Dual-status military commanders raise questions

July 3, 2011

Posted by Matt Ehling

According to the Associated Press, the U.S. Northern Command (USNORTHCOM) is training select military commanders for possible “dual-status” domestic missions – commanding federal troops and state National Guard soldiers in simultaneous federal/state deployments.

This training regime arose in response to problems encountered by the U.S military during Hurricane Katrina, when thousands of its personnel were dispatched to the New Orleans area in a variety of capacities.

Legal background
The “dual-status commander” concept has also developed within the context of an involved legal framework that governs how military personnel may operate on U.S. soil.

Domestic military deployments of federal troops are governed by federal law, and are restricted in many instances. State-level deployments of National Guard soldiers are governed by state law.

Since the end of the Civil War, the Posse Comitatus Act has stood for the proposition that the U.S. military cannot – in most instances – operate in a law enforcement capacity within the United States. The Act makes exceptions for activities that are permitted by the Constitution, or by other federal statutes. The Posse Comitatus Act does not bind National Guard troops serving in their state (Title 32) capacity, but it does largely restrict their domestic activities while in federal (Title 10) service.

Due to the “gaps” in the Posse Comitatus Act, some laws do expressly allow for the domestic military deployment of federal troops. The Insurrection Act allows federal troops to suppress civil disorder in certain instances, with the consent of a state’s governor. In other scenarios, the Act allows the President to unilaterally deploy federal troops to restore order – but only when he has determined that the enforcement of federal laws within a state has become “impracticable.”

Under the Stafford Act, federal troops can be deployed in a relief capacity in the aftermath of a natural (or other) disaster. Before such deployments, a state governor has to make a disaster determination, and then formally request federal military assistance. Troops serving under Stafford Act authorities cannot operate in a law enforcement capacity.

In the days that followed Hurricane Katrina, the White House reportedly considered using the Insurrection Act to deploy federal troops to New Orleans, but ultimately passed on this option. Its legal authority to do so would have been tenuous given the facts of the situation. President Bush also apparently offered to place the Louisiana National Guard under federal command if Louisiana Governor Kathleen Blanco would allow it. On September 6, 2005, Governor Blanco formally rejected the President’s offer. Federal troops were ultimately deployed in a relief capacity only.

After Katrina, the White House advocated for changes to the Insurrection Act in order to allow the President to unilaterally deploy federal troops for “civil disturbance suppression” in a much wider set of circumstances. Congress passed such changes in 2007, but then revoked them in 2008.

The state of things
Since 2008, the legal basis for the deployment of federal military personnel has reverted to its Katrina-era state.

To those who advocate for a greater federal military role in disaster response, this legal landscape creates operational impediments. Such impediments, however, were at the heart of what spurred Congress to repeal its 2007 changes to the Insurrection Act. Senator Patrick Leahy – the major proponent of a return to the Insurrection Act’s original language – characterized those impediments as “constructive friction” that caused Presidents to employ the Act with “great caution” and “appropriate consultation.”

USNORTHCOM’s drive to create “dual-status commanders” seems to have arisen in traditional military fashion – as a way to address “lessons learned” in the field. In press reports and internal documents, various U.S. military officials have characterized the federal-state military operational relationship during Katrina as “chaotic.” The dual-status concept has been pitched as a solution to that operational discord.

During previous disaster scenarios, two parallel command structures – one federal and one state – were established, and both were coordinated through a joint task force (JTF). Under USNORTHCOM’s dual-status scenario, a single commander would guide federal troops and report directly to the President. Then, that same commander would also guide the actions of National Guard troops acting in state capacity, and would report directly to the state governor.

According to an article by Lisa Daniel of the Armed Forces Press Service, dual-status commanders would be culled from the ranks of the National Guard, the reserves, and active duty forces. However, a USNORTHCOM press release specifies that dual-status commanders would be sought from National Guard units, while active duty officers would serve these commanders in a “deputy” capacity.

The launch of the “dual-status commander” concept raises some basic questions. For instance – what is the intellectual framework that guides the training that such commanders receive? Does this framework have at its core traditional notions of civil-military separation and federalism as expressed through a bifurcated state-federal military structure? And under what (if any) legal authority could active duty federal deputies be put in charge of state National Guard troops serving in their Title 32 capacity?

We will soon be submitting FOIA requests to various DOD components that will seek answers to these questions.