Domestic Operational Law Handbook, 2009 for Judge Advocates

307 Pages·2009·3.24 MB·English

DOMESTIC OPERATIONAL LAW

HANDBOOK

2009

FOR JUDGE ADVOCATES

CENTER FOR LAW AND MILITARY OPERATIONS

20 July 2009

Domestic Operational Law Handbook
2009 Publication

Paul McHale

Former Assistant Secretary of Defense

Homeland Defense & Americas’ Security Affairs1

Preface

“As our cause is new, so must we think anew and act anew.”
Abraham Lincoln

During the past eight years the Department of Defense has initiated a series
of fundamental changes - in both culture and operational capability - in order to
better protect the U.S. homeland from catastrophic events, natural and manmade.
By necessity, these changes are closely linked to an evolving assessment of the 21st
century threat environment. The legal implications associated with these changes
are inevitably profound. Indeed, they go to the very definition of the military’s
proper role within domestic society - reigniting in the process a public policy
debate that is as old as the Republic itself.

For lawyers within the Department of Defense the professional challenge is
immediate and rewarding - the stakes involve core questions of national security,
public safety and the preservation of essential liberty. In my judgment, this new
edition of the Domestic Operational Law Handbook is the seminal compilation of

1 In 2003, President George W. Bush appointed Mr. Paul McHale the first Assistant Secretary of Defense for
Homeland Defense. Mr. McHale served in that capacity until January, 2009. The title of the position was later
changed to Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs to reflect the
increased responsibilities of the position. Previously, Mr. McHale served five terms in the Pennsylvania General
Assembly - from 1982 to 1991. He resigned in 1991 and volunteered for active duty as a Marine Corps Infantry
officer, seeing duty in Operations Desert Shield and Desert Storm. He was subsequently elected from the 15th
Congressional District in Pennsylvania to the U.S. House of Representatives. Mr. McHale served in the U.S. House
of Representatives for three consecutive terms. Prior to his appointment by President Bush, Mr. McHale served as
the Vice President of Tallman, Hudders, and Sorrentino. He is currently employed with McKenna, Long, and
Aldridge, LLP. Mr. McHale earned a J.D. from Georgetown University and a B.A. with highest honors from Lehigh
University.
legal authorities (and related analysis) relevant to DOD’s homeland defense and
civil support missions.

For most of our nation’s history the United States was effectively buffered
by two great oceans and secured by the war fighting capabilities of forward
deployed combat forces. Moreover, a significant threat to our country’s security
generally required the collective resources and manpower of an adversarial nation
state - or frequently, a coalition of hostile nation states. The CBRNE technology of
the 21st Century has shattered that paradigm.

The brutal attack of September 11, 2001, should not be seen as an isolated
event, but rather, as a case study in modern conflict. While DOD must remain ever
vigilant in guarding against the continuing threat from aggressive nation states, it’s
now clear that the asymmetric threat from terrorist organizations - or even isolated
individuals - when strengthened by WMD destructive power, can pose a
fundamental challenge to public safety and our vital institutions of government.
The assumptions contained in the Strategy for Homeland Defense and Civil
Support captured the current threat in stark terms:

* Terrorists will seek and potentially gain surreptitious entry into the United
States to conduct mass casualty attacks against Americans on US soil.

* Terrorists will exploit our vulnerabilities to create new methods of attack.

* Terrorists and/or rogue states will attempt multiple, simultaneous mass
casualty CBRNE attacks against the US homeland.

* Terrorists will try to shape and degrade American political will in order to
diminish American resistance to terrorist ideologies and agendas.

On the morning of September 11, 2001 the United States was poorly
prepared to detect, deter and defeat the asymmetric threat. For the most part, the
Department of Defense was still organized as it had been during the Cold War. In
many ways, outdated concepts of attrition warfare continued to shape military
training, task organization and equipment. Indeed, at the time of Al Qaeda’s
barbaric attack, the very concept of a focused “homeland defense” did not yet exist
- and “civil support” missions were seen as unwanted and expensive diversions
from core national security requirements. By the end of that fateful day, however, it
was manifestly clear that defenses developed to counter the 20th Century Soviet
threat were wholly inadequate to defeat transnational terrorist adversaries,
employing asymmetric tactics, in a vastly different 21st Century threat
environment. It was also clear that the terrorist threat would not likely change.
Therefore, DOD had to.

As a result, between 2002 and 2008, the Department of Defense began an
on-going series of fundamental force transformations. United States Northern
Command was created in 2002. The Office of the Assistant Secretary of Defense
for Homeland Defense was established by law in 2003. The Strategy for Homeland
Defense and Civil Support was published in 2005.

During this period, the National Guard grew from just 9 Civil Support
Teams (CSTs) to 53 certified. And as a direct result of far sighted National Guard
leadership, 17 CBRNE Emergency Response Force Packages (CERFPs) were
established and certified. Most significantly, the Deputy Secretary of Defense
directed the creation of 3 CBRNE Consequence Management Response Forces
(CCMRFs) - essentially joint task forces, each manned by 4,700 military
personnel, highly trained for domestic catastrophic response. In a clear and
compelling break with past practice, the first CCMRF was immediately assigned to
NORTHCOM, with the further expectation that the remaining two CCMRFs would
be similarly assigned in 2010 and 2011.

Upon full implementation of these changes, more than 20,000 active duty
military personnel will soon have - as their primary mission - domestic
catastrophic response. This military capability - though sensible and even
admirable in its operational value - raises important questions of law and public
policy.

In Federalist 8, Alexander Hamilton presciently noted the danger in relying
excessively upon military forces to ensure domestic security. His cautionary words
remain relevant today. The preservation of innocent life - and liberty - requires that
domestic military missions be subject to very close scrutiny - by civilian DOD
leadership, the Congress, the media, and the courts. To that end, it is essential that
military lawyers provide clear and informed guidance with regard to domestic
military missions, assessing the express language of applicable law, as well as the
fundamental propriety of any proposed military mission when judged in the larger
context of American history.

The recently published Quadrennial Roles and Missions Review Report
listed six Core Mission Areas for DOD - the first listed is “Homeland Defense and
Civil Support.” The combined HD/CS annual budget will soon exceed $25 billion.
And when asked last year whether homeland defense could now be considered a
military mission of peer importance when compared to power projection and
overseas war fighting, Secretary Gates responded without hesitation that the
domestic security of the American people is the pre-eminent mission of DOD.2

Although the brutality of the September 11th attack initially brought an anti-
terrorism focus to Defense Support of Civil Authorities (DSCA) missions, the
destruction wrought by Hurricane Katrina in 2005 - and the ineffectiveness of our
nation’s response - served as a potent reminder that acts of nature can also have a
catastrophic impact upon life and property. Indeed, when DOD subsequently
planned for DSCA missions in anticipation of a potential pandemic influenza
outbreak, we soon realized that many pandemic mission capabilities could build
upon the lessons learned from Hurricane Katrina. And similarly, it quickly became
apparent that the planning for contingent military missions during a pandemic
outbreak had great relevance to foreseeable DSCA missions during a terrorist
CBRNE event.

While each catastrophic event has unique characteristics, DOD’s DSCA
missions have a remarkable degree of consistency in required training, equipment,
force integration and command. In many ways the sheer magnitude of a
catastrophic event - as much as its cause - will define the department’s DSCA roles
and responsibilities. Lawyers should consider this issue of scale in reviewing the
proper legal framework of relevant interagency and intergovernmental authorities.
If a nuclear device were to be detonated on American soil, must the Secretary of
Defense wait passively for the inevitable Stafford Act declaration? Can he
immediately begin deploying tens of thousands of military forces - active, reserve
and National Guard - in a massive consequence management mission? If he can
and must act, by what legal authority does he do so?

It has now become clear that the domestic military missions assigned to
DOD require an unprecedented level of interagency and intergovernmental
cooperation, in both planning and execution. Whether in the realm of Article II war
fighting or Stafford Act civil support, DOD’s roles and responsibilities can only be
understood in a larger context of federal, state and local integration. As a result, the
legal issues are inherently complex, frequently contentious, and often fundamental
to the security and civil liberty of our citizens. The newly implemented Task Force

2 Secretary of Defense, The Honorable Dr. Robert M. Gates.
for Emergency Readiness (TFER)3 pilot program, endorsed by the Secretary of
Defense, offers great promise to achieve joint planning and operational integration
in this area.

While many challenging legal questions have been answered in recent years,
more than a few have not. Pursuant to the provisions of the amended Defense
Against Weapons of Mass Destruction Act, what are NORTHCOM’s foreseeable
missions in preventing a WMD attack on our own soil? What are the lawful
“homeland defense” missions now assigned to the National Guard in Title 32?
What domestic counterterrorism missions - in support of civilian law enforcement -
may now be executed by JTF-North? What is the scope of authority granted to the
President under the Insurrection Act when dealing with the inevitable panic and
domestic chaos in the immediate aftermath of a WMD attack? Under such
circumstances, what authority does the President have to involuntarily activate and
federalize the National Guard? Under current law, must the Department of
Homeland Security always be the Lead Federal Agency in responding to the
consequences of a domestic catastrophic event? Could the President lawfully
designate that responsibility to another federal agency?

During the six years in which I served as Assistant Secretary of Defense for
Homeland Defense & Americas’ Security Affairs, I routinely quoted from the
DOPLAW Handbook when advising the Secretary of Defense. I gave copies of the
Handbook to two Secretaries of DHS and several in-coming NORTHCOM
commanders. I passed out DOPLAW copies to dozens of senior officials
throughout the federal interagency. It is a superb compilation of comprehensive
legal authorities, effectively presented in a format that very knowledgeably
describes the reality of DOD’s war fighting and civil support missions. In short, it
is the starting point for any competent lawyer’s professional understanding of the
21st Century threat environment - an environment in which terrorists are fanatically
committed to the belief that the US homeland is the ultimate battle space. In every
sense, the DOPLAW Handbook is both past and prologue.

Paul McHale
24 May 2009

3 The Task Force for Emergency Readiness pilot was implemented by the Secretary of Defense September 1, 2008
with an expected duration of 18 months. The Task Force’s mission is develop State specific emergency management
plans that take into account the extant strengths and weaknesses of the individual states. The Task Force is
composed of planners, under the leadership of the respective Governor, from the State emergency management
office, the state National Guard, the Department of Homeland Security, and the Department of Defense.

DOMESTIC OPERATIONAL LAW HANDBOOK
A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES
2009

EDITOR

LTC Patrick A. Barnett

CONTRIBUTORS

MAJ Christopher Brown CDR Thomas Emerick

COL John Gereski, Jr. CPT Jose´ Gonzalez

LTC Allen Goshi MAJ Timothy Harner

MAJ Erin McMahon Lt. Col. Jeanne Meyer

LTC Michael Noyes MAJ Robert Paschall

Mr. William Sells LTC Jeffrey Spears

Mr. Shane Springs LTC Timothy Tuckey

LTC Bradley Upton Mr. Jared Williams

as well as the General Counsel Office, Defense Threat Reduction Agency, and numerous
past editors and contributors to the Domestic Operational Law Handbook

Cover design by Ms. Chérie Hülsman-Reid

The contents of this publication are not to be construed as official positions, policies, or
decisions of the United States Government or any department or agency thereof.