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Newsletter 10-16
December 2009

CCMRF and Use of Federal Armed Forces In Civil Support Operations

MG Jeffrey A. Jacobs

From ARMY Magazine, July 2009. Copyright 2009 by the Association of the U.S. Army. Limited reprint permission granted by AUSA.

Last year, the Secretary of Defense assigned the 1st Brigade Combat Team, 3rd Infantry Division, to U.S. Northern Command (NORTHCOM) as part of the first dedicated chemical, biological, radiological and high-yield explosive (CBRNE) consequence management response force (CCMRF). The Internet sprang to life with dire warnings of armed soldiers in full combat gear routinely patrolling our nation's streets. Alarmist predictions ran wild: Steely-eyed infantrymen, just off the plane from Iraq and Afghanistan, not only would be enforcing domestic law but would slide rapidly down the slippery slope to the oppression of American citizens at the behest of an unchecked executive branch of government.

The cyber hue and cry illustrates the depth of the public's misunderstanding and the abundance of misinformation surrounding the federal military role in domestic civil support operations. Misunderstanding and misinformation about defense support of civil authorities (DSCA) in general, of CCMRF in particular, and of the legal authorities governing the domestic use of federal forces exist even within our Army, as illustrated in COL Craig Trebilcock's article "Resurrecting Posse Comitatus in the Post-9/11 World" in the May issue. Clearly, however, Posse Comitatus is quite alive and well, and reports of its impending demise are greatly exaggerated.

Support of Civil Authorities

In a revolutionary doctrinal change, Field Manual 3-0 Full Spectrum Operations incorporates civil support as an integral part of the Army's operational concept. Just as soldiers and leaders must understand offensive and defensive operations, an understanding of civil support operations is now imperative. We must eliminate the wrong perceptions of civil support operations, both in the public eye and within our own institution.

Our armed forces have a long history of supporting civil authorities. In the recent past, the Army conducted postal operations during the 1970 postal strike. In 1981, Army air traffic controllers staffed civilian control towers during the air traffic controllers' walkout. Federal forces supported state and local authorities during Hurricanes Andrew in 1992 and Katrina in 2005, and in many other natural disasters in the last decade. Navy divers assisted local, state and federal authorities during the Minnesota bridge collapse of 2007. Just last year, U.S. Army North (ARNORTH), NORTHCOM's joint force land component command, deployed a two-star task force to command and control federal military forces in support of the Federal Emergency Management Agency (FEMA) and the state of Texas during Hurricane Ike.

NORTHCOM is the combatant command whose area of responsibility includes U.S. soil. Civil support is one of NORTHCOM's two major missions; homeland defense is the other. Although interrelated, the two missions are separate, and, unfortunately, the uninformed tend to confuse them.

Two seminal events, 9/11 and Hurricane Katrina, have heightened the importance of defense support of civil authorities and have underscored the requirement for the Department of Defense (DoD) to be ready and able to support civil authorities. The establishment of NORTHCOM has greatly improved our ability to respond to domestic emergencies of all kinds, not only as a joint military force but as a nation. Civil support is no longer just an additional duty for the armed forces; it is now a critical continuous endeavor. For example, 10 full-time defense coordinating officers-active Army colonels assigned to ARNORTH-work daily with each of the 10 FEMA regions and coordinate regularly with other federal agencies, state emergency management officials and National Guard leaders.

The Legal/Policy Framework

The role of the federal military in DSCA is carefully defined and deliberately circumscribed by the Constitution, statutes and policy. As many have noted, one of the laws that limits the role of the federal military is the Posse Comitatus Act.

Posse Comitatus prohibits Title 10 forces (that is, the federal military, as distinguished from the National Guard in a state status-Title 10 of the U.S. Code is the title that governs the armed forces) from enforcing state or federal laws, except as otherwise authorized by law. Title 10 forces may not make arrests, stop and frisk suspects, conduct searches and seizures, or perform domestic surveillance. The statutory prohibition on the use of the armed forces to enforce the law, however, does not mean that the military cannot engage with and support civilian law-enforcement agencies.

The Department of Defense has long provided such support. The primary mission of Joint Task Force North (JTF North), a subordinate joint task force of NORTHCOM based at Biggs Army Airfield, Fort Bliss, Texas, is to support civilian law-enforcement authorities. For years, JTF North has provided that support, with the authorization of Congress, without violating the Posse Comitatus Act or any other law.

As many also have noted, the Insurrection Act is an exception to Posse Comitatus. The Insurrection Act allows the President to use federal armed forces to enforce the law in three instances: at the request of a state legislature or, if the legislature is not in session, a governor; either to enforce federal law or when a rebellion or unlawful "assemblage" precludes enforcement of the law through judicial proceedings; and to suppress "any insurrection, domestic violence, unlawful combination, or conspiracy" if a state fails to protect the constitutional rights of its citizens. Actions taken under the Insurrection Act do not constitute martial law. Martial law is far more sweeping, and the President may impose martial law only in circumstances more extreme than those required to invoke the Insurrection Act.

The Insurrection Act has been invoked rarely in the last 60 years. Presidents Eisenhower and Kennedy invoked the act four times between 1957 and 1963 to enforce desegregation laws in Arkansas, Mississippi and Alabama. President George H.W. Bush invoked the act in 1989, federalizing National Guard units and deploying the 16th Military Police Brigade to restore order in the Virgin Islands in the aftermath of Hurricane Hugo. Finally, the first President Bush, at the request of the governor of California, invoked the Insurrection Act in 1992 to empower a federal joint task force to enforce the law during riots in Los Angeles. In the last instance, the joint task force commander prohibited his soldiers, including federalized National Guard soldiers, from performing law-enforcement missions, even though the President had authorized them to enforce the law.

Discussing DSCA operations, which include CBRNE consequence management, in the same breath as the Insurrection Act only perpetuates misunderstanding. The Insurrection Act does not provide the legal authority for DSCA operations. Federal military (Title 10) forces, including CBRNE consequence management response forces, conduct DSCA operations under the umbrella of the National Response Framework, promulgated by the Department of Homeland Security. The specific statutory authority for DSCA operations is the Robert T. Stafford Disaster Relief and Emergency Assistance Act, commonly known as the Stafford Act.

The National Response Framework outlines the comprehensive, unified system for responding to natural and manmade disasters in U.S. territory. Under this tiered response system, local governments are the first responders to any domestic emergency, and all incidents are handled at the lowest level possible. States become involved in disaster response only if an incident exceeds the capability of local governments to manage the response.

The National Guard, in its capacity as a state force, always has been, and remains, the primary military response to any natural or man-made incident within the United States. Indeed, before federal military forces will be used in response to a disaster in a state, that state, through interstate agreements, will employ the National Guard forces of its sister states. In contrast to the caricature of overeager executive branch officials seeking any excuse to send the federal military into sovereign states, the Secretary of Defense denied California Governor Arnold Schwarzenegger's request for federal forces during recent wildfires because the state's National Guard capabilities had not been exhausted.

The federal government becomes involved only if a disaster overwhelms local and state capabilities, including those of the affected state's own National Guard and of other states' Guard units employed by the affected state, and then only at the state's request. When the federal government responds, it designates a lead federal agency. The lead federal agency is most often, but not always, FEMA. DoD's role in all DSCA operations-and CBRNE consequence management is a DSCA operation-is to support the lead federal agency and other federal, state and local organizations.

Under the rubric of the Stafford Act, Title 10 forces perform only discrete and defined tasks, known as "mission assignments." These mission assignments result from requests for assistance that are usually passed to DoD from the local and state levels through FEMA. The requests are vetted by the Joint Staff and approved by the Secretary of Defense. Every request is reviewed for legality by many DoD lawyers at various levels as it progresses to the Secretary. Aside from the necessity to ensure that the use of Title 10 forces in a DSCA operation is legal, appropriate and cost-effective, the process ensures that DoD is reimbursed for its expenditures under the Stafford Act and that readiness is not degraded by spending operational funds for DSCA missions. CCMRF, like any other DSCA force, will execute approved mission assignments, and only approved mission assignments.

CCMRF: Facts and Fiction

Citing the Insurrection Act and the 2006 amendment to that statute, COL Trebilcock and others have implied that the assignment of the 1st Brigade Combat Team, 3rd Infantry Division, to NORTHCOM as part of CCMRF is an unwarranted expansion of the President's authority to use the federal armed forces on U.S. soil and will lead to the demise of the Posse Comitatus Act. Equating CCMRF with unchecked executive authority demonstrates the widespread misunderstanding of CCMRF.

In the first instance, DoD has long kept a combat unit on a short string to conduct homeland defense missions in the United States when necessary, and this unit has fallen under the control of NORTHCOM since the establishment of that combatant command. Other than to point out that the Insurrection Act has empowered the President to act unilaterally to employ federal forces in the United States for more than 200 years, however, any discussion of the 2006 amendment to the act is pointless for, as COL Trebilcock notes, Congress repealed that amendment in 2008. Our tripartite system of checks and balances works. If Congress believes that the President has too much authority, it will act to take that authority away, just as it did in repealing the amendment to the Insurrection Act.

In any event, CCMRF and the Insurrection Act are "apples and oranges." CCMRF is a DSCA force. Congress understands that, and any intimation that an imperious executive branch is using CCMRF and, perhaps, the Insurrection Act as an attempt to evade the law, sidestep Posse Comitatus, and undercut Congress and state and local authority does not pass muster. Congress fully supports DoD's efforts in creating CCMRF and assigning the first CCMRF to NORTHCOM. As the Senate report to the 2009 Defense Authorization Bill states, "Efforts to establish forces to manage the consequences of CBRNE incidents should receive the highest level of attention within the [Defense] Department, and the additional forces needed for CBRNE consequence management should be identified, trained, equipped, and assigned to U.S. Northern Command as soon as possible."

More important, though, the slippery slope argument evinces the lack of understanding of the CCMRF mission and of why that mission is so vitally important to our national security. The CCMRF mission is to provide rapid response capability to assist local, state and other federal authorities following a catastrophic event. CBRNE incidents pose a great and very real security challenge in the United States. A terrorist attack or accidental CBRNE incident could be catastrophic and likely would overwhelm local and state authorities very quickly. Federal military forces have capabilities that, in a catastrophic CBRNE event, may be otherwise unavailable to states and localities.

A CCMRF is a joint force usually organized under a two-star headquarters. It is composed of three subordinate colonel-level task forces: operations, medical, and aviation. Task Force Operations is formed around the nucleus of a brigade combat team or maneuver enhancement brigade, augmented by logistics and specialized CBRNE units. Task Force Operations is capable of CBRNE detection and decontamination and can provide, among other things, transportation, logistics, communications and public affairs support to local, state and federal entities.

Task Force Medical provides public health support, augments civilian medical facilities, conducts casualty collection operations, assists with patient movement and provides medical logistics support. Task Force Aviation provides heavy- and medium-lift helicopters, including medevac aircraft.

Currently, only one CCMRF is operational. The second CCMRF will become operational in October and the third in October 2010. Army National Guard brigade combat teams, to be employed in a Title 10 status, will form the nucleus of Task Force Operations of the second and third CCMRFs.

CCMRF and Posse Comitatus

Ours is a nation of laws. The Department of Defense is bound by the law, and the armed forces scrupulously obey and uphold the law. That law includes the Posse Comitatus Act.

As in any DSCA operation, the objective of CCMRF is to save lives, relieve suffering and mitigate damage. CCMRF is not a police force. It is not organized, manned, trained or equipped to perform law-enforcement missions. In fact, CCMRF soldiers, sailors, airmen and marines, like all Title 10 forces performing DSCA operations, are prohibited by DoD policy even from carrying weapons without the express approval of the Secretary of Defense. The specter of armed federal soldiers patrolling American cities in full battle gear is farfetched. Indeed, under the National Response Framework, the primary federal agency for coordinating matters of public safety and security is the Federal Bureau of Investigation, not DoD.

COL Trebilcock's suggestion that active Army soldiers, if domestic unrest and violence are so serious that weapons must be carried during DSCA operations, cannot adapt from combat to civil-support operations in the United States without violating rules for the use of force is unconvincing. Aside from the fact that our Army is the most disciplined, best-trained, best-led military force in the world, the near-instantaneous transition from combat operations to DSCA operations has occurred without incident: The 256th Infantry Brigade, Louisiana Army National Guard, redeployed early from Iraq in 2005 to assist in Louisiana's response to Hurricane Katrina-including providing support to law-enforcement authorities.

CCMRF is essential to our nation's integrated domestic response capability. CCMRF does not supplant state, local or other federal authority; it supplements it by providing response, rescue, relief and recovery capabilities that states, localities and other federal agencies may lack in a CBRNE event.

Those who believe that CCMRF somehow subverts the law and portends the demise of Posse Comitatus have misunderstood the role the federal armed forces have long played in DSCA operations. In the post-9/11 world, that role is ever more important. Given the fundamental obligation of assuring our nation's capability to respond to the unthinkable-and the potential consequences of failing to do so-it behooves all of us to work to correct that misunderstanding.


 

 
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