LEGAL CONSIDERATIONS AND CONSTRAINTS
The Constitution, laws, regulations, policies, and other legal issues limit the use of federal military personnel in domestic support operations. This chapter presents an overview of those considerations and constraints.
|Commanders should discuss plans, policies, programs, exercises, funding, and operations with their legal advisors.|
Under the Constitution of the United States, Congress has the authority to raise and support an army, provide and maintain a navy, and make rules for governing and regulating the land and naval forces. The Constitution places the military under civilian control and designates the President as commander-in-chief. Statutes provide for civilian leadership in the form of a secretary of defense, service secretaries, and various other civilian authorities.
The unique capabilities of the military enable it to support federal, state, or local civilian agencies. In most circumstances, the DOD is one of many federal agencies reacting to a domestic emergency or crisis, playing a subordinate, supporting role to a lead, civilian agency.
Traditionally, nations have raised and maintained armies to provide for the national defense. Today, the United States calls upon its Army to perform various other functions as well, for example, controlling civil disturbances, assisting with disasters, and providing essential services.
Within the United States, civilian agencies, not the military, provide for the needs of citizens. Civilian, federal, state, and local government and law enforcement agencies execute US laws. Laws governing use of the military in domestic operations are complex, subtle, and ever-changing. For this reason, commanders should discuss plans, policies, programs, exercises, funding, and operations with their legal advisors. They should scrutinize each request for aid, whether it be for equipment or training, to ensure that it conforms with statutory requirements.
Generally, federal military forces may not give law enforcement assistance to civil authorities without running afoul of The Posse Comitatus Act. However, Constitutional and statutory exceptions to this prohibition do exist. The recent emphasis on drug interdiction has led to an increase in those exceptions.
The Judiciary Act of 1789 allowed United States marshals to call upon the military as a posse comitatus. This continued until after the Civil War, when the federal government used the Army to execute Reconstruction Era policies. The southern states regarded the use of the military for this purpose as abusive and repressive, and in 1878 President Rutherford B. Hayes signed the original bill ending the practice. The current wording contained in 18 USC 1385 is:
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 not more than $10,000 or imprisoned not more than two years, or both.
The Posse Comitatus Act prescribes criminal penalties for use of the US Army or Air Force to execute the laws of or to perform civilian law enforcement functions within the US. DOD policy extends this prohibition to the US Navy and Marine Corps. Prohibiting the military from executing the laws means that military personnel may not participate directly--
The Posse Comitatus Act does not apply to--
|There are specific actions in which military personnel may not participate.|
Under its inherent authority, the United States Government is responsible for preserving public order and carrying out governmental operations within its territorial limits, by force, if necessary. Under the Constitution, two exceptions allow the use of the military to execute or enforce the law: when necessary to protect civilian property and functions and when necessary to protect federal property and functions.
When Necessary to Protect Civilian Property and Functions. A sudden and unexpected civil disturbance, disaster, or calamity may seriously endanger life and property and disrupt normal governmental functions to such an extent that local authorities cannot control the situation. At such times, the federal government may use military force to prevent loss of life or wanton destruction of property and to restore government functions and public order. This exception has rarely been used.
When Necessary to Protect Federal Property and Functions. The federal government may use military force to protect federal property and federal government functions when local authorities cannot or decline to provide adequate protection.
The President may order the armed forces to aid state civil authorities who are suffering from an insurrection or civil disturbance--
The President must act personally by first issuing a proclamation calling upon insurgents to disperse and retire peaceably within a limited time (10 USC 331-333; 10 USC 3500; 10 USC 8500). Note: Not one of these authorities, in and of itself, provides sufficient legal basis to order the reserve components to active federal service.
Other statutory exceptions (10 USC 371-380) allow military personnel to provide limited support to civilian law enforcement agencies (LEAs) indirectly. Under these laws, the military may share certain information and provide equipment, facilities, and other services to LEAs. The annual DOD Authorization Act also contains exceptions concerning military support to civilian authorities fighting illegal drugs. DOD policies for providing support to civilian LEAs, including personnel and equipment, are contained in DOD Directive 5525.5. AR 500-51 contains related US Army policies. Examples of support that does not violate The Posse Comitatus Act follow:
The Stafford Act, 42 USC 5121, et seq, as amended, is the statutory authority for federal domestic disaster assistance. It empowers the President to establish a program for disaster preparedness and response, which the President has delegated to FEMA. The Stafford Act provides procedures for declaring an emergency or major disaster, as well as the type and amount of federal assistance available. The Act authorizes the President to provide DOD assets for relief once he formally declares an emergency or a major disaster. He may also provide DOD assets for emergency work on a limited basis prior to the declaration. DOD policy for providing domestic disaster assistance is contained in DOD Directive 3025.1, Military Support to Civil Authorities. Army policy is found in AR 500-60,Disaster Relief.
Emergencies and Major Disasters
The difference between an emergency and a major disaster is one of duration, severity, and the extent of assistance required. Examples are hurricanes, floods, tornados, storms, tidal waves, earthquakes, volcanic eruptions, landslides, droughts, explosions, or other natural or man-made catastrophes. Emergencies are less severe than major disasters, requiring a shorter time to recover and to provide adequate relief. Both may require federal assistance to augment state and local resources and relief agencies. From a DOD perspective, an emergency and a major disaster may require the same type of work, that is, removal of debris, preservation of health and safety, and restoration of essential services.
|The difference between an emergency and a major disaster is one of duration, degree of damage, and extent of assistance needed.|
The Federal Response Plan
Once a state requests aid, the President may declare an emergency or a major disaster, enabling the FEMA to act under the FRP. The FRP is a memorandum of understanding (MOU) between the FEMA and other federal agencies, including the DOD, to provide domestic disaster assistance. Under the FRP, a single federal agency is assigned primary responsibility for each of twelve ESFs. The FEMA orchestrates disaster relief through these ESFs. Each primary agency orchestrates the federal effort within its sphere of responsibility and may, if authorized by the FEMA, task other agencies for support.
The DOD has primary responsibility for ESF 3, Public Works, and ESF 9, Urban Search and Rescue, and is a supporting agency for the remaining ten. The FEMA reimburses the DOD for the incremental costs of providing the tasked assistance. Without specific FEMA tasking, DOD units lack authority to provide domestic disaster assistance and, if provided, risk not being reimbursed for its cost. If in doubt, commanders should seek clarification from the FEMA through the defense coordinating officer.
To save lives or to preserve property, the President may commit DOD resources to perform emergency work on public or private lands prior to his official declaration of an emergency or major disaster. Emergency work is defined as clearance and removal of debris and wreckage and temporary restoration of essential public facilities and services. Such work may not last more than 10 days.
US law (18 USC 592) prescribes criminal penalties for US troops being at or near polling places. Commanders should determine if elections are scheduled during disaster assistance operations. For example, during JTF Andrew operations, the FEMA asked the DOD, at the request of Florida election officials, to erect 66 tents, with generators and light sets, to serve as temporary polling sites during a general election. They further tasked DOD to maintain the equipment. Several other polling sites were located near DOD personnel performing disaster relief duties. The Department of Justice opined that so long as DOD personnel did all they could to respect the integrity of the sites, they would not violate 18 USC 592. This was true as they provided tasked support and as they continued relief operations in their vicinity.
|Hurricane Iniki left the Hawaiian island of Kauai devastated; one result was inoperative county polling places. Soldiers from the Hawaii Army National Guard (serving on state active duty) helped a state primary election take place as scheduled by providing tents and transportation assets to Kauai County polling officials.|
Various DOD directives outline the policies for maintaining security and combating terrorism. Because the DOD retains responsibility for protecting its resources, DOD domestic actions to combat terrorism do not always fall within the category of providing assistance to civilian authorities. OPLAN GARDEN PLOT contains DOD procedures for assisting the FBI in combating terrorism on and off of US military installations.
The FBI's Responsibility
The FBI has overall jurisdiction at the scene of a terrorist incident wherever it occurs, including military installations. The President has directed federal departments and agencies to cooperate to thwart terrorist incidents.
The DOD's Responsibility
Commanders are responsible for the maintenance of law and order on their installations. They must take all actions to respond to and terminate any terrorist incident occurring on the installation and to protect the installation's personnel and equipment from attack. Installation commanders should coordinate protective measures with appropriate civilian LEAs.
|Commanders who perform disaster assistance missions not tasked by FEMA risk the Army's not being reimbursed for its cost.|
DOD components are authorized to respond to reasonable requests from the FBI for military resources for use in combating acts of terrorism. Assistance may include material, facilities, and technical personnel in an advisory capacity. Without Presidential approval, military personnel may not be used in a law enforcement role outside of a military installation. With that approval, soldiers may perform missions designated by the FBI pursuant to its responsibilities during a terrorist incident. However, command and control of the soldiers always remain with their military chain of command.
DOD resources may be provided only upon request of the Director, FBI, or the senior FBI official at the scene of a terrorist incident. Commanders may accept the judgment of the requesting official if the official's determination is consistent with available facts. Commanders must forward requests for resources not based upon an actual or imminent terrorist incident---for example, requests for training or longterm equipment loans--to the DOD for processing in accordance with OPLAN GARDEN PLOT.
The Federal Aviation Administration (FAA) has exclusive responsibility for directing law enforcement activity affecting the safety of persons on board in-flight aircraft involved in aircraft piracy. The DOD is required, upon request of the Administrator, FAA, to provide necessary assistance to carry out the air piracy laws. The DOT and the DOD have a memorandum of understanding concerning aircraft piracy that covers DOD aircraft, regardless of location, and any non-DOD aircraft on DOD installations.
DOD support to civilian agencies for other emergencies, such as hazardous substance cleanup, radiological threats, emergency evacuation, and flood control, may be under specific authority, for example, The Flood Control Act. Such support may also be executed in conjunction with other laws, policies, procedures, or regulations. It is not possible to discuss all situations within the constraints of this publication. For example, Army Corps of Engineers civil engineering projects exceed the scope of this discussion. Applicable references are listed at the back of this manual.
10 USC 672(b), The 15-Day Rule.
The secretary concerned may order reserve component units--and personnel not assigned to units--to active duty for a period not to exceed 15 days per year. Activating NG units and personnel requires the governor's consent. USAR units and ARNG units performing annual training outside the US and its territories, however, use such orders as authority for their annual training period. If a reserve component unit ordered to active duty under this authority uses it to perform annual training, the authority is no longer available for that unit until the next fiscal year.
10 USC 672(d), Volunteers
The secretary concerned may order to active duty reserve component personnel who volunteer. The governor must consent to activating NG personnel. Normally, as a matter of policy, USAR personnel are ordered to active duty for a period of more than 30 days to permit maximum benefits. However, they may or may not actually serve for more than 30 days. Ordinarily, no USAR or NG personnel will be ordered to active duty as volunteers unless active duty and state ARNG personnel cannot perform the duty and the appropriate CINC validates the requirement.
Use of MI personnel during domestic support operations is restricted as a direct result of lessons learned from their improper use in the 1960s. Consequently, LEA requests for MI personnel or material for counterdrug support must be approved by the Secretary of the Army General Counsel and coordinated through the Department of the Army Office of the Deputy Chief of Staff for Intelligence.
During disaster assistance operations, MI personnel may be used for liaison as well as other MI support activities. However, a specific MI mission statement, coordinated through proper authorities, must authorize MI personnel to collect, analyze, and disseminate information. When so authorized, MI personnel may--
Information that MI personnel gather without using or retaining it is considered not to have been collected. Commanders and MI personnel will ensure that all such material is handed over to appropriate authorities before departing the disaster area.
When OPLAN GARDEN PLOT is executed in response to civil disturbance operations, MI activities fall under the jurisdiction of law enforcement policies and regulations. Commanders must ensure that Ml support missions, other than normal liaison with LEAs for force protection, have been coordinated with and approved by appropriate authorities.
Several statutes permit the President, the SECDEF, or the service secretaries to use portions of the reserve components. For domestic disaster assistance, generally only two apply: 10 USC 672(b) and 10 USC 672(d).
AR 700-131 provides HQDA guidance for the loan or lease of US Army materiel. The SA must approve the loan of arms, ammunition, combat vehicles, vessels, and aircraft. Ordinarily, when the DOD loans equipment, the borrowing agency must reimburse them for all DOD costs incident to its delivery, return, and repair. In addition, the borrower must reimburse the full purchase price for consumable or nondurable items, such as batteries, and for depreciation if it is significant.
DOD directives tightly regulate use of reserve component equipment. The MACOM commander approves temporary loans for 90 days or less. The Secretary or Deputy Secretary of Defense approves withdrawals of equipment for more than 90 days. Replacement plans must accompany requests for withdrawals.
In addition to the authorities mentioned above, The Economy Act (31 USC 1535) permits federal agencies to provide goods and services to other federal agencies on a reimbursable basis. The Stafford Disaster Relief Act requires reimbursement to the DOD for the incremental costs of providing support. Approval authority and reporting requirements vary depending upon the duration and type of support requested. OPLAN GARDEN PLOT contains procedures for reimbursing DOD for assistance during civil disturbances. Reimbursement for use of NG personnel and assets to assist state counterdrug operations and programs is authorized by 32 USC 112.
Other statutes permit federal agencies to seek waiver of reimbursement. For example, federal law enforcement agencies are not required to reimburse DOD if support--
Domestic support operations raise many legal issues. The Constitution, statutes, and regulations strictly govern the relationship of the military to civilian authorities. The basic rule is that the military plays a subordinate and supporting role to civilian authority, which is different from the wartime role they would have in a foreign theater of operations. Questions of posse comitatus, use of force, disaster assistance, and federalization of troops raise issues that require timely legal advice. Commanders must be aware of the legal implications of domestic support operations, ensure that they are appropriately advised by competent legal counsel, and act accordingly.