Chapter 12
Domestic Operations
I. OVERVIEW
The primary mission of the U.S. military is warfighting. Historically, those wars were fought abroad. However, after the tragic events of September 11, 2001, U.S. military involvement in domestic operations expanded. As a result, today’s U.S. military leaders must be prepared to protect and defend the United States from direct attacks of state or non-state actors. Leaders must also stand ready to provide civil support to state and local authorities during major disasters or emergencies. This chapter will outline the increasingly complex legal framework for the use of the U.S. military within the United States for both homeland defense and civil support.
II. DEFINITIONS: HOMELAND DEFENSE (HD) AND DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)
A. Today’s military must be prepared for both HD and DSCA missions. “Defending U.S. territory and the people of the United States is the highest priority of the Department of Defense (DoD) and providing appropriate defense support of civil authorities (DSCA) is one of the Department’s primary missions.”[1]
B. The DoD has defined HD as the “protection of U.S. sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President.”[2] It is generally considered to consist of war-fighting missions led by the DoD. Examples of HD activities include combat air patrols and maritime defense operations.
C. The DoD has defined DSCA as, “Support provided by U.S. 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, United States Code, 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.”[3] Examples of civil support activities include disaster response, counterdrug (CD) support, and support to civilian law enforcement agencies.
III. Defense support of civil authorities
A. The DoD released DoDD 3025.18, Defense Support of Civil Authorities (DSCA), on 29 December 2010, incorporating and canceling DoDDs 3025.15 and 3025.1. Also, on February 27, 2013, the DoD issued DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, which incorporated and canceled DoDDs 3025.12, 5525.5, and 5030.46.
B. It is DoD policy to provide defense support of civil authorities consistent with applicable law, Presidential Directives, Executive Orders, and DoDD 3025.18. Assistance is generally in the form of support; civilian authorities retain primary responsibility and control.
C. Execution and Oversight of DSCA.
1. DoDD 3025.18 provides guidance for the execution and oversight of DSCA when requested by civil authorities or by qualifying entities and approved by the appropriate DoD official, or as directed by the President, within the United States. All requests for assistance from civil authorities and qualifying entities must be evaluated based on the six factors set forth in the directive. Commanders at all levels should use these evaluation factors when providing civil support recommendations up the chain of command, which are referred to as the CARRLL factors.
a. Cost: Who pays, impact on DoD budget.
b. Appropriateness: Whether the requested mission is in the interest of the DoD to conduct.
c. Risk: Safety of DoD forces.
d. Readiness: Impact on the DoD’s ability to perform its primary mission.
e. Legality: Compliance with the law.
f. Lethality: Potential use of lethal force by or against DoD forces.
2. When federal support is requested by the states and, “[u]nless approval authority is otherwise delegated by the Secretary of Defense, all DSCA requests shall be submitted to the office of the Executive Secretary of the Department of Defense.” SECDEF is the approval authority for DoD assistance provided when responding:
a. To civil disturbances.[4]
b. To chemical, Biological, Radiological, Nuclear, and High-Yield Explosives (CBRNE) events.[5]
c. To Civilian law enforcement organizations except as authorized by DoDI 3025.21.[6]
d. With assets with potential for lethality.[7]
e. With use of DoD unmanned aerial systems.[8]
3. When approved by the SECDEF, heads of DoD components will plan, program, and budget for DSCA capabilities in accordance with law, policy, and assigned missions. Combatant Commanders with DSCA responsibilities, with the advisement of the Chief of the National Guard Bureau, will coordinate with the CJCS in the planning and execution of DSCA operations.[9]
IV. Restrictions on Civil Support: The POSSE COMITATUS ACT (PCA)
A. Although the Armed Forces must be ready to provide support to civil authorities, there are significant restrictions on the use of the U.S. military for law enforcement activities within the United States. The PCA criminalizes the use of the Army and Air Force for certain law enforcement activities within the states:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”[10]
To advise commanders properly, especially in the area of civil support, judge advocates must understand the limitations created by the PCA as well as the constitutional and statutory exceptions to the rule.
B. Definition and History.
1. Posse comitatus: “The power of a county: (a) the entire body of the inhabitants who may be summoned by the sheriff to assist in preserving the public peace (as in a riot) or in executing a legal precept that is forcibly opposed including under the common law every male inhabitant who is above 15 years of age and not infirm (b) a body of persons so summoned.”[11]
2. Prior to 1878, the U.S. military was used extensively as a posse comitatus to enforce various laws as diverse as the Fugitive Slave Act and Reconstruction-era laws. Over time, the authority level necessary for local law enforcement to call on the U.S. military as a posse comitatus devolved down to the lowest level. For several reasons (e.g., the Army’s increasingly vocal objection to “commandeering of its troops” and Southerners’ complaints that the Northern-based U.S. military was unfairly enforcing laws against them), Congress sought to terminate the prevalent use of federal Soldiers in civilian law enforcement roles. Accordingly, Congress passed the PCA in 1878 as a rider to an Army Appropriations Act, limiting the circumstances under which the Army could be used as a posse comitatus to “execute the laws.”
C. To Whom the PCA Applies.
1. Active duty personnel in the Army, the Navy, the Marine Corps, the Air Force, or the Space Force.
a. Most courts interpreting the PCA formerly refused to extend its terms to the Navy and Marine Corps.[12]
b. In 10 U.S.C. § 275, Congress directed the Secretary of Defense (SECDEF) to promulgate regulations forbidding direct participation “by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity.” Accordingly, DoD issued DoDI 3025.21.
c. In December 2021, Congress amended 10 U.S.C. § 1385 to specifically include “the Army, the Navy, the Marine Corps, the Air Force, [and] the Space Force” in the PCA, superseding the policy of DoDI 3025.21.
2. The Army Reserve, Air Force Reserve, Naval Reserve and Marine Corps Reserve (collectively the Reserves) when they are in a drilling status (on active duty, active duty for training, or inactive duty for training).
3. Army or Air National Guard personnel only when they are in a Title 10 status formally referred to as the Army or Air National Guard of the United States (ARNGUS/ANGUS).
4. Civilian employees of DoD when under the direct command and control of a U.S. military officer.
D. To Whom the PCA does not apply.
1. A member of a U.S. military service when off duty and acting in a private capacity. A member is not acting in a private capacity when assistance to law enforcement officials is not rendered under the direction or control of DoD authorities.
2. A member of the National Guard when not in federal service (i.e., while serving under state control in Title 32 or State Active Duty status).
3. A member of the Reserves when not on active duty, active duty for training, or inactive duty for training.
4. Members of the Coast Guard.[13]
5. Members of the armed forces who are not a “part of the Army or Air Force.”[14] Since the change in the language of the statute, this exception would presumably be extended to the other services listed.
E. U.S. Military Actions that the PCA Restricts.
1. When determining what actions are covered by the PCA (i.e., what constitutes “execut[ing] the law” under the statute), one must consider both directives and case law, as they are not identical. In fact, case law prohibits a much broader range of activities as “execut[ing] the law.” Some of these issues have been addressed in various Service Judge Advocate General opinions, but other instances will require one to apply the court tests described below.
a. DoDI 3025.21 prohibits direct law enforcement assistance, including:
(1) Interdiction of a vehicle, vessel, aircraft, or other similar activity.
(2) Search or seizure.
(3) Arrest, apprehension, stop and frisk, or similar activity.
(4) Use of U.S. military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators.[15]
b. Analytical framework for PCA violations. There are three separate tests that courts apply to determine whether the use of U.S. military personnel violated the PCA.[16]
(1) Whether the action of the U.S. military personnel was “active” or “passive.”[17]
(2) Whether use of the armed forces pervaded the activities of civilian law enforcement officials.[18]
(3) Whether the U.S. military personnel subjected citizens to the exercise of military power that was: Regulatory (a power that controls or directs); Proscriptive (a power that prohibits or condemns); and/or Compulsory (a power that exerts some coercive force).[19]
2. Military Purpose Activities: Under the “Military Purpose Doctrine,” the PCA does not apply to actions furthering a military or foreign affairs function of the United States.[20] For an action to qualify, the primary purpose of the act must be to further a military interest. Note that civilians may receive an incidental benefit of the military action. Such military actions include:
a. Investigations and other actions related to enforcement of the UCMJ.[21]
b. Investigations and other actions that are likely to result in administrative proceedings by DoD, regardless of whether there is a related civil or criminal proceeding.[22]
c. Investigations and other actions related to the commander’s inherent authority to maintain law and order on a military installation or facility.[23] Civilians may be detained for an on-base violation long enough to determine whether the civilian authorities are interested in assuming the prosecution.[24]
d. Protection of classified military information or equipment.[25]
e. Protection of DoD personnel, DoD equipment, and official guests of the DoD.[26]
f. Other actions undertaken primarily for a military or foreign affairs purpose.[27]
F. Where the PCA Applies – Extraterritorial Effect of the PCA.
1. A 1989 Department of Justice (DOJ) Office of Legal Counsel opinion concluded that the PCA does not have extraterritorial application.[28] This opinion also states that the restrictions of 10 U.S.C. §§ 371-381 (this includes 10 U.S.C. § 275, which was renumbered in 2017), were also not intended to have extraterritorial effect.
2. Some courts have also adopted the view that the PCA imposes no restriction on use of U.S. Armed Forces abroad, noting that Congress intended to preclude military intervention in domestic affairs.[29]
3. Note, however, that DoD policy, as reflected in DoDI 3025.21 applies to all U.S. forces wherever they may be located. Two weeks after the promulgation of the DOJ memo, then-SECDEF Cheney amended DoDI 3025.21 to read that, in the case of compelling and extraordinary circumstances, SECDEF may consider exceptions to the prohibition against direct U.S. military assistance with regard to U.S. military actions outside the territorial jurisdiction of the United States.
G. The Effects of Violating the PCA.
1. Criminal Sanctions. Two years imprisonment, fine, or both.
a. To date, no direct criminal actions have been brought for violations of the PCA. Instead, the issue of posse comitatus has arisen as a “collateral” issue, whether as a defense to a charge by a criminal defendant or in support of an argument for exclusion of evidence. [30]
b. Exclusionary rule. In general, courts have not applied the exclusionary rule to cases where the PCA was violated, generally holding that:
(1) The PCA is itself a criminal statute, thus there is little need to use the deterrent of the exclusionary rule. Also, because there have been no prosecutions under the PCA, its deterrent effect is questionable.[31]
(2) The PCA is designed to protect the rights of all civilians, not the personal rights of the defendant.[32]
(3) Violations of the PCA are neither widespread nor repeated, so the remedy of the exclusionary rule is not needed. Courts will apply the exclusionary rule when the need to deter future violations is demonstrated.[33]
(4) Failure to prove an element. Where the offense requires that law enforcement officials act lawfully, violation of the PCA would negate that element.[34]
(5) The dismissal of charges is not likely to be considered an appropriate remedy.[35]
2. Civil Liability.
a. The PCA is a criminal statute and does not provide for a private cause of action for violations.[36]
b. A violation of PCA may potentially be the basis of a constitutional tort, (i.e., a “Bivens”[37] suit).[38]
c. A violation of the PCA may also be the basis of a Federal Tort Claims Act (FTCA).[39] With exceptions, the FTCA allows suits against the United States for injuries caused by the negligent or wrongful acts or omissions of any federal employee acting within the scope of employment, in accordance with the law of the state where the act or omission occurred. Consequently, a FTCA claim against a Soldier allegedly violating the PCA would be a civil action (likely in Federal District Court after substitution and removal from a state court, if necessary) and the court would apply the state law in the analogous tort action, and federal law.
V. SUPPORT TO CIVILIAN LAW ENFORCEMENT (Exceptions to the PCA)
A. When providing support to civilian law enforcement, there is always a concern that such actions may run afoul of the PCA. The chart above illustrates permissible and non-permissible activities.
B. Although the activities discussed below may be considered law enforcement-like activities, they do not violate the PCA because U.S. military personnel are not providing direct assistance while performing these activities. Further, many of these activities are statutorily directed, and thus may be considered “exceptions” to the PCA. This section is divided into three functional areas of support: (1) loan, maintenance, and operation of equipment and facilities; (2) expert advice and training; and (3) sharing information. Material not otherwise covered in one of these three areas can be found in DoDI 3025.21.
1. Loan, Maintenance, and Operation of Equipment and Facilities.[40] With proper approval, DoD activities may make equipment (including associated supplies and spare parts), base facilities, or research facilities available to federal, state, or local law enforcement officials for law enforcement purposes. There must be no adverse impact on national security or U.S. military preparedness. SECDEF is the approval authority for requests for assistance with the potential for confrontation between DoD personnel and civilian individual groups, as well as any requests for potentially lethal support, including loans of (a) arms; (b) combat and tactical vehicles, vessels, or aircraft; and (c) ammunition.[41] Requests for loans of equipment, facilities, or personnel made by law enforcement agencies, including the Coast Guard when not acting as part of the Navy, shall be made and approved in accordance with DoDI 3025.21, but at a level no lower than a flag or general officer, or equivalent civilian, with the exceptions provided for in Service-specific authorities.[42]
2. Expert Advice and Training.
a. U.S. military personnel may be used to train civilian law enforcement personnel on how to use the equipment that the DoD provides. However, large scale or elaborate training programs are prohibited, as is regular or direct involvement of U.S. military personnel in activities that are fundamentally civilian law enforcement operations. DEPSECDEF has provided policy guidance in this area, via memorandum, which limits the types of training U.S. forces may provide. The policy is based on prudent concerns that advanced training could be misapplied or misused by civilian law enforcement agencies, resulting in death or injury to non-hostile persons. The memorandum permits basic military training, such as basic marksmanship; patrolling; medical/combat lifesaver; mission planning; and survival skills. It prohibits what it terms “advanced military training,” which is defined as “high intensity training which focuses on the tactics, techniques, and procedures (TTP) required to apprehend, arrest, detain, search for, or seize a criminal suspect when the potential for a violent confrontation exists.” Examples of such training include: sniper training; military operations in urban terrain (MOUT); advanced MOUT; and close quarter battle/close quarter combat (CQB/CQC) training (Appendix).
b. However, a general exception exists to provide this advanced training at the U.S. Army Military Police School. Additionally, on an exceptional basis, the Commander, United States Special Operations Command (USSOCOM), may approve training by special operations forces personnel.[43]
c. U.S. military personnel may be asked to provide expert advice to civilian law enforcement personnel. However, regular or direct involvement in activities that are fundamentally civilian law enforcement operations is prohibited. A specific example of this type of expert advisory support is the military working dog team (MWDT) support provided to civilian law enforcement. The military working dog (MWD) has been analogized to equipment, and its handler provides expert advice.[44] Pursuant to 10 U.S.C. § 272, SECDEF may make available equipment to any federal, state, or local law enforcement agencies (LEA) for law enforcement purposes. Therefore, upon request, an MWD (viewed by the DoD as a piece of equipment) may be loaned to law enforcement officials. Moreover, MWD handlers may be made available to assist and advise law enforcement personnel in the use of the MWD under 10 U.S.C. § 273. If a MWD is loaned to an LEA, its U.S. military handlers will be provided to work with the particular MWD. MWD is always loaned with its handler since they work as a team. In all cases, MWDT support may be provided only under circumstances that preclude any confrontation between MWDTs and civilian subjects of search. In addition, MWDTs shall not be used to pursue, track, attack, or hold for apprehension purposes and MWD handlers shall not engage in the execution of a warrant, search, seizure, arrest, or any other activity when such actions would violate the PCA.
d. Weapons of Mass Destruction (WMD). Congress has directed DoD to provide certain expert advice to federal, state, and local agencies with regard to WMD. This advice is provided on a non-reimbursable basis since Congress has appropriated funds for these purposes. (See 50 U.S.C. § 2315. Program of testing and improving the response of civil agencies to biological and chemical emergencies. The Department of Energy runs the program for responses to nuclear emergencies.)
3. Sharing Information.[45] Military Departments and Defense Agencies are encouraged to provide to federal, state, or local civilian law enforcement officials any information collected during the normal course of military operations that may be relevant to a violation of any federal or state law within the jurisdiction of such officials. Collection must be compatible with military training and planning. To the maximum extent practicable, the needs of civilian law enforcement officials shall be taken into account in the planning and execution of U.S. military training and operations. However, DoDI 3025.21 prohibits planning and/or creation of missions or training for the primary purpose of aiding civilian law enforcement officials.
VI. CIVIL DISTURBANCES
A. Article 4, Section 4 of the U.S. Constitution states, “The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.” Amendment X to the U.S. Constitution provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
B. DoD policy, as incorporated in DoDI 3025.21, recognizes that the primary responsibility for protecting life and property and maintaining law and order in the civilian community is vested in the state and local government.[46] Involvement of U.S. military forces will only be appropriate in extraordinary circumstances. Use of the U.S. military under these authorities to conduct law enforcement activities is a specific exception to the PCA. The tiered response to civil disturbances within the states occurs in the following order:
1. Local and state police.
2. The state’s National Guard (normally in state active duty status, but may also be Title 32).
3. Federal civilian law enforcement officials.
4. U.S. military (may also include the National Guard if federalized in their Title 10 status).
C. Subject to certain restrictions, the Insurrection Act[47] permits the President to use the Armed Forces in the following circumstances:
1. An insurrection within a state. The legislature or governor must request assistance from the President.[48]
2. A rebellion making it impracticable to enforce the laws of the United States (i.e., federal law) by the ordinary course of judicial proceedings.[49]
3. To suppress in any state, any insurrection, domestic violence, unlawful combination or conspiracy, if it: (1) hinders execution of state and U.S. law protecting Constitutional rights and the state is unable, fails, or refuses to protect those rights (the state is considered to have denied equal protection under the Constitution); or (2) opposes or obstructs execution of U.S. law or justice.[50]
D. Federal Response. If the President considers it necessary to use the militia (i.e., the National Guard) or the U.S. Armed Forces, the President must first issue a proclamation directing the insurgents to disperse and retire peacefully.[51] Responsibility for the management of the federal response to civil disturbances rests with the Attorney General of the United States. As discussed above, if the President decides to respond to the situation, the President must first issue a proclamation to the persons responsible for the insurrection. The proclamation is prepared by the Attorney General of the United States and directs the people involved in the disturbance to disperse within a limited period of time. The Attorney General of the United States appoints a Senior Civilian Representative of the Attorney General (SCRAG) as the action agent. At the end of the period identified in the proclamation, the President may issue an execute order directing the use of the use of Title 10 Armed Forces.
E. The DoD Response. SECDEF has reserved to himself the authority to approve support in response to civil disturbances.[52] Since the primary responsibility for response to civil disturbances is vested in the State and local governments, if Federal military is approved to provide support, the Federal military personnel remain under Federal control.[53]
F. Emergency Employment of Military Forces.[54]
1. U.S. military forces shall not be used for civil disturbances unless specifically directed by the President, pursuant to 10 U.S.C. §§ 251-255. There is a very limited exception to this rule. When 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.[55] This authority is extremely limited. U.S. military action is permitted only when:
a. Such activities are necessary to prevent significant loss of life or wanton destruction of property, and are necessary to restore governmental functioning and public order, or
b. When duly constituted federal, state, or local authorities are unable or decline to provide adequate protection for federal property or fundamental federal function.
2. Other Considerations. Although employment under these authorities permits direct enforcement of the law by U.S. military forces, the U.S. military’s role in law enforcement is supplementary versus primary. Any employment of Federal military forces in support of law enforcement operations shall maintain the primacy of civilian authority.
VII. Disaster and Emergency Relief (Non-law enforcement DSCA)
A. Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).[56] The overarching purpose of the Stafford Act is to provide an orderly and continuing means of assistance by the Federal government to state and local governments in carrying out their responsibilities to alleviate suffering and damage resulting from a disaster. The Stafford Act is not a statutory exception to the PCA. All missions performed during a disaster relief response are subject to the PCA restrictions. The Stafford Act provides four means by which the Federal government may become involved in a relief effort:
1. The President may declare the area a major disaster.[57] “Major disaster” means ”any 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 President’s determination, 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.”[58] In order for the President to declare a major disaster, (1) the State Governor must request a declaration, (2) the state must have executed its own emergency plan and requires supplemental help (2); and the State certifies that it will comply with cost sharing provisions under the Stafford Act.
2. The President may declare the area an emergency.[59] “Emergency” means ”any 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.”[60] To declare an area an emergency, the same criteria applies as for a major disaster and in addition, the governor must define the type and amount of federal aid required. Total federal assistance may not exceed five million dollars. Operationally, there is no significant distinction between an emergency and a major disaster.
3. DoD “Emergency Work” Authority. The President may direct the SECDEF to use DoD assets on an emergency basis to “preserve life and property.”[61] DoD assets may be provided to the state before any Presidential declaration, but the governor’s request is still required. The use of DoD assets may not last more than 10 days. Additionally, there is very limited authority for use of DoD assets to clear debris and wreckage, and to temporarily restore essential public facilities and services.
4. The President may order the provision of federal assets when an emergency occurs in an area over which the Federal government exercises primary responsibility by virtue of the Constitution or Federal statute.[62] For example, President Clinton exercised this authority on April 19, 1995, when the Murrah Federal Building was bombed in Oklahoma City, Oklahoma. A Governor’s request is not required, although the statute directs consultation with the governor, if practicable. This action results in a Presidential declaration of an emergency regarding a situation for which the primary responsibility to respond is with the Federal government.
5. Types of support authorized under the Stafford Act.
a. Personnel, equipment, supplies, facilities, and managerial, technical, and advisory services in support of relief authorized under the Act.[63]
b. Distribution of medicine, food, and other consumable supplies, and emergency assistance.[64]
c. Utilizing, lending, or donating federal equipment, supplies, facilities, personnel, and other resources to state and local governments.[65]
d. Performing on public or private lands or waters any work or services essential to saving lives and protecting and preserving property, public health, and safety.[66]
(1) Debris removal.
(2) Search and rescue; emergency medical care; emergency mass care; emergency shelter; and provision of food, water, medicine and other essential needs, including movement of supplies and persons.
(3) Clearance of roads and construction of temporary bridges necessary to the performance of emergency tasks and essential community services.
(4) Provision of temporary facilities for schools and other essential community services.
(5) Demolition of unsafe structures that endanger the public.
(6) Warning of further risks and hazards.
(7) Dissemination of public information and assistance regarding health and safety measures.
(8) Provision of technical advice to state and local governments regarding disaster management and control.
(9) Reduction of immediate threats to life, property, and public health and safety.
B. The Federal Response.
1. FEMA, which is part of the Department of Homeland Security (DHS), directs and coordinates the federal response on behalf of the President. In Homeland Security Presidential Directive (HSPD)-5, the President directed the development of a National Response Plan (NRP) to align federal coordinating structures, capabilities, and resources into a unified, all-disciplined, and all-hazards approach to domestic incident management. The DHS published the National Response Plan (NRP) in December 2004 and updated the NRP on May 25, 2006. The National Response Framework subsequently superseded the NRP.
2. The National Response Framework (NRF).[67]
a. The NRF superseded the NRP on March 22, 2008. (DHS published the Fourth Edition on October 28, 2019.) It is “more in keeping with its intended purpose, specifically, simplifying the language, presentation and content; clarifying its national focus; articulating the five principles of response doctrine; and methodically describing the who, what and how of emergency preparedness and response.” The NRF is a guide to how the nation conducts all-hazards response. It is built upon scalable, flexible, and adaptable coordinating structures to align key roles and responsibilities across the Nation, linking all levels of government, nongovernmental organizations, and the private sector. It is intended to capture 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.
b. The core NRF document describes the doctrine that guides the national response, roles and responsibilities, response actions, response organizations, and planning requirements to achieve an effective national response to any incident that occurs. It consists of the following components:
(1) The Emergency Support Function (ESF) Annexes group federal resources and capabilities into functional areas that are most frequently needed in a national response (e.g., Transportation, Firefighting, and Mass Care).
(2) The Support Annexes describe essential supporting aspects that are common to all incidents (e.g., Financial Management, Volunteer and Donations Management, Private-Sector coordination).
(3) The Incident Annexes address the unique aspects of how to respond to seven broad incident categories (e.g., Biological, Nuclear/Radiological, Cyber, and Mass Evacuation).
(4) The Partner Guides provide ready references describing the key roles and actions for local, tribal, state, Federal and private-sector response partners.
c. The NRF applies a functional approach that groups the capabilities of federal departments and agencies and the American Red Cross into ESFs to provide the planning, support, resources, program implementation, and emergency services that are most likely to be needed during actual or potential incidents where a coordinated federal response is required. The NRF contains 15 ESFs for which certain federal agencies are the coordinator, a primary agency, or a support agency, or serve in two or all of the capacities. For example, the DoD/U.S. Army Corps of Engineers is the Coordinator and a Primary Agency for ESF #3 (Public Works and Engineering), and the DoD is a Primary Agency for ESF #9 (Search and Rescue). The DoD serves as a support agency for all 15 ESFs.
d. Joint Field Office (JFO). The JFO is the primary federal incident management field structure. It is a temporary federal facility that provides a central location for the coordination of federal, state, tribal, and local government and private-sector and nongovernmental organizations with primary responsibility for response and recovery.
(1) The Principal Federal Official (PFO). By law and Presidential directive, the Secretary of Homeland Security is the PFO responsible for coordination of all domestic incidents requiring multiagency federal response. The Secretary may elect to designate a single individual to serve as his or her primary representative who serves as the PFO in the field.
(2) The Federal Coordinating Officer (FCO). For Stafford Act incidents, upon the recommendation of the FEMA administrator and the Secretary of Homeland Security, the President appoints an FCO. The FCO is a senior FEMA official trained, certified, and well-experienced in emergency management, and specifically appointed to coordinate federal support in the response to and recovery from emergencies and major disasters.
(3) Defense Coordinating Officer (DCO). The DCO is the DoD’s single point of contact at the JFO. DoD has appointed ten DCOs and assigned one to each FEMA region. The DCO coordinates requests for DSCA with the exception of requests for U.S. Army Corps of Engineers support, National Guard forces operating in State Active Duty or Title 32 status (i.e., in a state, not federal status), or, in some circumstances, DoD forces in support of the FBI. Specific responsibilities of the DCO (subject to modification based on the situation) include processing requirements for U.S. military support, forwarding mission assignments to the appropriate military organizations through DoD-designated channels, and assigning military liaisons, as appropriate, to activated ESFs.
C. The DoD Response.
1. DoD Policy. DoDD 3025.18 governs all planning and response by DoD components for defense support of civil authorities, with the exception of contingency war plans and U.S. military support provided to civilian law enforcement agencies under DoDI 3025.21. DSCA shall include, but is not limited to, support similar to that described in para 2(c) of DoDD 3025.18, including U.S. military assistance provided to civilian law enforcement agencies (DoDD 3025.18, para. 2(c)(5)).
2. The Assistant Secretary of Defense for Homeland Defense and Global Security (ASD(HD&GS), formerly the ASD for Homeland Defense and Americas’ Security Affairs) is responsible for policy oversight (legality, cost, lethality, appropriateness, risk, readiness impact), supervises HD activities, and serves as the liaison between the DoD and lead federal agencies (LFAs).
3. Supported CCDRs. The U.S. Northern Command (USNORTHCOM) DSCA area of responsibility (AOR) includes air, land, and sea approaches and encompasses the continental United States, Alaska, Canada, Mexico, the Bahamas, Puerto Rico, the Virgin Islands, the Gulf of Mexico, the Straits of Florida, and the surrounding water out to approximately 500 nautical miles. The U.S. Indo-Pacific Command (USINDOPACOM) DSCA AOR includes Hawaii and U.S. territories and possessions in the Pacific.
4. Supporting CCDRs. Within its geographic AOR, the United States Southern Command (USSOUTHCOM) is responsible for foreign humanitarian assistance/disaster relief (FHA/DR), which is similar to, but not the same as, DSCA. USSOUTHCOM is therefore a supporting CCDR for DSCA.
5. Immediate Response Authority (IRA).[68]
a. 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, Federal military commanders, Heads of DoD Components, and/or responsible DoD civilian officials (DoD officials) may 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. Immediate response authority does not permit actions that would subject civilians to the use of U.S. military power that is regulatory, prescriptive, proscriptive, or compulsory.[69]
b. Types of support authorized include:
(1) Rescue, evacuation, and emergency treatment of casualties; maintenance or restoration of emergency medical capabilities; and safeguarding the public health.
(2) Emergency restoration of essential public services (such as firefighting, water, communication, transportation, power, and fuel).
(3) Emergency removal of debris and explosive ordnance.
(4) Recovery and disposal of the dead.
c. This type of support is provided on a cost-reimbursable basis, but assistance should not be denied because the requester is unable or unwilling to commit to reimbursement.[70]
d. NOTE: This is a very limited authority and should only be invoked in bona fide emergencies. Contemporaneous coordination with higher headquarters should always occur in these scenarios as well as in any other case potentially involving this type of assistance to civil authorities.[71]
6. Disaster Support Involving Law Enforcement Activities.
a. The Stafford Act is not an exception to the PCA. Therefore, any support that involves direct involvement in the enforcement of civilian law must undergo the PCA analysis discussed above. Typical areas of concern include directing traffic, guarding supply depots, and patrolling.
b. National Guard personnel acting under state authority (either state active duty or under Title 32) should be the organization of choice in these areas.
c. Law enforcement duties that involve U.S. military functions may be permissible (i.e., guarding a military supply depot).
VIII. DUAL STATUS COMMAND AUTHORITIES
A. Unity of Command and Unity of Effort are significant concerns during a DSCA event. Disaster responses may involve federal, state and local civilians, non-profit organizations, the National Guard, and the U.S. military all responding. The total military response may include both the National Guard, operating in a state capacity under the direction of their Governor, and the U.S. military, operating under the direction of the President. To unify the total military response, federal law permits a “dual-status commander” to command both U.S. military personnel in Title 10 status and National Guard personnel in a Title 32 or state active duty status. This dual-status commander simultaneously holds a state commission and a federal commission. As a result, the commander may direct both state and federal forces to coordinate the total military response and provide a unity of effort.
B. Dual-status commander operates two chains of command simultaneously. The commander receives orders from both State and Federal superiors. These two separate chains of command flow through different sovereigns that recognize and respect a dual-status commander’s duty to treat the chains in a mutually exclusive manner. As such, a dual-status commander typically establishes his or her own subordinate federal and state chains of command, having both a U.S. military staff and a National Guard staff. The subordinate officers on each staff operate in only one status, state or federal.
(1) National Guard Dual Status Commander. 32 U.S.C. § 325(a)(2) provides limited authority for a National Guard officer to serve simultaneously in both state and federal statuses.[72] The dual-status commander can concurrently command both federal (Title 10) and state (Title 32, State Active Duty) forces. This dual status requires the authority of the President (currently delegated to the SECDEF) and the consent of the officer’s Governor to serve in both duty statuses. The National Guard dual-status command authority has been used during pandemic, hurricane, and National Special Security Events (NSSEs). An NSSE is a highly visible, well-attended event that, if attacked by terrorists, would have significant impact on our country because of physical and psychological damage (i.e., the G8 Summit, the Republican and Democratic National Conventions, and the Super Bowl).
(2) Active Component Dual-Status Commander. Pursuant to 32 U.S.C. § 315, the Secretaries of the Army or Air Force may detail regular officers to duty with the National Guard, and with the permission of the President, the detailed officer may accept a commission in the National Guard without vacating his or her regular appointment. The state or territory would have to commission the officer in its National Guard for him or her to command its National Guard forces serving under state authority. State law will dictate the requirements and procedures for such appointment and would typically require the Governor’s consent.
IX. COUNTERDRUG SUPPORT
A. Detection and Monitoring (D&M). Pursuant to 10 U.S.C. § 124, the DoD is the lead federal agency for D&M of aerial and maritime transit of illegal drugs into the United States. Accordingly, D&M is a DoD mission. Although it is a DoD mission, D&M is to be carried out in support of Federal, State, and local law enforcement authorities. Note that the statute does not extend to D&M missions covering land transit (i.e., the Mexican-U.S. border). Interception of vessels or aircraft is permissible outside the land area of the United States to identify and direct the vessel or aircraft to a location designated by the supported civilian authorities. D&M missions involve airborne (AWACs, aerostats), seaborne (primarily U.S. Navy vessels), and land-based radar (to include Remote Over The Horizon Radar (ROTHR)) sites. This mission is not covered by CJCSI 3710.01B.
B. The National Guard. Pursuant to 32 U.S.C. § 112, SECDEF may make Federal funding available for the National Guard drug interdiction and counterdrug activities, to include pay, allowances, travel expenses, and operations and maintenance expenses. The State must prepare a drug interdiction and counterdrug activities plan. DoD’s Office of Drug Enforcement Policy and Support (DEP&S) reviews each state’s implementation plan and disburses funds. It is important to note that although the NG is performing counterdrug support operations using federal funds and under federal guidance, it remains a state militia force (ANG/ARNG under Title 32) and is not to be considered a federal force (ANGUS/ARNGUS under Title 10) for purposes of the PCA. Although the NG is not subject to the restrictions of the PCA while not in federal status, the National Guard Bureau (NGB) has imposed a number of policy restrictions on counterdrug operations.[74]
C. Additional Support to Counterdrug (CD) Agencies.
1. In addition to the authorities contained in 10 U.S.C. §§ 271-277 (discussed above), Congress has given DoD additional authorities to support federal, state, local, and foreign entities that have counterdrug responsibilities in 10 U.S.C. § 284.
2. This statute is the primary authority for counterdrug operations and permits broad support to federal, state, and local law enforcement agencies that have counterdrug responsibilities. The statute also provides support to foreign law enforcement agencies when requested by a federal counterdrug agency (typically, the Drug Enforcement Agency or member of the State Department Country Team that has counterdrug responsibilities within the country).
3. Types of support.[75]
a. Equipment maintenance.
b. Transportation of personnel (U.S. & foreign), equipment and supplies CONUS/OCONUS.
c. Establishment of bases of operations CONUS/OCONUS.
d. Counterdrug-related training of law enforcement personnel, including associated support and training expenses.
e Detection and monitoring of air, sea, and surface traffic outside the United States, and within 25 miles of the border if the detection occurred outside the United States.
f. Engineer support (e.g., construction of roads, fences, and lights) along the U.S. border.
g. Command, control, communication, and intelligence and network support.
h. Linguist and intelligence analyst services.
i. Aerial and ground reconnaissance.
j. Diver support.
k. Tunnel detection support.
l. Use of military vessels for law enforcement agencies operating bases by Coast Guard personnel.
m. Technology demonstrations.
4. Training of law enforcement personnel.[76]
a. Geographic Combatant Commanders (GCCs) may approve counterdrug-related training of foreign law enforcement personnel requiring no more than 50 theater-assigned personnel for no more than 45 days with host nation (HN) and Country Team approval and notification.
b. GCCs may approve counterdrug-related technical and administrative support team deployments requiring no more than 25 personnel for no more than 179 days with HN and Country Team approval and notification.
X. MISCELLANEOUS SUPPORT
A. Sensitive Support. Details contained in DoDD S-5210.36 (a controlled document).
B. Law Enforcement Detachments (LEDETs).[77] U.S. Coast Guard personnel shall be assigned to U.S. Navy vessels operating in drug interdiction areas. Such personnel have law enforcement powers and are known as LEDETs. When approaching a contact of interest, tactical control (TACON) of the vessel shifts to the Coast Guard. As a “constructive” Coast Guard vessel, the ship and its crew are permitted to participate in direct law enforcement. However, to the maximum extent possible, law enforcement duties should be left to Coast Guard personnel. Military members should offer necessary support.
C. Emergencies Involving Chemical or Biological Weapons. SECDEF, upon request of the Attorney General, may provide assistance in support of DOJ activities during an emergency situation involving a biological or chemical weapon of mass destruction.[78]
1. DoD Rapid Response Team. The SECDEF shall develop and maintain at least one domestic terrorism rapid response team composed of members of the Armed Forces and employees of the DoD who are capable of aiding federal, state, and local officials in the detection, neutralization, containment, dismantlement, and disposal of weapons of mass destruction containing chemical, biological, radiological, nuclear, and high-yield explosives (CBRNE).[79] The U.S. Marine Corps Chemical Biological Incident Response Force (CBIRF) has the mission to, when directed, forward-deploy and /or respond to a credible threat of a CBRNE incident in order to assist local, state, or federal agencies and Combatant Commanders in the conduct of consequence management operations. CBIRF accomplishes this mission by providing capabilities for agent detection and identification; casualty search, rescue, and personnel decontamination; and emergency medical care and stabilization of contaminated personnel.
2. National Guard Weapons of Mass Destruction Civil Support Teams (WMD-CSTs).[80] Each team consists of twenty-two highly skilled, full-time Army and Air National Guard members who are state controlled, federally resourced, trained, and exercised, employing federally-approved response doctrine. In 2002, Congress required the establishment of fifty-five teams, providing at least one team is established in each state (two in California) and territory (U.S. Virgin Islands, Puerto Rico, Guam) and Washington, D.C. Their missions primarily fall under the command and control of state or territory officials; however, if the teams are federalized, they would likely fall under the command and control of Joint Task Force, Civil Support (JTF-CS).
D. Miscellaneous Exceptions. DoDI 3025.21 contains a list of statutes that provide express authorization for the use of U.S. military forces to enforce the civil law. Among them are protection of the President, Vice President and other dignitaries, and assistance in the case of crimes against members of Congress or foreign officials or involving nuclear materials.
XI. CONCLUSION
The U.S. military will always be called to defend the Homeland from attack. It must also continue to be prepared to assist civil authorities in a variety of missions from disaster relief to suppressing insurrections. The laws and policies pertaining to the use of DoD for domestic operations are dynamic and continues to evolve. The terrorist attacks of September 11, 2001, and significant disasters such as Hurricane Katrina, the 2010 Gulf of Mexico oil spill, and the COVID-19 pandemic response have resulted in changes in federal response law, philosophy, guidance, structure, and capabilities. Consequently, it is imperative that judge advocates practicing domestic operations stay abreast of these changes to ensure that U.S. military involvement in such operations complies with all applicable laws, regulations, and DoD guidance.
XII. REFERENCES
A. Military Support for Civilian Law Enforcement Agencies, 10 U.S.C. §§ 271-284.
B. Insurrection Statutes, 10 U.S.C. §§ 251-255.
C. Operations Relating to Defense Against Weapons of Mass Destruction and Terrorist Attacks, 10 U.S.C. § 12310(c).
D. Posse Comitatus Act, 18 U.S.C. § 1385.
E. Drug Interdiction and Counter-Drug Activities, 32 U.S.C. § 112.
F. Stafford Act, 42 U.S.C. § 5121, et seq.
G. Defense Against Weapons of Mass Destruction Act, 50 U.S.C. § 2301, et seq.
H. Homeland Security Act of 2002, Pub. L. No. 107-296 (2002).
I. National Response Framework, October 2019.
J. Homeland Security Presidential Directive (HSPD)-5 (28 Feb. 2003).
K. Joint Chiefs of Staff, Joint Pub. 3-28, Defense Support of Civil Authorities (DSCA) (29 October 2018).
L. U.S. Dep’t of Defense, Dir. 3025.18, Defense Support of Civil Authorities (29 Dec. 2010, Incorporating Change 2, 19 Mar. 2018).
M. U.S. Dep’t of Defense, Instr. 3025.21, Defense Support of Civilian Law Enforcement Agencies Encl. 4 (27 Feb. 2013) (C1, 8 February 2019).
N. U.S. Dep’t of Defense, Manual. 3025.21, Vol. 1, Defense Support of Civil Authorities: Overview (11 Aug. 2016) (C1, 13 Apr. 2017).
O. U.S. Dep’t of Defense, Manual. 3025.21, Vol. 2, Defense Support of Civil Authorities: DoD Incident Response (11 Aug. 2016) (C1, 12 Apr. 2017).
P. U.S. Dep’t of Defense, Manual. 3025.21, Vol. 3, Defense Support of Civil Authorities: Pre-Planned DoD Support of Law Enforcement Agencies, Special Events, Community Engagement, and Other Non-DoD Entities (11 Aug. 2016) (C1, 13 Apr. 2017).
Q. U.S. Dep’t of Defense, Instr. 3025.22, The Use of the National Guard for Defense Support of Civil Authorities (26 July 2013, Incorporating Change 1, 15 May 2017).
R. U.S. Dep’t of Defense, Dir. 5210.56, Arming and the Use of Force (18 Nov. 2016) (C1, 6 Nov. 2020).
S. U.S. Dep’t of Defense, Dir. 5200.31E, DoD Military Working Dog (MWD) Program (10 Aug. 2011) (C1, 6 Nov. 2020).
T. U.S. Dep’t of Defense, Instr. 6055.06, DoD Fire and Emergency Services (F&ES) Program (3 Oct. 2019, Incorporating Change 1, 21 Sept. 2020).
U. Joint Chiefs of Staff, Instr. 3710.01B, DoD Counterdrug Support (26 Jan. 2007).
V. U.S. Dep’t of Army, Reg. 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security Duties (12 Mar. 1993).
W. U.S. Dep’t of Army, Reg. 700-131, Loan, Lease, and Donation of Army Materiel (23 Aug. 2004)
X. U.S. Dep’t of Army, Field Manual 3-07, Stability (June 2014).
Y. Chief, National Guard Bureau, Instr. 3000.04, National Guard Bureau Domestic Operations (24 Jan. 2018).
Z. U.S. National Guard Bureau, Reg. 500-2/ANGI 10-801, National Guard Counterdrug Support (29 Aug. 2008) (Currently under re-write as a CNGB Manual. Estimated publication date, end of FY21).
AA. U.S. Dep’t of Navy, SECNAV Instr. 5820.7C, Cooperation with Civilian Law Enforcement Officials (26 Jan. 2006).
BB. U.S. Dep’t of Navy, OPNAV Instr. 3440.16E, Navy Defense Support of Civil Authorities Program (18 May 2016).
CC. U.S. Dep’t of Air Force, Instr. 10-801, Defense Support of Civil Authorities (DSCA) (23 Dec. 2015)
DD. U.S. National Guard Bureau, Reg. 500-5/ANGI 10-208, National Guard Domestic Law Enforcement Support and Mission Assurance Operations (18 Aug. 2010)
Appendix
The Deputy Secretary of Defense Washington D.C. 20301-1000
29 JUN 1996
MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
UNDER SECRETARIES OF DEFENSE
COMMANDERS-IN-CHIEF OF THE UNIFIED COMBATANT COMMANDS
ASSISTANT SECRETARIES OF DEFENSE
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE
DIRECTOR OF ADMINISTRATION AND MANAGEMENT
CHIEF, NATIONAL GUARD BUREAU
SUBJECT: DoD Training Support to U.S. Civilian Law Enforcement Agencies
This directive-type memorandum provides the DoD policy for providing advanced military training to U.S. civilian law enforcement agencies.
It is DoD policy that no advanced military training will be provided to U.S. civilian law enforcement agency (CLEA) personnel, except as noted below. “Advanced military training,” in the context of this policy, is defined as high intensity training which focuses on the tactics, techniques, and procedures (TTPs) required to apprehend, arrest, detain, search for, or seize a criminal suspect when the potential for a violent confrontation exists. “Advanced military training” includes advanced marksmanship (including sniper training), military operations in urban terrain (MOUT), advanced MOUT, close quarters battle/close quarters combat (CQB/CQC), and similar specialized training. It does not include basic military skills such as basic marksmanship, patrolling, mission planning, medical, and survival skills.
As a single general exception to this policy, the U.S. Army Military Police School is authorized to continue training CLEA personnel in the Counterdrug Special Reaction Team Course, the Counterdrug Tactical Police Operations Course, and the Counterdrug Marksman/Observer Course. Additionally, on an exceptional basis, the Commander-in-Chief, U.S. Special Operations Command (USCINCSOC) may approve such training by special operations forces. In such cases, USCINCSOC will inform the Executive Secretary to the Secretary of Defense of the training support provided. Similarly, the U.S. Army MP School will continue to report training performed in accordance with existing procedures.
Those portions of applicable DoD Directives and Instructions relating only to the procedures for coordination and approval of CLEA requests for DoD support are not affected by this memorandum. Those portions of such directives that address the substance of training that may be provided to CLEAs will be revised to reflect this change in policy within 90 days.
The Under Secretary of Defense for Policy will notify civilian law enforcement agencies through appropriate means of this change in policy.
/s/ JOHN P. WHITE
14 U.S.C. § 2; Jackson v. Alaska, 572 P.2d 87 (Alaska 1977).
United States v. Chon, 210 F.3d 990 (9th Cir. 2000), cert. denied, 531 U.S. 910 (2000) (NCIS investigation of civilians undertaken for independent purpose of recovering military equipment was permissible); DoDI 3025.21.
10 U.S.C. §§ 272 and 274; DoDI 3025.21 supra note 15
U.S. Dep’t of Army, Reg. 700-131, Loan, Lease, and donation of Army Materiel (23 Aug. 2004) [hereinafter AR 700-131], U.S. Dep’t of Navy, Sec’y Navy Instr. 5820.7C, Cooperation with Civilian Law Enforcement Officials (26 Jan. 2006) [hereinafter SECNAVINST 5820.7C]; and U.S. Dep’t of Air Force, Instr. 10-801, Defense Support of Civil Authorities (29 Jan. 2020) [hereinafter AFI 10-801].
DoDD 3025.18, supra note 4, para. 4.j.(1).
42 U.S.C. § 5121, et seq; DoDD 3025.18; The National Response Framework (NRF) (See https://www.fema.gov/media-library/assets/documents/117791).
42 U.S.C. §§ 5140a(4) and 5192(a)(7).
The distance from the incident to the DoD office or installation is not a limiting factor for the provision of support under immediate response authority. However, DoD officials should use the distance and the travel time to provide support as a factor in determining DoD’s ability to support the request for immediate response. Joint Pub. 3-28, II-6