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commanders, then the RUF must clearly state which part(s) of the RUF may be changed, in what
manner and by whom. If the RUF contain no delegation of authority, then either the Adjutant
General or State level task force commander retains the authority. If authority to change the RUF is
wholly denied, including the authority to further restrict the RUF, then that should also be made
clear.
(2) Right of Self-Defense
Another element appropriate for inclusion in all RUF, even for unarmed security missions, is the
right to exercise reasonable and necessary force in self-defense.18 Mission analysis19 and State
law20 will determine whether, as part of the general right of self-defense, National Guard personnel
will be armed. Judge advocates should help determine that appropriate procedural requirements
regarding the carriage of weapons have been met well before a mission. One of the early concerns
for New York Army National Guard judge advocates after the 11 September 2001 terrorist attacks
was the authority of New York National Guard personnel to carry weapons. Under New York law
“[p]ersons in the military service of the State of New York when duly authorized by regulation
issued by the adjutant general” are authorized to carry firearms.21 Unfortunately, such regulations
were not previously promulgated. Consequently, the judge advocates drafted Department of
Military and Naval Affairs (DMNA) Regulation 27-13, Carrying of Firearms and Use of Force,
which the Governor’s Counsel Office approved on 29 September 2001.22
The RUF must also address State law topics such as the right to defend others,23 the duty to
retreat,24 the use of deadly force to prevent escapes,25 the requirement or limit on the use of
18 See CJCSI 3121.01B, supra note 5, Encl. L(U), para. 4.a. It provides that service-members may exercise individual
self-defense in response to a hostile act or demonstrated hostile intent, except as limited by a commander as part of unit
self-defense. The SRUF provide that a unit commander may limit the use of individual self-defense by members of
their unit. Whether State National Guard RUF may, like the SRUF, deny the right of individual self-defense in some
instances, is open to question, especially because many States have statutes applicable to all persons within the State,
including National Guard personnel, providing for the right of self-defense. See, e.g., MONT. CODE ANN. § 45-3-102. It
is likely that National Guard commanders could lawfully place restrictions on the use, for self-defense purposes, of
weapons issued by the National Guard; however, if a weapon is issued for the purposes of mission accomplishment, it
may make little tactical sense to deny the use of the same weapon for purposes of individual self-defense.
19 As used herein, “mission analysis” refers to the commander’s vision of the execution of the mission, a determination
of the amount of force necessary for mission accomplishment, and a determination, in light of known factors such as
intelligence on the nature of the threat presented to State forces, of whether National Guard personnel could be the
subject of any type of physical attack in executing the mission.
20 It is important to distinguish between the citizen’s individual right of self-defense from the right of a government
official to use force in self-defense. The rights and duties for these two different legal theories are similar, but contain
critical differences. RUF drafters must decide which legal authority they wish to invoke, and then ensure that the
description of this authority remains consistent. Ambiguities created by confusing the two authorities could lead to
confusion by members. Almost all of the topics listed in this section will allow for different conduct by a member
acting in self-defense under the two theories.
21 N.Y. PENAL LAW § 265-20.
22 NYARNG Transcript, supra note 12, at 51.
23 The right to defend others is frequently the subject of the same State statutes that provide for an individual’s right to
defend him or herself. See, e.g., CONN. GEN. STAT. § 53a-19(a); COLO. REV. STAT. § 18-1-704(1).
24 The laws of several States require the duty to retreat, so, for the airport security mission, those States included the
duty in the RUF. See, e.g., Connecticut airport security mission RUF para. IIIC(b) and CONN. GEN. STAT. § 53a-19(b).
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warnings before the employment of deadly force in self defense,26 the requirement for the use of
proportionality,27 and whether the place where the right of self defense is exercised imposes
additional legal implications.28
(3) Special Orders
Many RUF include discussion of issues not directly related to the use of force. These issues are
called “special orders” and cover such matters as: training (including training scenarios), military
bearing and appearance, immunity, standards of conduct and treatment of civilians, safety, handling
news media, discussion of the mission with others, and handling of suspicious persons, vehicles,
and activities. Usually, The Adjutant General (TAG) of the State or the task force commander will
decide whether to include them in the RUF or in the OPLAN/OPORD.
b. Role of State Law in Determining RUF for Law Enforcement, Law Enforcement
Support, and Security Missions
There are variations between the States regarding National Guard authority to apply force during a
law enforcement,29 law enforcement support,30or security operation. For example, some States by
statute give the National Guard the full authority of peace officers.31 In other States, the National
Guard has only those peace officer-type powers enjoyed by the population at large.32 Still others
25 For a detailed discussion of the Fourth Amendment aspects of this topic in the context of FBI RUF, see Harris v.
Roderick, 126 F.3d 1189 (9th Cir. 1997).
26 Many, if not most, States included the necessity for a warning (if possible) before resorting to the use of deadly force
in the airport security mission RUF.
27 Some State RUF used for the airport security mission specifically required that action taken in self-defense must be
proportional to the force used in the attack necessitating the defense. It is unclear whether this duty was imposed in the
RUF as a result of a State law requirement, or whether it was an inadvertent carryover from the law of war rule of
proportionality that is reflected in the SROE.
28 In some States, the right of self-defense is greater when exercised in the defender’s home or place of work. In those
places there is often no duty to retreat. See, e.g., CONN. GEN. STAT. § 53a-19(b); N. D. CENT. CODE § 12.1-05-07.
29 Because the Posse Comitatus Act, 18 U.S.C. § 1385 (2016) [hereinafter PCA] does not apply to the National Guard
when not in Federal status or under Federal control, there is no Federal law prohibiting the National Guard from
participating in direct law enforcement actions. Whether the National Guard forces of any State may otherwise
participate in such actions therefore depends upon the law of the individual States. Concerning application of the PCA
to the National Guard, see also infra subparagraph C.2.
30 For the purposes of the National Guard, “law enforcement support” usually means assistance provided to civilian law
enforcement agencies at their direction or request - a meaning which may differ for purposes of the PCA regarding
Federal military forces.
31 For example, Arkansas law at ARK. CODE ANN. § 12-61-112(a) provides the following:
(a) Whenever such forces or any part thereof shall be ordered out for service of any kind, they shall have all
powers, duties, and immunities of peace officers of the State of Arkansas in addition to all powers, duties, and
immunities now otherwise provided by law.
32 See, e.g., Iowa RUF for the airport security mission “Task Force Freedom Flight - Airport Security Instructions,”
para. 4 and its reliance, for the purposes of arrest of civilians committing crimes in the presence of National Guard
personnel, on Iowa Code § 804.9, granting ordinary citizens the power of arrest; Nebraska Rules of Interaction (ROI)
#02, 2 Oct. 2001, para. 7 (“You must apply the use of force rules that apply to a private citizen under State law”); and
Use of Force and Arrest Powers of New York National Guard Soldiers, para. 5 (“a National Guardsman’s power and
authority under New York State law are the same as any other citizen”). When conducting SAD missions in the wake
of the 11 Sept. 2001 terrorist attacks, the NYARNG had no greater power than the normal citizen regarding arrest
authority. Although a New York State Emergency Act provided a mechanism for the NYARNG to be designated as
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provide that the National Guard has certain specific authorities in limited situations.33 Depending
upon the State statutes, the National Guard’s authority to act as peace officers may apply to
operations in a Title 32 status, SAD status, or both.34 Regardless, the National Guard judge
advocate must participate in the effort to tailor the RUF to the particular mission, State law, and the
policies of the TAG..35
c. Subjects Appropriate for Inclusion in Law Enforcement, Law Enforcement
Support, and Security Mission RUF
(1) Use of Force and Level of Force Generally
If the National Guard mission is law enforcement, law enforcement support, or security, the mission
OPLAN/OPORD or its RUF must specify what type of government weapons, if any, may be used
for mission accomplishment and self defense. How those weapons may be used, what law
enforcement-type actions (such as search and seizure) may be taken, and the level of force that may
be used should also be addressed. If authority is not granted for any law enforcement-type action
(such as search and seizure) under any circumstances for mission accomplishment, the RUF or
mission OPLAN/OPORD should expressly deny the use of force for the specified purpose.
Conversely, if National Guard personnel are allowed to take some law enforcement-type actions as
a last resort, such as the power to detain and question and/or search persons only when civilian law
enforcement personnel are unavailable or where National Guard personnel have been directed to do
so by civilian law enforcement personnel, this should be stated. The RUF must also address the
degree of force authorized for National Guard personnel in the execution of law enforcement-type
actions for mission accomplishment, self defense, or both.
For example, if a law enforcement support or security mission includes guarding buildings or real
property, the RUF must address whether persons entering or leaving the property may be detained
and questioned or searched by National Guard personnel. If detention, questioning and/or search
are authorized, then the RUF must State whether and to what degree force may be used to enforce
the action. Moreover, for missions that include guarding buildings or real property, the RUF must
address whether force up to and including deadly force may be used to defend the property. Some
airport security mission RUF, for instance, provided that deadly force could only be used to defend
specially designated property.36 When this device is used, National Guard judge advocates must
ensure that a statutory or other system exists for the designation of such property.
peace officers, the provision was not used because the Act also required a lengthy training period. See NYARNG
Transcript, supra note 12, at 52.
33 See, e.g., GA. CODE ANN. § 38-2-6-38-2-6.1.
34 For example, Ark. Code Ann. § 12-61-112 applies “Whenever” National Guard forces are ordered to “service of any
kind,” but Ga. Code Ann. § 38-2-6 to 38-2-6.1, when read in toto, provide that the Governor has the power “in case of
invasion, disaster, insurrection, riot, breach of the peace, combination to oppose the enforcement of the law, or
imminent danger thereof” to declare an emergency ordering the National Guard into “the active service of the State”
and granting the National Guard the authority to “quell riots, insurrections, or a gross breach of the peace or to maintain
order.”
35 For the purposes of the airport security mission, some States adopted more restrictive RUF than State law allowed.
36 On the other hand, the NYARNG RUF did not allow the use of deadly force to protect property. Deadly force was
only authorized in self-defense “if there was a threat of death or grievous bodily harm.” See NYARNG Transcript,
supra note 12, at 70.
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(2) Definitions
Definitions may be appropriate for inclusion in all RUF but they are particularly necessary in armed
law enforcement, law enforcement support, or security operations. Using law enforcement-type
terms that National Guard personnel may not be familiar with may create confusion and may have
unintended consequences. Terms commonly defined include: deadly weapon; firearm; reasonable,
necessary, or minimum force; peace officer; probable cause; reasonable suspicion; reasonable
belief; deadly and non-deadly force; arrest (civilian or military term); apprehension; detention;
property vital to public health or safety (or other similar phrase); forcible felony (when defense is
predicated on commission of a forcible felony); hostile act; hostile intent; proportionality or
proportional force; felony; and misdemeanor.
(3) Arming Orders
If firearms or other weapons with the capability to kill or severely injure another will be issued, then
the RUF should provide for positive control by experienced NCOs or officers. One method of
accomplishing this is to specify how members will carry their weapons, ammunition, and other
ancillary equipment, expressed through arming orders. Arming orders are a state of preparedness to
use force. They should not be confused with the authority to use force once a member is faced with
a threat. Arming orders are typically written in a chart or matrix format, specifying where or how
the weapons will be carried and where ammunition will be kept, including when and where loaded
magazines should be carried and when rounds should be chambered. Use of weapons other than
firearms should also be addressed if those weapons will be issued.37 Below is an example of arming
orders used by the Indiana National Guard for the airport security mission.
Arming
Rifle or
Pistol
Baton
Chamber
Ammo
Bayon
Weapon/
Order
Shotgun
et
Safety
Not
AO-1
Sling
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-2
Port
Holster
Belt
Empty
In Pouch
ON
issued
Not
AO-3
Sling
Holster
Hand
Empty
In Pouch
ON
issued
Not
AO-4
Port
Holster
Hand
Empty
In Pouch
ON
issued
In
Not
AO-5
Port
Holster
Hand
Empty
ON
Weapon
issued
Locked &
In
Not
AO-6
Port
In Hand
Belt
ON*
Loaded
Weapon
issued
37 Other weapons may include use of water, batons, pepper spray, or tasers (electric stun guns). In airport security
mission RUF, some States began their use of force matrix at a much lower level than would usually be the case, such as
with an unarmed member first attempting verbal persuasion, then using “unarmed defensive techniques,” then using
non-deadly physical force to restrain the aggressor, then stating that a weapon would be drawn if the aggressor
continued his or her aggression, then drawing and displaying the weapon, then stating that a round would be chambered,
etc. Commanders using this technique must of course explain that in a true tactical situation, the command does not
expect that each service-member must always use each and every incremental increase in the use of force; in some
instances it would be futile and could risk injury to do anything except for, drawing and firing a weapon.
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* Leave safety on until ready to fire
(4) Special Orders
Other potential subjects appropriate for inclusion in National Guard RUF for law enforcement, law
enforcement support, or security missions concerning use of force include: the relationship of
National Guard personnel to civilian law enforcement personnel,38 acting at the direction of civilian
law enforcement,39 defense of others, pursuit of suspects, retention of evidence,40 use of restraints,
reports of firearm discharge,41 or other use of deadly force, accountability of weapons and
ammunition, and a prohibition against use of non-issued weapons and ammunition.
C. Specific RUF Issues
1.
RUF in Interstate (Cross Border) Operations
National Guard forces may cross State borders both for training in a Title 32 status for their Federal
mission and for assisting neighboring States in SAD status. Naturally, for many of these operations,
the units carry their organic weapons. In some States, however, State code or constitutions may
complicate this practice. For example, § 33 of the Montana Constitution provides that no “armed
persons . . . shall be brought into this State for the preservation of the peace . . . except upon
application of the legislature . . .” and § 431.011 of Texas Statutes provides that a “military force
from another State . . . may not enter the State without the permission of the Governor.” Statutes or
constitutional provisions like these can impede the timely flow of National Guard forces from one
State to another.
Federal Supremacy Clause immunity42 may be a viable defense should an violation of State law
arise in the case of a National Guard force crossing a State border for Federal training purposes (this
38 In a mission supporting civil authorities, National Guard personnel are typically instructed to rely upon civilian law
enforcement personnel to detain and question persons, conduct searches and seizures, and to apprehend offenders, and
to take any of these steps themselves only when requested or directed by those civilian law enforcement personnel or
only in the most exigent of other circumstances. See NGR 500-1, supra note 6; and, for the purposes of the airport
security mission, 29 Sept. 2001 ARNG Airport Security Instructions, para. 2-1, 3-6b [hereinafter ARNG Airport
Security Instructions] (limiting the National Guard to a law enforcement support role during the airport security
mission).
39 Actions taken at the direction of Federal personnel will help support the argument that National Guard members are
shielded by Federal Supremacy Clause immunity from State criminal charges. See text infra, subparagraph C.2.; also
see, West Virginia v. Laing, 133 F. 887 (4th Cir. 1904) and James River Apartments, Inc. v. Federal Hous. Admin., 136
F. Supp. 24 (D. Md. 1955), in which persons who otherwise had no Federal or other governmental status were given
Federal Supremacy Clause immunity by judicial opinion because they acted at the behest of Federal officials. Note also
that National Guard members taking law enforcement-type action at the express request or direction of law enforcement
personnel may be provided with State immunity from civil or criminal prosecution. See, e.g., UTAH CODE ANN. § 76-2-
404; CONN. GEN. STAT. § 53a-22(d)-(e).
40 DA Form 4237-R (Detainee Personnel Record) may be used to inventory items taken from detainees.
41 ARNG Airport Security Instruction, supra note 41, para. 3-17a(3), required that the discharge of firearms, among
other matters, by National Guard personnel serving in that mission be reported to the National Guard Bureau as a
serious incident.
42 See text infra subparagraph C.2.
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concept is discussed more below). If Federal Supremacy Clause immunity is successful in defense
of a violation of State law, then the use of one State’s RUF would not appear to be an issue in cross-
border operations (unless the RUF themselves are unconstitutional),43 unless operations undertaken
in an SAD status are involved.44
The best approach is to work in advance of the need to cross a State border to get proper approvals
to enter. Cross-border operations by State National Guard units in an SAD status for the purposes
of disaster relief or other State emergencies within a second State have typically been accomplished
pursuant to the several disaster-related or “National Guard-only” interstate compacts.45 The latest
of these compacts available for use during disaster relief or other State emergencies by the National
Guard, and the one most recently approved by Congress, is the Emergency Management Assistance
Compact (EMAC).46 As table 11-1 demonstrates below, all States now have codified the EMAC,
most without change. Since its approval by Congress in 1996, many States have used EMAC for
various State emergencies. The possibility of its use in situations where the use of force may be
necessary exists.47
EMAC, like all congressionally-approved interstate compacts, is Federal law.48 As such, it is
applied in the same manner as other Federal legislation.49 This position in the legal hierarchy
provides a basis to overcome State constitutional provisions that would otherwise serve to prohibit
the entry of National Guard members from other States.50 Further, peace officer powers granted by
the requesting State’s statutes only to the National Guard forces of that State51 may be granted to the
43 For an example of unconstitutional RUF, see Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997).
44 It is even more likely that an armed National Guard force would be seen as a threat if entering the State in a SAD
status to control civil unrest, rather than under a pure training mission pursuant to 32 U.S.C. § 502(f). Also note that
some civil support missions undertaken for State purposes may be counted as training; however, under NGR 350-1,
supra note 13, para. 3-9.j., and Federal Supremacy Clause, immunity may be available to protect that mission or part of
that mission.
45 AMERICAN LAW SOURCE ON-LINE, United States - Interstate Compacts, http://www.lawsource.com/also/usa.cgi?usi
(last visited Apr. 20, 2018) provides a listing of interstate compacts, including those of most direct concern to the
National Guard: the Emergency Management Assistance Compact (EMAC); the Interstate Civil Defense and Disaster
Compact; the Interstate Emergency Management Compact; the Interstate Mutual Aid Compact; and the National Guard
Mutual Assistance Compact. This on-line list includes neither the Massachusetts Compact with New York for Military
Aid in an Emergency nor the New England States Emergency Military Aid Compact.
46 The Emergency Management Assistance Compact (EMAC) was approved by Congress in October of 1996, see Pub.
L. No. 104-321, 110 Stat. 3877 (1996) [hereinafter EMAC]. At the time of the 9/11 terrorist attacks, New York was not
a member of the EMAC. New York did, however, have a 1951 Mutual Aid Compact with New Jersey, Vermont, and
Massachusetts. A major issue that arose was what State would have command and control over service-members from
other States. NYARNG Transcript, supra note 12, at 35-6.
47 The Emergency Management Assistance Compact Guidebook & Standard Operating Procedures manual of the
National Emergency Management Association notes that EMAC has been used for several large-scale emergencies,
such as Hurricane Andrew, and notes that it was used in response to 9/11 terrorist attacks on the World Trade Center in
New York. MUNRO, DOUGLAS P., THE EMERGENCY MANAGEMENT ASSISTANCE COMPACT GUIDEBOOK & STANDARD
OPERATING PROCEDURES (Diane Pub. Co., 1997) [hereinafter EMAC SOP manual].
48 See, e.g., Texas v. New Mexico, 462 U.S. 554 (1983).
49 See, e.g., Skamania County v. Woodall, 16 P.3d 701 (Wash. 2001).
50 The EMAC provides that a request by one party State for mutual aid from a second State is mandatory in that the
request must be honored, subject only to the second State’s right to retain within that State those resources as are
necessary for self protection. EMAC, supra note 49, art. IV, para.1.
51 See ARK. CODE ANN. § 12-61-112(a).
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National Guard forces of the sending State by the use of one or more EMAC supplemental
agreements.52 Under most situations, National Guard cross border operations are usually limited to
providing law enforcement support to civil authorities, rather than providing direct law enforcement
service.53 However, National Guard can in some instances be used for Domestic Law Enforcement
Operations.54
State
EMAC Legislation
Alabama
Ala. Code § 31-9-40
Alaska
Alaska Stat. § 26.23.135
Arizona
Ariz. Rev. Stat. § 26-402
Arkansas
Ark. Code § 12-49-402
California
Cal. Gov’t Code §§ 179-179.9
Colorado
Colo. Rev. Stat. § 24-60-2901
Connecticut
Conn. Gen. Stat. § 28-23a
Delaware
Del. Code tit. 20, § 3401
District of
D.C. Code § 7-2331
Columbia
Florida
Fla. Stat. §§ 252.921-933
Georgia
Ga. Code § 38-3-81
52 The EMAC provides that the power of arrest is granted to the emergency forces of the sending State if that power is
“specifically agreed to” by the receiving State. EMAC, supra note 49, art. IV, para. 2. If the statutes of the receiving
State grant only the National Guard forces of that State the authority of a peace officer, that limitation might be
overcome by providing for the expanded authority of those forces from the sending State into one or more
supplementary agreements pursuant to EMAC Article VII. Including this authority in a supplemental agreement could
overcome the limitations to a State’s own National Guard units because an agreement implementing an interstate
compact that has been approved by Congress has been held also to have the force and effect of Federal law. See Tahoe
Reg’l Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985). A related issue is whether the executive branch
emergency forces of two States whose legislative branches have granted no peace officer authority to either of their
respective National Guard forces can nevertheless give themselves those powers and their supporting RUF by the
inclusion of those powers in an EMAC Article VII supplementary agreement.
53 See NGR 500-5, supra note 7, para. 4-2. The National Guard instruction governing the airport security mission
contemplated cross border operations but provided that National Guard forces were not to participate in law
enforcement operations unless in exigent circumstances. ARNG Airport Security Instructions, supra note 41, paras. 2-
1e, 2-8..
54 See generally, NGR 500-5, supra note 7, Chapter 5
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Guam
Guam Pub. L. 29-29
Hawaii
Haw. Rev. Stat. § 128F-2
Idaho
Idaho Code § 46-1018A
Illinois
45 Ill. Comp. Stat. 151
Indiana
Ind. Code §§ 10-14-5-1 to 16
Iowa
Iowa Code § 29C.21
Kansas
Kan. Stat. § 48-9a01
Kentucky
Ky. Rev. Stat. § 39a.950
Louisiana
La. Stat. § 29:733
Maine
Me. Rev. Stat. tit. 37-B, § 921-933
Maryland
Md. Code, Pub. Safety § 14-702
Massachusetts
2000 Mass. Acts ch. 339
Michigan
Mich. Comp. Laws § 3.991
Minnesota
Minn. Stat. § 192.89
Mississippi
Miss. Code § 45-18-3
Missouri
Mo. Rev. Stat. § 44.415
Montana
Mont. Code 10-3-1001
Nebraska
Neb. Rev. Stat. § A1-124
Nevada
Nev. Rev. Stat. § 415. 010
New
N.H. Rev. Stat. §§ 108:1-3
Hampshire
New Jersey
N.J. Stat §§ 38A:20-4, 20-5
New Mexico
N.M. Stat. §§ 12-10-14, 15
New York
N.Y. Exec. Law § 29-g
North
N.C. Gen. Stat. § 166A-40 to 53
Carolina
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North Dakota
N.D. Cent. Code §37-17.1-14.5
Ohio
Ohio Rev. Code § 5502.40
Oklahoma
Okla. Stat. tit. 63, §§ 684.1-13
Oregon
Or. Rev. Stat. § 402.105
Pennsylvania
35 Pa. Cons. Stat §§ 7601-7604
Puerto Rico
P.R. Laws tit. 1, §§ 621-633
Rhode Island
30 R.I. Gen. Laws §§ 30-15.9 to 14
South
S.C. Code §§ 25-9-410, 25-9-420
Carolina
South Dakota
S.D. Codified Laws §34-48A-53
Tennessee
Tenn. Code § 58-2-403
Texas
Tex. Health & Safety Code § 778.001
Utah
Utah Code §§ 53-2a-401 to 403
Vermont
Vt. Stat. tit. 20, §§ 101-112
Virgin Islands
V.I. Code tit. 23, §§ 1051-1064
Virginia
Va. Code § 44-146.28:1
Washington
Wash. Rev. Code § 38.10.010
West Virginia
W. Va. Code § 15-5-22
Wisconsin
Wis. Stat. § 323.80
Wyoming
Wyo. Stat. §§ 19-13-401 to 414
Table 11-1. State EMAC Legislation
2.
State Criminal Liability of National Guard Members for Use of Force
Immunity from State criminal charges for wrongful use of force by National Guard personnel was a
topic addressed by some National Guard RUF for the airport security mission.55 The subject is
55 See, e.g., Airport security mission RUF for the States of Nevada, New Jersey, and New York.
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addressed here in the context of National Guard personnel on active duty for the purpose of Federal
domestic law enforcement support or Federal security mission,56 and both Title 32 status57 and SAD
status for the purposes of a State emergency. As discussed at the beginning of this chapter, State
criminal law and therefore State RUF apply to both missions in Title 32 and SAD statuses. The
focus of criminal liability under State law while in Federal active duty status or in a State status is
on the doctrine of Federal Supremacy Clause immunity.58
a. Active Duty Federal Mission
Although the early history of the doctrine of Federal Supremacy Clause immunity59 began
somewhat before the case was decided,60 the opinion of the Supreme Court in In Re Neagle, 135
U.S. 1 (1890), is regarded as the seminal case establishing the theory that the employees of the
United States cannot be limited, by prosecution under State criminal laws, by the States in their
good faith, rightful, and proper execution of their Federal duties.
Mr. David Neagle, who served as a Deputy U.S. Marshal and bodyguard to Mr. Justice Stephen
Field, then a sitting member of the U.S. Supreme Court, was charged with murder by the State of
California after killing another individual, Mr. David Terry, whom Neagle thought was reaching for
a weapon in an attempt to kill Mr. Justice Field. Neagle successfully argued that in killing Mr.
Terry, he (Neagle) did no more than was required of him by his Federal position as Deputy Marshal
and bodyguard and that California should not be allowed to proceed in its prosecution lest that State
by implication be allowed to control the proper execution of his Federal duties.
Since that case, the defense that proved so valuable to Mr. Neagle has been applied successfully
numerous times in judicial opinions on behalf of Federal employees and other persons carrying out
Federal missions, including Federal military personnel carrying out Federal military missions.
Those Federal active duty military defendants have successfully employed the “Neagle defense” of
Federal Supremacy Clause immunity against State criminal charges for improper operations of a
motor vehicle,61 defamation,62 assault,63 and murder in the course of guarding prisoners of the U.S.
56 Such as during the 2002-2003 Air Force security mission, in which approximately 8,100 Army National Guard
Soldiers were mobilized under 10 U.S.C. § 12302 for the purposes of providing security at U.S.A.F. and Air National
Guard installations.
57 This was the case in the airport security mission.
58 Since National Guard Soldiers performing security duties may be subject to both criminal and civil liability based on
both State and Federal law for use of force incidents, the concepts of Federal Supremacy Clause immunity and
governmental qualified immunity under both State and Federal law will be critical. For simplicity, this discussion is
limited to Federal Supremacy Clause immunity.
59 See U.S. CONST. art. VI, cl. 2 (Supremacy Clause).
60 A U.S. Supreme Court case predating Neagle is Tennessee v. Davis, 100 U.S. 257 (1880).
61 See Montana v. Christopher, 345 F. Supp. 60 (D. Mont. 1972) (operating a vehicle without lights); Commonwealth v.
Thomas, 612 F. Supp. 14 (W.D. Pa. 1984) (violation of State weight limits).
62 Howard v. Sikula, 627 F. Supp. 497 (S.D. Ohio 1986).
63 See Lima v. Lawler, 63 F. Supp. 446 (E.D. Va. 1945); Commonwealth v. Johnson, 297 F.Supp. 877 (W.D. Pa. 1969).
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Army.64 There is no limitation expressed in any of those opinions as to the type or character of the
State offense to which the doctrine might be applied on a service-member’s behalf.65
In only one reported military-related case has anything like Federal military RUF been clearly the
subject of a Federal Supremacy Clause defense to State criminal charges. In United States v.
Lipsett, 156 F. 65 (W.D. Mich. 1907), a case involving the shooting of an innocent bystander by a
military guard, the Court examined the manual of guard duty used for training guards assigned to
military prisoners. The Court found that per the manual, the guard’s duty in response to an
attempted escape was to first call for the escapee to halt, and if the escapee did not halt, to then fire
upon the prisoner.66 In this case, based largely on the court’s understanding of the guard’s Federal
duties, the guard was acquitted of manslaughter.
The only reported case found involving Federal RUF is a non-military civil case involving the RUF
used by the FBI during the standoff between alleged weapons trafficker Randy Weaver and the FBI
at Ruby Ridge, Idaho, in 1992. In Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), the Court held
the “shoot any armed male” FBI RUF to have been overly broad and to have deprived the plaintiff
of his constitutional rights under the Fourth Amendment of the Constitution. Thus, not only may a
Federal officer, in the performance of his duties under a set of rules unlawfully deny the victim his
constitutional rights, but the RUF at issue may be considered unconstitutional on their face as well.
b. Title 32 or SAD Status and Mission
The holding of Perpich v. Dep’t of Defense67 (noted above) stated that National Guard personnel in
a Federal training or “other duty” status under 32 U.S.C. 502 are a State military force, and
consequently, their RUF are derived from State criminal and civil law. Under this analysis, the best
defenses to the possibility of a State criminal charge68 resulting from good faith compliance with
State RUF include:
A State statute providing criminal immunity for National Guard personnel.69
An agreement with the State Attorney General (possibly at the time the State Attorney General
gives any approval of the RUF70) that National Guard personnel will not be prosecuted
criminally for good faith compliance with the National Guard RUF.71
64 See In re Fair, 100 F. 149 (C.C.D. Neb. 1900) and United States v. Lipsett, 156 F. 65 (W.D. Mich. 907).
65 The only limitation is that the act in question be taken in good faith and that the act be truly necessary for the
purposes of the Federal mission. Thus, the defense has not been judicially applied in defense to State charges of
unintentional death where the particular maneuver of a government vehicle was not required by the Federal military
mission. See State v. Ivory, 906 F.2d 999 (4th Cir. 1990).
66 United States v. Lipsett, 156 F. 65 (W.D. Mich. 1907).
67 Perpich v. Department of Defense, 496 U.S. 334 (1990).
68 Of course, because the subject is the possibility of State criminal charges, there is no value to tort law “hold
harmless” agreements or the possible application of both the Federal Tort Claims Act and State tort claims laws.
69 New York, for example, has a statute that grants civil and criminal immunity to members of the New York National
Guard ordered into active service of the State for “any act or acts done by them in the performance of their duty.” N.Y.
PENAL LAW § 235. See also, NEV. REV. STAT. 412.154(1). In the case of the statutory immunity predicate for National
Guard missions for which firearms are issued, the most basic statute providing for use of force may be a statute
providing for immunity for the carrying of firearms. See, e.g., N.J. REV. STAT. § 2C: 39-6(1).
70 The ARNG airport security instruction required the National Guard RUF used for that mission be reviewed by the
State Attorney General. ARNG Airport Security Instructions, supra note 41, para. 3-6a.
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Extension of the doctrine of Federal Supremacy Clause immunity to National Guard personnel
acting under Federal control.
The application of Federal Supremacy Clause immunity to a State military force may rest upon the
accumulation of indicia of a Federal mission such as: Federally-funded orders, use of Federal
equipment, governance by Federal regulations, execution of the mission on a Federally-owned or
governed facility, application of the State RUF through execution of supplemental agreements
under EMAC,72 execution of the mission details at the direction of Federal authorities such as
Department of Homeland Security personnel, contracts or memoranda of agreement (MOAs) with
Federal officials, or orders to Title 32 duty at the request of Federal Government officials. Case law
clearly indicates that Federal Supremacy Clause immunity should be applied to cases involving a
Federal mission whether or not the subject of that protection is a Federal employee.73
3. RUF in Mixed National Guard and Active Component Operations
Given the doctrine of Federal Supremacy Clause immunity, Federal active duty Soldiers have less
reason to consider themselves bound by the exact restrictions of a State’s criminal law and more
reason to follow the requirements of the SRUF than do National Guard personnel in Title 32 or
SAD status. For this reason, in domestic law enforcement support or security operations involving
both active component and National Guard members, judge advocates must pay close attention to
their RUF (in particular to ensure compatibility with Federal SRUF) if each group has similar
duties. The RUF applicable to National Guard personnel must respect State limitations on law
enforcement-type activities by the National Guard (such as searches and seizures) and the use of
force to support those activities.74
D. Role of the National Guard Judge Advocate
1.
Drafting RUF
While RUF are an S-3/G-3 and commander responsibility, judge advocates should assist in drafting
them (and may be tasked directly to draft them nonetheless). In addition, judge advocates should be
directly involved in the production of RUF-related documents, such as information papers,
71 This type of agreement would have to be predicated upon the approval of the National Guard RUF by the State
Attorney General. It also must be based upon the Attorney General’s statutory or common law powers of supervision
over county or district prosecutors; the more independent the local prosecutor, the less value of any agreement with the
State Attorney General. Where local prosecutors are mostly independent, assurance can only come from the
agreement(s) of the local prosecutor(s).
72 Thus making the supplemental agreement and the RUF contained therein a matter of Federal law. See, e.g., Tahoe
Regional Planning Agency v. McKay, 769 F.2d 534, 536 (9th Cir. 1985).
73 For cases in which defendants, who had no Federal employee status, were subject to State criminal charges
successfully argued the application of Federal Supremacy Clause immunity based upon a Federal mission, see, e.g.,
West Virginia v. Lang, 133 F. 887 (4th Cir. 1904) (member of U.S. Marshal’s posse made of ordinary citizens charged
with murder); Connecticut v. Marra, 528 F. Supp. 381 (D. Conn. 1981) (informer cooperating with FBI charged with
attempting to bribe a city policeman).
74 This does not necessarily imply that State RUF will always be more restrictive than the SRUF. For example, in civil
disturbance support operations in which NGR 500-5 applies. See NGR 500-5, supra note 7, para. 404, In contrast, the
analogous provision of the draft SRUF, CJCSI 3121.01B supra note 5, Encl. L para. 5.c.(2), authorizes the use of
deadly force to protect president-designated assets vital to national security, which by definition is property the theft or
sabotage of which must create an “imminent threat of death or serious bodily harm.”
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memoranda of law, and memoranda of agreement with supported civil authorities.75 Some MOAs
may contain hold harmless provisions which the judge advocates should review, negotiate, and
advise upon. If the RUF used by the National Guard in a law enforcement, law enforcement
support, or security mission refers the reader to, or adopts the RUF currently used by a State law
enforcement agency, judge advocates must review the documents relied upon for the RUF. The
documents should be carefully reviewed to ensure compatibility with member skills, training,
capabilities, weapons, and mission. It may be necessary to add provisions specifically applicable to
the National Guard.
2.
Negotiating RUF with State Agencies
Judge advocates will want to determine whether the RUF, MOA, OPLAN/OPORD, training
documents, and other matters relating to the RUF are comprehensive, legally accurate, and well
understood by the drafters and commanders. At times, other State officers or agencies, such as the
Attorney General, district attorneys, or State law enforcement agencies may be involved in drafting
or approving the RUF. In such cases, judge advocates may find it necessary to educate and
negotiate issues that meld legal requirements with operational imperatives. For example, in New
York after September 11th, New York Army National Guard judge advocates assisted in drafting
the Governor’s airport security plan, including RUF. The plan and RUF were staffed through the
Adjutant General and the Governor’s Counsel Office, and approved by the Governor on 29
September 2001.76
3. Providing Legal Advice on Liability
Counseling decision makers on the legal requirements necessary to protect members from civil and
criminal liability can be a complicated task. The primary focus of the judge advocate’s counseling
will be State’s TAG; the Deputy Chief of Staff for Operations; the Plans, Operations, and Training
Officer; and the Task Force or other commanders.
4.
Training
Judge advocates should seek opportunities to assist trainers responsible for ensuring that individual
members learn and apply the correct standards for force. In this role, they can write or assist in
writing information papers, training vignettes, and legal memoranda. Also, the use of a training
certification process may be useful.
E. Conclusion
When the National Guard operates in a State status, either Title 32 or SAD, the rules for the use of
force are based on the State law where the mission is taking place. Developing these rules for the
use of force requires knowledge of the relevant State law, including the level of law enforcement
authority given to the National Guard, and the criminal laws relating to self-defense. Judge
advocates providing advice on the drafting of the RUF must also tailor their RUF to the specific
75 The National Guard Bureau Instruction governing the airport security mission required that States execute
memoranda of understanding or memoranda of agreement (MOU/MOA) with supported airports for missions longer
than thirty days. See ARNG Airport Security Instructions, supra note 41, para. 2-8a.
76 NYARNG Transcript, supra note 12, at 184.
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mission, and determine the appropriate level of coordination with the State Attorney General’s
Office, the local district attorney, and other law enforcement agencies. Finally, judge advocates
should assist commanders in developing appropriate training so that all National Guard service-
members are fully aware of the State’s RUF prior to engaging in operations.
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CHAPTER 12
FUNDING DOMESTIC OPERATIONS
KEY REFERENCES:
10 U.S.C. §§ 271-284 - Military Support For Civilian Law Enforcement Agencies.
10 U.S.C. §§ 251-255 - Insurrection Act.
10 U.S.C. § 2012 - Support and Services for Eligible Organizations and Activities Outside
Department of Defense (Innovative Readiness Training Program).
10 U.S.C. § 2551 - Equipment and Barracks: National Veterans’ Organizations.
10 U.S.C. § 2552 - Equipment for Instruction and Practice: American Red Cross.
10 U.S.C. § 2554 - Equipment and Other Services: Boy Scout Jamborees.
10 U.S.C. § 2555 - Transportation Services: International Girl Scout Events.
10 U.S.C. § 2556 - Shelter for Homeless; Incidental Service.
10 U.S.C. § 2558 - National Military Associations; Assistance at National Conventions.
10 U.S.C. § 2564 - Provision of Support for Certain Sporting Events.
10 U.S.C. § 2576 - Surplus Military Equipment: Sale to State and Local Law Enforcement,
Firefighting, Homeland Security, and Emergency Management Agencies.
10 U.S.C. § 2667 - Leases: Non-Excess Property of Military Departments and Defense
Agencies.
18 U.S.C. § 1385 - Posse Comitatus Act.
31 U.S.C. § 1301 - The Purpose Statute
31 U.S.C. §§ 1341-44, 1350-51, 1511-19 - Amount and the Anti-Deficiency Act
31 U.S.C. § 1502 - The Time Statute
31 U.S.C. § 1535 - Economy Act.
31 U.S.C. § 3302 - Miscellaneous Receipts.
32 U.S.C. § 112 - Drug Interdiction and Counter-Drug Activities.
42 U.S.C. § 5121, et seq., as amended - Stafford Act.
50 U.S.C. § 2311 - Response to Threats of Terrorist Use of Weapons of Mass Destruction
National Defense Authorization Act for Fiscal Year 1991, Pub. L. No. 101-510, § 1004 (as
amended, Additional Support for Counter-Drug Activities).
Department of Defense Appropriations Act, 1994, Pub. L. No. 103-139, § 8131 (Emergency
Response Fund, Defense).
Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 5802 (Support to
International Sporting Competitions - Defense).
National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1031, (as
amended, Authority to Provide Additional Support for Counter-Drug Activities of Mexico).
National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85, § 1033
(Authority to provide Additional Support for Counter-Drug Activities of Peru and Colombia).
National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 1021
(Extension and Restatement of Authority to Provide Department of Defense Support for
Counter-Drug Activities of other Governmental Agencies).
National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 302, Working
Capital Funds.
National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-248, Title II
Operation and Maintenance.
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National Defense Authorization Act for Fiscal Year, 2009, Pub. L. No 110- 417, Subtitle C,
Counter Drug Activities.
Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118.
National Defense Authorization Act for Fiscal Year 2011, Pub. L. No 111-383.
DoDD 1100.20 - Support and Services for Eligible Organizations and Activities Outside the
Department of Defense, April 12, 2004.
DoDD 3025.18 - Defense Support of Civil Authorities, September 21, 2012 (C2, March 18,
2018).
DoDD 5200.31E - DoD Military Working Dog (MWD) Program, August 10, 2011.
DoDI 3025.20 - Defense Support of Special Events, April 6, 2012.
DoDI 3025.21 - Defense Support of Civilian Law Enforcement Agencies, February 27, 2013.
DoD Financial Management Regulation (FMR) 7000.14-R vol. 14 - Administrative Control of
Funds and Anti-Deficiency Act Violations
DoD Financial Management Regulation (FMR) 7000.14-R, vol.12, ch. 6 - Defense Emergency
Response Fund.
Department of the Army Financial Management Guidance for Disaster Relief Operations,
February 14, 2014
CNGBI 3000.04 - National Guard Bureau Domestic Operations, January 24, 2018 (Cancels and
incorporates NGR 500-1/ ANGI 10-8101).
NGR 500-2/ ANGI 10-801 - National Guard Counterdrug Support, August 29, 2008.
CJCSI 3710.01B, DoD Counterdrug Support, January 26, 2007.
AR 75-14/OPNAVINST 8027.1G/MCO 8027.1D/AFR 136-8 - Interservice Responsibilities for
Explosive Ordinance Disposal, February 14, 1992.
AR 75-15 - Responsibilities and Procedures for Explosive Ordinance Disposal, February 22,
2005.
AR 190-12, Military Working Dogs, March 11, 2013.
AR 700-131, Loan and Lease of Army Material, August 23, 2004.
AR 725-1, Special Authorization and Procedures for Issues, Sales, and Loans, October 17, 2003.
SECNAVINST 5820.7C - Cooperation With Civilian Law Enforcement Officials, January 26,
2006.
OPNAVINST 3440.16D - Navy Defense Support of Civil Authorities Program.
AFI 10-801 - Defense Support of Civil Authorities (DSCA), September 19, 2012.
AFI 31-202 - Military Working Dog Program, May 16, 2009.
A.
Introduction: Basic Fiscal Law Framework
The principles of Federal appropriations law permeate all Federal activity. Fiscal issues arise
frequently during domestic operations, and the failure to understand fiscal nuances may lead to the
improper expenditure of funds and sanctions against those responsible for funding violations.
Under the Constitution, Congress raises revenue and appropriates funds for Federal agency
operations and programs.1 Courts interpret this constitutional authority to mean that Executive
Branch officials, e.g., commanders and staff members, must find affirmative authority for the
1 See U.S. CONST. art. I, § 7.
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obligation and expenditure of appropriated funds.2 To that end, the Comptroller of the United
States at the Government Accountability Office (GAO) developed a three-part “necessary expense”
test to ensure that Federal funds are expended properly: 1) the expenditure must have a logical
relationship to the appropriation charged; 2) the expenditure must not be prohibited by law; and 3)
the expenditure must not be otherwise provided for. Likewise, in many cases, Congress has
specifically limited the ability of the Executive Branch to obligate and expend funds, in annual
authorization or appropriations acts or in permanent legislation.
Because DoD functions primarily in a support role in domestic operations, most military assistance
to civil authorities is provided on a reimbursable basis. In the case of some authorized activities
such as counter-drug support, Congress annually appropriates money to DoD for this purpose. For
other authorized activities, Congress has established special “no year” accounts (such as the
Disaster Relief Fund (DRF) and the Support for International Sporting Competitions (SISC)
account) into which DoD can transfer part of its annual appropriation of Operation and Maintenance
(O&M) funds. Once O&M funds are transferred into such an account, the funds are available for
the same purposes and for the same time period as the appropriation to which transferred. In
providing some types of support such as Military Assistance to Safety and Traffic (MAST), DoD
has the authority to act directly and expend O&M funds. As a result of these various types of
situations, it is important to understand that the purpose, time, and amount rules apply in domestic
support operations.
B. Basic Fiscal Controls
Congress imposes fiscal controls through three basic mechanisms, each implemented by one or
more statutes. The controls are as follows: (1) obligations and expenditures must be for a proper
purpose (the purpose of the funds appears in the language of the appropriation and normally follows
the word “for”); (2) obligations must occur within the time limits applicable to the appropriation
(e.g., O&M funds are available for obligation for one fiscal year) (remember, “current year funds
for current year needs”; and (3) obligations must be within the amounts authorized by Congress (no
spending in advance of nor in excess of an appropriation). With that said, there are certain statutory
exceptions to these fiscal controls. When dealing in a domestic operations scenario, most of the
expenditures are unplanned and emergent. It is the responsibility of the judge advocate to work
with the Contracting Officer, or in the case of the National Guard, the United States Property and
Fiscal Officer (USPFO), to identify legal courses of action then properly advise the commander.
1.
Purpose
Although each fiscal control is important, the “purpose” control is most likely to become an issue
during military operations. The Purpose Statute provides that “[a]ppropriations shall be applied
only to the objects for which the appropriations were made except as otherwise provided by law.”3
2 See, e.g., U.S. v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds
is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”).
An obligation arises when the government incurs a legal liability to pay for its requirements, e.g., supplies, services, or
construction. For example, a contract award normally triggers a fiscal obligation. Commands also incur obligations
when they obtain goods and services from other U.S. agencies or a host nation. An expenditure is an outlay of funds to
satisfy a legal obligation. Both obligations and expenditures are critical fiscal events. See 31 U.S.C. § 1501 (2012).
3 See 31 U.S.C. § 1301(a) (2012).
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Thus, expenditures must be authorized by law (permanent legislation or annual appropriations act)
or be “reasonably related” to the purpose of an appropriation. Judge advocates should ensure,
therefore, that an expenditure fits an appropriation (or permanent statutory provision), or is for a
purpose that is necessary and incident to the general purpose of an appropriation; the expenditure is
not prohibited by law; and the expenditure is not provided for otherwise, i.e., it does not fall within
the scope of some other appropriation.
A corollary to the “purpose” control is the prohibition against augmentation.4 Appropriated funds
designated for a general purpose may not be used for another purpose for which Congress has
appropriated other funds.5 If two funds are equally available for a given purpose, an agency may
elect to use either, but once the election is made, the agency must continue to charge the same
fund.6 This concept is known legally as the “election doctrine,” and the election is binding even
after the chosen appropriation is exhausted.7
Unless otherwise authorized by law, a Federal unit’s O&M funds, cannot be used to provide support
to civil authorities. The same holds true for equipment procured with Federal funds. So, the
question becomes, “What law or policy authorizes a unit to expend funds or incur expenses when
providing support to civil authorities?” The answer is discussed in-depth further in this chapter.
Likewise, if a Federal agency accepts funds outside the normal appropriations process, then the
agency is augmenting the funds that Congress has appropriated. In addition, retaining those funds
violates the Miscellaneous Receipts Statute.8 When these retained funds are expended, this also
violates the Constitutional requirement for an appropriation.9 These legal principles prohibit
unauthorized doD expenditures to further State missions. These principles also prohibit units from
accepting resources directly from State and local entities.
There are, however, statutory [and GAO-sanctioned] exceptions to the Miscellaneous Receipts
Statute. For example intra- and intergovernmental acquisition authorities allow agencies to retain
and use funds from sources other than those appropriated by Congress directly to that particular
agency.10 The Economy Act authorizes a Federal agency to order supplies or services from another
Federal agency. For these transactions, the requesting agency must reimburse the performing
agency fully for the direct and indirect costs of providing the goods and services.11 This stage is
4 See Nonreimbursable Transfer of Admin. Law Judges, B-221585, 65 Comp. Gen. 635 (1986); cf. 31 U.S.C. § 1532
(2012) (prohibiting transfers from one appropriation to another except as authorized by law).
5 Secretary of the Navy, 20 Comp. Gen. 272 (1940).
6 See Funding for Army Repair Projects, Comp. Gen. B-272191, Nov. 4, 1997, 97-2 CPD P141.
7 Honorable Clarence Cannon, B-139510, May 13, 1959, available at http://www.gao.gov/products/403911 (Rivers and
Harbors Appropriation exhausted; Shipbuilding and Conversion, Navy, unavailable for used to dredge channel to
shipyard).
8 See 31 U.S.C. § 3302(b) (2012); Interest Earned on Unauthorized Loans of Fed. Grant Funds, B-246502, 71 Comp.
Gen. 387 (1992).
9 See Use of Appropriated Funds by Air Force to Provide Support for Child Care Centers for Children of Civilian
Employees, B-222989, 67 Comp. Gen. 443 (1988); Bureau of Alcohol, Tobacco, and Firearms--Augmentation of
Appropriations--Replacement of Autos by Negligent Third Parties, B-226004, 67 Comp. Gen. 510 (1988).
10 See, e.g., Economy Act, 31 U.S.C. § 1535 (2012).
11 See Washington Nat’l Airport; Fed. Aviation Admin., B-136318, 57 Comp. Gen. 674 (1978) (depreciation and
interest); Obligation of Funds Under Mil. Interdep’tal Purchase Requests, B-196404, 59 Comp. Gen. 563 (1980); see
also DoD 7000.14-R, vol. 11A, ch. 1, para. 010201.J (waiving overhead for transactions within DoD).
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also where misunderstandings arise regarding the National Guard in terms of State Active Duty
(SAD) missions. That is, when a State performs a SAD mission using Federal equipment (e.g.,
vehicles and helicopters), the United States Property and Fiscal Officer (USPFO) is required under
National Guard Regulation NGR) 500-5 to seek reimbursement from the State.12 However, the
request from the USPFO to the State is not an Economy Act transaction, and therefore the
reimbursement authority at 31 USC 1536 is not applicable. Judge advocates may wish to consult
agency regulations for order approval requirements.13
12 U.S. DEP’T OF ARMY AND AIR FORCE, NAT’L GUARD, REG. 500-5, NATIONAL GUARD DOMESTIC LAW
ENFORCEMENT AND MISSION ASSURANCE OPERATIONS para. 5-5.c (18 Aug. 2010) [hereinafter NGR 500-5].
13 See, e.g., GEN. SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. Subpart 17.5 (Aug 2018) [hereinafter FAR];
Defense Federal Acquisition Regulation Subpart 217.5; Army Federal Acquisition Regulation Supplement Subpart
17.5.
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Congress also has authorized certain expenditures for military support to civil law enforcement
agencies (CLEAs) in counter-drug operations. Support to CLEAs is reimbursable unless it occurs
during normal training and results in DoD receiving a benefit substantially equivalent to that which
otherwise would be obtained from routine training or operations.14 Another statutory provision
authorizes operations or training to be conducted for the sole purpose of providing CLEAs with
specific categories of
support.15 In 10 U.S.C.
Practice Scenario: A major storm pummels your base and the
§ 124, Congress assigned
surrounding local area. The community has suffered major
DoD the operational
damage. Also, a lightning strike knocked out power to the
mission of detecting and
town water distribution system. Your commander wants to
monitoring international
purchase bottled water for the community with unit O&M
drug traffic (a traditional
funds. What do you do first? What advice would you provide?
CLEA function). By
authorizing DoD support
Answer: If you are in the active component, your first step
to CLEAs at essentially
should be to contact the Contracting Officer. If you are in the
no cost, Congress has
National Guard, you should first contact the USPFO. You will
authorized augmentation
be able to perform quick work with them to develop viable
of CLEA appropriations.
courses of action to present to the commander. Also, the judge
advocates and commanders do not have a warrants authorizing
them to obligate the Government. However, Contracting
Officers and USPFOs do. Yes, it is true that absent specific
authority, unit O&M funds are for the operation and
maintenance of the unit. Thus, on the surface, it would appear
2. Time
that the commander is about to commit a Purpose Statute
violation if funds were expended to purchase bottled water for
The “time” control has
the local community. However, simply telling the commander
two major elements:
“No!” may not be the best answer. Ask yourself, “What is the
Appropriations have a
commander’s intent?” It is not to commit a violation of the
definite life span; and
law. It is to help local citizens get water during the disaster or
appropriations normally
emergency. Thus, a little more research may help answer the
must be used for the
mail. By speaking with the Contracting Officer or USPFO,
needs that arise during
you may find that emergency procurement of bottled water has
their period of
already been authorized. Thus, in the instant situation, usage
availability. Most
of Federally appropriated funds to procure bottled water would
appropriations are
not be a violation of the Purpose Statute. Further, many DoD,
available for a finite
and National Guard units maintain water purification systems
period. For example,
that are typically used during the conduct of missions overseas.
Operation and
Maybe the commander can deploy those systems. The U.S.
Maintenance (O&M)
Army Corps of Engineers (USACE) also maintains an
funds, the appropriation
inventory of already awarded contracts, pre-positioned to
most prevalent in an
support major emergency response missions. There is yet
operational setting, are
another option. Many States maintain multi-agency response
available for one year;
guidance to provide water to local citizens during emergency
procurement
situations such as this one (see, e.g., Multi-Agency Response
Guidance for Emergency Drinking Water Procurement and
14 Se
Distribution,” maintained by the California Office of
15 Se
Emergency Services.) In summation, you should first speak
nded (10 U.S.C. § 374, note).
with the Contracting Officer or USPFO. After speaking with
Cha
them, advise the commander of the options available that will
Fun
help get water to the local community.
Domestic Operational Law Handbook 2018
appropriations are available for three years; and construction funds have a five-year period of
availability. If funds are not obligated during their period of availability, they expire and are
unavailable for new obligations (e.g., new contracts or changes outside the scope of an existing
contract). Expired funds may be used, however, to adjust existing obligations (e.g., to pay for a
price increase following an in-scope change to an existing contract). The “bona fide needs rule”
provides that funds are available only to satisfy requirements that arise during their period of
availability, and will affect which fiscal year appropriation you will use to acquire supplies and
services.16 This is commonly referred to as using current year funds for current needs.
The bona fide need for supplies normally exists when the government actually will be able to use
the items. Thus, a command would use a currently available appropriation for computers needed
and purchased in the current fiscal year. Conversely, commands may not use current year funds for
computers that are not needed until the next fiscal year. Year-end spending for computers that will
be delivered within a reasonable time after the new fiscal year begins is proper However, the
current year need must be documented. Note that there are “lead-time” and “stock-level”
exceptions to the general rule governing purchases of supplies.17 In any event, “stockpiling” items
is prohibited.18
Normally, severable services are bona fide needs of the period in which they are performed.
Grounds maintenance, custodial services, and vehicle/equipment maintenance are examples of
recurring services considered severable. Use current year funds for recurring services performed in
the current fiscal year. As an exception however, 10 U.S.C. § 2410a permits funding a contract (or
other agreement) for severable services using an appropriation current when the contract is
executed, even if some services will be performed in the subsequent fiscal year. Conversely, non-
severable services are bona fide needs of the year in which a contract (or other agreement) is
executed. Non-severable services are those that contemplate a single undertaking, e.g., studies,
reports, overhaul of an engine, painting a building, etc. Fund an entire undertaking with
appropriations current when the contract (or agreement) is executed.19
The issue in the performance of domestic operations is two-pronged. First, when it comes to major
disasters and emergencies, the request for DoD assistance is normally unplanned. Thus, it is likely
that no funds with a period of availability were appropriated for this specific purpose. Second,
hurricanes normally hit near the end of the fiscal year. In this case, there are two concerns that a
judge advocate should remember: 1) Current year funds should be used for current year needs; and
2) Federal Acquisition Regulation (FAR) Part 18, Emergency Acquisitions, is a good resource to
use.
16 See 31 U.S.C. § 1502(a) (2012).
17 See DEP’T OF DEFENSE, DEFENSE FINANCE AND ACCOUNTING SERVICE, DFAS-IN Reg. 37-1, DEFENSE FINANCE AND
ACCOUNTING SERVICE REG. INDIANAPOLIS 37-1 ch. 8 (Jan. 2010) [hereinafter DFAS-IN 37-1].
18 See Mr. H.V. Higley, B-134277, Dec. 18, 1957, available at http://redbook.gao.gov/6/fl0029466.php.
19 See DFAS-IN 37-1, supra note 17, ch. 8.
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Practice Scenario: You can barely hear the commander as
you make your way up the stairs from the basement. You have
never experienced a tornado before, and you are still a bit
shaken. The commander is furious that the local Mayor
refused some troops and equipment that the commander sent
out to assist in the tornado clean-up efforts downtown. As a
result, the commander wants to bill the Mayor for the fuel used
in the vehicles to get to and from downtown. He also wants to
send a bill for the food purchased for the local community.
The food was on the vehicles carrying the Soldiers. The intent
was to for the Soldiers to arrive downtown, participate in the
clean-up, and give the food away to local citizens. What fiscal
issues, if any, do you see?
Answer: Recall what you learned in the DSCA policy, DoDD
3025.18. “In response to a request for assistance from a civil
authority, under imminently serious conditions and if time does
not permit approval from higher authority, DoD officials
[,including commanders,] may provide an immediate response
by temporarily employing the resources under their control,
subject to any supplemental direction provided by higher
headquarters.” Here, there is no indication that the Mayor
requested assistance from the commander. Thus, the
commander had no authority to send troops and equipment
downtown to assist in the tornado clean-up efforts. Without
the proper authority, the commander may not seek
reimbursement from the Mayor. Next, it appears that the
commander may have purchased food in violation of the
Purpose Statute. To make this determination, perform the 3-
prong “Necessary Expense Test.” First, the procurement must
be necessary and incident to the appropriation. Second, the
procurement must not be prohibited by law. Third, the
procurement must not be otherwise provided for. Here, the
first prong of the test cannot be satisfied because using O&M
funds to procure food for the local community is not logically
related to expending funds for the normal, day-to-day,
operation and maintenance of the unit. However, this violation
does not automatically mean that the commander has
3.
Amount
committed a violation of the anti-deficiency act (ADA). There
is a 2-prong correction test that must be performed. To avoid a
The Anti-Deficiency Act
violation of the ADA in this instance, 1) the proper funds must
(ADA) prohibits any
government officer or
have been available in the proper account, in the right amount,
employee from making or
at the time of the expenditure, and 2) the proper funds must be
authorizing an expenditure
available in the proper account, in the right amount, at the time
of the correction. Here, the first prong of the correction test
or obligation in advance of
cannot be satisfied because, in general, commanders do not
or in excess of an
have accounts set up for the purposes of procuring food to give
F away to the local community. As a result, the commander may
have committed a violation of the Purpose Statute and the
ADA.
Domestic Operational Law Handbook 2018
appropriation,20 making or authorizing an expenditure or incurring an obligation in excess of a
formal subdivision of funds, or in excess of amounts permitted by regulations prescribed under 31
U.S.C. § 1514(a);21 or from accepting voluntary services, unless authorized by law.22
Commanders must ensure that fund obligations and expenditures do not exceed amounts provided
by higher headquarters. Although over-obligation of an installation O&M account normally does
not trigger a reportable ADA violation, an over-obligation locally may lead to a breach of a formal
O&M subdivision at the Major Command level.23
Commanders must investigate suspected violations to establish responsibility and discipline
violators. Regulations require “flash reporting” of possible ADA violations.24 If a violation is
confirmed, the command must identify the cause of the violation as well as the senior responsible
individual. Investigators file reports through finance channels to the office of the Assistant
Secretary of the Army, Financial Management & Comptroller (ASA (FM&C)). Further reporting
through Office of the Secretary of Defense (OSD), Office of Management and Budget (OMB),
Government Accountability Office (GAO), President, and Congress is required if ASA (FM&C)
concurs with a finding of a violation.
By regulation, commanders must impose administrative sanctions on responsible individuals.
Criminal action also may be taken if a violation was knowing and willful.25 In previous cases,
lawyers, commanders, contracting officers, and resource managers all have been found to be
responsible for violations. Common problems that have triggered potential ADA violations include
the following:
Without statutory authority, obligating (e.g., awarding a contract) current year funds for the
bona fide needs of a subsequent fiscal year. This may occur when activities stockpile supply
items in excess of those required to maintain normal inventory levels.
Exceeding a statutory limit (e.g., funding a contingency construction project in excess of $2M
with O&M; acquiring investment items in excess of an aggregate $250K with O&M funds).
Obligating funds for purposes prohibited by annual or permanent legislation.
Obligating funds for a purpose for which Congress has not appropriated funds (e.g., personal
expenses where there is no regulatory or case law support for the purchase or where Congress
has placed a funding prohibition).
C. Military Assistance to Civil Authorities
The Federal military’s primary mission is to fight and win the nation’s wars. From time to time, the
DoD will provide support to civil authorities while the civil authorities retain primary responsibility
20 See 31 U.S.C. § 1341 (2012).
21 See 31 U.S.C. § 1517 (2012).
22 See 31 U.S.C. § 1342 (2012).
23 See 31 U.S.C. § 1514(a) (2012) (requiring agencies to subdivide and control appropriations by establishing
administrative subdivisions); 31 U.S.C. § 1517 (2013); DFAS-IN 37-1, supra note 17, ch. 4.
24 See DEPARTMENT OF DEFENSE, DoD 7000.14-R, FINANCIAL MANAGEMENT REGULATION vol. 14 (May 2015)
[hereinafter DoD 7000.14-R]; DFAS-IN 37-1, supra note 17, ch. 4.
25
31 U.S.C. §§ 1349 -1350 (2012).
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for and control over the incident. The starting point for all DoD support to civil authorities is DoD
Directive (DoDD) 3025.18, Defense Support of Civil Authorities (DSCA). When speaking of the
National Guard, it is important to separate National Guard Civil Support (NGCS) from DSCA.
NGCS is, “[s]upport provided by the National Guard while in a State Active Duty status or Title 32
status to civil authorities for domestic emergencies, designated law enforcement, and other
activities.”26 In contrast, DSCA is, “[s]upport provided by U.S. Federal military forces, DoD
civilians, DoD contract personnel, DoD Component assets, and National Guard forces [but, for the
purposes of this definition, only in their 32 U.S.C. § 502(f)(2) status] . . . in response to requests for
assistance from civil authorities for domestic emergencies, law enforcement support, and other
domestic activities, or from qualifying entities for special events.”27 The National Guard only
performs DSCA when supporting a mission that has been assigned to the DoD by the Federal
Emergency Management Agency (FEMA), and when performing this mission, the National Guard
personnel are in their 32 U.S.C. 502(f)(2) status.28 Otherwise, when providing civil support, the
National Guard is performing NGCS where DoDD 3025.18 does not apply.
The Posse Comitatus Act (18 U.S.C. § 1385) provides limitations on the types of support that the
Federal military may provide to civil authorities. The following are areas of common allowable
military support and their governing policies and authorities:29
Civil disasters and emergencies. Stafford Act (42 U.S.C. §§ 5121, et seq.), DoDD 3025.18
Civil disturbances; Insurrection Act. 10 U.S.C. §§ 251-255, DoDI 3025.21
Support to civilian law enforcement:
¾ Sharing information. 10 U.S.C. § 271, DoDI 3025.21
¾ Loan of equipment and use of facilities. 10 U.S.C. § 272, DoDI 3025.21
¾ Training and provision of expert advice. 10 U.S.C. § 273, DoDI 3025.21
¾ Maintenance and operation of equipment. 10 U.S.C. § 274, DoDI 3025.21
Counterdrug support:
¾ Detection and monitoring. 10 U.S.C. § 124
¾ Training and other support. § 1004, Fiscal Year (FY) 91 NDAA, as amended by
§ 1021, FY 02, NDAA; CJCSI 3710.01B
Innovative Readiness Training. 10 U.S.C. § 2012, DoDD 1100.20
Department of Defense Support to Special Events to include support to International Supporting
Events. 10 U.S.C. § 2564(a)-(c), DoDI 3025.20
Support to Private Organizations. 10 U.S.C. § 2554 (Boy Scouts of America), 10 U.S.C.
26 CHIEF, NAT’L GUARD BUREAU, INST. 3000.04, NATIONAL GUARD BUREAU DOMESTIC OPERATIONS GL-2 (24 Jan.
2018) [hereinafter CNGBI 3000.04].
27 U.S. DEP’T. OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES 19 (29 Dec. 2010) (C2, 19 Mar. 2018)
[hereinafter DoDD 3025.18].
28 U.S. DEP’T. OF DEF., DIR. 3025.22, THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL
AUTHORITIES paras. 3.d, and 3.e (26 Jul. 2013) (C2, 15 May 2018) [hereinafter DoDD 3025.22]; see also 32 U.S.C.
502(f)(2).
29 See generally U.S. DEP’T. OF DEF., INS’T. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES
(27 Feb. 2013) [hereinafter DoDD 3025.21].
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§ 2555 (Girl Scouts of America), 10 U.S.C. § 2551 (National Veterans’ Organizations), 10
U.S.C. § 2552 (American Red Cross), 10 U.S.C. § 2558 (National Military Associations), and
10 U.S.C. § 2556 (Homeless)
Loan or Lease of Non-Excess Property of a Military Department. 10 U.S.C. § 2667 (to anyone),
Army Regulation (AR) 700-131, Loan and Lease of Army Material, and 31 U.S.C. § 1535
(Agency Agreements)
Military Assistance to Safety and Traffic (MAST). DoDD 3025.1-M
Explosive Ordinance Disposal (EOD): AR 75-14, AR 75-15
Military Working Dogs. DoDD 5200.31E, AR 190-21
Miscellaneous support:
¾ Sensitive support. DoDD S-5210-36
¾ Law enforcement detachments. 10 U.S.C. § 379
¾ Emergencies involving chemical or biological weapons. 10 U.S.C. § 382
D. DoDD 3025.18
This Directive governs DoD military assistance provided to civil authorities within the 50 States,
District of Columbia, Puerto Rico, and U.S. possessions and territories. This policy provides six
criteria against which all requests for support shall be evaluated. Commanders at all levels should
use these criteria when providing a recommendation up the chain of command. These criteria are
commonly known as the CARRLL factors:
Cost - who pays and the impact on DoD budget.
Appropriateness - whether conducting the requested mission is in the interest of DoD.
Readiness - impact on DoD’s ability to perform its primary mission.
Risk - safety of DoD forces.
Legality - compliance with the law.
Lethality - potential use of lethal force by or against DoD forces.
Per DoDD 3025.18, The Secretary of Defense (SecDef) is the approval authority for DoD assistance
in civil disturbances, responses to chemical, biological, radiological, and nuclear events, defense
assistance to civilian law enforcement agencies (except as authorized by DoDI 3025.21 as discussed
below), and support that has the potential for lethality.
When Combatant Command-assigned forces are to be used, there must be coordination with the
Chairman of the Joint Chiefs of Staff (CJCS). SecDef approval is not required when immediate
response authority of the local commander under DODD 3025.18 is used, but a reassessment of the
appropriateness of the use of this authority is required within the first 72 hours of a response.30
As noted above, DoDD 3025.18 is the DSCA policy for the DoD. Distinction must be made when
considering the usage of the National Guard to support a DSCA mission assigned to the DoD by
30 DoDD 3025.21, supra note 27 (stating that “[t]he DoD official directing a response under immediate response
authority shall reassess whether there remains a necessity for the Department of Defense to respond under this authority
as soon as practicable but, if immediate response activities have not yet ended, not later than 72 hours after the request
for assistance was received.”).
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FEMA. At this juncture, DoDD 3025.22 must be reviewed because this policy and DoDD 3025.18
become applicable to members of the National Guard but only when serving in their 32 US.C. §
502(f)(2) status.31
E. Disaster and Emergency Relief32
The Stafford Act provides four means by which the Federal government may become involved in a
disaster and relief effort: the President may declare the area a major disaster33; the President may
declare the area an emergency34; the President may send in DoD assets on an emergency basis to
“preserve life and property”;35 and the President may send in Federal assets where an emergency
occurs in an area over which the Federal government exercises primary responsibility by virtue of
the Constitution or Federal statute.36
The Department of Homeland Security (DHS), through FEMA, directs and coordinates the Federal
response on behalf of the President. DHS has prepared the National Response Framework (NRF),
which defines fifteen Emergency Support Functions (ESFs) for which certain Federal agencies have
either a primary or supporting role. The Corps of Engineers is the primary agency for ESF #3,
Public Works and Engineering. DoD is a supporting agency for all others.
FEMA appoints a Federal Coordinating Officer (FCO), typically the senior FEMA official on-
scene. Because of the likelihood of DoD involvement, a Defense Coordinating Officer (DCO) is
assigned to the FCO. The DCO, an O-6 or above, is identified from a Training Support Brigade
(TSB). Training Support Brigades are located throughout the continental United States (CONUS).
Training Support Brigade commanders are dual-hatted as DCOs. The DCO will be the FCO’s
single point of contact for DoD support. The FCO issues Mission Assignments, defining the task
and maximum reimbursement amount, to the Federal agencies responding.
The Department of Defense is reimbursed by FEMA for the incremental costs of providing support
pursuant to the DCO’s tasking in response to the FEMA mission assignment. Incremental expenses
are reimbursed, or those expenses incurred by the agency providing the military assistance that—
but for the request for assistance—would not otherwise have incurred these expenses. The
Department of Defense Financial Management Regulation (FMR) 7000.14-R, vol. 12, ch. 6, para.
060204, lists the following costs as eligible for reimbursement:
Overtime, travel, and per diem of permanent DoD civilian personnel
31 DoDD 3025.22, supra note 28.
32 See generally Disaster Relief Act Amendments of 1974 (Stafford Act), Pub. L. No. 93-288, 88 Stat. 143 (1974);
DoDD 3025.18, supra note 27; U.S. DEP’T OF DEFENSE, MAN. DOD 3025.1-M, DOD MANUAL FOR CIVIL EMERGENCIES
(Jun. 1994) [hereinafter DOD 3025.1-M]; CNGBI 3000.04, supra note 26; CHIEF OF NAVAL OPERATIONS, INSTR.
3440.16D; NAVY DEFENSE SUPPORT OF CIVIL AUTHORITIES PROGRAM (29 Jun 2009); U.S. DEP’T OF AIR FORCE,
INSTR. 10-801, DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA) (19 Sept. 2012) [hereinafter AFI 10-801].
33 See 42 U.S.C. § 5170 (2012).
34 See 42 U.S.C. § 5191 (2012) (same criteria as for a major disaster, except it also requires that the Governor define the
type and amount of Federal aid required, and total Federal assistance may not exceed $5 million).
35 See 42 U.S.C. § 5170b(c) (2012).
36 See 42 U.S.C. § 5191(b) (2012).
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Wages, travel, and per diem of temporary DoD civilian personnel assigned solely to
performance of services directed by the Executive Agent
Travel and per diem of active duty military, and costs of reserve component personnel called to
active duty by a Federal official who is assigned solely to the performance of services directed
by the Executive Agent
Cost of work, services, and material procured under contract for the purposes of providing
assistance directed by the Executive Agent
Cost of materials, equipment and supplies (including transportation, repair and maintenance)
from regular stocks used in providing directed assistance
All costs incurred which are paid from trust, revolving, or other funds, and whose
reimbursement the law requires
Other costs submitted with written justification or otherwise agreed to in writing by the Joint
Director of Military Support or appropriate Service representative
Requests for reimbursement may be made through use of the SF-1080, Voucher for Transfers
between Appropriations or Funds. It is important to note that Federal agencies which exceed the
reimbursement amount, or execute tasks not within the Mission Assignment, may not be
reimbursed.
For the DoD response, the Assistant Secretary of Defense for Homeland Defense and Americas’
Security Affairs (ASD(HD&ASA)) is the DoD lead for disaster relief operations. As such, they are
the approval authority for all such support, unless it involves Combatant Command-assigned forces.
The Joint Director of Military Support (JDOMS) is the ASD(HD&ASA) agent. The JDOMS
coordinates and monitors the DoD effort. The JDOMS normally produces the Execute Order and
obtains the SECDEF’s signature for a given mission. USNORTHCOM (CONUS, Alaska, Puerto
Rico, and the Virgin Islands) and USPACOM (Hawaii, and Pacific possessions and territories) are
responsible for developing disaster response plans and for the execution of those plans needed for a
response. They may form a Joint Task Force for this purpose.
1. Immediate Response Authority (IRA)
Immediate response authority permits local military commanders to act immediately to save lives,
prevent human suffering, and mitigate great property damage in imminently serious conditions
when time does not permit approval from higher headquarters. Types of support authorized include
rescue, evacuation, and emergency treatment of casualties; emergency restoration of essential public
services; emergency removal of debris and explosive ordnance; and recovery and disposal of the
dead. This type of support is provided on a reimbursable basis, but assistance should not be denied
because the requester is unable or unwilling to commit to reimbursement.37
Immediate response authority is very limited and should be invoked only for bona fide emergencies.
Contemporaneous coordination with JDOMS and ASD(HD&ASA) should always occur in these
scenarios, and in any other case potentially involving this type of assistance to civil authorities. The
need for immediate response should be reassessed not less than 72 hours after the civil authority
submitted the request for assistance.38 To obtain reimbursement for costs incurred as a result of an
37 DoDD 3025.18, supra note 27, at para. 4.i.6.
38 Id. at para. 4.i.5.
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immediate response, DoD should request reimbursement from the State or local government to
whom assistance was provided. In some cases, the State and local governments may not have the
available funding to reimburse. With that said, all is not lost. “Ongoing [S]tate and local response
activity may be reimbursed if a declaration is issued, including for evacuations, sheltering and other
emergency protective measures.”39 Should the State have funding available to reimburse the DoD,
funding is not send directly to a unit account. Instead, “States must reimburse the United States
Treasury in accordance with section 9701 [Fees and Charges for Government Services and Things
of Value] of [Title 31 of the United States Code].”40 May the support be provided on a non-
reimbursable basis? Yes, but it must be authorized by law, like under the Stafford Act for instance,
and approved by the appropriate DoD official, such as SecDef or the President.41 Even if the civil
authority was unaware of this rule, and paid the money directly to the unit, Federal military
personnel must still comply with the rules governing “money for the Government” more commonly
referred to as the Miscellaneous Receipts Statute, 31 USC 3302(b). The same applies to mutual aid
agreements. (see DoDM 3025.01 Vol 2; DoDI 6055.06 Encl 2; and 42 USC Section 1855(d))
2. Emergency Response Fund ERF
The ERF was created in the FY90 National Defense Appropriation Act, Pub. L. 101-165, in
response to Hurricane Hugo. Under this provision, “the Fund is available for providing
reimbursement to currently applicable appropriations of the [DoD] for supplies and services
provided in anticipation of requests from other Federal Departments and agencies and State and
local governments for assistance on a reimbursable basis to respond to natural and manmade
disasters.”
In FY94, § 8131 of the National Defense Appropriation Act, Pub. L. No. 103-139, amended the
FY90 provision giving DoD the ability to request reimbursement from the ERF for its own disaster
response efforts. Specifically, the language provides, “the Fund may be used, in addition to other
funds available to DoD for such purposes, for expenses of DoD which are incurred in supplying
supplies and services furnished in response to natural or manmade disasters.”
Prior to November 2003, if the State and local government were unable or unwilling to reimburse
the DoD, the command would forward a request for reimbursement to the ERF.42 This fund was
available for providing reimbursement to currently applicable appropriations of DoD for supplies
and services provided in anticipation of requests from other Federal departments and agencies and
from State and local governments for assistance on a reimbursable basis to respond to natural or
manmade disasters.
Since November 2003, the ERF has been closed out.43 The Act that closed out ERF provided that,
effective November 1, 2003, adjustments to obligations that before such date would have been
properly chargeable to the ERF shall be charged to current appropriations available for the same
39 Federal EMERGENCY MANAGEMENT AGENCY, DISASTER OPERATIONS LEGAL REFERENCE VER. 3.0 1-3 (20 Jan. 2017)
[hereinafter Disaster Ops Legal Reference 3.0].
40 DoDD 3025.18, supra note 27, at para. 4.d.
41 Id.
42 See DoD 7000.14-R, supra note 24, ch. 6.
43 Closed out in § 1105 of the FY04 Emergency Supplemental Appropriations Act.
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purpose.44 Now, it may be possible to seek reimbursement through FEMA. In some instances,
FEMA has provided reimbursement to the DoD for IRA assistance by “ratifying” the DoD action
after the fact. Such ratification, however, is done on a case-by-case basis. What a commander may
find is the support previously provided under the commanders immediate response authority rolled
under a mission assignment from FEMA for which reimbursement is available via the disaster relief
fund in accordance with the Stafford Act. Another option is the usage of DoD resources to perform
emergency work “during the immediate aftermath of an incident which may ultimately qualify for
assistance under [the Stafford Act].”45 The Governor may request the President to direct SecDef to
use DoD assets to perform emergency work for up to 10 days before the formal declaration of a
major disaster or emergency.46 Thus, even though the ERF no longer exists, there are multiple ways
for Federal military units to be properly reimbursed for support to civil authorities legally provided
before a declaration or mission assignment.
F. Civil Disturbance Operations (CDOs)47
The maintenance of law and order is primarily vested in State and local officials. Involvement of
military forces will only be appropriate in extraordinary circumstances. Use of the military under
these authorities to conduct law enforcement activities is a specific exception to the Posse
Comitatus Act (PCA). The probable order of employment of forces in response to a certain
situation will be (1) local and State police; (2) National Guard in their SAD status; (3) Federal civil
law enforcement officials; and (4) Federal military troops, to include, if necessary, National Guard
personnel called to active Federal service.
The insurrection statutes permit the President to use the Federal armed forces domestically under
certain circumstances. The Attorney General coordinates all Federal Government activities relating
to civil disturbances. If the President decides to respond to the situation, he must first issue a
proclamation to the insurgents, prepared by the Attorney General, directing them to disperse within
a limited time.48 At the end of that time period, the President may issue an Executive Order
directing the use of Federal armed forces. The Attorney General appoints a Senior Civilian
Representative of the Attorney General (SCRAG) as his action agent.
For the DoD response, SecDef has reserved the authority to approve support in response to civil
disturbances.49 Although the civilian authorities have the primary responsibility for civil
disturbances, Federal military forces shall remain under Federal military command and control at all
times. Federal military forces shall not be used for civil disturbances unless specifically directed by
the President (pursuant to 10 U.S.C. §§ 251-255), except for emergency employment of Federal
military forces in the following limited circumstances:
44 Id.
45
42 U.S.C. § 5170b c.1 (2012) [hereinafter Emergency Work].
46 Id.
47 U.S. CONST. art. IV, § 4: “The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive
(when the Legislature cannot be convened), against domestic Violence”; Insurrections, 10 U.S.C. §§ 251-255 (2012);
DODI 3025.21, supra note 29.
48 See 10 U.S.C. § 334 (2012).
49 See DoDD 3025.18, supra note 27, para. 4.j.
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To prevent the loss of life or wanton destruction of property or to restore governmental
functioning, in cases of civil disturbances, if the duly constituted authority local authorities are
unable to control the situation and circumstances preclude obtaining prior Presidential
authorization.
When duly constituted State or local authorities are unable or decline to provide adequate
protection for Federal property or functions.
Although employment under these authorities permits direct enforcement of the law by military
forces, the military’s role in law enforcement should be minimized as much as possible. DoD’s role
is to support the civilian authorities, not replace them. Once the President directs the employment
of Federal military forces, the DoD may use O&M funds to cover the cost.
G. Support to Civilian Law Enforcement50
Although certain activities could be considered law enforcement type activities, they do not violate
the PCA because they do not involve use of Federal military personnel to provide direct assistance.
With proper approval, DoD activities may make equipment (including associated supplies and spare
parts) or facilities available to Federal, State, or local law enforcement officials for law enforcement
purposes.
Under 10 U.S.C. § 274(a), SecDef may make DoD personnel available for the maintenance of
equipment provided, to include equipment provided pursuant to 10 U.S.C. § 272. Under 10 U.S.C.
§ 274(b)(1), SecDef may, upon a request from the head of a Federal law enforcement agency, make
DoD personnel available to operate equipment with respect to criminal violations of the Controlled
Substances Act, the Immigration and Naturalization Act, the Tariff Act of 1930, the Maritime Drug
Law Enforcement Act, and any law, foreign or domestic, prohibiting terrorist activities; a foreign or
domestic counter-terrorism operation; or a rendition of a suspected terrorist from a foreign country
to the United States to stand trial.
Under 10 U.S.C. § 274(b)(2), DoD personnel made available to a civilian law enforcement agency
may operate equipment for the following purposes:
Detection, monitoring, and communication of the movement of air and sea traffic
Detection, monitoring, and communication of the movement of surface traffic outside of the
geographic boundary of the United States and within the United States not to exceed 25 miles of
the boundary if the initial detection occurred outside the boundary
Aerial reconnaissance
Interception of vessels or aircraft detected outside the land area of the United States for the
purposes of communicating with and directing said vehicle to a specific location
Operating equipment to facilitate communications
Subject to joint approval by SecDef and Attorney General:
¾ Transportation of civilian law enforcement personnel along with any other civilian or
50 See generally 10 U.S.C. §§ 272-274, 277; DODI 3025.21, supra note 29; CNGBI 3000.04, supra note 32; U.S.
DEP’T OF NAVY, SEC’Y NAVY INSTR. 5820.7C, COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS, para. 8
(26 Jan. 2006) [hereinafter SECNAVINST 5820.7C]; U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND
DONATION OF ARMY MATERIEL (24 Aug. 2004) [hereinafter AR 700-131]; AFI 10-801, supra note 32.
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military personnel who are supporting, or conducting, a joint operation with civilian law
enforcement personnel
¾ Operation of a base of operations
¾ Transportation of suspected terrorists from foreign countries to the U.S. for trial (so
long as the requesting Federal law enforcement agency provides all security for such
transportation and maintains custody over the suspect through the duration of the
transportation).
1. Economy Act
Pursuant to 10 U.S.C. § 277, the support provided between Federal agencies under these authorities
is reimbursable under the Economy Act, unless the support is provided in the normal course of
training or operations, or the support results in a substantially equivalent training value. Under 31
U.S.C. § 1535, an Economy Act order may be placed by the head of an agency (delegable down to a
warranted contracting officer) with another agency. The order may be a Military Interdepartmental
Purchase Request (MIPR), a Memorandum of Understanding (MOU) for support, or an interagency
agreement. Form is not the key—content is the critical matter. The definition of “agency” includes
military departments.51 The content defines the type of support to be rendered and the
reimbursement to be provided.
2.
Miscellaneous Receipts
The Miscellaneous Receipts Statute, 31 U.S.C. § 3302(b), requires that any dollars received by an
agency must go into the general treasury, without any deduction for any charges or claims, unless
there is a positive legal authority, like the Economy Act, that allows an agency to retain the money.
Currently, the Economy Act does not apply to National Guard in the performance of SAD missions.
Further, although the language in 10 U.S.C. § 272 et seq. authorizes support to State and local
civilian law enforcement agencies, the reimbursement provision in 10 U.S.C. § 277 provides no
mechanism for reimbursement except for support between Federal agencies. If commanders loan
equipment to State or local CLEAs under this authority, any reimbursement obtained would go to
the U.S. Treasury as a Miscellaneous Receipt. It is important to note that reimbursement is
required, unless the law allows a waiver. The only way to avoid this problem is for the commander
to lease the equipment under 10 U.S.C. § 2667. The Leasing Statute provides a mechanism for
reimbursement. If a loan is authorized, there must be no adverse impact on national security or
military preparedness. (Specific details regarding the Leasing Statute are in Section L of this
Chapter)
The Secretary of the Army has statutory authority to approve loans, leases, and donations of Army
material. The Chief, Integrated Logistics Support Division (DALO-SMP) is responsible for acting
on loan and lease request and loan and lease extensions forwarded for
Headquarters, Department of the Army (HQDA) review by major Army Commands (MACOMs).
AR 700-131 contains detailed procedures on the loan or transfer of Army property. For the Navy
and Marine Corps, the Assistant Secretary of the Navy (SECNAV) (Manpower and Reserve
Affairs) may approve requests for non-lethal equipment for more than sixty days. All other requests
may be approved as specified in SECNAVINST 5820.7C. For the Air Force, AFI 10-801 states that
51 FAR, supra note 13, at pt. 2.101.
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in circumstances not immediately threatening to human life, causing human suffering, or
threatening great property damage, requests for equipment or facilities for Federal, State, or local
civilian officials (including include law enforcement) should be addressed in accordance with AFI
23-119 and AFI 32-9003. For the National Guard (NG), the loan of weapons, combat/tactical
vehicles, vessels and aircraft require approval of the service secretary or their designee. Requests
for loan/lease of NG equipment, which require HQDA or HQAF approval, will be reviewed by
National Guard Bureau (NGB) (NGR 500-1/ANGI 10-8101); however, it must be remembered that
SecDef is the approval authority for all DoD support to counterterrorism operations, emergency
support to civil disturbances, and law enforcement agencies that will result in a planned event with
the potential for confrontation with named individuals/groups or use of lethal force.
3. Excess Property
In addition to loan/lease authority, The National Defense Authorization Act of 1997 added a new
section to Title 10. Section 2576a, “Excess Personal Property; Sale or Donation for law
enforcement activities,” permits DoD to provide excess personal property suitable for use in
counter-drug and counter-terrorism activities to Federal and State agencies. The program is
commonly referred to as the “1033 Program” because it fell under Section 1033 of the 1997 NDAA
(PL 104-181). 10 U.S.C. § 2576 authorizes the surplus sale of military equipment to State and local
law enforcement and firefighting agencies. 10 U.S.C. § 2576(a) authorizes the surplus sale of
military equipment to Federal and State agencies suitable for carrying out law enforcement,
firefighting, homeland security, and emergency management services. The State or local agency
must initiate a request for the equipment. The program is managed by the Defense Logistics
Agency Law Enforcement Support Office at Ft. Belvoir, VA. 10 U.S.C. § 2576a and § 2576b
provide additional mechanisms for the transfer of excess property (without sale) to law enforcement
and firefighting agencies.
4.
Expert Advice and Training52
DoD components are authorized to give expert advice and/or training to Federal, State, and local
law enforcement in certain cases. Overarching policy regarding the provision of this assistance is
found at 32 C.F.R. § 182, and more specific policy is found in DoDI 3025.21.
DoD components may provide, subject to approval limitations in DoDI 3025.21, expert advice to
Federal, State, or local law enforcement officials in accordance with 10 U.S.C. § 373. A specific
example of this type of support is military working dog team support to civilian law enforcement.
The dogs have been analogized to equipment, and their handlers to providers of expert advice.53
Direct assistance by DoD personnel in activities that are fundamentally civilian law enforcement
operations is not permitted, except as specifically authorized by DoDI 3025.21.54
52 See generally 10 U.S.C. §§ 273, 275, 277 (2012); 50 U.S.C. § 2316; DODI 3025.21, supra note 29, Encl. 5;
SECNAVINST 5820.7C, supra note 50, paras. 9.a.(4)-(5); AFI 10-801, supra note 33.
53 See generally U.S. DEP’T OF DEFENSE, DIR. 5200.31E, DOD MILITARY WORKING DOG (MWD) PROGRAM, (10 Aug.
2011) [hereinafter DODD 5200.31E]; U.S. DEP’T OF AIR FORCE, AFI 31-121, MILITARY WORKING DOG PROGRAM (17
Oct. 2012), 32 C.F.R. §182 (2017).
54 Specific examples where direct assistance is permitted include the case of the execution of a quarantine under 42
U.S.C. § 97, when such actions are necessary to prevent significant loss of life and wanton destruction of property and
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DoD components may also provide, subject to approval limitations in DoDI 3025.21, training to
Federal, State, and local civilian law enforcement officials. This does not permit large-scale or
elaborate DoD training, and does not permit regular or direct involvement of DoD personnel in
activities that are fundamentally civilian law enforcement operations, except as otherwise
authorized by DoDI 3025.21 (see footnote 41 infra).
Training can only be given when the use of non-DoD personnel would be unfeasible or impractical
from a cost or time perspective, and when it would not otherwise compromise military preparedness
of the United States. It may not involve DoD personnel participating in a law enforcement
operation, unless specifically authorized under DoDI 3025.21. Training assistance must be
provided at a location where there is not a reasonable likelihood of a confrontation between law
enforcement personnel and civilians, unless otherwise authorized by law.
The provision of “advanced military training” is not allowed under DoDI 3025.21. Advanced
military training includes advanced marksmanship training, sniper training, military operations in
urban terrain (MOUT), advanced MOUT, close quarters battle/close quarters combat, and similar
training. SECDEF policy on advanced military training in this context is discussed further in
Deputy Secretary of Defense Memorandum “DoD Training Support to U.S. Civilian Law
Enforcement Agencies,” June 29, 1996, and Deputy Secretary of Defense Memorandum “Request
for Exception to Policy,” November 12, 1996 (both available from the Office of the Assistant
Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD (HD & ASA),
room 3D247, 2600 Defense Pentagon, Washington D.C. 20301).
The Secretary of Defense is the approval authority for requests for direct assistance in support of
civilian law enforcement agencies, including those responding with assets with the potential for
lethality, except for the use of emergency authority as provided for under DoDD 3025.18 or under
one of the exceptions provided in DoDI 3025.21. Requests that involve Defense Intelligence and
Counterintelligence entities are subject to approval by the Secretary of Defense and the guidance in
DoDD 5240.01, DoD Intelligence Activities and DoD 5240.1-R, Procedures Governing the
Activities of DoD Intelligence Components That Affect U.S. Persons (see Chapter 9 infra for
further guidance).
Otherwise, the Secretaries of the Military Departments and the Directors of the Defense Agencies
may, in coordination with the ASD(HD&ASA), approve the use of DoD personnel:
To provide training or expert advice in accordance with DoDI 3025.21
For equipment maintenance in accordance with the specific provisions of enclosure 3 of DoDI
3025.21
To monitor and communicate the movement of air and sea traffic in accordance with the
specific provisions of enclosure 3 of DoDI 3025.21
are necessary to restoring governmental function, and when action is needed to protect national parks and other certain
Federal lands, among many other instances. DODI 3025.21, supra note 29, Encl. 3.
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All other requests, including those in which subordinate authorities recommend disapproval, shall
be submitted promptly to the ASD(HD&ASA) for consideration by the Secretary of Defense, as
appropriate.55
Support provided under these authorities to a Federal agency is reimbursable under the Economy
Act, unless the support is provided in the normal course of training or operations, or the support
results in a substantially equivalent training value. It is important to note that pursuant to 31 U.S.C.
§ 6505, under the “Intergovernmental Cooperation Act,” Federal agencies are authorized to provide
to State and local governments “statistical and other studies and compilations, development
projects, technical tests and evaluations, technical information, training activities, surveys, reports,
and documents and other similar services that an executive agent is especially competent and
authorized by law to perform.”
31 U.S.C. § 6505 is very specific and does not include the type of operational assistance that State
and local governments request from DoD. Two common requests DoD may encounter are for the
provision of “technical information and training activities.” OMB Circular A-97 defines these two
as follows: 1) training of the type which the Federal agency is authorized by law to conduct for
Federal personnel and others or which is similar to such training; and 2) technical information, data
processing, communications, and personnel management systems services which the Federal
agency normally provides for itself or others under existing authorities.
A reimbursement mechanism is provided under 31 U.S.C. § 6505 between the Federal and
State/local level. Reimbursements received by the Federal agency for the costs of services provided
will be deposited to the credit of the principal appropriation or other account from which the costs
of providing the services have been paid or are to be charged. It is important to remember that these
reimbursed dollars do not go into the Miscellaneous Receipts account.
5.
Sharing Information56
Any information collected in the normal course of military operations may be provided to
appropriate civilian law enforcement agencies. Collection must be compatible with military
training and planning. To the maximum extent practicable, the needs of civilian law enforcement
officials shall be taken into account in planning and execution of military training and operations.57
55 DODI 3025.21, supra note 29.
56
10 U.S.C. § 371 (2012); DoDI 3025.21, supra note 34, Encl. 7; SECNAVINST 5820.7C, supra note 50, para. 7; AFI
10-801, supra note 32, Attachment 1, ch. 3.
57
10 U.S.C. § 371(b) (2012).
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H. Counterdrug Support58
Counterdrug support operations have become an important activity within DoD. All DoD support is
coordinated through the Office of the Defense Coordinator for Drug Enforcement Policy and
Support (DEP&S), which is located within the Office of the Assistant Secretary of Defense for
Special Operations and Low Intensity Conflict (ASD (SO/LIC)). DoD support to counterdrug
operations is funded through annual DoD appropriations unlike other support provided by DoD,
which must be reimbursed by the agency receiving support. The Office of the Defense Coordinator
for Drug Enforcement Policy and Support channels this appropriated money to the providers of
counterdrug support.
1. Detection and Monitoring
DoD is the lead Federal agency for detection and monitoring (D&M) of aerial and maritime transit
of illegal drugs into the United States.59 D&M is therefore a DoD mission. Although a military
mission, D&M is to be carried out in support of Federal, State, and local law enforcement
authorities. Note that the statute does not extend to D&M missions covering land transit (i.e., the
Mexican border). Interception of vessels or aircraft is permissible outside the land area of the
United States to identify and direct the vessel or aircraft to a location designated by the supported
civilian authorities. Detection and monitoring missions involve airborne (Airborne Warning and
Control Systems (AWACS), aerostats), seaborne (primarily U.S. Navy (USN) vessels), and land-
based radar (to include Remote Over The Horizon Radar (ROTHR)) sites. Federal funding for
National Guard counterdrug activities, to include pay, allowances, travel expenses, and operations
and maintenance expenses is provided pursuant to 32 U.S.C. § 112. The State must prepare a drug
interdiction and counter-drug activities plan. The Office of the Defense Coordinator for Drug
Enforcement Policy and Support reviews each State’s implementation plan and disburses funds.
2. Additional Support
Congress has given DoD additional authorities to support Federal, State, local, and foreign
governments that have counterdrug responsibilities. These are in addition to the authorities
contained in 10 U.S.C. §§ 371-377 (discussed above). These have not been codified, however, so it
is necessary to refer to the public laws instead. Many of these are reproduced in the notes following
10 U.S.C. § 374 in the annotated codes. Section 1004 of the 1991 NDAA, as amended, is the
primary authority used for counterdrug operations. The statute permits broad support to Federal,
State, and local as well as foreign authorities (when requested by a Federal counterdrug agency,
typically the Drug Enforcement Agency (DEA) or a member of the State Department country team
that has counterdrug responsibilities). These authorities are not exceptions to the Posse Comitatus
Act, and any support provided must comply with the restrictions of the PCA. Additionally, any
58
10 U.S.C. § 124 (2012); 32 U.S.C. § 112 (2012); Sec. 1004, FY91 NDAA as amended by sec. 1021, FY02 NDAA;
sec. 1031, FY97 NDAA; sec. 1033, FY98 NDAA; OFFICE OF THE DEFENSE COORDINATOR FOR DRUG ENFORCEMENT
POLICY AND SUPPORT, POLICY OF 26 JAN. 1995, PRIORITIES, POLICIES, AND PROCEDURES FOR DEPARTMENT OF DEFENSE
COUNTERDRUG SUPPORT TO DOMESTIC DRUG LAW ENFORCEMENT AGENCIES (26 Jan. 1995); CHAIRMAN JOINT CHIEFS
OF STAFF, INSTR. 3710.01B, DOD COUNTERDRUG SUPPORT (26 Jan. 2007) [hereinafter CJCSI 3710.01B]; NATIONAL
GUARD BUREAU, REG. 500-2/ANGI 10-801, NATIONAL GUARD COUNTERDRUG SUPPORT (28 Aug. 2008).
59
10 U.S.C. § 124 (2012).
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domestic training provided must comply with the Deputy Secretary of Defense policy on advanced
training.
Types of permitted support include maintenance and repair of equipment; transportation of
personnel (United States and foreign), equipment, and supplies CONUS/OCONUS; establishment
of bases of operations CONUS/OCONUS; training of law enforcement personnel, to include
associated support and training expenses; detection and monitoring of air, sea, surface traffic
outside the United States, and within twenty-five miles of the border if the detection occurred
outside the United States; construction of roads, fences, and lighting along U.S. border; linguist and
intelligence analyst services; aerial and ground reconnaissance; and establishment of command,
control, communication, and computer networks for improved integration of law enforcement,
active military, and National Guard activities.
Approval authorities are contained in CJCSI 3710.01B. Non-operational support—that which does
not involve the active participation of DoD personnel—including the provision of equipment only,
use of facilities, and formal schoolhouse training, is requested and approved in accordance with
DoDI 3025.21 and implementing Service regulations, discussed above. For operational support, the
Secretary of Defense is the approval authority. The approval will typically be reflected in a CJCS-
issued deployment order.
The SECDEF has delegated approval authority for certain missions to Combatant Commanders,
with the ability for further delegation, but no delegation lower than a flag officer. The delegation
from SECDEF depends on the type of support provided, the number of personnel provided, and the
length of the mission.60 One example is: for certain missions along the southwest border of the
U.S., the delegation runs from SECDEF to NORTHCOM to Joint Task Force North (JTF North).
Requests for DoD support must meet the following criteria:
Support request must have a clear counterdrug connection
Support request must originate with Federal, State or local agency having counterdrug
responsibilities
Request must be for support DoD is authorized to provide
Support must clearly assist with counterdrug activities of agency
Support is consistent with DoD support of the National Drug Control Strategy
DEP&S Priorities for the provision of support
Multi-jurisdictional, multi-agency task forces that are in a high intensity drug trafficking area
(HIDTA)
Individual agencies in a HIDTA
Multi-jurisdictional, multi-agency task forces not in a HIDTA
Individual agencies not in a HIDTA
All approved CD operational support must have military training value
Under § 1206, of the FY 1990 NDAA, Congress directed the armed forces, to the maximum extent
practicable, to conduct training exercises in declared drug interdiction areas. In § 1031 of the FY
1997 NDAA, Congress authorized and provided additional funding specifically for enhanced
support to Mexico. The support involves the transfer of certain non-lethal specialized equipment
60 See CJCSI 3710.01B, supra note 58.
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such as communication, radar, navigation, and photo equipment. Under § 1033, FY 1998 NDAA,
Congress authorized, and provided additional funding specifically for, enhanced support to
Colombia and Peru. Section 1021 of the FY 2004 NDAA, expands the list of eligible countries to
include Afghanistan, Bolivia, Ecuador, Pakistan, Tajikistan, Turkmenistan, and Uzbekistan. This
authority is subject to extension by the annual National Defense Authorization Act; and was
extended by § 1021 of the FY 2009 National Defense Authorization Act.
I.
Innovative Readiness Training61
Innovative Readiness Training (IRT) is primarily a guard and reserve program and is similar in
appearance to 10 U.S.C. § 401, Humanitarian and Civic Assistance (HCA) for overseas operations.
IRT is military training conducted off base in the civilian community that utilizes the units and
individuals of the armed forces under the jurisdiction of the Secretary of a military department or a
combatant commander, to assist civilian efforts in addressing civic and community needs of the
United States, its territories and possessions, and the Commonwealth of Puerto Rico as provided for
within 10 U.S.C. § 2012.
Examples of IRT activities include constructing rural roads and aircraft runways, small building and
warehouse construction in remote areas; transporting medical supplies, equipment and material to
medically underserved areas of the country; and providing medical and dental care to Native
Americans, Alaska Natives, and other medically underserved communities.
Any Federal, regional, State, or local governmental entity is eligible to receive the assistance, as are
youth and charitable organizations specified in § 508 of Title 32, and any other entity as may be
approved by SECDEF on a case-by-case basis. There must be a relationship to military training.
Assistance may be provided only if: (1) the assistance provided accomplishes valid unit training
requirements; or (2) the assistance provided by an individual involves tasks that directly relate to the
specific Military Occupational Specialty (MOS) of the military member.
An exception exists if the unit assistance consists primarily of military manpower and the total
amount of such assistance on a particular project does not exceed 100 man-hours. For most
projects, the requests will be fulfilled by volunteers and any assistance other than manpower will be
extremely limited. Government vehicles may be used, but only to provide transportation to and
from the work site. The use of Government aircraft is prohibited.
Operations and Maintenance funding expenditures are authorized for expendable readiness training
items only. These may include, but are not limited to, the following: fuel; equipment lease; travel;
training supplies; and incidental costs to support the training not normally provided for a
deployment. Innovative Readiness Training O&M funds are not authorized for the payment of
civilian manpower contracts, e.g., contracting a civilian labor force to perform duties related to IRT
activities.62 DoD policy memorandum dated 24 Aug. 2000 provides guidance that annual National
Defense Authorization and Appropriation Acts will authorize the transfer of a certain amount of
defense-wide O&M funds ($20 million in FY03) to be transferred to fund pay and allowances for
61
10 U.S.C. § 2012 (2012); U.S. DEP’T OF DEFENSE, DIR. 1100.20, SUPPORT AND SERVICES FOR ELIGIBLE
ORGANIZATIONS AND ACTIVITIES OUTSIDE THE DEPARTMENT OF DEFENSE (12 Apr. 2004) [hereinafter DoDD 1100.20].
62
19 July 1999, DoD Policy Memorandum Regarding Innovative Readiness Training O&M Funds (on file with
CLAMO).
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personnel working on IRT program projects. In April 2002, DoD issued additional guidelines to
include the requirement for a Certification of Non-Competition with other public or private sector
organizations. This comports with the statutory language that “the assistance is not reasonably
available from a commercial entity.” Innovative Readiness Training assistance is not authorized in
response to natural or man-made disasters or in support of civilian law enforcement.
J. DoD Support to Special Events63
Upon the request of a Federal, State, or local government agency responsible for providing law
enforcement services, security services, or safety services, the SECDEF may authorize the
commander of a military installation or other DoD facility or a Combatant Commander to provide
assistance for special events, including international sporting events such as World Cup Soccer
Games, the Goodwill Games, the Olympics, and any other civilian sporting event. The Attorney
General must certify that such assistance is necessary to meet essential security or safety needs.
Additional conditions are that such assistance cannot reasonably be met by another source or
agency, that there is no adverse impact on military readiness, and that the requesting agency agrees
to reimburse DoD. It is important to note that the applicable statutory provision for these events
does not apply to Special Olympics and The Paralympics because the assistance is authorized and
funded under a different authority, the Support for International Sporting Competitions (SISC)
account that funds support of International Sporting Competitions. Support provided under this
statute, 10 U.S.C. § 2564, is reimbursable under the Economy Act, unless the support is provided in
the normal course of training or operations, or the support results in a substantially equivalent
training value.
The SISC account is a “no year” account that consolidated appropriations of previous events. As
noted earlier, DoD transfers O&M into this account. Because the account is set up as a “no year use
until expended account,” that rule applies to any money transferred into the account. The account
authorized the funding of logistical and security support (other than pay and non-travel-related
allowances of members of the Armed Forces of the United States, except for members of the
reserve components thereof called or ordered to active duty in connection with providing such
support).
In the NDAA for fiscal year 2002, Pub. L. No. 107-107, § 302, Congress amended the law to
include State Active Duty (SAD) and full-time National Guard (FTNG) to be included in the
definition of “active duty.” Under this change, the SISC account could fund the pay and non-travel-
related allowances of these two groups of individuals when they provided essential security and
safety support during the 2002 Winter Olympic Games and the 2002 Paralympic Games. In the
same provision, Congress waived the requirement that the Attorney General had to certify that
support was necessary for the 2002 Winter Olympic Games. It is important to note that this waiver
was event-specific, and ordinarily certification by the Attorney General is required.
63
10 U.S.C. § 2564 (2012); U.S. DEP’T OF DEFENSE, INST. 3025.20, DEFENSE SUPPORT OF SPECIAL EVENTS (6 Apr.
2012) [hereinafter DoDI 3025.20].
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K. Support to Private Organizations and Individuals
1. Boy Scouts of America
10 U.S.C. § 2554 allows DoD to provide equipment and transportation to the Boy Scouts for
National and World Jamborees. Support is provided on a no-cost basis to the U.S. government and
requires bonding to ensure reimbursement.
2. Girl Scouts of America
10 U.S.C. § 2555 allows DoD to provide transportation only to Girl Scouts to support international
Girl Scout events. Support is provided on a no-cost basis to the U.S. government and requires
bonding to ensure reimbursement.
3.
National Veterans’ Organizations
10 U.S.C. § 2551 allows DoD to provide equipment and barracks to national veterans’ organizations
to support State and national conventions or national youth athletic tournaments. Support is
provided on a no-cost basis to the U.S. government and requires bonding to ensure reimbursement.
4. American Red Cross
10 U.S.C. § 2552 allows DoD to provide equipment for instruction and practice to the American
Red Cross. Support is provided on a no-cost basis to the U.S. government and requires bonding
(twice value of equipment loaned) to ensure reimbursement.
5. National Military Associations
DoD is allowed by 10 U.S.C. § 2558 to provide specified support to designated “National Military
Associations” for their national conventions. Specified support includes limited air and ground
transportation, communications, medical assistance, administrative support, and security support.
Support is provided under the following conditions: (1) the Service Secretary concerned has
approved the support in advance; (2) the support is provided in conjunction with training in
appropriate military skills; and (3) support can be provided within existing funds otherwise
available to the Service Secretary concerned, i.e., O&M funds.
6. Homeless Individuals
10 U.S.C. § 2556 allows DoD to provide incidental services to shelter homeless individuals. These
incidental services include utilities, bedding, security, transportation, renovation of facilities, minor
repairs to make facility available, and property liability insurance. Support is on a non-
reimbursable basis and may not have an adverse impact on military readiness or interfere with
military operations.
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L. Loan or Lease of Non-Excess Property of a Military Department64
1. Authorized Loan or Lease of Non-Excess Property
Generally, the Economy Act, 10 U.S.C. § 1535, governs the loan of DoD material to other Federal
agencies. DoD may provide supplies and equipment to other Federal agencies on a reimbursable
basis. The leasing statute, 10 U.S.C. § 2667, governs the lease of DoD property to organizations
outside the government when a determination has been made that: (1) for the period of the lease, the
materiel is not needed for public use; (2) it is not excess property; and (3) the lease will promote the
national defense or be in the public interest.
The Army is the only service that has a regulation specifically governing the loan or lease of its
materiel: AR 700-131. Army Policy is that Army materiel is intended for the Army mission. Army
material will only be loaned or leased under compelling circumstances and when the material
sought is not otherwise needed for mission requirements. Agencies loaning or leasing materiel from
an Army activity are responsible for all costs associated with the loan or lease to include shipping,
return, and repair of the materiel. Loans and leases are primarily approved on the basis of their
purpose and duration. The following factors will be considered in determining whether to approve
a loan or lease:
Military requirements and priorities
Stocks and programmed Army requirements
Type classification with pending changes
Minimum diversion of Army stocks
The adequacy of the borrower’s resources
The availability of alternative resources such as commercial leases
The eligibility of the recipient
The approval authority for a loan or lease of Army materiel varies based on the category of
equipment being requested. Table 2-1, AR 700-131 provides a comprehensive list of the categories
of equipment that may be loaned or leased, and the proper approval authority. Army material
loaned or leased in response to a natural or manmade disaster will be reported to JDOMS as soon as
possible. The property officer who is accountable for the equipment loaned or leased will keep all
records of loans of DoD material. Loans are made at no additional cost to the government.
Borrowers are responsible for all incremental costs (costs above the normal Army operating
expenses) and these will be identified and added into the loan agreement.
Agencies loaning or leasing materiel from an Army activity are responsible for all costs associated
with the loan or lease to include shipping, return, and repair of the materiel. Reimbursable
incremental costs include the following:
Any overtime pay and pay of additional civilian personnel required to accompany, operate,
maintain, or safeguard borrowed equipment
Travel and per diem expenses of Army personnel (military and civilian)
64
10 U.S.C. § 2667 (2012); U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL
(23 Aug. 2004) [hereinafter AR 700-131]; U.S. DEP’T OF ARMY, REG. 725-1, SPECIAL AUTHORIZATION AND
PROCEDURES FOR ISSUES, SALES, AND LOANS (17 Oct. 2003) [hereinafter AR 725-1].
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Packing, crating, handling, and shipping from supply source to destination and return, to include
port loading and off loading
All transportation, including return for repair and renovation
Hourly rate for the use of Army aircraft
Petroleum, oils, and lubricants (including aviation fuel)
The cost of material lost, destroyed, or damaged beyond economical repair
Utilities (gas, water, heat, and electricity)
Any modification or rehabilitation or real property that affects its future use by the Army;
Overhaul of returned material
Repair parts used in maintenance and renovation
Price decline of borrowed stock fund material at which returned property can be sold
Issue and turn-in inspection labor costs
Charges for the use of vehicles, except petroleum, oils, and lubricants and per diem costs
Use of real property
Restoration costs for historical property
Lease fees
It is important to note that in addition to the above reimbursable costs, leases require the borrower
to pay a lease fee equal to the fair market value of the lease interest in the property.
2.
Emergency Exceptions
Emergency loans or leases are those made to prevent “loss of life, grave bodily harm, or major
destruction of property, and when the lack of communications facilities prevents the use of normal
procedures.” Emergency loans and leases will not be withheld because a formal reimbursement
agreement has not been negotiated and concluded. Additionally, loans or leases that would
otherwise be permitted by service regulations may be approved under emergency conditions at the
local level, vice the approval level designated in Table 2-1 of AR 700-131. Emergency requests for
the loan or lease of Army materiel may be made verbally or electronically. The borrower must send
a formal written request to the lending agency as soon as possible, and must complete a loan or
lease agreement within five days of the original transaction.
3. Additional Requirements
Leases carry additional requirements under AR 700-131. Army materiel will not be leased if a
reasonable counterpart can be purchased or leased in the commercial market. Leases are limited to
a maximum five-year term unless the Secretary of the Army (SECARMY), or one of his designees,
approves an extended lease term. The SECARMY also has the authority to revoke a loan or a lease
at any time. Lessees must post a surety bond to cover damage or loss of the leased property and, if
necessary, show proof of either vehicular or hull insurance. In an emergency a lease may be made
without a bond, but the bond must be posted within five days of the lease. FAR Part 28 governs the
bonding requirements. The SECARMY must approve any bond forfeiture. Bonds are normally
forfeited when the materiel is not returned at the end of the lease period or the lessee refuses to pay
for damage or other lease expenses.
Once a loan or lease is approved, a loan or lease agreement will be entered into before the materiel
is delivered. The agreement will reflect the statutory basis for the loan or lease, and will describe in
detail all terms of the loan or lease and the responsibilities of both parties. The official accountable
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for the property of the borrowing activity must sign the loan or lease agreement. The loan or lease
agreement will be held by the activity that issues the material until final settlement. When DoD has
made a lease of personal property, the costs associated with the lease are placed into a special
account established for the respective defense agency whose property is subject to the lease.
Amounts in the account are available solely for maintenance, repair, restoration or replacement of
leased personal property.
M. Military Assistance to Safety and Traffic65
Under the MAST program, DoD provides aerial MEDEVAC services to civilian communities who
have no comparable services or until such time as they can be established. The participating
command pays for the funding of the program, i.e., it is funded by unit O&M funds. Also,
participation in the MAST program shall not cause an increase in the funding required to operate
the unit. The appropriate state or local officials provide special equipment and/or radios necessary
to participate in the program at no cost to the U.S. Government. U.S. Government officials will
provide supervision and technical assistance for the installation of radio equipment. Non-DoD
physicians, nurses, and emergency medical personnel may be transported in conjunction with a
MAST mission. Normally, one next-of-kin may be transported if necessary for the best interests of
the patient. Any other transportation of non-DoD personnel is governed by service regulations.
N. Explosive Ordnance Disposal66
Explosive Ordnance Disposal (EOD) is the detection, identification, field evaluation, rendering safe,
recovery, and final disposition of unexploded explosive ordnance (UXO).67 Explosive Ordnance
Disposal operations outside of DoD installations are primarily the responsibility of civil authorities.
DoD may provide EOD assistance, in the form of EOD actions and/or advice, upon request from
Federal agencies or civil authorities at any level, when the service concerned determines that such
assistance is required or desirable in the interest of public safety.68 Each service is responsible for
all self-caused Explosive Ordnance contamination on its own installations and operation bases.69
EOD assistance involving formerly used defense sites (FUDS) will be funded from the Environment
Restoration Accounts.70 Services must request reimbursement for EOD services rendered for non-
DoD incidents from the requesting agency.71
65 DOD 3025.1-M, supra note 32.
66 U.S. DEP’T OF ARMY, U.S. DEP’T OF NAVY, AND U.S. DEP’T OF AIR FORCE, REG. 75-14/INSTR. 8027.1G/MARINE
CORPS ORDER 8027.1D/REG. 136-8, INTERSERVICE RESPONSIBILITIES FOR EXPLOSIVE ORDNANCE DISPOSAL (14 Feb.
1992) [hereinafter AR 75-14]; U.S. DEP’T OF ARMY, REG. 75-15, RESPONSIBILITIES AND PROCEDURES FOR EXPLOSIVE
ORDNANCE (1 Nov. 1978) [hereinafter AR 75-15]; DODI 3025.21, supra note 29, Encl. 5.
67 AR 75-14, supra note 66, para. 3f.
68 Id. para. 7b(3).
69 Id. at para. 7d(3)(a).
70 Id. at para. 7d(3)(e).
71 AR 75-15, supra note 66, para. 3-2d.
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O. Military Working Dogs72
Military working dogs include patrol dogs, and patrol dogs with specialized training in either
narcotic/contraband detection or explosive detection. Explosive Detector Dog team assistance may
be provided to Federal agencies or civil authorities. Upon a request from a Federal agency or State
or local civilian authority at any level, the installation commander concerned will make a
determination that such assistance is required in the interest of public safety.73 Requests for
assistance may only be honored from civilian authorities, not private citizens.74 Requesting
agencies must agree to meet reimbursement requirements and utilize DD Form 1926 (Explosive
Ordnance Disposal Civil Release and Reimbursement Agreement).75
P. Miscellaneous Support76
To respond to an emergency involving biological or chemical weapons of mass destruction that is
beyond the capabilities of the civil authorities to handle, the Secretary of the Department of
Homeland Security may request DoD assistance directly. Available assistance would include
monitoring, containing, disabling, and disposing of the weapon. For weapons of mass destruction,
Federal funding is provided to DoD to develop and maintain domestic terrorism rapid response
teams (Civil Support Teams) to aid Federal, State, and local officials and responders. Civil Support
Teams are composed of full time Army and Air National Guard members. These teams are
Federally resourced, trained, evaluated, and they operate under Federal doctrine. They perform
their missions, however, primarily under the command and control of State Governors. See
Chapters 3 and 6 for more information on these teams.
Q. Miscellaneous Exceptions
DoDI 3025.21, Encl. 3, para. 1.b., contains a list of situations containing express authorization for
the use of military forces to enforce the civil law. Among them are the protection of the President,
Vice President, and other dignitaries; and assistance in the case of crimes against members of
Congress, foreign officials, or involving nuclear materials.
R. Funding Issues Related to the Use of the National Guard in Domestic Operations
The National Guard is both an “organized militia” of a State, as well as a reserve component of both
the Army and the Air Force. When referring to the National Guard’s Federal reserve component
status, the appropriate term is “National Guard of the United States.” In terms of domestic
operations, it is important to recognize that as a general rule, National Guard members are in one of
three statuses:
(1) Title 10, (2) Title 32 and (3) State Active Duty (SAD). When National Guard
72 DODD 5200.31E, supra note 53; U.S. DEP’T OF ARMY, REG. 190-12, MILITARY WORKING DOGS (11 Mar. 2013)
[hereinafter AR 190-12].
73 Id. at para. 4-11a(1).
74 Id. at para. 4-11b(1).
75 Id. at para. 4-11b(2).
76
10 U.S.C. §§ 379, 382 (2012); National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104-201, Title
XIV (Defense Against Weapons of Mass Destruction), 110 Stat. 2422 (1996); U.S. DEP’T OF DEFENSE, DIR. S-5210.36,
PROVISION OF DOD SENSITIVE SUPPORT TO DOD COMPONENTS AND OTHER DEPARTMENTS AND AGENCIES OF THE U.S.
GOVERNMENT (U) (6 NOV. 2008) [hereinafter DoDD 5210.36].
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members are mobilized and placed on Title 10 orders, they are Federally funded and under a
Federal chain of command like any other active component Airman or Soldier. Typically, this is
seen when a National Guard unit is mobilized for OCONUS military operations. When they are
serving in a Title 32 capacity, they are Federally funded, but operating under a “State” chain of
command up to the State’s Governor. The most typical use of National Guard members in a Title
32 status is when they are performing their required weekend training or their two-weeks of Annual
Training. When they are serving in a SAD status, they are funded by the State, and are under a
State chain of command. That is, often times when a National Guard unit is performing a State
emergency response (e.g., flood, wildfires, etc.) they are often in a purely State status, and being
paid out of that State’s funding (as opposed to Federal funding).
In terms of Domestic Operations, there is a specific DoD Instruction that covers the employment of
National Guard personnel in a Title 32 status—DoDI 3025.22, “The Use of the National Guard for
Defense Support to Civil Authorities.” That DoDI explains that the Secretary of Defense, with the
concurrence of the affected Governors, is the “sole authority” to authorize DoD funding of the
National Guard for DoD operations or missions, including DSCA. If authorized by SECDEF to
perform Federally-funded (Title 32) domestic operations, the National Guard personnel are
typically performing such operations pursuant to 32 U.S.C § 502(f). Accordingly, the National
Guard service-members performing such operations are paid out of the Army National Guard and
Air National Guard personnel accounts. If this type of Title 32 duty is being carried out pursuant to
a Mission Assignment from FEMA, those military personnel accounts may be reimbursed by
FEMA under the Stafford Act. That is, assuming that SECDEF determines that the National Guard
is the appropriate sourcing solution for a FEMA mission assignment, SECDEF would authorize the
use National Guard service-members to perform the mission in a Title 32 status, to be reimbursed
later by FEMA from Disaster Relief Funds. This use of Federal funding for a SECDEF-authorized
use of the NG for DSCA should not be confused with the use of a State’s National Guard in a SAD
status. Again, when National Guard members are performing operations in a SAD status, the costs
of that type of mission are borne by the State, and not by DoD.
Finally, in order to understand the Federal funding for the National Guard, it is important for judge
advocates to understand the role of the National Guard Bureau (NGB), and NGB’s United States
Property and Fiscal Officers, (USPFOs). The National Guard Bureau is “Joint Activity of the
Department of Defense,” with statutory authority stemming from 10 U.S.C. § 10501-10508. The
primary DoD-level implementation of that authority is set out in the NGB Charter—DoDD 5105.77.
NGB is led by the Chief of NGB (CNGB) a four-star general and member of the Joint Chiefs of
Staff. CNGB is responsible for planning and administering the budgets of the Army National
Guard and the Air National Guard of the United States. CNGB is also responsible for supervising
the acquisition/supply/accountability for Federal property issue to the National Guard through the
USPFO. See 10 U.S.C. § 10503.
As applied to Domestic Operations (DOMOPs), the USPFOs (as the agents of SECARMY and
SECAF through CNGB) play a central role at the State National Guard level in terms of providing
oversight for the Federal funds and Federal equipment that is in the possession of their State’s
National Guard. During a SAD mission, the State’s Adjutant General (Commander of that State’s
National Guard) has the authority to use Federal equipment for State emergency response as
determined by the Governor. The USPFOs are responsible for ensuring that the Federal equipment
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(particularly vehicles and helicopters) are being tracked for reimbursement purposes. Following a
SAD mission, the USPFO presents a bill to the State for reimbursement.
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CHAPTER 13
CYBERSPACE OPERATIONS IN THE NATIONAL GUARD
KEY REFERENCES:
Support and services for eligible organizations and activities outside Department of Defense,
10 U.S.C. §2012 et seq.
The Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq.
The Wiretap Act, 18 U.S.C. §2511 et seq.
The Stored Communications Act, 18 U.S.C. §2701 et seq.
The Pen Trap and Trace Act, 18 U.S.C. §3121 et seq.
The Economy Act, 31 U.S.C. §1535 et seq.
Executive Order (EO) 12333 - U.S. Intelligence Activities, December 4, 1981, as amended
by EO 13284 (2003), EO 13355 (2004) and EO 13470 (2008).
National Guard, 32 U.S.C. §502 et seq.
Presidential Policy Directive 20, United States Cyber Operations Policy, 16 October 2012
Presidential Policy Directive 41, United States Cyber Incident Coordination, 26 July 2016
Department of Defense, Cyber Strategy, (Washington, D.C. 2015)
Department of Defense Directive (DoDD) 1100.20, Support and Services for Eligible
Organizations and Activities Outside the Department of Defense, 12 April 2004
DoDD 3020.40, Mission Assurance, 29 November 2016
DoDD 3025.18, Defense Support of Civil Authorities (DSCA), 29 December 2010,
Incorporating Change 2, 19 March 2018
DoDD 5240.01, DoD Intelligence Activities, 27 August 2007, Incorporating Change 1 and
Certified Current Through 27 August 2014
DoDD 5148.13, Intelligence Oversight, 26 April 2017
Department of Defense Instruction (DoDI) 1215.06, Uniform Reserve, Training and
Retirement Categories, 11 March 2014, Incorporating Change 1, Effective 19 May 2015
DoDI 3025.22, The Use of National Guard for Defense Support of Civil Authorities, 26 July
2013, Incorporating Change 1, Effective 15 May 2017
DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, 27 February 2013
DoDI 4000.19, Support Agreements, 25 April 2013, Incorporating Change 1, 30 November
2017
DoD Manual 5240.01, Procedures Governing the Conduct of Intelligence Activities, 8
August 2016
DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that
Affect United States Persons, December 1982, Incorporating Change 2, Effective 26 April
2017
Joint Publication 3-12(R), Cyberspace Operations, 5 February 2013
Directive Type Memorandum (DTM) 17-007, Interim Policy and Guidance for Defense
Support to Cyber Incident Response, 21 June 2017
Deputy Secretary of Defense (DepSecDef) Policy Memorandum (PM) 16-002, Cyber
Support and Service Provided Incidental to Military Training and National Guard Use of
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DoD Information Networks, Software, and Hardware for State Cyberspace Activities,
24 May 2016
SecDef Memorandum, Leveraging Military Training for Incidental Support of Civil
Authorities, 16 Dec 2013
National Guard Cyber Strategy, 5 Jan 2018
National Guard Regulation (NGR) 5-2, National Guard Support Agreements, 14 Oct 2010
NGR 500-5/ANGI 10-208, National Guard Domestic Law Enforcement Support and Mission
Assurance Operations, 18 August 2010
NGR 350-1, Army National Guard Training, 4 August 2009
Chief, National Guard Bureau Instruction 2000.01C, National Guard Intelligence Activities,
14 August 2018
Chief, National Guard Bureau Manual 2000.01, National Guard Intelligence Activities, 26
November 2012
Air National Guard Instruction 36-2001, Management of Training and Operational Support
within the Air National Guard, 19 October 2009, Certified Current 28 April 2014
OpJAGAF 2005/36, 28 July 2005, AIR NATIONAL GUARD JAO
Department of Homeland Security, National Preparedness System, (November 2011)
Department of Homeland Security, National Response Framework, (June 2016)
Department of Homeland Security, National Cyber Incident Response Plan, (December
2016)
A.
Introduction
Cyber operations are not the future. They are now. The National Guard faces the same
constraints in cyberspace as in the traditional kinetic realm. However, cyberspace presents some
unique challenges. For instance, most military equipment is not governed by restrictive licensing
agreements. However, software-licensing agreements may restrict who may use a cyber-tool kit
and how that kit may be used. Additionally, cyberspace activities are generally not linear in
nature. For example, one computer does not normally interact directly with another computer.
Rather, the data is transferred through multiple routers and servers, all of which may not be in
the same town, State or even country. As a result, actions intended to have a domestic effect in
cyberspace could have international consequences. Additionally, attribution in cyberspace is not
as clear as it is in the kinetic realm. What may appear to be an action taken by a local resident
could very well be an action orchestrated by a foreign actor. This complex and evolving battle
space requires legal practitioners to have both a basic understanding of how the cyberspace
works as well as the laws and policies governing those actions.
B. DoD Cyber Missions
The DoD has three primary cyber missions: (1) DoD must defend its own networks, systems, and
information; (2) DoD must be prepared to defend the United States and its interests against
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cyberattacks of significant consequences; (3) if directed by the President or SecDef, DoD must
provide integrated cyber capabilities to support military operations and contingency plans. 1
As depicted in Figure 1, DoD cyber missions can be categorized as defensive or offensive
operations.2 Categorization depends on the capability and the effects of that capability. It is
important to note that capability does not mean authority. Understanding the effects of cyber
capabilities is key to determining the authority necessary to perform the mission.
1. Protect the DoD Information Network (DODIN)
Protecting DODIN is defensive in nature and includes actions such as designing, building,
configuring, securing, operating, maintaining, and sustaining the information environment relied
upon for operations by activities, such as correcting known IT vulnerabilities, encrypting data,
and ensuring user and administrative training and compliance.
1 U.S. DEP’T OF DEFENSE, CYBER STRATEGY (2015), https://dod.defense.gov/Portals/1/features/2015/0415_cyber-
strategy/Final_2015_DoD_CYBER_STRATEGY_for_web.pdf [hereinafter CYBER STRATEGY].
2 Brett T. Williams, The Joint Force Commander’s Guide to Cyberspace Operations, 73 J. FORCE Q., 12, 14 (2d Q.
2014).
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2.
Defensive Cyberspace Operations (DCO)
The objective of DCO is to ensure freedom of maneuver in cyberspace. DCOs are both passive
and active cyberspace defense activities3 that allow the outmaneuvering of an adversary.4 DCO
provides the ability to discover, detect, analyze, and mitigate threats, to include insider threats.5
DCO is prioritized against key cyber terrain to ensure data moves securely across the information
environment. DCO is executed against specific threats that have both malicious capability and
intent to affect key cyber terrain.6
DCO-Internal Defensive Measures (DCO-IDM) are those actions taken internally to friendly
cyberspace.7 The essential tasks for DCO-IDM are actively hunting for advanced internal threats
as well as the internal responses to these threats.8 DCO-IDMs respond to unauthorized activity
or alerts/threat information within the DODIN, as well as leverage intelligence,
counterintelligence, law enforcement, and other military capabilities as required.9 In other
words, DCO-IDMs include hunting on friendly cyber terrain for threats attempting to evade
security protocols and directing appropriate internal responses.10
DCO-Response Actions (DCO-RA) are taken outside the DODIN to stop or block the attack. An
example of DCO-RA is shutting down an external router from which malicious activity is
emanating. The essential tasks for DCO-RA are deliberate, authorized defensive measures or
activities taken external to the DODIN to defeat ongoing or imminent threats to defend DoD
cyberspace capabilities or other designated systems.11 DCO-RAs must be authorized in
accordance with policy, procedures, and applicable standing rules of engagement and any
applicable supplemental rules of engagement and may rise to the level of use of force.12 In other
words, DCO-RAs include activities outside friendly network space to stop an attack before it
reaches our key cyber terrain.13 To use a metaphor, we “catch arrows” with DCO-IDM and we
“kill the archer” with DCO-RA.
3.
Offensive Cyberspace Operations (OCO)
OCO “project power by the application of force in or through cyberspace.”14 An example is
hacking an adversary’s computer. Authorities governing OCO activities are classified and a
3 JOINT CHIEFS OF STAFF, JOINT PUB. 3-12(R), CYBERSPACE OPERATIONS II-2 (5 Feb. 2013) [hereinafter JP 3-
12(R)].
4 WILLIAMS, supra note 2, at 5.
5 JP 3-12(R), supra note 3, at II-3.
6 WILLIAMS, supra note 2, at 15.
7 Id.
8 JP 3-12(R), supra note 3, at II-3.
9 Id.
10 WILLIAMS, supra note 2, at 16.
11 JP 3-12(R), supra note 3, at II-3.
12 Id.
13 WILLIAMS, supra note 2, at 16.
14 JP 3-12(R), supra note 3, at GL-4.
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detailed description is outside the scope of this chapter. However, briefly stated, OCO represents
a synergy between Title 50 (national intelligence) authorities to collect signals intelligence, and
Title 10 (military) authorities to apply force in the cyber realm. For full situational awareness and
to advise on mission capability and authority, judge advocates must obtain the appropriate
security clearance to fully understand the DoD cyber missions, responsibilities, authorities, laws
and regulations, including classified materials related to those missions.
C. DoD Cyber Mission Force (CMF)
The active component CMF is comprised of cyber operators organized into 133 teams primarily
aligned as follows: Cyber Protection Team (CPT), National Mission Team (NMT), Combat
Mission Team (CMT), and support teams. Combatant commands integrate CMTs and CPTs into
plans and operations and employ them in cyberspace, while the NMT operates under the
Commander of USCYBERCOM. “[T]eams can also be used to support other missions as
required by DoD.”15 Furthermore, the National Guard has Defensive Cyberspace Operations-
Elements (DCO-Es), which by design do not have an active component CMF mission.
1.
Cyber Protection Team (CPT)
The mission of CPTs is to “[d]efend priority DoD networks and systems against priority
threats”16 by augmenting traditional defensive measures through their unique capabilities.17 In
other words, CPTs provide mission assurance and threat mitigation support to U.S. Critical
Infrastructure Key Resources (CIKR), U.S. military services, and key terrain of combatant
commands.
While in Title 10 status, CPTs provide surge support to active duty cyber component (such as
USCYBERCOM, AFCYBER, or ARCYBER) and support DCOs by removing adversary
capabilities, defending the supported commander's key cyberspace terrain and critical assets, and
preparing local cyberspace defenders to sustain advanced cyberspace defense tactics, techniques
and procedures (TTP). CPTs are the forces tasked with the DCO-IDM mission under
USCYBERCOM.18
While in a Title 32 status, CPTs train for the Federal mission.
2.
National Mission Teams (NMT)
NMTs and their associated support teams defend the United States and its interests against
cyberattacks of significant consequence.19 NMTs are the forces tasked with the DCO-RA
mission under USCYBERCOM.20
15 CYBER STRATEGY, supra note 1, at 6.
16 U.S. DEP’T OF DEFENSE, https://dod.defense.gov/News/Special-Reports/0415_Cyber-Strategy/ (last visited Aug.
27, 2018).
17 CYBER STRATEGY, supra note 1, at 6.
18 WILLIAMS, supra note 2, at 16.
19 CYBER STRATEGY, supra note 1, at 6.
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3. Combat Mission Teams (CMT)
CMTs “support combatant commands by generating integrated cyberspace effects in support of
operational plans and contingency operations.”21
4. Support and Other Teams
Support teams “provide analytic and planning support to the [NMTs] and [CMTs].”22 Other
teams include Cyber Intelligence, Surveillance and Reconnaissance Squadrons; Information
Aggressor Squadrons; Cyber Training Squadrons; and Data Processing Units. These teams have
specific mission sets with a nexus to DoD’s cyber mission.
5. DCO-E
Although not part of the CMF, DCO-Es are State assets serving as a military first responder for
Governors and The Adjutants General (TAGs) for cyber emergencies. DCO-Es may provide
surge capacity of the same capability of Title 10 assets but are prohibited from being mobilized,
as a unit, for Title 10 missions.
D. Title 32 Cyberspace Activities
The National Guard must have both proper fiscal authority and an authorized mission to conduct
cyberspace activities while in a Title 32 status.
Congress funds the National Guard to train for the Federal mission. Inactive Duty Training
(IDT) and Annual Training (AT) are conducted under 32 U.S.C. §502(a) as part of a published
training plan.23 Chief, National Guard Bureau (CNGB) has the inherent authority to authorize
additional training funds under 32 U.S.C. §502(f)(1). This broad statutory authority enables the
conduct of training activities that also have a significant operational benefit. However, the broad
nature of this authority warrants scrutiny, and cautious analysis, as further described herein.
Finally, the President and the SecDef have authority to authorize operational missions under 32
U.S.C. §502(f)(2).24
When in their SAD or Title 32 statuses, the National Guard may not conduct DCO-RA and
OCO.25 These activities must be conducted in a Title 10 status.26 Therefore, the National Guard
20 WILLIAMS, supra note 2, at 16.
21 CYBER STRATEGY, supra note 1, at 6.
22 U.S. DEP’T OF DEFENSE, https://dod.defense.gov/News/Special-Reports/0415_Cyber-Strategy/ (last visited Aug.
27, 2018).
23 Training plans must be in accordance with National Guard Bureau (NGB) NGB 350-1 and Air National Guard
Instruction (ANGI) 36-2001.
24 Civil support teams, counterdrug, and homeland defense are operational missions authorized by statute under 32
U.S.C. §502(f)(2). There are currently no operational cyber missions.
25 See generally U.S. DEP’T OF DEF., POL’Y MEM. 16-002, CYBER SUPPORT AND SERVICE PROVIDED INCIDENTAL TO
MILITARY TRAINING AND NATIONAL GUARD USE OF DOD INFORMATION NETWORKS, SOFTWARE, AND HARDWARE
FOR STATE CYBERSPACE ACTIVITIES (24 May 2016) [hereinafter PM 16-002]. This memorandum is also commonly
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can train for the Federal mission in a Title 32 status but is limited to DODIN operations and
DCO-IDM activities.
Nevertheless, commanders are not limited to computer-based training or exercises on their own
systems. Title 32 training authorities can be leveraged to provide support to (1) active
component, (2) civil authorities, and (3) other statutorily eligible entities.
1. Support to Active Component. The National Guard can provide an incidental
operational benefit while conducting training.27 The key is that the primary purpose of the
activity must be military training. Enclosure 4, paragraph 1, of DoDI 1215.06, encourages
maximum Reserve Component utilization to the extent that, “all training duty planned and
performed by Reserve Components members shall capitalize on Reserve Components
capabilities to accomplish operational requirements while maintaining their mission readiness for
domestic and overseas operations. RC members may be employed to support active component
mission requirements as part of conducting training duty.”28 Additionally, “support to mission
requirements, (i.e., [operational support]),” may occur “as a result of the training.”29 The
following analysis is suggested to help commanders determine whether the conduct of training
that provides an incidental operational benefit is authorized:
1. Is National Guard performance of the Federal operational mission consistent with the
National Guard unit's formalized training program? If not, then the activity runs the risk of
violating fiscal laws by the use of appropriated funds for an improper purpose.
2. Can the Federal mission be performed without support from the National Guard? If not,
then the National Guard has moved beyond a support role into an operational role and is
exceeding the scope of its authority.
3. Is the use of full-time National Guard (FTNG) personnel disproportionate? FTNG may
participate in activities other than organizing, administering, recruiting, instructing, and training
(OARIT) on a non-interference basis. Disproportionate use runs the risk of violating fiscal laws
by the use of appropriated funds for an improper purpose.
In order to answer these questions, the facts must reveal the proposed task, duration, and scope.
If the training is not within scope of the National Guard unit’s formalized training program, then
the question becomes whether the training will nevertheless benefit DoD. This analysis should
consider policy issues with risk assessment and the appropriateness when using the National
referred to as the “CTAA” memo. CTAA stands for coordinate, train, advise, and assist cyber support and services
provided by members of the National Guard incidental to military training when using DoD information networks
(DoDIN), software, and hardware for State cyberspace activities.
26 PRESIDENTIAL POL’Y DIR. 20, UNITED STATES CYBER OPERATIONS POLICY (16 Oct. 2012) [hereinafter PPD 20].
27 U.S. DEP’T OF DEF., INSTR. 1215.06, UNIFORM RESERVE, TRAINING AND RETIREMENT CATEGORIES (19 May
2015) [hereinafter DoDI 1215.06].
28 Id. at encl. 4, para. 1.
29 Id. at encl. 3, para. 2.a.1.
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Guard similar to the CARRLL factors used when considering whether to support a request for
assistance from civil authorities.
2. Support to Civil Authorities - Generally. The National Guard can provide defense
support to civil authorities, commonly referred to as DSCA, when a qualifying entity requests
assistance.30 DoD publications on DSCA focus on a response in Title 10 or 32 U.S.C. §502(f)(2)
status. Currently, Directive-Type Memorandum (DTM) 17-007 is the only publication on DSCA
for cyber operations, or Defense Support to Cyber Incident Response (DSCIR).31 DSCIR may
be provided for a cyber incident in response to a request for assistance from a lead Federal
department or agency for asset response or threat response outside DODIN as described in PPD-
41.32 This includes DSCIR for immediate response authority to save lives, present human
suffering, or mitigate great property damage.33 Based on the nature of support, liability waivers,
memorandums of understanding or agreements (including permission from asset owner to access
appropriate information and information systems), non-disclosure agreements, or other
appropriate legal documents requested by DoD must be signed before providing DSCIR.34
DSCIR does not preclude support to civil authorities in other statuses, such as training which
provides an incidental operational benefit.
3. Support to Civil Authorities - Intelligence Support to Law Enforcement. Cyber
teams likely have intelligence personnel assigned to them. Executive Order 12333 and
associated Intelligence Oversight rules and procedures will apply if cyber intelligence personnel
provide support to law enforcement.35 While any domestic intelligence activities (including
collection) must be done in a Title 10 or Title 50 status with proper mission and authority,
SecDef approval is required for the use of intelligence assets for anything other than foreign
intelligence, counterintelligence, or intelligence training.36 These activities include the conduct
of training with an incidental operational benefit. Intelligence support to law enforcement
requires SecDef approval in accordance with Procedure 12 under DoD 5240.1-R.37
4. Support to Civil Authorities - Economy Act. The Economy Act allows Federal
agencies to provide support to other Federal agencies on a reimbursable basis, unless the support
30 U.S. DEP’T OF DEF., INSTR. 3025.22, THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL
AUTHORITIES para. 3 (26 July 2013) (ch. 1, 15 May 2017) [hereinafter DoDI 3025.22].
31 Directive-Type Memorandum (DTM) 17-007 is set to expire on 21 June 2019 and will be converted to a new
issuance.
32 PRESIDENTIAL POL’Y DIR. 41, UNITED STATES CYBER INCIDENT COORDINATION (26 July 2016) [hereinafter PPD
41].
33 U.S. DEP’T OF DEF., DIRECTIVE TYPE MEM. 17-007, INTERIM POLICY AND GUIDANCE FOR DEFENSE SUPPORT TO
CYBER INCIDENT RESPONSE (21 June 2017) [hereinafter DTM 17-007].
34 Id.
35 See generally CHIEF, NAT’L GUARD BUREAU, INST. 2000.01C, NATIONAL GUARD INTELLIGENCE ACTIVITIES (14
Aug. 2018) [hereinafter CNGBI 2000.01C].
36 Id. at encl. A, para. 13.c.6.
37 Id.
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is provided in the normal course of training or operations, or the support results in a substantially
equivalent training value.38
5. Other Entities. Deputy Secretary of Defense Policy Memorandum (DepSecDef PM)
16-002, “Cyber Support and Services Provided Incidental to Military Training and National
Guard Use of DoD Information Networks, Software and hardware for State Cyberspace
Activities,” commonly referred to as the “CTAA memo,” provided guidance on the National
Guard providing cyber support and services incidental to military training through Innovative
Readiness Training (IRT) projects.39 IRT projects have traditionally been used for engineering
and construction (such as building a bike trail for a local government or fixing shelters for the
Boy Scouts), or for providing medical care to underserved communities. The CTAA memo
clarified that IRT includes cybersecurity projects. Specifically, the CTAA memo provides
guidance that coordinating, training, advising, and assisting certain qualifying mission partners
must be done in accordance with IRT eligibility and program requirements under 10 U.S.C.
§2012 or, alternatively, with SecDef approval.40 An example of a cybersecurity IRT project
might be a request from a local government entity to enhance network security measures.
It is important to note that the CTAA memo does not preclude consultation or other methods of
training under other authorities like the Economy Act or Stafford Act.41
E. National Cyber Incident Response Plan (NCIRP)
The National Preparedness System outlines an organized process for the whole of community to
move forward with their preparedness activities and achieve the National Preparedness Goal.42
The National Preparedness System integrates efforts across five areas - Prevention, Protection,
Mitigation, Response, and Recovery. The NCIRP is part of the broader National Preparedness
System under the Response Framework and establishes the strategic framework and doctrine for
a whole-of-Nation approach to mitigating, responding to, and recovering from a cyber-incident.
Presidential Policy Directive (PPD) 41, U.S. Cyber Incident Coordination, sets forth principles
governing the Federal Government’s response to any cyber incident, provides an architecture for
coordinating the response to significant cyber incidents, and requires the Department of
Homeland Security (DHS) to develop the NCIRP for the purpose of addressing cybersecurity
risks to critical infrastructure.
38
31 U.S.C. §1535 (2012) [hereinafter The Economy Act].
39 On March 1, 2018, the expiration date of the CTAA memorandum was extended to March 1, 2019 or when the
original guidance is incorporated into permanent issuances, whichever occurs first.
40 PM 16-002, supra note 25.
41 Outside of CTAA activities, the CTAA memorandum provides guidance that consulting with government entities
and with public and private utilities, critical infrastructure owners, the Defense Industrial Base, and other non-
governmental entities, as needed, in order to protect DODIN, software, and hardware, enhance DoD cyber
situational awareness, provide for DoD mission assurance requirements, and provide cybersecurity unity of effort
are outside the context of CTAA training activities.
42 See generally DEP’T OF HOMELAND SECURITY, NATIONAL PREPAREDNESS SYSTEM (Nov. 2011) [hereinafter NPS
2011].
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The Department of Justice (DoJ) is the lead Federal agency for threat response during a
significant cyber incident, acting through the Federal Bureau of Investigation and National Cyber
Investigative Joint Task Force.43 DHS is the lead Federal agency for asset response during a
significant cyber incident, acting through the National Cybersecurity and Communications
Integration Center (NCCIC).44 Threat response activities, asset response activities, and
significant cyber incident are further discussed and defined in PPD 41.45
According to the NCIRP, the DoD is responsible for threat response to cyber incidents affecting
DoD assets and DODIN.46 DoD can also support civil authorities for cyber incidents outside the
DODIN when requested by the lead Federal agency, and approved by the appropriate DoD
official, or directed by the President. Such support would be provided based upon the needs of
the incident, the capabilities required, and the readiness of available forces.
DHS, in coordination with the heads of other appropriate Federal departments and agencies and
in accordance with the NCIRP is required to regularly update, maintain, and exercise the Cyber
Incident Annex to the National Response Framework (NRF).47 The NRF is part of the NPS and
is a guide on how the Nation responds to all types of disaster and emergencies. The NRF
contains 14 Emergency Support Functions (ESF) and annexes that describe the Federal
coordinating structures to group resources and capabilities into functional area that are most
frequently needed in a national response.48 ESF #2 Communications addresses cyber security
issues that result from or occur in conjunction with incidents. However, for incidents that are
primarily cyber in nature, the Cyber Incident Annex is used and ESF #2 supports responses to
cyber incidents as directed.49
F. State Active Duty (SAD)
Personnel in SAD status are under the command and control of their Governor. As such, State
laws govern issues in discipline, ethics, information protection, privacy, and liability. However,
certain Federal laws may apply in areas such as HIPAA and the Computer Fraud and Abuse Act.
States cannot engage in international warfare, i.e. a State cannot attack a foreign country by
cyber or kinetic means. Any attempts of activities that could be considered DCO-RA or OCO
must be carefully reviewed and should receive a written opinion from the State Attorney General
in order to set parameters of activities.
43 PPD 41, supra note 32, sec. V, para. B.c.1.
44 Id. at sec. V, para. B.c.2.
45 Id.
46 DEP’T OF HOMELAND SECURITY, NATIONAL CYBER INCIDENT RESPONSE PLAN 11 (Dec. 2016) [hereinafter
NCIRP 2016].
47 Id. at 9.
48 DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK (June 2016) [hereinafter NRF 2016].
49 DEP’T OF HOMELAND SECURITY, EMERGENCY SUPPORT FUNCTION 2, COMMUNICATIONS ANNEX (June 2016),
d7c256b645e9a67cbf09d3c08217962f/ESF_2_Communications_FINAL.pdf [hereinafter ESF 2].
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DoD rules generally do not apply to SAD personnel, but will apply to use of equipment procured
through a Federal trace, including reimbursement requirements for the use of USG equipment.50
Licensing requirements may limit the use of Federal cyberspace equipment or programs to
Federal use for Federal systems only and therefore would not be authorized for State use in a
SAD status or outside of the DODIN. Executive Orders (EOs) 12968 and 13549, as amended,
and DoD implementing guidance govern access and use of “DoDINs, software, hardware,
systems, tools, tactics, techniques, and procedures beyond the classification level of SECRET.”51
Further, National Guard members serving in their SAD status are prohibited from using this
equipment and software.52
G. Federal Laws Governing Cyber Activities
National Guard personnel may be subject to Federal criminal laws if they exceed the scope of
their mission.53 This is particularly important for non-Federalized National Guard personnel
who may exceed the scope of authorized activities if performing other than DCO-IDM activities.
National Guard personnel may only perform actions on a network when they have permission
from the network owner to do so, otherwise, they may be subject to Federal and/or State criminal
laws.
1. Computer Fraud and Abuse Act (18 U.S.C. §1030)
In 1984, the Computer Fraud and Abuse Act as related to fraud and related activity in connection
with computers was added to Title 18, Chapter 47, Fraud and False Statements. The Act
prohibits theft of information through unauthorized access or exceeded authorization on a
“protected” computer.54 A protected computer is a computer that is “(a) exclusively used by a
financial institution or USG; or used by financial institute or USG and conduct that affects that
use; or (b) used in or affecting interstate or foreign commerce or communication, including
computers outside the US, and conduct that affects that use.”55
The Computer Fraud and Abuse Act also prohibits damage by “(a) knowingly causing the
transmission of a program, information, code, or command, and as a result of such conduct,
intentionally causes damage without authorization, to a protected computer; (b) intentionally
accessing a protected computer without authorization, and as a result of such conduct, recklessly
50 U.S. DEP’T OF ARMY AND AIR FORCE, NAT’L GUARD REG. 500-5, NATIONAL GUARD DOMESTIC LAW
ENFORCEMENT SUPPORT AND MISSION ASSURANCE OPERATIONS (18 Aug. 2010) [hereinafter NGR 500-5].
51 PM 16-002, supra note 25, at 3.
52 Id.
53 The Computer Fraud and Abuse Act, Wiretap Act, Pen Trap and Trace Act, and Stored Communications Act are
the most common Federal laws governing cyber activities. Other Federal laws that are relevant include the Privacy
Act, the Health Insurance Portability and Accountability Act (HIPAA), and the Freedom of Information Act (FOIA).
For further reading, see Congressional Research Service (CRS) Report R42507, Federal Laws Relating to
Cybersecurity: Overview of Major Issues, Current Laws, and Proposed Legislation, by Eric. A Fischer.
54
18 U.S.C. §§ 1030(a)(1), (2) (2012).
55
18 U.S.C. § 1030(e) (2012).
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causes damage; or (c) intentionally accessing a protected computer without authorization, and as
a result of such conduct, causes damage and loss.”56
2. Wiretap Act (18 U.S.C. §2511)
The Wiretap Act prohibits the “intentional interception of any wire, oral, or electronic
communication.”57 It also prohibits “intentional disclosure or use of the contents of any wire,
oral, or electronic communication while knowing or having reason to know that the information
was obtained illegally.”58
3. Pen Register and Trap and Trace Act (18 U.S.C. §3121)
The Pen Register and Trap and Trace Act prohibits the real-time interception of the non-contents
of communications by a “pen register or a trap and trace device without first obtaining a court
order.”59 However, the prohibition does not apply to a service provider for the “operations,
maintenance, and testing” of the service.60 It also does not apply to a service provider in the
“protection of the rights or property of such service provider, or to the protection of users of that
service from abuse of service or unlawful use of service.”61
4. Stored Communications Act (18 U.S.C. §2701)
The Stored Communications Act governs unlawful access to stored communications by
prohibiting “(a) intentionally accessing, without authorization, of a facility through which an
electronic communication service is provided; or (b) intentionally exceeding an authorization to
access that facility and thereby obtaining, altering, or preventing authorized access to a wire or
electronic communication while it is in electronic storage in such system.”62
H. Judge Advocate Responsibilities
Through the Economy Act or NRF, the National Guard can partner with Federal agencies, such
as DHS, just like any other incident response preparation through the NPS. In the cyberspace
domain, there are unique rules for the use of cyber that need to be reviewed and agreed upon by
the National Guard and the asset owner through Memoranda of Understanding/Agreement and
Nondisclosure Agreements. It is key to develop relationships with the State Attorney General’s
office to be aware of any State specific rules that may apply as well as the constraints that apply
to Federal equipment. Some of the issues for JAs to consider are:
written permission from asset/network owner to access their system
56
18 U.S.C. §1030(a)(5) (2012).
57
18 U.S.C. §§ 2511(1)(a), (b) (2012).
58
18 U.S.C. § 2511(1)(c) (2012).
59
18 U.S.C. § 3121(a) (2012).
60
18 U.S.C. § 3121(b) (2012).
61
18 U.S.C. § 3121(b) (2012).
62
18 U.S.C. § 2701(a) (2012).
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scope of assistance to be provided (assessment and report finding; mitigation and
remediation; responses outside scope of assistance)
status of military personnel (SAD, Title 32), command and control, and legal basis for
disciplinary actions
destruction/storage of data obtained, to include privacy and security restrictions
confidentiality of proprietary data or information (ie, certain Federal cyber equipment
may report all data to USCYBERCOM)
whether the system will only scan or actively respond to the adversary action (ie, hack or
hackback which is prohibited outside of Title 10 status)
privacy balanced with required disclosure of criminal/fraudulent activity
privacy of network users (union, contractor, etc.)
privacy of business to not publicize discovered activity requiring criminal investigation
industry regulatory requirements to disclose incident
liability for unintended impact to operations
Intelligence Oversight requirements (ie, collection of USPI)
payment for services (look to the FAR and DFARS for specific requirements)
disputes resolution mechanism
conflicts of interest (use of a proprietary tool in which a National Guardsman may have
personal pecuniary interest)
licensing limitations for use of a cyberspace capability and data rights for TTPs or
software developed in conjunction with private entities as part of a cyber-response or
exercise
other relevant laws (State specific, Privacy, HIPAA, FOIA, FTCA, etc.)
The laws governing cyber activities are constantly changing in response to new technology and
uses of cyber capabilities in warfare. It is critical to ensure the latest laws are examined when
providing advice to commanders in this new and ever evolving area of the law. If you are
addressing an issue involving the cyber law, you should seek out additional expertise to assist
you in this complicated area.
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DOMESTIC OPERATIONAL LAW
HANDBOOK
CENTER FOR LAW AND MILITARY OPERATIONS (CLAMO)
THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL
2018
UNITED STATES ARMY
CHARLOTTESVILLE, VIRGINIA 22903-1781
DOMESTIC OPERATIONAL LAW
HANDBOOK
2021
FOR JUDGE ADVOCATES
CENTER FOR LAW AND MILITARY OPERATIONS
May 2021
2021 DOMESTIC OPERATIONAL LAW HANDBOOK
A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES
EDITORS
MAJ Vo-Laria N. Brooks, ARNGUS
LCDR Janelle M. Lokey, USN
2021 CONTRIBUTING AUTHORS AND EDITORS
COL Russel N. Parson
LTC Jason A. Coats
LTC Andrew. R. Atkins
LTC Safiya L. Ingram
LTC Grier Martin
Lt Col Neal P. Rodak
LTC Cindy Ruckno
CDR Jeremy A. Weiss
MAJ Thomas J. Akacki
MAJ David Nicholas Allen
MAJ Todd M. Chard
Maj Dimple N. Chheda
MAJ Leicia S. Grant
MAJ Jerome T. Trageser
MAJ Charles W. VanDerMiller
Maj Jeffrey C. Campbell
Maj Katharina Rienks
Capt Joel W. Hood
CPT Erickson Lee
Mr. Robert F. Gonzales
Mr. Kevin W. Kapitan
As well as numerous past editors and contributors to the Domestic Operational Law
Handbook.
The content and opinions expressed in this Handbook do not represent the official position of
the Department of Defense, the individual Services, the National Guard Bureau, the Office of
The Judge Advocate General, The Judge Advocate General’s Legal Center and School, or any
other government agency.
Center for Law and Military Operations (CLAMO)
The Judge Advocate General’s Legal Center and School, U.S. Army
Charlottesville, VA 22903-1781
EDITOR’S NOTE
The Domestic Operational Law (DOPLAW) Handbook for Judge Advocates is a product of the
Center for Law and Military Operations (CLAMO). The content is a collaboration of Federal
statutes, Executive Orders, national policy, Joint Publications and Department of Defense (DoD)
and Service regulations, as well as lessons learned and best practices from the field. The 2021
edition of the DOPLAW Handbook includes substantial revisions to Civil Disturbance Operations,
Counterdrug Operations, and Cyber Space Operations in the National Guard. Additionally, it
includes significant updates to all resources, including publications and website references.
This Handbook should serve as a working reference and a training tool; however, it is not a
substitute for independent research. With the exception of footnoted material, the information
contained in this Handbook is not doctrine and advisory only. Judge advocates advising in this area
should monitor developments in domestic operations closely, as the landscape continues to evolve.
The continued vitality of this Handbook depends upon feedback from the field. CLAMO
encourages your suggestions and comments for incorporation into the next edition of this
Handbook. You may contact CLAMO at (434) 971-3248/3210 (COMM), 521-3248/3210 (DSN),
via email at usarmy.pentagon.hqda-tjaglcs.mbx.clamo-tjaglcs@mail.mil, or via regular mail at 600
Massie Road, Charlottesville, VA 22903-1781.
Electronic copies of this publication are available at:
https://intelshare.intelink.gov/sites/clamo/_layouts/15/start.aspx#/SitePages/Home.aspx;
https://www.jagcnet.army.mil/; and the “Military Legal Resources” section of the Library of
Congress website at https://www.loc.gov/rr/frd/MilitaryLaw/military-legal-resources-home.html.
CLAMO also posts lessons learned, after action reports, and other products in the National Security
Law Document Library on JAGCNET at https://www.jagcnet2.army.mil/IODocLib (CAC access
required), and the National Security Law Milbook site at
https://www.milsuite.mil/book/groups/international-and-operational-law (CAC access required).
TABLE OF CONTENTS
INTRODUCTION: PURPOSE OF THIS HANDBOOK
1
CHAPTER 1: OVERVIEW OF DOMESTIC SUPPORT OPERATIONS
2
A. BACKGROUND
2
B. THE ROLE OF THE DEPARTMENT OF THE DEFENSE IN CIVIL SUPPORT
4
C. DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)
5
CHAPTER 2: NATIONAL FRAMEWORK FOR INCIDENT MANAGEMENT
8
A. THE FEDERAL RESPONSE STRUCTURE
9
1. Executive Order 12656
10
2. The Homeland Security Act
11
3. Homeland Security Presidential Directive-5 (Management of Domestic Incidents)
12
4. Presidential Policy Directive-8 (PPD-8)
13
5. PPD-8 and the National Preparedness System (NPS)
14
6. National Response Framework (NRF) History and Organization
14
7. National Prevention Framework
27
8. National Mitigation Framework
28
9. National Disaster Recovery Framework
29
10. National Protection Framework
30
11. National Incident Management System (NIMS)
31
12. Other Significant Response Plans and Authorities Related to NPS
32
B. THE STAFFORD ACT
35
1. Requests for Emergency or Major Disaster Declarations
38
2. Liability under the Stafford Act
40
3. Categories of Agency Support Under the Stafford Act
40
4. Interplay Between the Stafford Act and NPS
41
C. IMMEDIATE RESPONSE AUTHORITY
42
1. Federal Military Commanders
42
2. State Governors
43
D. CONCLUSION
43
CHAPTER 3: STATUS AND RELATIONSHIPS BETWEEN COMPONENTS RESPONDING TO DOMESTIC
INCIDENTS
46
A. INTRODUCTION
46
B. RESERVE COMPONENT
47
1. U.S. Army Reserve (USAR)
47
2. U.S. Air Force Reserve (USAFR)
47
3. U.S. Naval Reserve (USNR)
48
4. U.S. Marine Corps Reserve (USMCR)
48
5. U.S. Coast Guard Reserve (USCGR)
48
6. National Guard of the United States (NGUS)
49
C. RESERVE COMPONENT CATEGORIES
52
1. Ready Reserve
53
2. Standby Reserve
54
3. Retired Reserve
54
D. RESERVE COMPONENT TRAINING AND SUPPORT
55
1. Training
55
2. Support
56
3. Military Technicians (Dual Status) (MT)
57
E. MOBILIZATION/ACTIVATION OF RESERVE COMPONENT AND CALLING UP THE MILITIA
57
1. Full Mobilization (10 U.S.C.A. § 12301(a))
58
2. Partial Mobilization (10 U.S.C.A. § 12302(a))
58
3. Presidential Reserve Call-up (PRC) (10 U.S.C.A. § 12304)
58
4. Invasions and Rebellions (10 U.S.C.A. § 12406)
59
5. The Insurrection Act (10 U.S.C.A. § 251-255)
59
6.
15-Day Involuntary Federal Active Duty (10 U.S.C.A. § 12301(b))
59
7. Voluntary Federal Active Duty (10 U.S.C A. § 12301(d))
59
8. Medical Care (10 U.S.C.A. § 12301(h))
60
9. Reservists Recalled for Domestic Events (10 U.S.C.A. § 12304a)
60
10. Active Duty for Preplanned COCOM Support (10 U.S.C.A. § 12304b)
60
F. UNITED STATES COAST GUARD (USCG)
60
G. NATIONAL GUARD OF THE SEVERAL STATES (ARNG, ANG)
62
1. Overview
62
2. Title 32 Status
63
3. State Active Duty
64
4. ANG/ARNG Personnel Categories
64
5. Personnel with Unique HLS/HLD missions
66
6. Miscellaneous Domestic Response Areas
67
H. CIVIL AIR PATROL (CAP)
78
CHAPTER 4: MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT
80
A. INTRODUCTION
80
B. THE POSSE COMITATUS ACT
80
1. To Whom Does the PCA Apply?
81
2. Where Does the PCA Apply?
83
3. When Does the PCA Apply?
83
4. Statutory Categories of PCA Application and Policy Implementation
86
CHAPTER 5: CIVIL DISTURBANCE OPERATIONS
100
Table of Contents
ii
A. INTRODUCTION
101
1. National Response Framework and CDOs
102
2. The Tiered Response
103
B. RESPONSIBILITIES AND RELATIONSHIPS OF PARTIES INVOLVED IN CDOS
103
1. Attorney General
103
2. Senior Civilian Representative of the Attorney General (SCRAG)
103
3. Assistant Secretary of Defense for Homeland Defense and Global Security
104
4. Joint Director of Military Support (JDOMS)
104
5. Combatant Commanders
104
6. Commander, U.s. Army Nother
104
7. NG Bureau
105
8. State Governor/Chief Executive of a U.S. Territory
105
9. State Homeland Security Advisor
105
10. Director, State Emergency Management Agency
105
11. The National Guard
106
C. AUTHORITIES FOR USE OF DOD FOR A CIVIL DISTURBANCE OPERATION
106
D. USE OF NG FORCES IN A TITLE 32 OR SAD (NOT FEDERAL SERVICE) FOR CDOS
108
E. USE OF TITLE 10 FORCES DURING A CDO
111
1. Use of NG Forces in a Title 10 Status (in Federal Service)
111
2. Use of Federal Military Forces
111
3. Supporting a State or Territorial Request
111
4. Enforcing Federal Authority
112
5. Protecting Constitutional Rights
113
F. TAKING ACTION UNDER THE INSURRECTON ACT (PROCEDURAL CONSIDERATIONS)
114
G. DOD CONSIDERATIONS CONCERNING THE INSURRECTION ACT
114
H. ADDITIONAL EXCEPTIONS TO THE PCA
115
1. Emergency Authority
115
2. Barment or Removal Authority
115
3. Protecting Federal Functions, Persons, and Property
116
I. THE DEPARTMENT OF DEFENSE CIVIL DISTURBANCE PLANS
116
1. The Federal Military Forces CDO Mission
116
2. Combatant Commanders' CONPLANs
117
3. NG Bureau and State CONPLANs
117
J. FEDERAL MILITARY FORCES CIVIL DISTURBANCE OPERATION PLANNING CONSIDERATIONS
117
1. The Standing Rules for the use of Force for U.S. Forces
117
2. Constitutional Considerations
118
3. Intelligence
119
4. Claims
119
5. Medical Support
119
6. Interference with Federal Forces
120
7. Loan and Lease of Military Equipment
120
CHAPTER 6: DOD RESPONSE FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR (CBRN)
INCIDENTS
123
A. INTRODUCTION
123
B. CBRN OVERVIEW AND AUTHORITIES
125
C. DOD ENTITIES RESPONSIBLE FOR CBRN RESPONSE OPERATIONS
128
D. SPECIALIZED DOD CBRN RESPONDERS
129
1. Joint Task Force Civil Support
129
2. National Guard Weapons of Mass Destruction Civil Support Teams
131
3. National Guard CERFP
132
4. National Guard HRF
133
5. USCG NSF Coordination Center and Strike Teams
133
E. SPECIAL LEGAL CONSIDERATIONS DURING CBRN RESPONSE OPERATIONS
133
1. Quarantine / Isolation
134
2. Environmental Compliance
134
3. Health Care Licensure
135
4. Mortuary Affairs
137
CHAPTER 7: COUNTERDRUG OPERATIONS
139
A. INTRODUCTION
140
B. TITLE 10 SUPPORT TO COUNTERDRUG OPERATIONS
140
1. National Defense Authorization Act of 2017
141
2. Detection and Monitoring
142
3. CJCS Implementation
143
4. Counterdrug Support Task Forces
144
5. Coast Guard Law Enforcement Detachments
146
C. NATIONAL GUARD SUPPORT TO COUNTERDRUG OPERATIONS
148
CHAPTER 8: MILITARY SUPPORT OPERATIONS
157
A. SUPPORT TO SPECIAL EVENTS OR ORGANIZATIONS
158
1. Introduction
158
2. Types of Events and DoD support
158
3. Requests for Support and Coordination
162
B. INNOVATIVE READINESS TRAINING
164
1. Innovative Readiness Training Procedures
164
2. Legal Considerations for IRT Projects
165
C. MISCELLANEOUS DOMESTIC SUPPORT OPERATIONS
167
1. Disaster and Domestic Emergency Assistance
167
2. Employment of DoD Resources in Support of the U.S. Postal Service (USPS)
168
3. Public Health or Medical Emergencies
168
Table of Contents
iv
4. Animal and Plant Disease Eradication
169
5. Mass Migration Emergency
169
6. DoD Support to Wildfires
169
B. ENVIRONMENTAL MISSIONS
174
1. The Deepwater Horizon Oil Spill - Use of the NCP vs. Stafford Act
175
C. MISCELLANEOUS MISSIONS IN SUPPORT OF LAW ENFORCEMENT
176
1. Support of United States Secret Service
176
2. Imagery Intelligence and Geospatial Support
176
3. Critical Asset Assurance Program
177
4. Continuity of Operations Policies and Planning
177
5. Explosive Ordnance Disposal
177
D. PUBLIC HEALTH EMERGENCIES (PHE)
178
1. Background
178
2. Authorities
179
3. Quarantines and Isolation
180
4. Department of Defense PHE Authorities
182
5. Executing the Federal Mission During a PHE
183
CHAPTER 9: INTELLIGENCE AND INFORMATION ACQUISITION AND HANDLING DURING DOMESTIC
OPERATIONS
186
A. INTRODUCTION
187
B. THE ROLE OF DOD INTELLIGENCE COMPONENTS IN DOMESTIC SUPPORT OPERATIONS
189
C. INFORMATION HANDLING AND THE ROLE OF DOD NON-INTEL COMPONENTS
194
D. TITLE 10 DOMESTIC IMAGERY ACTIVITIES AND RESTRICTIONS
197
1. Domestic Operations
197
2. Domestic Imagery and Intelligence Oversight programs
198
3. Incident Awareness and Assessment vs Intelligence Survellance and Reconnaissance
200
4. Domestic Imagery and Sensitive Information Programs
201
5. Domestic Imagery Summary
203
E. THE NATIONAL GUARD
203
1. Status: State Active Duty, Title 32, or Title 10
204
2. Collection via an Intelligence Activity
205
3. Method of Collecting
206
4. Purpose of the Collection
207
5. Dissemination
209
F. JUDGE ADVOCATE RESPONSIBILITIES
209
G. CONCLUSION
209
CHAPTER 10: RULES FOR THE USE OF FORCE (RUF) FOR FEDERAL FORCES
212
A. INTRODUCTION
212
B. THE JUDGE ADVOCATE’S ROLE IN THE USE OF FORCE (UOF)
213
C. PRACTICAL REALITIES OF USE OF FORCE SITUATIONS
215
1. Capabilities and Limitations
215
2. Potential Threat
215
3. Physical and Psychological Effects
215
D. SRUF AND AREAS OF CONFUSION AND CONCERN
216
E. LEGAL AUTHORITY AND STANDARD FOR U.S. MILITARY UOF IN DOMOPS
216
1. Minimum Force Necessary or Deadly Force as a Last Resort
218
2. Mandatory Verbal Warnings
219
3. Denial of Deadly Force in Self-Defense
219
4. Operational Orders/Execution Orders
219
5. SRUF Authority to Use Deadly Force
219
6. Other Mission Related Circumstances for Use of Deadly Force
221
7. Augmentation of the RUF
222
F. LIABILITY FOR SERVICE-MEMBERS, LEADERS, AND RUF DRAFTERS IN UOF SITUATIONS
222
1. Federal Civil Liability
222
2. Federal Criminal Liability
224
3. State Civil and Criminal Liability
224
G. OTHER TRIAL OR LITIGATION ISSUES
225
H. TRAINING OF JUDGE ADVOCATES
226
CHAPTER 11: RULES FOR THE USE OF FORCE FOR THE NATIONAL GUARD
228
A. INTRODUCTION
228
B. RUF AND STATE CRIMINAL LAW
229
1. State Law Applicable to Both Title 32 and SAD Statuses
229
2. Subjects For Inclusion in State RUF for the National Guard
230
C. SPECIFIC RUF ISSUES
235
1. RUF in Interstate (Cross Border) Operations
235
2. State Criminal Liability of National Guard Members for Use of Force
239
3. RUF in Mixed National Guard and Active Component Operations
241
D. ROLE OF THE NATIONAL GUARD JUDGE ADVOCATE
242
1. Drafting RUF
242
2. Negotiating RUF with State Agencies
242
3. Providing Legal Advice on Liability
242
4. Training
243
E. CONCLUSION
243
CHAPTER 12: FUNDING DOMESTIC SUPPORT OPERATIONS
245
A. INTRODUCTION: BASIC FISCAL LAW FRAMEWORK
247
B. BASIC FISCAL CONTROLS
248
Table of Contents
vi
1. Purpose
248
2. Time
250
3. Amount
251
C. MILITARY ASSISTANCE TO CIVIL AUTHORITIES
252
D. DODD 3025.18, DEFENSE SUPPOPRT OF CIVIL AUTHORITIES (DSCA)
254
E. DISASTER AND EMERGENCY RELIEF
255
1. Immediate Response Authority (IRA)
256
2. Emergency Response Fund (ERF)
257
F. CIVIL DISTURBANCE OPERATIONS (CDOS)
258
G. SUPPORT TO CIVILIAN LAW ENFORCEMENT
259
1. Economy Act
260
2. Miscellaneous Receipts
261
3. Excess Property
261
4. Expert Advice and Training
262
5. Sharing Information
264
H. COUNTERDRUG SUPPORT
264
1. Detection and Monitoring
264
2. Additional Support
265
I. INNOVATIVE READINESS TRAINING
266
J. DOD SUPPORT TO SPECIAL EVENTS
267
K. SUPPORT TO PRIVATE ORGANIZATIONS AND INDIVIDUALS
268
1. Boy Scouts of America
268
2. Girl Scouts of America
268
3. National Veterans’ Organizations
269
4. American Red Cross
269
5. National Military Associations
269
6. Homeless Individuals
269
L. LOAN OR LEASE OF NON-EXCESS PROPERTY OF A MILITARY DEPARTMENT
269
1. Authorized Loan or Lease of Non-Excess Property
269
2. Emergency Exceptions
271
3. Additional Requirements
271
M. EXPLOSIVE ORDANCE DISPOSAL (EOD)
272
N. MILITARY WORKING DOGS
272
O. MISCELLANEOUS SUPPORT
273
P. FUNDING ISSUES RELATED TO USE OF NATIONAL GUARD IN DOMESTIC OPERATIONS
273
CHAPTER 13: CYBERSPACE OPERATIONS IN THE NATIONAL GUARD
A. INTRODUCTION
277
B. DOD CYBER MISSIONS
278
1. Protect the DoD Information Network (DoDIN)
280
2. Defensive Cyberspace Operations (DCO)
281
3. Offensive Cyberspace Operations (OCO)
283
C. DOD CYBER OPERATIONS FORCES (DOD COF)
284
D. DEFENSIVE CYBER OPERATIONS-ELEMENTS (DCO-E)
286
E. TITLE 32 CYBERSPACE ACTIVITIES
286
1. Support to Active Component
286
2. Support to Civil Authorities
288
3. Other Entities
289
F. INTELLIGENCE OVERSIGHT (IO)
289
G. NATIONAL CYBER INCIDENT RESPONSE PLAN (NCIRP)
291
H. STATE ACTIVE DUTY (SAD)
292
1. Background
292
2. SAD Access to Federal Security Clearances
293
I. FEDERAL LAWS GOVERNING CYBER ACTIVITIES
293
1. Electronic Communications Privacy Act (18 U.S.C. §§ 2510-2523)
293
2. Wiretap Act (18 U.S.C. § 2511)
294
3. Stored Communications Act (18. U.S.C. § 2701)
294
4. Pen Register and Trap and Trace Act (18 U.S.C. § 3121)
294
5. Computer Fraud and Abuse Act (18 U.S.C. § 1030)
294
J. JUDGE ADVOCATE RESPONSIBILITIES
295
Table of Contents
viii
Domestic Operational Law Handbook 2021
Table of Contents
Domestic Operational Law Handbook 2021
INTRODUCTION: PURPOSE OF THIS HANDBOOK
In February 2013, the Department of Defense (DoD) published a new Strategy for Homeland Defense
and Defense Support of Civil Authorities (DSCA), which updated the DoD’s Domestic Support
Strategy for the first time since 2005, and set out DoD’s vision for transforming homeland defense and
support to civil authorities.1 The Department of Defense has identified two priority missions for its
activities in the homeland: 1) to defend U.S. territory from direct attack by state and non-state actors,
and 2) to provide assistance to domestic civil authorities in the event of natural or manmade disasters.2
This Handbook focuses on the legal matters pertaining to providing assistance to domestic civil
authorities, also known as DSCA. Circumstances involving the exercise of homeland defense
authority and capabilities, i.e. “countering air and maritime attacks and preventing terrorist attacks on
the homeland,”3 are beyond the scope of this handbook. Nonetheless, it should be kept in mind that
actions taken within the homeland defense function may directly impact the DoD’s DSCA mission
once an event has occurred. Likewise, for ongoing events or continuing attacks, DSCA actions may
affect homeland defense capabilities.
The following text specifically addresses the DoD and National Guard (NG) role in planned civil
support and emergency response operations within the United States. (Note, the “54 States and
territories” or simply “States,” as frequently used throughout this Handbook, collectively refers
to the 50 States, Guam, Puerto Rico, U.S. Virgin Islands, and the District of Columbia.) It
provides an understanding of the overall Federal Government approach to preparing for and
responding to major disasters and emergencies. Very often, the Department of Homeland Security
(DHS) will serve as the Lead Federal Agency (LFA), to which the Department of Defense lends its
support. Thus, a working knowledge of how DHS addresses emergency and disaster response is vital
to fully appreciate the various DoD and NG authorities and policies in this area.
This Handbook, therefore, begins with a discussion on the role of the DHS, the National Preparedness
System, and the National Incident Management System doctrines that permeate all emergency and
disaster responses. It then examines the roles, responsibilities and authorities of the Department of
Defense and the National Guard related to specific domestic support operations including Chemical,
Biological, Radiological, and Nuclear (CBRN) incident management, support to civilian law
enforcement, civil disturbance support, pandemic response, counterdrug operations, and other
miscellaneous operations. It concludes with topics that are commonplace in all domestic operations:
intelligence law, rules for the use of force, fiscal law, and cyber operations. Although each chapter
stands on its own to assist the reader in developing an understanding of the capabilities and limitations
applicable to civil support, a reading of the entire text provides the context for the best understanding
of this area of law.
1 See DEPARTMENT OF DEFENSE, STRATEGY FOR HOMELAND DEFENSE AND DEFENSE SUPPORT TO CIVIL AUTHORITIES 1
(Feb. 2013), available at https://www.hsdl.org/?abstract&did=732192 [hereinafter STRATEGY FOR HOMELAND DEFENSE
AND DSCA] (last visited January 10, 2021).
2 Id. at 1.
3 Id. at 9.
Chapter 1
1
Overview of Domestic Support Operations
Domestic Operational Law Handbook 2021
CHAPTER 1
OVERVIEW OF CIVIL SUPPORT OPERATIONS
A. Background
The enduring core mission of the Department of Defense (DoD) is “to provide combat-credible
military forces needed to deter war and protect the security of our nation.”4 It has three critical
homeland missions: homeland defense (HD), homeland security (HS) and defense support to civilian
authorities (DSCA).5 U.S Armed Forces have had “a historic and enduring role in supporting civil
authorities during times of emergency, and the role is described in the national defense strategy as a
primary mission of the DoD.”6 Thus, the Department of Defense must always be ready to immediately
respond to DSCA operations. The extraordinary destruction wrought by Hurricanes Harvey, Irma, and
Maria in 2017 reminded us that threats to the nation do not always originate from the acts of man.7
Just a few years later, the widespread demonstrations and civil unrest in 2020, spilling into early 2021,
remind us that there are internal threats in the homeland.8 Finally, the Department of Defense’s
ongoing support to our nation’s response to the COVID-19 Pandemic, which has now surpassed one
year, demonstrates the uncertainty, complexity, and potential lengthily of a DSCA mission.
Since September 11, 2001, the Federal Government has taken aggressive and wide-ranging steps to
better address both the threat of direct attacks on the United States and the challenges of natural or
manmade disasters. Through the Homeland Security Act of 2002,9 Congress created the Department
of Homeland Security (DHS)—an executive agency that consolidated the functions and responsibilities
of more than a dozen Federal agencies and departments, including the U.S. Coast Guard (USCG), the
Federal Emergency Management Agency (FEMA), the Transportation Security Administration (TSA),
and the U.S. Secret Service (USSS), among others.10 On February 28, 2003, President George W.
Bush signed Homeland Security Policy Directive 5 (HSPD-5), “Management of Domestic Incidents.”
The purpose of HSPD-5 was “[t]o enhance the ability of the United States to manage domestic
incidents by establishing a single, comprehensive national incident management system [NIMS].”11 In
paragraph 14 of HSPD-5, President Bush tasked the Secretary of Homeland Security with development
4 DEPARTMENT OF DEFENSE, THE NATIONAL DEFENSE STRATEGY OF THE UNITED STATES OF AMERICA 2 (2018), available
at Error! Main Document Only.Error! Main Document Only. (last visited January 10, 2021).
5 See JOINT CHIEFS OF STAFF, DEFENSE SUPPORT TO CIVIL AUTHORITIES (29 Oct 2018), available at
6 Id. at 23.
7 Federal analysis indicates that the direct toll in lives and financial costs from natural disasters in recent decades far
outweighs that from terrorist attacks. See Rawle O. King, Financing Recovery from Large-Scale Natural Disasters,
CONGRESSIONAL RESEARCH SERVICE (9 Feb. 2009); See also 9/11 Terrorism: Economic Global Costs, CONGRESSIONAL
RESEARCH SERVICE (5 Oct. 2004).
8 See OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, DOMESTIC VIOLENCE EXTREMISM POSES A HEIGHTENED
THREAT IN 2021 (1 Mar. 2021), available at https://www.dhs.gov/publication/domestic-violent-extremism-poses-
heightened-threat-2021 (last visited April 13, 2021).
9 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].
10 Id.
11 DEP’T OF HOMELAND SECURITY, HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 5 [hereinafter HSPD-5], available at
https://www.dhs.gov/publication/homeland-security-presidential-directive-5 (last visited April 13, 2021).
Chapter 1
Overview of Domestic Support Operations
2