Military reference books and manuals (2009-2023, Volume 4)

Domestic Operational Law Handbook 2021

Where Does the PCA Apply?

a. What the Law Says

There is no definitive statement of the scope of the PCA.¹⁹ Federal courts have generally held that the

PCA places no restrictions on the use of the armed forces to enforce the law abroad.²⁰ The courts,

noting that Congress intended to preclude military involvement in domestic law enforcement activities,

have been unwilling to apply the PCA extraterritorially.²¹ In addition, a 1989 Department of Justice

Office of Legal Counsel Opinion concluded that the PCA and the restrictions in 10 U.S.C. §§ 271-284

have no extraterritorial application.²²

b. What Policy Says

Despite the courts and Department of Justice concluding that the PCA does not apply abroad, DoD

policy, as implemented by DoDI 3025.21, states that the prohibitions on direct civilian law

enforcement assistance apply to all actions of DoD personnel worldwide.²³ Therefore, commanders

must consider PCA even when contemplating military assistance in law enforcement overseas. In

cases of compelling or extraordinary circumstances, the Secretary of Defense may consider exceptions

to the prohibition against direct military assistance to law enforcement outside the territorial

jurisdiction of the United States.²⁴

3. When Does the PCA Apply?

10 U.S.C. §§ 271-275 outline the restrictions on military participation in civilian law enforcement

activities. Under these statutes, the regulation of military activity is divided into three major

categories: (1) use of information, (2) use of military equipment and facilities, and (3) use of military

personnel.

¹⁹ United States v. Kahn, 35 F.3d 426, 431 n.6 (9th Cir. 1994)

²⁰ See, e.g., Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949); D’Aquino v.

United States, 192 F.2d 338, 351 (9th Cir. 1951), cert. denied, 343 U.S. 935 (1952). Commentators agree. See Furman,

supra note 2, at 107.

²¹ Chandler, 171 F.2d. at 936 (The PCA was “the type of criminal statute which is properly presumed to have no

extraterritorial application in the absence of statutory language indicating a contrary intent.”).

²² Memorandum from Office of the Assistant Attorney General to General Brent Scowcroft, Extraterritorial Effect of the

Posse Comitatus Act (3 Nov. 1989). But see Kahn, supra note 18. The Kahn court cites 10 U.S.C. § 374(b)(2)(F)

(mentioning “law enforcement operations outside of the land area of the United States”), § 379(a) (mentioning “naval

vessels at sea”), and § 379(d) (mentioning “area outside the land area of the United States”) as evidence of limitations

placed on the use of the armed forces abroad. While recognizing that several courts held the PCA only applies within the

territory of the United States, the Kahn court maintained that the law contained evidence of PCA restrictions applying

outside the United States. The court in Kahn ultimately held there was no PCA violation because the Navy only provided

indirect assistance to the Coast Guard during the operation leading to the arrest of the defendant. Thus, Navy involvement

in Coast Guard drug interdiction operations is an area for PCA challenges. See United States v. Rasheed, 802 F.Supp. 312

(D. Haw. 1992), is another example of this type of challenge. Although this is an area for potential challenge, Congress has

explicitly authorized the Navy to assist in the enforcement of the Maritime Drug Law Enforcement Act (46 U.S.C. ch. 705)

and these operations are conducted frequently.

²³ DoDI 3025.21, supra note 6, at 3.

²⁴ Id. (note that only the Secretary of Defense or Deputy Secretary of Defense may grant such exceptions).

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DoDI 3025.21 contains several enclosures discussing areas of permissible DoD activity, including:

Participation in Law Enforcement (Enclosure 3), Support of Civil Disturbance Operations (Enclosure

4), Domestic EOD Support for Law Enforcement (Enclosure 5), Domestic Terrorism Incident Support

(Enclosure 6), Use of Information Collected During Military Operations (Enclosure 7), and the Use of

DoD Equipment and Facilities (Enclosure 8).²⁵ Figure 4.1 summarizes the PCA exceptions in 10

U.S.C. §§ 271-275 and guidance from DoDI 3025.21:

Provision of

Use of DoD

Use of Military

Information to

Personnel

Equipment

Civilians

10 U.S.C. §§

and Facilities

10 U.S.C. §

273-275

by Civilians

271

10 U.S.C. §

272

Direct Assistance Prohibited

Unless Authorized by DoDI

3025.21

“Indirect” Expert

Other

Advice, Training, and

Permissible

Equipment Operation

Indirect

Permissible

& Maintenance

Assistance

Direct

DoDI 3025.21 Encl. 3

DoDI 3025.21

Assistance

para. 1.d., e., f.

Encl. 3, para.

DoDI 3025.21

1.g.

Encl. 3, para. 1.b.

Military or

Emergency

Civil

Other Express

Transfer of

Foreign

Authority*

Disturbance

Statutory or

Info to Law

Affairs

Statutes

Policy

Enforcement

Purpose

Authority

Examples: Execution of Quarantine, Assistance with Nuclear Materials Crimes,

Assistance with Crimes Against Congress, Protection of National Parks and

Certain Federal Lands, Actions Under the National Search and Rescue Plan

*See DoDD 3025.18 (U.S. DEP’T OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL

AUTHORITIES (29 Dec. 2010) (C2,19 Mar. 2018) to distinguish Emergency Authority from Immediate

Response Authority.

Figure 4-1

In addition to the above categories, 10 U.S.C. §§ 276-277 provides further limitations on the provision

of military support to civilian law enforcement. Section 276 provides an overarching restriction in the

²⁵ DoDI 3025.21, supra note 6.

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event “such support will adversely affect the military preparedness of the United States.”²⁶ Section

277 requires civilian law enforcement agencies to reimburse DoD for support provided as required by

the Economy Act²⁷ or other applicable law. Civilian law enforcement agencies do not have to provide

reimbursement for support under this statute if the support: (1) is provided in the normal course of

military training or operations, or (2) results in a benefit to DoD that is substantially equivalent to that

which would otherwise be obtained through military training or operations.²⁸ Waiver authority for

reimbursement not required by law resides with the Assistant Secretary of Defense (Force

Management and Personnel). This authority may be delegated to the Secretaries of the Military

Departments and the Directors of the Defense Agencies (or designees) on matters within their approval

authority.²⁹

Figure 4-2 provides a brief overview of PCA scenarios and the applicability of the PCA thereto. It is

merely a beginning point in any potential legal analysis of DoD support to civilian law enforcement.

Figure 4-2

US ARMY & AIR FORCE, TITLE 10

APPLICABILITY OF THE PCA

Normal Status

PCA applies. Title 10 personnel in normal

status may not engage in direct law

enforcement activities to include: interdiction

of vehicles, vessels or aircraft; search or seizure

of civilian personnel and effects; arrest or

detention of civilians; conduct surveillance, or

as undercover investigators.

In Execution of a Military Purpose

The PCA does not apply. This is a narrowly

construed exception to the PCA that exempts

activity conducted to further a military interest.

Detailed to another Federal agency subject to

PCA does not apply as these personnel are not

receiving agency’s control (Special Assistant U.S.

considered part of the Army or Air Force for

Attorney, Special Deputy U.S. Marshal, etc.)

PCA purposes.

Protection of Federal properties and functions

Constitutional exception to the PCA.³⁰

Response pursuant to the Insurrection Act

Statutory exception to PCA.

10 U.S.C. § 276 (2018). This statute reflects congressional concern over the potential dilution of military readiness and

capabilities by complying with requests for assistance from civilian law enforcement agencies.

31 U.S.C. § 1535 (2018).

10 U.S.C. § 277 (2018).

²⁹ See, e.g. SECNAVINST 5820.7C, supra note Error! Bookmark not defined., para. 9; AFI 10-801, supra note 8, ch. 5.

³⁰ See 32 C.F.R. § 215.4 (2017) for background on this Constitutional exception. See also DoDD 3025.18, supra at fig. 4-

1. See also Memorandum from Assistant Attorney General William H. Rehnquist to R. Kenly Webster, Acting General

Counsel, Department of the Army, Re: Authority to use troops to prevent interference with Federal employees and

consequent impairment of government functions (29 Apr. 1971) referencing In re Neagle, 135 U.S. 1 (1890) (noting that

troops can be used to prevent the obstruction of vital federal functions pursuant to the inherent authority of the President),

citing In re Debs, 158 U.S. 564, 582 (1895) (“If the emergency arises, the army of the Nation, and all its militia, are at the

service of the Nation to compel obedience to its laws.”) (upholding the use of troops for the purpose of protecting federal

property and removing obstruction to federal functions).

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Support to other Federal, State and local entities

The PCA prohibits direct engagement; subject

that are engaged in direct law enforcement

to DoD regulations and approvals, technical

activities

and logistical assistance may be rendered.

Response to a CBRN attack or threat

Subject to Presidential directives, DoD

regulations and approvals, constitutional, or

statutory exceptions to the PCA exist.

Transfer of information that may be relevant to a

PCA does not apply, but the dissemination of

violation of any federal or state law within the

information must be conducted in accordance

jurisdiction of such officials

with applicable regulations (see 10 U.S.C. §

271).

Off-duty Title 10 Personnel

PCA does not apply unless acting under the

direction of DoD authorities (see DoDI

3025.21).

Homeland Defense Operations

PCA does not apply.

APPLICABILITY OF THE PCA

State Active Duty (SAD)

The PCA does not apply.

Title 32 Status

The PCA does not apply.

Title 10 Status (“Federalized”)

PCA applies (see 10 U.S.C. § 12405).

OTHER UNIFORMED SERVICES

APPLICABILITY OF THE PCA

United States Navy

PCA does not apply by statute, but by DoD

policy.

United States Marine Corps

PCA does not apply by statute, but by DoD

policy.

United States Coast Guard

PCA does not apply (but see 14 U.S.C. § 103).

United States Public Health Service

PCA does not apply.

National Oceanic & Atmospheric Administration

PCA does not apply.

Statutory Categories of PCA Application and Policy Implementation

a. Use of DoD Information Collected During Military Operations

Section § 271 of the PCA regulates the use of information collected during military operations. The

Secretary of Defense implemented the DoD requirements in Enclosure 7 of DoDI 3025.21. Under 10

U.S.C. § 271, the Secretary of Defense may provide information collected during the normal course of

military operations to Federal, State, and local law enforcement agencies if the information is relevant

to a violation of Federal or State law within the jurisdiction of these officials. Under 10 U.S.C. §

271(b), the Secretary of Defense is required, to the maximum extent practicable, take into account the

needs of civilian law enforcement officials for information when planning and executing military

training and operations. Lastly, 10 U.S.C. § 271(c) provides that the Secretary of Defense shall ensure,

to the extent consistent with national security, that intelligence information held by the Department of

Defense and relevant to drug interdiction and other civilian law enforcement matters is promptly

provided to the appropriate civilian law enforcement officials.³¹

10 U.S.C. § 271 (2018).

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Enclosure 7 of DoDI 3025.21 implements 10 U.S.C. § 271 with some additional restrictions. Military

departments and defense agencies are generally encouraged to provide law enforcement officials any

information collected during the normal course of military operations that may be relevant to a

violation of the law. However, the Department of Defense may not transfer information if its

acquisition violated applicable law protecting privacy or constitutional rights, or if it would have been

illegal for the civilian agency to obtain the information or use the procedures employed by the

Department of Defense to obtain the information.³² While the Secretary of Defense shall take into

account the needs of civilian law enforcement officials to obtain intelligence when planning and

executing military training and operations in accordance with 10 U.S.C. § 271, the planning or creation

of missions or training for the primary purpose of aiding civilian law enforcement official intelligence-

gathering efforts is prohibited.³³ Law enforcement officials may accompany regularly scheduled

training flights as observers, but point-to-point transportation and training flights for civilian law

enforcement officials are not authorized.³⁴ Additionally, the handling of all such information must

comply with DoDD 5240.01, DoD Intelligence Activities;³⁵ DoDD 5200.27, Acquisition of Information

Concerning Persons and Organizations not Affiliated with the Department of Defense;³⁶ DoD 5240.1-

R, Procedures Governing the Activities of DoD Intelligence Components that Affect United States

Persons,³⁷ and DoD 5400.11-R, Department of Defense Privacy Program.³⁸ For additional

information concerning the use of DoD information collected during domestic operations, see

Intelligence Oversight and Information Handling During Domestic Support Operations, Chapter 9,

infra.

b. Use of DoD Military Equipment and Facilities

10 U.S.C. § 272 and Enclosure 8 of DoDI 3025.21 address the use of military equipment and facilities

by civilian law enforcement authorities (not to be confused with the separate provisions under

Enclosure 3 regarding the use of DoD personnel to operate or maintain equipment discussed below).

Section 272(a) allows the Secretary of Defense to make available equipment (including associated

supplies and spare parts), base facilities, and research facilities of the Department of Defense to any

Federal, State, or local civilian law enforcement official for law enforcement purposes. The provision

of equipment and facilities must be made in accordance with all other applicable law. Enclosure 8 of

DoDI 3025.21 implements this statute and allows military departments and defense agencies to make

³² See DoDI 3025.21, supra note 6, encl. 3, para. (1)(g)(2).

³³ See id., encl. 7, para. (1)(e). Training or missions for the purpose of routinely collecting information about U.S. citizens

is prohibited as well. Id.

³⁴ See U.S. DEP’T OF DEF., INSTR. 4515.13, AIR TRANSPORTATION ELIGIBILITY (22 Jan. 2016) (C4, 31 Aug. 2018) for

guidance on this type of assistance. Flights related to counter-drug operations are permitted by this regulation. See infra

Chapter 7, Counterdrug Operations.

³⁵ U.S. DEP’T OF DEF., DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) (C2, 22 Mar. 2019) [hereinafter

DoDD 5240.01].

³⁶ U.S. DEP’T OF DEF., DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS NOT

AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980).

³⁷ U.S. DEP’T OF DEF., REG. 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS

THAT AFFECT UNITED STATES PERSONS (7 Dec. 1982) (C2, 26 Apr. 2017) [hereinafter DoDD 5240.1-R]. DoDD 5240.1-R

is undergoing revision; consequently, practitioners citing this reference should first ensure DoDD 5240.1-R is still in

effect.).

³⁸ U.S. DEP’T OF DEF., REG. 5400.11-R, DEPARTMENT OF DEFENSE PRIVACY PROGRAM (8 May. 2007) [hereinafter DoD

5400.11].

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equipment, base facilities, or research facilities available to Federal, State, or local law enforcement

authorities if the assistance does not adversely affect military preparedness.³⁹

Approval authority under DoDI 3025.21 varies based on the type of equipment requested, the reason

for the request, and whether the equipment is loaned⁴⁰ or leased.⁴¹ The following is a list of the

approval authorities for various types of equipment and facilities:⁴²

• Requests for equipment or facilities outside the U.S. (other than arms, ammunition, combat

vehicles, vessels and aircraft) shall be in accordance with procedures established by the

applicable DoD component;

• Requests from other Federal agencies to purchase equipment may be submitted directly to

the DoD component at issue;

• Requests for training, expert advice, and personnel to operate and maintain equipment shall

be made in accordance with Enclosure 3 of DoDI 3025.21; and

• For loans pursuant to 31 U.S.C. § 1535 (the Economy Act) or 31 U.S.C. §§ 6501-6508 (the

Intergovernmental Cooperation Act), which are limited to agencies of the Federal

Government and for leases pursuant to 10 U.S.C. § 2667, which may be made to entities

outside the Federal Government, this guidance applies:

¾ Requests for arms, ammunition, combat vehicles, vessels, and aircraft shall be

submitted to the Secretary of Defense for approval.

¾ Requests for loan or lease or other use of equipment or facilities are subject to approval

by the heads of the DoD Components, unless approval by a higher official is required

by statute or a DoD issuance applicable to the particular disposition.⁴³

Judge advocates must be aware that other policies and statutes overlap with DoDI 3025.21 and 10

U.S.C. §§ 271-275 with regard to authorities and approvals in this area. For example, DoDD 3025.18

also discusses the approval authority of the Secretary of Defense for the assistance with assets with

potential lethality, e.g., arms, vessels or aircraft, or ammunition.⁴⁴ As discussed, approval authority for

assistance from DoD intelligence components is governed by DoDD 5240.01 and other relevant

authorities discussed above. 10 U.S.C. § 282 provides additional authority for the provision of certain

types of equipment; it states DoD may provide resources to the Department of Justice in a weapons of

mass destruction situation.⁴⁵ Further, E.O. 13527, Establishing Federal Capability for the Timely

³⁹ DoDI 3025.21, supra note 6, encl. 8, para. 3.

⁴⁰ Transfers under the Economy Act, 31 U.S.C. § 1535 (2018), are limited to executive branch agencies of the Federal

Government. The Economy Act does not govern loans.

⁴¹ Leases under 10 U.S.C. § 2667 (2018) may be made to entities outside the Federal Government.

⁴² DoDI 3025.21, supra note 6, encl. 8.

⁴³ This authority of the Secretaries of the Military Departments and the Directors of the Defense Agencies may be

delegated. See, e.g SECNAVINST 5820.7C, supra note 8, para. 6(b); AFI 10-801, supra note 8, ch.3.

⁴⁴ DoDD 3025.18, supra at fig. 4-1.

10 U.S.C. § 282 (2018).

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Provision of Medical Countermeasures Following a Biological Attack, provides additional authority

for DoD integration into plans to support the delivery of “medical countermeasures” as part of a

response to a biological attack.⁴⁶

Aside from authorities and approvals, the provision of military equipment to civilians is further

complicated by specific procedures needed to accomplish the transfer. For the Army, these procedures

are located in AR 700-131.⁴⁷ In non-emergency situations, AFI 23-119, Exchange, Sale, or Temporary

Custody of Non-Excess Personal Property, and AFI 32-9003, Granting Temporary Use of Air Force

Real Property, set forth the Air Force process in this area.⁴⁸ Judge advocates will not only need to

ensure that the proper authority has approved the transaction, but that the proper Service-specific

procedures are followed to effect the transaction.

c. Participation of DoD Personnel in Civilian Law Enforcement Activities

When DoD personnel are detailed to other Federal agencies, and become subject to the receiving

agency’s control, those personnel are no longer considered DoD personnel for the purposes of a PCA

analysis. Examples of such detailed personnel include those detailed to the Department of

Transportation,⁴⁹ the Department of Homeland Security,⁵⁰ the Department of Justice,⁵¹ and the

Department of the Interior.⁵² Aside, from these personnel who are excepted from the PCA by Federal

statutes, the Federal courts have enunciated three tests to determine whether the use of military

personnel violates the PCA.⁵³ If any one of these three tests is met, the assistance may be considered a

violation of the PCA.⁵⁴

• The first test is whether the actions of military personnel are “active” or “passive.” Only

the active, or direct, use of military personnel to enforce the laws is a violation of the

PCA.⁵⁵

⁴⁶ Exec. Order No. 13257, 75 Fed. Reg. 737 (Jan. 6, 2010). E.O. 13527 provides that the Secretaries of Homeland

Security, Defense, and Health and Human Services shall develop a plan to support the U.S. Postal Service in its distribution

of efforts, to include a “plan for supplementing local law enforcement personnel, as necessary and appropriate, with local

Federal law enforcement, as well as other appropriate personnel, to escort U.S. Postal workers delivering medical

countermeasures.”

⁴⁷ U.S. DEP’T OF ARMY, REG. 700-131, LOAN, LEASE, AND DONATION OF ARMY MATERIEL (23 Aug. 2004). Since many of

the applicable military regulations predate their corresponding DoD Directives, judge advocates must exercise care in

applying their procedures.

⁴⁸ AFI 10-801, supra note 8.

⁴⁹ See 49 U.S.C. § 324 (1983) (allowing for the appointment, detailing, or assigning of a military member to the Secretary

of Transportation for the purpose of safeguarding national defense interests).

⁵⁰ See 6 U.S.C. § 465 (2002) (establishing a permanent Joint Interagency Homeland Security Task Force composed of

military and civilian agency members).

⁵¹ See 28 U.S.C. § 543 (2010) (permitting the Attorney General to appoint attorneys to assist U.S. Attorneys when required

for the public interest e.g., Special Assistant U.S. Attorneys). See also 34 U.S.C. § 50101 (2006) (outlining the procedure

for requesting Federal law enforcement assistance during a law enforcement emergency).

⁵² See 16 U.S.C. §§ 23, 78, 593 (1947) (providing for the use of DoD personnel to protect national lands).

⁵³ United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991).

⁵⁴ United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).

⁵⁵ United States v. Rasheed, 802 F. Supp. 312, 324-25, (D. Haw. 1992) (finding that the Navy’s providing of aerial

reconnaissance and intercepting a ship, as well as providing back-up security while the ship was searched and defendants

arrested, was passive involvement, and consequently did not violate PCA); United States v. Red Feather, 392 F. Supp. 916,

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• The second test is whether the use of military personnel pervades the activities of civilian

law enforcement officials. Under this test, military personnel must fully subsume the role

of civilian law enforcement officials.⁵⁶

• The third test is whether the military personnel subjected citizens to the exercise of military

power that was regulatory, proscriptive, or compulsory in nature. A power “regulatory in

nature” is one that controls or directs. A power “proscriptive in nature” is one that prohibits

or condemns. A power “compulsory in nature” is one that exerts some coercive force.⁵⁷

Note that under DoDD 3025.21, Immediate Response Authority (IRA) may not be used

when it subjects civilians to military power that is “regulatory, prescriptive, proscriptive, or

compulsory.” Thus, IRA may not be used to circumvent the PCA.⁵⁸

In implementing the guidance contained in 10 U.S.C. Chapter 15 (§§ 271-284), DoDI 3025.21 divides

the PCA regulation of the use of military personnel to assist civilian law enforcement into five

categories: (1) permissible direct assistance, (2) use of DoD personnel to operate or maintain

equipment, (3) expert advice, (4) training, and (5) other permissible assistance.

DoD support to civilian law enforcement is often subject to intense scrutiny. When advising

commanders on the permissible use of military personnel in support of civilian law enforcement

activities, judge advocates must not only consider possible legal ramifications of PCA violations but

also the potential negative public perception that may result from certain types of legal, but

controversial assistance.

925 (W.D.S.D. 1975) (Activities which constitute active role in law enforcement by military are: arrest, seizure of evidence,

search of a person, search of a building, investigation of crime, interviewing witnesses, pursuit of an escaped prisoner,

search of an area for a suspect, and other like activities. Activities which constitute a passive role are: mere presence of

military personnel under orders to report on necessity for military intervention, preparation of contingency plans to be used

if military intervention is ordered, advice or recommendations given to civilian law enforcement officials regarding tactics

or logistics, presence of military personnel to deliver military equipment and supplies, training civilian law enforcement

officials on the use and maintenance of equipment, aerial reconnaissance flights, and similar activities).

⁵⁶ Kahn, 35 F.3d at 431-432 (holding that Navy’s involvement in apprehension, arrest, and detention of defendant in

international waters was passive and thus did not violate PCA because the FBI was in charge of operation at all times, and

Navy merely provided necessary support services); Hayes v. Hawes, 921 F.2d 100, 103-104 (7th Cir. 1990) (actions of

undercover NIS agent in acting as a drug buyer and signaling civilian law enforcement officers when the transaction was

complete, was not so pervasive as to violate the PCA since the NIS agent did not become involved in the arrest and search

of the defendant or the seizure and transportation of evidence); United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986)

(Air Force allowing a U.S. Customs Service officer to ride aboard an AWACS aircraft, tracking defendant’s aircraft, and

reporting its location to U.S. Customs Service agents on the ground was not so pervasive as to violate the PCA. The court

further noted that these actions are specifically allowed by 10 U.S.C. §§ 271, 274(b)).

⁵⁷ Yunis, 924 F.2d at 895-96 (The Navy’s involvement in apprehension, arrest, and transportation of defendant was not

regulatory, proscriptive, or compulsory use of military power because defendant was under exclusive custody and control

of FBI at all times); United States v. Casper, 541 F.2d 1275, 1278 (8th Cir. 1976) (holding that the use of military

equipment by civilian law enforcement officers, presence of military personnel ordered there to observe and report whether

Federal military intervention would be required, drafting of contingency plans by military personnel for intervention of

military, and aerial reconnaissance by military aircraft, was not regulatory, proscriptive, or compulsory use of military

power which would result in violation of PCA).

⁵⁸ DoDD 3025.18, supra note 43, para. 4.

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(1) Direct Assistance

(a) Prohibited Direct Assistance

The first category of PCA regulation of military activity with civilian law enforcement agencies

addresses direct assistance. Direct assistance and participation by military personnel in the execution

and enforcement of the law is the heart of the prohibition of the PCA.⁵⁹ The restrictions on direct

assistance by military personnel in civilian law enforcement activities are codified in 10 U.S.C. § 275

and are implemented as policy by DoDI 3025.21, Enclosure 3.⁶⁰ Unless specifically authorized in

enclosure 3 or 4 of DoDI 3025.21, DoD personnel are prohibited from providing direct assistance in

the following forms:

•

Interdiction of a vehicle, vessel, aircraft, or other similar activity;

•

A search or seizure;

•

An arrest, apprehension, stop and frisk, interview, interrogation, canvassing,

questioning potential witnesses, or similar activities;

•

Using force violence, brandishing or using a weapon, or threatening to discharge or use

a weapon (except in self-defense, in defense of other DoD persons in the vicinity, or in

defense of non-DoD persons, including civilian law enforcement personnel in the

vicinity when directly related to an assigned activity or mission);

•

Evidence collection, security functions, crowd and traffic control, and operating,

manning, or staffing checkpoints;

•

Surveillance or pursuit of individuals, vehicles, items, transactions, or physical

locations, or acting as undercover agents, informants, investigators, or interrogators; and

•

Forensic investigations or other testing of evidence obtained from a suspect for use in a

civilian law enforcement investigation in the United States unless there is a DoD nexus

or the responsible civilian law enforcement official requesting such testing declares in

writing that the evidence to be examined was obtained by consent. (The Secretary of

Defense may authorize exceptions).

(b) Permissible Direct Assistance

(i) Military Purpose Doctrine

The PCA permits several forms of direct assistance to law enforcement by military personnel. The

first permissible direct assistance is action taken for the primary purpose of furthering a military or

⁵⁹ Red Feather, 392 F. Supp. at 923 (“It is clear from the legislative history that Congress intended 18 U.S.C. § 1385 to

prevent the direct, active use of Federal troops to execute the laws.”).

⁶⁰ DoDI 3025.21, supra note 6, encl. 3, para 1.c.

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foreign affairs function of the United States.⁶¹ This category is often referred to as the “Military

Purpose Doctrine” and covers actions the primary purpose of which is to further a military interest.

These military interests include actions on all DoD installations, thereby allowing DoD personnel to

perform law enforcement functions on DoD property. While civilian agencies can receive an

incidental benefit, legal advisers should construe this section narrowly. It cannot be used as a

subterfuge for getting around the PCA. For example, scheduling a military exercise for the sole

purpose of benefiting a civilian law enforcement agency is contrary to the intent of the military

purpose doctrine. Military actions under the military purpose doctrine include:

• Investigations and other actions related to enforcement of the UCMJ;

• Investigations and other actions that are likely to result in DoD administrative

proceedings, regardless of whether there is a related civil or criminal proceeding;

• Investigations and other actions related to the commander’s inherent authority to

maintain law and order on a military installation or facility;

• Protection of classified military information or equipment or controlled unclassified

information;

• Protection of DoD personnel, DoD equipment, and official guests of the DoD; and

• Such other actions that are undertaken primarily for a military or foreign affairs

purpose.⁶²

It is important to note that the use of military forces in the national defense of the United States is not

support to civilian law enforcement agencies. Rather, it is inherent under the President’s

Constitutional authority as Commander in Chief to protect the homeland.⁶³ The use of military forces

in a national defense role is not subject to the PCA and other restrictions on military participation in

law enforcement.

(ii) Emergency Authority

A second type of direct assistance that may be permitted is action that falls under the “emergency

authority” of the United States.⁶⁴ This is an inherent authority of the Federal Government under the

Constitution. Actions permitted in accordance with this authority are those necessary to preserve

public order and to carry out governmental operations within U.S. territorial limits, or otherwise in

⁶¹ Id. encl. 3.

⁶² Id.

⁶³ See JOINT CHIEFS OF STAFF, JOINT PUB. 3-27, HOMELAND DEFENSE I-6, ¶ 3.b.(1) (10 Apr. 2018) (noting that while the

PCA generally prohibits the use of DoD personnel for law enforcement within the homeland, homeland defense operations

are not law enforcement activities and, therefore, not restricted by the PCA).

⁶⁴ See supra note 29, which notes the Constitution authorizes “prompt and vigorous Federal action, including use of

military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public

order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and

disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the

situations.”

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accordance with applicable law. In such circumstances, necessary force may be used. The

circumstances when the use of emergency authority is appropriate are very rare, however; typically

they will arise only during a large-scale and unexpected civil disturbance.

“Emergency authority” is reserved for extremely unusual circumstances. When authorized under the

provisions of DoDD 3025.18, “Federal military commanders have the authority, in extraordinary

emergency circumstances where prior authorization by the President is impossible and duly constituted

local authorities are unable to control the situation, to engage temporarily in activities that are

necessary to quell large-scale, unexpected civil disturbances because:

• Such activities are necessary to prevent significant loss of life or wanton destruction of

property and are necessary to restore governmental function and public order; or,

• When duly constituted Federal, State, or local authorities are unable or decline to

provide adequate protection for Federal property or Federal Governmental functions.

Federal action, including the use of Federal military forces, is authorized when

necessary to protect Federal property or functions.”⁶⁵

• Presidential approval for quelling civil disturbances is not a prerequisite to the use of

military forces in these two very limited circumstances.⁶⁶

(iii) Civil Disturbance Statutes

The third type of permitted direct assistance by military forces to civilian law enforcement is action

taken pursuant to DoD responsibilities under the Insurrection Act, 10 U.S.C. §§ 251-255. This statute

contains express exceptions to the PCA that allow for the use of military forces to repel insurgency,

domestic violence, or conspiracy that hinders the execution of State or Federal law in specified

circumstances. The Insurrection Act permits the President to use U.S. Armed Forces to enforce the

law when:

• There is an insurrection within a State, and the State legislature (or Governor if the

legislature cannot be convened) requests assistance from the President;⁶⁷

• A rebellion makes it impracticable to enforce the Federal law through ordinary judicial

proceedings;⁶⁸ or

• An insurrection or domestic violence opposes or obstructs Federal law, or so hinders the

enforcement of Federal or State laws that residents of that State are deprived of their

constitutional rights and the State is unable or unwilling to protect these rights.⁶⁹

⁶⁵ DoDI 3025.21, supra note 6, encl. 3, para. (1)(b)(3).

⁶⁶ DoDD 3025.18, supra fig 4-1, para. 4

10 U.S.C. § 251 (2018).

10 U.S.C. § 252 (2018).

10 U.S.C. § 253 (2018).

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10 U.S.C. § 254 of the Insurrection Act requires the President to issue a proclamation ordering the

insurgents to disperse within a certain time before using the military to enforce the laws. President

George H.W. Bush was the last president to exercise his authority under the Insurrection Act (first,

after Hurricane Hugo in 1989, and second, after the LA Riots in 1992). When DoD personnel are

deployed under the Insurrection Act, they operate in support of the Attorney General and the

Department of Justice.

(iv) Other Authority

There are several statutes and authorities, other than the Insurrection Act, that allow for direct DoD

participation in civil law enforcement, subject to the limitations within each respective statute.⁷⁰ This

section does not contain detailed guidance; therefore, specific statutes and other references must be

consulted before determining whether military participation is permissible. A brief listing of these

statutes includes:

•

Prohibited transactions involving nuclear material (18 U.S.C. § 831);

•

Emergency situations involving chemical or biological weapons of mass destruction (10

U.S.C. § 282) (see also 10 U.S.C. §§ 175a, 229E, and 233E, which authorize the

Attorney General or other DOJ official to request SecDef to provide assistance under 10

U.S.C. § 282);

•

Assistance in the case of crimes against foreign officials, official guests of the United

States, and other internationally protected persons (18 U.S.C. §§ 112, 1116);

•

Protection of the President, Vice President, and other designated dignitaries (18 U.S.C.

§ 1751 and the Presidential Protection Assistance Act of 1976);

•

Assistance in the case of crimes against members of Congress (18 U.S.C. § 351);

•

Execution of quarantine and certain health laws (42 U.S.C. § 97);

•

Protection of national parks and certain other Federal lands (16 U.S.C. §§ 23, 78, 593);

•

Enforcement of the Magnuson-Stevens Fishery and Conservation Management Act (16

U.S.C. § 1861(a));

•

Actions taken in support of the neutrality laws (22 U.S.C. §§ 408, 461-462);

•

Removal of persons unlawfully present on Indian lands (25 U.S.C. § 180);

•

Execution of certain warrants relating to enforcement of specified civil rights laws (42

U.S.C. § 1989);

⁷⁰ DoDI 3025.21, supra note 6, encl. 3, para. (1)(b)(5).

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• Removal of unlawful enclosures from public lands (43 U.S.C. § 1065);

• Protection of the rights of a discoverer of a guano island (48 U.S.C. § 1418);

• Support of territorial Governors if a civil disorder occurs (48 U.S.C. §§ 1422, 1591);

• Actions in support of certain customs laws (50 U.S.C. § 220); and

• Actions taken to provide search and rescue support domestically under the authorities

provided in the National Search and Rescue Plan.

(2) Training

The second main category of regulation of DoD assistance to civilian law enforcement involves

training.

10 U.S.C. § 273 permits the Secretary of Defense to make DoD personnel available for the

training of Federal, State, and local civilian law enforcement personnel in the operation and

maintenance of equipment, including equipment provided to civilian law enforcement by DoD under

10 U.S.C. § 272. The Secretary of Defense has authorized the use of this authority in DoDI 3025.21,

Enclosure 3.⁷¹

DoDI 3025.21 allows the military departments and defense agencies to provide training that is not

“large scale or elaborate” and does not result in a direct or regular involvement of military personnel in

activities that are traditionally civilian law enforcement operations. Training assistance is limited to

situations where the use of non-DoD personnel would be unfeasible or impractical because of time or

cost. Training assistance cannot involve military personnel in a direct role in a law enforcement

operation, unless otherwise authorized by law. Further, this type of assistance may only be rendered at

locations where law enforcement confrontations are not likely.⁷²

DoD personnel are prohibited from providing advanced military training to civilian law enforcement

agencies.⁷³

“Advanced” military training is defined as high intensity training, which focuses on the

tactics, techniques, and procedures required to apprehend, arrest, detain, search for, or seize a criminal

suspect when the potential for violent confrontation exists. Examples of advanced military training

include advanced marksmanship and sniper training, military operations in urbanized terrain (MOUT),

close quarters battle/close quarters combat (CQB/CQC) training, and other similar training. Advanced

military training does not include basic military skills such as basic marksmanship, patrolling, mission

planning, medical, and survival skills.⁷⁴

A single general exception to the above policy is he U.S. Army Military Police School, which is

authorized to train civilian law enforcement agencies in the Counterdrug Special Reaction Team

⁷¹ DoDI 3025.21, supra note 6, encl. 3, para. (1)(f).

⁷² Id.

⁷³ DoD Training Support to U.S. Civilian Law Enforcement Agencies, June 29, 1996, (available from the Office of the

Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs (ASD(HD&ASA)), room 3D247,

2600 Defense Pentagon, Washington D.C. 20301) [hereinafter Training Memorandum].

⁷⁴ DoD may allow local police organizations and other civic organizations to use military ranges. See 10 U.S.C. § 7409

(2018).

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Course, the Counterdrug Tactical Police Operations Course, and the Counterdrug Marksman/Observer

Course. Additionally, the Commander, U.S. Special Operations Command (USSOCOM) may approve

similar training by special operations forces on an exceptional basis.⁷⁵

(3) Expert Advice

The third main category of regulation on DoD assistance to civilian law enforcement is the provision

providing for expert advice. 10 U.S.C. § 273 allows the Secretary of Defense to make DoD personnel

available to provide civilian law enforcement agencies with expert advice relevant to the purposes of

10 U.S.C., Chapter 18. This does not permit direct assistance with activities that are fundamentally

civilian law enforcement operations, except as otherwise authorized in DoDI 3025.21.⁷⁶

(4) Use of DoD Personnel to Operate or Maintain Equipment

10 U.S.C. § 274 and DoDI 3025.21, Enclosure 3, address the use of DoD personnel for the operation or

maintenance of equipment, including but not limited to equipment provided under Section 272 and

Enclosure 8 to DoDI 3025.21 Enclosure 8, for Federal, State, or local law enforcement officials. DoDI

3025.21 largely mirrors 10 U.S.C. § 274, with a few additional restrictions and differences that will be

highlighted as the statute provisions are set forth below.⁷⁷

10 U.S.C. § 274(a) allows the Secretary of Defense to make DoD personnel available for the

maintenance of equipment for Federal, State, and local civilian law enforcement officials, including

equipment made available under 10 U.S.C. § 272.⁷⁸ The statute does not specify from whom a request

for maintenance must come. Specifics for maintenance and operation requests under DoDI 3025.21

are discussed further below.

10 U.S.C. § 274(b)(1) allows the Secretary of Defense, upon request from the head of a Federal LEA,

to make DoD personnel available to operate equipment under certain laws and operations as follows:

• A criminal violation of certain specified laws;⁷⁹

• Assistance that such agency is authorized to provide to a State, local, or foreign

government involved with enforcement of a similar law;

⁷⁵ Training Memorandum, supra note 71.

⁷⁶ DoDI 3025.21, supra note 6, encl. 3, para. (1)(d).

⁷⁷ The operation or maintenance of equipment for a civilian agency, or the assistance in operating or maintaining such

equipment, is subject to the following general restrictions from DoDI 3025.21: The use of DoD personnel to operate or

maintain, or to assist in the operation or maintenance of equipment, will be limited to situations where it would be

impractical or unfeasible to use non-DoD personnel for this purpose. The use of DoD personnel under these provisions

must not compromise military preparedness. The assistance cannot involve DoD personnel in a direct law enforcement role

unless otherwise authorized, and the assistance should be provided at a location where there is not a reasonable likelihood

of a law enforcement confrontation. Lastly, military aircraft for point-to-point transportation and training flights for

civilian law enforcement personnel may only be provided in accordance with DoDI 4515.13.

⁷⁸ DoDI 3025.21, supra note 6, encl. 3, para. (1)(d).

⁷⁹ Controlled Substances Act, 21 U.S.C. §§ 801-904 (2018); Controlled Substances Import and Export Act, 21 U.S.C. §§

951-971 (2018); Immigration and Nationality Act, 8 U.S.C. §§ 1324-1328 (2018); The Maritime Drug Law Enforcement

Act, 46 U.S.C. §§ 70501-70508 (2018); 10 U.S.C. § 274(b) (2018) (any foreign or domestic law prohibiting terrorist

activities).

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• A foreign or domestic counter-terrorism operation; or

• A rendition of a suspected terrorist from a foreign country to the United States to stand

trial.

These categories are best understood as “areas” the DoD can operate in with respect to 10 U.S.C. §

274. DoDI 3025.21 repeats these areas almost verbatim, with minor changes or additions.⁸⁰

10 U.S.C. § 274(b)(2) states that DoD personnel made available under 10 U.S.C. § 274(b) may operate

equipment for certain purposes. This is best understood as what functions DoD personnel can perform

when operating under the areas above. The following purposes are authorized under the statute:⁸¹

•

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 U.S. geographic boundary and within the United States not to exceed 25 miles of

the boundary if the initial detection occurred outside of the boundary;

•

Aerial reconnaissance;

•

Interception of vessels or aircraft detected outside the land area of the United States for

the purposes of communicating with such vessels and aircraft to direct such vessels and

aircraft to go to a location designated by appropriate civilian officials;

•

Operation of equipment to facilitate communications in connection with law

enforcement programs specified in 10 U.S.C. § 274(a)(4)(1); and

•

Subject to joint approval by the Secretary of Defense and the Attorney General (and the

Secretary of State in the case of a law enforcement operation outside of the land area of

the United States):

¾ the transportation of civilian law enforcement personnel along with any other

civilian or military personnel who are supporting or conducting a joint operation

with civilian law enforcement personnel;

¾ the operation of a base of operations for civilian law enforcement and supporting

personnel; and

⁸⁰ For example, DoDI 3025.21 adds “including support of FBI Joint Terrorism Task Forces” to the provision of 10 U.S.C.

§ 274 discussing operation of equipment in the case of foreign or domestic terrorism missions. DoDI 3025.21, supra note

6, encl. 3, para. (1)(d)(5).

⁸¹ DoDI 3025.21 reiterates all of these approved purposes virtually identically, including those subject to joint approval.

DoDI.21 adds one other authorized purpose - the detection, monitoring, and tracking of the movement of weapons of mass

destruction under the circumstances described in para. (1)(d) of Enclosure 3 and when outside the United States. DoDI

3025.21, supra note 6, encl. 3, para. (1)(d)(5)(b)(7).

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¾ the transportation of suspected terrorists from foreign countries to the United States

for trial (so long as the requesting Federal law enforcement agency provides all

security for such transportation and maintains custody over the suspect through the

duration of the transportation).

Additionally, DoD personnel made available to operate equipment for the purposes stated above may

continue to operate such equipment into the land area of the United States in cases involving the

pursuit of vessels or aircraft where the detection began outside such land area.⁸² Lastly, 10 U.S.C. §

274(c) provides that the Secretary of Defense may make DoD personnel available to operate

equipment for purposes other than those enumerated in 10 U.S.C. § 274(b)(2) so long as such support

does not result in DoD personnel directly participating in a civilian law enforcement operation, unless

direct participation is otherwise authorized by law.⁸³

DoDI 3025.21 contains several additional important provisions. First, DoDI 3025.21 does not prohibit

the use of emergency action authority under DoDD 3025.18. Additionally, when DoD personnel are

otherwise assigned to provide assistance with respect to the laws specified in subparagraph (1)(b)(5) of

Enclosure 3, the participation of such personnel shall be consistent with the limitations in such laws, if

any, and such restrictions as may be established by DoD policy or the Components concerned.⁸⁴

The process for requests for operation and maintenance of equipment differ slightly between the statute

and DoDI 3025.21. No specific guidance is given regarding requests for equipment maintenance under

10 U.S.C. § 274(a). Under 10 U.S.C. § 274(b) requests for equipment operation must come from the

head of a Federal law enforcement agency. DoDI 3025.21 states that a request for DoD personnel to

operate or maintain equipment (or assist with these actions) must be made pursuant to section 10

U.S.C. § 274 or other applicable law that permits DoD personnel to provide such assistance to civilian

law enforcement officials. It goes on to state a request that is made pursuant to section 10 U.S.C. §

274 must be made by the head of a civilian agency empowered to enforce any of the laws listed in

footnote 73 above.⁸⁵ Note that unlike 10 U.S.C. § 274, this appears to limit the circumstances under

which maintenance (for 10 U.S.C. § 274 purposes) can be approved to these categories.⁸⁶

(5) Other Permissible Assistance

The last main category of regulation over DoD assistance to civilian law enforcement under DoDI

3025.21 is the overarching category of “other permissible assistance.” The transfer of information

acquired in the normal course of military operations to civilian law enforcement agencies under 10

U.S.C. § 271 is not a violation of the PCA and falls into this category.⁸⁷ Criteria for the provision of

this information are discussed in paragraph (B)(4)(a), above.

10 U.S.C. § 274(b)(3) (2018). DoDI 3025.21 differs slightly and states that personnel may operate equipment for both

the detection, monitoring, and communication of the movement of air and sea traffic and the interception of vessels or

aircraft in accordance with 10 U.S.C. 274(b)(2)(D) (2018).

10 U.S.C. § 274(c) (2018). DoDI 3025.21 contains this provision at encl. 3, para. (1)(d)(7).

⁸⁴ DoDI 3025.21, supra note 6, encl. 3, para. (1)(d)(9).

⁸⁵ Id. para. (1)(d)(4).

⁸⁶ Note also the difference in request language for operation assistance—the statute uses the term “Federal agency” and

DoDI 3025.21 uses the term “civilian agency empowered” to enforce certain laws.

⁸⁷ Id. encl. 3, para. (1)(g).

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CHAPTER 5

CIVIL DISTURBANCE OPERATIONS

KEY REFERENCES:

•

10 U.S.C. §§ 251-255, The Insurrection Act.

•

10 U.S.C. § 2667, Leases: Non-Excess Property of Military Departments.

•

18 U.S.C. § 231, Civil Disorders.

•

18 U.S.C. § 1382, Entering Military, Naval, or Coast Guard Property.

•

18 U.S.C. § 1385, The Posse Comitatus Act.

•

28 U.S.C. §§ 1346, 2671-2680, The Federal Tort Claims Act.

•

31 U.S.C. § 1535, Agency Agreements.

•

Executive Order (E.O.) 12656, Assignment of Emergency Preparedness Responsibilities.

•

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

Following a Biological Attack, December 30, 2009.

•

Department of Defense Directive (DoDD) 3025.18, Defense Support of Civil Authorities,

December 29, 2010, Incorporating Change 2, Effective March 19, 2018.

•

DoDD 5111.13, Assistant Secretary of Defense for Homeland Defense and Global Security, March

23, 2018.

•

DoDD 5525.13, Limitation of Authority to Deputize DoD Uniformed Law Enforcement Personnel

by State and Local Governments, September 28, 2007, Incorporating Change 2, Effective

September 8, 2020

•

Department of Defense Instruction (DoDI) 3025.21, Defense Support of Civilian Law Enforcement

Agencies, February 27, 2013, Incorporating Change 1, Effective February 8, 2019.

•

DoDI 3025.22, The Use of the NG for Defense Support of Civil Authorities, July 26, 2013,

Incorporating Change 1, May 15, 2017.

•

DoD Manual 3025.1, Volume 1, Defense Support to Civil Authorities: Overview, Incorporating

Change 1, April 13, 2017.

•

CJCSI 3121.01B, Enclosure L, Standing Rules of Engagement/Standing Rules For the Use of

Force for U.S. Forces, June 13, 2005.

•

CJCSI 3110.07D, Guidance Concerning Chemical, Biological, Radiological, and Nuclear Defense

and Employment of RIOT Control Agents and Herbicides (S), November 22, 2006.

•

Joint Publication 1-02, “Department of Defense Dictionary of Military and Associated Terms,” as

amended.

•

Joint Publication 3-28, Defense Support of Civil Authorities, October 29, 2018.

•

Army Regulation 700-131, Loan and Lease of Army Materiel, August 23, 2004.

•

CNGBI 3000.04, NG Bureau Domestic Operations, 24 January 2018.

•

NG Regulation 500-5, NG Domestic Law Enforcement Support and Mission Assurance

Operations, August 18, 2010.

•

FM 3-07 - Stability, June 2, 2014.

•

USNORTHCOM CONPLAN 3500, Defense Support of Civil Authorities (S).

•

USNORTHCOM CONPLAN 3500-14, Defense Support of Civil Authorities Response.

•

USNORTHCOM CONPLAN3600 (S).

•

USPACOM CONPLAN 7502 (S).

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• Authority to Use Troops to Prevent Interference With Federal Employees by Mayday

Demonstrations and Consequent Impairment of Government Functions, Office of Legal Counsel,

U.S. Department of Justice, April 29, 1971.

A. Introduction

The Code of Federal Regulations provides that within civilian communities in the United States, the

local governments and the States have the primary responsibility for protecting life and property and

maintaining law and order.¹ The Constitution and laws of the United States authorize DoD to support

this effort in certain circumstances.² Generally, Federal forces are employed in support of State and

local authorities to enforce civil law and order only when circumstances arise that overwhelm the

resources of State and local authorities. This basic rule reflects the Founding Fathers’ hesitancy to

raise a standing army and their desire to render the military subordinate to civilian authority.³ Limiting

direct military involvement in civilian law enforcement activities, is rooted in the Constitution⁴ and

laws of the United States,⁵ and allows for exception only under extreme emergency conditions. The

Constitution also guarantees to the States that the Federal Government will aid in suppressing civil

disturbances and empowers Congress to create laws that provide Federal forces for that purpose.⁶

DoD policy no longer contains an official definition of civil disturbance, as the definition was removed

from the DoD Dictionary of Military and Associated Terms; rather, “civil disturbances” are now

referenced in the collective definition of “domestic emergencies.”⁷ DoD policy previously defined

32 C.F.R. § 182.6(b)(1)(ii) (2017).

² U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES Encl. 4, para.

1.c. (27 Feb. 2013) (C1, 8 Feb. 2019) [hereinafter DoDI 3025.21].

³ Among the several grounds stated in the Declaration of Independence for severing ties with Great Britain includes the

fact that the King “has kept among us, in times of peace, Standing Armies without the consent of our Legislature . . . [and]

has affected to render the Military independent of and superior to the Civil power.” THE DECLARATION OF INDEPENDENCE,

available at https://www.archives.gov/founding-docs/declaration-transcript. This feeling resurfaced during the

Constitutional Convention where Maryland Delegate Luther Martin recorded the general sentiment, “When a government

wishes to deprive its citizens of freedom and reduce them to slavery, it generally makes use of a standing army

” Luther

Martin’s Letter on the Federal Convention of 1787 (1787), 1 DEBATES IN THE SEVERAL STATES CONVENTIONS ON THE

ADOPTION OF THE FEDERAL CONSTITUTION (ELLIOT’S DEBATES) 344, 372 (Jonathan Elliot ed., 1836) available at

http://memory.loc.gov/ammem/amlaw/lwed.html.

⁴ The Constitution divides authority over the Armed Forces between the President as Commander in Chief, and Congress,

which has the authority to “declare War . . . raise and support Armies . . . provide and maintain a Navy, . . . [and] make

Rules for the Government and Regulation of the land and naval Forces.” U.S. CONST. art. I, § 8, para. 11; art. II, § 2, para.

⁵ See, e.g., Posse Comitatus Act, 18 U.S.C. § 1385 (2012 & Supp. IV 2017) [hereinafter PCA]. This Act makes it unlawful

to use any part of the Army or Air Force to act in a civilian law enforcement capacity to execute local, State, or federal

laws. The language of the Act specifies that activities expressly authorized by the Constitution or by Federal statute are

exempt from the restrictions expressed within the Act. For a more complete discussion of the Posse Comitatus Act, see

infra in Chapter 4, Military Support to Civilian Law Enforcement.

⁶ U.S. CONST. art. I, § 8, para. 15, art. II, § 2, para. 1, and art. IV, § 4. These sections provide authority to Congress and the

President to support the States by providing forces to repel an invasion, suppress insurrections and protect the States from

domestic violence.

⁷ DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS, 67 (8 January 2020) [hereinafter DoD

Terms].

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civil disturbance as “group acts of violence and disorders prejudicial to public law and order.”⁸ Courts

use similar language when defining “insurrection.”⁹ The Federal Emergency Management Agency

(FEMA) defines civil disturbance more broadly as “[a] civil unrest activity such as a demonstration,

riot, or strike that disrupts a community and requires intervention to maintain public safety.”¹⁰

Currently, the term is defined in Part II of Chief, NG Bureau (CNGB) Instruction 3000.04 as, “[g]roup

acts of violence and disorder prejudicial to public law and order.”¹¹

This chapter discusses how DoD personnel and assets are integrated for response to civil disturbance

operations (CDOs). The Federal or State authority used will determine how those forces are

commanded, funded, and employed depends on the Federal or State.

1. National Response Framework (NRF) and CDOs

The NRF is the guide for how the Nation responds in the civil disturbance context and other

emergencies.¹² The NRF sets out scalable, flexible, and adaptable concepts for the national response

to disasters and emergencies.¹³ While responses to civil disturbances generally begin and end locally,

the NRF provides structure for the Federal response that may also be utilized by States to organize

their response resources, capabilities, and authorities for managing incidents.¹⁴ In particular, Federal

response resources and capabilities are organized by functional areas and grouped under 15 core

Emergency Support Functions (ESFs).¹⁵ Public Safety and Security, inclusive of civil disturbance, is

one of the ESFs designed to “[p]rovide Federal public safety and security assistance to local, State,

tribal, territorial and Federal organizations overwhelmed by the results of actual or anticipated

natural/manmade disaster or an act of terrorism.”¹⁶ The primary agency in support of this ESF is the

⁸ JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT (29 October 2018) [hereinafter JP 3-28]. The 2007 edition of

JP 3-28 contained this definition, the newer editions do not contain this or any other definition of the term.

⁹ See e.g., In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894) (The open and active opposition of a number of

persons to the execution of the laws of the United States, of so formidable a nature as to defy for the time being the

authority of the government, constitutes an insurrection, though not accompanied by bloodshed, and not of sufficient

magnitude to render success probable.)

¹⁰ https://training.fema.gov/programs/emischool/el361toolkit/glossary.htm#c. (last visited Sept. 15, 2020).

¹¹ CHIEF, NATIONAL GUARD BUREAU, INSTR. 3000.04, NATIONAL GUARD BUREAU DOMESTIC OPERATIONS GL-2 (24 Jan.

2018) [hereinafter CNGBI 3000.04].

¹² DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, Fourth Edition (October 28, 2019),

[hereinafter NRF], available at https://www.fema.gov/emergency-managers/national-preparedness/frameworks/response.

(last visited Sept. 9, 2020). The NRF superseded the National Response Plan (NRP) published in 2005; see infra Chapter 2

National Framework for Incident Management.

¹³ Id. at 2.

¹⁴ Id.

¹⁵ Id. at 27. ESFs are the grouping of governmental and certain private sector capabilities into an organizational structure

to provide support, resources, program implementation, and services that are most likely needed to save lives, protect

property and the environment, restore essential services and critical infrastructure, and help victims and communities return

to normal following domestic incidents. https://www.phe.gov/preparedness/support/esf8/Pages/default.aspx. (last visited

Sept. 9, 2020).

¹⁶ Emergency Support Function Annexes, FEMA, https://www.fema.gov/sites/default/files/2020-07/fema_ESF_13_Public-

Safety-Security.pdf. (last visited Sept. 9, 2020).

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Department of Justice/Bureau of Alcohol, Tobacco, Firearms and Explosives.¹⁷ Support agencies

include the Department of Defense and the Department of Homeland Security (DHS).¹⁸

2. The Tiered Response

“The public safety and the welfare of a State’s residents are the fundamental responsibilities of every

Governor.”¹⁹ The Governor coordinates State resources to support local governments as needed and

coordinates assistance with other States and the Federal Government.²⁰ Stated very simply, when an

incident occurs, local governments are the first to respond. If local resources are inadequate or

exhausted, the local government may reach out to neighboring local governments through a variety of

mutual assistance compacts or to the State for additional resources and capabilities. When State

resources are inadequate or exhausted, the State may request and coordinate assistance from other

States (through the Emergency Management Assistance Compact (EMAC))²¹ and/or to the Federal

Government. Among the resources available to a State and locality are: the affected State’s NG

personnel in a State Active Duty (SAD) status and State assets, NG personnel in SAD and assets from

other States (via EMAC), and other DoD personnel and assets.²²

B. Responsibilities and Relationships of Parties Involved in CDOs

1. Attorney General

The DOJ is the primary Federal agency responsible for coordinating the Federal Government response

to restore law and order.²³ As the head of the DOJ, the Attorney General is the chief civilian official

responsible for the Federal Government’s activities in civil disturbances.²⁴ The Attorney General

provides early threat assessments and warnings to the DoD to support civil disturbance planning.

States request the assistance of Federal forces through the Attorney General, who also advises the

President on the use of Federal military forces to restore law and order. The Attorney General

coordinates the activities of Federal law enforcement agencies with those of the local and State

agencies in an area faced with a civil disturbance.

2. Senior Civilian Representative of the Attorney General (SCRAG)

Pursuant to 32 C.F.R. § 182.6, the Attorney General may appoint a SCRAG for a civil disturbance.

The SCRAG is responsible for the coordination of effort of all Federal agencies involved in the civil

disturbance operation with the efforts of State and local agencies engaged in restoring law and order.

¹⁷ Id.

¹⁸ Id.

¹⁹ NRF, supra note 12, at 31.

²⁰ Id.

²¹ Id.

²² Id.

²³ DoDI 3025.21, supra note 2, Encl. 4, para. 1.c; 32 C.F.R. § 182.6(b)(5) (2012).

²⁴ Id.

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Note that the appointment of such an official does not replace the military chain of command.²⁵ DoD

forces employed in civil disturbance operations must remain under military authority at all times.²⁶

3. Assistant Secretary of Defense for Homeland Defense and Global Security

The Assistant Secretary of Defense for Homeland Defense and Global Security (ASD(HD&GS))²⁷ acts

as the principal point of contact between DoD and the DOJ for CDOs.²⁸ ASD(HD&GS) is also

responsible for the development, coordination, oversight of DoD policy for DSCA plans and activities

regarding civil disturbances.²⁹

Joint Director of Military Support (JDOMS)

JDOMS is the action agent within the DoD with responsibility for planning, coordinating, and

directing the commitment of all designated Federal military resources during CDSs. JDOMS

coordinates with the supported Combatant Commander (CC), and releases the execute order (EXORD)

designating supported and supporting Combatant Commanders and tasking force providers to give the

ordered support.³⁰

Combatant Commanders

The Commanders of USNORTHCOM, USINDOPACOM, and USSOCOM, as the DoD planning

agents for CDO, lead the CDO planning activities of the DoD Components in these areas:

• USNORTHCOM - The 48 contiguous States, Alaska, the District of Columbia, the

Commonwealth of Puerto Rico, and the U.S. Virgin Islands.

• USINDOPACOM - Hawaii and the U.S. possessions and territories in the Pacific area.

• USSOCOM - CDO activities involving special operations forces.³¹

6. Commander, U.S. Army North

U.S. Army North (ARNORTH) is the Army component of USNORTHCOM. Its mission is to conduct

homeland defense, civil support operations, and theater security cooperation activities. On orders,

32 C.F.R. § 182.6(b)(5)(i)(C) (2017).

²⁶ JP 3-28, supra note 8, at III-3-4.

²⁷ Previously known as the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs

(ASD(AD&ASA)).

²⁸ DoDI 3025.21, supra note 2, Encl. 2, para. 2.b.

²⁹ U.S. DEP’T OF DEFENSE, DIRECTIVE 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND

GLOBAL SECURITY (ASD(HD&GS)), sec. II.e (23 Mar. 2018).

³⁰ JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INST. 5711.02C, DELEGATION APPROVAL

AUTHORITY (30 Nov. 2012). See also JP 3-28, supra note 8, Ch. III, V.

³¹ DoDI 3025.21, supra note 2, Encl. 4, at 26.

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ARNORTH commands and controls deployed forces as a Joint Task Force or Joint Force Land

Component Command (JFLCC).³²

7. NG Bureau

The NGB is the channel of communication for all NG matters between Federal military elements

(including the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the DoD Components,

and the Departments of the Army and Air Force) and the States.³³ The CNGB facilitates and de-

conflicts the use of NG forces to ensure that adequate and balanced forces are available for domestic

and foreign military operations.³⁴ The NGB maintains a 24/7 NG Coordination Center providing

situational awareness and common operating picture for any CDO.

8. State Governor/Chief Executive of a U.S. Territory³⁵

A State Governor coordinates State resources and provides strategic guidance needed to prevent,

mitigate, prepare for, respond to, and recover from incidents of all types.³⁶ In addition, the Governor

commands the State’s NG forces (in SAD or Title 32), coordinates for and provides interstate mutual

aid and assistance through compacts such as the EMAC, and requests Federal assistance, as needed.³⁷

9. State Homeland Security Advisor

“The State Homeland Security Advisor serves as counsel to the Governor on homeland security issues

and may serve as a liaison between the Governor’s office, the State homeland security structure, the

Department of Homeland Security, and other organizations both inside and outside of the State.”³⁸

This role may be filled by the Director of the State Emergency Management or a dual-hatted Adjutant

General of a State, depending on the organization of the State’s emergency management system.³⁹

10. Director, State Emergency Management Agency

All States have laws mandating the establishment of a State emergency management agency and the

development of emergency plans coordinated by that State.⁴⁰ The director of the State emergency

management agency is responsible for coordinating the State response in any incident.

11. The NG

NG units may respond to a civil disturbance in SAD.⁴¹ As stated above, the NG in a non-federalized

status are not subject to the prohibitions of the PCA and can support State or Federal law enforcement

³² See ABOUT USNORTHCOM, https://www.northcom.mil/About USNORTHCOM.aspx (last visited Jun. 11 2020).

³³ U.S. DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) paras. 4.b, 4.c (30 Oct. 2015) (C1, Oct. 10,

2017) [hereinafter DODD 5105.77].

³⁴ Id. para. 5.c.

³⁵ For this paragraph, the reference to a State Governor also references the chief executive of a U.S. territory.

³⁶ JP 3-28, supra note 8, at II-2.

³⁷ Id.

³⁸ Id. at II-3.

³⁹ Id.

⁴⁰ Id.

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missions.⁴² NG forces remain under the command of State NG officers, and missions are conducted

through the NG chain of command, after coordination with civil authorities. In extreme circumstances,

NG units may be federalized under Title 10 pursuant to a Presidential order.⁴³ Once federalized, the

NG conducts its mission in accordance with DoD regulations and Federal law and operate under

Federal control. (See “Use of NG Forces in a Title 32 or SAD Status (Not in Federal Service)” and

“Planning Considerations” in this chapter.)

C. Authorities for Use of DoD Forces for a Civil Disturbance Operation

The U.S. Federal Armed Forces, including the reserves, are governed by Title 10 of the U.S. Code.

NG forces have an additional statutory authority codified in Title 32 of the U.S. Code, due to their

unique status as both a Federal Reserve component and as a part of the organized militia of their

respective State or territory. The “3025-series” of DoD instructions, directives, and manuals provide

the guidance necessary to properly operate during civil support operations. More specifically, the

following core DoD policies represent the core documents used by Federal personnel:

• Department of Defense Directive 3025.18, Defense Support of Civil Authorities;

• Department of Defense Instruction 3025.21, Defense Support of Civilian Law Enforcement

Agencies;

• Department of Defense Instruction 3025.22, The Use of the NG for Defense Support of Civil

Authorities; and

• Department of Defense Manual 3025.1, Volume 1, Defense Support to Civil Authorities:

Overview.

Employment of Federal Military Forces. The President is authorized by the Constitution and laws

of the United States to employ Title 10 Federal Armed Forces to suppress insurrections, rebellions, and

domestic violence under various conditions and circumstances and to provide limited support to

civilian law enforcement activities.⁴⁴ The specifics are discussed later in this chapter.

⁴¹ With SecDef approval, the NG may conduct operational missions under 32 U.S.C. § 502(f)(2) “operational support”

authority. See U.S. DEP’T OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4.j (29 Dec. 2010) (C2, 19

Mar. 2018) [hereinafter DoDD 3025.18]. See also, NATIONAL GUARD REG. 500-5, NATIONAL GUARD DOMESTIC LAW

ENFORCEMENT SUPPORT AND MISSION ASSURANCE OPERATIONS para 4-8 (Aug. 2010) [hereinafter NGR 500-5].

⁴² See infra Chapter 4, Military Support to Civilian Law Enforcement, for a complete discussion on the PCA.

⁴³ See Chapter 3 of this Handbook for a complete discussion of NG status.

⁴⁴ DODI 3025.21, supra note 2, at Encls. 3 and 4.

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Employment of NG Forces. Due to the unique status of the NG, NG forces can be employed in

several different ways:

• SAD status: State funded, under State command and control, when called to duty by the State

Governor in accordance with State law, including support from one State’s NG provided to

another State;

• Title 32 status: Federally funded, under State command and control, when properly assigned a

Federal mission in accordance with Federal law; or

• Title 10 status: Federally funded, under Federal command and control, when called to Federal

military service by the President.

Immediate Response Authority (IRA). DoDD 3025.18, Defense Support of Civil Authorities

(DSCA), permits Federal military commanders, heads of DoD components, and responsible DoD

civilian officials to provide an immediate response by temporarily employing the resources under their

control, subject to any supplemental direction provided by higher headquarters, to save lives, prevent

human suffering, or mitigate great property damage within the United States, in response to a request

for assistance from a civil authority, under imminently serious conditions and if time does not permit

approval from higher authority.⁴⁵ IRA is not an exception to the Posse Comitatus Act (PCA), nor does

it permit actions that would subject civilians to the use of military power that is regulatory,

prescriptive, proscriptive, or compulsory.⁴⁶

Defense Support of Civil Authorities (DSCA). The DoD has a broad range of capabilities that can

be deployed in support of civilian authorities in emergency situations. As discussed in sections C and

D of Chapter 1, DoD personnel provide Federal military assistance to civil authorities only when civil

resources are insufficient, appropriate civil authorities make a request to the Federal government, and

when DoD officials order their personnel to provide assistance. This DoD assistance is categorized as

DSCA, which is defined in DoDD 3025.18 as, “[s]upport provided by U.S. Federal military forces,

DoD civilians, DoD contract personnel, DoD Component assets, and NG forces (when the Secretary of

Defense, in coordination with the Governors of the affected States, elects and requests to use those

forces in [a] [T]itle 32, U.S.C., status) in response to requests for assistance from civil authorities for

domestic emergencies, law enforcement support, and other domestic activities, or from qualifying

entities for special events.”⁴⁷

DSCA is initiated by a request for assistance from civil authorities, qualifying entities to the

Department of Defense , or by order of the President or Secretary of Defense.⁴⁸ The process for

requesting military assistance by civilian agencies is set out in DoDD 3025.18. As a part of the

⁴⁵ U.S. DEP’T OF DEF., DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4.i (29 Dec. 2010) (C2, 19 Mar. 2018)

[hereinafter DoDD 3025.18].

⁴⁶ Id. See also 10 U.S.C. § 275, 18 U.S.C. § 1385.

⁴⁷ DODD 3025.18, supra note 45, at 18.

⁴⁸ Id. para. 4.c.

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approval process, before providing assets to support civil authorities, the Department of Defense

evaluates the request based on the “CARRLL” factors also set out in DoDD 3025.18.⁴⁹

In response to the request for assistance, forces from all branches of service on Federal active duty,

including NG personnel under Federal command and control (Title 10) and NG personnel utilizing

Federal funds under State command and control (Title 32) can be utilized.⁵⁰ As discussed later in this

chapter, the utilization of Federal military forces, for civil disturbances or law enforcement support,

unless acting pursuant to The Insurrection Act or under another exception to the PCA, is restricted

from performing law enforcement functions.⁵¹ While under the control of the Governor in a Title 32

or SAD, the NG is not subject to the restrictions of the PCA. Accordingly, NG forces, in SAD, are

more suitable than Title 10 forces to perform civil disturbance and law enforcement support DSCA

mission assignments.

D. Use of NG Forces in a Title 32 or SAD (Not Federal Service) for CDOs

NG in SAD can provide military assistance to State and local government agencies in accordance with

State law during civil disturbances.⁵² This assistance may be provided for the protection of life,

property and the maintenance of law and order within the territorial jurisdiction of any State.⁵³ NG

units are particularly well-suited for domestic law enforcement missions and civil disturbance

operations as the units are located in over 3,000 local communities throughout the nation, readily

accessible, routinely performing exercises with local first responders, and have broad experience in

providing support to neighboring communities through their various State missions.⁵⁴

When domestic unrest is beyond the capability of state and local law enforcement, a Governor may

direct the involvement of the NG in augmenting state and/or local law enforcement agencies (LEA) in

restoring public order or governmental functioning, preventing the loss of life or wanton destruction of

property, or enforcing state law.⁵⁵ State forces may serve as support to essential services, establish

traffic control posts, cordon off areas, release smoke and obscurants, and serve as security or quick

reaction forces.⁵⁶ In their support to civil disturbance operations, NG forces may provide supplies,

⁴⁹ DoDD 3025.18 requires all requests for military support be evaluated against six criteria prior to the decision to employ

forces: Cost: Who pays and the impact on DoD budget; Appropriateness: Whether it is in the interest of DoD to provide

the requested support; Readiness: Impact on DoD’s ability to perform its primary mission; Risk: Safety of DoD forces;

Legality: Compliance with the law; and Lethality: Potential use of lethal force by or against DoD forces. Id. para 4.e.

⁵⁰ In accordance with Title 32 U.S.C., the Secretary of Defense, with the concurrence of the affected Governors, is the sole

authority to authorize DoD funding of the National Guard for DoD missions including DSCA, see also U.S. DEP’T OF

DEFENSE, INSTR. 3025.22, THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL AUTHORITIES, (26 Jul.

2013) (C1, 15 May 2017) [hereinafter DoDI 3025.22].

⁵¹ Posse Comitatus Act, 18 U.S.C. § 138, supra note 5.

⁵² NATIONAL GUARD REG. 500-5, NATIONAL GUARD DOMESTIC LAW ENFORCEMENT SUPPORT AND

MISSION ASSURANCE OPERATIONS para 5-3a. (Aug. 2010) [hereinafter NGR 500-5].

⁵³ Id.

⁵⁴ Id. para. 5-1.

⁵⁵ CHIEF, NATIONAL GUARD BUREAU, INSTR. 5200.01, NATIONAL GUARD BUREAU ALL-HAZARDS SUPPORT PLAN para. 5-

3a. (3 Feb 2017) [hereinafter CNGBI 5200.01].

⁵⁶ U.S. DEP’T OF ARMY DOCTRINE PUB. 3-28 DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4-172 (Feb.

2019) [hereinafter ADP 3-28].

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services, and equipment for use in the preservation of law and property to LEAs.⁵⁷ NG support to

LEAs should terminate as soon as possible after the situation is within the capabilities of state and

local law enforcement.⁵⁸

The following is a non-exhaustive list of standard planning considerations for CDOs:

•

Command and Control. State laws and policies may authorize NG in SAD to support law

enforcement agencies and are incorporated into State emergency operations plans.⁵⁹ NG forces are

generally under the control of State and local civil authorities for mission tasking; however, these

forces will remain under their normal NG military chain of command. While in Title 32 or SAD,

the Governor commands the NG.⁶⁰

•

Law Enforcement Functions. NG assistance is provided in support of civil authorities, not to

replace civil authority. While State law may allow NG forces to act in a law enforcement capacity,

apprehending, searching, seizing, and questioning should be left to civilian law enforcement. For

concrete guidance, refer to the laws of each State and the State NG’s Rules for the Use of Force

(RUF) developed by the Office of the Staff Judge Advocate (OSJA) in partnership with the State

Attorney General’s office.

•

PCA. NG personnel supporting CDOs and LEAs are subject to the laws of their State; however,

they are not subject to the restrictions of the PCA.⁶¹ Conversely, these restrictions do apply if NG

forces are operating in a Title 10 status.⁶²

•

EMAC Requirements. State Governors have the authority to activate their NG forces in SAD to

assist other States, as requested through the EMAC. NG personnel in SAD pursuant to the EMAC

outside their home State may support only civilian the LEA as specified in a memorandum

approved by the sending and receiving Governors.⁶³

•

Rules for the Use of Force (RUF). NG personnel engaged in civil disturbance and law

enforcement operations, are governed by the laws of the State in which they are serving. Thus,

each State develops its own RUF based on State law.

•

Arming and Deputation. Employing NG forces for law enforcement functions in SAD or Title 32

may require authority under State or Federal law to arm and/or deputize the Guard personnel. If

supporting a State requirement, including when employed in another State pursuant to an EMAC or

other agreement, the host State would provide arming and deputation authority pursuant to that

State’s law. If supporting a Federal requirement, such as a Federal protection mission (see section

⁵⁷ NGR 500-5, supra note 52, para. 5-3g.

⁵⁸ Id. para. 5-3h.

⁵⁹ Id. para. 3-2.

⁶⁰ Id. para. 4-2.

⁶¹ Id. para. 4-3.

⁶² Id.

⁶³ Id. para 8-6, See also https://www.emacweb.org/index.php/training-education/learn-about-emac-your-

discipline/national-guard (last visited Sept. 15, 2020).

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H.3, below), a Federal LEA could authorize arming and deputation pursuant to applicable agency

statutory authorities.⁶⁴

•

Intelligence Oversight. NG domestic intelligence activities are strictly limited by law, DoD

procedures,⁶⁵ DoD directives,⁶⁶ NG policies,⁶⁷ and the Constitution.⁶⁸

•

Use of Federal Equipment. There is no specific statutory authorization that provides for the loan

or lease of Federal equipment for use in the furtherance of only a State purpose, to include a loan or

lease for use by NG personnel in SAD. Service regulations provide processes wherein DoD

equipment may be leased or loaned to States or territories, with reimbursable costs tracked by

United States Property and Fiscal Officers (USPFOs). NG forces may, in accordance with Service

and NGB regulations, use general purpose Federal equipment issued to the NG during CDOs or

other emergencies declared by the Governor, subject to reporting and reimbursement to the Federal

government.⁶⁹ However, the DoD may restrict equipment from being used for non-DoD purposes.

Federal intelligence equipment, such as certain unmanned aircraft systems (UAS), remotely piloted

aircraft (RPA), and the Joint Worldwide Intelligence Communication System (JWICS) cannot be

used without SECDEF approval.⁷⁰

•

Required Training. NG units that have been assigned the civil disturbance mission are required

to conduct annual civil disturbance training and assessment.⁷¹ Personnel must complete civil

disturbance training in order to directly participate in CDOs.⁷² NG personnel who have not been

trained and assessed in CDOs should serve only in a support role.

⁶⁴ See, e.g., 28 C.F.R. § 0.112; 54 U.S.C. § 10271(b).

⁶⁵ U.S. DEP’T OF DEFENSE, 5240.1-R, PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS

THAT AFFECT U.S. PERSONS (Dec. 1982) (C2, 26 Apr. 2017) [hereinafter DoD 5240.1-R].

⁶⁶ U.S. DEP’T OF DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS NOT

AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980) [hereinafter DoDD 5200.27].

⁶⁷ CHIEF, NATIONAL GUARD BUREAU, INSTR. 2000.01C, NATIONAL GUARD INTELLIGENCE ACTIVITIES (14 Aug. 2018)

[hereinafter CNGBI 2000.01C].

⁶⁸ U.S. CONST. amend. I (granting to the people the freedom of speech, to peaceably assemble, and to petition the

Government for a redress of grievances). The DoD Civil Liberties Program is governed under DoDI 1000.29, which

ensures that the DoD will not maintain information on how an individual exercises rights protected by the First Amendment

to the Constitution of the United States, including freedoms of speech, assembly, press, and religion unless maintaining the

information is authorized by the person(s), by statute, or is pertinent to and within the scope of an authorized law

enforcement, intelligence collection, or counterintelligence activity. U.S. DEP’T OF DEFENSE, INSTR. 1000.29, DOD CIVIL

LIBERTIES PROGRAM (17 May 2012) (C1, 26 Nov. 2014). See also Snyder v. Phelps, 131 S.Ct. 1207 (2011); U.S. CONST.

amend. IV (granting to the people the right to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures). See also DoD 5240.1-R, supra note 41.

⁶⁹ NGR 500-5, supra note 52, para 5-5.

⁷⁰ DoD 5240.1-R, supra note 65; CNGBI 2000.01C, supra note 67.

⁷¹ NGR 500-5, supra note 52, para. 5-3. In accordance with this regulation, the training at a minimum includes: a)

apprehension, search and detention, b) civil disturbance formations, c) media relations, d) non-lethal capabilities, e) riot

shield and riot baton techniques, and f) use of force. Id. para. 5-3.e(1).

⁷² Id. para. 5-3.

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E. Use of Title 10 Forces During a CDO

1. Use of NG Forces in a Title 10 Status (in Federal Service)

When NG Forces are ordered into a Federal status (Title 10), the Federal military chain of command is

followed.⁷³ Also, the same Federal laws, policies, and restrictions that apply to Federal military forces,

apply to the Federalized NG (e.g. the PCA).⁷⁴

2. Use of Federal Military Forces

Posse Comitatus Limitations. The PCA,⁷⁵ DoDD 3025.18, and DoDI 3025.21 prohibit the direct,

active participation of Title 10 military forces in civilian law enforcement, unless specifically

authorized by Federal law or the U.S. Constitution. Certain Constitutional authorities⁷⁶ and the

Insurrection Act⁷⁷ provide for exceptions to the PCA and serve as the basis of authority for Title 10

forces performing law enforcement duties during CDOs.

PCA Exception: The Insurrection Act. Chapter 13 of Title 10 of the United States Code, is entitled

“Insurrection.” This chapter, the Insurrection Act, permits the commitment of Federal forces by the

President to restore law and order “[w]henever the President considers that unlawful obstructions,

combinations, or assemblages, or rebellion against the authority of the United States, make it

impracticable to enforce the laws of the United States in any State by the ordinary course of judicial

proceedings

”⁷⁸ As the use of Federal forces to quell civil disturbances is expressly authorized by

Federal statute, the proscriptions of the PCA are inapplicable when the President is exercising authority

under the Insurrection Act.

PCA Exception: Protection of Federal Functions, Persons, and Property. The Department of Justice

Office of Legal Counsel has “taken the position that the [PCA] applies to the use of troops to perform

essentially law enforcement duties and does not impair the President’s inherent authority to use troops

for the protection of federal property and federal functions.”⁷⁹ This opinion provides limited authority

for the President to employ both NG troops (pursuant to 32 U.S.C. § 502(f)) and Title 10 personnel for

this purpose.

3. Supporting a State or Territorial Request

The Federal Government has an obligation to protect every State in the union, upon request, from

domestic violence.⁸⁰ Pursuant to this obligation, Congress included in the Insurrection Act a provision

⁷³ NGR 500-5, supra note 52, para. 3-1.b.

⁷⁴ NGR 500-5, supra note 52, para. 4-3.b.

⁷⁵ PCA, supra note 5.

⁷⁶ U.S. CONST. art. IV § 4 (tasking the U.S. Government with protecting each of the States from invasion, and upon

application of the State’s legislature or the State’s Governor, against domestic violence).

⁷⁷ The Insurrection Act of 1807, 10 U.S.C. §§ 251-55 [hereinafter The Insurrection Act].

⁷⁸ Id. § 252.

⁷⁹ Authority to Use Troops to Prevent Interference With Federal Employees by Mayday Demonstrations and Consequent

Impairment of Government Functions, Office of Legal Counsel, U.S. Department of Justice, April 29, 1971.

⁸⁰ U.S. CONST. art. IV, § 4.

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authorizing the President to use Federal forces to assist State governments. Section 251 of the

Insurrection Act provides:

Whenever there is an insurrection in any State against its government, the

President may, upon the request of its legislature or of its Governor if the

legislature cannot be convened, call into Federal service such of the militia of

the other States, in the number requested by that State, and use such of the

armed forces, as he considers necessary to suppress the insurrection.⁸¹

Responsibility for the coordination of the Federal response to civil disturbances rests with the

Attorney General of the United States (Attorney General).⁸² The Attorney General is also responsible

for receiving the State requests for military assistance, coordinating the requests with SECDEF and other

appropriate Federal officials, and presenting the requests to the President, who will determine what Federal

action will be taken.⁸³ Should a request for assistance be presented to a local commander, the

commander should direct the person making the request to address the request to the Attorney General.

As referenced above, prior to a State requesting assistance in the form of Federal military forces, all

local and State resources, including NG personnel in SAD,⁸⁴ should have been brought to bear on the

civil disturbance.⁸⁵

An example of a State requesting such assistance was the response to the Los Angeles riots of 1992.

On May 1, 1992, pursuant to the Insurrection Act, California Governor Pete Wilson requested Federal

military support from President George H.W. Bush to assist with restoring law and order in Los

Angeles. Governor Wilson advised President Bush that the domestic violence exceeded the

capabilities of available law enforcement resources, including NG forces mobilized a day earlier.⁸⁶ In

accordance with the Executive Order issued by President Bush, and to provide Federal assistance to

Los Angeles in the restoration of law and order, the Secretary of Defense Federalized the California

NG and deployed Soldiers of the 7th Infantry Division (7ID) at Fort Ord and Marines from Camp

Pendleton.⁸⁷

Enforcing Federal Authority

The President has a Constitutional duty to ensure the faithful execution of the laws of the United

States.⁸⁸ Within the Insurrection Act, Congress gave the President the authority to commit the U.S.

military to enforce Federal law.⁸⁹ 10 U.S.C. § 252 provides:

⁸¹ The Insurrection Act, supra note 77, §251,

⁸² See DoDI 3025.21, supra note 2, Encl. 4, para. 1.c.

⁸³ Id. See also Exec. Order No. 12656, 53 Fed. Reg. 47491 (Nov. 18, 1988).

⁸⁴ See Chapter 3 of this Handbook, which discusses the mobilization and activation of National Guard forces.

⁸⁵ CNGBI 3000.04, supra note 11, para. 4.b (which anticipates that Governors will use their State National Guards under

Chief, National Guard Bureau, Instr. 3000.04their control when responding to incidents within their State).

⁸⁶ Proclamation No. 6427, 57 Fed. Reg. 19359 (May 1, 1992).

⁸⁷ Exec. Order No. 12804, 57 Fed. Reg. 19361 (May 1, 1992). See also JOINT CHIEFS OF STAFF, JOINT PUB 3-08,

INTERORGANIZATIONAL COOPERATION, para. 2.f.1.e (12 Oct. 2016) (validated 18 Oct. 2017).

⁸⁸ U.S. CONST. art. II, § 3.

⁸⁹ Insurrection Act, supra note 77, § 252.

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Whenever the President considers that unlawful obstructions, combinations, or

assemblages, or rebellion against the authority of the United States, make it

impracticable to enforce the laws of the United States in any State or territory by

the ordinary course of judicial proceedings, he may call into Federal service

such of the militia of any State, and use such of the armed forces, as he

considers necessary to enforce those laws or to suppress the rebellion.⁹⁰

During the 1950s and 1960s, the Insurrection Act statute was used to enforce public school

desegregation in Arkansas⁹¹ and Alabama⁹² and to control civil rights protests in Mississippi⁹³ and

Alabama.⁹⁴

5. Protecting Constitutional Rights

Citizens of the United States are guaranteed equal protection under the law.⁹⁵ The final Congressional

grant of authority to the President for the use of the U.S. military during times of insurrection is for the

protection of citizens in States that cannot protect the Constitutional rights of its citizens.⁹⁶

10 U.S.C.

§ 253 states:

The President, by using the militia or the armed forces, or both, or by any other

means, shall take such measures as he considers necessary to suppress, in a

State, any insurrection, domestic violence, unlawful combination, or conspiracy,

if it—

(1) so hinders the execution of the laws of that State, and of the United States

within the State, that any part or class of its people is deprived of a right,

privilege, immunity, or protection named in the Constitution and secured by law,

and the constituted authorities of that State are unable, fail, or refuse to protect

that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or

impedes the course of justice under those laws. In any situation covered by

⁹⁰ Id.

⁹¹ See Exec. Order No. 10730, 22 Fed. Reg. 7628 (Sept. 24, 1957) (Army and Air National Guard units were federalized to

remove obstructions to justice in respect to enrollment and attendance at public schools in Little Rock, Arkansas.).

⁹² See Exec. Order No. 11118, 28 Fed. Reg. 9863 (Sept. 10, 1963) (Army and Air National Guard units were federalized to

remove obstructions to justice in respect to enrollment and attendance at public schools in Alabama.).

⁹³ See Proclamation No. 3497, Exec. Order No. 11053, 27 Fed. Reg. 9681 (Sept. 30, 1962) (Army and Air National Guard

units federalized to enforce federal court orders issued in Mississippi.).

⁹⁴ See Exec. Order No. 11111, 28 Fed. Reg. 5709 (Jun. 11, 1963) (Army and Air National Guard units federalized to

remove obstructions to justice and to suppress unlawful assemblies, conspiracies, and domestic violence that opposed the

laws of Alabama.).

⁹⁵ U.S. CONST. amend. XIV, § 1 which States in part “No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor to deny any person within its jurisdiction the equal protection of the laws.”

⁹⁶ Insurrection Act, supra note 77, § 253.

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clause (1), the State shall be considered to have denied the equal protection of

the laws secured by the Constitution.⁹⁷

10 U.S.C. § 253 was used as an authority by President Kennedy to send Federal military troops

to Alabama in April 1963 during the civil rights protests in Birmingham, Alabama.⁹⁸

F. Taking Action Under the Insurrection Act (Procedural Considerations)

Prior to utilizing the Federalized militia or Federal troops under the Insurrection Act, the President

must issue a proclamation demanding that the insurgents cease and desist all acts of violence and retire

peaceably within a prescribed time.⁹⁹ 10 U.S.C. § 254 states,

Whenever the President considers it necessary to use the militia or the armed

forces under this chapter, he shall, by proclamation, immediately order the

insurgents to disperse and retire peaceably to their abodes within a limited time.

If the Presidential Proclamation does not end the disturbance, the President will issue an Executive

Order to the Secretary of Defense directing the Secretary to use such of the armed forces as are

necessary to restore order.¹⁰⁰ Decisions of the President to issue Presidential Proclamations and

Executive Orders pursuant to the Insurrection Act are made solely at the discretion of the Executive¹⁰¹

and cannot be compelled by the courts.¹⁰² Examples of a proclamation and follow-on order are

Proclamation No. 6427 and Executive Order 12804, used during the Los Angeles riots of 1992.¹⁰³

G. DoD Considerations Concerning the Insurrection Act

As referenced above, DoDD 3025.18 requires all requests for military support be evaluated against six

criteria prior to the decision to employ forces.¹⁰⁴ The decision to employ Federal military forces for

CDOs is made in coordination between the President, the Secretary of Defense, and the Attorney

General. Although the Secretary of Defense retains approval authority for all Federal military support

⁹⁷ Id.

⁹⁸ See Alabama v. U.S., 373 U.S. 545 (1963).

⁹⁹ Insurrection Act, supra note 77, § 254.

¹⁰⁰ See supra notes 91-94.

¹⁰¹ See, e.g., Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp. 1249 (D.D.C. 1973), aff’d, 497 F.2d 683,

aff’d, 497 F.2d 684 (D.C. Cir. 1974), cert. denied, 419 U.S. 1021 (1974) (decision whether to use troops or militia to quell

civil disorder is exclusively within the province of the President, and presidential discretion in exercising powers granted in

U.S. Constitution Article 2, § 2 and Article 4, § 4, and the Insurrection Act is not subject to judicial review).

¹⁰² See Consolidated Coal and Coke Co. v. Beale et al., 282 F. 934 (S.D. Ohio 1922) (ruling that court could not compel

President to issue Proclamation or exercise discretion under Insurrection Act).

¹⁰³ See supra notes 91-92.

¹⁰⁴ DoDD 3025.18, supra note 45, para. 4.e. sets out the following “CARRLL” factors: Cost - Who pays and the impact on

DoD budget, Appropriateness - Whether it is in the interest of DoD to provide the requested support, Readiness - Impact

on DoD’s ability to perform its primary mission, Risk - Safety of DoD forces, Legality - Compliance with the law,

Lethality - Potential use of lethal force by or against DoD forces.

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in response to civil disturbances,¹⁰⁵ the above-criteria may be helpful to local commanders and their

judge advocates as they may advise on formal assistance requests routed to higher headquarters for

consideration.

H. Additional Exceptions to the PCA

In addition to the Insurrection Act, authority to use Federal troops in a law enforcement capacity to

address civil disturbances can be found in two other major areas.

Emergency Authority

Under DoDD 3025.18, Federal military commanders are provided emergency authority. Under this

provision, in extraordinary emergency circumstances where prior authorization by the President is

impossible and local authorities are unable to control the situation, Federal military commanders may

exercise their emergency authority to temporarily engage in activities that are necessary to quell large-

scale, unexpected civil disturbances either because:

• Such activities are necessary to prevent significant loss of life or wanton destruction of property

and are necessary to restore governmental function and public order; or,

• When duly constituted Federal, State, or local authorities are unable or decline to provide

adequate protection for Federal property or Federal governmental functions. Federal action,

including the use of Federal military forces, is authorized when necessary to protect the Federal

property or functions.¹⁰⁶

The commander’s decision to exercise emergency authority must immediately report the facts

surrounding the request, the command’s response, and any other relevant information through the

chain of command to the National Military Command Center.¹⁰⁷

2. Barment or Removal Authority

A military installation commander, exercising “inherent authority,” may take such actions that are

reasonably necessary and lawful to protect military installations. This is outside the emergency

authority or Insurrection Act, and is not exercised in concert with the type of force that may occur in

those situations. Although it can involve civil unrest situations, it involves non-emergency situations

where there is time to apply authority allowing for the removal or barment of a person from an

installation to remedy a situation. Violations of such orders to stay off an installation carry civil and

criminal penalties.¹⁰⁸

¹⁰⁵ Id. para. 4.j.1 (stating that approval authority for civil disturbance operations is no lower than the Secretary of Defense

level and requires Presidential authorization).

¹⁰⁶ DoDD 3025.18, supra note 45, para. 4.i.

¹⁰⁷ ADP 3-28, supra note 57, para 4-152.

¹⁰⁸ The courts have approved the theory of a commander’s inherent authority, that is, authority not found in statute or

regulation. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 893 (1961) (commanders have

“historically unquestioned power” to exclude persons from their installations); Greer v. Spock, 424 U.S. 828, 840 (1976)

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3. Protecting Federal Functions, Persons, and Property

As discussed above, the President has the inherent authority to use Federal forces to protect Federal

function, property and personnel.¹⁰⁹ This authority to use troops should not be exercised to perform

routine and normal police functions. Instead, this authority is authorized in extraordinary

circumstances where normal measures are insufficient to carry out or protect the performance of

Federal functions.¹¹⁰ Unlike the Insurrection Act, when forces are dispatched under this authority, a

President proclamation is not required to engage this authority.¹¹¹

I. The Department of Defense Civil Disturbance Plans

The DoD works closely with other Federal agencies, in particular DHS and its subordinate

organizations, when planning for DSCA.¹¹² The DoD has delegated to geographic combatant

commanders responsibility for developing CDO Contingency Plans (CONPLANs).¹¹³ Further, the

DoD coordinates with interagency partners through the CNGB to States/territories on all matters

pertaining to the NG, to ensure DoD planning supports the needs of those requiring DSCA.¹¹⁴

1. The Federal Military Forces CDO Mission

The CDO mission is conducted to restore order or enforce Federal law after a major public emergency

(e.g., natural disaster, serious public health emergency, or terrorist attack) when requested by the State

(“There is nothing in the Constitution that disables a military commander from acting to avert what he perceives to be a

clear danger to the loyalty, discipline, or morale of troops on the base under his command.”).

18 U.S.C. § 1382 states:

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post,

fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever reenters

or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed

therefrom or ordered not to reenter by any officer or person in command or charge thereof, shall be fined under this

title or imprisoned not more than six months, or both.

From this federal trespass statute, courts have inferred military power of apprehension of civilians trespassing on federal

installations. See United States v. Banks, 539 F.2d 14 (9th Cir. 1976), cert. denied, 429 U.S. 1024 (1976). For a complete

analysis of law enforcement authority over civilians, see Major J. Matthew Gilligan, Opening the Gate?: An Analysis of

Military Law Enforcement Authority over Civilian Lawbreakers On and Off the Federal Installation, 161 Mil. L. Rev. 1

(1999).

¹⁰⁹ U.S. Const. art. II, § 3. Memorandum from the Dep’t of Just. to the General Counsel, Dep’t of Army, subject: Auth to

use troops to protect fed. functions, including the safeguarding of foreign embassies in the U.S. (May 1970). See also

Authority to Use Troops to Prevent Interference With Federal Employees by Mayday Demonstrations and Consequent

Impairment of Government Functions, Office of Legal Counsel, U.S. Department of Justice, April 29, 1971.

¹¹⁰ Memorandum from the Dep’t of Just. to the General Counsel, Dep’t of Army, subject: Auth to use troops to protect fed.

functions, including the safeguarding of foreign embassies in the U.S. (May 1970).

¹¹¹ Memorandum from the Dep’t of Just. to the Acting General Counsel, Dep’t of Army, subject: Auth to use troops to

prevent interference with federal employees and consequent impairment of government functions. (April 1971)

¹¹² JP 3-28, supra note 8, at 28.

¹¹³ DoDD 3025.21, supra note 2, Encl. 4. The principal planning agents for DSCA are the combatant commanders, of

United States Northern Command and (USNORTHCOM), United States Indo-Pacific Command (USINDOPACOM), and

United States Special Operations Command (USSOCOM). Id.

¹¹⁴ Id.

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Governor or when the President determines that the authorities of the State are incapable of

maintaining public order.¹¹⁵ The restoration of law and order must be distinguished from the

preservation of law and order.¹¹⁶ CDO mission statements do not normally allow for commanders to

undertake preservation mission sets.¹¹⁷ Judge advocates should assist their commanders in ensuring

that they do not assume missions involving the routine maintenance of civil order unless absolutely

necessary and authorized by the appropriate authority.

2. Combatant Commanders’ Concept Plan (CONPLANS)

CONPLANs provide the basis for all preparation, deployment, employment, and redeployment of DoD

component forces, including NG forces called to active Federal service, for use in domestic civil

disturbance operations, in support of civil authorities as directed by the President.

During the employment of military forces, the Commander will maintain a liaison with the Senior

Civilian Representative of the Attorney General (SCRAG), State law enforcement representatives, and

municipal authorities. Normally, this liaison is through the Defense Coordinating Officer (DCO) and

remains until termination of the civil disturbance mission.

3. NG Bureau and State CONPLANS

The NGB has the responsibility to develop and maintain an All-Hazards Support Plan, which describes

the NG’s domestic All-Hazards response supporting Federal agencies, States, Territories and the

District of Columbia. Each State NG prepares a State All-Hazards CONPLAN, which incorporates

civil disturbance operations and law enforcement support. These CONPLANs provide the basis for

preparation, deployment, employment and redeployment of NG Forces.

J. Federal Military Forces Civil Disturbance Operation Planning Considerations

1. The Standing Rules for the Use of Force for U.S. Forces

For U.S. Armed Forces operating under Title 10, civil disturbance operations are conducted in

accordance with Enclosures L and N to Chairman, Joint Chiefs of Staff Instruction (CJCSI) 3121.01B,

Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces (SRUF).¹¹⁸

Guidance on how and when forces can use force in a CDO mission are detailed in the enclosures of the

policy. Although the policy is classified, Annex L is not in itself a classified document. Thus, it can

be shared with our mission partners. In addition to this policy, as part of operating in an inter-agency

environment in support of civil authorities, judge advocates must make themselves familiar with State

and local laws regarding the use of force. The NGs in each State have their own RUF, not to be

¹¹⁵ JP 3-28, supra note 8, at III-3,4.

¹¹⁶ DODI 3025.21, supra note 2, Encl. 4, para. 1.b. The preservation of law and order is the responsibility of State and local

governments and law enforcement authorities. Id. See also 10 U.S.C. §§ 251-254, 18 U.S.C. § 1385.

¹¹⁷ DoDI 3025.21, supra note 2, Encl. 4, para. 2.e. “DoD Components shall not take charge of any function of civil

government unless absolutely necessary under conditions of extreme emergency

Any commander who is directed, or

undertakes, to control such functions shall strictly limit DoD actions to emergency needs, and shall facilitate the

reestablishment of civil responsibility at the earliest time possible.” Id.

¹¹⁸ JP 3-28, supra note 8, App. C.

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confused with the SRUF. The RUF for each State is based on State law and approved by the State’s

Attorney General. Therefore, each State may have a different RUF. This is particularly important for

Federal forces if joint patrols or other missions are conducted. In such a case, judge advocates, both

active and reserve component, should review the RUF for the State NG and the SRUF for Title 10

forces to identify any differences in the permissible application of force. The differences should be

clearly explained to commanders, thereby enabling them to proceed in accordance with the law.

Additionally, if NG personnel from one State are operating in another State, the agreements

memorializing the support between the States should specify what rules for the use of force the out-of-

state NG will follow. In this situation, judge advocates should be prepared to train personnel on the

applicable rules of another State.

2. Constitutional Considerations

State and Federal law govern search, seizure, arrest, detention, and confinement occurring during a

CDO. The U.S. Attorney General is responsible for setting overall guidelines governing the conduct of

civil disturbance operators when the Federal military is involved. Judge advocates should familiarize

themselves with any policies and procedures set forth by the Department of Justice (DOJ). Service

members should be trained in advance on proper legal procedures for search, seizure, arrest, and

detention, and should be aware that actions not conforming to Constitutional standards could

jeopardize prosecution of criminal actors or subject the member to civil or criminal liability.

a. Detention and Confinement

Whenever possible, any arrest or apprehension should be made by the civil police force unless they are

not available or require assistance. If it is necessary for Federal military forces to make an

apprehension, they should do so under the appropriate legal authority, work in support of civil

authorities, and should, whenever possible, ensure that civilian authorities are present. Joint patrols

with members of the State’s NG and local law enforcement officers has proven to be most

beneficial.¹¹⁹

Unless otherwise authorized by law, Federal military forces should not operate detention facilities

when supporting CDOs.¹²⁰ Civil authorities have the responsibility to provide adequate detention

facilities for all subjects. If Federal military forces are committed to support local authorities with

arrests, commanders should coordinate with local authorities to ensure that adequate detention

facilities are available and to learn their locations and capacities. Federal military participation with

the arrests must be in accordance with Federal law and DoD policy.¹²¹

b. Searches

Unless otherwise authorized by law, Federal forces should not be involved in warrant-backed or

warrantless searched for evidence of a crime (i.e. searches of houses, crime scenes, etc.).¹²² The same

¹¹⁹ JP 3-28, supra note 8, at III-8.

¹²⁰ DODI 3025.21, supra note 2, Encl. 4, para. 2.3. (“DoD Components shall not take charge of any function of civil

government unless absolutely necessary under conditions of extreme emergency.”)

¹²¹ U.S. DEP’T OF DEFENSE, INSTR. 5525.13, LIMITATION OF AUTHORITY TO DEPUTIZE DOD UNIFORMED LAW

ENFORCEMENT PERSONNEL BY STATE AND LOCAL GOVERNMENTS para. 6 (28 Sept. 2007) (C2, 8 Sept. 2020).

¹²² Id. para. 6.2.

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holds true for a lawful stop and frisk conducted during patrols. Nonetheless, as Federal military

personnel support local law enforcement to restore order, the need to search civilians may arise. In

such instances, Federal military personnel should adhere to Federal law and the requirements set forth

by USNORTHCOM’s plan for civil disturbance operations.¹²³

3. Intelligence

See Chapter 9, Intelligence and Information Acquisition and Handling During Domestic Support

Operations, for information regarding the proper use of intelligence elements and collection of

information during domestic civil support.

4. Claims

Negligent or wrongful acts or omissions of military forces assisting law enforcement during civil

disturbances may be covered under the FTCA.¹²⁴ In order for claims under the FTCA to be

compensable, the damage or injury must be caused by acts or omissions of employees of the United

States. NG troops in Title 10 or Title 32, as well as active duty military members, are considered U.S.

employees for the purposes of the FTCA. NG personnel in Title 10 or Title 32 are involved in carrying

out a Federal mission and therefore will enjoy immunity from State criminal and tort law with respect

to actions taken in good faith that are necessary to the conduct of their mission.¹²⁵ NG forces activated

pursuant to a State activation statute (i.e., SAD), are not considered employees of the United States,

and potential claims arising out of the activities of these forces should be directed to State authorities.

The development of disaster and civil disturbance claims plans is the responsibility of the head of the

various Area Claims Offices (ACOs) across the United States.¹²⁶ The ACO in whose geographical

area a claims incident occurs is primarily responsible for investigating and processing the claim.¹²⁷

With the approval of Commander, United States Army Claims Service, the responsible ACO can

appoint a special Claims Processing Office to handle claims arising from civil disturbance

operations.¹²⁸ For a major CDO, senior judge advocates should consider requesting a claims team

from ACO.

Even though primary claims investigating responsibilities fall to the ACO, judge advocates deployed

as part of a civil disturbance task force can assist in investigations by ensuring that potential claims are

documented and available information concerning the claims is collected. Judge advocates can also

assist by collecting information concerning the status of NG troops operating within the area.

5. Medical Support

The primary mission of medical support personnel deployed with a Joint Civil Disturbance Task Force

is to treat military personnel requiring medical care. When possible, civilians in need of medical

treatment should be seen by the healthcare providers within the civilian healthcare system. Military

¹²³ ADP 3-28, supra note 57, para. 4-174.

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28 U.S.C. §§ 1346, 2671-2680 (2012 & Supp. IV 2017).

¹²⁵ In re Neagle, 135 U.S. 1 (1890).

¹²⁶ U.S. DEP’T OF ARMY, REG. 27-20, CLAIMS, para. 1-11.a(12) (8 Feb. 2008).

¹²⁷ Id. para. 2-1.d.

¹²⁸ Id. para. 1-12(4)(c).

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treatment facilities may be used to treat civilians only in cases of emergency when undue suffering or

loss of life is a possibility. Civilians admitted to military treatment facilities should be transferred to a

civilian hospital as soon as the emergency period ends.¹²⁹

6. Interference with Federal Forces

Federal law makes it a crime to interfere with law enforcement officers engaged in controlling civil

disorders.¹³⁰ Included in the definition of “law enforcement officers” are members of the NG, in both

State and Federal status, and members of the Federal Armed Forces.¹³¹

7. Loan and Lease of Military Equipment

There is no specific statutory authority to loan or lease equipment for use in civil disturbance

situations. Loans to Federal agencies are completed pursuant to the Economy Act and requires a loan

agreement.¹³² Equipment for non-Federal law enforcement agencies must be leased under the leasing

statute, 10 U.S.C. § 2667, which also requires a lease agreement that may be repaid in cash or in kind.

The applicable Army Regulation includes the requirement for a surety bond and the payment of a lease

fee, which in the case of the Army may be waived by the Assistant Secretary of the Army (Installation,

Logistics and Environment) (ASA(I, L&E)).¹³³

Approval authorities for the loan and lease of DoD materiel to Federal, State, and local law

enforcement authorities are based upon the type of equipment to be provided. Requests for the loan or

lease of personnel, arms, ammunition, tactical vehicles, vessels and aircraft, riot control agents, and

concertina wire for expected civil disturbances will be forwarded through HQDA ODCS, G-3

(DAMO-OD) through ASA (ALT) to the Secretary of Defense (SECDEF).¹³⁴ The loan or lease of

fire-fighting resources, protective equipment, body armor, clothing, searchlights and use of Army

facilities can be approved the installation commander, State AG, Commander, Military District of

Washington, the CG of OCONUS unified commands, or Headquarters Army Materiel Command

(HQAMC) by garrison, installation, or task force commanders.¹³⁵ See U.S. Army Reg. 700-131, Loan

¹²⁹ U.S. DEP’T OF ARMY, REG. 40-400, PATIENT ADMINISTRATION, para. 3-55 (8 July 2014). Persons treated under this

provision will be billed for the full cost of their care. Id.

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18 U.S.C. §§ 231-233 (2012 & Supp. IV 2017).

¹³¹ Id. § 232 which states:

The term “law enforcement officer” means any officer or employee of the United States, any State, any political

subdivision of a State, or the District of Columbia, while engaged in the enforcement or prosecution of any of the

criminal laws of the United States, a State, any political subdivision of a State, or the District of Columbia; and such

term shall specifically include members of the National Guard (as defined in section 101 of title 10), members of the

organized militia of any State, or territory of the United States, the Commonwealth of Puerto Rico, or the District of

Columbia not included within the National Guard (as defined in section 101 of title 10), and members of the Armed

Forces of the United States, while engaged in suppressing acts of violence or restoring law and order during a civil

disorder.

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31 U.S.C. § 1535 (2012 & Supp. IV 2017).

¹³³ U.S. DEP’T OF ARMY, REG. 700-131, LOAN AND LEASE OF ARMY MATERIEL, paras. 2-6.b, 2-9, 2-10, 5-1.a(4) (23 Aug.

2004) [hereinafter AR 700-131] (discussing loan/lease agreements, surety bonds, and lease fees).

¹³⁴ Id. at Table 2-2.

¹³⁵ Id. at Table 2-2. The senior logistics staff officer at USARC MSC headquarters is the approval authority for USAR

equipment. Id. at 2-6.b(3). NGR 500-5, supra note 30, at para. 5-5, governs the loan or lease of NG equipment.

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CHAPTER 6

DOD RESPONSE FOR CHEMICAL, BIOLOGICAL,

RADIOLOGICAL, AND NUCLEAR (CBRN)¹ INCIDENTS

KEY REFERENCES:

• Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288, 42 U.S.C. §

5121-5208 (2016).

• The Defense Against Weapons of Mass Destruction Act, 50 U.S.C. §§ 2301-2371.

• Executive Order (E.O.) 13527 - Establishing Federal Capability for the Timely Provision of

Medical Countermeasures Following a Biological Attack, December 30, 2009.

• National Response Framework, Fourth Edition, (Oct. 28, 2019).

• CJCSI 3125.01D - Defense Response to Chemical, Biological, Radiological, and Nuclear (CBRN)

Incidents in the Homeland, May 7, 2015.

• Department of Defense Directive (DoDD) 3025.18 - Defense Support of Civil Authorities (DSCA),

December 29, 2010, Incorporating Change 2, March 19, 2018.

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

Incorporating Change 1, August 31, 2018.

• Joint Pub 3-26 - Counterterrorism, October 24, 2014.

• Joint Pub 3-28 - Defense Support of Civil Authorities, October 29, 2018.

• Joint Pub 3-41 - Chemical, Biological, Radiological, and Nuclear Response, September 9, 2016.

A. Introduction

In the wake of 9/11 and Hurricane Katrina, the Department of Homeland Security (DHS) developed

the National Response Framework (NRF).² This document evolved from the National Response Plan

(NRP), which was originally mandated under Homeland Security Presidential Directive five (HSPD-

5), Management of Domestic Incidents. The intent of HSPD-5 was to develop a single, comprehensive

approach to domestic incident management³ built on the template of the National Incident

¹ This acronym used to include the term “high yield explosive” and was stated “CBRNE.” Current policies have shifted to

the CBRN term and eliminated “high yield explosives.” See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT

CHIEFS OF STAFF INSTRUCTION 3125.01D, DEFENSE RESPONSE TO CHEMICAL, BIOLOGICAL,

RADIOLOGICAL, AND NUCLEAR (CBRN) INCIDENTS IN THE HOMELAND (7 May 2015) [hereinafter CJCSI

3125.01D], para. 4.a(1), (noting that a high-yield explosive incident is not addressed in CJCSI 3025.01D because those

incidents do not generate similar initial or residual hazards. Responses to high yield explosive incidents without CBRN

elements will be provided in accordance with DoDD 3025.18, Defense Support of Civil Authorities, and DoDD 5111.13,

ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND GLOBAL SECURITY (ASD(HD&GS)) (23 Mar. 2018).

CJCSI 3125.01D Encl. A, para. 3.e, Encl. E, paras. c, p. Note, however, that some publications still discuss high explosives

(albeit separately from CBRN) because they may be tied to or part of the delivery for CBRN elements. See, e.g. JOINT

CHIEFS OF STAFF, JOINT PUB. 3-41, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR RESPONSE (9

Sept. 2016) [hereinafter JP 3-41].

² DEP’T OF HOMELAND SEC., NATIONAL RESPONSE FRAMEWORK (4th ed. 2019) [hereinafter NRF], available

at https://www.fema.gov/sites/default/files/2020-04/NRF_FINALApproved_2011028.pdf (last visited 8 Apr 2021).

³ The term “incident management” is designed to eliminate the prior distinction between crisis and consequence

management with respect to domestic incidents. HSPD-5 states that the objective of the United States government is to

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Management System (NIMS).⁴ The NRF provides national-level policy and operational direction for

all Federal agencies involved in the response to domestic disasters or emergencies. While the lowest

capable jurisdictional level are the first responders to incidents, the NRF and NIMS address the

required needs when the responding jurisdiction’s capabilities are overwhelmed by the magnitude of a

catastrophic incident.⁵

The NRF is designed to ensure timely and effective Federal support in response to State, tribal, and/or

local requests. The NRF is the product of DHS, but it applies to all Federal departments and agencies

that have jurisdiction over, or responsibility to support, any response or recovery effort. When Federal

resources are necessary, the Department of Defense may provide advice, assistance, and assets in

support of the Lead Federal Agency (LFA). The Department of Defense plays only a supporting role

(unless otherwise directed by the President)⁶ and are referred to as Defense Support to Civil

Authorities (DSCA).⁷

The NRF and NIMS provide broad direction for any type of disaster in what is called an all-hazards

approach, which allows for a “scaled response, delivery of specific resources and capabilities, and a

level of coordination appropriate to each incident.”⁸ Consequently, the framework applies equally to

natural disaster relief, the handling of an unintentional or negligent industrial accident, or the Federal

Government’s response to a terrorist’s domestic employment of a chemical, biological, radiological, or

ensure that all levels of government across the nation have the capability to work efficiently together using a national

approach to domestic incident management, and in these efforts, the United States government treats crisis management and

consequence management as a single integrated function. See DEP’T OF HOMELAND SEC., PRESIDENTIAL DIR. 5,

MANAGEMENT OF DOMESTIC INCIDENTS (Feb. 28, 2003) [hereinafter HSPD-5], available at

https://www.dhs.gov/sites/default/files/publications/Homeland%20Security%20Presidential%20Directive%205.pdf. Judge

advocates should be aware the terms crisis and consequence management may still be found in policies addressing incident

management. For example, JOINT PUB 3-28 addresses CBRN response in terms of consequence management. See JOINT

CHIEFS OF STAFF, JOINT PUB. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES II-12 (29 Oct. 2018)

[hereinafter JOINT PUB 3-28].

⁴ FED. EMERGENCY MGMT. AGENCY, NATIONAL INCIDENT MANAGEMENT SYSTEM (3d ed. Oct 2017) [hereinafter NIMS],

https://www.fema.gov/media-library/assets/documents/148019 (last visited April 20, 2021). The National Incident

Management System (NIMS) is a doctrinal framework for incident management designed to provide consistency at all

jurisdictional levels. NIMS includes a core set of concepts, principles, terminology, and technologies covering the incident

command system; multi-agency coordination systems; unified command; training; identification and management of

resources (including systems for classifying types of resources); qualifications and certification; and the collection,

tracking, and reporting of incident information and incident resources. Chapter 2, National Framework for Incident

Management, contains more discussion on NIMS.

⁵ National Incident Management doctrine and policy has expanded significantly since the publication of the first NRF. The

NRF is now part of the National Preparedness System, which includes four other Frameworks designed to achieve the

National Preparedness Goal. Chapter 2, National Framework for Incident Management, contains an extensive discussion of

this new model.

⁶ JP 3-28, supra note 3, at I-6.

⁷ DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA) (29 Dec. 2010) (C2, 19 Mar. 2018)

[hereinafter DODD 3025.18] defines “DSCA” as:

Support provided by U.S. Federal military forces, DoD civilians, DoD contract personnel, DoD Component assets, and

National Guard forces (when the Secretary of Defense, in coordination with the Governors of the affected States, elects

and requests to use those forces in title 32, U.S.C. status) in response to requests for assistance from civil authorities for

domestic emergencies, law enforcement support, and other domestic activities, or from qualifying entities for special

events. (Id. At 19).

⁸ See NRF, supra note 2, at ii (noting the NRF describes specific authorities and best practices for managing incidents that

range from the serious but purely local to large scale terrorist attacks or catastrophic natural disasters).

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nuclear weapon of mass destruction (WMD).⁹ Although the various levels of government have

experience in responding to natural disasters, CBRN events pose some of the greatest challenges

facing the United States today¹⁰ and underscore the importance of maintaining a DoD force that is

ready and able to respond to these specialized threats.

B. CBRN Overview and Authorities

A CBRN incident is any occurrence resulting from the use of CBRN weapons or devices, or the release

of CBRN hazards, to include toxic industrial materials from any source.¹¹ Any action taken to address

the consequences of any inadvertent or deliberate release of a chemical, biological, radiological, or

nuclear agent constitutes a CBRN Consequence Management (CM) operation.¹² As a general

proposition, a catastrophic CBRN event would quickly exceed the capabilities of local, State, and tribal

governments; consequently, CBRN CM is normally managed at the Federal level, with DoD in a

supporting role.¹³ Although an LFA leads and coordinates the overall Federal response to an

emergency, supporting DoD entities remain under the command and control of the supported

Combatant Commander (NORTHCOM or INDOPACOM).¹⁴ Similarly, State governors, through their

adjutants general, control NG forces when performing duty in a state status or in accordance with Title

⁹ It is important to note that not all CBRN incidents may be the result of a WMD. A domestic accident on the scale of the

radiation release in Chernobyl, Ukraine; Fukushima, Japan; or the pesticide release in Bhopal, India in the United States

would most likely result in DoD-assisted CBRN consequence management operations.

¹⁰ The Homeland Security Council has developed fifteen scenarios depicting “a diverse set of high-consequence threat

scenarios of both potential terrorist attacks and natural disasters.” Two of the scenarios represent natural disasters, major

earthquake and major hurricane; a third highlights economic and social complications resulting from a cyber-attack; and the

remaining 12 scenarios focus on chemical, biological, radiological, or nuclear (CBRN) incidents. National Planning

Scenarios, , https://www.hsdl.org/?abstract&did=683091 (last visited June 15, 2020).

¹¹ JP 3-41, supra note 1, at vii. An exception to this general classification is the Government’s response to incidents

involving U.S. nuclear weapons within DoD custody or fissionable materials within Department of Energy custody. See

generally FED. EMERGENCY MGMT. AGENCY, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS

RESPONSE ANNEX (June 2016), https://www.fema.gov/media-library-data/1470149472600-

da7148fddd4ed137534486036abba0e8/ESF_10_Oil_and_Hazardous_Materials_20160705_508.pdf (last visited Jun 15,

2020); DEP’T OF DEF., MANUAL 3150.08, NUCLEAR WEAPON ACCIDENT RESPONSE PROCEDURES (NARP) (22 Aug 2013)

(C1, 31 Aug 2018).

¹² CBRN response includes having plans, policies, procedures, training, and equipment necessary to effectively respond to

CBRN incidents. CBRN response provides the operational framework for authorized DoD measures in preparation for

anticipated CBRN incidents to mitigate the loss of life and property and to assist with the response and short-term recovery

that may be required. JOINT PUB 3-41, supra note 1, at viii.

¹³ For example, 10 U.S.C. § 283 (2018) authorizes the Attorney General to request DoD support when an emergency

situation involving a biological or chemical weapon of mass destruction exists. Additionally, as an exception to the Posse

Comitatus Act, 18 U.S.C. § 831(e), (f) (2018) authorizes the Attorney General—during an emergency situation—to request

DoD support in enforcing laws against the unlawful dispersal of nuclear material or nuclear byproducts.

¹⁴ JP 3-41, supra note 1, at I-5. This provision specifies that active duty forces remain under the command and control of

CDR, USNORTHCOM. Id. at I-5. In DSCA operations, CDRUSNORTHCOM oversees operations in CONUS, Alaska,

Puerto Rico, and the U.S. Virgin Islands, while CDRUSINDOPACOM oversees operations in Hawaii, Guam, American

Samoa, and the Northern Mariana Islands. JP 3-28, supra note 3, at II-14.

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32 of the United States Code.¹⁵ SECDEF and a state governor may also agree on the appointment of a

dual-status commander.¹⁶

A request for DoD capabilities from State Governors or other Federal agencies is called a request for

assistance (RFA), which are normally written and routed through a formal RFA process. The

processing of an RFA varies depending upon the size and urgency of the incident, the level of Federal

involvement, and the originator of the request. For small scale CBRN incidents, and during the initial

stages of larger incidents, a State’s Emergency Operations Center (EOC) may forward requests to the

Federal Emergency Management Agency (FEMA) region’s Defense Coordinating Officer (DCO),

who, in turn, forwards the RFA to the Assistant Secretary of Defense for Homeland Defense and

Global Security (ASD(HD&GS)).¹⁷ If the incident exceeds the capabilities of the State and local

responders, and the President has issued an emergency or disaster declaration at the request of the

Governor and advice of the FEMA Administrator, the LFA will establish a Joint Field Office (JFO),

and a Federal Coordinating Officer (FCO) will be designated.¹⁸

Following the establishment of the JFO, the FCO will forward RFAs from civil authorities to the

Office of the Secretary of Defense, Executive Secretariat. SecDef-approved RFAs are assigned to the

appropriate Combatant Commander (CCDR). If a DCO is on-site (normally at the JFO), RFAs are

validated through the DCO and forwarded to the designated DoD entities for approval and sourcing.

Once SecDef approves a request for DoD assistance, a supported CCDR is designated. The Chairman

of the Joint Chiefs of Staff (CJCS) publishes SecDef-approved execute orders (EXORDs) to delineate

support relationships, available forces, end state, purpose, and SecDef-approved scope of action.¹⁹ The

CCDR will likely order the Commander, Joint Task Force-Civil Support (JTF-CS), to conduct CBRN

response operations (see section D of this chapter).²⁰

Every RFA must undergo a legal review. DoD approval authorities shall evaluate all requests by civil

authorities for DoD military assistance against the “CARRLL” factors, as discussed in other chapters,

including Chapter 1:²¹

• Cost (who pays, impact on DoD budget);

• Appropriateness (whether the requested mission is in the DoD’s interest);

• Risk (safety of DoD Armed Forces);

¹⁵ JOINT PUB 3-41, supra note 1, at x, I-5, II-3.

¹⁶ Id. At I-5.

¹⁷ The ASD(HD/ASA) is the DoD Executive Agent responsible for approving and monitoring DoD assistance for Federal,

State, and local officials in responding to domestic threats or events involving nuclear, chemical, and biological weapons.

See 50 U.S.C. § 2313 (2012 & Supp. IV 2017); https://policy.defense.gov/OUSDP-Offices/ASD-for-Homeland-Defense-

Global-Security/ (last visited 15 Jun. 2020).

¹⁸ JP 3-41, supra note 1, at II-4, II-6.

¹⁹ JOINT PUB 3-28, supra note 3, at II-23.

²⁰ See https://www.jtfcs.northcom.mil/About/Factsheets/Article/1199952/joint-task-force-civil-support-fact-sheet/ (last

visited 15 Jun. 2020).

²¹ DODD 3025.18, supra note 7, at. 4.

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• Readiness (impact on the DoD’s ability to perform its primary mission);

• Legality (compliance with laws); and

• Lethality (potential use of lethal force by or against DoD Armed Forces).

Military missions require legal authority. The DoD’s CBRN response operations are generally

executed under the provisions of The Robert T. Stafford Disaster Relief and Emergency Assistance

Act (Stafford Act).²² The Stafford Act is the primary authority for the Federal Government to assist

local and State governments with emergencies and disasters.²³

Occasionally, the legal authority to use DoD forces for CBRN incidents arises from other sources.

Three examples are:

• DoDD 3025.18 delegates Immediate Response Authority (IRA) to heads of DoD Components,

Federal military commanders, and/or DoD civilian officials (collectively “DoD officials”). This

policy also recognizes the authority of State officials to call on the State’s NG operating in their

State Active Duty (SAD) status under State command, control, and funding. In response to a

request for assistance from a civil authority under imminently serious conditions, and if time does

not permit approval from higher authority, DoD officials may provide assistance to authorities to

save lives, prevent human suffering, or mitigate great property damage. This is subject to any

supplemental direction provided by higher headquarters. It is important to note that this authority

is extremely fact-specific and expires immediately when the facts no longer meet the threshold.²⁴

²² The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121-5208 (2016) [hereinafter

Stafford Act].

²³ The Stafford Act is outlined in Chapter 2. The Secretary of Homeland Security is responsible for overall coordination of

Federal Stafford and non-Stafford incident management activities. Requests for DoD assistance may occur under Stafford

Act or non-Stafford Act conditions. In general, a Stafford Act incident is one in which State and local authorities declare an

emergency or disaster but require and consequently request Federal assistance to adequately manage the incident.

42 U.S.C. § 5122 para. 1 (2018) defines an emergency as:

[A]ny occasion or instance for which, in the determination of the President, Federal assistance is

needed to supplement State and local efforts and capabilities to save lives and to protect property and

public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United

States.

42 U.S.C. § 5122 para. 2 (2018) defines a major disaster as:

[A]ny natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water,

tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or,

regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the

determination of the President causes damage of sufficient severity and magnitude to warrant major

disaster assistance under this chapter to supplement the efforts and available resources of States, local

governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering

caused thereby.

A CBRN incident clearly falls into the definition of emergency. Technically, a fire, flood, or explosion would have to

occur to trigger a major disaster declaration for a CBRN incident. Id.

²⁴ DODD 3025.18, supra note Error! Bookmark not defined., para. (4)(i). Within 72 hours of receipt of the request for

assistance, a review of the need to continue DoD involvement in the response shall occur. These activities performed by the

DoD during immediate response efforts may later transition into a Mission Assignment (MA) from the Federal Emergency

Management Agency (FEMA) under the Stafford Act.

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• DoDD 3025.18 also provides Federal military commanders with emergency authority to engage

temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.²⁵

See Military Support to Civilian Law Enforcement, chapter 4 of this Handbook, for an in-depth

discussion of this authority.

• Executive Order 13527, Establishing Federal Capability for the Timely Provision of Medical

Countermeasures Following a Biological Attack, provides authority for designated Federal

agencies (including DoD) to provide support to operations that leverage the U.S. Postal Service to

distribute “medical countermeasures” to the general population.²⁶

C. DoD Entities Responsible for CBRN Response Operations

The National Defense Authorization Act of Fiscal Year 2003²⁷ established what later became the

Office of The Assistant Secretary of Defense for Homeland Defense and Global Security

(ASD(HD/GS)). Among other duties and responsibilities, the ASD(HD/GS) is DoD’s Executive

Agent responsible for approving and monitoring DoD assistance to Federal, State, and local officials

responding to domestic threats or events involving nuclear, chemical, and biological weapons. As a

result, this office oversees DoD’s DSCA activities, including CBRN response.²⁸

The Joint Director of Military Support (JDOMS) is an action agency subordinate to ASD(HD/GS) that

is located at the Pentagon. For DSCA missions, JDOMS plans, coordinates, and monitors DoD

support within the U.S. and its territories in response to requests from Federal agencies. Accordingly,

JDOMs produces military orders for DSCA, including consequence management operations.²⁹ Many

regularly occurring activities, called National Special Security Events, require DoD resources that can

be planned in advance (e.g., Presidential inaugurations, and large sporting events). For these, JDOMS

plans, coordinates, and facilitates DoD support to Federal, State, and local agencies and organizers. To

set expectations and aid in planning for all DSCA responses, CJCS publishes a DSCA EXORD and a

Domestic CBRN Response EXORD to allow expedited force employment in support of domestic

incidents.³⁰

In 2002, the Department of Defense established USNORTHCOM headquartered in Colorado Springs,

Colorado, with the specific missions of defending our homeland, conducting security cooperation

activities with allies and partners in North America, and supporting civil authorities. Its “civil support”

²⁵ Id. para. (4)(k).

²⁶ Exec. Order No. 13,257, 75 Fed. Reg. 737 (Jan. 6, 2010).

²⁷ The Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, § 902, 116 Stat. 2458

(2002).

²⁸ DEP’T OF DEF., DIR. 5111.13, ASSISTANT SECRETARY OF DEFENSE FOR HOMELAND DEFENSE AND GLOBAL SECURITY

(ASD(HD&GS)) (23 Mar. 2018).

²⁹ CHAIRMAN, JOINT CHIEFS OF STAFF, INSTR. 5711.02C, DELEGATION APPROVAL AUTHORITY encl. A, para. 5(d) (30 Nov.

2012).

³⁰ JOINT PUB 3-28, supra note 3, at II-14. The current DSCA EXORD, as of the publication of this handbook, is dated 5

June 2018. The current CBRN EXORD is dated 24 March 2016. According to DOD MANUAL 3025.01, VOL. 1, DEFENSE

SUPPORT OF CIVIL AUTHORITIES: OVERVIEW (11 Aug. 2016) (Ch.1 13 Apr. 2017) [hereinafter DODM 3025.01], the current

CBRN EXORD is dated 24 March 2016.

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mission includes domestic disaster relief operations that occur during fires, hurricanes, floods, and

earthquakes. Support also includes counter-drug operations and managing the consequences of a

terrorist event employing a weapon of mass destruction.”³¹ USNORTHCOM is designated as the

command to conduct CBRN response operations in support of the LFA in the 48 contiguous States, the

District of Columbia, Alaska, and U.S. territorial waters inclusive of the U.S. Virgin Islands, British

Virgin Islands, Puerto Rico, the Bahamas, and Turks and Caicos Islands.³²

In 2008, USNORTHCOM designated U.S. Army North (ARNORTH) as the Joint Force Land

Component Commander (JFLCC) for domestic CBRN response operations.³³ ARNORTH, located at

Fort Sam Houston, Texas, is responsible for developing and unifying the military response capability

for CBRN incidents.³⁴

D. Specialized DoD CBRN Responders

1. Joint Task Force Civil Support³⁵

Joint Task Force Civil Support (JTF-CS) will be involved in domestic emergencies³⁶ and other civil

support activities.³⁷ Although JTF-CS is nominally linked to broader mission areas, the organization’s

focus is far narrower. JTF-CS’s specific mission is to conduct CBRN response operations and other

directed mission assignments in support of the LFA in order to save lives and mitigate human

suffering.³⁸

³¹ About USNORTHCOM, U.S. N. COMMAND, http://www.northcom.mil/AboutUSNORTHCOM.aspx (last visited June 25,

2020).

³² COMMANDER, USNORTHCOM, CONPLAN 3500-21, DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA),

page 4 (02 March 2021).

³³ JOINT PUB. 3-41, supra note 1, at II-5.

³⁴ About USNORTHCOM, supra note 31.

³⁵ See infra, Chapter 8, Military Support Operations, for more examples of non-emergency or law enforcement support that

JTF-CS may provide.

³⁶ When situations are beyond the capability of the State, the Governor requests Federal assistance through the President.

DoD support or assistance to restore public services and civil order may include augmentation of local first responders and

equipment. It may include law enforcement support, continuity of operations/continuity of government measures to restore

essential government services, protect public health and safety, and provide emergency relief to affected governments,

businesses, and individuals. Responses occur under the primary jurisdiction of the affected State and local government, and

the Federal Government provides assistance when required. See JOINT PUB. 3-28, supra note 3, at xi.

³⁷ These other activities include support to special events designated by the DHS Special Events Working Group

(SEWG).

“National special security event” (NSSE) is a designation given to certain special events that, by virtue of their political,

economic, social, or religious significance, may be the target of terrorism or other criminal activity. The Secretary of

Homeland Security, after consultation with the Homeland Security Council, shall be responsible for designating special

events as NSSEs. Usually, other military operations will have priority over these missions, unless directed otherwise by the

SecDef. The SEWG will assign these events a priority and they will be monitored by the Combatant Command responsible for

the area in which they are conducted. The Department of Defense assigns these NSSEs a Special Event Assessment Rating

(SEAR). U.S. DEP’T OF HOMELAND SECURITY, FACT SHEET, available at

https://www.dhs.gov/sites/default/files/publications/19_0905_ops_sear-fact-sheet.pdf (last visited June 16. 2020).

³⁸ COMMANDER, JTF-CS, OPLAN 3500-19, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR (CBRN) RESPONSE,

BASE PLAN, page 12 (28 March 2019).

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JTF-CS is a standing joint task force headquartered at Fort Eustis, Virginia. An Army or Air Force NG

Major General on Federal active duty status commands JTF-CS. The staff consists of active and

reserve component military from all five Services, Federal civil service personnel, and civilian

contractors. Collectively, the command possesses expertise in a wide range of functional areas

including operations, logistics, intelligence, planning, communications, and medical services. Created

by the Unified Command Plan for 1999,³⁹ JTF-CS provides both an operational capability and an

oversight mechanism that can anticipate support requirements for responding to a catastrophic CBRN

incident, undertake detailed analysis, conduct exercises, and ultimately respond in support of civil

authorities. USNORTHCOM has command authority over JTF-CS, and ARNORTH has OPCON over

the unit. It is a deployable command and control headquarters for DoD units and personnel executing

CBRN response operations, and it is a critical capability of response plans for essential DoD support to

the LFA. When directed, JTF-CS will deploy to the incident site and establish command and control

of designated DoD forces, providing defense support of civil authorities to save lives and prevent

further injury. JTF-CS may deploy in support of a USINDOPACOM incident as well. The NRF

provides the coordinating framework under which JTF-CS performs its mission.⁴⁰

On October 1, 2008, JTF-CS received the authority to exercise operational control over various units

assigned to the CBRNE Consequence Management Response Force (CCMRF) whenever those units

deploy for a CBRN incident or exercise. The CCMRF transitioned to the Defense CBRN Response

Force (DCRF) in 2011, and now has approximately 5,200 personnel in installations across the United

States.⁴¹ DCRF units support the LFA in the event of a CBRN incident and operate primarily under

the Robert T. Stafford Disaster Relief, Emergency Assistance Act (42 U.S.C. §§ 5121-5207), and the

Economy Act (31 U.S.C. § 1535) when deployed to assist.⁴²

JTF-CS employs a three-fold process that enables the command to gain and maintain situational

awareness prior to an execution order. First, JTF-CS staffs an around-the-clock operations center

tasked with gaining and maintaining situational awareness. Second, the command has liaison officers

who routinely interact with interagency partners to ensure familiarity with their operations, facilitate

interagency communications and operations, and gain first-hand understanding of their emergency

response plans. Third, when an incident actually occurs, but prior to the receipt of an execution order,

JTF-CS is prepared to send an assessment element to the incident area, referred to as the Early Entry

Command Post (EECP). The EECP’s purpose is to establish the “ground truth” concerning what

³⁹ Even though the Unified Command Plan for 1999 doesn’t specifically mention JTF-CS, the SecDef memo

accompanying the plan when forwarded to the President notified the President that the SecDef intended to establish a

standing Joint Task Force for Civil Support. The unit would report to the SecDef through the U.S. Joint Forces Command

and the Chairman of the Joint Chiefs of Staff. Its principle focus would be to plan for and integrate DoD’s support to the

lead Federal agency with the responsibility to manage the consequences of a domestic weapons of mass destruction (WMD)

event. The SecDef felt that, due to the catastrophic nature of a WMD terrorist event that would quickly overwhelm State

and local authorities, the structure that existed for providing DoD support needed to be expanded. See JOINT TASK FORCE

FOR CIVIL SUPPORT, ABOUT, https://www.jtfcs.northcom.mil/About/ (last visited June 16, 2020) for information about the

JTF-CS current mission.

⁴⁰ JOINT PUB. 3-41, supra note 1, at II-2-II-5.

⁴¹ Kelley Vlahos, Public Safety Today: CBRN Protection— From CCMRF to DCRF: Changing Letters for Better Results,

HOMELAND SEC. TODAY (Jul. 3, 2012) https://www.hstoday.us/channels/federal-state-local/public-safety-today-cbrn-

protection-from-ccmrf-to-dcrf-changing-letters-for-better-results/ (last visited October 27, 2020).

⁴² COMMANDER, USNORTHCOM, CONPLAN 3500-14, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR

(CBRN) RESPONSE, PLAN SUMMARY (17 July 2014).

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emergency assets and capabilities are either at-hand or available to emergency managers through

intrastate or interstate compacts. The EECP provides this information to the Commander, and higher

headquarters, to assist their decision-making. Additionally, the information enables JTF-CS planners

to perform predictive analysis regarding the types of missions that the LFA may ask the Department of

Defense to perform. These extensive planning efforts enable DoD to organize a timely flow of

appropriate assets to the incident area upon request.

Upon receipt of an execution order, JTF-CS has the ability to reconfigure into two command posts to

ensure continuity of operations at home station, while deploying forward to the incident site. The

magnitude of the CBRN incident determines the size of the deploying command post.

Additionally, JTF-CS routinely provides support to other commands during real-world events with

Joint Planning Augmentation Cells (JPACs). JPACs consist of 5 to 15 individuals with extensive

consequence management planning skills that can help other staffs plan for and respond to CBRN or

other incidents in their immediate area of responsibility. The organization of JPACs are tailored to fit

the type of support requested by the supported organization.

NG Weapons of Mass Destruction Civil Support Teams (WMD-CSTs)

Pursuant to 10 U.S.C. § 12310(c), and additional authorizations by Congress and through SecDef

validation, the Department of Defense is authorized a total of 57 WMD-CSTs.⁴³ Recognizing that the

NG is “forward-deployed for civil support,”⁴⁴ the Secretary of Defense determined that the WMD-

CSTs would be most effective if established in the NG. Consequently, each WMD-CST is composed

of 22 full-time NG Soldiers and Airmen and contains six elements: command, operations,

communications, administrative/logistics, medical, and survey.⁴⁵

The teams are designed to deploy rapidly to assist local first responders in the event of a CBRN

incident.⁴⁶ Specifically, the mission of each State NG WMD-CSTs is to deploy to an area of

operations and:

• Assess a suspected event in support of a local incident commander;

• Advise the local incident commander and civilian responders; and

⁴³ The number of authorized WMD-CSTs is the culmination of legislative actions during the last decade. Most recently, the

National Defense Authorization Act for Fiscal Year 2013, Pub. L. 112-239, 126 Stat. 1632 (2012) amended 10 U.S.C. §

12310 leading to the establishment of two additional WMD-CSTs for a current total of 57. . See also NATIONAL GUARD,

WEAPONS OF MASS DESTRUCTION (WMD) CIVIL SUPPORT TEAMS (CST) (Dec. 2017)

https://www.nationalguard.mil/Portals/31/Resources/Fact%20Sheets/Weapons%20of%20Mass%20Destruction%20Civil%

20Support%20Team%20Fact%20Sheet%20(Dec.%202017).pdf (last visited 16 Jun. 2020). For a general overview of

WMD-CSTs, see 2009 Army Posture Statement: National Guard Weapons of Mass Destruction Civil Support Teams

(WMD-CSTs), U.S. DEP’T OF ARMY, http://www.army.mil/aps/09/information_papers/national_guard_weapons.html (last

visited June 25, 2020).

⁴⁴ U.S. SEC’Y OF DEF., REPORT TO CONGRESS PURSUANT TO FY00 NATIONAL DEFENSE AUTHORIZATION ACT § 1036, 2

(Feb 24, 2000).

⁴⁵ See Posture Statement, supra note 43.

⁴⁶ Id.

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• Facilitate requests for assistance to expedite arrival of additional State and Federal

assets to help save lives, prevent human suffering, and mitigate great property damage.

WMD-CSTs are specially equipped and trained. Special equipment includes the Mobile Analytical

Laboratory System (MALS)⁴⁷ for nuclear, biological, and chemical (NBC) detection, and the Unified

Command Suite (UCS) vehicle for communications.⁴⁸

WMD-CST capabilities are specifically designed to complement civilian responders.⁴⁹ Community

and State emergency management plans may directly incorporate WMD-CST capabilities.

WMD-CSTs operate under the command and control of the State Governor and the Adjutant General.

Individual team members serve in a full-time, Title 32 NG status.⁵⁰ If the teams are called to Federal

active duty, they will normally be attached to JTF-CS.⁵¹

In addition, WMD-CSTs assigned to one State are authorized to operate in another State pursuant to:

• State-to-State Emergency Management Assistance Compacts (EMACs);

• State-to-State Memoranda of Agreement; or,

• Activation under Title 10.⁵²

NG CBRN Enhanced Response Force Package (CERFP)

Each CERFP is a response capability “comprised of five operational elements staffed by personnel

from already established NG units. Elements include: search and extraction, mass decontamination,

medical, fatalities recovery, and command and control.”⁵³ A CERFP can be utilized in SAD, Title 32,

or Title 10 status. There are currently 17 CERFPs in the United States. The CERFP’s mission is to

respond to CBRN incidents and assist local, State, and Federal agencies in conducting consequence

management by providing capabilities to effect patient and mass casualty decontamination, emergency

⁴⁷ Id. at 3. MALS is based on system used by the Marine Corps’ Chemical Biological Incident Response Forces with

enhanced biological detection capability.

⁴⁸ Id. The UCS, built by the Navy, provides communication interface across the ICS frequencies, military command and

control elements, and technical support assets.

⁴⁹ Id. at 4.

⁵⁰ Id. at 5; 10 U.S.C. § 12310(c) (2018).

⁵¹ Supra note 40, at 5.

⁵² Id. at 6. See Chapter 3 of this Handbook for a detailed discussion of EMACs. A recent example of this was the

deployment of the 24th CST from Fort Hamilton, New York to Boston, Massachusetts in support of post-Boston Marathon

bombing operations. See Paula Katinas, Fort Hamilton Anti-Terror Unit Sent to Boston Bombing Site, BROOKLYN DAILY

EAGLE (July 22, 2013), http://www.brooklyneagle.com/articles/fort-hamilton-anti-terror-unit-sent-boston-bombing-site-

2013-04-17-163000 (last visited 16 Jun 2020).

⁵³ NATIONAL GUARD, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR AND HIGH-YIELD EXPLOSIVE ENHANCED

RESPONSE FORCE PACKAGE (CBRNE) (Dec. 2017),

https://www.nationalguard.mil/Portals/31/Resources/Fact%20Sheets/CBRNE%20Fact%20Sheet%20(Dec.%202017).pdf

(last visited 16 Jun. 2020).

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medical services, and casualty search and extraction. CERFP teams function as either follow-on or

pre-positioned forces and work closely with WMD-CSTs.⁵⁴

NG Homeland Response Force (HRF)

DoD, based on recommendations from the Quadrennial Defense Review (QDR), directed the NG to

create 10 Homeland Response Forces (HRFs): two in FY11 and eight in FY12. Each HRF is

essentially a CERFP with security and a regional command and control element. They are composed

of approximately 566 personnel and bring capabilities including search and extraction,

decontamination, emergency medical service, security, and command and control. There are 10 HRFs

(one per FEMA region).⁵⁵

USCG National Strike Force (NSF) Coordination Center and Strike Teams

The Coast Guard’s NSF deploys specialized capabilities to support lead agency, incident commander,

and Federal on-scene coordinator preparation and response to CBRN incidents, hazardous substance

releases, oil discharges, and other emergencies. NSF assets include the NSF Coordination Center in

Elizabeth City, North Carolina, and three strike teams: the Atlantic Strike Team in Joint Base

McGuire-Dix- Lakehurst, New Jersey; the Gulf Strike Team in Mobile, Alabama; and the Pacific

Strike Team in Novato, California. NSF equipment includes CBRN detection; air, water, and soil

sampling; Level A, B, and C personnel protection; self-decontamination equipment; hazardous

material packaging; mobile command posts; and other field operational equipment. NSF equipment is

pre-packed for immediate deployment by truck or aircraft. Additionally, as elements of the Coast

Guard, NSF units have the organic authority to respond domestically to many types of hazardous

materials (chemical) incidents under the National Contingency Plan, either as lead responders in the

coastal zone or as an assisting agency to the Environmental Protection Agency (EPA) in the inland

zone.⁵⁶ The NSF may also deploy detachments to support overseas military environmental response

operations.⁵⁷

E. Special Legal Considerations During CBRN Response Operations

The parameters under which DoD operates domestically vary greatly from those involved in traditional

military activities. DoD domestic CBRN response activities raise legal issues not found in typical non-

civil support operations. Depending on the circumstances and location of the incident, the scope and

complexity of potential legal issues will greatly vary. Below are four common legal issues that would

likely arise in the context of any CBRN response operation. As operations involving these areas are

largely driven by policy decisions at the SecDef level or higher—and are additionally vetted through

⁵⁴ Id.

⁵⁵ Homeland Response Force (HRF), NAT’L GUARD (Dec. 2017),

https://www.nationalguard.mil/Portals/31/Resources/Fact%20Sheets/Homeland%20Response%20Force%20Fact%20Sheet

%20(Dec.%202017).pdf (last visited 16 Jun 2020).

⁵⁶ See Chapter 2, National Framework for Incident Management, for more background on the National Contingency Plan.

See also U.S. COAST GUARD, NATIONAL STRIKE TEAM, HOMEPAGE, https://www.dco.uscg.mil/Our-Organization/National-

Strike-Force/ (last visited 16 Jun. 2020).

⁵⁷ See JOINT PUB 3-41, supra note 1, at II-11.

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the normal mission assignment process— judge advocates should receive primary guidance concerning

these issues through appropriate mission OPORDs, EXORDs, FRAGOs, or relevant service-specific

field guidance. Judge advocates should, however, familiarize themselves beforehand with issues they

may encounter in these areas, as well as primary Federal and State authorities discussed below.

1. Quarantine/Isolation

Quarantine⁵⁸ and isolation⁵⁹ enforcement issues may arise most typically in pandemic scenarios. State

and local health authorities are primarily responsible for decisions to impose quarantine or isolation,

and the power to enforce these is generally considered to be part of a jurisdiction’s police powers.⁶⁰

Federal power to impose quarantine and isolation measures arises with attempts to halt or impede the

“introduction, transmission, or spread of communicable diseases from foreign countries into the States

or possessions, or from one State or possession into any other State or possession.”⁶¹

Regardless of whether the quarantine and isolation measures are imposed at the Federal, State, or local

level, DoD enforcement actions may be subject to the Posse Comitatus Act (PCA),⁶² absent an

alternative statutory or constitutional authority. A potential exception to PCA restrictions is 42 U.S.C.

§ 97 (involving State quarantine laws), which is listed in DoDI 3025.21 as one of the specific laws that

allows direct DoD participation in law enforcement, subject to applicable limitations.⁶³ It is also

possible that a quarantine or isolation actions could lead to conditions necessitating a Presidential

invocation of the Insurrection Act.⁶⁴ Typically, however, any DoD support provided to quarantine and

isolation support will be limited to logistical, communications, medical, and other support commonly

envisioned by the Stafford Act. Measures provided by DoD may or may not amount to direct

participation in law enforcement activity, and, therefore, a strict analysis of PCA applicability should

occur in all cases.⁶⁵

“Quarantine” is defined as the “[s]eparation of individuals who have been exposed to an infection but are not yet ill from

others who have not been exposed to the transmissible infection.” HOMELAND SECURITY COUNCIL, NATIONAL STRATEGY

FOR PANDEMIC INFLUENZA: IMPLEMENTATION PLAN 209 (May 2006).

“Isolation” is defined as the “[s]eparation of infected individuals from those that are not infected.” Id. at 207.

⁶⁰ Jared P. Cole, Federal and State Quarantine and Isolation Authority 2, U.S. Congressional Research Service, RL33201,

(Oct. 9, 2014).

42 U.S.C. § 264(a) (2018). Additionally, in some situations, the Federal government may intervene if it deems State and

local control measures to be inadequate. 42 C.F.R. § 70.2 (2017).

18 U.S.C. § 1385 (2018)

42 U.S.C. § 97 (2018) specifically states “The quarantines and other restraints established by the health laws of any

State, respecting any vessels arriving in, or bound to, any port or district thereof, shall be duly observed by the officers of

the customs revenue of the United States, by the masters and crews of the several Coast Guard vessels, and by the military

officers commanding in any fort or station upon the seacoast; and all such officers of the United States shall faithfully aid in

the execution of such quarantines and health laws, according to their respective powers and within their respective

precincts, and as they shall be directed, from time to time, by the Secretary of Health and Human Services.” See also U.S.

DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES Encl. 3, para. 1.b.5(i)

(27 Feb. 2013), (Ch. 1, 8 Feb. 2019) [hereinafter DoDI 3025.21].

10 U.S.C. §§ 251-255

⁶⁵ Chapter 4, Military Support to Civilian Law Enforcement, has an extensive discussion on how to ensure compliance with

the PCA.

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2. Environmental Compliance

Judge advocates planning for CBRN CM operations should assume that Federal, State, and local

environmental laws and regulations will remain in place, at least as they pertain to DoD response

operations. Specific laws that may apply include the Endangered Species Act (ESA), Federal Water

Pollution Control Act (FWPCA),⁶⁶ National Historic Preservation Act,⁶⁷ and the National

Environmental Policy Act (NEPA),⁶⁸ to name a few. For example, the Stafford Act specifically states

that NEPA applies to actions undertaken pursuant to the Act.⁶⁹ There are some laws that streamline

applicability of environmental regulations or exempt their application during a response. For example,

to streamline the application of NEPA, actions performed under certain sections of the Stafford Act

aimed at restoring facilities are not considered “major Federal actions” that would normally trigger

more NEPA scrutiny.⁷⁰

The handling and disposal of waste from CBRN response decontamination operations will frequently

implicate environmental compliance issues. In such a scenario, the EPA, operating under Emergency

Support Function (ESF) 10, would be the primary agency responsible for hazardous waste

management.⁷¹ Additionally, coordination with State authorities regarding the State’s environmental

laws and regulations is essential. For example, judge advocates should ensure that appropriate staff

sections and levels of command have ascertained whether the decontamination and waste disposal

procedures outlined in FM 3-11⁷² are sufficient for a specific CBRN response operation, or whether

those procedures require modification pursuant to guidance from appropriate State agencies.

Health Care Licensure

In a domestic CBRN event, non-fatality casualties may range from minimal to overwhelming. The

greater the number of casualties, the more likely there will be requests for DoD medical personnel to

provide care for the affected populace. Because DoD caregivers may not necessarily be

licensed/credentialed in accordance with appropriate State laws, judge advocates must be prepared to

render advice on Federal and State licensure requirements during emergency support operations. Upon

a command’s receipt of any mission assignments relating to the provision of health-related services (or

even prior to receipt, if practicable), judge advocates on the operational and tactical levels should

verify with higher headquarters that any health care licensure requirements have been met or waived

by appropriate authorities, and that there is a common understanding between the various agencies

⁶⁶ The Federal Water Pollution Control Act (FWPCA) of 1948 was amended in 1972 and became known as the Clean

Water Act. U.S. ENVIRONMENTAL PROTECTION AGENCY, epa.gov/laws-regulations/history-clean-water-act (last visited 17

Jun. 2020). The FWPCA, as amended, is found at 33 U.S.C. §§ 1251-1388.

54 U.S.C. §§ 300101-307108 (formerly 16 U.S.C. §§ 470 et seq).

42 U.S.C. §§ 4321-4270m-12. This provision will sunset on 4 Dec. 2022. 42 U.S.C. § 4270m-12.

42 U.S.C. § 5170c (2018).

42 U.S.C. § 5159 (2018).

⁷¹ FEMA, EMERGENCY SUPPORT FUNCTION #10—OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX

10-11 (June 2016), https://www.fema.gov/media-library-data/1470149472600-

da7148fddd4ed137534486036abba0e8/ESF_10_Oil_and_Hazardous_Materials_20160705_508.pdf (last visited 17 Jun

2020); NRF, supra note 2, at 40.

⁷² U.S. DEP’T OF ARMY, FIELD MANUAL 3-11, CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR

OPERATIONS (May 2019).

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involved (including DoD, ESF #8, and State and local agencies) regarding the statutory portability

provisions discussed below.

The primary Federal statute regarding credentialing of military personnel is 10 U.S.C. § 1094,

Licensure Requirement for Health-Care Professionals. This law states that an Armed Forces health

care professionals, who have a current license and performing authorized Federal duties, may practice

his or her health care profession in any State, notwithstanding any other health care licensure laws, and

regardless of whether the practice occurs in a DoD facility, a civilian facility affiliated with DoD, or

any other location authorized by the Secretary of Defense.⁷³ The Department of Defense has

promulgated qualification and coordination requirements for this statutory portability provision as it

pertains to off-base duties.⁷⁴ The various qualification/coordination with State licensing board

requirements pertaining to health care personnel involved in off-base duties can be found in DoD

6025.13, Encl. 4, paragraph 2.⁷⁵

10 U.S.C. § 1094 only applies to those “performing authorized duties for the Department of Defense”

and Title 32 forces in a section 502(f) status.⁷⁶ NG members in State status may need to look to State

laws for guidance on their status. On the State level, many jurisdictions have passed emergency

management provisions containing portability of licensure provisions. For example, the Florida

Governor’s proclamation of a major or catastrophic disaster provides authority for a health care

practitioner licensed in another State to assist in providing health care in the disaster area according to

the provisions specified in the proclamation.⁷⁷ Similarly, California permits health care providers

licensed in other States to provide health care during a statutorily defined state of emergency, if the

emergency overwhelms California health care practitioners’ response capabilities and California’s

Director of the Emergency Medical Service Authority requests assistance.⁷⁸ Although during a

Stafford Act response DoD support will not normally be provided absent a specific request from State

authorities, judge advocates, through their technical chains, should ensure that all appropriate agencies

and levels of command have a common understanding of the State laws and rules regarding licensure

and how those laws complement Title 10 provisions.

Also, at the State level, judge advocates can also look to either the applicable State’s Emergency

Management Assistance Compact (EMAC)⁷⁹ or Article V of the Model EMAC legislation, which

states:

Whenever any person holds a license, certificate, or other permit issued by any

State party to the compact evidencing the meeting of qualifications for

professional, mechanical, or other skills, and when such assistance is requested

by the receiving party State, such person shall be deemed licensed, certified, or

10 U.S.C. § 1094(d)(1) (2018).

“Off base duties” are “[o]fficially assigned professional duties performed at an authorized location outside a MTF and

any military installation.” U.S. DEP’T OF DEF., MANUAL 6025.13, MEDICAL QUALITY ASSURANCE AND CLINICAL QUALITY

MANAGEMENT IN THE MILITARY HEALTH SYSTEM (MHS) 82 (29 Oct. 2013).

⁷⁵ Id. at Encl. 4, para 2.

10 U.S.C. § 1094(d)(2)-(3) (2018).

⁷⁷ FLA. STAT. § 252.36(3)(c)(1) (2020).

⁷⁸ CAL. BUS. & PROF. CODE § 900 (2020).

⁷⁹ For more information on EMAC, see EMERGENCY MGMT. ASSISTANCE COMPACT, http://www.emacweb.org/ (last visited

25 Jun 2020).

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permitted by the State requesting assistance to render aid involving such skill to

meet a declared emergency or disaster, subject to such limitations and

conditions as the Governor of the requesting State may prescribe by executive

order or otherwise.⁸⁰

Even if the State has passed the model EMAC legislation without alteration, judge advocates must be

cognizant of the particular State Governor’s limitations on this portability provision.

Mortuary Affairs

As with non-fatality casualties, the number of fatalities in a CBRN event may quickly overwhelm State

and local capabilities. As in other aspects of emergency management, primary responsibility for

mortuary affairs (MA) operations lies at the local level, normally with the local medical examiner

and/or coroner. The NRF gives ESF #8 the responsibility for mass fatality management in the Federal

response.⁸¹ However, in a catastrophic scenario, it is likely that DoD will be asked to provide mortuary

affairs support. Types of support the DoD may be asked to provide, potentially utilizing personnel that

are not MA-skilled, may include search and recovery operations, and transportation and storage of

remains, among others.⁸² DoD personnel who are not MA-skilled may require training in mortuary

affairs (which the civilian agencies responding must provide) prior to engaging in decedent-related

missions or activities.⁸³

During operations, judge advocates should become familiar with the relevant State laws, regulations,

and licensure requirements regarding the handling, transportation, and disposition of human remains,

and ensure that these requirements have either been met or waived by appropriate authorities. Judge

advocates should also be cognizant of the various points of contact involved in mortuary affairs

operations, including the local medical examiner/coroner, local law enforcement, and the FBI.

⁸⁰ See EMAC LEGISLATION, https://www.emacweb.org/index.php/learn-about-emac/emac-legislation (last visited June 25,

2020).

⁸¹ FEMA, EMERGENCY SUPPORT FUNCTION #8—PUBLIC HEALTH AND MEDICAL SERVICES ANNEX 8-2 (June 2016),

https://www.fema.gov/media-library-data/1470149644671-

642ccad05d19449d2d13b1b0952328ed/ESF_8_Public_Health_Medical_20160705_508.pdf.

⁸² JOINT CHIEFS OF STAFF, JOINT PUB. 4-06, MORTUARY AFFAIRS VII-2, VII-7, VIII-2 (12 Oct. 2011).

⁸³ Id. at VII-8

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CHAPTER 7

COUNTERDRUG OPERATIONS

KEY REFERENCES:

•

10 U.S.C. § 124 - Detection and Monitoring of Aerial and Maritime Transit of Illegal Drugs:

Department of Defense to be the Lead Agency.

•

10 U.S.C. § 284 - Support for Counterdrug Activities and Activities to Counter Transnational

Organized Crime.

•

10 U.S.C. §§ 271-284 - Military Support for Civilian Law Enforcement Agencies.

•

10 U.S.C. § 279 - Assignment of Coast Guard Personnel to Naval Vessels for Law Enforcement

Purposes.

•

14 U.S.C. §§ 521-528 - Life Saving and Law Enforcement Authority.

•

18 U.S.C. § 1385 - The Posse Comitatus Act (PCA).

•

32 U.S.C. § 112 - Drug Interdiction and Counter-Drug Activities.

•

DoD 7000.14-R, DoD Financial Management Regulation, Vol. 2B, ch. 14, Drug Interdiction and

Counter-Drug Activities, January 2011.

•

Department of Defense Instruction (DoDI) 3000.14, DoD Counterdrug and Counter-Transnational

Organized Crime Policy, Aug 28, 2020.

•

Deputy Assistant Secretary of Defense /CN Memorandum, Policy Definition of “Narcoterrorism”,

April 12, 2004.

•

Deputy Assistant Secretary of Defense /CN Memorandum, Counter Drug Support to Counter-

Narcoterrorist Activities (Memo to Chief, NGB) August, 26, 2005.

•

Deputy Assistant Secretary of Defense /CN Memorandum, Procedures for Handling Requests for

Counterdrug Narcoterrorist Support, 2006.

•

Deputy Assistant Secretary of Defense / CN Memorandum, Guidance for the States’ National

Guard Counterdrug Program (Memo to Chief, NGB) May18, 2020.

•

DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, February 27, 2013,

Incorporating Change 1, Effective February 8, 2019.

•

CNGB Memo, Counter Drug Support to Counter-Narcoterrorist Activities, December 22, 2005.

•

CNGB Memo, Implementation of Procedures for Handling Requests for Counterdrug

Narcoterrorist Support, June 2, 2006.

•

CNGB Instruction 3100.01B, National Guard Counterdrug Support Program, March 6, 2020.

•

NGR 500-2/ANGI 10-801, National Guard Counterdrug Support, August 28, 2008 (Currently

under re-write as a CNGB Manual. Check for publishing at end of FY21).

•

CJCSI 3121.01B, Enclosure L, Standing Rules of Engagement/Standing Rules for the Use of Force

for U.S. Forces, June 13, 2005.

•

CJCSI 3710.01B, DoD Counterdrug Support, January 26, 2007 (current as of June 12, 2014).

•

Joint Pub 3-07.4, Joint Counterdrug Operations, February 5, 2019.

•

The President’s National Drug Control Strategy (February 2020).

•

Department of Defense Counternarcotics & Global Threats Strategy, April 27, 2011.

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A. Introduction

In the 1980s, Congress determined the Department of Defense (DoD) should provide increased support

to civilian law enforcement agencies’ (LEA) counterdrug operations. Over the years, the

congressionally mandated DoD support for counterdrug operations has increased. This support now

includes both active component and National Guard full-time participation. DoD counterdrug

operations¹ are coordinated by the Deputy Assistant Secretary of Defense, Counter Narcotics and

Global Threats (DASD/CN>), which is located within the Office of the Assistant Secretary of

Defense for Special Operations and Low Intensity Conflict (ASD(SO/LIC)).² The National Guard

Counterdrug (CD) program is administered through the National Guard Bureau (NGB) J3/4/7’s J32-

CD Division. This chapter examines support by both the active duty military and the National Guard.

B. Title 10 Support to Counterdrug Operations

In 1981, Congress passed Chapter 15 of Title 10, Military Cooperation with Civilian Law Enforcement

Officials.³ Although Chapter 15 permits general military cooperation with civilian law enforcement

agencies, Congress passed the Act and its subsequent amendments with the intent of enabling the

Department of Defense to provide increased counterdrug support.⁴

In 1989, Congress took additional steps and assigned specific counterdrug missions to the Department

of Defense. As part of the National Defense Authorization Act (NDAA) for Fiscal Years (FY) 1990

and 1991,⁵ Congress designated DoD as the lead agency for the “detection and monitoring” of the

aerial and maritime transit of illegal drugs into the United States.⁶ Section 1206 of this act also states

that the “Secretary of Defense shall direct that the armed forces, to the maximum extent practicable,

conduct military training exercises (including training exercises conducted by the reserve components)

in drug-interdiction areas.”⁷ In FY 1991, Congress provided more specific counterdrug authority to

the Department of Defense by passing Section 1004 of the NDAA, discussed further below.⁸

¹ The term “counterdrug operations” is defined as, “those active measures taken to detect, monitor, and counter the

production, trafficking, and use of illegal drugs. Also called CD.” See JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINT

COUNTERDRUG OPERATIONS (5 Feb. 2019) [hereinafter JP 3-07.4].

² U.S. DEP’T OF DEF., UNDER SECRETARY OF DEFENSE FOR POLICY, https://policy.defense.gov/OUSDP-Offices/ASD-for-

Special-Operations-Low-Intensity-Conflict/Counternarcotics-and-Global-Threats/ (last visited 8 Apr. 2021).

10 U.S.C. §§ 271-284 (2012 & Supp. IV 2017). See Chapter 4 of this Handbook.

⁴ See H.R. Rep. No. 97-71, 1981 U.S.C.C.A.N. 1785. The 1986 amendments to Chapter 15 (formerly Chapter 18) were

contained in the Defense Drug Interdiction Assistance Act, Pub. L. 99-570, § 3051, 100 Stat. 3207.

⁵ National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, 103 Stat. 1563 [hereinafter

NDAA for FY90]. Although NDAAs are typically established for a single fiscal year, this NDAA is for both 1990 and

1991. See https://www.govinfo.gov/content/pkg/STATUTE-103/pdf/STATUTE-103-Pg1352.pdf (last visited 8 Apr. 2021).

To avoid confusion, all references to this document will be to NDAA for FY90.

⁶ NDAA for FY90, supra note 5, §1202; 10 U.S.C. § 124 (2012 & Supp. IV 2017).

⁷ NDAA for FY90, supra note 5, § 1206.

⁸ National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004, as amended, 104 Stat. 1629 [hereinafter

NDAA for FY91].

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In addition to providing statutory authority for counterdrug support, Congress annually appropriates

funds to the Department of Defense specifically for these operations.⁹ The money is disbursed through

DASD(CN>) and it differs from the funding for most other military support to civilian law

enforcement in that reimbursement is not required.

National Defense Authorization Act of 2017¹⁰

As a result of NDAA for FY 2017, authority for DoD support to counterdrug operations underwent

significant changes. Section 1004 from the NDAA for FY 1991 was replaced by Section 1011 of

FY17 NDAA and subsequently codified under 10 U.S.C. § 284. This authority was also extended

through 2020 and applies to both U.S. and foreign law enforcement agencies LEAs. In addition, 10

U.S.C. §§ 371-382 was administratively changed to 10 U.S.C. §§ 271-284. Types of counterdrug

support to U.S. LEAs under this authority include the following:

•

Maintenance and repair of loaned defense equipment to preserve the potential future utility

or to upgrade to ensure compatibility of that equipment (10 U.S.C. § 284(b)(1) & (2))

•

Transportation support (10 U.S.C. § 284(b)(3));

•

Establish and/or operate bases or training facilities (includes minor military construction

projects) (10 U.S.C. § 284(b)(4));

•

Counterdrug-related training of law enforcement personnel (10 U.S.C. § 284(b)(5));

•

Detect, monitor, and communicate the movement of air and sea traffic within 25 miles of

and outside United States borders (10 U.S.C. § 284(b)(6)(A));

•

Detect, monitor, and communicate the movement of surface traffic detected outside U.S.

borders for up to 25 miles within the United States (10 U.S.C. § 284(b)(6)(B));

•

Engineering support (roads, fences, and lights) to block drug smuggling at U.S. borders (10

U.S.C. § 284(b)(7));

•

Establish command, control, communications, and computer networks (10 U.S.C. §

284(b)(8));

•

Linguist and intelligence analysis services (10 U.S.C. § 284(b)(9)); and

•

Aerial and ground reconnaissance support (10 U.S.C. § 284(b)(10)).

⁹ The Counternarcotics Program is financed through the Drug Interdiction and Counterdrug Activities defense

appropriation, which is a central transfer account (CTA). It is a single line that accounts for all associated counter narcotics

(CN) resources with the exception of those resources for the active components’ military personnel and service OPTEMPO.

In 2018, Congress authorized appropriations of $750 million for counterdrug operations. See National Defense

Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 4501, 131 Stat. 1283 (2017). In 2019, Congress increased

the authorized appropriations for counterdrug operations to $781 million for FY20. See National Defense Authorization

Act for Fiscal Year 2020, S. 1790 § 4501 (2019) [hereinafter NDAA for FY20].

¹⁰ National Defense Authorization Act of 2017, Pub. L. 114-328, 30 Stat. 2000 [hereinafter NDAA for FY17].

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Types of counterdrug support to foreign LEAs under this authority include the following:

• Transportation support (10 U.S.C. § 284(c)(1)(A));

• Establish and/or operate bases or training facilities (includes small scale construction) (10

U.S.C. § 284 (c)(1)(B));

• Detect, monitor, and communicate movement of air and sea traffic within 25 miles of and

outside U.S. borders (10 U.S.C. § 284(c)1(C)(i));

• Detect, monitor, and communicate movement of surface traffic outside U.S. borders (10

U.S.C. § 284(c)(1)(C)(ii));

• Establish command, control, communications, and computer networks 10 U.S.C. § 284

(c)(1)(D));

• Linguist and intelligence analysis services (10 U.S.C. § 284 (c)(1)(E)); and

• Aerial and ground reconnaissance support (10 U.S.C. § 284 (c)(1)(F)).

Sections 271-284 of Title 10 also provide statutory exceptions to the Posse Comitatus Act (18 U.S.C. §

1385) (PCA) (with the exception of 10 U.S.C. §§ 274 and 275).¹¹ Further, the Secretary of Defense

may provide support that will adversely affect military preparedness in the short term in contravention

of 10 U.S.C. § 276 if the Secretary determines that the importance of providing such support

outweighs the short-term adverse impact.¹² Lastly, judge advocates should be aware that the policy

limits on assistance to law enforcement agencies set forth in DoDI 3025.21, Defense Support to

Civilian Law Enforcement Agencies, do not apply to counternarcotics activities.¹³

Detection and Monitoring

10 U.S.C. § 124 makes DoD the lead Federal agency for the detection and monitoring of aerial and

maritime transit of illegal drugs into the United States. This statute does not extend to the detection

and monitoring of land transit.¹⁴ Although detection and monitoring is now a DoD mission per 10

10 U.S.C. § 274 authorizes the Secretary of Defense to make DoD personnel available to U.S. LEAs for the maintenance

and operation of DoD or LEA equipment only to the extent that such support does not involve direct participation in a

civilian law enforcement operation. 10 U.S.C. §275 directed the Secretary of Defense to promulgate regulations that

prohibit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or

other similar activity unless participation in such activity by such member is otherwise authorized by law.

10 U.S.C. § 284(e) (2012 & Supp. IV 2017).

¹³ U.S. DEP’T OF DEFENSE, INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES para. 2.f.(1) (27

Feb. 2013) (Ch. 1, 8 Feb. 2019) [hereinafter DoDI 3025.21].

¹⁴ Note that 10 U.S.C. § 284(b)(6) authorizes “[a]erial and ground reconnaissance outside, at, or near the borders of the

United States” in support of other agencies and in accordance with other provisions of § 284; Id.

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U.S.C. § 124, it must still be carried out in support of Federal, State, local, or foreign law enforcement

authorities.¹⁵

In order to perform the detection and monitoring mission, DoD personnel may operate DoD equipment

to intercept a vessel or an aircraft detected outside the land area of the United States for the purposes

of:

• Identifying and communicating with that vessel or aircraft; and

• Directing that vessel or aircraft to go to a location designated by appropriate civilian

officials.¹⁶

In cases where a vessel or aircraft is detected outside the land area of the United States, DoD personnel

may begin, or continue, pursuit of that vessel or aircraft over the land area of the United States.¹⁷

Notably, the DoD detection and monitoring mission does not authorize DoD personnel to conduct

searches, seizures, or arrests—which are prohibited under 10 U.S.C. § 275.

Chairman of the Joint Chiefs of Staff Instruction (CJCSI)

Authority to approve counterdrug operational support to LEAs under the statutes discussed above has

been delegated by the Secretary of Defense, through the Chairman of the Joint Chiefs of Staff, to the

Commanders of the Unified Combatant Commands (with the authority to further delegate to flag and

general officers within their chains of command).¹⁸ The duration of use of active duty forces is

limited.¹⁹

CJCSI 3710.01B provides a specific list of the types of counterdrug missions that may be approved,

such as certain types of aerial reconnaissance, transportation support, intelligence analyst support, and

engineering support, among others.²⁰ Authority to approve counterdrug support missions involving

ground reconnaissance, detection and monitoring operations, and deployments for longer than 179

days or involving more than 400 personnel is specifically withheld from this delegation.²¹ These

missions require specific Secretary of Defense approval. CJCSI 3710.01B should be consulted

whenever reviewing a proposed operation.

On July 31, 2002, the Deputy Secretary of Defense published the DoD Counternarcotics Policy. This

policy states that DoD will focus its counternarcotics activities on programs that: enhance DoD

10 U.S.C. § 124(a)(2) (2018).

¹⁶ Id. § 124(b).

¹⁷ The term “United States,” as used in 10 U.S.C. § 124, “means the land area of the several States and any territory,

commonwealth, or possession of the United States.” 10 U.S.C. § 124(c) (2018).

¹⁸ See JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3710.01B, DOD

COUNTERDRUG SUPPORT Encl. A, para. 1 (26 Jan. 2007) (current as of 12 Jun. 2014) [hereinafter CJCSI 3710.01B], U.S.

Northern Command (USNORTHCOM) further delegated its authority to the Joint Force Land Component Commander

(JFLCC), who further delegated this authority to Commander, Joint Task Force-North (JTF-N).

¹⁹ Id. at Encl. A, para 8.g.

²⁰ Id. at Encl. A, para 3.

²¹ Id. at Encl. A, para 5.a.

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readiness; satisfy DoD’s statutory detection and monitoring responsibilities; contribute to the war on

terrorism; advance DoD’s security cooperation goals; or enhance national security.²²

On October 2, 2003, the Deputy Secretary of Defense published the policy on domestic

counternarcotics activities.²³ This policy established the goals of reducing the operational stress on

Title 10 forces that conduct domestic counternarcotics activities through utilization of Title 32

National Guard forces; focusing DoD’s support on areas of unique military skills and capabilities that

domestic law enforcement agencies lack or cannot practically replicate; and employing those measures

designed to detect, interdict, disrupt, or curtail any activity reasonably related to narcotics trafficking.

This policy directed that the Under Secretary of Defense for Policy shall be responsible for reviewing

and approving Title 10 counternarcotics support, except where that authority was delegated pursuant to

CJCSI 3710.01B.

USNORTHCOM reviews all domestic counternarcotics support requests. Commander,

USNORTHCOM, will first ensure a National Guard unit cannot provide the support. If the NGB

determines that Title 32 National Guard forces cannot provide the support, USNORTHCOM will

determine whether the requested support is feasible, supportable, and consistent with DoD policy. If

approval is authorized under CJCSI 3710.01B, Commander, USNORTHCOM, or his or her delegated

authority, may approve the request and will request Title 10 forces through the Joint Staff from the

appropriate service. All other requests will be forwarded through the Joint Staff deployment order

process, to the DASD/CN> and Under Secretary of Defense for Policy for consideration.

Detailed rules governing the use of force by military forces engaged in counterdrug support operations

within the United States are provided in CJCSI 3121.01B, Standing Rules of Engagement/Standing

Rules for the Use of Force for U.S. Forces, Appendices L and O.²⁴

Counterdrug Support Task Forces

Counterdrug support operations are planned, coordinated, and controlled primarily via three

headquarters: Joint Interagency Task Force (JIATF) South, located in Key West, Florida, (under the

command and control of U.S. Southern Command (USSOUTHCOM)); JIATF West, located in

Honolulu, Hawaii, (under the command and control of U.S. Indo-Pacific Command

(USINDOPACOM)); and Joint Task Force North (JTF-N), located in El Paso, Texas, (under the

command and control of U.S. Northern Command (USNORTHCOM)). While the two JIATFs do

provide some support to LEAs in their Areas of Responsibility (AORs),²⁵ their primary focus is on

detection and monitoring of illicit traffic in the source and transit zones of South and Central America,

Southeast and Southwest Asia, and in international waters and airspace. This enables interdiction by

²² Memorandum from Dep. Sec’y of Def. to Secretaries of the Military Departments et al., subject: Department of Defense

Counternarcotics Policy (31 Jul. 2002).

²³ Memorandum from Dep. Sec’y of Def., subject: Department Support to Domestic Law Enforcement Agencies

Performing Counternarcotics Activities (October 2, 2003). This memorandum was cancelled in 2020 and replace by U.S.

DEP’T OF DEFENSE, INSTR. 3000.14, DOD COUNTERDRUG AND COUNTER-TRANSNATIONAL ORGANIZED CRIME POLICY (28

Aug. 2020) [hereinafter DoDI 3000.14).

²⁴ JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, STANDING RULES OF

ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES (13 June 2005) [hereinafter CJCSI 3121.01B].

²⁵ For example, Hawaii falls within INDOPACOM’s AOR, and Puerto Rico and the Virgin Islands fall within

NORTHCOM’s AOR. See JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, DEFENSE SUPPORT OF CIVIL

AUTHORITIES II-14 (29 Oct. 2018) [hereinafter JP 3-28].

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law enforcement in the source and transit zones consistent with priorities outlined in the President’s

National Drug Control Strategy.²⁶

To de-conflict and identify interim and long-term solutions for command and control arrangements

between USNORTHCOM, USSOUTHCOM, and UINDOSPACOM, the ASD (SO/LIC) established

specific areas of responsibility for JIATF-S, JIATF-W, and JTF-N.²⁷ While the JIATFs focus their

attention on international AORs, the bulk of domestic counterdrug support is provided by JTF-N.

Joint Task Force Six (JTF-6), activated on November 13, 1989, was designated as the lead DoD

organization responsible for planning and coordinating all DoD support to civilian drug law

enforcement agencies in the continental United States (CONUS). Joint Task Force Six’s original

AOR, composed of the four southwest border States of Texas, New Mexico, Arizona, and California,

was expanded in 1995 to cover all of CONUS, Puerto Rico, and the Virgin Islands.²⁸ On 28

September 2004, Joint Task Force Six was officially renamed Joint Task Force North (JTF-N).²⁹ JTF-

N’s mission includes synchronizing and integrating DoD operational, technological, training, and

intelligence support to domestic law enforcement agency counterdrug efforts in CONUS to reduce the

availability of illegal drugs.

Located at Fort Bliss, Texas, there are approximately 175 personnel assigned to JTF-N, including

civilians, contractors, and service-members from all five services. Unlike the JIATFs, JTF-N has no

LEA representatives assigned to or working in the command. Joint Task Force North has no assigned

units and no tasking authority. It solicits volunteer units from all four DoD branches to execute the

support missions requested by the Department of Justice and Department of Homeland Security. From

its inception as JTF-6, JTF-N has completed over 6,000 counterdrug support missions throughout

CONUS. These included aerial and ground reconnaissance missions, detection and monitoring, use of

mobile training teams, and engineer support missions.³⁰ JIATF-S and JIATF-W are both under the

direction of Coast Guard Rear Admirals with DoD, DHS, and DOJ representatives in other senior

leadership positions. JIATF-S conducts detection & monitoring operations in the Caribbean and

Eastern Pacific source and transit zones.³¹ JIATF-W combats drug-related transnational organized

²⁶ The 2020 National Drug Control Strategy, published by the Trump administration, focuses on drugs that enter the

country across the Southern border, although it acknowledges that drugs enter the country by the mails. It does not

acknowledge the previously discussed transit zones. 2020 National Drug Control Strategy, available at

https://www.whitehouse.gov/wp-content/uploads/2020/02/2020-NDCS.pdf (last visited 18 Jun. 2020). At the date of

publication of this handbook, the Biden Administration had not released their National Drug Control Strategy.

²⁷ Memorandum, Assistant Secretary of Defense (Special Operations/Low Intensity Conflict) Joint Interagency Task Force

(JIATF) Area Responsibilities (21 Aug 2003).

²⁸ History of Joint Task Force North, JOINT TASK FORCE NORTH, available at https://www.jtfn.northcom.mil/About-

Us/History/ (last visited April 26, 2021).

²⁹ NORAD and NORTHCOM Public Affairs, Joint Task Force Six Gets New Name, New Mission, U.S NORTHERN

COMMAND (Nov. 5, 2004), https://www.northcom.mil/Newsroom/News/Article/Article/563131/joint-task-force-six-gets-

new-name-new-mission/(last visited April 26, 2021).

³⁰ See https://jtn.northcom.mil/Support/LEA-Support/ (last visited April 26, 2021).

³¹ When JIATF-S locates suspect vessels, it transfers TACON of surface assets to the U.S. Coast Guard Seventh District

(Caribbean operations) or Eleventh District (Eastern Pacific operations), at which point the U.S. Coast Guard conducts

interdiction and apprehension operations. In cases in which evidence of maritime drug trafficking or other illegal activity is

discovered, the Coast Guard coordinates case disposition with JIATF-S and DOJ or with foreign partners, as appropriate.

JIATF-S works closely with ongoing DOJ Organized Crime Drug Enforcement Task Force investigations such as

Operation Panama Express to synthesize and evaluate available information about suspected maritime and aerial drug

movement to detect, monitor, and facilitate the interdiction of suspect vessels and aircraft.

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crime to reduce threats in the Asia-Pacific region in order to protect U.S. national security interests and

promote regional stability.³²

Coast Guard Law Enforcement Detachments

As the primary enforcer of U.S. maritime law, the U.S. Coast Guard plays a critical role in drug

enforcement. The Coast Guard has the lead role in maritime drug interdiction and shares the lead role

in air interdiction with the U.S. Customs and Border Protection agency. The Coast Guard conducts

extensive maritime counterdrug operations year-round. These operations range from enforcing drug

possession and use laws during routine recreational and other vessel boardings in all areas where the

Coast Guard operates, to conducting sustained multi-unit operations targeting major drug traffickers

far from U.S. shores. Since the PCA does not apply to the Coast Guard,³³ the PCA restrictions on

arrest, search, seizure, and the interdiction of vessels and aircraft are inapplicable to Coast Guard

operations and personnel. Moreover, the Coast Guard has broad law enforcement authority under 14

U.S.C. §§ 521-528 to enforce U.S. laws in waters subject to U.S. jurisdiction and over vessels subject

to U.S. jurisdiction wherever they may be located.³⁴

To capitalize on the Coast Guard’s expertise and uniquely broad maritime law enforcement authority,

10 U.S.C. § 279 requires the Secretary of Defense and the Secretary of Homeland Security to assign

Coast Guard law enforcement detachments (LEDETs) to every appropriate naval surface vessel

operating at sea in a drug interdiction area.³⁵

Coast Guard personnel assigned to LEDETs are trained in law enforcement and have the powers of

arrest, search, and seizure in accordance with 14 U.S.C. §§ 521-528. Coast Guard personnel assigned

to U.S. Navy vessels under 10 U.S.C. § 279 will perform functions which are agreed to by the

Secretary of Defense and Secretary of Homeland Security and which are otherwise within the Coast

Guard’s jurisdiction.³⁶ No fewer than 500 active duty Coast Guard personnel will be assigned duties

under 10 U.S.C. § 279, unless the Secretary of Homeland Security, after consulting with the Secretary

³² Joint Interagency Task Force West, U.S. INDO-PACIFIC COMMAND, https://www.pacom.mil/JIATFW.aspx (last visited

April 26, 2021).

³³ United States v. Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982), cert. denied, 459 U.S. 1156 (1983).

14 U.S.C. § 522(a) states:

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and

waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of

laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board

of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those

on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary

force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of

the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such

person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful

and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been

committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United

States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to

secure such fine or penalty, such vessel or such merchandise, or both, shall be seized.

10 U.S.C. § 279(a). A “drug interdiction area” is defined as “an area outside the land area of the United States . . . in

which the Secretary of Defense, (in consultation with the Attorney General) determines that activities involving smuggling

of drugs into the United States are ongoing.” 10 U.S.C. § 279(d).

³⁶ Id. § 279(b).

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of Defense, determines that there are not enough naval surface vessels to support this number of

personnel. If this is the case, these Coast Guard personnel may be assigned duties to enforce the laws

listed under 10 U.S.C. § 274(b)(4)(A).³⁷ U.S. Navy ships transporting Coast Guard LEDETs under

TACON of the Coast Guard will follow the Use-of-Force Policy issued by the Commandant, USCG,

regarding use of warning shots and disabling fire.³⁸

Specific rules governing the use of Coast Guard LEDETs are provided in Commandant, United States

Coast Guard Instruction (COMDTINST) M16247.1G, Maritime Law Enforcement Manual.³⁹ The

primary Federal statute that the Coast Guard enforces in counterdrug operations is the Maritime Drug

Law Enforcement Act (MDLEA).⁴⁰ The MDLEA prohibits any person on board a U.S. vessel, or a

vessel subject to the jurisdiction of the U.S., from knowingly or intentionally manufacturing or

distributing, or possessing with the intent to manufacture or distribute, a controlled substance.⁴¹ The

term “U.S. vessel” includes:

• Federally documented or State numbered vessels;⁴²

• Vessels owned in whole or in part by:

• the U.S. or a territory, commonwealth, or possession of the U.S.;

• a State or political subdivision thereof;

• a citizen or national of the U.S.; or

• a corporation created under the laws of the U.S. or any State, the District of Columbia,

or any territory, commonwealth, or possession of the U.S.; and

³⁷ Id. § 279(c).

³⁸ JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, STANDING RULES OF

ENGAGEMENT, Encl. H, Counterdrug Support Operations Outside the U.S. Territory, para. 1(b) (13 June 2005). CJCSI

3121.01B is classified in part. Enclosure H is confidential in part. The provision cited is unclassified. See also 14 U.S.C. §

526, Stopping Vessels; Indemnity for Firing at or Into Vessel.

³⁹ U.S. COAST GUARD, COMDTINST M16247, U.S. COAST GUARD MARITIME LAW ENFORCEMENT MANUAL ch. 3 para.

b.2 (2017) (FOUO) (copy on file with CLAMO) [hereinafter MLEM]. The MLEM is also available at the Maritime

Operations Resources web portal at the CLAMO website (AKO account required). See also Memorandum, Commander,

Atlantic Area, U.S. Coast Guard, to Commanding Officers, Regional TACLETs North, South, and Gulf, Memorandum of

Agreement Concerning Deployment of Law Enforcement Detachment (5 Aug. 1993) (on file with CLAMO).

46 U.S.C. §§ 70501-70508. In 2010 Congress passed the Drug Trafficking Vessel Interdiction Act, 18 U.S.C. § 2285

(the DTVIA) at the urging of the Coast Guard and Department of Justice. This law makes the operation of or embarkation

in a stateless self-propelled semi-submersible or submersible vessel beyond any State’s territorial sea (or having crossed

from one State’s territorial sea into another) a felony punishable by up to fifteen years in prison. 18 U.S.C. § 2285.

Although not an anti- drug-trafficking statute per se, the Coast Guard uses this law to combat the threat posed by maritime

drug traffickers who have increasingly resorted to the use of semi-submersible vessels to avoid detection while transporting

multi-ton loads of cocaine. This was necessary because the crews of these vessels would frequently scuttle them to avoid

prosecution, but under the DTVIA merely being on board is a criminal violation. Many of the jurisdictional provisions and

definitions in the MDLEA are included in the DTVIA as well.

46 U.S.C. § 70503(a).

⁴² Id. § 70502(b); 14 U.S.C. § 123.

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• U.S. documented vessels sold or registered in a foreign country in violation of U.S. law.⁴³

“Vessel subject to U.S. jurisdiction” includes a foreign vessel if located:

• In U.S. customs waters;

• On the high seas and the flag State has consented or waived objection to the enforcement of

U.S. law; or

• In the territorial waters of another nation and that coastal State consents to the enforcement of

U.S. law.⁴⁴

In addition to placing LEDETs on U.S. Navy ships, the Coast Guard also relies on extensive bilateral

and multilateral agreements between the United States and other nations to place LEDETs on the ships

of foreign countries. These agreements can take various forms—from standing formal memoranda of

agreements to ad hoc verbal agreements.⁴⁵

The United States and most countries in South America, Central America and the Caribbean are parties

to the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Article

17 of that Convention requires parties to cooperate with each other to suppress illicit trafficking by sea.

Pursuant to this mandate, the United States has entered into dozens of bilateral agreements or

understandings with partner States in the region. These standing bilateral maritime counterdrug

agreements typically address various aspects of enforcement including: deployment of shipriders from

foreign navies and coast guards on U.S. surface assets; over flight by U.S. air assets within the territory

or territorial seas of foreign partners; patrols and pursuit of suspect vessels in the territorial seas of

foreign partners; combined operations; flag State authorization to board, search, seize, or make arrests;

and procedures by which foreign partners may waive jurisdiction over vessels and persons in favor of

prosecution in the United States when appropriate. As with all international agreements, these bilateral

and multilateral agreements can only be negotiated by following Department of State approval

procedures.

C. National Guard Support to Counterdrug Operations

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

interdiction and counterdrug activities.” This includes:

• Pay, travel, allowances, clothing, subsistence, gratuities, travel, and related expenses, as authorized

by State law, for NG personnel used for drug interdiction and counterdrug activities while not in

Federal service;

46 U.S.C. § 70502(b). See also 46 U.S.C. § 116, 46 U.S.C. Chapters 121, 123.

⁴⁴ Id. § 70502(c).

⁴⁵ For a list of current counterdrug bilateral agreements, see USCG OPLAW FAST ACTION REFERENCE MATERIALS, series

(2012) (For Official Use Only manual) (copy on file with CLAMO) [hereinafter FARM]. The FARM is also available at

the Maritime Operations Resources web portal at the CLAMO website (AKO account required).

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• The operation and maintenance of NG equipment and facilities used for drug interdiction and

counterdrug activities; and

• The procurement of services and equipment, and the leasing of equipment, by the NG for the

purpose of drug interdiction and counterdrug activities.⁴⁶

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

appropriation and cannot be used for purposes other than the NG counterdrug support program.⁴⁷

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

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

expenditure. For example, a Purpose Act violation occurred when the Texas National Guard used

counterdrug funds in January 1993 in support of the joint ATF-FBI operation concerning the Branch

Davidians near Waco, Texas. The finding was returned despite evidence that a former Branch

Davidian had stated to the ATF that there was a methamphetamine lab in the compound, and David

Koresh had stated to an undercover ATF agent that the compound would be an ideal location for a

meth lab.⁴⁸ The Anti-Deficiency Act⁴⁹ (ADA) violation was based on the fact that the operation’s

primary purpose was to investigate potential Federal firearms violations—not narcotics violations.⁵⁰

CD funds may also be used for the purpose of drug interdiction and counterdrug activities in which (1)

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

use drug trafficking to further their aims of drug trafficking.⁵¹ In order to qualify for Federal funding

under 32 U.S.C. § 112(a), the Governor of the State requesting such funding must annually submit a

State drug interdiction and counterdrug activities plan (State Plan) to the Secretary of Defense.⁵² A

State drug interdiction and counterdrug activities plan shall:

⁴⁶ Procurement of equipment cannot exceed $5,000 per purchase order unless approval is granted by the Secretary of

Defense. 32 U.S.C. § 112(a)(3). Further, equipment purchased, loaned, leased, or otherwise obtained using 32 U.S.C. §

112 funds will only be used for the Counterdrug Support Program except in very limited circumstances. NATIONAL GUARD

BUREAU, REG. 500-2/ANGI 10-801, NATIONAL GUARD COUNTERDRUG SUPPORT paras. 7-10, 7-11 (29 August 2008)

[hereinafter NGR 500-2]. At the time this handbook was published, this regulation was being re-drafted as a CNGB

Manual.

⁴⁷ This is the general rule; however, on rare occasions NG CD personnel and/or equipment may be used for State

immediate response missions. Contact your State SJA or NGB-GC for additional guidance on this exception.

⁴⁸ U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-B-276428, MILITARY ASSISTANCE PROVIDED AT BRANCH DAVIDIAN

INCIDENT (26 Aug. 1999), https://www.gao.gov/assets/nsiad/osi-99-133.pdf (last visited April 26, 2021).

31 U.S.C. § 1341 et seq.

⁵⁰ Department of the Army (FM&C), Report of Antideficiency Act Violation Case # 95-09 (11 Mar. 1997), available at

https://www.esd.whs.mil/Portals/54/Documents/FOID/Reading%20Room/International_Security_Affairs/jan-dec9799.pdf

(last visited April 26, 2021).

⁵¹ JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINT COUNTERDRUG OPERATIONS (13 Jun. 2007) (defining narcoterrorism);

NGR 500-2, supra note 46, glossary (defining counternarcoterrorism); Memorandum, Chief of the National Guard Bureau,

Implementation of Procedures for Handling Requests for Counterdrug Narcoterrorist Support (2 Jun. 2006), available in a

“Supplement to Appendix 6: Counterdrug Operations” available at

https://www.loc.gov/rr/frd/Military_Law/pdf/supplement-appendix-6.pdf.

⁵² State drug interdiction and counterdrug support plans must be submitted through the Counterdrug Office of the National

Guard Bureau. NGR 500-2, supra note 46, para. 2-5.

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• Specify how personnel of the NG of that State are to be used in drug interdiction and counterdrug

activities;

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

Federal service;

• Certify that participation by NG personnel in those operations is service in addition to training

required under 32 U.S.C. § 502;⁵³

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

will be performed only by units and members of the NG;

• Include a certification by the State Attorney General that the use of the NG for the activities

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

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

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

with Federal law enforcement agencies serve a State law enforcement purpose.⁵⁴

The NG Counterdrug Coordinators for each State or territory must submit their State Plan to the

National Guard Bureau (NGB) for review. The NGB submits all 54 State Plans, complete with

original certifying signature from the respective Adjutant General, Attorney General, and Governor, to

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

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

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

Defense.⁵⁵

To ensure that the use of NG units and personnel participating in counterdrug operations does not

degrade training and readiness, the following requirements apply in determining what activities NG

personnel may perform:

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

interfere with the ability to perform the military functions of the member or unit;

• NG personnel will not degrade their military skills as a result of performing the activities;

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

• In the case of drug interdiction and counterdrug activities performed by a unit organized to serve as

a unit, the activities will support valid unit training requirements.⁵⁶

⁵³ See 32 U.S.C. § 502 (addressing annual drill and field exercise requirements of National Guard personnel).

⁵⁴ Id. § 112(c).

⁵⁵ Memorandum, Deputy Secretary of Defense, Department Support to Domestic Law Enforcement Agencies Performing

Counternarcotics Activities (2 Oct 2003).

32 U.S.C. § 112(b)(2)(C).

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

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

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

by the Secretary of Defense with the Director of National Drug Control Policy is not required. NG

units can execute only those missions approved by the Secretary of Defense in the State Plans.⁵⁷

Although Federally funded, NG members performing counterdrug missions under 32 U.S.C. § 112 are

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

interdiction and counterdrug activities plan to certify that “operations are to be conducted at a time

when the personnel involved are not in Federal service.” 32 U.S.C. § 112(b) also requires that CD

personnel serve in a full-time NG duty (FTNGD) status pursuant to 32 U.S.C. § 502(f). As with all

NG personnel performing duties pursuant to 32 U.S.C. §§ 115, 316, 502, 503, 504, or 505, NG

members performing CD activities in FTNGD status are employees of the Federal government for

purposes of Federal Tort Claims Act⁵⁸ coverage.⁵⁹ If the appropriate United States Attorney

determines that a Title 32 NG member was acting within the scope of employment when an alleged

tort occurred, then the plaintiff’s exclusive remedy would be against the United States, which would

accordingly be substituted as the defendant in any FTCA litigation.⁶⁰ Conversely, for actions not

cognizable under the FTCA, such as a constitutional or Bivens⁶¹ action against a NG member in his or

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

such cases, the NG member may request representation from the Department of Justice pursuant to 32

C.F.R. § 516.30 and AR 27-40, para 4-4⁶² or AFI 51-301, chapter 1, para 5.19.⁶³ The process of

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

representation is granted, NG personnel remain individually-named defendants in the action and are

responsible for any criminal convictions, fines or civil judgments. The Department of Justice is not

obligated to indemnify NG personnel for any adverse monetary judgments or sanctions in these cases,

but may, in its sole discretion, do so upon request.⁶⁴

The PCA does not apply to NG counterdrug missions performed under 32 U.S.C. § 112, even though

these units are performing missions using Federal funds and operating under Federal fiscal oversight.⁶⁵

32 U.S.C. § 112(d).

28 U.S.C. §§ 2671-2680.

⁵⁹ See id. § 2671 (defining “employee of the government”).

⁶⁰ See id. § 2679(b). See also NGR 500-2, supra note 46, para. 2-4a (“National Guard members acting within the scope of

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

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

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

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

⁶¹ Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

⁶² U.S. DEP’T OF ARMY, REG. 27-40, LITIGATION para. 4-4 (19 Sept. 1994) [hereinafter AR 27-40].

⁶³ U.S. DEP’T OF AIR FORCE, INSTR. 51-301, CIVIL LITIGATION chapter 1, para. 5.19 (2 Oct. 2018) [hereinafter AFI 51-301].

28 C.F.R. § 50.15(12)(c).

⁶⁵ Gilbert v. United States, 165 F.3d 470, 473-474 (6th Cir. 1999) (Where a State used National Guard members for

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

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

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

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

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

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This allows Title 32 NG personnel more flexibility than Title 10 forces in conducting domestic

counterdrug missions. Nonetheless, Deputy Assistant Secretary of Defense for Counternarcotics and

Global Threats (DASD(CN>)) and the NGB have imposed several policy restrictions on NG

counterdrug operations in NGR 500-2.⁶⁶ As a matter of policy, NG personnel will not directly

participate in the arrest of suspects, conduct searches which include direct contact of NG members

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

except in exigent circumstances, or when otherwise authorized.⁶⁷ The NG defines exigent

circumstances as situations where immediate action is necessary to: protect police officers, NG

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

prevent the escape of a suspect already in custody.⁶⁸

Current DASD(CN>)⁶⁹ guidance establishes that the following missions have been approved for

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

•

Program Management - Counterdrug Coordination, Liaison, and Management. Planning and

coordinating state drug interdiction and counterdrug activities support;

•

Linguist/Transcription Services Support - Providing post-collection transcription and translation

of audio files, seized documents, and other analog or digital media (active/real-time intercepts or

interviews is not permitted; direct participation in interrogations is not allowed; translator services

include near real-time transcription and translation counterdrug support, but does not include

cryptologic support, direct participation in interview or interrogation activities, or conducting

counterintelligence activities for counterdrug purposes; near real-time transcription or translation

support must be directly supervised by appropriate officials from a LEA);

•

Analyst Support - Personnel may process, categorize, and evaluate criminal information, within

the immediate scope of the supported law enforcement investigation, in support of law enforcement

counterdrug activities;

•

Communications Support - Providing personnel to establish, operate and maintain

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

•

Engineer Support - Providing engineer support to Federal, State, local, and tribal authorities to

construct roads and fences and install lights at United States borders to block drug-smuggling

corridors (will be performed only by trained units and members of the NG);

•

Diver Support - Conducting subsurface visual inspections of LEA secured commercial vessel

hulls within U.S. territorial waters or maritime ports of entry through the use of Service-trained

divers to inspect and report any unusual physical hull configurations but NG personnel may not

⁶⁶ This regulation does not address National Guard counterdrug activities performed under the authority of Title 10, United

States Code.

⁶⁷ NGR 500-2, supra note 46, para. 2-1e.

⁶⁸ Id.

⁶⁹ Memorandum from Deputy Assistant Sec’y of Def Counter Narcotics and Global Threats to Chief, National Guard

Bureau, subject: Guidance for the States’ National Guard Counterdrug Program (CDP) (18 May 2020).

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attempt entry, search, removal, or alteration of features detected (permissive dive status is not

permitted for the conduct of operational missions);

•

Transportation Support - Providing ground transportation and airlift to support controlled

deliveries and tactical logistics where there is a counterdrug nexus (does not include administrative

movements or logistic transport that can be organically or commercially resourced by LEAs);

•

Training - Training provided in militarily unique capabilities and skills not readily available

outside DoD to Federal, State, local, and tribal law enforcement, community-based organizations

(CBOs), and military personnel to improve drug interdiction and drug-demand reduction activities;

•

Reconnaissance and Observation - NG personnel, in support of LEAs, may use ground,

maritime, and aerial platforms within the United States to conduct reconnaissance and observation

to detect, characterize, locate, track, and assess specific people, objects, or areas, in real- or near-

real time (Law enforcement officers (LEO) must be present for all missions);

•

Aerial/Ground Reconnaissance - Law enforcement support mission undertaken to obtain, by

visual, ground sensor, or electro-optical infrared (EO/IR) means, information about the activities

and resources of an LEA-developed target, or to secure data concerning the meteorological,

hydrographic, or geographic characteristics of a particular area;⁷⁰

•

Aerial/Ground Observation - a law enforcement support mission involving the observation of

LEA-developed targets that may include suspicious buildings, vehicles, vessels, or persons in the

United States and to provide precise and continuous coordinates to LEAs. While conducting

observation support, a LEO must be present, on board the aircraft or in direct contact with the NG

Service Members, and the observation support will always be conducted under the continuous and

immediate direction of a LEO;

•

Use of UAS - must be staffed through NGB and the Joint Staff for Secretary of Defense approval

in accordance with DoD Policy Memorandum, "Guidance for the Domestic Use for Unmanned

Aircraft Systems in U.S. Airspace," dated August 18, 2018. The approval of a State Plan does not

constitute Secretary of Defense approval of UAS support missions; and

•

Drug Demand Reduction Civil Operations - NG service members may provide training and

support concerning militarily unique skills in leadership, mission analysis, planning, decision-

making, and cross-organization coordination to promote community-led efforts to develop and

execute counterdrug supply and demand reduction strategies for State, local, and tribal

organizations and CBOs with a substance abuse prevention nexus. The State Plan must specifically

identify all supported CBOs. Support to a CBO is contingent upon that CBO having been

specifically identified in a State Plan approved by the Secretary of Defense or his designee.

⁷⁰ An additional requirement for aerial reconnaissance (otherwise known as “Mission 5a”) is that at least one person

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

(NICI) Mission 5a course. NGR 500-2, supra note 46, para. 5-16.

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National Guard personnel carrying out the above missions serve in a support role to LEAs and will not

be directly involved in law enforcement duties. Consequently, NG members will only be armed at the

request of the supported law enforcement agency and after meeting certain criteria. A mission risk

analysis will be conducted by The Adjutant General (TAG) of that State to determine whether National

Guard personnel should be armed as a force protection measure.⁷¹

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

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

CJCSI 3121.01B, Encl. O, Counterdrug Support Operations Within U.S. Territory, is not applicable to

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

cards are on file with CLAMO. Consequently, judge advocates must be aware of the application of

the law of the State in which personnel operate.

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

following:

•

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

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

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

Testing will include qualification firing in accordance with current qualification standards;

•

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

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

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

except in cases of exigent circumstances;

•

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

persons);

•

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

board an aircraft;

•

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

counterdrug support operations are prohibited. NG personnel will not accept offers of weapons or

ammunition from LEAs except for use on LEA operated ranges for training purposes only. The

only weapons used for counterdrug support operations will be Federally owned military weapons

listed on the unit’s property books;

•

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

•

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

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

•

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

⁷¹ Id. para. 3-3. This authority may be delegated in accordance with para. 3-3b of NGR 500-2.

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CHAPTER 8

MILITARY SUPPORT OPERATIONS

KEY REFERENCES:

•

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

•

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

•

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

•

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

•

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

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

•

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

•

E.O. 12333 - United States Intelligence Activities (as amended by E.O. 13355 and 13470).

•

E.O. 12580 - Superfund Implementation (as amended by E.O. 12777, 13286, and 13308).

•

E.O. 12656 - Assignment of Emergency Preparedness Responsibilities (as amended by EO. 13074,

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

•

E.O. 12657 - Federal Emergency Management Agency Assistance in Emergency Preparedness

Planning at Commercial Nuclear Power Plants (See also amendments contained in EO 13286, Feb.

28, 2003).

•

Department of Defense Instruction (DoDI) 1100.24 - Innovative Readiness Training (IRT):

Support and Services for Eligible Organizations and Activities Outside DoD, May, 5, 2020.

•

Department of Defense Directive (DoDD) 3020.26 - DoD Continuity Policy, February 14, 2018.

•

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

24, 2017.

•

DoDD 3025.13 - Employment of Department of Defense Capabilities in Support of the U.S. Secret

Service (USSS), Department of Homeland Security (DHS), October 8, 2010, Incorporating Change

1, May 4, 2017.

•

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

Incorporating Change 1, August 31, 2018.

•

DoDD 4500.09 - Transportation and Traffic Management, December 27, 2019.

•

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

•

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

Change 1, October 3, 2013.

•

DoDI 6200.03 - Public Health Emergency Management (PHEM) Within the DoD, March 28,

2019.

•

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

Service Provided Incidental to Military Training and National Guard Use of DoD Information

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

•

AR 95-1 - Flight Regulations, March 22, 2018.

•

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

•

CNGBI 3000.04, National Guard Bureau Domestic Operations, January 24, 2018.

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A. Support to Special Events or Organizations

1. Introduction

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

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

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

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

(TJAGLCS) has numerous after action reports providing lessons learned from the DoD’s support to

domestic events that judge advocates will find very helpful.

Generally, there are two established means in which to provide DoD support to special events (1)

support to designated special events under statutory authority and (2) community support as part of

Innovative Readiness Training (IRT). Designated special events include the Boy Scout Jamboree and

“National Special Security Events” (NSSEs)¹ such as major sporting events (e.g. the Olympics or

Super Bowl), Presidential inaugurations, and international meetings like the 2012 NATO Summit. The

IRT program allows commanders to conduct training in the civilian community, provided the training

primarily benefits the participating unit notwithstanding incidental benefits to the community.

Congress has expressly authorized military support to specific events.² Additionally, support to a

variety of unspecified designated NSSEs may be approved in accordance with DoDI 3025.20.³

Types of Events and DoD Support

a. Sporting Events

10 U.S.C. § 2564 authorizes the security and safety support for certain sporting events to include the

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

and safety needs exist as authorized by the Attorney General.⁴ The Department of Defense has

previously supported the World Alpine Ski Championships and the Special Olympics. Military forces

also provided extensive support during the 1996 and 2002 Olympic Games held in Atlanta, Georgia

and Salt Lake City, Utah, respectively. Since its establishment in 2002, U.S. Northern Command

(USNORTHCOM) is responsible for the DoD support mission for these events.

¹ U.S. DEP’T OF DEFENSE, INST. 3025.20, DEFENSE SUPPORT OF SPECIAL EVENTS, Glossary (6 Apr. 2012) [hereinafter DoDI

3025.20] defines National Special Security Event as “An event of national significance as determined by the Secretary of

Homeland Security. These national or international events, occurrences, contests, activities, or meetings, which, by virtue

of their profile or status, represent a significant target, and therefore warrant additional preparation, planning, and

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

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

10 U.S.C. § 2564(a) (2018) states:

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

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

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

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

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

Attorney General certifies that such assistance is necessary to meet essential security and safety needs.

³ DoDI 3025.20, supra note 1, at Encl. 2, para. 2.c. (6 Apr. 2012).

10 U.S.C. § 2564(a).

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b. Non-athletic Events

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

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

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

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

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

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

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

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

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

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

rendered.⁸

c. NG Assistance for Certain Youth and Charitable Organizations

NG members and units, in conjunction with required military training,⁹ may provide services to certain

eligible youth and charitable organizations.¹⁰ The eligible organizations are:

• Boy and Girl Scouts of America;

• Boys and Girls Clubs of America;

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

• Civil Air Patrol;

• U.S. Olympic Committee;

• Special Olympics;

• Campfire Boys and Girls;

•

4-H Clubs; and

• Police Athletic Leagues.¹¹

10 U.S.C. § 2554.

⁶ Id. § 2554(a).

⁷ Id. § 2554(g).

⁸ Id. § 2554(b-f).

32 U.S.C. § 502.

¹⁰ Id. § 508.

¹¹ Id. § 508(d).

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

emergency medical assistance, and communications services. Additionally, the Special Olympics is

authorized air transportation.¹²

When providing authorized services, NG facilities and equipment, including General Services

Administration (GSA) vehicles, may be used.¹³ As with other types of domestic support operations,

the provision of services must not adversely affect the quality of NG training or otherwise interfere

with the member or unit’s ability to perform its military functions. Furthermore, the support should

result in the enhancement of military skills of participating NG personnel and should not significant

increase costs. Additionally, the requested services must not be commercially available. If the

requested services are available commercially, the commercial entity affected can approve, in writing,

that the NG provide such services.¹⁴

(1) NG Civilian Youth Opportunities Program

The Secretary of Defense, through the Chief, NGB, conducts a NG civilian youth opportunities

program, known as the “National Youth Guard Challenge Program” (Challenge Program).¹⁵ The

program’s purpose is to improve life skills and employment potential of civilian youth by providing

military-based training and supervised work experience. It provides participants assistance with

earning a high school diploma, or equivalent, leadership development, promoting community service,

developing life coping and job skills, and improving physical fitness and health and hygiene.¹⁶ It

consists of a 22-week residential program followed by a 12-month post residential mentoring period.¹⁷

To carry out the Challenge Program, the Secretary of Defense enters into an agreement with a State

Governor or, in the case of the District of Columbia, with the commanding general of the DCNG.¹⁸

Usually, the Governor will delegate the establishment, organization and administration of the Program

to The Adjutant General (TAG) of the State.

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

annual Challenge Program operating costs. NG equipment and facilities, including U.S. military

property issued to the NG, may be used to carry out the Challenge Program.²⁰ A State may

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

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

Individuals selected for training in the Challenge Program may receive the following benefits:

allowances for travel; quarters; subsistence; transportation; equipment; clothing; recreational services

¹² Id. § 508(b).

¹³ Id. § 508(c).

¹⁴ Id. § 508(a).

¹⁵ Id. § 509.

¹⁶ Id. § 509(a).

¹⁷ Id.

¹⁸ Id. § 509(c).

¹⁹ Id. § 509(d).

²⁰ Id. § 509(h).

²¹ Id. § 509(j).

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and supplies; and, a temporary stipend upon the successful completion of the training (GS-2 minimum

rate of pay under 5 U.S.C. § 5332).²² A person receiving training under the Challenge Program is

considered a U.S. employee for the purposes of Title 5 (relating to compensation of Federal employees

for work injuries) and Title 28, and any other provision of law relating to Federal liability for tortious

conduct of employees.²³

d. National Special Security Events (NSSE)

The Secretary of the Department of Homeland Security (DHS), after consultation with the Homeland

Security Council, has the authority to designate an event a NSSE.²⁴ The Department of Homeland

Security may categorize other events that may not normally arise to the level of a NSSE through the

special events assessment rating (SEAR) process.²⁵ Military assets provided in support of NSSEs may

include explosive ordnance disposal (EOD) teams, technical escort units (TEU),²⁶ geospatial

intelligence support,²⁷ and chemical, biological, radiological, and nuclear threat identification and

response forces.²⁸

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

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

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

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

DoD support, but not designated as an NSSE. For a list of designated NSSEs in recent years, see Table

8-1 below.

Event

Location

Date

2017 Presidential Inauguration

Washington, DC

Jan. 20, 2017

Super Bowl LI

Houston, TX

Feb. 5, 2017

2017 Presidential Address to Congress

Washington, DC

Feb. 28, 2017

2018 State of the Union Address

Washington, DC

Jan. 30, 2018

Super Bowl LII

Minneapolis, MN

Feb. 4, 2018

State Funeral of George H. W. Bush

Washington, DC

Dec. 3-5, 2018

2019 State of the Union Address

Washington, DC

Feb. 5, 2019

Super Bowl LIV

Miami Gardens, FL

Feb. 2, 2020

2020 State of the Union Address

Washington, DC

Feb. 4, 2020

²² Id. § 509(f).

²³ Id. § 509(i).

²⁴ CONGRESSIONAL RESEARCH SERVICE, NATIONAL SPECIAL SECURITY EVENTS: FACT SHEET (OCT. 6, 2020),

https://crsreports.congress.gov/product/pdf/R/R43522.

²⁵ DHS, DHS RISK LEXICON 52 (Sept. 2008), available at http://www.dhs.gov/xlibrary/assets/dhs_risk_lexicon.pdf (last

visited April 11, 2021) .

²⁶ TEU teams are capable of detecting, rendering safe, and transporting chemical and biological devices.

10 U.S.C. § 442.

²⁸ DoDI 3025.20, supra note 1, at Encl. 3, 2.b.(7).

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2020 Democratic National Convention

Milwaukee, WI

Aug. 17-20, 2020

2020 Republican National Convention

Charlotte, NC

Aug. 24-27, 2020

2021 Presidential Inauguration

Washington, DC

Jan. 20, 2021

Super Bowl LV

Tampa, FL

Feb. 7, 2021

Table 8-1 Recent Designated NSSEs

Requests for Support and Coordination

a. Processing Requests for Support

Federal, State, or local authorities, or a qualifying entity, may make a request for assistance (RFAs) to

the Department of Defense.²⁹ Often, this means that local police or a FBI field office requests the

military support; if the request comes from law enforcement, note that it must comply with DoDI

3025.21.

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

Homeland Defense and Global Security (ASD (HD&GS)) and the Joint Staff will confer to determine

actual requirements. This may involve meetings between DoD representatives and event organizers,

civil authorities, or qualifying entities. Once an RFA is received, it will be routed to the ASD

(HD&GS) and the Chairman, Joint Chiefs of Staff (CJCS) simultaneously for staffing and

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

the support requested.³⁰ If the authority for the event is 10 U.S.C. § 2564 (sporting event support), and

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

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

such as the Special Olympics, is involved).³¹

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

and control, the CJCS will issue a planning order requesting a Combatant Commander initiate planning

and notify potential supporting commands and the Chief, NGB, as appropriate. When possible, the

Combatant Commander will use established CJCS-directed planning procedures to provide an

assessment and request for forces. Normally, the State or local government hosting the event will

initiate the formal NSSE designation process by making a formal written request to the Secretary,

DHS. In other situations, where the event is Federally-sponsored, an appropriate Federal official will

make the request. As stated above, Secretary, DHS, makes the final determination to designate an

event as an NSSE pursuant to Homeland Security Presidential Directive 7.³²

²⁹ DoDI 3025.20, supra note 1, at Encl. 3. A qualifying entity is a non-governmental organization that DoD can assist by

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

³⁰ Id.

10 U.S.C. § 2564.

³² DoDI 3025.20, supra note 1, at Enc. 3.

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