Homeland Security Watch

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.