was to be strictly applied and

provided an analytical paradigm that often served to direct early disposition of cases in favor of the

official without the need for extensive and costly pretrial discovery and litigation.

In Pearson however, the Supreme Court effectively reversed its position in Saucier by holding that

lower courts were no longer bound to the rigid two-prong analysis. The Court noted, however, that

the Saucier case could still be used as an appropriate analytical paradigm by lower courts in their

discretion, but that lower courts were no longer required to use the Saucier procedure.⁴⁹

Saucier remains an important qualified immunity case; however, in light of Pearson and the

difficulties lower courts have had with the Saucier analysis, it is uncertain how effective its analysis

will be for those attempting to assert its procedure to establish qualified immunity.

b. State and local government use of force cases are usually based on a civil cause of

action created by 42 U.S.C. § 1983

Section 1983 has evolved into an effective basis for citizens to seek damages for alleged violations

of their rights by governmental organizations or their employees under the Fourteenth Amendment.

Section 1983 liability has also been extended to apply to those who are involved in use of force

policy and training decisions. These individuals have been found liable for civil damages if their

decisions and work contributed to an improper use of force by an individual law enforcement or

security person.⁵⁰ As the SRUF specifically directs that commanders at all levels must train their

⁴⁷ Pearson v. Callahan, 555 U.S. 223 (2009). The Court held that the officer’s entry into a home, based on the consent

of an informant, did not violate clearly established law, and they were thus entitled to qualified immunity.

⁴⁸ Saucier, 533 U.S. at 194.

⁴⁹ Pearson, 555 U.S. at 223.

⁵⁰ A supervisor who causes a constitutional violation by a “deliberate indifference” to constitutional standards in proper

training for officers may be liable under a Section 1983 cause of action. City of Canton v. Harris, 489 U.S. 378, 388-89

(1989). While agencies can be found liable for a lack of proper training on deadly force, agency officials have also been

found liable for a lack of training on non-deadly force (Davis v. Mason County, 927 F.2d 1473, 1483 (9th Cir. 1991))

and for training conducted that was insufficient (e.g., Berry v. city of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994)). The

judge advocate advising a commander on RUF for a domestic operation should compare the difference in effort and

attention to law between military RUF practice and the comparable efforts of Federal law enforcement agencies. While

Section 1983 may provide plaintiffs with a compensable claim after a use of force encounter as a result of a failure to

train, the FTCA could also provide a potential remedy when a training requirement existed and it was either not

accomplished or it can be demonstrated that the training was inadequate or failed to apply the proper standards.

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subordinates on the use of both deadly and non-deadly force,⁵¹ failure to do so may expose

commanders, their Soldiers, their advisors, and the U.S. Government to a host of legal

consequences as discussed below.

Federal Criminal Liability

Service-members could be held criminally liable for unconstitutional or illegal use of force before a

court-martial, a Federal district court, and in some cases, a State court. A Federal statute prohibits

use of force under the color of law that deprives any person of their constitutional or legal rights.⁵²

Accordingly, DOJ has, in the past, investigated use of force during a domestic military operation

with a view toward seeking a Grand Jury indictment for violation of this statute.⁵³

3. State Civil and Criminal Liability

Immunity from Federal liability (under the Supremacy Clause) will not always prevent a service-

member from having to face trial in State civil or criminal proceedings. In fact, in the “Ruby

Ridge” use of force incident, a Federal officer was not granted immunity from a State criminal

proceeding for the shooting of a civilian involved in an armed confrontation with the FBI.⁵⁴

G. Other Trial or Litigation Issues

Judge advocates involved in post-use of force procedures and litigation should be prepared to

address a number of other issues. First, be prepared to advise commanders on the many

investigations that could occur. Second, be aware of their service’s procedures on civilian

litigation. Finally, know that service-members potentially have less legal protection against use of

force liability than a Federal law enforcement agent due not only to potential UCMJ liability, but

also punitive administrative options.

Judge advocates should know that if a service-member kills or injures a civilian during a domestic

operation, a number of agencies could initiate investigations of the incident that would affect both

the service-member and their service. The various units involved, their parent services, any joint

command, and the National Guard Bureau or State National Guard authorities could initiate an

administrative investigation and/or Rules for Courts-Martial (RCM) 303 inquiries.⁵⁵ Commanders

Ironically, it is conceivable that a third party that could have been covered under “defense of others” could argue the

government failed to protect him or her from other civilians and attempt to bring a claim under the FTCA alleging that

the Government was negligent in its training of RUF and it contributed to the injury suffered.

⁵¹ CJCSI 3121.01B, supra note 2, Encl. L para. 1.b.

18 U.S.C. § 242 (2011).

⁵³ For an comprehensive overview of the liability issues resulting from a Marine shooting that was authorized and

proper under the Rules of Engagement (the correct term at the time) for JTF-6, see Lieutenant Colonel W.A. Stafford,

How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of

Deadly Force, ARMY LAW., Nov. 2000, at 1.

⁵⁴ State of Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000). Interestingly, one of the critical factors in the Court’s

analysis was the fact that a supervisor had published unlawful use of force guidance. This became an issue, even

though Special Agent Horiuchi based his decision to shoot on the lawful pre-existing RUF, rather than the flawed rules

published by his team commander.

⁵⁵ MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 303 (2012).

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and judge advocates should be aware that the following civilian investigations could occur in

addition to their own service’s criminal and/or administrative investigation:

 An investigation by DOJ or the U.S. Attorney for potential Federal civil or criminal disposition;

 An investigation by State, county, or municipal law enforcement authorities for State criminal

disposition; and

 An administrative investigation by the Inspector General or internal investigative element of a

Federal law enforcement agency if the command was providing support to that Federal agency.

Judge advocates also need to know the procedures and considerations involved when dealing with

potential civil litigation. Army Regulation 27-40, Litigation,⁵⁶ Air Force Instruction 51-301, Civil

Litigation,⁵⁷ Navy Instruction 5800.7D, and Manual of the Judge Advocate General (JAGMAN)⁵⁸

outline service guidelines on issues such as whether a service-member will be entitled to

government-provided representation, investigation of potential litigation cases, whether the

government will indemnify the service-member for damages in civil cases, and the key points of

contact when the service may be involved in litigation. Further, Army Pamphlet 27-162, Claims

Procedures,⁵⁹ provides guidance on the management of potential claims against the U.S.

Government under a variety of theories and statutory authorities.⁶⁰ Finally, they should contact the

litigation divisions of their respective services for further information.

Finally, judge advocates need to recognize that service-members and commanders involved in use

of force incidents may have less legal and practical protection than their counterparts in Federal law

enforcement. Case law defining the role of service-members using force during Homeland Security

operations is extremely limited. Many of the cases interpreting governmental use of force have

expressly or impliedly based their interpretations of the “reasonableness” of the force on the law

enforcement status of the Federal officers involved. These were qualified and credentialed law

enforcement officers with clear statutory investigative jurisdiction and duties to uphold Federal law

and confront criminals. Service-members performing non-traditional Homeland Security operations

may not have the benefit of this well-defined case law. Finally, Congress has not extended

immunity that is routinely applied to Federal law enforcement to military domestic operations.⁶¹

⁵⁶ U.S. DEP’T OF ARMY, REG. 27-40, LITIGATION (19 Sep. 1994).

⁵⁷ U.S. DEP’T OF AIR FORCE, INSTR. 51-301, CIVIL LITIGATION (20 Jun. 2002).

⁵⁸ U.S. DEP’T OF NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL INSTR. 5800.7D, MANUAL OF THE JUDGE

ADVOCATE GENERAL (JAGMAN) (26 Jun. 2012).

⁵⁹ U.S. DEP’T OF ARMY, PAM. 27-162, CLAIMS PROCEDURES (21 Mar. 2008).

⁶⁰ Claims have been paid in recent history for shootings by U.S. military personnel engaged in the performance of their

duties. For example, in 1997 U.S. Marines were sent to support the U.S. Border Patrol in Texas along the Mexican

border during a period of escalating border violence and drug related activity. Although the facts are disputed, a U.S.

person of Hispanic ancestry was under observation by U.S. Marines. The Marines claimed that the individual under

surveillance fired at them with a .22 caliber rifle that he had in his possession. The Marine claimed that he returned fire

when fired upon and he killed the individual with one shot from his M-16 rifle. There was immediate controversy that

surrounded the incident and the Navy agreed to settle the claim for an amount reported to be between $1.3 and $1.9

million dollars. See U.S. Settles with Family in Fatal Border Shooting, NY TIMES (August 12, 1998), available at

http://www.nytimes.com/1998/08/12/us/national-news-briefs-us-settles-with-family-in-fatal-border-shooting.html.

⁶¹ Congress, recognizing that the scope of duties for Federal law enforcement officers does not typically extend to

enforcing laws against simple assaults, homicides, and other types of violent crime, extended the scope of employment

for Federal officers having to use force to prevent such violent crimes. The language of this statute does not make it

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H. Training of Judge Advocates

Ideally, attorney training should include the study of executive, congressional, and judicial

authorities and constraints on the use of force by government and military personnel, and tactical

skills training using both lethal and non-lethal measures. Leaders should seek opportunities for

their judge advocates to obtain basic training in the deployment of weapons in tactical engagements

under the RUF vs. the extensive training based on the ROE/LOAC.⁶² If available, training with

police may provide them with great insight into the challenges confronted by a member in a use of

force situation. Although training such as this is resource intensive and time consuming, it is

difficult for judge advocates that have not been exposed to tactical scenarios involving the use of

weapons to provide comprehensive advice and support to training the force.

If resources or time do not permit “hands on” training, the development of scenario training packets

can assist in developing better appreciation for application of the RUF. An analysis of likely

scenarios done in conjunction with a robust discussion of controlling legal authority can help

illuminate the challenges that will be faced by those who may be called to apply RUF and thus

better inform judge advocates. Further, these scenarios can be developed to highlight the challenges

that often face RUF drafters, and thus improve upon their ability to advise on the development and

application of the RUF.

applicable to the majority of service-members engaged in domestic operations. See Pub. L. 105-277, Section 101(h), as

amended by Pub. L. No. 106-58, Title VI, sect. 623, Sept. 29, 1999, often referred to as the Federal Good Samaritan

Statute.

⁶² Although the law that governs RUF is different than that which governs ROE, this training will assist judge

advocates that are called to assist in the development or training of either RUF or ROE, as an appreciation of the tactical

use of small arms and other lethal and non-lethal weapons will improve a judge advocate’s ability to support members

and the command significantly.

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CHAPTER 11

RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD

KEY REFERENCES:



10 U.S.C. §§ 251-255 - The Insurrection Act.



18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).



28 U.S.C. §§ 1346, 2671 - 2680 - The Federal Tort Claims Act (FTCA).



32 U.S.C. § 502 - Required drills and field exercises.



National Guard Regulation 500-1/ANGI 10-8101 - National Guard Domestic Operations, June

13, 2008.

 National Guard Regulation 500-5/ANGI 10-208 - National Guard Domestic Law Enforcement

Support and Mission Assurance Operations, August 18, 2010.

 Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321, 110 Stat. 3877

(1996).

A. Introduction

The National Guard, or organized militia, is a Federally-recognized State¹ government entity,

except when called or ordered² to Federal active duty as an element of the National Guard of the

United States.³ The effect of this constitutionally-derived⁴ status is perhaps greatest on the rules for

the use of force (RUF) for the National Guard.⁵ Some policies of DoD and service regulations

apply to the National Guard when they are in Federal status but not when they are commanded by

“State” as used here includes the fifty States, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin

Islands, all of which have National Guard organizations headed by an Adjutant General (or a Commanding General in

the case of the District of Columbia National Guard) governed by State law. For example, the New York National

Guard is governed by NY Consolidated Laws Service, Military Law and the Virginia National Guard is governed by the

Code of Virginia, Title 44.

² Members of the National Guard are called to duty under 10 U.S.C. §§ 331-333 and are ordered to duty under 10

U.S.C. §§ 12301-12304.

³ See Perpich v. Department of Defense, 496 U.S. 334 (1990).

⁴ The National Guard derives its State status from the Militia Clauses of the U.S. Constitution. U.S. CONST., art. I, § 8,

cl. 15, 16.

⁵ The law forming the bases for the Rules for the Use of Force (RUF) by the National Guard is the general criminal law

of the States. There is, therefore, no single term used to describe those rules as States have referred to them variously as

rules of engagement (ROE), rules for the use of force (RUF), rules on the use of force (ROUF), and rules of interaction

(ROI). “RUF,” as used in this chapter, is used as a generic term intended to encompass those rules of the 54 National

Guard jurisdictions which are based upon the criminal laws of those individual jurisdictions. Compare this to the

standing rules on the use of force (SRUF) in JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF

INSTRUCTION 3121.01B, STANDING RULES OF ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES

(13 Jun. 2005) [hereinafter CJCSI 3121.01B]. CJCSI 3121.01B is classified overall secret; the portions regarding

SRUF discussed herein are unclassified. *** NOTE: As of the publishing of this Handbook, the current

SROE/SRUF remain under revision. Judge advocates should check to see if the 2005 SROE/SRUF have been

updated before providing advice on these rules.***

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State authorities.⁶ As a result, the law that is the basis for National Guard RUF is the criminal law

of the State in which a National Guard unit is performing the mission.⁷ The drafting and application

of State National Guard RUF, derived from State law and National Guard Bureau policy,⁸ is the

subject of this chapter.⁹

B. RUF and State Criminal Laws

State Law Applicable to Both Title 32 and SAD Statuses

Most National Guard operations in support of civil authorities are in support of State civil

authorities and are undertaken on a State-funded basis, usually referred to as “State Active Duty”

(SAD).¹⁰ These types of operations include response to natural disasters, providing security during

civil disturbances, and assistance to civil authorities during other State emergencies, such as strikes

at State institutions. The notable operational exceptions include National Special Security Events

(NSSE) as discussed in Chapter 8 infra,¹¹ the 2001-2002 National Guard airport security mission

(hereinafter airport security mission),¹² the 2012 NATO Summit in Chicago, and the Democratic

⁶ For example, CJCSI 3121.01B SRUF applies to the National Guard only when called or ordered to active duty in a

Federal status under the provisions of Title 10, U.S.C. See, e.g., U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE

SUPPORT OF CIVIL AUTHORITIES (29 Dec. 2010) (C2, 19 Mar. 2018); U.S. DEP’T OF DEFENSE, INST. 3025.21, DEFENSE

SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb. 2013). NATIONAL GUARD REGULATION 500-

1/ANGI 10-8101 - NATIONAL GUARD DOMESTIC OPERATIONS (13 Jun. 08) [hereinafter NGR 500-1].

However, Army regulations and Air Force instructions govern the National Guard not in the active Federal service in

the same manner as they do the regular components, when such regulations or instructions have been made applicable to

the National Guard. Specific applicability is indicated in departmental regulations and instructions. See NGR 500-1,

para. 3-2.

⁷ See NATIONAL GUARD REGULATION 500-5/ANGI 10-802 - National Guard Domestic Law Enforcement Support and

Mission Assurance Operations (18 Aug. 10) [hereinafter NGR 500-5], para. 4-4. A more in-depth explanation is that

the criminal law of the States applies to both members of the National Guard operating in a State status and to off-post

operations (and in some instances, some on-post activities) of the active components of the U.S. armed forces (including

the National Guard called or ordered to active Federal service). See Lieutenant Colonel Wendy A. Stafford, How to

Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force,

ARMY LAW, Nov. 2000, at 1. The active component, because of its Federal mission, is however largely protected from

the impact of State criminal law by the doctrine of Federal Supremacy Clause immunity. Judicial opinions dealing with

the application of that doctrine to the military are discussed in the text infra at subparagraph C.2.

⁸ National Guard Bureau policy states that use of force is governed by State law. NGR 500-5, supra note 7, para. 4-4.b.

See, e.g., NGR 500-1, supra note 6, para. 3-2.c.(2).

⁹ This chapter does not include consideration of State rules for the use of force applied as part of the National Guard

counter-drug program, for that see infra Chapter 7, Counterdrug Operations.

¹⁰ See NGR 500-5, supra note 7, para. 4-1. DEP’T OF DEFENSE, DIR. 5101.83, NATIONAL GUARD JOINT FORCE

HEADQUARTERS-STATE (NG JFHQS-STATE) (5 Jan. 2011). State active duty [SAD] is a status pursuant to State law

only and is funded by the State, unlike the status in which the National Guard trains for its Federal mission pursuant to

Title 32 of the United States Code [Title 32 status], which is Federally funded and regulated. The National Guard in an

SAD status may, however, use certain Federal equipment, subject to a requirement for reimbursement for that use. In

SAD status, many National Guard Bureau and Active Army regulations may not apply unless the State has adopted

those regulations as a matter of State law; for more information, see Chapter 3 infra.

¹¹ For example, the National Guard provided security support for the 1996 Summer Olympics in Atlanta, Georgia, and

the 2002 Winter Olympics in Salt Lake City, Utah.

¹² The airport security mission was served as “other duty,” pursuant to 32 U.S.C. § 502(f). On September 27, 2001, the

President made a request to all of the State Governors that they call their National Guard personnel to duty, to be paid

for by the United States, according to a White House press release. Between four and five thousand National Guard

personnel served at approximately 450 commercial airports around the United States in response to the President’s

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and Republican National Conventions of 2016. These operations were performed in Title 32

status.¹³ As explained in detail in Chapter 3 infra, both SAD and Title 32 statuses are non-Federal

and State law applies.¹⁴ As such, it is the criminal law of the States hosting the events, i.e. the

Olympics and the conventions; that govern the RUF. In the case of airport security, missions were

executed in many of the 54 National Guard jurisdictions. Each jurisdiction in which an airport was

secured by National Guard personnel applied its own criminal law.¹⁵ Consequently, multiple sets of

RUF were used during the airport security mission. Although most rules addressed similar subjects,

the specific implementation of these rules varied depending on the jurisdiction.¹⁶ Examples of State

RUF referred to throughout this chapter are, unless otherwise indicated, the RUF of the airport

security mission.

Subjects for Inclusion in State RUF for the National Guard

When the National Guard executes a Title 32 or SAD mission that utilizes RUF, the subjects

appropriate for the RUF are derived from the mission operation plan or operation order

(OPLAN/OPORD). The RUF covers core State criminal law subjects such as the right of self

defense (including the retreat doctrine) necessary warning, proportionality, and location issues (for

instance the defender’s home or work place). The RUF should also address the right to carry and

discharge firearms, the authority of National Guard personnel as peace officers, and the authority

for apprehension, search, and seizure. Whether, and the extent to which, these basic RUF subjects

are included in a given OPLAN/OPORD are mission-dependent decisions.¹⁷

a. Subjects Appropriate for Inclusion in All RUF

(1) RUF Change Authority

An important element appropriate for virtually all State National Guard RUF is an explanation of

the authority to modify the RUF. If Adjutants General have delegated that authority to subordinate

request. Additionally, New York National Guard personnel in a Title 32 status after the 9/11 terrorist attacks performed

another mission in the form of armory security. See Transcript of After Action Review Conference, Office of the Staff

Judge Advocate, State Area Command (STARC), New York Army National Guard, and the Center for Law and

Military Operations, at 17-18 (17-18 May 2002) [hereinafter NYARNG Transcript] (on file with CLAMO).

¹³ NATIONAL GUARD REG. 350-1, ARMY NATIONAL GUARD TRAINING, para. 3-9.j.4 Aug. 2009) [hereinafter NGR 350-

1] (providing that Title 32 status may be used by an Adjutant General for what would otherwise be a State (SAD)

mission if the Adjutant General determines that the mission will provide a training benefit for National Guard personnel

in their Federal role). At least one State, New York, chose to exercise all or part of the airport security mission in SAD

status.

¹⁴ See infra Chapter 3. Note that this may not always be the case in Federal use of force law liability. For example, if

National Guard personnel in a Title 32 or SAD status are inadvertently made subject to the orders and authority of a

Federal commander, they could be held to a use of force standard as defined by applicable Federal law.

¹⁵ The 1996 Summer Games in Georgia and the 2002 Winter Games in Utah are two examples.

¹⁶ In 2003, the Operational Law and Counterdrug Team of the Chief Counsel’s Office, National Guard Bureau,

collected and reviewed virtually all of the State RUFs used in the airport security mission. All these RUFs are retained

by that office in both paper and electronic format. The Operational Law and Counterdrug Team has continued to collect

and review the State RUFs since 2003, including those used in hurricane responses such as Hurricanes Harvey, Irma

and Nate in 2018.

¹⁷ For example, if the mission includes the security of certain real property, then the right to search and seize and

amount of force necessary to undertake the inspection of persons and personal property entering and leaving that

location should be included in the OPLAN/OPORD or RUF.

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