tv American History TV CSPAN October 13, 2014 9:58pm-11:05pm EDT
databases and just as one example that's not from the surveillance context but the no-fly list. we know there was a recent ruling out of california in which there was a woman who was placed on the no-fly list by mistake. there was an error. the box that was checked with the wrong box was checked and it took according to the court's review it took many years before that was discovered and after that it took some time before the relevant databases were all -- the information was cleared from all the databases and i think that's one of the underlying concerns and issues that motivates some on this debate and discomfort of the american people both about collection and the sufficiency of even the best use protocols is what happens in those instances of mistake and what are the consequences for real people. >> so in the fisa context, we
actually have very, very stringent and effective rules in that regard. for example, under one particular provision of fisa, we're not allowed to target either united states persons or persons within the united states. sometimes it happens that we think somebody is not a u.s. person and then we discover, oh, my gosh, this person has a green card. we didn't know that before. and the rules are at that point, you have to go and purge the collection -- you have to report it to the fisa court. you have to purge the collection and you have to purge any downstream reporting that comes from that, as well and all of this is overseen within the government, reported to the court and also reported in summary fashion each year to congress. so it actually -- it actually is possible to get rules and procedures that do protect against these kind of mistakes. supply want to thank our panel
for sharing their thoughts and wisdom with us this important and thanks to the audience for your participation and i understand we now are going to break for lunch and i believe joe said we're going to bring our lunch back in here and then be ready for the next presentation. thank you very much. [ applause ] join us tuesday here on c-span3 for programs focusing on
health care issues. we'll show you remarks from cbs fa -- cvs president and a house hearing on medicare fraud all starting tuesday at 8:00 p.m. eastern. >> plenty more live campaign 2014 debris coverage coming up tuesday on c-span. between mark pryor and tom cotton. recent polling has this race as a toss-up. right after that south carolina governor nikki haley with vincent sheheen. >> and john kitzhaber against dennis richardson leaning democrat. see it live tuesday at 10:00 p.m. eastern also on c-span.
be part of c-span's campaign 2014 coverage. follow us on twitter and like us on facebook. to get debate schedules and video clips of key moment, debate previews from our politics team c-span is bringing you over 100 senate, house and governor debate answer you can instantly share your reactions to what the candidates are saying, the battle for control of congress, stay in touch and engage by following us on twitter at c-span and liking us on facebook at facebo facebook.com/cspan. in the final portion of the american bar association's annual homeland security conference, a discussion on the coordination of state, local and federal resources during a crisis. speakers include representatives from the defense department, fema, the national guard and the air force. this is an hour. >> emily thank you for that very kind introduction.
i want to assure all of you that is the first phone call i've received in three weeks. and it's from my wife. don't tell her i said that and i hope she's not watching c-span at some point to get me in trouble. emily, that was very kind. i thank you very much for it. we have a terrific panel here today. i've known just about everyone on the panel for a long time. we have experts in civil authorities and homeland defense. the role of the military within our own borders could not be timely. as we meet in washington national guardsmen and state status at the direction of governor perry are providing security along the texas board weather mexico. national guardsmen in title 32 are providing security elsewhere along the southwest border. active duty title 10 military personnel under command and control are executing counternarcotics missions along
our borders. the missouri national guard has been called out by the governor to restore order in ferguson, local missouri police are armed with surplus military equipment. and north com's army north is preparing for possible hurricanes. since our country's founding the role of the military within our own borders has been a matter of public safety. and a matter of significant public concern. the very brief amount of time i have i won't recount to you the content of federal aid but read alexander hamilton's work. it offers insight on the limited role of military on our society and enduring requirement in a constitutional democracy for the military to be subordinate to civilian authority. hamilton's thoughts in federalist 8 i think are particularly incite full and prescient in terms of the kinds of missions i described just a moment ago.
so where do we find a balance between essential, even life-saving operational military capabilities and vital civil liberty? what's the right policy? and what's the applicable law? we do have a distinguished panel to address these issues today and i'm going to introduce them each immediately prior to their individual presentations. our first speaker is brad kieserman. he has been kind enough to participate for a number of years now, many of you know brad and his former capacity as chief counsel to fema. he currently the assistant administrator more recovery office of response and recovery within fema. he is an extraordinarily talented attorney, thoroughly knowledgeable in operational capabilities and spent years within dhs as an attorney before he moved to the subordinate element of dhs, fema. he's a member of the senior executive service and he spent
22 years in civilian enlisted and commissioned capacities with the united states coast guard. brad, the floor is yours. >> appreciate that. good morning, everybody. and good afternoon, i guess is the case may be. let me begin i think it's probably appropriate that we begin the conversation about defense support of civil authorities and probably helpful to begin with civil authorities. perhaps the most useful place to begin is with a basic principle of american civics. the principles of disaster management in this country assume a leadership role, not by the federal government but by state, local and -- it makes political sense, as well. the official closest to the disaster and the one most accountable is probably going to be a local mayor or a county
councilman or city councilman or in some parts of the south and southwest a judge, elected judge. but these are the officials elected by the local community to govern that community and to essentially exercise all of the police power s vested in local government and what is emergency management fundamentally if not the exercise of a police power? think about it. if you have a -- i won't say if it's you, if you have a son and that son is stopped by the police and asked to step out of his car and perhaps given a breathalyzer or patted down for any type of paraphernalia, that son has all sorts of process that is due under law. might be given a notice to appear, might be given a ticket. might be taken in and booked and released but in the end there's all manner of process that
surrounds that transaction. now, think for a minute about an evacuation because of an oncoming flood for the threat of a tornado. what process there? a local police officer knocks on a door, someone comes to the door and they're told this is a mandatory evacuation, you need to leave immediately because your life is in danger. and there will be no process. no process due and you may never be able to come back to your home again and everything you own, everything you have may be gone when you come back. and that's the exercise of a police power. not the notion of putting handcuffs on someone or binding them over for trial but the notion of protecting the civil population. the welfare, the health, the sanitation of that population. that is the essence of police powers. and it is what local governments do every single day and you may say, so why are you beginning a conversation about the role of d.o.d. and the role of the defense authorities in emergency
management? because when we talk about the role of the federal government and particularly the department of defense in disaster management and emergency management, at some level we are talking about an interface between the national security and national defense forces of our country with those people behind the door being told they have to evacuate because of a flood or a fire with people who are in shelters because their homes are not accessible or have been destroyed talking about interface with the civilian community on matters that are fundamentally tied from a legal perspective to the exercise of police powers. so when the federal government gets involved, in the vast majority of disasters or emergencies in this country, when the federal government gets involved is it at the request, the specific kw request of a
governor that determined some municipality or subdivisions within the boundaries of his or other state or tribal area have been overwhelmed and that the state or the tribal government requires such supplemental assistance from the federal government because it is overwhelmed. so just to get the feds in the door, a governor is ee sngsal a ly saying i can't handle this. we need help from the federal government and then the president, the president of the united states makes a decision about whether the conditions are such that that state is overwhelmed and whether it's appropriate to bring federal resources to bear and when we bring federal resources to bear the federal emergency management agency is called upon to lead the federal government's response and recovery to those declared events. we declare on the average of about 50 to 70 events a year.
we don't do water main breaks, we don't do generally power outages, we don't do small fires, we don't do the vast majority of what most people, you would consider to be an emergency or disaster in your life. very small fraction of what happens in this country is actually federalized in terms of disaster response and recovery. when it is federalized, there's three basic forms of assistance available. what we call public assistance which is designed to help repair, restore and replace public entity buildings and some n nonpublic facilities and individual assistance, assistance to individuals and households capped at $34,000 a year not designed to make anyone whole. let me be clear the federal government is not your insurance policy and wasn't designed to be by congress. it is supplemental assistance. and then something called hazard mitigation which are dollars generated through the total amount of money that is spent on the disaster, some percentages
of that money is set aside. it is available for states to make decisions about mitigating the risk of future disasters. so those are the three forms of assistance that are available. when the federal government comes into play, fema's role is to coordinate that system. fema is not as you'll hear craig fugate say, it is not the team, we are part of the team. there are many part, the department of agriculture, department of transportation, the department of housing and urban development. the small business administration. all of these federal agencies bring dollars, resources, information to the table designed to help states and their communities respond and recover. but when the president makes a declaration under certain circumstances, fema will task other federal departments and agencies with performing certain mission essential critical functions and the department of defense is absolutely one of our
key and most critical partners and i'll tell you why. and this goes, i think, to the crux of the issues that bob and dawn and mike will talk about so hopefully i'm teeing these up well for you, who is present in the united states? look, from the founding of the republic when we talk about the whole community response to emergencies and disasters, who is present in the 17th century, the 18th century, the 19th century. who had forts on the frontier? it wasn't fema. fema didn't come around till 1979. it was our defense -- it was the army. that's who was present and so there is a long tradition of defense support to civil authorities. but as the role of the military in the united states and the threats that the united states confronts increasingly expand, as the scale of the military
increasingly grows we have a fascinating tension because who is there, well, sometimes the military is there, we have people in garrison and people on base but more and more it's deployed abroad and who has capability and capacity? from sheer scale many people believe it's dod that has that. so the question becomes, what is it that d.o.d. has available in terms of capacity. what authorities can fema and other departments and agencies bring to the table to make use of that? and how do we form partnerships so that we can leverage those authorities, those capabilities and capacities in the way that make the most sense both operationally and economically? because from a cost perspective, and i say with my brother to the right of me, there is probably no higher value but no higher cost than working with d.o.d. to get resources in.
but sometimes there's also no comparable service provider who can bring those types of resorts in so it's finding that sweet spot and remembering at all times that when we are bringing resources to the table from d.o.d., they are fundamentally being used by state, local and tribal governments for the execution of police powers by those authorities. there's a few occasions just to wrap up where the president may in fact do an emergency declaration for a matter that is solely within the jurisdiction or the responsibility of the united states. a truly federal disaster that has only happened three times in the his trfr the robert t. stafford act. and you would be surprised to learn one was the murrah building attack which was federal property. the 9/11 attack on the pentagon, again, federal property and the first space shuttle explosion, federal property.
so in cases where large federal property is involved the federal government may declare and the president may declare an emergency and the federal government pays for 100% of those costs. otherwise, the costs are shared by the state and local and tribal governments involved. generally at a 25% cost share for the state and local government, adjustable at the president's discretion. 75% floor for the federal government. so where does that leave us? fema does two things, we write checks and coordinate. s that pea we do. we are only able to do the second because we do the first. when we write the check generally people are willing to be coordinated. absent that check we run into resistance, that won't surprise you so that is our role at the federal emergency management agency to write some of the checks necessary generally in the forms of grant moneys or d.o.d. partners are concerned to assist our state, local and tribal partners in recovering
and responding to disasters. which are primarily their legal responsibility and their political responsibility to respond to. so with that, i will turn to paul and to the next speaker and look forward to your questions later in the day, thank you. >> so what happens when writing checks and coordinating within the interagency is an insufficient response, when the event of such magnitude that life-saving capabilities are required usually within a very short time frame in order to be successful and executing the mission, you can't write a check to do that, coordination is too late, you have to have deliverable operational capabilities and so when there is a major disaster declared by the president under the stafford act and the lead federal agency dhs, fema under the homeland security act of 2002 sends a mission assignment to the department of defense, what happens to it? when fema attempts to
incorporate into its response and its leadership the capabilities of d.o.d., that request goes to bob salesses. bob is a retired marine logistics officer. met him when he was still in uniform joining the staff of homeland defense when that office was created by the congress in 2002. bob has had an extraordinary career. he's now a member of the senior executive service and truly bob is such a good friend i have trouble saying this without some considerable prejudice on my part but he is the expert in our nation on the subject of defense supportive civil authorities. he knows more about that topic than anybody else i have ever met and he's been at it in the service of our country now for about 12 years. we are exceptionally fortunate to have bob salesses, deputy assistant secretary of defense for integration and defense supportive civil authorities as our next speaker. >> paul, thank you very much.
let me start with -- i think it's important -- i'm going to talk about defense support to civil authorities but i wanted to provide a little context before we got going on d.o.d.'s two main roles domestically. we've spent a lot of time, nearly a decade and assistant secretary mchale was obviously the author of a lot of these policies that we have in the defense department. but it was really to define d.o.d.'s role domestically and two mission sets, first is homeland defense. when you think about homeland defense it is different from homeland security. it is the defense missions that the department of defense executes for the defense of the nation under the president. and those traditional missions are air defense and maritime defense. and in those missions, d.o.d. is in the lead for those missions. so i want to just get that out there so there's a clear understanding of that. we've also established two operational commands to oversee that responsibility in north com
out in colorado and pay com out in hawaii that oversee the operational responsibility for the maritime defense of the nation. the next issue is defense support to civil authorities. fascinating issue. and i try to look at it in three areas in particular. the first is how the department provides support to federal law enforcement agencies. the second big area is in disaster response. and the third in my view is public health emergencies which is sometimes overlooked. and the defense department can be called in to assist in any of those areas. all of those are governed obviously brad talked about our role with fema and i'll focus on disasters in particular large scale disasters and talk about sandy and the critical role that the defense department played in sandy. and i think you'll be surprised quite honestly because when you think of the defense department, you most often think of military
members, but there's tremendous capabilities in the defense department that are brought to bear in our national response system. but with that, and d.o.d. is always, always in support whether it's supporting law enforcement, supporting disasters or in public health emergencies supporting hhs and those kinds of organizations. and i know mike is going to talk a little about border assistance and how the guard works and state duty and title 32 so i won't talk about that but maybe during the questioning period we could have a discussion about that. but even when the defense department is executing a defense support to civil authorities mission in support of another federal department and agency, the chain of command remains to the secretary of defense, military forces always remain under the command and control of the secretary of defense. so today i want to step back just a second and kind of go up a little bit on this discussion
because having had the opportunity to look at this for several years as paul indicated, i think there's some leading strategic indicators out there as we think about disasters of the future. and certainly climate change and fires, hurricanes, tornados are more frequent. when you combine that with the unregulated areas within the united states spillways along the coastline that creates real challenges for my friends in fema. you also look to the future and you see the population of the united states will grow by 00 million over the next 25 years. a4% of the population of the united states lives within the coastal areas, in fact, my good friend paul mchale lives in the coastal area but what that says to me at the start, strategic indicators that the demand for d.o.d. indicators you'll see are
going to continue to grow and they've grown quite a bit over the last few years. i think it's important to recognize that. also our responsibilities have evolved in the last decade in this area but again we have tremendous partners that we work with and we're always in support of them no matter what federal department and agency when we're executing our defense support to civil authorities responsibilities. brad talked quickly about the federalist system our national response system is based upon, local, state, federal. what also drives that system and i think it's important to recognize that is the request for assistance process. it's a transactional process that comes from the states. so now we're talking about large-scale events around the country. imagine multiple states, multiple kbr, multiple large cities who all at the same time are doing assessments to determine the types of capability that they need
assistance with. and how that is managed. it's a fascinating system. i provided this pamphlet so that you'd have an opportunity just to -- we actually produce this so that our partners at the federal, state and local level have a clear understanding how the defense department is going to interact in this whole process. and we're going to work with our federal partners but there's multiple systems within our federal response system, our national response system emac, state-to-state compacts where one another provide capability, when that is obviously exceeded then they turn to our friends in fema and ask for a declaration. but let me start with sandy and i think it's -- you to, everybody heard about katrina and we spent many years reviewing what happened in katrina but i think it's a real tribute to the federal government and all the partners that were involved in that and how we dealt with sandy and the work that we had done between
katrina and sandy to prepare the federal departments and agencies and in particular the defense department to be effective in responding. hurricane sandy in my opinion although we had several days to prepare for it was still a strategic surprise. and the reason i say that is because of the cascading effects that ensued after the storm went through. but really significant effects. and it was in a densely populated area, major urban area when you think about new york city and what happened. the other thing that was very interesting, it was the competing demands between the city, the major city and the state, fascinating when we look at our response system. but consider within the first few days of what happened in sandy, 8 million people without power, it was severe cold if you remember about nine days after sandy we had a big winter storm roll through.
we also had the disruption of the largest fuel transfer distribution site on the east coast in new york. 2500 gas stations in new york and new jersey without power. they went to gas rationing in new york and new jersey. in those particular areas. commerce was at a standstill. new york was shut down for i think it was three or four days. and disruption, total disruption, all the tunnels into new york flooded. 14 major tunnels. people were unable to go to work. public housing, medical facility, municipality buildings all severely affected. not able to provide the kind of support that the citizens within those communities needed. and then the prolonged flooding in manhattan obviously created significant problems on wall street. the first time it's been closed for two days, consecutive days since i think in history. $71 billion worth of damage in new york and new jersey. really significant.
so as we think about our federal system and how that impacted the area what i want to turn to now is what the defense department did and i think it's critical that people understand the role that the defense department plays in this nation in working with our federal partners to be responsive. i talked about the 8 million people without power. we have an organization in the defense department called the corps of engineers, u.s. army corps of engineers, they have tremendous capability 6 tremendous capability and are critical element of the national response system. the corps of engineers have its own authorities to go out and operate and functions as one of the 14 emergency support functions that are in direct support of fema in an emergency. the work that they did was phenomenal. they fortunately just before the storm a few months before that they actually go out and assess all the municipal buildings and they work with the state so they
know exactly in priority sequence where the state wants the power to be put in whether it's a police station, a hospital or some other type of important facility. but these guys put generators in hundreds and hundreds of places. the other thing is we use u.s. transcom which manages all our transportation assets whether those are ships or airplanes or how we move on rail to our force deployment locations. u.s. transcom through over 300 utility vikes from the west coast from arizona, california and the new mexico area to the east coast. the critical infrastructure that was down in new york, which is the fuel station that provides that capability, the hoboken ferry, again, the corps of
engineers and elements of the u.s. navy worked with the city officials to help get that back up. s other thing is fuel resupply. we have another organization called dla. defense logistics agency. it for all intents and purposes provides all the military supply capability to our force services. it also functions as a logistics arm of fema through an agreement we established several years ago. dla provided over 9 million gallons of fuel to new york. and was critical in resupplying fuel to a null of critical locations. i talked about the corps of engineers. they were responsible for unwatering the tunnels in new york. the support they provided 6 million meals, tongues of other
equipment, blankets, cot all the critical care capability needed for folks in those situations. we also provided temporarily housing for some displaced people on military installations. and we just recently did that for hhs, for the uncompanied children come to the border. we house nearly 8,000 children on a military installation over the last couple of months. i've gotten to this point without talking about any military people per se. what i've talked about is the agencies and the capabilities of the department. we also have as you know northcom which is an operational command and had about 4,000 military people in title 10 status. for the first sometime we had personnel available to respond to this event. of course, the national guard as always responded with nearly 8,000 national guardsmen from over 19 states through their emac capability.
supporting that is another 10,000 folks so that gives you the magnitude of an event like this and how much of a role the defense department plays in supporting these activities and how critical system that our role is well defined and well integrated into our federal partner's efforts but first let me end with a couple of clear themes here that i think are important and that we recognize going forward. first of all d.o.d. does a lot more than provide military people to support these events. our defense agencies are critical to how we respond to disasters whether the corps of engineers, whether that's the defense logistics agency, transcom or transportation command, there is a lot of capability in the defense department that the nation depends on. it should be available. the other unique thing is we use the total force when you think about the military army navy, air force and marine corps you think of active component
reserve and the national guard. we employed all those elements because when we outfit them, there's a balance of capabilities in those organizations. both at the active reserve and guard level. but we also have policies in place in the defense department to ensure that our military bases and installations around the country are able to go out and help the sit sengs of the nation. most bases and installations around the united states have what we call mutual aid agreeme agreements. put in place with the local ems so that's more than that and allows local community to call on the installation and provide that support. i think the other thing and last thing in closing here is we've
made tremendous investments in the defense department to be effective in this area. specifically the organizational capabilities to enhance unity of effort. and with that i mean specifically at the national guard, the capabilities we provided, the joint force headquarters state that exists there. if you know how fema is organized and look at the handy-dandy chart i gave you here, in the back there's regions, we have military people called defense coordinating officers and elements at every one of those regions so when we do have a disaster, and that state asks for assistance, through fema we're there with them within that region so that we can expedite the kinds of capabilities needed. that in itself speeds the process and when we look at the situation in sandy or future disasters, the critical element is the speed in which we can deliver that capability. and the ability of the federal government to integrate itself
rapidly to deliver what's necessary for the american citizens so with that i'll end. i look order to your questions and i appreciate your time. thank you. >> bob provided a great segue. he just told you that homeland defense is the war fighting defense of the united states and the authorities derived from the president's power under article 26 the constitution as commander in chief. the same war fighting authority that is being exercised in afghanistan today or has been exercised to sustain and authorize the air missions of norad going back to the 1950s and maritime missions ramped up in the context of the evolving terrorist threat. defense supported civil authorities is a statutory function defined by law as passed by the congress. it ultimately has a constitutional basis but it is very carefully crafted by statute usually under the stafford act so just to
summarize, if a governor experiences within his or her state a catastrophic event and turns to the president for assistance and if the president declares a major disaster under the stafford act and if then under the homeland security act dhs and fema move into the lead and send a mission assignment over to d.o.d. received by bob salesses, the question arises which military forces, how do we determine whether they are active duty, national guard or title 10 reserve? those are choices that need to be made and ten years ago a decision was made in contrast to past decision-making, past policy that normally we should use reserve component forces for these types of domestic missions. no institution of government in my judgment more broadly reflects the federal character of our constitution than the national guard, the national guard is older than the constitution of the united
states and its existence was well known to the founders and incorporated into the constitution. our next speaker is mike noyes, colonel mike noyes, he is the chief of the office of complex and administrative investigations for the national guard bureau. he came in through the maryland national guard initially as an infantry officer. in november 1995 he was appointed maryland's active guard and reserve, active guard component judge advocate and subseque subsequently from the law division for the ngb. he'll talk about the complexity, the legal complexity involved in the operational employment of the national guard in the various capacity available under the law, state status, title 32 status and title 10. mike. >> thank you, paul. i first met -- can you hear me?
i first met paul in 2006 when the white house had passed word to the pentagon that the president was planning to announce a mission for the national guard on the southwest border so on mother's day i was summoned to the pentagon and the team -- mr. mchale was asda at the time. given that the white house was requiring the national guard to be in state status, not title 10 for this border mission. and the issues are -- the command and control issues and the status issues have been remarkably consistent throughout the years so what i'd like to focus on in this particular segment is i'd like to briefly discuss the militia concept and talk about some command and control issues, describe some of
the statutory bases by which the national guard in its various statuses can provide assistance to civil authorities and show you some information about the level of effort nationwide every year for the past 10 or 12 years. so if you would -- you can refer to the slides on the -- my right, your level. i won't address title 10 except to say when the national guard is placed on active duty they can employed just as any other active component member. so that all of -- for example, the restrictions apply to the flat guard when they are in their status as the national guard of the united states. when they are in other statuses there's a slightly different set of statutes that apply. now, first of all i'd like to briefly note the statutory
definition of the militia. if you can find it in section 311, which is quoted over there, and basically it's all able bodied males and it could use some updating because the language seems a little dated but does refer to all females members of the national guard. so that basically the federal concept of the militia is that it is everybody or virtually everybody in the body politic. one of the more recent discussions of the militia concept i found in the heller case, an individual second amendment case however there was some dicta in there discussing the militia in its collective sense and in there the supreme court stated that unlike armies and navies, the militia is assumed by article 1 to already be in existence, although the
militia consists of all able bodied men the federal one may consist of a subset of them so there is a distinction between organized militia and unorganized militia and the type of militia that i'm going to discuss today is the organized militia which is the national guard. and this particular distinction between organized and up organized militia is carried through into each state. under state law for example in maryland, where i'm a judge advocate in mail, as well, the maryland national guard, you can see that the state code defines the organized militia as the nonfederalized national guard which is a national guard in title 32 status, the inactive national guard which is basically folks that have not yet all the way transitioned out of the guard on a roster and can be recalled and then something called the maryland defense force which i have a slide about at the very end which is a
nonfederalized militia and then again in maryland, for example, abl able-bodied individuals which is everybody else that is not members of the previous organizations would be the unorganized militia. so what you have is basically you have two national guards, when brad was talking about the federal government response and it only happens after the state is exhausted the national guard is both. for example, i have a commission from the president of the united states and i have a commission from the dpofrer of maryland. so it's this dual status that makes the national guard a unique organization as well as a unique military force in the country. so that in -- on the left of that slide you can see where the organized militia is trained and appointed, et cetera, and has federal recognition, okay, but is governed by title 32 as far as command and control. i have a command and control chart in the next slide that
will explain this. when the national guard is on the right side of the slide, is in its national guard of the united states status is under the command and control of the president. so and the national guard members flip back and forth between these two statuses, depending on how their orders are cut, so basically if you -- one of the touchstone references is the perfitch case. basically it talked about the hat concept. you have your state militia hat, civilian hat, your federal hat and you can only wear one at a time. so that when you are, for example, i am on title 10 orders so i am -- virginia moved out of my title 32 status even though i still maintain it but it's basically inactive so the governor of maryland has no command and control over me.
the president does. since there's always an exception, all right, there is something called dual status which you may read about in connection with disasters with a dual status commander and that essentially is the president was given statutory authority to allow a member of the national guard to be placed on ache tiff duty without losing his or her state status and vice versa conversely can detail a member of the active component to duty with the national guard who can accept a commission in the national guard without losing his or her regular appointment. okay, but that is something that takes a secretary of defense approval, the president delegated that authority to the secretary of defense and it happens and it -- and we have a whole process set up for when that happens. but normally speaking those are individuals who are commanding in a unity of effort mode for a disaster response or for some other event like a national security event.
okay, so what we have is the command and control scheme currently is on this side you have the state, command and control on your title 32 which is the governor is in command through the adjutant begin to the ang. these dotted lines are coordination lines then the president through the secretary of defense and the ngb is not a command and control headquarters but a coordination element of d.o.d. and then you've got ngb over here. now, when you have and then didn't have room on that slide but for the combatant force, northern command and that, they are under the president's command and control so these are separate and distincts chains of command so that, for example, the president or the combatant commander cannot exert command and control over nonfederalized
forces. and vice versa any nonfederalized officer cannot exert command and control over federalized forces. when an individual is in dual status i'll show you how that works in a second here. okay. if you're in dual status, what happens is you still have your separate and distinct chains of command but you've got -- they centralize in one individual this, is one individual who has his placed on active duty or has remained on it and detailed to the guard who has also a commission in the state and we'll call this state b so that as a function of the commission in that state has authority over the national guard forces from that state. no other state because at present time there's no mechanism to become a member of more than one state national guard at a time. so we don't have regional command and control authority. we have command and control authority down to one state and
then from the president we have command and control authority through the dual status in his title 10 hat to federal forces and then if there are other states involved like a multistate operation, for example, and other, for example, in hurricane sandy, states sent their forces to other states to assist. the command and control over those forces still rests with the originating state and what i'm talking about' and control i'm talking about the tort to court-martial, relieve, promote, all that kind of stuff but as a unity of effort agreement, the forces that are sent from state a to state b agree to cooperate with state b and do what they want so, for example, the dual status commander can tell forces from outside the state, look, i want you to go to the west side of town and set up a water distribution point. you know, it's all a unity of effort type operation. okay. so that -- and so some of the
legal issues that arise in is, for example, i mentioned earlier possi comitatus does not apply to federalized guardsmen and title 10 -- if there is a civil disturbance and there is some kind of law enforcement action taken by the troops, then you have to make sure that the authority is originating out of this chain of command and not this chain of command. so, you know, for lawyers there are a number of issues that this raises just as far as separating the concepts and making sure that all of these concepts are applied in the right manner. so now what i'd like to do is talk about the level of effort that is presently being applied. okay, each one of those stars is three national guard facilities so the guard is very, very highly decentral travized roote
just about every community in the u.s. so physically proximate to any incident that could occur and as a result of that, every year the national guard keeps track of statistics. this is for fy 13 because we're not done with fy 14 but i'm sorry, okay, let me preface this by saying the charts -- the numbers that i'm going to show you have been rolled up because the national guard can provide assistance to state authorities this a couple of different ways, all right, you've got in title 32 as a primary purpose of the operation, in other words, the guard would be ordered to duty to provide a response to, for example, the oil spill, you know, the deepwater horizon or a hurricane. that would be the primary purpose of that operation. that's either through a statute, a pre-existing statute such as that that authorized the civil support teams or by the s. c def, secretary defense
authority. for title 32 the secretary of defense has to approve the use of the fat guard in title 32. the second category is as an incidental benefit to training or military operations. for example, if we have a truck company that needs training on how to drive trucks, it is -- it makes more sense if they're driving trucks that they can also, for example, haul goods and water or whatever to benefit perhaps a relief effort than to just take their empty trucks and drive around in circles on a military base and benefit nobody but themselves so a lot of assistance is provided as an incident to training or operations. and the distinction there is that it has to be a training operation. the primary purpose is training and the incidental purpose is the assistance. even though to the recipients of that assistance that may be everything in the world to them. but, again, for lawyers, you know, you have to carefully make
sure that it's captioned in the right terms because otherwise you run into fiscal issues when you're using training money for nontraining when you run into m for training purposes. then per state law, each state law is a little different. and normally speaking, the troops are using federal equipment. they are wearing a uniform, so it still says u.s. army, u.s. air force. but they are not federal actors and they have no federal status and there's complete control by the state chain of command. so that the federal, for example, regulations that bo would govern them, would not apply, to state active duty. so with that in mind, i want show to you some numbers which may astoirn you.state active du. so with that in mind, i want show to you some numbers which may astoirn you.
>> i apologize, but we are at the end of our time. if we can put a cap on it there and certainly be available for questions. ladies and gentlemen, your moderator's time skills state we are literally at end of our class. but i would ask, if i may, for those of you that can stay, afford her of the courtesy of at least five minutes of your time. then i'll ask the panel members, we have eaten up our q & a time, stay for questions and come forward if you have them. dawn is the staff judge advocate at u.s. air force academy. she has been a judge advocate for 21 years. she is an associate professor, assistant professor, associate, at the u.s. air force academy. and is also an ajunket at the general's school. up dawn is going to speak to you
about the emerging and important statute authorities as they relate to the domestic operational employment of drones. dawn? >> thank you so much. aep thank for your patience. here, i thought i had 10 minutes of fame and i've got 5. i'll speak quickly. so to tie this all together, we heard about the strategic overarching contingency and we heard about the d.u.d. role. we heard about one component of the d.u.d. and national guard. what i will focus on in particular is one particular asset that as mr. mahill said is controversial. uav, or what we call is rph, remotely pelleted aircraft. now why am i calling it that? is she calling them drones? now, i don't call them that
because in the military it is harassy to call them drones. in 2010 the air force formalized rp training and made rpa rated pilots, just leike the ones tha fly manned aircraft. and words matter. they are not actually unmanned. they are piloted by certified pilots. so that's important. what can rpas bring to flight for lack of a better term in a disaster response in i can tell that you they weren't used in sandy. but i can also tell you, because i was part of that effort wab that they were used during the california rim wildfires. it was pretty exciting because for that particular effort, fires were so persistent, so widespread, that putting a helicopters, manned up in those fires is extremely dangerous. not only that but the loitered
time for those manned aircraft was very minimal. where as rph can provide consistent coverage. what we are talking about is what we call iaa in the military which is incident, awareness and assessment. this was incredible. actually changed the entire battle rhythm of the firefighters in california. they could actually work through the night and through the day for the first time and it really helped put that fire for lack of a better term, in a box. so rpas are one of those assets that really have a unique role and also a great future, i think, in this particular area. now, i'm going to talk for a second about privacy and security, because i think when we talk rpas, that's the thing that jumps out at people. that's the biggest concern. okay, you are looking at the wildfire. what else are you looking at? what else are you videotaping up there? let's talk about that for a second. because what you need to
understand about rpas is that they are very high level approval authorities. and solis can be the the first to attest to this. unless you are train awning a military base, if you're out there training with something with an rpa, it will be set for approval. that's how high the approval level is to utilize one of these particular assets. the other thing you need to understand is not only do they have to be authorized, by the proper approval authority, they also have to of course comply with the law. and when i talk about the law here, i'm talking about in particular intelligence oversight, policies and procedures. and those derive out of executive order 12333 and the d.u.d. implemented that through 52-40.1-r. and la protects american citizens from being spied on,o o pro tekts privacy.
that's collection, retention, dissemination and oversight. and so the intelligence oversight policies this apply to all of these operations, even for something like california rim wildfire and iaa would apply via intelligence oversight policy. how are you collecting, where are you collecting, who is getting to see it. how longer you keeping it. where is it going. oh, and if you don't do any of that right, there is an oversight regime that goes up to congress and of course the president. that's the kind of protection that our employmenties, when we utilize these particular assets. i don't know if i've got like one minute left or what. i can take five more? okay, great. so that's my pitch on rpas. i think the great benefit is they can actually add to these kind of responses. but since i have five minutes, i
will talk those five minutes to talk very briefly about the merging legislation and how it could impact the ability to perform these operations with rpas. there's 86 bills on the floor last year. and in various states. 42 states havae introduced publc bills. i don't do public math but that more bills for each of them. normally these apply to law enforcement. what they tell you is when prohibit the collection of evidence or information with the use of ra. that's the general premise here. there is exceptions of course, the largest one with the warrant. another one that would be highly relevant to the arena would be with, in cases of imminent threat to life or imminent danger to property. that's a big one, too. the reason why i even mention
this at all, and i know some you out there heard my talk earlier at fundamentals account of terrorism symposium. the reason why it's important is because, you know, it has -- if these are passed, they could really have effects not only d.u.d. training, must my colleague here the national guard, and the guard has a number of these assets. so it's an interesting development in the law and how it will ult imately effect a whole myriad of operations. it is very much up in the air, but is something that i think is worth noting and continuing to explore, which i plan to do. so without further ado, i know i'm standing between you and lunch, and that's a very dangerous place to be. so thank you for your attention.
i hand it back over to mr. mchale. >> terrific grate mr. pressure. we've been granted a five-men ut reprieve. for those of you with personal commitments and must leave, please do so. i ask you to foile to the outsie so you don't block camera coverage. for those of you that can stay, you can stay five more minutes. we welcome questions. please come forward to the microphone, ask your question and direct it, if possible, towards a specific panel member. and we conclude, joe tells me, at 1:42:40. questions? >> good afternoon, thank you for your presentation. michael from raytheon. first bringing a broadband network to bring communication to state and locals, i don't know if you track that as part of your jobs. if you have, i'm kind of curious what you think the biggest
challenge might be for bringing interoperable communications that can with stand disasters to state, local and national net work. if you have no opinion, it's been nice talking to you. >> if i may, i will direct that to bob, then mike. bob, buzz he's got overall responsibility. mike, because you may or may not be familiar with the package of communications gear on that subject that the national guard has. bob? >> thanks. i'm not completely familiar with the issue. but i know that national guard in particular ntsbs have tremendous capability but you're talking beyond what dod does and to communities and local federal agencies that may be communicating that level. whether it is law ep forcement, fbi, or other communications. that i'm not familiar with, and i apologize for that.ep forceme,
fbi, or other communications. that i'm not familiar with, and i apologize for that.nep forcement, fbi, or other communications. that i'm not familiar with, and i apologize for that.bi, or oth. that i'm not familiar with, and i apologize for that. >> the national guard likes to communicate with the whole spectrum of responders. i know that our team has a hardware and software package that allows basically anybody to talk to anybody because whatever frequency, or mod lags, it can be shot out on a different channel, for example, so the different first responders and different agencies, it is transparent to them. they think they are talking it directly to each other. so that's really all i know about the system. but inner operable communications has been, i know there's been a lot of work done on that. because of the various incompatible systems that have been used. >> within the first few days of the response to hurricane katrina, one of the top five
unmet occur occurrences. the national guard went forward and put a 80-something packages of patches that happen to be produce bid this gentleman's company. where you can take a handheld motorola and a radio that might be used by the 8 2nd airborne or national guard, you patch it in through this company and that allows communication from a civilian first responders to a national guardsman or military personnel. there is also a ban designed by nav air where you can plug almost any radio into that system. and by patch it will convert that radio's communication in a way that's compatible with all other plat forms, even though they might be technically dissimilar. that was a lawyer's answer. >> i think it is called a gist. joint inner communications
system or something like that. >> after huh, the guard bought -- i was briefed on it by the secretary of defense, about 80 of these packages from this gentleman's company. there are others out there. it is quite remarkable. handheld motorola that a police officer might have on his belt, plug that into this patch. into this system, the original is atu 1,000. and can you communicate with all other systems on that patch. even though they might have completely different hardware on completely different systems. this gentleman. [ inaudible ] >> common wealth on northern marian island. i notice that mir anna islands and samoa haven't joined the compact. aside from communication, are there any other hurdles that would prevent them from joining?
>> i believe that the -- there are probably attorneys in the room that can answer better. and there is something that can prevent two territories from establishing mutual aid agreement. the nature after compact between states is what requires congressional approval. but i don't think there is anything to prevent territories from establishing arrangements or appropriate yit agreement. and from a practical objective of course. for states it is one thing because they are contiguous geographically. we are talking about moving things. i think where the territories are concerned, it is a different logistical challenge. potentially less useful.