Some Facts on the Army National Guard and the US Army

[Jerry D]

The National Guard has a unique dual mission that consists of both Federal and State roles. For state missions, the governor, through the state Adjutant General, commands Guard forces. The GOVERNOR can call the National Guard into action during local or statewide emergencies, such as storms, fires, earthquakes or civil disturbances.

In addition, the PRESIDENT of the United States can activate the National Guard for participation in federal missions. Examples of federal activations include Guard units deployed to Bosnia and Kosovo for stabilization operations and units deployed to the Middle East and other locations in the war on terrorism. When federalized, Guard units are commanded by the Combatant Commander of the theatre in which they are operating.

The following is legal notes on the jurisdiction of the US Army under the
POSSE COMITATUS ACT http://www.au.af.mil/au/awc/awcgate/army/jaoac-ds.pdf
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more
than two years, or both. 18 U.S.C. ? 1385.
Congress sought to terminate the prevalent use of federal soldiers in
civilian law enforcement roles in the South during the Reconstruction
Period following the Civil War.
Act of 1878 created general prohibition against use of military personnel
in civilian law enforcement.

Military support to civilian law enforcement is restricted by the Posse Comitatus Act (PCA), which prohibits the use of the military ?as a posse comitatus or otherwise to execute the laws? unless expressly authorized by the Constitution or Congress. 18 U.S.C. ? 1385 (1994); see United States v. Walden, 490 F.2d 372, 375 (4th Cir. 1974) (finding the PCA applicable to all armed services, including the
Navy and Marine Corps). The PCA was enacted during the Reconstruction Period ?to eliminate the direct active use of Federal troops by civil law authorities.? United
States v. Banks, 539 F.2d 14, 16 (9th Cir. 1976) (upholding military?s authority to arrest and detain civilians for civil law violations committed on board military installations).
The PCA codified a deeply rooted ?traditional insistence on limitations on military operations in peacetime.? See also Laird, Secretary of Defense v. Tatum,
408 U.S. 1, 15 (1971) (commenting on presidential authority to order federal troops to assist during civil disorders in Michigan after the assassination of Dr. Martin
Luther King); Bissonette v. Haig, 776 F.2d 1384, 1387 (8th Cir. 1985) (citing a long tradition, beginning with the Declaration of Independence, in limiting military
involvement in military affairs). Posse comitatus is defined as the ?body of men summoned by a sheriff or other peace officer to assist him in making an arrest.?
BALLENTINE?S LAW DICTIONARY 964 (3d ed. 1969). The clause ?to execute the laws? makes unlawful ?the direct active participation of federal military troops in law enforcement activities.? United States v. Red Feather, 392 F. Supp. 916, 924 (D.S.D. 1975) (holding that evidence of active participation by military troops in law enforcement is admissible in defense of interfering with law enforcement officers during the Indian occupation of Wounded Knee, South Dakota). Congress implicitly
authorized military support in drug interdiction by enacting the Military Cooperation with Civilian Law Enforcement Agencies Act. 10 U.S.C. ?? 371-381 (1994).
Specifically, the ?Secretary of Defense may . . . provide to Federal, State, or local civilian law enforcement officials any information collected during the normal course
of military training or operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials.? Id. ? 371(a) (authorizing use of information collected during military operations). Furthermore, Department of Defense personnel may operate equipment for the ?[d]etection, monitoring, and communication of the movement of surface traffic outside of the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.? Id. ? 374(b)(2)(B). A restriction remains on direct participation by military personnel in a ?search, seizure, arrest, or other similar activity,? such as investigation of crimes, interviewing witnesses, pursuit of escaped civilian prisoners, and search of an area for a suspect, unless authorized by law. Id. ? 375; Red Feather, 392 F. Supp. at 925; see also United States v. Jaramillo, 380 F. Supp. 1375, 1381 (D. Neb. 1974) (upholding
acquittal on charge of obstructing law enforcement officers at Wounded Knee on grounds that the prosecution failed to prove that the PCA was not violated by the military?s contributions to the operation, thus raising a reasonable doubt as to whether the law enforcement officers were lawfully engaged in the performance of
duties). But see United States v. McArthur, 419 F. Supp. 186, 194 (D.N.D. 1976) (holding that evidence of military activity at Wounded Knee was insufficient to
overcome presumption that law enforcement officers acted in performance of duties). Military support to civilian law enforcement is not to adversely affect military
preparedness. 10 U.S.C. ? 376.
In other words unless Congress authorizes the Use of US Military Troops for a specific exercise or operation they are restricted by LAW from enforcing civilian law or arresting someone the one exception is the members of the US Coast Guard who are authorized to enforce US Laws under their Jurisdiction of the US Coast and Harbors.

?ROE supplemental measures apply only to the use of force for mission accomplishment and do not limit a commander?s use of force
in self-defense.? Id. at para. 6b. A sample unclassified pocket card, based on the Standing ROE in effect 1994-1999 states:
STANDING ROE DO NOT CHANGE?MEMORIZE:
A. Self-defense?Take all Necessary and Appropriate Action to defend yourself and other U.S. Forces against a Hostile Act or Hostile Intent.
B. Hostile Act?Attack or force used against U.S. Forces, or force used directly to impede the mission or duties of U.S. Forces.
C. Hostile Intent?The threat of imminent use of force. Example?a weapon pointed at U.S. Forces.
D. Necessary and Appropriate Action.
1. Try to control without force. Warn if time permits.
2. Use force proportional in nature, duration and scope to counter the hostile act or hostile intent and ensure U.S. Forces? safety.
3. Attack to disable or destroy only if necessary to stop the hostile act or hostile intent. Stop your attack when the imminent threat stops.
4. You may pursue and engage an attacker after the hostile act or hostile intent if the threat is still imminent (not into a third country).
E. Minimize Collateral Damage to civilians and civilian property consistent with mission accomplishment and force protection.
SUPPLEMENTAL ROE ARE SUBJECT TO CHANGE:
F. Forces Declared Hostile by higher military authority may be engaged without observing hostile act or hostile intent.
Id. The 15th Marine Expeditionary Unit (Special Operations Capable), I Marine Expeditionary Force, used this card, with scenarios and mission-specific supplemental
ROE, for two deployments in 1997-98, which included Operations Southern Watch and Desert Thunder. The back of the card contained the Law of War principles,
applicable during all operations as a matter of policy. CHAIRMAN, JOINT CHIEFS OF STAFF INSTR. 5810.01A, IMPLEMENTATION OF THE DOD LAW OF WAR PROGRAM, para. 5
(1999).
CJCS INSTR. 3121.01A, supra note 15, at para. 3. ?Peacetime operations conducted by US military within the territorial jurisdiction of the United States are governed
by use-of-force rules contained in other directives or as determined on a case-by-case basis for specific missions . . . .? Id. at para. 3(a). For operations within
the United States, the Standing ROE refers to the following directives for policy and guidance: U.S. DEP?T OF DEFENSE, DIR. 3025.12, MILITARY ASSISTANCE FOR CIVIL
DISTURBANCE (4 Feb. 1994); U.S. DEP?T OF ARMY, DEPARTMENT OF DEFENSE CIVIL DISTURBANCE PLAN, ANN. C (15 Feb. 1991) (Garden Plot); U.S. DEP?T OF DEFENSE, DIR.
3025.1, MILITARY SUPPORT TO CIVIL AUTHORITIES (15 Jan. 1993); U.S. DEP?T OF DEFENSE, DIR. 5525.5, DOD COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS
(15 Jan. 1986); DOD DIR. 5210.56, supra note 16; U.S. Dep?t of Justice Memorandum, Uniform Department of Justice Deadly Force Policy (16 Oct. 1995); CHAIRMAN,
JOINT CHIEFS OF STAFF INSTR. 3121.02, RULES ON THE USE OF FORCE BY DOD PERSONNEL DURING MILITARY OPERATIONS PROVIDING SUPPORT TO LAW ENFORCEMENT AGENCIES
CONDUCTING COUNTERDRUG OPERATIONS IN THE UNITED STATES (31 May 2000); and U.S. COAST GUARD, COMMANDANT INSTR. M16247 SERIES, USE-OF-FORCE POLICY, MARITIME
LAW ENFORCEMENT MANUAL 4, GLOBAL COMMAND AND CONTROL SYSTEM (GCCS)