This Handbook focuses on the legal matters pertaining to providing assistance to domestic civil authorities, also known as DSCA. Circumstances involving the exercise of homeland defense authority and capabilities, i.e. “countering air and maritime attacks and preventing terrorist attacks on the homeland,” are beyond the scope of this handbook. Nonetheless, it should be kept in mind that actions taken within the homeland defense function may directly impact the DoD’s DSCA mission once an event has occurred. Likewise, for ongoing events or continuing attacks, DSCA actions may affect homeland defense capabilities.
The Domestic Operational Law (DOPLAW) Handbook for judge advocates is a product of the Center for Law and Military Operations (CLAMO). The content is derived from statutes, Executive Orders and Directives, national policy, DoD Directives and Instructions, joint publications, service regulations, field manuals, as well as lessons learned by judge advocates and other practitioners throughout Federal and State government. This edition includes substantial revisions.
The Domestic Operational Law (DOPLAW) Handbook for judge advocates is a product of the Center for Law and Military Operations (CLAMO). Its content is derived from statutes, Executive Orders and Directives, national policy, DoD Directives, joint publications, service regulations, field manuals, and lessons learned by judge advocates and other practitioners throughout federal and state government. This edition includes substantial revisions. It incorporates new guidance set forth in Department of Defense Directive 3025.18 (Defense Support of Civil Authorities), Department of Defense Instruction 3025.21 (Defense Support of Civilian Law Enforcement Agencies), numerous new National Planning Framework documents, and many other recently updated publications. It provides amplifying information on wildfire response, emergency mutual assistance compacts, the role of the National Guard and Army units in domestic response, and provides valuable lessons learned from major incidents such as the 2010 Deepwater Horizon oil spill and Hurricane Sandy of 2012.
The Department of Defense has issued an instruction clarifying the rules for the involvement of military forces in civilian law enforcement. The instruction establishes “DoD policy, assigns responsibilities, and provides procedures for DoD support to Federal, State, tribal, and local civilian law enforcement agencies, including responses to civil disturbances within the United States.” The new instruction titled “Defense Support of Civilian Law Enforcement Agencies” was released at the end of February, replacing several older directives on military assistance to civilian law enforcement and civil disturbances. The instruction requires that senior DoD officials develop “procedures and issue appropriate direction as necessary for defense support of civilian law enforcement agencies in coordination with the General Counsel of the Department of Defense, and in consultation with the Attorney General of the United States”, including “tasking the DoD Components to plan for and to commit DoD resources in response to requests from civil authorities for [civil disturbance operations].” Military officials are to coordinate with “civilian law enforcement agencies on policies to further DoD cooperation with civilian law enforcement agencies” and the heads of the combatant commands are instructed to issue procedures for “establishing local contact points in subordinate commands for purposes of coordination with Federal, State, tribal, and local civilian law enforcement officials.”
Providing support for domestic civilian law enforcement applies to the restricted use of military assets to support civilian law enforcement personnel within the United States and its territories. These operations are significantly different from operations outside the United States. Army forces support domestic civilian law enforcement agencies under constitutional and statutory restrictions, as prescribed by corresponding directives and regulations.
L&O operations have historically been understood to consist of LE missions supporting U.S. military commanders and their efforts to police our military personnel, civilians, and family members working and residing on U.S. military posts, camps, and stations. (Posts, camps, and stations refer to any U.S. military installation, base, or other location within the United States and enduring installations, bases, or other locations outside the United States employed to support long-term military commitments and/or serve as power projection platforms.) U.S. Army doctrine has not historically focused on L&O operations outside of LE support to posts, camps, and stations. L&O support to the operational commander and the capabilities inherent within LE organizations have been largely disregarded within Army (and joint) doctrine. Recent conflicts and the nature of the threat within the OE have increased the relevance of L&O operations and LE capabilities in support of Army operations. The applications of L&O operations and the requirements for Army LE personnel to conduct these operations have grown tremendously as nation building and protracted stability operations have demonstrated the need for civil security and civil control as critical lines of effort within the larger effort to transfer authority to a secure and stable HN government.
Field Manual (FM) 3-19.15 addresses continental United States (CONUS) and outside continental United States (OCONUS) civil disturbance operations. Today, United States (US) forces are deployed on peacekeeping, peace enforcement, and humanitarian assistance operations worldwide. During these operations, US forces are often faced with unruly and violent crowds intent on disrupting peace and the ability of US forces to maintain peace. Worldwide instability coupled with increasing US military participation in peacekeeping and related operations requires that US forces have access to the most current doctrine and tactics, techniques, and procedures (TTP) necessary to quell riots and restore public order.
The purpose of the Agreement is to set forth terms by which DHS and DoD will provide personnel, equipment, and facilities in order to increase interdepartmental collaboration in strategic planning for the Nation’s cybersecurity, mutual support for cybersecurity capabilities development, and synchronization of current operational cybersecurity mission activities. Implementing this Agreement will focus national cybersecurity efforts, increasing the overall capacity and capability of both DHS’s homeland security and DoD’s national security missions, while providing integral protection for privacy, civil rights, and civil liberties.
The most legally sensitive function in DSCA is Military Law Enforcement. Consequently, to prevent violations of the law, all military personnel should be educated on MLE. The main legal obstacle to the use of the military for law enforcement is the Posse Comitatus Act (PCA), discussed briefly in Section 2.3.1 of this chapter. (For more detail on PCA, see Annex A.) The PCA affects National Guard (either in State Active Duty (SAD) or Title 32) and federal forces (Title 10) differently. Thus, it is very important to understand the status of military personnel prior to mission assignment.
Sec. 2. Functions. The Council shall meet at the call of the Secretary of Defense or the Co-Chairs of the Council to exchange views, information, or advice with the Secretary of Defense; the Secretary of Homeland Security; the Assistant to the President for Homeland Security and Counterterrorism; the Assistant to the President for Intergovernmental Affairs and Public Engagement; the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs; the Commander,United States Northern Command; the Chief, National Guard Bureau; the Commandant of the Coast Guard; and other appropriate officials of the Department of Homeland Security and the Department of Defense, and appropriate officials of other executive departments or agencies as may be designated by the Secretary of Defense or the Secretary of Homeland Security.Such views, information, or advice shall concern:
(a) matters involving the National Guard of the various States;
(b) homeland defense;
(c) civil support;
(d) synchronization and integration of State and Federal military activities in the United States; and
(e) other matters of mutual interest pertaining toNational Guard, homeland defense, and civil support activities.
Recent involvement by the U.S. military with hurricane relief and comments by the President on expanding the DOD’s role in disaster relief indicates increased missions for an already stretched military. The next national disaster facing the U.S. could be an influenza pandemic. The bird flu virus H5N1 currently threatening Asia and Europe can potentially mutate into a deadly human influenza pandemic with global consequences. The last major flu pandemic in 1918 killed 50 million people worldwide and 600,000 in the U.S. alone. The United States is not prepared for a human pandemic and the military will have a significant role in any national response. While some departmental level planning has been accomplished recently, interdepartmental coordination and clear identification of the lead federal agency is still lacking. This project explains possible effects of a pandemic on the U.S. and current responsibilities of federal departments involved in disaster relief. Analysis is presented on the evolving role the DOD plays should this event become reality and finally recommends preparations that should be accomplished to prepare the nation for this very real threat. An ad-hoc approach to a pandemic will have severe negative and far reaching affects on our nation and must be avoided.