Case 8

Appendix B

Operations and Legal Considerations in the Continental United States

Providing military assistance to state and local governments to assist them in quelling a civil disturbance or riot requires close coordination through a host of state and federal agencies. It requires a thorough briefing of soldiers at all levels on what they can and cannot do with respect to law enforcement. Civil authorities must be briefed on the restrictions placed on federal forces by the Constitution of the United States and federal statutes and laws. The national guard (NG), when not in a federal status, operates under the control of the state governor and the adjutant general (AG). The NG has historically been the first military responder during emergencies.

Federal Intervention and Aid

B-1. Under the Constitution of the United States and United States Code, the President is empowered to direct federal intervention in civil disturbances to—

·         Respond to state requests for aid in restoring order.

·         Enforce the laws of the United States.

·         Protect the civil rights of citizens.

·         Protect federal property and functions.

B-2. Under the Constitution of the United States, each state is responsible for protecting life and property within its boundaries. State and local governments use their LEA forces to maintain law and order and to quell civil disturbances. However, if civil disturbance support requirements exceed the resources of a state, federal troops may be requested to help restore and maintain law and order.

B-3. The Constitution of the United States and federal statutes authorize the President to direct the use of federal armed troops within the 50 states and territories and their political subdivisions. The President is also empowered to federalize the NG of any state to suppress rebellion and enforce federal laws.

B-4. Federal assistance is provided to a state when the state has used all of its resources, including its NG, to quell a disorder and finds the resources insufficient. Usually, active duty federal forces are used to augment the NG of the requesting state. However, the President may choose to federalize the NG of another state and use them alone or with other forces to restore order.

B-5. The President may employ federal troops to ensure the execution of US law when a state opposes or obstructs US law or impedes the course of justice under those laws. The President may employ armed federal troops to suppress insurrection, domestic violence, unlawful assemblies, and conspiracy if such acts deprive the people of their constitutional rights and privileges and the civil authorities of a state cannot or will not provide adequate protection.

B-6. The president is also authorized to use armed federal troops to protect federal property and functions when the need for protection exists and local civil authorities cannot or will not give adequate protection. The right of the United States to protect all federal property and functions regardless of their locations is an accepted principle of our government.

B-7. As a temporary measure, federal military equipment and facilities may be loaned to law enforcement agencies of state and local governmental bodies for use during civil disturbances. These resources may also be loaned to state NG and non-DOD federal agencies. The requesting agencies are expected to provide enough resources of their own to minimize the need for US military resources. In addition, the loan of the resources must not conflict with US military needs.

Roles and Responsibilities of Various Agencies

B-8. Several agencies within the federal and state governments play a key role in supporting the request of local authorities for support during a civil disturbance.

Secretary Of Defense

B-9. The Secretary of Defense retains approval for federal support to civil authorities involving the use of DOD forces, personnel, and equipment. Approval may also involve DOD support that will result in a planned event with the potential for confrontation with specifically identified individuals and groups or will result in the use of lethal force.

Secretary of the Army

B-10. The Secretary of the Army, as an executive agent for the Secretary of Defense, is the approval authority for federal emergency support in response to natural and man-made disasters (except weapons of mass destruction [WMD]). Military forces respond to directions and guidance from the director of military support (DOMS) (the action agent for the Secretary of the Army).

Director Of Military Support

B-11. The DOMS plans and executes the DOD domestic support mission to civil authorities. He is a general officer appointed by the Secretary of the Army. The DOMS is the DOD primary contact for all federal departments and agencies during DOD involvement in most domestic support operations.

State Coordinating Officer

B-12. The governor appoints the state coordinating officer (SCO) to coordinate disaster operations for the state. The SCO is the primary point of contact for the federal coordinating officer (FCO) in facilitating disaster assistance.

Director of the Federal Emergency Management Agency

B-13. The director of the Federal Emergency Management Agency (FEMA), on behalf of the President, appoints the FCO. The FCO coordinates the timely delivery of federal disaster assistance to the affected state and local governments and disaster victims. He works closely with the SCO to determine state requirements and to coordinate national level issues with the catastrophic disaster response group. There must be close and continuous coordination with FEMA to ensure the proper use of military assets in support of civil authorities.

Defense Coordinating Officer

B-14. The defense coordinating officer (DCO) operates under the authority of the President and is the DOD representative designated to coordinate on-the-scene activities with the FCO. FEMA and other federal agencies that request support from DOD go through the DCO for validation and resourcing.

National Guard

B-15. The NG, in state status (see Title 32, United States Code {USC}), is the governor's primary military response organization for emergencies and disasters. The NG responds and operates under state laws unless they are federalized, when they operate under the same constraints and laws as federal units.

United States Army Reserve

B-16. The US Army Reserve is capable of providing military support. This assistance and support may include the use of equipment and other resources, including units and individuals.

State and Local Government Responsibilities

B-17. State and local government officials, operating under the authority granted by state constitutions and the Constitution of the United States, are responsible for daily safety and security issues that impact the quality of life of their citizens. State and local officials have primary responsibility for emergency preparedness.

STATE RESPONSIBILITIES

B-18. Many state government agencies are responsible for coming to the aid of state citizens.

Governor

B-19. A state governor is empowered by each state constitution and the Constitution of the United States to execute the laws of the state and to command the state NG while it is serving in state status. Governors are also responsible for issuing executive orders or emergency proclamations, such as declaring states of emergency and ensuring that state agencies plan for potential disasters and civil disorder.

B-20. Once a man-made or natural disaster occurs, the governor assesses its extent and determines if local government requests for assistance should be honored. If appropriate, the governor declares a state of emergency, activates the state emergency response plan, and may order the NG into state active duty. The governor assigns the NG its mission through the office of emergency service (OES)/emergency medical dispatching (EMD).

Plans, Operations, and Military Support Officer

B-21. Each state NG has a plans, operations, and military support officer (POMSO) who prepares and coordinates contingency plans for military support to civil authorities (MSCA) during disaster response and recovery operations. The POMSO coordinates training plans and exercises between the state NG and federal, state, and local emergency management agencies. The POMSO serves as the NG point of contact with DOD officials during a declared federal emergency or disaster.

Office of Emergency Services

B-22. Each state has a specific agency and/or office that coordinates emergency preparedness and serves as the governor's coordinating agency during an emergency. The titles of these offices vary from state to state. Some examples are the Division of Emergency Government, Emergency Management Agency, Department of Public Safety, or Office of Emergency Preparedness. This manual refers to this office using the generic term OES/EMD.

B-23. Generally, the OES/EMD is organized as a stand-alone office under the governor or aligned under the AG or the state police, and in some instances, the AG is the OES/EMD director. It operates the state emergency operations center and coordinates with state agencies and federal officials for assistance.

Adjutant General

B-24. The state NG is the governor's primary military response force in an emergency. The AG, through the state area command (STARC) (specifically the POMSO), develops and coordinates emergency response plans for disasters and emergencies. The AG is in command of state NG forces ordered into state active duty.

State Government Agencies

B-25. State government departments and agencies prepare emergency preparedness plans for their areas of specialization in support of the governor's plan. They also participate in emergency preparedness exercises.

LOCAL RESPONSIBILITIES

B-26. Mayors, city managers, local police, fire protection officials, county executives, sheriffs, prosecuting attorneys, and public health officials are some of the people responsible for law enforcement, safety, health, and fire protection on a daily basis. They are responsible for developing appropriate emergency response plans and responding to emergencies within their jurisdictions. Most local jurisdictions have an OES/EMD to plan and coordinate actions in an emergency. In many cases, local jurisdictions have mutual aid agreements with other jurisdictions that allow for firefighting, medical, and police assistance across jurisdictional boundaries. Once local officials determine that an emergency is beyond the scope of their resources or ability to respond, the senior local official is responsible for requesting additional assistance from the next agency in the assistance request process.

Legal Considerations and Constraints

B-27. The Constitution of the United States, laws, regulations, policies, and other legal issues limit the use of federal military personnel in domestic support operations. Any Army involvement in civil disturbance operations involves many legal issues requiring comprehensive legal reviews.

B-28. 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 of the United States places the military under civilian control and designates the President as commander-in-chief. Statutes provide for civilian leadership in the office of the secretary of defense, service secretaries, and various other civil authorities. Under the Constitution of the United States, the civilian government must preserve public order and carry out governmental operations within its territorial limits. The Constitution of the United States allows the use of the federal military to execute or enforce the law when necessary to protect federal or civilian property and functions. However, significant restrictions exist on employing federal military forces within the United States.

B-29. 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.

LAW

B-30. In the United States, civilian agencies provide for the needs of citizens. Civilian, federal, state, and local government and law enforcement agencies execute US laws. Laws governing the use of the military in domestic operations are complex, subtle, and constantly changing. Commanders involved in civil disturbance operations should staff plans, policies, programs, exercises, funding, operations, constraints, and limitations with their local SJA to ensure conformity with legal requirements. They should scrutinize each request for aid (whether it is for equipment, individuals, or training) to ensure that it conforms to statutory requirements. The following references are a snapshot of the law on military support to civilian authorities:

·         Section 331, Chapter 15, Part 1, Subtitle A, Title 10 USC.

·         Section 332, Chapter 15, Part 1, Subtitle A, Title 10 USC.

·         Section 333, Chapter 15, Part 1, Subtitle A, Title 10 USC.

·         Section 334, Chapter 15, Part 1, Subtitle A, Title 10 USC.

·         Section 1385, Chapter 67, Part 1, Title 18 USC.

·         DOD Directive 3025.12.

·         DOD Directive 3025.15

·         DOD Directive 5525.5

·         DOD Civil Disturbance Plan 55-2

·         NGR 500-1/ANGI 10-8101

·         FM 3-19.15

INFORMATION OPERATIONS

B-31. Information superiority helps forces anticipate problems and requirements. It allows commanders to control situations earlier and with less force, creating the conditions necessary to achieve the end state. Public affairs, PSYOP, and civil military operations are activities that will allow the commander to control situations earlier and with less force.

B-32. Information is available from a multitude of sources, the primary being open sources, law enforcement, and the military. A diversity of sources is the best approach because it prevents biased behavior.

Open sources include—

·         Libraries.

·         Newspapers and news periodicals.

·         Radio and television.

Law enforcement sources include—

·         Local law enforcement agencies.

·         National law enforcement agencies.

Military sources include—

·         DOD intelligence community (most restrictive source).

·         Local MI field offices.

B-33. The DOD intelligence community operates under limitations imposed by regulations and executive orders. Attempts to skirt these restrictions may violate regulations or federal statutes.

RESTRICTIONS

B-34. Strict limits are placed on collecting information related to a civil disturbance in order to protect the civil rights of people and organizations not affiliated with the DOD. Civil disturbance plans and materials must not include lists of groups or people not affiliated with the DOD. Information on civilians and civilian organizations can be collected only with specific authorization from the Secretary or the Under Secretary of the Army. Conditions for collecting information include the existence of threats against Army personnel, functions, or property (see ARs 380-10 and 380-13). Civil disturbance information (available in public documents) or open-source information may be collected. However, specific rules regarding its storage must be followed. Commanders must coordinate with SJA, MI, and USACIDC before collecting any such information.

B-35. Civilian law enforcement agencies may limit access to law enforcement intelligence. In such circumstances, the military may request that agencies release the unclassified version.

B-36. If the Department of Justice (DOJ) determines that federal intervention into a civil disturbance is likely, then information relating to the disturbance is provided to the Army Assistant Chief of Staff for Intelligence. The information is analyzed and then passed through channels to the TF commander for planning purposes.

B-37. Military intelligence collection efforts, except liaison, may begin only when DA orders. The orders will come through the CSA's personal liaison officer and the TF commander. Covert operations to gather information on non-DOD individuals and groups must be approved on an operation-by-operation basis by the Undersecretary of the Army.

B-38. Once DA approves the collection effort, MI elements establish and maintain liaison with the appropriate local, state, and federal authorities. Then they collect information pertaining to the incident and general situation. Their estimate of the situation is passed to the TF commander and DA.

Posse Comitatus

B-39. Generally, federal military forces may not give law enforcement assistance to civil authorities without conflicting with 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.

B-40. The Judiciary Act of 1789 allowed US 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.

B-41. The Posse Comitatus Act prescribes criminal penalties for the use of the US Army or Air Force to execute the laws of or to perform civilian law enforcement functions within the United States. 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 in—

·         An arrest; a search and seizure; a stop and frisk; or an interdiction of vessels, aircraft, or vehicles.

·         A surveillance or pursuit.

·         A civilian legal case or any other civilian law enforcement activity as informants, undercover agents, or investigators.

B-42. The Posse Comitatus Act does not apply to the following:

·         Members of the NG when in state service.

·         Members of a Reserve Component when not on active duty or active duty for training.

·         DOD civilians, unless under the direct command and control of an active duty officer.

·         A soldier when off duty and acting only in a private capacity.

·         Soldiers taking action for the primary purpose of furthering a military or foreign affairs function of the United States; for example, enforcing military justice, maintaining law and order on military installations, and protecting classified materials.

Constitutional Exceptions to the Posse Comitatus Act

B-43. Under its inherent authority, the US government is responsible for preserving public order and carrying out governmental operations within its territorial limits, by force if necessary. Under the Constitution of the United States, exceptions allow the use of military force to execute or enforce the law. Some of the exceptions are to—

·         Protect civilian property and functions.

·         Ensure preservation of public order and carry out government operations, by force if necessary.

·         Protect civil rights where local authorities do not or cannot protect them.

·         Protect federal property and functions.

·         Quell civil disturbances and labor strife that rises to the level of civil disorder.

B-44. The President may order the armed forces to support state civil authorities suffering from an insurrection or civil disturbance. He must act personally by first issuing a proclamation calling on insurgents to disperse and retire peacefully within a limited time. This occurred when federal forces were called in to counter the Los Angeles riots in 1992.

Protect Civilian Property and Functions

B-45. 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.

Protect Federal Property and Functions

B-46. 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.

armed forces

B-47. Basic guidance for the interaction of the military, the Reserve Component, and civilian LEAs is given in 10 USC Chapter 18. Guidelines on reimbursement and restrictions, direct participation in law enforcement activities, the use of information collected during military operations, and the use of military equipment and facilities are some of the topics covered. Title 10 prohibits the military from directly participating in arrests, searches, seizures, or other similar activity unless authorized by law (such as arrests on military property). The Fiscal Year 1989 Act and subsequent National Defense Authorization Acts have authorized the DOD to provide more support to LEAs in the counterdrug effort.

NATIONAL GUARD

B-48. For a description of how the secretary of defense may provide funds to state governments (including the District of Columbia, Commonwealth of Puerto Rico, and US territories) for civil disturbance operations performed by the National Guard when not in federal service, see 32 USC. The Posse Comitatus Act does not apply to the NG when not in federal service. Each state specifies how NG may be employed.

Support to Civil Law Enforcement

B-49. It is DOD policy to cooperate with civilian law enforcement officials to the greatest practical extent. However, cooperation must consistently meet the needs of national security and military preparedness, the historic tradition of limiting direct military involvement in civilian LEAs, and the requirements of applicable law. US military forces are never placed under the command of civilian law enforcement officers or nonfederalized NG. DOD policy concerning the provision of military support to LEAs, including personnel and equipment, are contained in DOD Directive 5525.5.

B-50. The Army assists civilian law enforcement by providing personnel, equipment, training, and expert advice within the limits of applicable law. Army NG units in state status (see 32 USC) provide the primary source of military assistance. They may be able to provide assistance to civil authorities in instances when federal units are precluded due to the restrictions of the Posse Comitatus Act.

ROLES OF THE NATIONAL GUARD AND FEDERAL FORCES

B-51. The preservation of law and order in the civilian community is the responsibility of state and local governments and law enforcement authorities. When a civil disturbance in a civilian community turns to widespread rioting that includes arson, looting, and acts of violence, the civil authorities may decide that they do not have the resources to quell the riot. They may then turn to the NG and federal forces to support the civil authorities in restoring law and order. Civil disturbances in any form are prejudicial to public law and order.

National Guard Forces

B-52. The NG (as a state organization) responds to the governor according to state law for civil disturbance operations. NG regulations direct planning and training for the civil disturbance mission. During most civil disturbance situations, the NG will be the first military responder and will usually remain in state active duty status (according to 32 USC) throughout the operation. In extreme circumstances, the NG can be brought on federal service for civil disturbance operations when ordered to under the appropriate federal statute by the President. During the 1992 Los Angeles civil disturbance, the President federalized the California NG. Once the NG has been deployed to assist the civil authorities with a civil disturbance, it is too far into the deployment cycle to start determining what tasks the NG can do as a state or as a federally controlled force. It is the commander's responsibility not to accept missions that the unit is not adequately trained to do. The following are examples of appropriate missions for the NG:

·         Manning traffic control points.

·         Providing building security.

·         Providing area security and patrols.

·         Providing security at custody facilities.

·         Providing security and escort for emergency personnel and equipment.

·         Protecting sensitive sites.

·         Transporting law enforcement personnel.

·         Providing show of force.

·         Dispersing crowds.

·         Employing riot control munitions.

·         Providing very important person (VIP) protection and escort.

·         Providing quick reaction and reserve force.

B-53. Examples of inappropriate taskings:

·         Negotiating hostage situations.

·         Barricading suspects.

·         Participating in criminal investigations.

·         Acting as federal Army forces.

B-54. The commitment of federal troops to deal with domestic civil disturbances must be viewed as a drastic measure of last resort. Their role should never be greater than what is absolutely necessary under the circumstances. Commanders should take every measure to avoid the perception of an invading force. A JTF designated to respond to a civil disturbance should project the image of a restrained and well-disciplined force whose sole purpose is to help restore law and order with minimal harm to the people and property and with due respect for all law-abiding citizens.

B-55. The role of federal Army forces is to assist civil authorities in restoring law and order when the magnitude of the disturbance exceeds the capabilities of local and state LEA, including the NG. Under the provisions of the Constitution of the United States and selected federal statutes, the President may order the employment of the federal armed forces to aid local and state civil authorities to protect the Constitutional rights of citizens. Federal military forces may also protect federal facilities and installations in any state, territory, or possession.

B-56. The DA Civil Disturbance Plan 55-2 gives guidance for Army forces directed to quell civil disturbances. In addition, AR 500-50 outlines responsibilities, prescribes policies, and provides guidance for the use of Army resources in response to civil disturbances. It outlines statutory restrictions and designates staff and command responsibilities for planning and executing civil disturbance operations.

B-57. The JTF commander exercises control of all federal military forces (including NG in federal status) committed to assist civil authorities. Federal military forces remain under the military chain of command during civil disturbance operations. Federal forces will not be placed under the command of either civil officials or NG commanders in a nonfederal status. Civil authorities retain control of their state and local law enforcement agencies. The JTF commander establishes liaison with the senior representative of the attorney general (SCRAG) and other appropriate federal, state, and local civil authorities.

B-58. When a JTF is being assembled it must deploy with a provost marshal (PM) who will be the POC for situation assessment, operational information, and security matters. He also serves as a liaison with civilian and law enforcement agencies.

B-59. Federal military forces must be tailored to the specific civil disturbance situation. Sufficient combat support and combat service support units will be required to sustain the force throughout the deployment. Coordination with civil officials may allow the force to draw on resources available from state and local agencies. Close and continuous coordination between federal military forces and LEAs will provide the commander with the detailed and timely information required to employ and protect the force effectively.

B-60. In supporting DA Civil Disturbance Plan 55-2, intelligence personnel may conduct close and continuous liaison with LEAs and military police to ensure that their units receive the information needed to allow the commander to adequately protect the force. The JTF commander should staff intelligence support missions with his senior intelligence officer and legal counsel before approving the mission.

B-61. Federal military forces must be employed in tasks or missions appropriate to their organization and training; they must not be employed in ways that violate the legal restrictions in effect. Military forces may be used to disperse unlawful assemblies and to patrol disturbed areas to prevent unlawful acts. They may be used to assist in the distribution of essential goods and the maintenance of essential services. Forces may also establish traffic control points, cordon off areas, release smoke and obscurants, and serve as security or quick reaction forces. Certain types of missions (such as gathering intelligence on civilians) are always inappropriate for military forces during civil disturbance operations.

B-62. Requests for specific military missions are typically passed through a single state or federal law enforcement coordinating officer, as approved by the SCRAG. Validated requests are transmitted to the JTF commander and his HQ for staffing and coordination. Approved missions are assigned through the military chain of command to the appropriate element or unit for execution. Units and soldiers will not accept taskings or missions directly from law enforcement or civilian officials, except in a direct support relationship as approved and ordered through the military chain of command.

B-63. It is important that a military liaison be provided to each LEA HQ generating requests for support. This liaison can assist LEA officials in determining the types and quantities of military support to be requested. JTF HQ can facilitate this mission assignment process by providing LEAs with a detailed listing of the types of missions military forces may conduct.

B-64. The AO for a deployed unit should coincide with the jurisdiction or subdivision boundaries of the LEA it supports. This arrangement facilitates liaison and coordination between law enforcement and military chains of command.

Lead Agency Concept and Role of Military

B-65. The DOJ is the lead federal agency for civil disturbance operations. The Attorney General's on-scene representative is the SCRAG. The DOD has designated DA as their executive agent for military assistance for civil disturbance (MACDIS) (see FM 27-100.)

JOINT TASK FORCE

B-66. Military support to civil authorities in disasters and domestic emergencies is a DOD (not a service component) responsibility. The supported commander may decide that the severity and scope of a disaster require a joint response. In civil assistance, as in operational level warfighting, the commander-in-chief (CINC) uses the different and complementary capabilities of each service to accomplish the mission. Such use requires knowledge of both the capability and the availability of all service component assets, to include their agencies and installation.

B-67. The CINC may establish a JTF to provide comprehensive military support. Establishing a JTF may provide the best DOD response to civil emergencies. A JTF is established to execute a specific mission limited in scope and duration. The JTF objective in civil emergencies is to deploy forces to the area rapidly to assist immediately in saving lives and safeguarding property and to continue providing assistance required by the federal response plan (FRP) and the particular situation.

B-68. The JTF is configured for each specific mission. In some civil emergencies, the JTF may require a greater proportion of combat service support type units and capabilities than in typical warfighting deployments. The JTF must be able to provide emergency assistance across all lines of support.

JoinT task Force Control Element

B-69. Responsibility for controlling the civil disturbance resides with the civil authorities. The JTF is organized to support and lend assistance to them in their effort to return civil order to the community.

B-70. The control element consists of the command group and the crisis management team (CMT). The command group is made up of city, county, state, and military command personnel. They set policy and issue directives, coordinate the activities of civil and military support agencies, supervise the CMT, and coordinate with outside agencies. The CMT is made up of representatives of civilian and military staff sections. The CMT advises the command group and coordinates operations and support for the action element of the TF. The control elements are located with the emergency operations center (EOC) to facilitate information processing, resource management, and operational control. The JTF command element should colocate with the civilian command element at the EOC. This will expedite the exchange of information. If an EOC has not been set up, the commander may establish one while making provisions for including civil authorities to ensure a unity of effort.

B-71. Not all CMT members are located at the EOC. Some key people may use liaisons to represent them at the EOC. Key personnel can then research and discuss ideas freely, away from the confusion associated with crisis management. The liaison can transmit guidance and answers to the EOC. Some agencies may not be needed in the EOC at first, but they must be prepared for inclusion. The decision to include an agency in the EOC is based on the likelihood that they may have to take an action or a support role on the importance of the agency to the mission.

 

End