The Legal Framework
This chapter addresses the legal framework for military involvement in domestic disaster response missions, properly known as defense support to civil authorities (DSCA). It will address the federal response structure, the Stafford Act, the Posse Comitatus Act, civil disturbance operations, and specialized chemical, biological, radiological, nuclear, or high-yield explosive (CBRNE) consequence management response force (CCMRF) responders. It will also touch on the difference between Title 10 Soldiers and Title 32 Guardsmen. It will not include counterdrug operations, military support to special events, or other miscellaneous missions, including military assistance to safety and traffic, animal and plant eradication, support to private organizations, etc. It also does not address the U.S. Army Corps of Engineers. For rules on the use of force, law enforcement support, intelligence oversight, and other legal considerations, see Appendix J of this handbook.
In 2002, the Department of Defense (DOD) created the first combatant command, U.S. Northern Command (USNORTHCOM), with direct responsibility for the defense, protection and security of the continental United States, Alaska, and territorial waters including the Gulf of Mexico and the Straits of Florida. In conjunction with U.S. Pacific Command and U.S. Southern Command, DOD now has combatant commands with combined geographic responsibilities that cover all states and territories of the United States. In June 2005, DOD published the Strategy for Homeland Defense and Civil Support, setting out the department's vision for transforming homeland defense and support to civil authorities. The deputy secretary of defense directed the creation of three CCMRFs, which are essentially joint task forces, each manned by 4,700 military personnel and highly trained for domestic catastrophic response. In a clear and compelling break with past practice, the first CCMRF was immediately assigned to USNORTHCOM, with an expectation that the remaining two CCMRFs would be similarly assigned in 2010 and 2011.
If these changes are fully implemented, more than 20,000 active duty military personnel will soon have domestic catastrophic response as their mission focus. This military capability - though sensible and even admirable in its operational value - raises important questions of law and public policy.
In Federalist 8, Alexander Hamilton presciently noted the danger in relying excessively upon military forces to ensure domestic security. His cautionary words remain relevant today. The preservation of innocent life - and liberty - requires that domestic military missions be subject to very close scrutiny by civilian DOD leadership, Congress, the media, and the courts. To that end, it is essential that military lawyers provide clear and informed guidance on domestic military missions, assessing the express language of applicable law, and the fundamental propriety of any proposed military mission when judged in the larger context of American history.
Although the brutality of the 9/11 attacks initially brought an anti-terrorism focus to DSCA missions, the destruction wrought by Hurricane Katrina in 2005 - and the ineffective national response to it - served as a potent reminders that acts of nature can also have a catastrophic impact. Indeed, when DOD officials subsequently planned for DSCA missions in anticipation of a potential pandemic influenza outbreak, we soon realized that many pandemic mission capabilities could build upon the lessons learned from Hurricane Katrina. Similarly, it quickly became apparent that planning for contingent military missions during a pandemic had great relevance to foreseeable DSCA missions during a terrorist CBRNE event.
While each catastrophic event has unique characteristics, DSCA missions have a remarkable degree of consistency in required training, equipment, force integration, and command. In many ways the magnitude of a catastrophic event - as much as its cause - will define DSCA roles and responsibilities. Lawyers should consider the issue of scale when reviewing legal frameworks of relevant interagency and intergovernmental authorities. If a nuclear device were to be detonated on American soil, must the secretary of defense wait passively for the inevitable Stafford Act declaration? Can he immediately begin deploying tens of thousands of military forces - active, reserve, and National Guard - in a massive consequence management mission? If he can and must act, by what legal authority does he do so? What is his role in relation to local and state responses?
It has now become clear that domestic military missions assigned to DOD require unprecedented levels of interagency and intergovernmental cooperation in both planning and execution. Whether in the realm of warfighting or civil support, DOD's roles and responsibilities can only be understood in a larger context of federal, state, and local integration. As a result, the legal issues are inherently complex, frequently contentious, and often fundamental to the security and civil liberty of our citizens.
Homeland Security Presidential Directive 5
Homeland Security Presidential Directive 5 (HSPD-5), Management of Domestic Incidents, established a new means to federal emergency management. It centers on the practical requirement that all levels of government have a single, unified approach to managing domestic incidents. Pursuant to the Homeland Security Act of 2002, HSPD-5 tasked the secretary of homeland security to develop and administer a National Response Framework (NRF) that would integrate federal government domestic prevention, preparedness, response, and recovery plans into one all-discipline, all-hazards plan. It also tasked the secretary of homeland security to develop and administer a National Incident Management System (NIMS) that would unify federal, state, and local government capabilities to work together to prepare for, respond to, and recover from domestic events regardless of cause, size, or complexity. The intent of the NRF and NIMS is to provide the structure and mechanisms for establishing national-level policy and operational direction regarding federal support to state and local incident managers.
HSPD-5 also reaffirmed the secretary of homeland security's responsibility as the principal federal official for domestic incident management. HSPD-5 tasked the secretary of homeland security with coordinating the federal government's resources in response to or recovery from terrorist attacks, major disasters, or other emergencies. This coordination responsibility exists when any one of the following four conditions applies:
HSPD-5 eliminates the previous distinction between crisis management and consequence management, treating the two "as a single, integrated function, rather than as two separate functions." Under the NRF, the secretary of homeland security remains the lead federal official for the duration of the period involving federal assistance. The attorney general is the lead official for conducting criminal investigations of terrorist acts or terrorist threats.
Homeland Security Presidential Directive 8
Homeland Security Presidential Directive 8 (HSPD-8), National Preparedness, complements HSPD-5. The purpose of the directive is to establish:
. . .policies to strengthen the preparedness of the United States to prevent and respond to threatened or actual domestic terrorist attacks, major disasters, and other emergencies by requiring a national domestic all-hazards preparedness goal, establishing mechanisms for improved delivery of Federal preparedness assistance to state and local governments, and outlining actions to strengthen preparedness capabilities of Federal, state, and local entities.
The directive calls on the secretary of homeland security to work with federal departments and agencies to conduct preparedness activities and training, as well as to develop and maintain a system to collect and analyze best practices. The heads of other federal departments and agencies are also tasked with supporting the national preparedness goal.
Executive Order 12656
Executive Order 12656, Emergency Preparedness and Response Responsibilities, assigns national security emergency preparedness responsibilities to federal departments and agencies, delegating to the Department of Homeland Security the primary responsibility for coordinating the efforts of, among other things, federal emergency assistance. This executive order identifies several agencies and departments (including Defense, Energy, and Health and Human Services) that have active, and potentially overlapping, roles regarding nuclear, biological, and chemical (NBC) assessment and response. It also identifies primary and support functions to be performed during any national security emergency of the United States, development of plans for performing these functions, and development of the capability to execute those plans. See Table 2-1.
Table 2-1. Executive Order 12656 Roles and Responsibilities During a National Security Emergency
Presidential Decision Directive 39
Presidential Decision Directive 39 (PDD-39) details the policy of the United States in combating terrorism and reaffirms the lead agencies for the management of various aspects of the counterterrorism effort. It recognizes that states have primary responsibility in responding to terrorist incidents, including events, and the federal government provides assistance as required.
Defense Against Weapons of Mass Destruction Act
Title 50, chapter 40 of the U.S. Code deals with the federal government's response to the proliferation of and use or threat to use nuclear, chemical, or biological weapons of mass destruction (WMD), or related materials and technologies. Title 50 U.S. Code, section 2313 directs the secretary of defense to designate an official within the DOD as executive agent to coordinate DOD assistance with federal, state, and local entities. The secretary of defense has appointed the assistant secretary of defense for homeland defense and Americas' security affairs (ASD [HD&ASA]) as executive agent. The Department of Energy (DOE) is directed to designate an executive agent for its NBC response. The DOD and DOE executive agents are responsible for coordinating assistance with federal, state, and local officials in responding to threats involving NBC weapons.
The Stafford Act
The Robert T. Stafford Disaster Relief and Emergency Assistance Act provides for assistance by the federal government to the states in the event of natural and other disasters and emergencies. The Stafford Act is the primary legal authority for federal emergency and disaster assistance to state and local governments. Congress' intent in passing the Stafford Act was to provide for an "orderly and continuing means of assistance by the federal government to state and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters." The Stafford Act sought, among other things, to broaden the scope of disaster relief programs; encourage the development of comprehensive disaster preparedness and assistance plans, programs, and capabilities of state and local governments; and provide federal assistance programs for both public and private losses sustained in disasters.
Through the Stafford Act, Congress delegated emergency powers to the president in the event of a major disaster or emergency. Generally, Stafford Act assistance is rendered upon request from a state governor provided certain conditions are met, primarily that the governor certifies that the state lacks the resources and capabilities to manage the consequences of the event. However, section 5170(a) of the Stafford Act was amended in 2006 authorizing the president, in the absence of a state request, to provide federal assistance. The Federal Emergency Management Agency (FEMA) of the Department of Homeland Security operates under the Stafford Act, focusing its efforts on managing the consequences of disasters. FEMA's actions generally are driven by requests from state and local governments.
To coordinate the relief efforts of all federal agencies in both major disasters and emergencies, the act authorizes the president to appoint a federal coordinating officer (FCO) immediately after declaring a major disaster or emergency. The act also requires the president to request that a governor seeking federal assistance designate a state coordinating officer (SCO) to coordinate state and local disaster assistance efforts with those of the federal government. The FCO may use relief organizations, such as state relief organizations and the American Red Cross, in the distribution of emergency supplies, such as food and medicine, and in reconstruction or restoration of essential services, such as housing. The FCO may coordinate all relief efforts as long as states, localities, and relief organizations agree. The president is also authorized to form emergency support teams (ESTs) of federal personnel to be deployed to the area of the disaster or emergency. The FCO may activate ESTs, composed of federal program and support personnel, to be deployed into an area affected by a major disaster or emergency. These teams may also be called incident management assistance teams (IMATs). The IMAT is the interagency group that supports the FCO in coordinating the federal disaster assistance.
The Stafford Act also provides immunity from liability for federal agencies and their employees working in a disaster.
Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive Consequence Management Overview and Authorities
A CBRNE incident is any accident or intentional event involving chemical agents, biological agents, radiological sources, nuclear devices, or high-yield explosives, and/or industrial materials that are hazardous by themselves or when mixed with other material, including hazards from industrial pollutants and waste, and will produce a toxic effect in exposed personnel. Any action taken to address the consequences of any inadvertent or deliberate release of a chemical, biological, radiological, or nuclear agent constitutes a CBRNE consequence management (CM) operation. As a general proposition, a catastrophic CBRNE event would quickly exceed the capabilities of local, state, and tribal governments. Consequently, CBRNE CM is normally managed at the federal level, with the DOD in a supporting role.
The principle of unity of effort dictates that a single authority control the efforts of the various responding federal assets; while DOD forces may be fully committed to CBRNE CM, they are not directed by the agency they support. The secretary of defense always retains command of federal (Title 10) military forces providing CBRNE CM. Similarly, state governors, through their adjutants general, control National Guard forces when performing active duty in their state role and when performing active duty under Title 32, U.S. Code.
Requests for DOD capabilities from state governors or other federal agencies are called requests for assistance (RFAs). In most cases, these requests for emergency support are written and are processed through the formal RFA process. The processing of an RFA varies depending upon the size and urgency of the incident, the level of federal involvement, and the originator of the request. For small-scale CBRNE incidents, and during the initial stages of larger incidents, a state's emergency operations center may forward requests to the FEMA region's defense coordinating officer (DCO), who, in turn, forwards the RFA to the ASD (HD&ASA). If the incident exceeds the capabilities of the state and local responders and the president has issued an emergency or disaster declaration at the governor's request, the lead federal agency (LFA) will establish a joint field office (JFO), and an FCO will be designated. Following the establishment of the JFO, the FCO will forward RFAs from civil authorities to the Office of the Executive Secretary of the Department of Defense, which forwards them to the ASD (HD&ASA) and the joint director of military support (JDOMS) for validation and order processing, respectively. Once the secretary of defense approves a request for DOD assistance, JDOMS prepares an order and coordinates with necessary force providers, legal counsel, and the ASD (HD&ASA) to ensure asset priority and concurrence. The order is then issued to the appropriate combatant command for execution of the mission.
Every RFA must undergo a legal review. All requests by civil authorities for DOD military assistance shall be evaluated by DOD approval authorities against the following criteria:
Military missions require legal authority. DOD's CBRNE CM operations are generally executed under the provisions of the Stafford Act. Occasionally, the legal authority to use DOD forces arises from other sources. For instance, the DOD policy on immediate response addresses the authority delegated to DOD component or military commanders to provide immediate assistance to civil authorities to save lives, prevent human suffering, or mitigate great property damage in the event of imminently serious conditions resulting from any civil emergency or attack. Joint Publication 3-28, Civil Support, sanctions immediate response authority for various CBRNE incident related operations, such as search and rescue missions and debris removal. This policy is limited, restrictive, and conditional.
DOD Entities Responsible for Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive Consequence Management Operations
The ASD (HD&ASA) is responsible for DSCA, including CBRNE CM. The JDOMS produces military orders for DSCA, including consequence management operations.
In 2008, USNORTHCOM designated U.S. Army North as the joint force land component command (JFLCC) for domestic CM operations. The JFLCC now has operational control of joint task force civil support (JTF-CS). The JTF-CS is a standing joint task force comprised of active, reserve and National Guard members from the Army, Navy, Air Force, Marines and Coast Guard, as well as civilian personnel, and is commanded by a federalized Army National Guard general officer. The unit's purpose is to save lives, prevent injury, and provide temporary critical life support during a CBRNE incident in the U.S. or its territories and possessions. The JTF-CS is the only active duty military organization dedicated solely to planning and integrating DOD forces for CBRNE CM support to civil authorities in such a situation. In the National Guard, each state has a joint force headquarters that also conducts this type of mission at the state level.
Joint Task Force Civil Support
Joint doctrine divides civil support (CS) operations into three broad categories: domestic emergencies; designated law enforcement support; and other activities based on the CS definition. Although JTF-CS is nominally linked to broader mission areas, the organization's focus is far narrower; JTF-CS' specific mission is CBRNE CM. It is a deployable command and control headquarters for DOD units and personnel executing CM operations in response to CBRNE incidents, and a source of response plans for essential DOD support. The unit's mission is to plan and integrate DOD support to the designated LFA (usually Department of Homeland Security/FEMA) for domestic CBRNE CM. When directed, JTF-CS will deploy to the incident site and establish command and control of designated DOD forces to provide defense support of civil authorities to save lives, prevent further injury, and provide temporary critical life support. The NRF provides the coordinating framework under which JTF-CS performs its mission.
Chemical, Biological, Radiological, Nuclear, or High-Yield Explosive Consequence Management Response Force
On 1 October 2008, JTF-CS received operational control over various units assigned to the CCMRF. These units possess the military occupational specialties required to staff DOD's initial CBRNE CM entry force. The CCMRF forces are configured into subordinate task forces with specific response missions, such as medical, aviation, and operational support. When called upon to perform a mission, JTF-CS and the CCMRF will quickly deploy to mitigate the effects of a CBRNE incident.
National Guard Weapons of Mass Destruction Civil Support Teams (WMD-CST)
Under the Defense Against Weapons of Mass Destruction Act and other authorizations by Congress, DOD is authorized a total of 55 WMD civil support teams (CSTs). Recognizing that the National Guard is forward deployed for civil support, the secretary of defense determined that the CSTs would be most effective if established in the National Guard. Consequently, each WMD-CST is composed of 22 full-time National Guard Soldiers and Airmen and contains five elements: command, operations, administrative/logistics, medical, and survey. The teams are designed to deploy rapidly to assist local first responders in the event of an intentional or unintentional CBRNE incident.
The mission of the state National Guard WMD-CST is to deploy to an area of operations and:
WMD-CSTs are to be specially equipped and trained. Special equipment includes the mobile analytical laboratory system for NBC detection and the unified command suite for communications. WMD-CST capabilities are specifically designed to complement civilian responders. Community and state emergency management plans may directly incorporate WMD-CST capabilities.
WMD-CSTs will operate under the command and control of the state governor and the adjutant general. Individual team members serve in a full-time, Title 32 National Guard status. They can support other states under the provisions of state-to-state compacts, the Emergency Management Assistance Compact, and regional support compacts.
The Posse Comitatus Act
The primary statute restricting military support to civilian law enforcement is the Posse Comitatus Act (PCA) 18 U.S. Code, section 1385. The phrase "posse comitatus" is literally translated from Latin as the "power of the county" and is defined in common law to refer to all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder. The PCA states:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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.
The PCA was enacted in 1878, primarily as a result of the military presence in the South during Reconstruction following the Civil War. The intent of the PCA was to limit direct military involvement with civilian law enforcement, absent Congressional or constitutional authorization, in the enforcement of the laws of the United States. The PCA is a criminal statute and violators are subject to fine and/or imprisonment. The PCA does not, however, prohibit all military involvement in civilian law enforcement. A considerable amount of military participation with civilian law enforcement is permissible, either as indirect support or under one of the numerous PCA exceptions.
In addition to the PCA, 10 U.S. Code, chapter 18, Military Support for Civilian Law Enforcement Agencies and Department of Defense Directive (DODD) 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, also provide guidance in this area. Both authorities provide additional guidance regarding restrictions the PCA places on the military when supporting civilian law enforcement agencies.
PCA applies to the Army and Air Force, but 10 U.S. Code, section 375 directs the secretary of defense to promulgate regulations that prohibit "direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law." The secretary of defense subsequently prohibited these activities in DODD 5525.5, and, as a result, the restrictions placed on Army and Air Force activities through the PCA now apply to the Navy and Marine Corps. The PCA does not apply to the Coast Guard unless it is operating under the command and control of the DOD.
The PCA also applies to reserve members of the Army, Navy, Air Force, and Marine Corps who are on active duty, active duty for training, or inactive duty training in a Title 10 duty status. Members of the National Guard performing operational support duties, active duty for training, or inactive duty training in a Title 32 duty status are not subject to the PCA. Only members of the National Guard in Title 10 (federal) duty status are subject to the PCA. Members of the National Guard also perform additional duties in a state active duty (SAD) status and are not subject to PCA in that capacity. Civilian employees of the DOD are only subject to the prohibitions of the PCA if they are under the direct command and control of a military officer.
Finally, the PCA does not apply to a member of the Army, Navy, Air Force, or Marine Corps when they are off duty and acting in a private capacity. A service member is not in a private capacity when assistance is rendered to civilian law enforcement officials under the direction or control of DOD authorities.
Title 10 U.S. Code, sections 371-375 outline the restrictions of the PCA as they apply to participation by the military in civilian law enforcement activities. These restrictions are divided into three major categories: (1) use of information, (2) use of military equipment and facilities, and (3) use of military personnel. DODD 5525.5 further divides the restrictions on the use of DOD personnel in civilian law enforcement activities into categories of direct assistance, training, expert advice, operation or maintenance of equipment, and other permissible assistance.
In addition to the above categories, Title 10 of the U.S. Code, sections 376 and 377 provide further limitations on the provision of military support to civilian law enforcement. Title 10 U.S. Code, section 376 provides an overarching restriction in the event "such support will adversely affect the military preparedness of the United States." The secretary of defense directed the secretaries of the military departments and the directors of the defense agencies to ensure that approval authority for the disposition of equipment to civilian law enforcement agencies is vested in those officials who can properly assess the impact the disposition will have on military preparedness and national security.
For PCA consideration in law enforcement missions, see Appendix J of this handbook.
National Guard Status: State Active Duty, Title 32 or Title 10
National Guard Soldiers can serve in three statuses: SAD, Title 32, or Title 10. A Soldier's status is the first issue that must be answered, because each status has different rules and restrictions. For example, SAD personnel are prohibited from using DOD intelligence resources and equipment while in a SAD status. National Guard personnel in a SAD status are not authorized to engage in DOD intelligence operations nor are they authorized to access DOD classified systems (SECRET Internet Protocol Router or Joint Worldwide Intelligence Communication System) or equipment (MQ-1 Predator or border sensors) for a SAD mission without authorization from the National Guard Bureau joint intelligence office (J2).
The National Guard may be called up for SAD by state governors or territorial adjutants general to help respond to domestic emergencies and disasters, such as those caused by hurricanes, floods, and earthquakes. The National Guard may also be called up for active duty by the federal government under Title 32 of the U.S. Code to perform training or other duties with or without the consent of the Soldiers. This status is traditionally referred to as Title 32. Finally, the National Guard may be federalized and fall under federal command and control, a status referred to as Title 10.
Domestic Operational Law Handbook for Judge Advocates, LTC Patrick A. Barnett, Editor, 20 July 2009, Center for Law and Military Operations, "http://www.jagcnet.army.mil/clamo".
Executive Order 12656, Assignment of Emergency Preparedness Responsibilities, 18 Nov 1988, as amended.
Homeland Security Presidential Directive 5, Management of Domestic Incidents, 28 Feb 2003.
Homeland Security Presidential Directive 8, National Preparedness, 17 Dec 2003.
National Guard Domestic Operations Manual, 20 May 2008, National Guard Bureau Director of Domestic Operations (NGB J3/DO).
The Robert T. Stafford Disaster Relief and Emergency Assistance Act [The Stafford Act], 42 U.S.C. § 5121, et. seq., as amended by Pub. L. No. 109-295 (2007).