Jenny Durkan, the mayor of Seattle, addresses Soldiers from the 62d Medical Brigade during her visit to the Seattle Convention Center in April 2020. (Photo credit: PFC Laurie Ellen Schubert)
Practice Notes
U.S. Army North OSJA Actions in the COVID-19 Response
By Major Isaiah M. Garfias, Captain Charles R. Eiser, & Captain David J. Bryant
The Big Picture
The Department of Defense (DoD) response to the coronavirus disease of 2019 (COVID-19) is a domestic response on a scale never before seen. United States Army North (USARNORTH)—the Army Service Component Command responsible for domestic response operations, headquartered in Joint Base San Antonio- Fort Sam Houston, Texas—led the Army’s response effort to this catastrophic event. Strictly by the numbers, USARNORTH oversaw 8,208 DoD personnel operating across five Regional Task Forces and ten Regional Defense Coordinating Elements (DCE). In addition, USARNORTH employed fourteen Urban Augmentation Medical Task Forces (UAMTF). In total, there were 4,400 medical personnel on the ground treating civilians.1
The path that leads to military service providers treating civilians is a long one that is legally and administratively nuanced; and, it is uniquely juxtaposed against the immediate need to save lives and prevent human suffering. The balancing of proper authorities, potential claims for liability, and the constitutional protections of U.S. citizens are but a few of the issues that have arisen from the DoD COVID-19 response. To fully understand the DoD response during COVID-19, one must first understand the role of USARNORTH and the unique mission set of the USARNORTH Office of the Staff Judge Advocate (OSJA).
Responding to a DSCA Event
While USARNORTH’s first priority is Homeland Defense, it is also responsible for coordinating Defense Support of Civil Authorities (DSCA) for disaster or emergency response efforts.2
For context, it is helpful to understand how the Army responds to a
“typical” domestic disaster. The situation routinely begins with a
weather or news report. The usual suspect is a hurricane barreling
toward the United States—think Florida or states on the Gulf of Mexico.
As the situation starts to develop, the
Tenth Amendment to the U.S. Constitution becomes relevant. The Tenth
Amendment states 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.”3 In the case of a domestic disaster response, we are mostly concerned with a state’s retained police powers. Because the states did not give up their police powers, it is the responsibility of the state to prepare for and respond to a natural disaster and protect the general welfare of its inhabitants. The Federal Government can, and usually does, provide support to a state in a disaster response; but, in order for the Federal Government to have the authority to take action, the state must take the lead and generally needs to request help from the Federal Government.
Following a hypothetical hurricane response example, the state of Florida gets a weather report stating that a Category 5 hurricane is heading its way. If the Governor believes the expected impacts will be severe enough, he will declare a state of emergency. The Governor marshals assets and determines whether the state needs federal assistance. If the Governor determines federal assistance is needed, the Governor will ask the President to make a Stafford Act4 declaration; this makes more federal resources available to the President to assist the state with their response and recovery effort. The state then starts requesting specific types of support. This request comes in the form of a document called a Request for Assistance (RFA) and is sent to the Federal Emergency Management Agency (FEMA). The Federal Emergency Management Agency staffs the request and then makes a determination whether, and how, the request can be fulfilled.
In many cases, the DoD is determined to not be the most appropriate federal agency to provide the requested support. In those cases, the more appropriate agency provides the support.5 If the capability is more appropriately provided by the DoD, as in the case of aviation assets or high water vehicles, the DoD is then asked to support. The RFA is forwarded to the Defense Coordinating Officer (DCO), a USARNORTH asset, for validation and then to either the Combatant Commander or the Secretary of Defense for approval. Once approved, the request becomes a Mission Assignment (MA). The MA is then pushed down through USNORTHCOM and USARNORTH to be prepared to receive a specific unit capable of performing the task as a Mission Assignment Task Order (MATO). United States Forces Command determines which unit is most capable of completing the MATO. Once decided, USARNORTH assumes operational control, commonly referred to as OPCON. If the sourced unit is an Air Force, Navy, or Marine Corps unit, USARNORTH assumes tactical control, commonly referred to as TACON. United States Army North coordinates the logistics, provides needed staffing, and publishes orders for the subordinate units.
In between USARNORTH and the unit is a Joint Task Force which is forward on the ground in the disaster area. This task force receives and processes all units through joint reception, staging, onward movement, and integration (JRSO&I); it also provides logistical support. The Joint Task Force judge advocate (JA) is usually the one who provides the unit a legal briefing during JRSO&I. Thereafter, the subordinate unit begins to provide the requested capability to the state and local government.
Legal Limitations
Operating solely within the domestic environment brings unique legal challenges that are not commonly presented to most OSJAs, specifically within their national security law sections. Military operations taking place within the homeland are subjected to significant limitations, forcing JAs to strictly scrutinize all operations and ensure their commands conform to domestic law and policy. These limitations ensure the constitutional protections afforded to citizens of the United States are not disrupted. The legal limitations include the Standing Rules for the Use of Force6 (SRUF), the Posse Comitatus Act7 (PCA), and intelligence oversight and sensitive information policy.8 Each of these limitations is necessary to understand the unique legal issues USARNORTH OSJA faced during the COVID-19 response.
The SRUF applies when Title 10 Service members are operating within U.S. territory.9 These rules were specifically codified based on domestic and constitutional laws and provide guidance on using force domestically, presumably against civilians.10 Compare this to the more widely known Standing Rules of Engagement (SROE), designed to provide guidance on how to effectively engage an enemy in combat operations outside the United States. When providing training to Service members operating domestically, it is crucial for the instructing JA to distinguish between these two sets of rules.
Both sets of rules are codified in the Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for
U.S. Forces.11 While “hostile act” and “hostile intent” guidance is present in both the SROE12 and the SRUF,13 the differences between the sets of rules are significant. For example, the SRUF does not include escalation of force criteria, colloquially known as the “5 Ss” (shout, show, shove, shoot to warn, shoot to kill).14 Instead, when acting under the SRUF, if a Service member faces a “hostile act” or a “hostile intent,” they must attempt de-escalation measures and exercise their inherent right of self-defense; however, they may not apply the same escalation of force principles they may have learned in their SROE instruction.15
The PCA has a unique and nuanced history within the United States and is widely written about and discussed.16
Put simply, the PCA prohibits Title 10 Service members from conducting
law enforcement functions within the homeland absent an exception.17
Exceptions to the PCA are rarely invoked and must come from either the
Constitution or Congress.18 When operating within the homeland, Title 10 Service members must receive a PCA briefing explaining their limitations and how they may respond to requests for assistance.19
It is vital for all DoD personnel who operate domestically to fully understand and integrate intelligence oversight and sensitive information policies into their knowledge base. Protecting Americans’ right to privacy is balanced against the DoD’s need to provide security, often by using intelligence assets to gain information about an area where Service members will be operating. The servicing JA must understand their commander’s left and right limits to ensure they can obtain as much key information as possible, while also upholding Americans’ civil and privacy rights. Walking this tightrope can prove challenging and sometimes places the bulk of the burden on the JA, especially in the domestic context.
Fiscal considerations also give rise to unique issues. The Economy Act20 and the Stafford Act21 are the statutes with fiscal considerations that are most commonly invoked during domestic operations. Both are applied under specific guidelines and are highly regulated to ensure compliance with those guidelines. The Economy Act allows one federal agency to order goods and services from other federal agencies, but every agency requesting that service or goods is required to pay for it.22
The Stafford Act makes it mandatory, with limited exceptions, for the
servicing federal agency to be reimbursed for “incremental” costs they
expended during an operational response mission, such as a hurricane or
pandemic.23 Attorneys must ensure the correct “pot of money” is being used at all times. Maintaining fiscal responsibility can be extremely challenging in the very dynamic domestic operations environment because operations are executed on short timelines and assets and capabilities are unknown.
Providing legal support to the USARNORTH Headquarters requires a firm understanding of the authorities that allow the DoD to operate in a domestic setting. As a JA, operating domestically is a unique mission set and requires substantial expertise. This expertise balances the DoD mission with the constraints present in the SRUF, the PCA, the constitutional protections inherent to all U.S. persons, Intelligence Oversight restrictions, and unique domestic threats. The USARNORTH Headquarters does an excellent job overseeing the use of DoD forces domestically, which is enabled by its persistent attorneys integrating with the staff and taking every opportunity to educate their teammates. Currently, the USARNORTH OSJA has a handful of elite civilian subject matter experts that have, time and time again, proven invaluable at ensuring DoD personnel operating domestically do not violate U.S. persons’ constitutional protections. These subject matter experts teach at USARNORTH and around the country on topics such as Intelligence Oversight, the PCA, the Insurrection Act,24
the Stafford Act, the Economy Act, Immediate Response Authority,25
and the SRUF, just to name a few.
COVID-19
The “typical” domestic disaster that requires a DoD response is usually
concentrated in a particular area, like Hurricane Katrina in New
Orleans, Hurricane Maria in Puerto Rico, or even the security of the
Southwest Border. The difference between the above examples and COVID-19
are twofold: 1) the expansive nature of the pandemic requires multiple
command elements and 2) it is a threat that requires a unique response.
Historically, USARNORTH had one task force assigned to coordinate with
the state and local government; COVID-19 required five. A “typical”
disaster response prompts one or a handful of states to declare a state
of emergency. During COVID-19 all of the states declared a state of emergency. At the risk of belaboring the obvious to a reader that has undoubtedly been affected by the pandemic, it needs to be stated that the magnitude of the COVID-19 threat was unprecedented, and the DoD response was a testament to the adaptability, endurance, and persistence of the U.S. military.
In the case of the USARNORTH response to COVID-19, DoD assistance mostly came in the form of medical and engineering capabilities. For example, fourteen of the Army’s fifteen UAMTFs augmented the medical staffs in civilian hospitals throughout the country. The U.S. Navy’s (USN) USS Comfort and USS Mercy hospital ships treated overflow patients from civilian hospitals. The U.S. Army Corps of Engineers (USACE), developed and constructed hospital overflow capacity at multiple sites. The COVID-19 response presented significant logistical and coordination challenges based on the scope of required assistance and the duty to protect those individuals providing the assistance from being infected; these challenges included the adherence to social distancing policies and personal protective equipment protocols. Any DSCA response requires coordination with FEMA and local, municipal, township, and state governments. This is necessary to implement the correct capabilities under the correct authorities. In a normal DSCA response, leadership can work through logistical and capability requirements with all the interested parties in the same room, setting expectations and hashing out roles and responsibilities. The COVID-19 outbreak required a DoD response across the entire United States, with logistical support predominantly provided by a workforce adapting to a remote working environment.
The DoD response to COVID-19 was exceptional and something this Nation should view with a sense of pride. It was also beset by challenges never before faced and required DoD, USNORTHCOM, and USARNORTH to adapt quickly and effectively to ensure they were never “late to need.”
Legal coordination also presented unique challenges. During COVID-19, the USARNORTH OSJA coordinated legal support from all five Joint Task Forces and the subordinate DCEs. Approximately ninety-one26 Judge Advocate General’s Corps (JAG Corps) personnel supported the COVID-19 response. This legal support was spread across the nation and required solving myriad unique legal problem sets based on 1) the nature of the task force or DCE and 2) the area in which they were operating. For example, subordinate legal advisors presented the headquarters with legal issues ranging from liability for DoD medical personnel, Privacy Act violations, and potential intelligence oversight issues, to ethics surrounding the acceptance of gifts and Reserve mobilization statute issues. Providing support to address these issues posed many challenges that arise only in the DSCA context. It was accomplished by maintaining consistent operational communication, establishing an USARNORTH National Security Law Division (NSLD) legal synch with subordinate legal advisors, publishing a legal annex with guidance on expected legal issues, maintaining a shared inbox to field legal inquiries, and cross-leveling legal guidance and best practices on a daily basis. Some of the unique legal issues our office fielded are discussed below.
Legal Issues Addressed
Medical Practice
The rapid influx of DoD health care providers (HCPs) to temporary and makeshift medical facilities, and eventually to private and public healthcare facilities, presented a host of credentialing issues unique to these disparate local jurisdictions. Licenses, credentials, and privileges are terms of art within the medical field, each requiring a baseline understanding by the JA. A medical license is the occupational license—bestowed either by an approved professional association or agency, following testing by a medical board—that permits the HCP to legally practice medicine.27 Credentials are documents maintained by the medical facility where the HCP works. They constitute evidence of an HCP’s qualifications.28 Based on the HCP’s credentials, the medical facility will give permission to the HCP to provide specific medical and other health care services to patients in the facility. This permission is called “privilege.”29 Upon domestic deployment into COVID-19 hotspots, state licensing portability acts and federal disaster privilege statues abolished requirements that DoD or civilian HCPs be credentialed or privileged in the local jurisdiction. DoD HCPs report to and are under the supervision of the Medical Treatment Facility Commander.30 The Commander validates the specific licensing or certification level necessary for each HCP.31
Early in the MA process, and during the deployment of HCPs outside of a DoD medical treatment facility, FEMA Regions recognized the failures of the draft language within the Statements of Work32 to address credentialing, privileges, liability, patient billing, etc. In an attempt to proactively and uniformly address these shortcomings, a USARNORTH civilian legal expert drafted a Memorandum of Agreement (MOA) template.33 Following discussions with a FEMA Regional Counsel, USNORTHCOM adopted the MOA as standard operating procedure and not only directed subordinate units to use the MOA template, but issued Office of the Secretary of Defense (OSD)-required language for future MAs. This language addressed the appropriate authority for DoD HCPs to work in local hospitals and eliminated the need for discussion of liability coverage.
Gifts/Meals
The well-settled prohibition against accepting gifts from a prohibited source experienced a resurgence following several requests for legal reviews concerning state medical facilities attempting to provide meals for DoD personnel. This was experienced in the state of New York, where the MA required the state to reimburse twenty-five percent to FEMA for costs;34 the argument was made that the state can provide food, but the unit must ensure personnel will not receive per diem for those meals. United States Army North opined that the Soldiers concerned are prohibited from accepting the gift of free meals from the state.35 Each meal accepted constitutes a gift or gratuity, which does not fall within any exception to accept.36 The fact that Soldiers accepting such meals would reduce their entitlements and accept a proportionate per diem rate in exchange, per provisions of the Joint Travel Regulation,37 does not change the characterization of the meal as a gift. The provision of twenty-five percent reimbursement or cost-matching arrangement, essentially a quid-pro-quo between New York and FEMA, does not change the end result for the Soldiers concerned.
Similar to the medical practice context, in late April 2020, OSD issued a memorandum to promote consistency and uniformity throughout the DoD response.38 The memorandum addressed offers of donations from private industry to the DoD in support of the COVID-19 response. The memo designated the Under Secretary of Defense for Acquisition and Sustainment as the focal point for the receipt and staffing of all offers of donation.39
While the memorandum openly stated its purpose was to handle these
donations in a timely, consistent, and coordinated fashion across the
department during response activities, it also served to reinforce the
prohibition on accepting gifts of meals during a DSCA event.
Mobilization of Forces
In many overseas missions, National Guard and Reserve units deploy as
part of contingency operations, but they do so in a Title 10 status and
are usually mobilized under one mobilization authority.40
While operating in a domestic environment, National Guard units can
operate under a Title 10, Title 32, or State Active Duty status; and,
along with Reserve units, they can mobilize under a number of
mobilization authorities.41 Within the JA community for the COVID-19 response, National Guard and Reserve attorneys—and paralegals advising at both USARNORTH and as FEMA Region Legal Advisors—cobbled together Inactive Duty Training, Active Duty for Training, and Annual Training periods to bridge the gap prior to the issuance of mobilization orders under 10 U.S.C. § 12302.
There were many unique legal issues that arose while operating as the higher command of Reserve units under different mobilization authorities, and working alongside National Guard units in a Title 32 status. For example, National Guard forces in a Title 32 status are subject to the laws of their state, but they are not subject to the restrictions of the PCA.42 The Presidential Memorandum43 that authorized 100% reimbursement of National Guard forces limited this assistance to COVID-19 response activities authorized by sections 403 and 503 of the Stafford Act.44 Law enforcement activities are not authorized by sections 403 and 503. Therefore, to address this and allow the greatest possible latitude for National Guard forces, DoD drafted language within the corresponding MA which stated, “safety and security missions, not to include law enforcement activities, are authorized as part of this Mission Assignment.”45 However, as security is widely accepted as a law enforcement activity,46 this led to considerable confusion regarding the potential for federal reimbursement for the National Guard securing COVID-19 testing and treatment facilities or filling in for sick prison guards.47
In addition to the movement restrictions, redeploying Service members were subject to isolation and symptom monitoring. As units approached the termination of their mobilization orders, the question arose whether these isolation periods could be added to each MA and reimbursed by FEMA as a cost inherent to the mobilization.48
Lastly, as the initial operational tempo of COVID-19 waned, some FEMA
Regions inquired whether Emergency Preparedness Liaison Officers
mobilized for longer durations under 10 U.S.C. § 12302 could be
transitioned to other DSCA events—such as hurricane response.49
Intelligence Oversight and Sensitive Information
The use of intelligence assets and the collection of information in the
course of a DSCA event and the COVID-19 response presented many unique
intelligence oversight and sensitive information issues. As entire units
mobilized and deployed to COVID-19 hotspots, commanders sought to employ
intelligence personnel to provide situational awareness of domestic
criminal activity as well as conduct contact tracing50
and predictive analysis. Department of Defense Law Enforcement (LE)
officers may collect, maintain, and disseminate criminal intelligence
(CRIMINT) when it affects or impacts the DoD against specific
individuals or organizations. These individuals or organizations are
reasonably suspected of being potentially involved in a definable
criminal activity or enterprise affecting DoD interests.51
However, this falls outside the lawfully assigned mission of a DoD
Intelligence Component (DIC) of either defense-related foreign
intelligence or defense-related counterintelligence.52
Additionally, even DoD LE is prohibited from gathering CRIMINT and
personally identifiable information regarding persons without a
connection to DoD or a reasonable expectation of threat or direction of
interest toward DoD personnel or facilities.53
To further exacerbate the issue, the 2019 DSCA Execute Order contained
language that “supported Combatant Commanders are authorized to utilize
DIC capabilities and personnel for other than intelligence activities to
provide damage assessment and situational awareness reporting for an
event that is expected to cause significant impact and result in a
declared emergency or major disaster.”54
When read broadly, and without the context of the preceding paragraph,
this language gave rise to requests to use intelligence personnel to
review publicly available information to analyze access to medical care,
predictive analysis regarding the spread of the virus, population
density, infrastructure assessments, and crime rates. Any of these
activities could have quickly incurred command liability for
questionable intelligence activities.55
The use of intelligence personnel aside, the assignment of DoD HCPs
within public and private medical facilities created several legal
issues concerning the reporting of treatment metrics—to include deaths,
infections, and bed counts—where DoD elements would potentially acquire
information concerning non-DoD affiliated personnel (NDAP).56
As the initial wave of the pandemic subsided and alleviated the burden
upon medical facilities, public health officials refocused efforts to
determine the spread of the virus, and consider potentially using
existing mobilized forces to trace the contacts of infected individuals,
through contact tracing. While DoD Service members would be prohibited
from collecting information from NDAPs,57
the National Guard Bureau had an extremely limited opportunity to engage
in contact tracing if National Guard forces were operating in a
non-federalized status and detailed to the state public health
department.
Conclusion
One of the greatest challenges for any headquarters is to hit the ground
running when crisis arises. Guidance needs to be immediate, consistent,
and adaptable to the many legal issues subordinates or staff sections
might encounter. Even more burdensome to the servicing JA is the unique
nature of domestic operations. As an Army, we are not accustomed to
domestic operations. The command and its legal advisor find themselves
with a complex, nuanced set of legal authorities and an operation that
the unit has never conducted planning for or training to execute.
Ensuring these Soldiers completely grasp the mission and understand
their left and right limits requires an engaged and dynamic commander
and legal advisor. This was provided in volume under the command of
USARNORTH and its OSJA team. TAL
MAJ Garfias is the Brigade Judge Advocate for the 3d Armored Brigade Combat Team, 1st Cavalry Division at Fort Hood, Texas.
CPT Eiser is an administrative law attorney at Fort Wainwright, Alaska.
CPT Bryant is a national security law attorney at U.S. Army Reserve Command at Fort Bragg, North Carolina.
Notes
1. See Jonathan Rath Hoffman, Assistant to the Sec’y of Def. for Pub. Affs., Defense Official Provides Update on COVID-19 Response, U.S. N. Command (Apr. 24, 2020), https://www.northcom.mil/Newsroom/News-Input/Article/2164295/defense-official-provides-update-on-covid-19-response/ (the relevant information can be found at 1:11). See also Jonathan Rath Hoffman, Assistant to the Secretary of Defense Hoffman Updates Reporters on
DoD Operations, U.S. Dep’t of Def. (Apr. 24, 2020), https://www.defense.gov/Newsroom/Transcripts/Transcript/Article/2165054/assistant-to-the-secretary-of-defense-hoffman-updates-reporters-on-dod-operatio/ (transcript of the original speech).
2. Id.
3. U.S. Const. amend. X.
4. Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 100-707, 102 Stat. 4689 (1988) (amending the Disaster Relief Act of 1974, Pub. L. No. 93-288, 88 Stat. 143; 42 U.S.C. §§ 5121-5208).
5. U.S. Dep’t of Def., Dir. 3025.18, Defense Support of Civil
Authorities (DSCA)
para. 4e. (29 Dec. 2010) (C2, 19 Mar. 2018) [hereinafter
DoDD 3025.18]. This directive provides the “CARRLL” factors for evaluating all requests from civil authorities for Department of Defense (DoD) support. The “CARRLL” factors are Cost, Appropriateness, Readiness, Risk, Legality, and Lethality. Id.
6. See Chairman, Joint Chiefs of Staff, Instr. 3121.01B, The Standing Rules
of Engagement and Standing Rules for the Use of Force
encl. L (2005) [hereinafter CJCSI 3121.01B].
7. 18 U.S.C. § 1385.
8. See U.S. Dep’t of Def., 5240.1-R, Procedures Governing the Activities of DoD Intelligence
Components That Affect U.S. Persons
(Dec. 1982) (C2, 26 Apr. 2017);
U.S. Dep’t of Def., Dir. 5200.27, Acquisition of Information
Concerning Persons And Organizations Not Affiliated with the
Department of Defense
(7 Jan. 1980) [hereinafter
DoDD 5200.27].
9. CJSCI 3121.01B, supra note 6, para. 1.a.
10. Provisions of the Bill of Rights that limit the Federal use of force domestically include the Fourth Amendment right against unreasonable search and seizure and the Fifth Amendment Due Process Clause. See U.S. Const. amend. IV; U.S. Const. amend. V
11. CJCSI 3121.01B, supra note 6.
12. Id. encl. A.
13. Id. encl. L, encl. N.
14. Id.
15. When training units on the SRUF, members of USARNORTH will include de-escalation as a step to be used prior to executing some form of self-defense. The training includes specific examples of the types of de-escalation that can be used and apply the steps in vignette.
16. 18 U.S.C. § 1385.
17. Id. The PCA provides:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
Id.
18. Id.
19. Joint Chiefs of Staff, CJCS Defense Support of Civil Authorities Execute Order (30 July 2019) [hereinafter DSCA EXORD].
20. 31 U.S.C. § 1535.
21. 42 U.S.C. § 5121.
22. U.S. Dep’t of Def., 7000.14-R. DoD Financial Management
Regulation
vol. 11A, ch. 3, para. 030801 (Sept. 2019) [hereinafter
DoD FMR].
23. Id. ch. 19, para. 190201.
24. 10 U.S.C. §§ 331-335. The Insurrection Act is an exception to the PCA. It gives the President authority to commit militia and Federal armed forces to restore law and order at a state’s request; respond to a rebellion; or to suppress an insurrection, domestic violence, unlawful combination, or conspiracy; if it hinders execution of state or federal law, and constitutional rights are being deprived, and the state is unable, fails, or refuses to protect those rights, or opposes or obstructs execution of Federal law. See 10 U.S.C. §§ 251-253.
25. DoDD 3025.18, supra note 5, para. 4i. The Immediate Response Authority is best described as follows:
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 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 military power that is regulatory, prescriptive, proscriptive, or compulsory.
Id.
26. U.S. Dep’t of Army, COVID-19 Response Legal Personnel Roster
(16 May 2020) (on file with author).
27.
U.S. Dep’t of Def., 6025.13, Defense Health Agency Procedure
Manual
vol. 4, encl. 2, para. 5.a (29 Aug. 2019).
28. Id. para. 2.j.
29. Id. para. 4.a.
30. U.S. Dep’t of Def., Instr. 6200.03, Public Health Emergency
Management (PHEM) Within the DoD
(28 Mar. 2019).
31. 10 U.S.C. § 1094(d).
32. Within a request for assistance, a statement or work outlines how
the assistance mission will be completed. It needs to be drafted with
specificity.
33. A Memorandum of Agreement “will be used to document the specific
terms and responsibilities that two or more parties agree to in writing.
[They] can be used to document a single reimbursable purchase,
non-recurring reimbursable support, and non-reimbursable support.”
U.S. Dep’t of Def., Instr. 4000.19, Support Agreements encl. 3, para. 2.a(2) (25 Apr. 2013).
34.
U.S. Dep’t of Homeland Sec., Federal Emergency Management Agency,
Mission Assignment 4480DR-NY-DOD-10
(4 Apr. 2020).
35. This information is based on the author’s recent professional
experience and daily staff updates as the Chief, National Security Law
Division, for U.S. Army North from 8 June 2018 to 3 July 2020
[hereinafter Professional Experiences].
36. 5 C.F.R. § 2635.204 (2020); U.S. Dep’t of Def., 5500.07-R, Joint Ethics Regulation (JER)
ch. 2 (30 Aug. 1993) (C7, 17 Nov. 2011).
37. DoD FMR, supra note 22, vol. 7A, ch. 25.
38. Memorandum from Sec’y of Def. to Chief Mgmt. Off. Dep’t of Def., subject: Offers of Donation from Private Industry to the DoD in support of the Coronavirus Disease 2019 Response (24 Apr. 2020), superseded by Memorandum from Sec’y of Def. to Chief Mgmt. Off. Dep’t of Def., subject: Offers of Donation from Private Industry to the DoD in support of the Coronavirus Disease 2019 Response (5 May 2020).
39. Id.
40. See generally 10 U.S.C. §§ 12301-12304.
41. In addition to 10 U.S.C. §§ 12301-12304, the National Guard may be mobilized in a Title 32 status via 32 U.S.C. § 502(f), as well as additional authorities to call the National Guard and Reserve for training under 10 U.S.C. § 10147, § 12301(b), and 32 U.S.C. § 502(a).
42. Nat’l Guard Bureau, Nat’l Guard Reg. 500-5/Air Nat’l Guard Instr. 10-208, National Guard Domestic Law Enforcement Support and Mission Assurance
Operations
para. 4-3.b (18 Aug. 2010).
43. See, e.g., Memorandum on Providing Federal Support for Governors’ Use of the National Guard to Respond to COVID-19, Daily Comp. Pres. Doc., 2020 DCPD No. 00211 (Mar. 30, 2020).
44. See 42 U.S.C. § 5170b and 42 U.S.C. § 5193 respectively.
45. See, e.g., U.S. Dep’t of Homeland Sec., Federal Emergency Management
Agency
Mission Assignment 4504DR-KS-DOD-01 (14 Apr. 2020) [hereinafter FEMA Mission Assignment 4504].
46. U.S. Dep’t of Def., Instr. 3025.21, Defense Support of Civilian Law Enforcement
Agencies
subsec. 1c(1)(e) (27 Feb. 2013).
47. After coordination with the Office of the General Counsel for the
Office of the Secretary of Defense, USARNORTH opined that a force
protection mission is not law enforcement. Prohibited law enforcement
activities included, “search, seizure, arrest, and other actions that
subject civilians to the use of military power that is regulatory,
prescriptive, proscriptive, or compulsory.” Therefore, the National
Guard may perform missions associated with “safety and security” so long
as the personnel did not engage in those acts considered compulsory by
nature, and are doing so in a State Active Duty status. National Guard
personnel must contact civilian law enforcement agencies and allow them
to conduct search, seizure, arrest, etc., or risk not receiving
reimbursement from the Federal Emergency Management Agency (FEMA) for
those law enforcement activities.
FEMA Mission Assignment 4504, supra note 45. See also Email from Major Isaiah M. Garfias, U.S. Army North, to Major Daniel R. Soeffing, U.S. Army Reserve Legal Command et al.(6 Apr. 2020, 6:45 PM) (on file with author).
48. United States Army North coordinated with the DoD representative at FEMA National to obtain guidance issued to all the FEMA Regions to add twenty days to every Mission Assignment. This alleviated the Defense Coordinating Officer/Defense Coordinating Elements from having to discuss this problem with each State and get them to agree to the twenty day extension. Email from Major Isaiah M. Garfias, U.S. Army North, to Major Shawna M. Young, U.S. Army Reserve Legal Command et al.(27 Apr. 2020, 3:49 PM) (on file with author). See also Professional Experiences, supra note 35.
49. United States Army North responded in the negative. Emergency Preparedness Liaison Officers called to active duty pursuant to 10 U.S.C. § 12302 respond to the specific national emergency the president has declared—and only that national emergency. Service members mobilized under this statute cannot be repurposed outside the scope of the national emergency declaration. Email from Major Isaiah M. Garfias, U.S. Army North, to MAJ Shawna M. Young, U.S. Army Reserve Legal Command et al. (May 18, 2020, 3:47 PM) (on file with author). See also Professional Experiences, supra note 35.
50. Contact tracing is the process of identifying persons who may have
come into contact with an infected person and the subsequent
collection of information about these contacts.
51. U.S.
Dep’t of Def., Instr. 5525.18, Law Enforcement Criminal Intelligence
(CRIMINT) in DoD
(18 Oct. 2013) (C3, 1 Oct. 2020).
52.
U.S. Dep’t of Def., Manual 5240.01, Procedures Governing the Conduct
of DoD Intelligence Activities
para. 3.2 (8 Aug. 2016).
53. DoDD 5200.27, supra note 8.
54. DSCA EXORD, supra note 19.
55. U.S. Dep’t of Def., Dir. 5148.13, Intelligence Oversight
(26 Apr. 2017).
56. DoDD 5200.27, supra note 8.
57. Id. U.S. Dep’t of Army, Reg. 380-13, Acquisition and Storage of Information Concerning Non-Affiliated Persons and Organizations (30 Sept. 1974).