Homeland Security Watch

News and analysis of critical issues in homeland security

August 17, 2009

The Epistle of Paul to the Governors (updated)

Filed under: Homeland Defense — by Philip J. Palin on August 17, 2009

Last 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 NGA response to a proposal not seen, at least not seen here.

The NGA response was — predictably – less-than-enthusiastic.  Here’s the proposed legislative language being offered by DoD:

SEC. ___.  AUTHORITY TO ORDER ARMY RESERVE, NAVY RESERVE, MARINE CORPS RESERVE, AND AIR FORCE RESERVE TO ACTIVE DUTY TO PROVIDE ASSISTANCE IN RESPONSE TO A MAJOR DISASTER OR EMERGENCY.
(a) AUTHORITY.-
(1) IN GENERAL.-Chapter 1209 of title 10, United States Code, is amended by inserting after section 12304 the following new section:
Ҥ 12304a. Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve: order to active duty to provide assistance in response to a major disaster or emergency
“(a) AUTHORITY.-Notwithstanding any other provision of law, to provide assistance in responding to a major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), the Secretary of Defense may, without the consent of the member affected, order any unit, and any member not assigned to a unit organized to serve as a unit, of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve, under the jurisdiction of that Secretary to active duty for a continuous period of not more than 120 days.
“(b) EXCLUSION FROM STRENGTH LIMITATIONS.-Members ordered to active duty under this section shall not be counted in computing authorized strength of members on active duty or members in grade under this title or any other law.
“(c) TERMINATION OF DUTY.-Whenever any unit or member of the Reserves is ordered to active duty under this section, the service of all units or members so ordered to active duty may be terminated by order of the Secretary of Defense or law.”
(2) CLERICAL AMENDMENT.-The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 12304 the following new item:
“12304a. Army Reserve, Navy Reserve, Marine Corps Reserve, Air Force Reserve: order to active duty to provide assistance in response to a major disaster or emergency.”.
(b) TREATMENT OF OPERATIONS AS CONTINGENCY OPERATIONS.-Section 101(a)(13)(B) of such title is amended by inserting “12304a,” after “12304,”.

Further, at the close of this post  is the late July letter of Paul N. Stockton, Assistant Secretary of Defense (Homeland Defense and Americas’ Security Affairs) to the NGA chairman regarding the proposed legislative language. 

Through a staff colleague, Dr. Stockton has also passed along this further response:

Philip J. Palin’s August 13, 2009 article “Govs to DoD: Thanks, but no
thanks” was a great overview of the debate on the Department of Defense legislative proposal that seeks the authority to order Army, Navy, Marine Corps, and Air Force Reserves to active duty to assist in responses  to major disasters and emergencies in the United States.  I would like to emphasize that our proposal does not seek to usurp the authorities of Governors but rather ensure the federal government is able to respond with ALL available and appropriate resources when requested by a state.   As AP reporter Lolita Baldor aptly wrote, “California officials grew irate when they saw helicopters sitting idle at Camp Pendleton as fires raged through the countryside.”  While the Pentagon was able to direct active duty Marine helicopter units to respond to Gov. Arnold Schwarzenegger’s request for aid, (DoD) could not order the nearby Marine Corps Reserve units to do the same.  If passed, our legislative proposal will ensure that our Nation is able to access and utilize all of our capabilities during a disaster to include those in the military reserves, when requested by a Governor.

Tracking the surge of new readers on Friday and Saturday it is pretty clear that many readers of last week’s post are concerned about an incremental acquisition of power by the central government producing a slippery slope to tyranny.   As Dr. Stockton’s comments suggest, this concern is in tension with taking prudent steps to ensure a constitutional and effective federal response to a catastrophic disaster. 

Is there a reasonable accommodation of the tension?  Probably worth a real discussion that includes some careful listening by all sides.

Following are two JPEG images of Paul Stockton’s original letter.  I understand these are barely readable.  I will eventually pound out a text version of the letter, but given other commitments today, this is the best I can do and get this to you in a timely way.

stockton_page-1

 

stock_page-2

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4 Comments »

Comment by William R. Cumming

August 17, 2009 @ 3:43 pm

The Stockton Letter documents that the FEDS and STATES are talking past each other. Note the statement in the letter back to Stockton:

“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.”

Actually the STOCKTON letter does not and could not address the above. It does appear that the Interim Report on the NG discussed in my previous comment on the original post was perhaps the source of the confusion. Again, the question is really provision of “humanitarian assistance” but the Governors refuse to do the hard work of heavy lift of supporting their own law enforcement systems through changes in law, funding and staffing to ensure that their law enforcement “policing” function is adequately staffed even for large-scale disasters and emergencies. The NG assets available to the Governors for humanitarian and law enforcement purposes and heavily relied upon by the Governors so that in many cases they can allow their own law enforcement assets to be minimal means that yes they are crucial backup for situations including riot and civil disorder. Because federal policy is NOT to declare a Presidential disaster or emergency for riot and civil disorder or for other “Law Enforcement Emergenicies” see 28 CFR Part 65 it is necessary that the Governors being sensitive to the possibility of needed federal forces for law enforcement backup have seized on the NG as their own resource and only true insurance in such an event. What is overlooked by the Governors is that 95% of funding for the NG is through the Federal Government and the Governors make very little contribution. Worse in 26 states the Governors have refused to make Emergency Management a completely civil function and instead have the STARCs as their prinicpal emergency manager. What does this mean in practice? Well George W. Bush was Governor of a state TEXAS with a very weak EM establishment and the USACOE and NG are the principal elements of the STATE response to disasters and emergencies and the political clout of TEXAS politicians in gettng the President to declare disasters and emergencies and theirby fund the USACOE by mission assingments and reimburse the STATE for NG deployments, nominally for humanitarian purposes but actually to show an armed presence on the street to prvent looting or other problems. What should be done is the following:
First, DOD should issue a clear guidance document on how and when and if it would federalize the NG for whatever purpose. If you think this is an easy assignment, no way. The Department of Justice should immediately issue written legal guidance to FEMA, DHS, and DOD by updating Mary Lawton’s 1980 monograph captioned “Military Support for Riots and Civil Disorders.” And Congress should modify the Stafford Act to establish the principle that that statutory scheme may not be used as back door funding for law enforcement assistance at federal, state, or local level. DOJ initiated the concept of a “Law Enforcement Emergency” in the Omnibus Crime Control Act of 1984 and they and DOD should work out the funding and implementation of this concept. In the meantime, Governors should clearly distinguish when the NG is being for “Law Enforcement” as opposed to “Humanitarian Assistance” and not push for Presidential declarations to fund law enforce through the backdoor.

NAPA did an interesting study of the STATE role of the NG under contract to FEMA in the early 90′s and this should be reviewed in detail and should have been reviewed and discussed in detail by the National Commission on the NG and Reserves that apparently has allowed the Governors to misread its final recommendations.

Comment by William R. Cumming

August 17, 2009 @ 5:41 pm

Again an important modifying adjective should be added to the proposed legislation and it should be noted that at least 3 committees of the HOUSE and 2 of the Senate would have collateral jurisdiciton over the language as presently drafted:

IN GENERAL.-Chapter 1209 of title 10, United States Code, is amended by inserting after section 12304 the following new section:
Ҥ 12304a. Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve: order to active duty to provide [humanitarian]assistance in response to a major disaster or emergency

This would be an important step to ensure that no improper usage was made of the technical and other resources made available in the disaster or emergency by DOD.

This brings up an important point however in that DOD published regulations in both Title 10 and Title 32 are woefully out of date and could lead to substantial problems. Any redrafts by DOD should be of course cleared first by the DOJ with formal comments even before any ANPR or NPR! Good luck Eric Holder and Robert Gates in protecting US democracy (republic)!

Comment by William R. Cumming

August 18, 2009 @ 8:33 am

By the way there is a provision in Title 32 of the US Code for state militias. I believe about 20 states have them. These are separate from the NG.

My references to Title 10 [US Code] and Title 32 CFR–National Defense above were actually to the Code of Federal Regulations which were the targets of my suggestions for updating and revision in particular where issues of federalism implicated.

Of course Title 10 of the US Code is captioned Energy and not related to this issue. Sorry for any inconvenience. Title 50 of the US Code is of course the National Security title.

Comment by William R. Cumming

August 19, 2009 @ 1:11 am

I really fail to understand NOW what is going on over the entirely legitimate effort by Dr. Paul Stockton to improve legal authority for large-scale emergencies. Some blogs are just headlining that DOD wants to station 400,000 troops domestically. It sounds like the wing-nuts are thinking this is in violation of Amendment III of the Bill of Rights. Specifically–No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

I guess the bloggers are seeing RED[Coats} in all federal activity. Very strange but again given distrust of federal activities in general and the military in particular it does call for unusual sensitivity in dealing with domestic employment of the Armed Forces. Perhaps time that DOD really make clear what it can and cannot do by outlining a formally updated regulation at what used to be 32 CFR Part 285 and other related sections.

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