The US Constitution and United States Code Effect on Employment of US Armed Forces

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The US Constitution and United States Code Employment of US Armed Forces in Support of Homeland Defense/Security

The US Constitution and United States Code Effect on Employment of US Armed Forces

In Support of Homeland Defense/Homeland Security(HD/HS)

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AgendaAgenda

- Definition of Homeland Defense/Homeland Security

- Brief Overview of the U.S. Constitution/Applicability to the US Armed

Forces

- U.S. Laws, Policies impacting US Armed Forces

- Discussion of Key Laws supporting HD/HS

- Legal basis for the existence of the US Armed Forces

- Clarification of Role of National Guard in HD/HS

- Employment of National Guard [State Active Duty (SAD)/United States Codes

(USC) Title 10/32]

- Dual Status (USC Title 10/32): Contribution to HD/HS

- Summary

- Definition of Homeland Defense/Homeland Security

- Brief Overview of the U.S. Constitution/Applicability to the US Armed

Forces

- U.S. Laws, Policies impacting US Armed Forces

- Discussion of Key Laws supporting HD/HS

- Legal basis for the existence of the US Armed Forces

- Clarification of Role of National Guard in HD/HS

- Employment of National Guard [State Active Duty (SAD)/United States Codes

(USC) Title 10/32]

- Dual Status (USC Title 10/32): Contribution to HD/HS

- Summary

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DEFINITIONS(Department of Defense Joint Publication 3-27)

Homeland Defense (HD) is the protection of US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President. DOD is responsible for the HD mission, and therefore leads the HD response, with other departments and agencies in support of DOD efforts.

Homeland Defense (HD) is the protection of US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President. DOD is responsible for the HD mission, and therefore leads the HD response, with other departments and agencies in support of DOD efforts.

HS, as defined in the National Strategy for Homeland Security (NSHS), is a concerted national effort to prevent terrorist acts within the United States, reduce America’s vulnerabilities to terrorism, and minimize the damage and recover from attacks that do occur. HS missions are those typically conducted by federal, state, tribal, and/or local law enforcement, government agencies, and the private sector and include law enforcement missions related to terrorism and other criminal activities, as well.

HS, as defined in the National Strategy for Homeland Security (NSHS), is a concerted national effort to prevent terrorist acts within the United States, reduce America’s vulnerabilities to terrorism, and minimize the damage and recover from attacks that do occur. HS missions are those typically conducted by federal, state, tribal, and/or local law enforcement, government agencies, and the private sector and include law enforcement missions related to terrorism and other criminal activities, as well.

Homeland Defense (HD) Homeland Security (HS)

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The Constitution of the United States of America

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for theUnited States of America.

Preamble………..

Generally Authority Governing Existence and Employment is Derived from….

- Article 1:

- Empowers Congress to “raise Armies”

- Maintain Navy

- Organize Militia

-Article 2:

- President Commander in Chief

- Laws faithfully executed

-Amendment X:

- Empowers the States (Federalism)

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-United States Law (U.S. Code) (not inclusive)- USC Title 5 (Military Departments) - USC Title 6 (HS/Coast Guard)- USC Title 10 (Active Forces/NGB/Army Reserve) - USC Title 14 (Coast Guard) - USC Title 18 (CBRNE, Posse Comitatus) - USC Title 31 (Economy Act)- USC Title 32 (National Guard) - USC Title 33 (Coast Guard-Navy) - USC Title 37 (Pay & Allow) - USC Title 42 (Stafford Act)

- USC Title 46 (Coast Guard-Shipping) - USC Title 49 (Transportation/Coast Guard)- USC Title 50 (War & Nat’l Defense)

- Recent Public Law • PL 99-433 (Goldwater Nichols Act 1986) • PL 100-707 (Stafford Act-1988) (disaster relief)• PL 108-136 [National Def Auth Act 2004 (Dual Status)]• PL 110-181 (National Def Auth Act 2008)

- Presidential Directives• Homeland Security Directive (HSPD) 5, Management of Domestic Incidents

- National Response Framework

- Secretary of Defense Policy • DOD Directive 5525.5 (DOD Cooperation with Civilian Law Enforcement Officials)• DOD Strategy on Homeland Defense and Civil Support (2005)

- State • EMACs (Emergency Management Assistance Compacts)• Memorandum of Understanding (MOUs)

Laws/Policies Governing the Utilization of the Armed Forces Include……

- US Law- Presidential Directives- Strategic Plans- Policies- State Law- State Agreements

- US Law- Presidential Directives- Strategic Plans- Policies- State Law- State Agreements

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* Restored pre-2006 verbiage….change focused to issues impacting State and Federal Law……leaving “major public emergencies” within the domain of the State

Title 10 USC Chapter 15

Enforcement of the Laws to Restore Public Order (331-334) “Insurrection Act”

- Section 331: Federal Aid to State Governors- Section 332: Use of the Militia and Armed Forces to Enforce Federal Authority- Section 333: Interference in State and Federal Law- Section 334: Proclamation to Disperse

Key Laws/DOD Policies supporting HD/HS

US Attorney General Request to Secretary of Defense

USC TITLE 18 - PART I - CHAPTER 67 - § 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorizedby 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 under this title or imprisoned not more than two years, or both.

USC TITLE 18 - PART I - CHAPTER 10 - § 175a Requests for military assistance to enforce prohibition in certain emergencies

Stafford ActTITLE 42 CHAPTER 68 SUBCHAPTER IV

§ 5170b Essential assistance

(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

National Defense Authorization Act 2008 *

- Status Quo for Insurrection Act (2006)- Title 10 Support for CBRNE- Posse Comitatus Relevant to the States/Territories- Expanding Role of National Guard in HD/HS

07 08

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TITLE XVIII—NATIONAL GUARD BUREAU MATTERS AND RELATED MATTERSSec. 1801. Short title.

Subtitle A—National Guard BureauSec. 1811. Appointment, grade, duties, and retirement of the

Chief of the National Guard Bureau.Sec. 1812. Establishment of National Guard Bureau as

joint activity of the Department of Defense.

Sec. 1813. Enhancement of functions of the National Guard Bureau.

Sec. 1814. Requirement for Secretary of Defense to prepare plan for response to natural disasters and terrorist

events.Sec. 1815. Determination of Department of Defense civil

support requirements.

Subtitle B—Additional Reserve Component EnhancementSec. 1821. United States Northern Command.Sec. 1822. Council of Governors.Sec. 1823. Plan for Reserve Forces Policy Board.Sec. 1824. High-level positions authorized or required to be

held by reserve component general or flag officers.

Sec. 1825. Retirement age and years of service limitations on certain

reserve general and flag officers.Sec. 1826. Additional reporting requirements relating to

National Guard equipment.

National Defense Authorization Act 2008PUBLIC LAW 110–181—JAN. 28, 2008 122 STAT. 19

National Defense Authorization Act 2008PUBLIC LAW 110–181—JAN. 28, 2008 122 STAT. 19

Clarification of Role of National Guard in HD/HS

How does the National Guard Statutorily Support the Force? – Provides Advice to Secretary of Defense, and at Director level to the Secretaries of the Army and Air Force

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- USC TITLE 5 - PART I - CHAPTER 1 - § 102. (Military departments)

(1) The Department of the Army (2) The Department of the Navy (3) The Department of the Air Force (Marine Corps)

- USC TITLE 10*

1. Subtitle A. General Military Law 2. Subtitle B. Army3. Subtitle C. Navy and Marine Corps 4. Subtitle D. Air Force5 Subtitle E. Reserve Components

- USC TITLE 5 - PART I - CHAPTER 1 - § 102. (Military departments)

(1) The Department of the Army (2) The Department of the Navy (3) The Department of the Air Force (Marine Corps)

- USC TITLE 10*

1. Subtitle A. General Military Law 2. Subtitle B. Army3. Subtitle C. Navy and Marine Corps 4. Subtitle D. Air Force5 Subtitle E. Reserve Components

Authority for U.S. Armed Forces

- There are Seven Reserve Components (As authorized under Title 10 – Subtitle E – Part 1 – Chapter 1003 § 10101)

(1) Army National Guard of the United States (Dual Status)(2) Air National Guard (Dual Status)(3) Army Reserve (Federal)(4) Marine Reserve (Federal)(5) Navy Reserve (Federal)(6) Air Force Reserve (Federal)(7) Coast Guard Reserve (Federal)


(1) Army National Guard of the United States (Dual Status)(2) Air National Guard (Dual Status)(3) Army Reserve (Federal)(4) Marine Reserve (Federal)(5) Navy Reserve (Federal)(6) Air Force Reserve (Federal)(7) Coast Guard Reserve (Federal)

* Chief, National Guard Bureau, National Guard of the United States authorized under USC Title 10

U.S. Code Title 32: National Guard Chapter 1: Organization Chapter 3: Personnel

Chapter 5: Training Chapter 7: Service, Supply, Procurement Chapter 9: Homeland Defense Activities

U.S. Code Title 32: National Guard Chapter 1: Organization Chapter 3: Personnel

Chapter 5: Training Chapter 7: Service, Supply, Procurement Chapter 9: Homeland Defense Activities

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Why is the National Guard a Congressionally preferred force for HD/HS (Within US State/Territories)?

Why is the National Guard a Congressionally preferred force for HD/HS (Within US State/Territories)?

10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people”)

- National Guard (Militia) Constitutionally Empowered/Tailored Use does not violate the Posse Comitatus Organized in Communities across the United States and its Territories Immediately available to the Governors under State Active Duty or USC Title 32 “Forward Deployed” piece of a Service Component – No time limitations Trained, Organized and Equipped (under USC Title 10 mission) to respond to most “non-kinetic events” within the civilian communities Interstate Compacts (EMACs) with Enhanced Chemical, Biological, Radiological Nuclear Explosive (CBRNE) capabilities (non-DOD funded).

- Weapons of Mass Destruction-Civil Support Teams (WMD-CST)- CBRNE Enhanced Response Force Package (CERFP)

- Counter-Drug (CD) Program Multiple funding sources

Generally -- Federal Active Component and Federal Reserve Component forces precluded from use within U.S. territories (exceptions apply)

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COMMAND AND CONTROL STRUCTURE (TITLE 10 / TITLE 32)

ANSWER: National Guard is Optimized for the Role….” with the traditional military policy of the United States, it is essential that the strength and organization of the Army National Guard and the Air National Guard as an integral part of the first line defenses of the United States be maintained and assured at all times”….extract from U.S. Code Title 32.

POTUS: President of the United States CNGB: Chief, National Guard Bureau TAG: Adjutant GeneralMSC: Major Subordinate Command (T32) JFHQ-S: Joint Forces Headquarters-State JTF: Joint Task ForceSECDEF: Secretary of Defense COCOM: Combatant Commander CJCS: Chairman, Joint Chiefs of Staff

FEDERAL DOMAIN

POTUS

CNGB

SECDEF

Governor(State)

TAG

CJCS JFHQ-S MSC

StateAgency

Services COCOM

FederalAgencies

JTF

STATE DOMAIN

STATUTORY

Direct C2 Coordination MOA

Why is the National Guard a preferred force in HD/HS (Within US State/Territories)?Why is the National Guard a preferred force in HD/HS (Within US State/Territories)?

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The US Constitution and United States Code Employment of US Armed Forces in Support of Homeland Security/Defense

SVCSSVCS

SVCS

POTUS

CNGB

SECDEF

GOV/STATE

TAG

CJCS JFHQ-S MSC

ST-AGCY

SVCS

COMMAND AND CONTROL STRUCTURE(TITLE 10 / TITLE 32)

COCOM

Direct C2 Coordination

ANSWER: National Guard is Optimized for the Role….” with the traditional military policy of the United States, it is essential that the strength and organization of the Army National Guard and the Air National Guard as an integral part of the first line defenses of the United States be maintained and assured at all times”….extract from U.S. Code Title 32.

FEDAGENCIES

TAG: Adjutant GeneralMSC: Army/Air Forces (T32)

JTF

COCOM

JTF Cdr

TAG

T10 T32

SecDEF

POTUS

DUAL STATUS Title 10/32 JTF Command(National Special Security Event)

Active ComponentFederal ReserveForces

Army National Guard

- Limited Mission (Time/Space)- MOU between Federal Chain of Command and Governor- JTF Commander is Dual Commissioned National Guard Soldier- Task Force stands down after mission completion

- Limited Mission (Time/Space)- MOU between Federal Chain of Command and Governor- JTF Commander is Dual Commissioned National Guard Soldier- Task Force stands down after mission completion

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• The ability to successfully support and respond to a U.S. based Homeland Defense and/or Homeland Security requirement, whether it be a single incident or on going action is largely a function of:

- Legal Authorities - Nature of the Incident - Response time in support of 1st Responders - Capabilities of supporting forces - Location of supporting forces

• The law may prefer the use of the “Militia” or National Guard for use in activitiessupporting Homeland Defense/Homeland Security….

….however…In the final analysis the United States Constitution empowers the Executive Branch with the responsibility for matters affecting the National Security the United States. Thus the President, acting as Commander in Chief of the Armed forces ultimately remains solely responsible for “the common defense” of the Nation.

SUMMARY

CULTIVATES A LEGALPREFERENCE FOR USE OF THE

NATIONAL GUARD

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QUESTIONS?

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BACK-UP SLIDES

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Constitution of the United States

- Art. I, § 8- Clause 1: …to provide for the common Defense and general Welfare of the United States- Clause 12: To raise and support Armies- Clause 13: To provide and maintain a Navy- Clause 14: To make Rules for the Government and Regulation of the land and naval Forces- Clause 15: To provide for calling forth the militia to execute the laws of the union, suppress insurrections and

repel invasions- Clause 16: To provide for organizing, arming, and disciplining, the militia, and for governing such part of them

as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing

Powers- Art. 2, § 2

- The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

§ 3…. he shall take care that the laws be faithfully executed

- Amendment X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Generally Authority Governing Existence and Employment is Derived from….

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With respect to “other organizations involved with domestic incident response,” the Department of Defense (DOD) currently coordinates with more than 30 agencies of the federal government. Once state, commonwealth, territorial, tribal, municipal and other local government agencies—as well as private non-profit and for-profit organizations—are included, the potential number and diversity of actors becomes incalculably large.

This does not in any way justify a failure to attempt and wherever possible to accomplish prior coordination and preparations, but it does mean that DOD officials involved with domestic incident response should not presume that all the players at the time of the incident will have been part of any pre-incident plan or process.*

* Professor James O. Kievit….CSL Issue Paper July 2008 entitled “Reexamining the Role of the Guard and Reserves in Support to Civil Authorities -- Maximizing Access to Service Reserve Elements”

Other Agencies / US Code

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TITLE 42 CHAPTER 68 SUBCHAPTER IV § 5170b Essential assistance

(c) Utilization of DOD resources (1) General rule During the immediate aftermath of an incident which may ultimately qualify for

assistance under this subchapter or subchapter IV-A of this chapter, the Governor of the State in which such incident occurred may request the President to direct the Secretary of Defense to utilize the resources of the Department of Defense for the purpose of performing on public and private lands any emergency work which is made necessary by such incident and which is essential for the preservation of life and property. If the President determines that such work is essential for the preservation of life and property, the President shall grant such request to the extent the President determines practicable. Such emergency work may only be carried out for a period not to exceed 10 days.

(2) Rules applicable to debris removal Any removal of debris and wreckage carried out under this subsection shall be subject to section 5173 (b) of this title, relating to unconditional authorization and indemnification for debris removal.

(3) Expenditures out of disaster relief funds The cost of any assistance provided pursuant to this subsection shall be reimbursed out of funds made available to carry out this chapter.

(4) Federal share The Federal share of assistance under this subsection shall be not less than 75 percent.

(5) Guidelines Not later than 180 days after November 23, 1988, the President shall issue guidelines for carrying out this subsection. Such guidelines shall consider any likely effect assistance under this subsection will have on the availability of other forms of assistance under this chapter.

(6) Definitions For purposes of this section— (A) Department of Defense The term “Department of Defense” has the meaning the term

“department” has under section 101 of title 10. (B) Emergency work The term “emergency work” includes clearance and removal of debris and

wreckage and temporary restoration of essential public facilities and services.

Stafford Disaster Relief and Emergency Assistance Act (42 USC)Stafford Disaster Relief and Emergency Assistance Act (42 USC)


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TITLE 10, Subtitle A, PART I, CHAPTER 15, § 333§ 333. Major public emergencies; interference with State and Federal law

National Defense Authorization Act 2007

REPEALED by Congress

(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

National Defense Authorization Act 2008 *

* Restored pre-2006 verbiage….change focused to issues impacting State and Federal Law……leaving “major public emergencies” within the domain of the State


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§ 333. Major public emergencies; interference with State and Federal law (a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.—

(1) The President may employ the armed forces, including the National Guard in Federal service, to—

(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that—

(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

(ii) such violence results in a condition described in paragraph (2); or (B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or

conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).

(2) A condition described in this paragraph is a condition that— (A) so hinders the execution of the laws of a State or possession, as applicable, and of

the United States within that State or possession, 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 constitutedauthorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

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

(b) NOTICE TO CONGRESS.—The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 daysthereafter during the duration of the exercise of that authority.’’(2) PROCLAMATION TO DISPERSE.—Section 334 of such title is amended by inserting ‘‘or those obstructing the enforcement of the laws’’ after ‘‘insurgents’’.

Extract from the NDAA 2007…..

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(1) Army National Guard of the United States (Dual Status)(2) Air National Guard (Dual Status)(3) Army Reserve (Federal)(4) Marine Reserve (Federal)(5) Navy Reserve (Federal)(6) Air Force Reserve (Federal)(7) Coast Guard Reserve (Federal) (TITLE 14 - PART I - CHAPTER 7 - § 141 (Cooperation with other

agencies, States, territories, and political subdivisions)

- Three Subcomponents

(1) Ready Reserve(2) Standby Reserve

(3) Retired Reserve

- The authorized strength of the Ready Reserve is 2,900,000. (Title 10 – Subtitle E – Part 1- Chapter 1005 - § 10142)

What are the U.S. Armed Reserve Forces

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U.S. Code Title 10: National Guard of the Untied StatesU.S. Code Title 32: National Guard

1. Chapter 1: Organization2. Chapter 3: Personnel3. Chapter 5: Training4. Chapter 7: Service, Supply, Procurement5. Chapter 9: Homeland Defense Activities

• The Secretary of Defense may provide funds to a Governor to employ National Guard units or membersto conduct homeland defense activities that the Secretary, determines to be necessary and appropriate for participation by the National Guard units or members, as the case may be.

• Full Time Duty – limited to 180 days – extended an additional 90 days to meet extraordinary circumstances

• Required Training – Soldiers must continue training required under section 502(a) of this title

• Homeland defense activities does not degrade the training and readiness of such units and personnel

Chapter 9

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State

Active Duty

Title 32

Title 10

IAW State LawBy the Governor for a State purpose authorized by State law.

State ExpenseGovernor; TAG C2

Article I, Section 8 of the Constitution (Militia Clause) Title 32 USC; no Posse Comitatus restrictions

Can be federalized in the event of a NSSE

Federal ExpenseState control in the service of the Federal Govt

US Constitution:

Article 1

Article 2

Posse Comitatus; limited domestic law enforcement ops;

Federal ExpensePresident and Federal Govt for national defense purposes

C2 Funding Restrictions Authorization

TITLED STATUS – FUNDING(Notional Support for HD/HS)

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UNCLASSIFIED / FOUO

UNCLASSIFIED / FOUO

When to Use SAD or Request Title 32

X

X

X

X

SAD w/ Immediate Response

XDue to terrain and conditions, Wild Fires are so overwhelming that State cannot get under control –requires massive manpower & equipment response from other States

XDrought occurs in limited areas of State which requires hay to be air-lifted in to save livestock

XDevastating Hurricane occurs impacting 1,000+ lives and wiping out critical infrastructure in 3 States – exceeds single State’s ability to respond

XTornado affecting 3 counties – NG members of that state can manage response and recovery

Title 32SADSituation

TITLED STATUS (Notional Support for HD/HS)

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Notional Support(Examples)

Resourced USC Title 10 Resourced USC Title 32

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UNCLASSIFIED / FOUO

UNCLASSIFIED / FOUO

FEMA and Title 10

• Example of FEMA requesting assistance from NORTHCOM

FEMA

NORTHCOM

TRANSCOM

AMC

167th ANG (Airlift106th ANG (Rescue)

• NORTHCOM will place all responding units in Title 10 duty status when Title 32 is denied

– Members will be placed on Title 10 MPA or provide MIPR of funding

– Units will have O&M reimbursed through properly designated ARNG/ANG use code

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UNCLASSIFIED / FOUO

UNCLASSIFIED / FOUO

Firefighting (Dept of Interior)

• Ex of Dept of Interior requesting Firefighting assistance from NORTHCOM

Dept of Interior

NORTHCOM

TRANSCOM

AMC

167th ANG (Airlift106th ANG (Rescue)

• NORTHCOM coordinates requirement via National Support Agreement

– NGB accepts requirement and responds in Title 32

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An officer of the Army National Guard of the United States or the Air National Guard of the United States is not relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the District of Columbia, under paragraph

(1) while serving on active duty in command of a National Guardunit if—

‘‘(A) the President authorizes such service in both dutystatuses; and

‘‘(B) the Governor of his State or Territory or Puerto Rico,or the commanding general of the District of Columbia National Guard, as the case may be, consents to such service in both duty statuses.’’

DUAL STATUS US Code Title 10/32

Other Statutory Options for Utilization of the National Guard in Support of HD/HS

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Amended TITLE 10 > Subtitle E > PART I > CHAPTER 1011 : National Guard Bureau

• Designated Joint Activity of the Department of Defense• Chief NGB authorized 4 Star Grade/Rank • ‘‘(c) ADVISOR ON NATIONAL GUARD MATTERS.—The Chief of the National Guard Bureau is—

‘‘(1) a principal advisor to the Secretary of Defense, through the Chairman of the Joint Chiefs of Staff, on matters involving non-federalized National Guard forces and on other matters as determined by the Secretary of Defense; and

‘‘(2) the principal adviser to the Secretary of the Army and the Chief of Staff of the Army, and to the Secretary of the Air Force and the Chief of Staff of the Air Force, on matters relating to the National Guard, the Army National Guard of the United States, and the Air National Guard of the United States.’’.

Amended TITLE 10 > Subtitle E > PART I > CHAPTER 1011 : National Guard Bureau

• Designated Joint Activity of the Department of Defense• Chief NGB authorized 4 Star Grade/Rank • ‘‘(c) ADVISOR ON NATIONAL GUARD MATTERS.—The Chief of the National Guard Bureau is—

‘‘(1) a principal advisor to the Secretary of Defense, through the Chairman of the Joint Chiefs of Staff, on matters involving non-federalized National Guard forces and on other matters as determined by the Secretary of Defense; and

‘‘(2) the principal adviser to the Secretary of the Army and the Chief of Staff of the Army, and to the Secretary of the Air Force and the Chief of Staff of the Air Force, on matters relating to the National Guard, the Army National Guard of the United States, and the Air National Guard of the United States.’’.

Public Law 110-181: National Defense Authorization Act 2008

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Authority/Basis Type Purpose of Duty Example(s) Funding

10 USC 12301(b) Involuntary Annual TrainingAdditional TrainingOperational Support Military Personnel or Reserve PersonnelAGR Duty Reserve Personnel

10 USC 12503 Voluntary Funeral Honors Military Personnel or Reserve Personnel10 USC 12319 Involuntary Muster Duty Reserve Personnel

32 USC 502(a) Involuntary Annual Training/Drill RequirementAdditional TrainingOperational SupportAdditional TrainingOperational SupportCounter-Drug DutyAGR Duty

32 USC 115 Voluntary Funeral Honors

10 USC 12304 PRC10 USC 12302 Partial Mobilization10 USC 12301(a) Full Mobilization14 USC 712 Emergencies

10 USC 12301(h) Voluntary Medical Care Military Personnel or Reserve Personnel10 USC 12322 Medical Evaluation and Treatment10 USC 12301(g) Captive Status Military Personnel10 USC 802(d) Disciplinary10 USC 10148 Unsatisfactory Participant (up to 45 days)

10 USC 12303 Unsatisfactory Participant (up to 24months)

10 USC 1240610 USC 33110 USC 332

Legend

Frequently Used

Preiodically Used

Infrequently Used (if ever)

Duty Status

Active Duty

Reserve Personnel

10 USC 12301(d) Voluntary

Inactive Duty

National Guard Duty (Full-time National Guard Duty and Inactive Duty: National Guard)

32 USC 502(f)(1) Involuntary

NG Personnel32 USC 502(f)(2) Voluntary

Involuntary Military Personnel

Mobilization

Special Circumstances

Military Personnel

Reserve PersonnelInvoluntary

Insurrection Dual Status

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National Governors Association – Letter to the Congressional Commission on the NG and Reserves. GovernorsOpposed language which they viewed further empowered the Executive Branch at the expense of States Rights

http://www.nga.org

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Secretary of Defense Gates Total Force Policy-Reserve ForcesSecretary of Defense Gates Total Force Policy-Reserve Forces

- Max 1 year MOB for Reservist

- Unit Basis for MOB

- 1:5 MOB to Dwell

- Incentive for Extended MOBs

- Review Hardship Waivers

- Stop Loss Minimized

- Max 1 year MOB for Reservist

- Unit Basis for MOB

- 1:5 MOB to Dwell

- Incentive for Extended MOBs

- Review Hardship Waivers

- Stop Loss Minimized

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Whenever Congress determines that more units and organizations are needed for the national security than are in the regular components of the ground and air forces, the

Army National Guard of the United States and the Air National Guard of the United States, or such parts of them as are needed, together with units of other reserve components

necessary for a balanced force, shall be ordered to active duty and retained as long as so needed.

Whenever Congress determines that more units and organizations are needed for the national security than are in the regular components of the ground and air forces, the

Army National Guard of the United States and the Air National Guard of the United States, or such parts of them as are needed, together with units of other reserve components

necessary for a balanced force, shall be ordered to active duty and retained as long as so needed.

U.S. Code Title 10 – Subtitle E – Part 1 – Chapter 1003 - § 10103*

Basic policy for order into Federal Service of the Reserve Component

* Current as of 3 January 2007

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10 USC §§ 331-335Sec. 331. Federal aid for State governmentsWhenever 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.Sec. 332. Use of militia and armed forces to enforce Federal authorityWhenever 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.Sec. 333. Interference with State and Federal lawThe 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.Sec. 334. Proclamation to disperseWhenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time

Insurrection ActInsurrection Act

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SEC. 1814. REQUIREMENT FOR SECRETARY OF DEFENSE TO PREPAREPLAN FOR RESPONSE TO NATURAL DISASTERS AND TERRORISTEVENTS.(a) REQUIREMENT FOR PLAN.—

(1) IN GENERAL.—Not later than June 1, 2008, the Secretary of Defense, in consultation with the Secretary of Homeland Security, the Chairman of the Joint Chiefs of Staff, the commander of the United States

Northern Command, and the Chief of the National Guard Bureau, shall prepare and submit to Congress a plan for coordinating the use of the National Guard and members of the Armed Forces on active duty when responding to natural disasters, acts of terrorism, and other man-made disasters as identified in the national planning scenarios described in subsection (e).

(2) UPDATE.—Not later than June 1, 2010, the Secretary, in consultation with the persons consulted under paragraph (1), shall submit to Congress an update of the plan required under paragraph (1).(b) INFORMATION TO BE PROVIDED TO SECRETARY.—To assistthe Secretary of Defense in preparing the plan, the National Guard Bureau, pursuant to its purpose as channel of communications as set forth in section 10501(b) of title 10, United States Code, shall provide to the Secretary information gathered from Governors, adjutants general of States, and other State civil authorities responsible for homeland preparation and response to natural and manmade disasters.

(c) TWO VERSIONS.—The plan shall set forth two versions of response, one using only members of the National Guard, and one using both members of the National Guard and members ofthe regular components of the Armed Forces.

(d) MATTERS COVERED.—The plan shall cover, at a minimum, the following:(1) Protocols for the Department of Defense, the National Guard Bureau, and the Governors of the several

States to carry out operations in coordination with each other and to ensure that Governors and local communities are properly informed and remain in control in their respective States and communities.

(2) An identification of operational procedures, command structures, and lines of communication to ensure a coordinated, efficient response to contingencies. (3) An identification of the training and equipment needed

for both National Guard personnel and members of the Armed Forces on active duty to provide military assistance to civil authorities and for other domestic operations to respond to hazards identified in the national planning scenarios.

122 STAT. 500 PUBLIC LAW 110–181—JAN. 28, 2008

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(e) NATIONAL PLANNING SCENARIOS.—The plan shall provide for response to the following hazards:(1) Nuclear detonation, biological attack, biological disease outbreak/pandemic flu, the plague, chemical attack-blister agent, chemical attack-toxic industrial chemicals, chemical attack-nerve agent, chemical attack- chlorine tank explosion, major hurricane, major earthquake, radiological attack-radiological dispersal device, explosives attack-bombing using improvised explosive device, biological attack-food contamination, biological

attack-foreign animal disease and cyber attack.(2) Any other hazards identified in a national planning scenario developed by the Homeland Security Council.

SEC. 1815. DETERMINATION OF DEPARTMENT OF DEFENSE CIVIL SUPPORTREQUIREMENTS.DETERMINATION OF REQUIREMENTS.—The Secretary of Defense, in consultation with the Secretary of Homeland

Security, shall determine the military-unique capabilities needed to be provided by the Department of Defense to support civil authorities in an incident of national significance or a catastrophic incident.

(b) PLAN FOR FUNDING CAPABILITIES.—(1) PLAN.—The Secretary of Defense shall develop and implement a plan, in coordination with the Secretaries of the military departments and the Chairman of the Joint Chiefs of Staff, for providing the funds and resources necessary to develop and maintain the following:(A) The military-unique capabilities determined under subsection (a).(B) Any additional capabilities determined by the Secretary to be necessary to support the use of the activecomponents and the reserve components of the Armed Forces for homeland defense missions, domestic emergency responses, and providing military support to civil authorities.(2) TERM OF PLAN.—The plan required under paragraph (1) shall cover at least five years.

122 STAT. 500 PUBLIC LAW 110–181—JAN. 28, 2008 continued….

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(c) BUDGET.—The Secretary of Defense shall include in the materials accompanying the budget submitted for each fiscal year a request for funds necessary to carry out the plan required under subsection (b) during the fiscal year covered by the budget. The defense budget materials shall delineate and explain the budgettreatment of the plan for each component of each military department, each combatant command, and each affected Defense Agency.

(d) DEFINITIONS.—In this section:(1) The term ‘‘military-unique capabilities’’ means those capabilities that, in the view of the Secretary of Defense—(A) cannot be provided by other Federal, State, or local civilian agencies; and 10 USC 113 note.(B) are essential to provide support to civil authorities in an incident of national significance or a catastrophicincident.(2) The term ‘‘defense budget materials’’, with respect to a fiscal year, means the materials submitted to Congress by the Secretary of Defense in support of the budget for that fiscal year.

(e) STRATEGIC PLANNING GUIDANCE.—Section 113(g)(2) of title 10, United States Code, is amended by striking ‘‘contingency plans’’ at the end of the first sentence and inserting the following: ‘‘contingency plans, including plans for providing support to civil authorities in an incident of national significance or a catastrophic incident, for homeland defense, and for military support to civil authorities’’.

122 STAT. 500 PUBLIC LAW 110–181—JAN. 28, 2008 continued….

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Title:The US Constitution, United States Code Title 10, Title 18, Title 32: Understanding the legal framework governing the utilization of the Armed Forc

Length: 30 minutes

Abstract:

Recent changes in US law and Strategic Policy governing the US Armed Forces has led to an increased dependence on the use of reserve forces in strategic planning constructs. This amplified presence of reserve forces has therefore increased the importance of understanding the authorities governing the utilization of these forces – especially in a domestic environ. The US Constitution, United States Code Title 10, Title 18 and Title 32, all provide the legal framework for employment of the Armed Forces -- which include the Reserve. However, demands for and the operational employment of the reserve forces have served to blur this framework for many whose task it is to plan for the security and/or defense of this nation. In addition, key Analytic Agenda products, including Homeland Defense 2016 Multi-Service Force Deployment and Homeland Defense & Civil Support Multi-Service Force Deployment, along with other documents such as the Homeland Defense & Civil Support Capabilities-Based Assessment, reference the use of Reserve forces. This brief will seek to provide an overview of the legal authorities governing the basis for existence of the Armed Forces, limits to the domestic employment of these forces, while concurrently presenting the audience with practical examples outlining the legal authorities, funding, and duty status’ used in support of the employment of the Reserve.

Co-speaker:

Dorothy Jackson Analyst

OSD/PA&E

Rick Beltran Analyst

OSD/PA&E

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The Constitution of the United States of America

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Preamble………..

Documents

The US Constitution and United States Code Effect on Employment of US Armed Forces