Military Operations at Home:Use of Force Domestically

History & Authorities

G. Alexander Crowther, Ph.D.

Dynamic Tension

Protect the Population Protect Civil Liberties

Antecedents

• Articles of Confederation– “League of States”– Lacked enforcement powers– Federal failure during Shay’s Rebellion

• Constitution– Due Process

• Via the Magna Carta 1215 to the Virginia Charter 1606

– Protecting rights - Life Liberty Property• Via the (English) Glorious Revolution 1688

– Bill of Rights• Via English Bill of Rights 1689

The Basis & the Law

• Three Charters of Freedom– Declaration of Independence– Constitution– Bill of Rights

• Big Three Legislation– Insurrection Act

• Authorizes & limits use of federal military power in time of non-disaster emergency

– Posse Comitatus• Further limits use federal military power “in support of

– Stafford Act

Legal background• Insurrection Act 1807

– Reformed NDAA 2007; Restored NDAA 2008• Occupation of Mexico - General Order #20• Civil War - Lieber Code & General Order #100• Enforcement Act 1870 (3 editions)

– 1961 updated: "1) 'to override certain kinds of state laws'; 2) to provide 'a remedy where state law was inadequate'; and 3) to provide 'a federal remedy where the state remedy, though adequate in theory, was not available in practice.‘”

• Posse Comitatus June 18, 1878– “power of a county”– Limited US federal operations on US soil in support of law enforcement

• Stafford Act of 1988– Updated Disaster Relief Act of 1974– Stafford Updated 2000 and 2006

Title 10 §333• The President, by using the militia or the armed forces, or both, or by

any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

• In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

DSCA

• Stafford Act (as amended April 2013)– Post-Katrina Emergency Management Reform Act

of 2006 • PDD-8 2011• DODD 3025.18 – DSCA (as amended

December 29 2012)• National Planning Frameworks 2013 (x4)• National Response Framework 2013

Findings

• Dynamic Tension between protecting the population and civil liberties

• US Federal forces operating in US are not performing military government functions

• Two main types of operations – disaster and insurrection

• Operations in US are similar to operations overseas except they have fewer requirements (e.g. no need to provide legitimacy)

Backup Slides

NRF Core Capabilities (x14) I

• Planning• Public Information and Warning• Operational Coordination• Critical Transportation• Environmental Response/Health and Safety• Fatality Management Services• Infrastructure Systems

NRF Core Capabilities II

• Mass Care Services• Mass Search and Rescue Operations• On-scene Security and Protection• Operational Communications• Public and Private Services and Resources• Public Health and Medical Services• Situational Assessment

Emergency Support Functions (ESFs) I

• ESF #1 - Transportation• ESF #2 – Communications• ESF #3 – Public Works and Engineering• ESF #4 – Firefighting• ESF #5 – Emergency Management• ESF #6 – Mass Care, Emergency Assistance, Housing,

and Human Services• ESF #7 – Logistics Management and Resource Support• ESF #8 – Public Health and Medical Services (PHMS)

ESFs II

• ESF #9 – Search and Rescue• ESF #10 – Oil and Hazardous Materials

Response• ESF #11 – Agriculture and Natural Resources• ESF #12 – Energy• ESF #13 – Public Safety and Security• ESF #14 – Long-Term Community Recovery• ESF #15 – External Affairs

Title 10 331

• Whenever there is an insurrections in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

Title 10 332

• Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Title 10 334

• Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.

Insurrection• NDAA 2007 widened Presidential authorities under the Insurrection Act• NDAA 2008 repealed the changesSEC. 1068. REPEAL OF PROVISIONS IN SECTION 1076 OF PUBLIC LAW109–364 RELATING TO USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.(a) INTERFERENCE WITH STATE AND FEDERAL LAWS.—(1) IN GENERAL.—Section 333 of title 10, United States Code, is amended to read as follows:‘‘§ 333. Interference with State and Federal law‘‘The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— ‘‘(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or‘‘(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.’’.(2) PROCLAMATION TO DISPERSE.—Section 334 of such title is amended by striking ‘‘or those obstructing the enforcement of the laws’’ after ‘‘insurgents’’. (3) HEADING AMENDMENT.—The heading of chapter 15 of such title is amended to read as follows: ‘‘CHAPTER 15—INSURRECTION’’.

Exemptions to Posse Comitatus I• 5 U.S.C. App. (Inspector General Act of 1978) § 8(g)(Department of Defense

Inspector General is not limited by the Posse Comitatus Act (18 U.S.C. § 1385) in carrying out audits and investigations under the act);

• 10 U.S.C. §§ 331-335(President may use the militia and Armed Forces to suppress insurrection and enforce federal authority in the face of rebellion or other forms of domestic violence);

• 10 U.S.C. § 12406 (President may call National Guard units or members into federal service to repel an invasion, suppress a rebellion, or execute federal laws when he is unable to execute them using the regular forces);

• 16 U.S.C. § 23(Secretary of the Army may detail troops to protect Yellowstone National Park upon the request of the Secretary of the Interior);

• 16 U.S.C. § 78(Secretary of the Army may detail troops to protect Sequoia and Yosemite National Parks upon the request of the Secretary of the Interior);

• 16 U.S.C. § 593(President may use the land and naval forces of the United States to prevent destruction of federal timber in Florida);

Exemptions to Posse Comitatus II• 16 U.S.C. § 1861(a) (Secretary of Homeland Security (or the Secretary of the Navy in time of war) may enter

into agreements for the use of personnel and resources of other federal or state agencies—including those of the Department of Defense—for the enforcement of the Magnuson Fishery Conservation and Management Act);

• 18 U.S.C. §§ 112, 1116 (Attorney General may request the assistance of federal or state agencies—including the Army, Navy and Air Force—to protect foreign dignitaries from assault, manslaughter and murder);

• 18 U.S.C. § 351(FBI may request the assistance of any federal or state agency—including the Army, Navy and Air Force—in its investigations of the assassination, kidnapping or assault of a Member of Congress);

• 18 U.S.C. § 1751(FBI may request the assistance of any federal or state agency—including the Army, Navy and Air Force—in its investigations of the assassination, kidnapping or assault of the President);

• 18 U.S.C. § 3056 note(Director of the Secret Service may request assistance from the Department of Defense and other federal agencies to protect the President);

• 22 U.S.C. § 408(President may use the land and naval forces of the United States to enforce Title IV of the Espionage Act of 1917 (arms embargoes) (22 U.S.C. §§ 401-408));

• 22 U.S.C. § 461(President may use the land and naval forces and militia of the United States to enforce parts of the Neutrality Act, 22 U.S.C. §§ 461-465 and 18 U.S.C. §§ 958-962);

• 22 U.S.C. § 462(President may use the land and naval forces and militia of the United States to detain or compel departure of foreign ships under the provisions of the Neutrality Act);

• 25 U.S.C. § 180(President may use military force to remove trespassers from Indian treaty lands);

Exemptions to Posse Comitatus III• 42 U.S.C. § 97(“officers of the United States shall faithfully aid in the execution of [state] quarantines and health

laws, according to their respective powers and within their respective precincts, and as they shall be directed, from time to time, by the Secretary of Health and Human Services”);

• 42 U.S.C. § 1989(magistrates issuing arrest warrants for civil rights violations may authorize those serving the warrants to call for assistance from bystanders, the posse comitatus, or the land or naval forces or militia of the United States);

• 42 U.S.C. 5170b(Governor of state in which a major disaster has occurred may request the President to direct the Secretary of Defense to permit the use of DOD personnel for emergency work necessary for the preservation of life and property, but DOD does not consider this provision to authorize law enforcement measures);

• 43 U.S.C. § 1065(President may use military force to remove unlawful enclosures from the public lands); • 48 U.S.C. § 1418(President may use the land and naval forces of the United States to protect the rights of owners in

guano islands); • 48 U.S.C. § 1422(Governor of Guam may request assistance of senior military or naval commander of the Armed

Forces of the United States in cases of disaster, invasion, insurrection, rebellion or imminent danger thereof, or lawless violence);

• 48 U.S.C. § 1591(Governor of the Virgin Islands may request assistance of senior military or naval commander of the Armed Forces of the United States in the Virgin Islands or Puerto Rico in cases of disaster, invasion, insurrection, rebellion or imminent danger thereof, or of lawless violence);

• 49 U.S.C. § 324(Secretary of Transportation may provide for participation of military personnel in carrying out duties);

• 50 U.S.C. § 220(President may use the Army, Navy or militia to prevent the unlawful removal of vessels or cargoes from customs areas during times of insurrection).

Military Assistance Available to Civilian Law Enforcement

• 10 U.S.C. § 371(Secretary of Defense may provide federal, state, or local civilian law enforcement officials with information collected during military training operations or training);

• 10 U.S.C. § 372(Secretary of Defense may make equipment and facilities available to federal, state, and local law enforcement operations);

• 10 U.S.C. § 373(Secretary of Defense may train federal, state, and local law enforcement officials to operate and maintain equipment);

• 10 U.S.C. § 374(Secretary of Defense may provide personnel to maintain and operate equipment and facilities in support of certain federal, state and local law enforcement operations;)

• 10 U.S.C. § 374 note (§1004 of the National Defense Authorization Act for 1991, as amended)(during fiscal years 1991 through 2011, the Secretary of Defense was authorized to provide counter-drug activity assistance upon request of federal or state law enforcement agencies);

• 10 U.S.C. § 382(the Secretary of Defense may provide assistance to the Department of Justice in emergency situations involving chemical or biological weapons of mass destruction);

• 10 U.S.C. § 382 note (§1023 of the National Defense Authorization Act for Fiscal Year 2000)(during fiscal years 2000 through 2004, the Secretary of Defense was authorized to provide assistance to federal and state law enforcement agencies to respond to terrorism or threats of terrorism);

• 18 U.S.C. § 831(Attorney General may request assistance from the Secretary of Defense for enforcement of the proscriptions against criminal transactions in nuclear materials if an emergency is deemed to exist);

• 18 U.S.C. §§ 175a, 229E, and 2332e cross reference to the Attorney General’s authority under 10 U.S.C. § 382 to request assistance from the Secretary in an emergency involving biological weapons, chemical weapons, and weapons of mass destruction respectively.

• 42 U.S.C. § 98(Secretary of the Navy at the request of the Public Health Service may make vessels or hulks available to quarantine authority at various U.S. ports).