Homeland Security Watch

News and analysis of critical issues in homeland security

August 13, 2009

Govs to DoD: Thanks, but no thanks

Filed under: Homeland Defense,State and Local HLS — by Philip J. Palin on August 13, 2009

On August 7 the National Governors Association replied to a letter evidently received from Assistant Secretary of Defense Paul Stockton.  The content of this letter is extracted below.

I have not yet seen a copy of the original letter from Dr. Stockton.

According to Matthew Rothschild in The Progressive, the letter signals an intention to seek Congressional approval to post almost 400,000 military personnel in the U.S.  Rothschild continues, “This request has already occasioned a dispute with the nation’s governors. And it raises the prospect of U.S. military personnel patrolling the streets of the United States, in conflict with the Posse Comitatus Act of 1878.”

 AP reporter Lolita Baldor offers a more expansive explanation for the governors’ concern.  “At the heart of the disagreement is who will exercise the muscle to command reserve troops when they are sent to a particular state to deal with a hurricane, wildfire or other disaster. The governors see the Pentagon move as a strike at state sovereignty, while the military justifies it as a natural extension of its use of federal forces.”

Writing in The Hill, Reid Wilson, reports, “A bipartisan pair of governors is opposing a new Defense Department proposal to handle natural and terrorism-related disasters, contending that a murky chain of command could lead to more problems than solutions.”

A regular reader of HLSwatch suggests there is very helpful background in a  November 2008 CRS report, written by Jennifer Elsea and Chuck Mason, entitled: Use of Federal Troops for Disaster Assistance: Legal Issues.  The first paragraph is a great one, “Recognizing the risk that a standing army could pose to individual civil liberties and the sovereignty retained by the several states, but also cognizant of the need to provide for the defense of the nation against foreign and domestic threats, the framers of the Constitution incorporated a system of checks and balances to divide the control of the military between the President and Congress and to share the control of the militia with the states. This report summarizes the constitutional and statutory authorities and limitations relevant to the employment of the armed forces to provide disaster relief and law enforcement assistance.”

At this point, I don’t have anything to add that you can’t find in what these reporters and researchers have produced. Please access the original stories.  If anyone has a copy of Paul’s letter, please let me know.

TEXT OF NGA RESPONSE TO DOD LETTER

The Honorable Paul Stockton
Assistant Secretary of Defense for Homeland Defense
and Americas’ Security Affairs
The Pentagon
Washington, D.C. 20301

Dear Assistant Secretary Stockton:

On behalf of the nation’s governors, we would like to thank you for your letter regarding the legislative proposal to provide the Secretary of Defense with expanded authorities to assist in the response to domestic disasters. While we appreciate the outreach, governors remain cautious about changes to the military’s authority to engage independently in domestic emergency response situations. The proposal you suggest may have merit, but its consideration must be preceded by a discussion regarding the tactical control of forces serving inside a state in response to a disaster or emergency.

It is our position that to carry out our homeland defense and homeland security responsibilities, governors must retain command and control over the domestic use of their own National Guard forces (Title 32 or State Active Duty status), supporting National Guard forces from other states, and Title 10 forces operating within the supported governor’s state or territory. Consequently, when a dual status command has not been established under 32 United States Code 325, governors, acting through their Adjutants General and Joint Force Headquarters-State, must have tactical control over all Title 10 active duty and reserve military forces engaged in domestic operations within the governor’s state or territory.

We are concerned that the legislative proposal you discuss in your letter would invite confusion on critical command and control issues, complicate interagency planning, establish stove-piped response efforts, and interfere with governors’ constitutional responsibilities to ensure the safety and security of their citizens. One of the key lessons learned from the response to the terrorist attacks on September 11, 2001, and to Hurricanes Katrina and Rita in 2005 was the need for clear chains of command to avoid duplication of effort and to ensure the most effective use of response resources. Without assigning a governor tactical control of Title 10 forces assisting in a response, and without the use of a dual-hatted National Guard commander to ensure coordination between Title 32 and Title 10 forces, strong potential exists for confusion in mission execution and the dilution of governors’ control over situations with which they are more familiar and better capable of handling than a federal military commander.

We look forward to discussing potential tactical control solutions. For example, current military doctrine explicitly allows members of the United States armed forces to serve under the operational direction of foreign commanders, with the President retaining ultimate command over U.S. forces. If the command relationship with the President can be maintained while American active duty personnel are operating under the control of foreign commanders, we see no convincing reason why it cannot be maintained while active duty personnel are under the control of a state governor acting through the Adjutant General. The Commission on the National Guard and Reserves’ Second Report to Congress dated March 1, 2007, specifically recommends governor direction of state and federal military assets to synchronize the military response to disasters:

“Recommendation 8. As part of Department of Defense efforts to develop plans for consequence management and support to civil authorities that account for state-level activities and incorporate the use of National Guard and Reserve forces as first military responders (see Recommendation 19), the Department of Defense should develop protocols that allow governors to direct the efforts of federal military assets responding to an emergency such as a natural disaster.”

We do not yet understand how the legislative proposal would increase the number of DoD personnel available to assist disaster victims. Under existing legislation, DoD has the authority to order members of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to active duty to assist in responses to major disasters and emergencies in the United States. Further, we are not yet convinced the proposed legislative changes would increase the responsiveness of DoD personnel. Under existing legislation, when emergency conditions dictate, local military commanders and responsible DoD component officials are authorized to respond to requests from local authorities and to initiate immediate response actions to save lives, prevent human suffering, or mitigate great property damage under imminently serious conditions.

As you know, a similar proposal was contained in the House of Representatives’ version of the National Defense Authorization Act for Fiscal Year 2009, but was removed during conference because of governors’ concerns. In the Joint Explanatory Statement that accompanied the bill, Congress made clear that DoD should engage governors to address their concerns before moving the proposal forward:

“The Department of Defense should engage with the community of governors to work out an understanding of unity of effort during domestic terrorist events and public emergencies. This key underlying issue must be addressed to allow this and other promising proposals to be enacted.”

Governors and their Adjutants General would welcome the opportunity to work with you and others at DoD and the National Guard Bureau to discuss tactical control during disasters and to identify legislative and operational opportunities to improve our response to such events. The best way to facilitate such consultation and communication is for DoD to quickly establish the Council of Governors as required by the National Defense Authorization Act for Fiscal Year 2008. Doing so will provide an appropriate forum to address these issues and other aspects of defense support to civilian authorities.

Sincerely,

Governor James H. Douglas

Governor Joe Manchin III

cc:
The Honorable Robert M. Gates, Secretary of Defense
The Honorable William J. Lynn, III, Deputy Secretary of Defense
Admiral Michael Mullen, Chairman, Joint Chiefs of Staff
The Honorable Michèle Flournoy, Under Secretary of Defense for Policy
General Victor E. Renuart, Commander, U.S. Northern Command and North American Aerospace Defense Command
General Craig R. McKinley, Chief, National Guard Bureau

[Non-text portions of this message have been removed]

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4 Comments »

Comment by William R. Cumming

August 14, 2009 @ 12:29 am

The Commission on the National Guard and Reserves reported in three phases. The NGA letter cites the Interim Report of March 1, 2007 but the final report was delivered on January 31, 2008. That report contained the following language:
“Congress should amend the mobilization statutes to provide service Secretaries
the authority to involuntarily mobilize federal reserve components for up to 60
days in a four-month period and up to 120 days in a two-year period during or
in response to imminent natural or man-made disasters, similar to that employed
to mobilize the Coast Guard Reserve under 14 U.S.C. §712″.

Not having the Stocknon letter it appears this language may be the source of the Stockton letter to the Governors. Whatever the case, their are clearly some complexities in this area and also some sensitivities. Thanks for the post and hoping you can get the Stockton letter. Again, as you have addressed Posse Commitatus a provision in Title 18 of the US Code (the so-called federal criminal code) that statute should be amended to indicate that the restriction on employment of all the Armed Forces of the United States when employed under Title 10 are prohibited from enforceing the criminal code of the United States or the Several states but does not restrict such forces from engaging in humanitarian relief and disaster assistance and recovery when so ordered by the President or Secretary of Defense or other appropriate authority.

What I do observe is that there are several different recommendations in the three reports of the Commission that probably should have been given closer attention and reconciliation if they could be interpreted to conflict. The normal principle if two statutes of course would be to construe them if at all possible as not conflicting.

Comment by gje

August 14, 2009 @ 12:40 pm

After reading Matthew Rothschild’s delusional “Progressive” main and follow up articles about InfraGard, I take everything he writes with a grain of salt. Great post on the NGA letter, regardless.

Pingback by The Epistle of Paul to the Governors | Homeland Security Watch

August 17, 2009 @ 12:54 pm

[...] week’s late Thursday post on the National Governors’ Association response to a DOD proposal generated more readers than any post since I joined HLSWatch.    But it was a post about the [...]

Comment by DianaS

May 30, 2013 @ 11:12 pm

There was a time when a scenario like this was unheard of in this country. I long for those days.

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