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1998-04-09 12:13:47


Plans for Emergency Military Powers and Domestic Control



The following article appreared in PARAMETERS, the scholarly publication of the Army War College. It appeared in Autumn, 1997. The author is a member of the Judge Advocate General's office.

The recent moves to consolidate the National Guard and the Army Reserves into domestic control units are consistent with what appears here.

The legal basis of this transformation of the Army is the Stafford Act (1984; amended, 1988). Since 1993, it has been incorporated into Army strategy under the acronym OOTW: operations other than war.

Note the importance of FEMA: the Federal Emergency Management Agency. The full text of the Stafford Act is found on FEMA's Web site.

The author warns us: "Civilian and military leaders need to expect an increase in domestic deployments of US military forces."

Pay careful attention to these words:

"Strategic leaders can take solace in the lessons learned from military participation in domestic disaster relief, for the record indicates that legal niceties or strict construction of prohibited conduct will be a minor concern. The exigencies of the situation seem to overcome legal proscriptions arguably applicable to our soldiers' conduct. Pragmatism appears to prevail when American soldiers help their fellow citizens."

If these words bother you as much as they bother me, why, then, you're obviously an alarmist. And if you pass this information on, you'll become a scaremonger.

There's nothing like the fear of becoming a scaremonger that will silence a computer programmer working on y2k who figures out that the problem is systemic, it can't be fixed, and that y2k will create crisis conditions. The programmers' unofficial guild will excommunicate him for raising these questions in public.

Given what's coming, this threat should not be perceived by anyone as anything significant. But it is. So, I have wound up as John the Baptist, crying in the wilderness. But it's sure a lot better than crying in New York City, Los Angeles, or Chicago, where most mainframe programmers live in the U.S.

* * * * * * * * *

Disaster Relief Operations

The US Army had a remarkable experience in responding to the devastating onslaught of Hurricane Andrew in south Florida in August 1992; Hurricane Iniki on the island of Kaui in Hawaii one month later evoked a similar response. Both instances provide ample evidence that there is a reliable mechanism to facilitate the employment of active-duty Army units in times of great national disaster. The Robert T. Stafford Disaster Relief Act of 1984, as amended in 1988 (42 US Code Section 5121 et seq.), commonly referred to as the Stafford Act after its legislative author, is the authority under which such assistance is provided. The Stafford Act is applicable only within the United States and its territories, and comes into play when a state, usually through its governor, requests a presidential declaration of a state of emergency following a natural disaster. Once a state of emergency is declared, active-duty soldiers can be employed to respond to the crisis under the direction of the Federal Emergency Management Agency (FEMA). These situations present unique legal issues. . . .

The unprecedented destruction of the Alfred P. Murrah Federal Office Building in Oklahoma City, Oklahoma, on 19 April 1995, raised another important legal issue affecting disaster relief operations. As one might imagine, all the resources of local, state, and federal government agencies were mobilized to deal with this shocking act of domestic terrorism. FEMA served as the primary focal point of relief operations, and Army assets were provided under the terms of the Stafford Act. FEMA officials were on the scene within hours of the explosion, and specialized rescue teams followed closely. The entire reaction has been categorized as a masterful melding of state and federal resources. However, the internal FEMA report[15] underscores a natural tension between the rescue effort and the FBI which may be increasingly important in the future. The FBI, as part of the Department of Justice, determined that the entire area was a crime scene for the purposes of apprehending and successfully prosecuting the perpetrators of the bombing. The rescue effort's only goal was recovering survivors or their remains. This natural conflict must be resolved in order to facilitate the nation's response to the increasing threat of similar incidents.

Strategic leaders can take solace in the lessons learned from military participation in domestic disaster relief, for the record indicates that legal niceties or strict construction of prohibited conduct will be a minor concern. The exigencies of the situation seem to overcome legal proscriptions arguably applicable to our soldiers' conduct. Pragmatism appears to prevail when American soldiers help their fellow citizens.

Civilian Law Enforcement

Military support to law enforcement agencies seemingly will present more problems for senior leaders than those encountered in disaster relief. At first blush, this entire area appears to be outside the scope of military operations. As previously mentioned, the Posse Comitatus Act provides a broad proscription against soldiers enforcing the law. However, subsequent congressional acts granting exceptions to the original prohibition of Posse Comitatus have significantly altered the manner in which the armed forces may assist law enforcement. Congress began to carve out these exceptions in response to the perceived increase in importation and use of destructive illegal drugs. Under more recent legislation, the Army can provide equipment, training, and expert military advice to civilian law enforcement agencies as part of the total effort in the "war on drugs." In addition, troops of the active Army are authorized to provide a wide range of support along the borders with the caveat that a "nexus" be established between illegal drugs and the support given. The principle example of the contentious nature of such support can be found in a review and analysis of the support provided to the Bureau of Alcohol, Tobacco, and Firearms (BATF) by the Army under the operational control of Joint Task Force 6 (JTF 6), during the siege and assault of David Koresh's Branch Davidian compound outside of Waco, Texas. . . .

The specter of members of the Army's special operations forces accompanying BATF agents storming a religious compound, however misguided its leader, could have seriously compromised public support of the US Army. Had the initial request been approved (it was) and acted upon (it wasn't), this could easily have been the single most debilitating event to occur within the Army since the tragedy at My Lai. In fact, this occurrence could have been even more egregious because it would have taken place on American soil, would have been a clear violation of the Posse Comitatus Act, and would have raised the issue of military involvement in a case of alleged religious freedom. . . .

Finally, leaders can take heart from the fact that the training and experience of today's soldiers allow them to make the right decisions in situations fraught with career and personal implications. Granted, in this instance the soldiers were mature commissioned and noncommissioned officers with substantial operational experience. . . .

The next area of consideration focuses on those discrete instances when the President of the United States relies on his constitutional and statutory authority to maintain public order and domestic tranquillity. Those who consider the Posse Comitatus Act a giant bulwark preventing the Army from enforcing the law will be surprised to learn that the relevant enabling mechanism is fairly straightforward. The language of the act itself specifies that activities expressly authorized by the Constitution or by statute are exempt from the act's restrictions. One such exception is the statutory authority of the President to use federal troops to quell domestic violence. Upon receipt of a proper request for assistance from a state governor, the President issues a proclamation identifying that a breakdown in public order has occurred, and orders the intransigent individuals to disperse. Once it is clear that the order to disperse is not being followed, the President then orders the Secretary of Defense, in consultation with the Attorney General, to quell the insurrection and restore public order. This presidential authority to use federal troops is plenary and not subject to judicial review. . . .


The second series of lessons related to the military helping civil law enforcement agencies to maintain public order and domestic tranquillity is derived from the FBI experience at Ruby Ridge, Idaho. It should be noted that the incident at Ruby Ridge was classified as a generic hostage-barricade situation and not a terrorist incident. . . .

The UnitedStates has for many years fielded military units specifically equipped and trained to deal with terrorist threats throughout the world. With the growing prospect of terrorism in our own country, the probability of domestic employment of the US military to counter terrorism has grown substantially. The FBI experience at Ruby Ridge provides lessons for such employment. . . .

There is a growing awareness that many US law enforcement agencies are ill equipped to deal with heavily armed terrorist organizations. The spectacle of police rushing to a local gun store to borrow high-performance weapons in March 1997 during a shoot-out in California defines the nature of the threat and a possible response to it by the average local police department. We can expect a degree of asymmetry between terrorists and law enforcement personnel that will almost inevitably trigger an intervention by the military. Our police are neither constituted, nor trained, nor equipped to deal with paramilitary assaults on our citizens. Simply stated, the scope of a terrorist action may be beyond the capability and resources of the FBI's Hostage Rescue Team (HRT), the preeminent civilian law enforcement entity trained and equipped for this role.

The introduction of military units into such situations adds to the difficulty of applying law enforcement standards of self-defense or defense of other agents in imminent danger of death or grievous bodily harm before using deadly force. If the military is deployed to eliminate terrorists and restore a situation, they must be employed as they have been trained. That training is intended to succeed with minimum friendly casualties using military rules of engagement. Hence any member of a group participating in such an incident on this specific form of battlefield could by definition be considered a threat and subject to attack. . . .

Commanders of any unit likely to be committed in aid of domestic law enforcement agencies confronting terrorists will want to ensure that our soldiers are the most capable, best equipped, and best trained they can possibly be. The operational plan will have to be developed, coordinated, and approved at the highest level of government. The final requirement will be for the government to stand behind its decisions and acknowledge errors without attempting to make scapegoats of those at the tactical level. This course of action will allow the United States to apply its military resources successfully in support of civilian law enforcement to meet a very real and growing terrorist threat. . . .

Civilian and military leaders need to expect an increase in domestic deployments of US military forces. They need to recognize that each instance of use is accompanied by new and possibly unprecedented challenges. America's leaders should recognize that the relationship between America's Army and the American people is strong but may be compromised. Public confidence in the military can best be maintained by strict adherence to the legal underpinnings governing domestic operations of the armed forces. Applying the lessons learned from the early 1990s will maintain the excellent relationship between the people and the military well into the next century.


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