The United States as a Theater
Although a theater of operations, as discussed in Chapter 4, is technically defined as an area "outside the continental United States," emergencies or other circumstances may arise in which a senior commander must provide support within the United States. That is, he must determine when, where, and for what purpose tactical forces, equipment, or other support will be committed in support of strategic aims. Judge advocates supporting operations taking place in the U.S. practice OPLAW and provide legal support to these operations much the same as judge advocates deployed overseas do for foreign operations. Statutes, numerous Department of Defense Directives, and other materials define the parameters of military support to domestic operations. Judge advocates that provide legal support to these operations must have a detailed understanding of the various programs, and their underlying legal authorities, that make up the domestic support arena. This chapter applies to operations in the U.S., including Alaska, Hawaii, Puerto Rico and other U.S. territories and possessions.
Generally, domestic operations fall into three categories: military support to civil authorities (e.g., disaster relief); military support to law enforcement (e.g., civil disturbances, counterdrug operations); and military support to terrorism response (to include those involving weapons of mass destruction) (described later in this chapter as Emerging Threats in the Continental U.S.). This chapter will address each of these categories with a view toward the specialized nature of training and preparation legal personnel require for these operations.
Commanders and their judge advocates must understand that the DoD plays a support role in domestic operations. DoD acts in support of another federal, state, or local government or agency, known as the lead agency. Judge advocates must prepare to work closely with all appropriate organizations and agencies to help the commander stay within the restrictive boundaries of law and policy characteristic of military support in the United States.
7.2 Organizing and Equipping Judge Advocates
For an SJA, organizing and equipping judge advocates to deliver legal support to domestic operations is no different than it is for war or operations other than war. Based on the METT-TC model (the variance being that the enemy could be an actual disaster, potential threats to force protection in a civil disturbance, or terrorists), the SJA will task organize his legal support to support the command and troops in the operation. The SJA should develop formal or informal training associations with Legal Support Organizations, Reserve Support Commands, or the Army National Guard to obtain the benefit of the experienced reserve component support embedded therein. The National Guard (non-federalized in a Title 32 status) will likely play a significant role in all domestic operations; therefore, SJAs involved in domestic support operations should develop such training associations with National Guard judge advocates. SJAs can expect small task force-sized units that are logistically heavy in terms of troops and mission. Despite the potentially small size of units that may be called upon to provide assistance, any domestic operation will be legally intensive. While operations covered in other chapters in the publication focus mostly on judge advocate support to brigades and larger organizations, judge advocates should expect to support battalion-sized and smaller units in domestic operations.
7.3 Training Judge Advocates
Most judge advocates have little experience or training in domestic operations. This, coupled with the legally intensive nature of military support to domestic operations, is the reason that this chapter focuses on training. TJAGSA's Operational Law Handbook and CLAMO are two training resources for domestic operations. The general training principles described previously in chapters 4 and 5 remain the same. Lessons learned from past operations indicate a need for judge advocates to plan, develop legal expertise, and train for the use of the military to respond to domestic events-disasters, civil disturbances, and terrorist threats. That added need is the focus of this chapter.
7.4 Military Support to Civil Authorities.
This is merely a snapshot of the law on military support to civilian authorities. As is true across all legal disciplines, judge advocates must have access to and stay current in all law relevant to operations. Normally, specific legal references are not included in doctrinal publications. The special nature of domestic operations, however, makes their inclusion prudent.
The Department of Defense (DoD) will cooperate with and provide military assistance to civil authorities as directed by and consistent with applicable law and policy. DoD has specified that the Secretary of the Army is the approval authority for emergency military support in response to natural or man-made disasters. Any military support that requires Combatant Command-assigned personnel or equipment will be approved by the Secretary of Defense, after review by the Chairman, Joint Chiefs of Staff (CJCS). The rules concerning military support to civilian authorities do not address non-federalized National Guard assets as approved by the state's Governor in support of State and local civilian agencies.
7.4.2 Authorization for Military Support
While state governments have primary responsibility for responding to disasters, federal law provides several means by which federal resources can assist State governments in responding. The President can authorize DoD support by:
- Using the Presidential 10-day emergency authority under the Stafford Act to perform work for the preservation of life and property (e.g., removing debris/wreckage, restoring essential public facilities/services)
- By declaring a "major disaster" at the request of a State Governor
- By declaring an "emergency" at the request of a State Governor
- Be declaring an "emergency" where the federal government has exclusive or preeminent responsibility and authority (e.g., bombing of a federal building)
Further, civil authorities-defined as nonmilitary Federal, State, or Local government agencies-may ask commanders to take immediate steps to save lives, prevent human suffering, or mitigate great property damage when imminent serious conditions exist from a civil emergency or attack. When such a condition exists and time does not permit prior approval through command channels, commanders are authorized (subject to existing supplemental direction-subsequent notification procedures) to take the necessary action to respond-this is called Immediate Response Authority. Conditions that may require such a response include the rescue, evacuation, and emergency treatment of casualties; emergency restoration of power; or food distribution.
7.4.3 Lead Agency Concept and Role of Military
Once the National Command Authorities determine the need to provide federal support, the Federal Emergency Management Agency (FEMA) takes the lead in domestic disaster relief. The Federal Response Plan assigns primary or supporting agency responsibility for each of 12 Emergency Support Functions (ESF)-transportation, communications, firefighting, public works and engineering (ESF 3), information and planning, mass care, resource support, health and medical services, urban search and rescue, hazardous materials, food, and energy. DoD is the supporting agency in all ESFs except for ESF 3 (DoD is the designated lead agency for ESF 3). FEMA can task organize various agencies-as the lead or supporting agency-across the ESFs. For example, FEMA may task organize for a particular disaster response making the DoD the lead agency for ESF 1 (transportation).
DoD has no authority to provide disaster relief independent from FEMA (except for Commanders' actions under their Immediate Response Authority, and for military support concerning federal property). Also, FEMA is the reimbursement authority for disaster relief expenditures. Providing military support before FEMA requests the support may make subsequent reimbursement difficult and may result in an unauthorized expenditure of DoD funds. Commanders should consider all relevant fiscal procedures in planning domestic operations.
Commanders and their judge advocates must also consider legal restrictions on the use of military personnel for law enforcement purposes in all domestic operational planning and execution. The Posse Comitatus Act precludes military personnel, in support of disaster relief, from acting in a law enforcement capacity (e.g., security patrols or traffic control in civilian neighborhoods). Active Duty military personnel may not execute civil laws even when requested to do so by stressed local law enforcement officials. These restrictions do NOT apply to non-federalized National Guardsman. Judge advocates must develop a detailed understanding of the limitations and exceptions to the Posse Comitatus Act.
7.4.4 Rules for Use of Force
The Chairman of the Joints Chief of Staff Standing Rules of Engagement (SROE) do not apply to domestic disaster relief operations. Commanders and their judge advocates must pay particular attention to any guidance on the Rules for Use of Force (the term "ROE" is not used for domestic operations) in the execute order or in any subsequent orders or directives. While most disaster relief operations will occur in a non-hostile environment, soldiers need to know the applicable Rules for Use of Force. DoD Directive 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties (25 February 1992), provides guidance pertaining to the authorized use of deadly force which may be applicable. A situation where soldiers might be confronted with use of force situations might include a civil disturbance (e.g., looting) that occurs during disaster relief operations. Other state and local agencies, and perhaps non-federalized National Guardsman, are responsible for law enforcement functions-not federal troops. Again, the Posse Comitatus Act does not apply to the non-federalized National Guard. Commanders must be mindful, however, of force protection and the welfare of their soldiers. Proper training will ensure soldiers understand the rules on the use of force in domestic operations.
Finally, commanders must abide by and consider specified laws and policy on intelligence restrictions, election support restrictions, chaplain activities, payment of claims, debris removal, donated property, environmental compliance, support to relief workers, and the use of volunteers when planning and executing disaster relief and other types of military support operations in the United States.
7.5 Military Support to Law Enforcement
Military support to law enforcement includes many categories of support. A complex group of laws governs this support. This section will address two of those categories: civil disturbance operations and counter-drug operations.
7.5.1 Civil Disturbance Operations
This is merely a snapshot of the law on military support to civilian authorities. As is true in all legal disciplines, judge advocates must have access to and stay current in all law relevant to operations.
The commitment of federal troops to deal with domestic civil disturbances must be viewed as a drastic measure of last resort. Their role, therefore, should never be greater than is absolutely necessary under the circumstances. Commanders should take every measure to avoid the perception of an "invading force." A joint task force designated to respond to a civil disturbance should project the image of a restrained and well-disciplined force whose sole purpose is to help the area by helping restore law and order with minimal harm to people and property and with due respect for all law abiding citizens.
Just as they are primarily responsible for disaster relief, State and local governments are primarily responsible for protecting life and property and maintaining law and order in the civilian community. The President has, however, both Constitutional and federal legal authority to use federal armed forces to suppress insurrections and domestic violence.
220.127.116.11 Authorization for Military Support
Civil disturbances are group acts of violence and disorders prejudicial to public law and order (e.g., the 1992 Los Angeles riots) in the 50 states, the District of Columbia, Puerto Rico, and U.S. possessions and territories. The U.S. military can support civilian law enforcement agencies but such support shall maintain the "primacy" of civilian authority. While commanders and judge advocates must again understand the Posse Comitatus Act and consider its restrictions on military personnel performing law enforcement functions in the U.S., domestic law provides for exceptions to such use in some civil disturbance situations. These exceptions allow the President to federalize the militia of other states and use the military to suppress any insurrection, domestic violence, unlawful combination, or conspiracy under certain circumstances. Other than these specified circumstances, the military may not be used to deal with civil disturbances except in certain emergency situations. Immediate federal response, even under emergency circumstances, is limited to necessity and is not based on any underlying statutory authority. Those emergency circumstances include:
When necessary to prevent loss of life or wanton destruction of property, or to restore governmental functioning and public order. These sudden and unexpected civil disturbances (including civil disturbances incident to earthquake, fire, flood, or other such calamity endangering life) occur if the local authorities are unable to control the situation and circumstances preclude obtaining prior authorization by the President.
When State or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions.
With today's communication capabilities, commanders should make every effort to obtain prior approval through the chain of command before responding to either of these emergency situations. If prior communication is impossible, commanders should seek Presidential authorizations through the chain of command even while applying emergency support.
18.104.22.168 Lead Agency Concept and Role of Military
The Department of Justice (DoJ) is the lead federal agency for civil disturbance operations. The Attorney General's on-scene representative is known as the SCRAG (Senior Civilian Representative of the Attorney General). The DoD has designated the Department of the Army (DA) the DoD's executive agent for military assistance for civil disturbances (MACDIS). The Director of Military Support (DOMS) is DA's action agent for MACDIS. After coordination with the Chairman, Joint Chiefs of Staff (CJCS), DOMS issues guidance to the three combatant commanders (USJFCOM, USPACOM, and USSOCOM) responsible for planning and executing MACDIS (recall that this is a support role). USJFCOM has delegated authority to FORSCOM to conduct MACDIS in the USJFCOM area of operations. This gives the FORSCOM Commander operational control over joint forces assigned to a MACDIS mission. As is the case for all domestic operations, military forces remain under military control at all times.
Army and Air National Guard forces have primary responsibility for providing military assistance to state and local governments. They will normally serve in a state active duty status (Title 32 status) under state command. In extreme circumstances, the President may federalize National Guard forces (Title 10 status). During the 1992 Los Angeles civil disturbance, the President nationalized the California National Guard.
22.214.171.124 Rules for Use of Force
MACDIS operations can involve National Guard, Army, and Marines and will require working with federal, state, and local law enforcement authorities. Like other joint or combined operations, MACDIS operations require consistent rules for use of force that all supporting services understand and to the extent possible, all services should train relevant forces on these rules. Commanders should use situational training exercises to embed the principles of the use of force set forth in the DoD Civil Disturbance Plan-Garden Plot. Subject to CINC or CJCS modification, the Garden Plot rules for use of force include several basic concepts.
Use minimum force at all times.
Warning shots are not permitted
Deadly force may be used in very limited circumstances
Use of arming orders (as situation escalates, arming order status affects the posture of soldiers and Marines on the ground)
Use of Tactic, Techniques, and Procedures for MACDIS (e.g., use of riot control formations, pressurized water, sniper-fire, shotguns, etc.).
In addition to guidance on Rules for the Use of Force, Garden Plot contains many helpful annexes for commanders and judge advocates when planning and executing civil disturbance operations. Again, SJAs must ensure that their judge advocates are trained and ready for these operations. Some of the topics covered in Garden Plot are:
Loaning military equipment to non-DoD federal agencies
Leasing military equipment to non-federal agencies
Authority of military to detain or take civilians into custody
Authority of military to search people and property
7.5.2 Counter-Drug Operations
This is merely a snapshot of the law on military support to civilian authorities. As is true in all legal disciplines, judge advocates must have access to and stay current in all law relevant to operations.
DoD's primary counter-drug mission-in support of federal, state, local, and foreign civilian law enforcement agencies (CLEAs)-is the detection and monitoring of aerial and maritime transit of illegal drugs into the United States. Detection is defined as determining the presence of aircraft or vessels by visual or electronic means. Monitoring is tracking or maintaining continuous knowledge of the location of a suspected aircraft or vessel. DoD assets do not apprehend, physically interrupt, or force down aircraft or vessels. DoD is the single lead agency of the federal government for this detection and monitoring mission. Note that this is both a domestic and international mission. Other federal legislation emphasizes the role of DoD in counter-drug operations. In consultation with the Director of National Drug Control Policy, the Secretary of Defense shall integrate an effective communications network of the command, control, communications, and technical intelligence assets of the U.S. that are dedicated to the interdiction of illegal drugs into the U.S. Other legislation requires SECDEF to devote research and development activities to technologies to improve DoD's detection and monitoring mission.
Joint Task Forces (JTF) or Joint Inter-Agency Task Forces (JIATF) provide unity of command in the accomplishment of the detection and monitoring mission. For example, JTF-6, located at Fort Bliss, TX, is currently responsible for the Southwest Border region and all other continental U.S. support to CLEAs. The combatant commands establishing these JTFs may develop policy guidance on a variety of legal issues such as intelligence oversight, rules for the use of force, etc.
The National Guard is a critical source of military support to CLEAs. The National Guard (non-federalized) is not subject to the restrictions of the Posse Comitatus Act (discussed above). Thus, the Guard has more flexibility than federal forces in conducting counter-drug support operations. However, the National Guard Bureau has imposed a number of policy restrictions on counter-drug operations. State law will determine whether the Guard may legally support a particular operation.
Operating under state law and National Guard regulations, these units conduct counter-drug operations in all states and territories. National Guard units provide 16 types of support, which are listed in National Guard Regulations. Federal support to the National Guard counter-drug effort is in providing federal funding (after a Governor submits a counter-drug plan to DoS) to certain counter-drug missions. Importantly, National Guard forces (non-federalized) engaged in counter-drug support operations using federal funds and under federal guidance remain a state militia force and are not considered a federal force for purposes of the Posse Comitatus Act or for any other purpose. However, National Guard members engaged in such operations are covered by the Federal Tort Claims Act without losing their non-federal status.
126.96.36.199 Authorization for Military Support
The following is a list of the types of DoD missions undertaken in support of civilian law enforcement agencies (CLEAs).
DoD Support to CLEAs. DoD has specific statutory authority to support certain activities of CLEAs (e.g., 10 U.S.C. 371-382).
DoD support for non-CLEAs. In specified circumstances, federal law permits DoD to support other federal, state, and local agencies that have a counter-drug role even though the agencies are not CLEAs.
The Secretary of Defense, through the Joint Chiefs of Staff, gave authority to unified commanders to approve counter-drug-related deployments of DoD personnel in support of CLEAs and non-CLEAs. The key document in understanding these two counter-drug support missions is the Chairman of the Joint Chiefs of Staff Delegation of Authority Instruction (CJCSI 3710.01A, 23 Apr. 1997). This document includes descriptions of permissible DoD support, legal considerations, and guidance on the fiscal aspects of providing counter-drug support. Although the federal law and policy governing counter-drug operations are extensive and complex, commanders and judge advocates must understand the types of support that DoD can not provide to CLEAs in domestic operations.
Posse Comitatus Act. The prohibition on the use of the military for law enforcement purposes is discussed throughout this chapter.
DoD personnel may not conduct or fund any activity which includes or permits direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless otherwise authorized by law.
DoD personnel may not accompany U.S. CLEAs on actual counter-drug field operations, or participate in any counter-drug activities where hostilities are imminent, unless authorized by the National Command Authorities.
DoD may not provide any support that will adversely affect military preparedness. The Secretary of Defense is the approval authority for the use of personnel and certain equipment (e.g., arms, ammunition, tactical vehicles, etc.).
There is extensive federal law and policy on DoD's domestic and international role in supporting counter-drug operations. Commanders and SJAs charged with supporting this specialized mission should ensure that judge advocate actually supporting these operations have electronic access to the full spectrum of legal resources, receive (time permitting) all available counter-drug training opportunities, and know and understand the use of technical channels within the JAGC.
188.8.131.52 Lead Agency Concept and Role of the Military
DoD counter-drug missions are strictly in support of civilian law enforcement agencies. Even where DoD serves as the single lead agency for the Federal Government (detection and monitoring of aerial and maritime transit of illegal drugs into the U.S.), this role is in support of federal, state, local, and foreign CLEAs.
184.108.40.206 Rules for Use of Force
For counter-drug operations taking place outside of the continental U.S., the Chairman of the Joints Chief of Staff SROE apply. The SROE are discussed at length in Chapter 8.
For counter-drug operations taking place within the continental U.S., judge advocates and commanders must turn to Atlantic Command and Joint Task Force-6 for directives, guidelines, and policy on the use of force.
7.6 Emerging Threats in the Continental United States (Terrorism)
Due to our military superiority, potential enemies, whether nations or terrorist groups, may be more likely in the future to resort to terrorist acts or other attacks against vulnerable civilian targets in the United States instead of conventional military operations.
|A National Security Strategy for a New Century
The White House-October 1998
The federal government, in concert with state and local governments and agencies, will respond to acts of terrorism occurring in the United States. In general, the federal government's response will include the restoration of order and delivery of emergency assistance. Presidential Decision Directive (PDD) 39, signed in June 1995, establishes U.S. policy, and assigns responsibilities, concerning domestic terrorism. PDD 62, signed in May 1998, lays out the Executive Branch's vision and the corresponding assignment of responsibilities for a coordinated U.S. response to acts of terrorism involving weapons of mass destruction (WMD). PDD 62 directs the Department of Justice (DoJ), acting through the Federal Bureau of Investigation (FBI), to take the lead responding to acts of terrorism using WMD. The Federal Emergency Management Agency (FEMA) supports the FBI in preparing for and responding to the consequences of such an incident.
As part of the Domestic Terrorism Program, the Department of Defense (DoD), along with many other agencies, will provide specified capabilities and assets in support of the FBI, FEMA, and other federal, state, and local governments as part of an integrated consequence management program. As part of this Program, the DoD will maintain units to assist in WMD consequence management and to help train emergency response personnel. This training may include exercises or other forms of training. Further, the DoD will help train the Army National Guard and other reserve assets for their role in assisting local authorities in managing the consequences of a WMD attack.
Again, like other forms of military support to domestic operations, judge advocates must have a detailed understanding of the laws, regulations and policies addressing terrorism and the roles of federal and state agencies. Judge advocates must recognize that a terrorist attack on the United States involving WMD will likely entail a massive, joint, and inter-agency response that will cross federal, state, and local government lines. Time to respond may be of the essence and command and control lines may be unclear or confused. Further, a well-organized, trained, and equipped military may have the tendency to step in and take "charge." Absent direction from the NCA (akin to a declaration of martial law), federal military commanders must remember that DoD remains in a support role to assist DoJ, the FBI, FEMA or other lead agency with primary responsibility and overall control of the mission.
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