The Role of the National Guard in Disaster Response and Critical Infrastructure Protection

Maeve Dion, Legal Research Associate. Email.
January 2007.

[NOTE: this article was published in the CIP Report (PDF) Jan. 2007].

Last year, the media widely covered a dispute between state governors and the federal government regarding the President’s authority to transfer National Guard members into federal status. However, less openly discussed was a general apprehension regarding the relatively undefined role of the National Guard in protecting critical infrastructure. This article summarizes these issues and presents various questions for debate.

The 2007 Defense Authorization Act

During the summer of 2006, governors expressed concerns regarding National Guard provisions in pending federal Defense Authorization legislation. As originally drafted, some of these provisions expanded the President’s authority to call up Reserve members (including federalizing the National Guard) into active duty for the purpose of responding to natural or manmade disasters or emergencies. These troops would shift from Title 32 status (under state governors’ control) to Chapter 10 status (federalized).

There are many pieces of existing legislation that define when the President may federalize the National Guard, but in most circumstances the President does so only with the request or consent of the governors. However, under certain provisions, like the Insurrection Act, the President may call troops into active duty without such consent.

There are some limitations to this power, though. For example, under pre-2006 law, the President (1) could not call up Reserve members into active duty to perform functions authorized by the Insurrection Act; and (2) could not call up Reserve members into active duty to respond to “a serious natural or manmade disaster, accident, or catastrophe,” except in cases of threats or emergencies involving weapons of mass destruction (WMD) or terrorist attacks.

In the Defense Authorization legislation drafted last year, both the House and Senate bills loosened these limitations to varying degrees. In the post-Katrina environment, the Congress wanted to make sure that the President’s authority could reach the Reserve components in response to a natural disaster, or in response to an Insurrection that resulted from the lawlessness following a natural disaster.

However, the state governors feared that if these provisions survived conference, the governors would lose flexibility in allocating state National Guard resources. Thus, during the conference of the House and Senate bills, the governors actively lobbied Congress to remove the provisions. At the same time, the Department of Defense insisted that maintaining its Total Force structure in the current post-9/11 military climate required Presidential authority to call up Reserves in support of both military missions and military responses to emergencies.

In deference to the concerns of the governors and the DoD, the Congress compromised, and with the final, conferenced, John Warner National Defense Authorization Act for Fiscal Year 2007, the President has authority to call up the Reserve forces in support of military missions -- (1) Title 15 missions (Insurrections); (2) missions to put down invasion or rebellion, or if the President is otherwise unable “with the regular forces to execute the laws of the United States;” and (3) responses to emergencies involving a use or threatened use of a WMD, or a “terrorist attack or threatened terrorist attack in the United States that results, or could result, in significant loss of life or property.”

The 2007 Defense Authorization Act revised the Insurrection Act (10 U.S.C. § 333) -- renaming it Major Public Emergencies; Interference with State and Federal Law­, and openly acknowledging that, as long as the traditional (unchanged) legal requirements of the Insurrection Act were met, the President could invoke this authority even if the lawless situation resulted from an event or condition that may not comfortably fit the term “insurrection” (e.g., natural disaster, epidemic, terrorist attack, or other condition in which domestic violence has occurred to such an extent that the state authorities can no longer maintain public order).

Therefore, with this new legislation, Congress removed the prior limitation on the Presidential authority to call up Reserve members into active duty to perform functions authorized by 10 U.S.C. § 333 (the former “Insurrection Act”). However, Congress retained the limitation that the President may not call up Reserve members into active duty to respond to disasters except in cases of threats or emergencies involving WMD or terrorist attacks. However, if a disaster (non-WMD and non-terrorism related) resulted in such lawlessness that the high legal threshold for invoking 10 U.S.C. § 333 was met (and this legal requirement was unchanged by the new legislation), then the President may call up Reserve members into active duty in response.

National Guard and CIP

While the 2007 Defense Authorization Act was still in conference, the CIP Program was asked to provide legal and policy analysis to advisors of some state governors. These discussions and analysis raised National Guard issues beyond the scope of the legislation. A review of the various federal policy statements, plans, and strategies provided only limited insight, and the governors have been occasionally frustrated in not receiving clearly defined, coordinated answers from the federal agencies.

During domestic incidents, the DoD Secretary “shall retain command of military forces providing civil support.” The DoD prefers to operate under the traditional, three-tier approach: (1) the DoD (as ordered by the President or DoD Secretary) provides support to local / Federal law enforcement; (2) the National Guard (as ordered by the state governor), performs homeland defense and homeland security activities; and (3) the US military (as ordered by the President or DoD Secretary) intercepts threats.

According to the DoD, certain authorities “under Title 32 of US Code -- and the National Guard’s on-going transformation -- provide Governors and state authorities with the authority to use flexible, responsive National Guard units for a limited period to perform homeland defense activities, when approved by the Secretary of Defense. For example, National Guard forces may, when the Secretary of Defense determines that doing so is both necessary and appropriate, provide security for critical infrastructure and support civilian law enforcement agencies in responding to terrorist acts.”

With its “Total Force” approach, the DoD recognized that one of the “most promising areas for employment of the National Guard and Reserve forces ... [is] Critical Infrastructure Protection, including the performance of comprehensive assessments of critical infrastructure sites and utilization of Reserve component forces for quick reaction requirements, when sufficiently trained and resourced, and local security at key defense and non-defense critical infrastructure sites, when directed.”

During discussions of the 2007 Defense Authorization Act, the governors posed this hypothetical: In the event of a declared emergency / catastrophic incident, a governor does not want to lose his ability to prioritize and allocate his resources, particularly the state National Guard. The governor’s priority is to use National Guard troops to help with broken levees along a major river. However, the DoD deems its priority to be assignment of troops to guard certain critical infrastructure located in the state. Who has final decision-making authority in using the National Guard?

The answers to this hypothetical depend on many factors, including which critical infrastructure assets the DoD wants guarded.

While the Department of Homeland Security is the Lead Agency for prevention, preparation, and response relating to domestic disasters and emergencies, the DoD is explicitly authorized to implement plans to protect the “defense industrial base,” and the DoD is the lead agency for “homeland defense,” which includes “defense critical infrastructure.”

There is yet no clear definition as to precisely what portions of the Critical Infrastructure / Key Resources (CI/KR) fit into the these terms, or as to how much of the supply chain falls within the definitions.

In the National Strategy for the Physical Protection of Critical Infrastructures and Key Assets (White House, 2003), the defense industrial base is broadly defined as the “DoD and the private sector defense industry that supports it” (e.g., manufacturers of military equipment, materials, and weaponry; utilities that service military installations; etc.). The DoD defines the defense industrial base as “a worldwide industrial complex with capabilities to perform research and development and design, produce, and maintain military weapons systems, subsystems, components, or parts to meet military requirements.”

In its Strategy for Homeland Defense and Civil Support (2005), the DoD defines defense critical infrastructure as “DoD and non- DoD cyber and physical assets and associated infrastructure essential to project and support military forces worldwide. ... [D]efense critical infrastructure could also include selected civil and commercial infrastructures that provide the power, communications, transportation, and other utilities that military forces and DoD support organizations rely on to meet their operational needs.” The DoD noted that protection of “critical defense assets [that] are located at public or private sites beyond the direct control of DoD ... must be assured on a priority basis.”

The DoD has said that the President or DoD Secretary “might direct US military forces to protect non- DoD assets of national significance that are so vital to the nation that their incapacitation could have a debilitating effect on the security of the United States.” This situation is envisioned “where the nature of the threat exceeds the capabilities of an asset owner and civilian law enforcement is insufficient.”

In light of these definitions and statements, several questions remain:

1. How broadly should “defense critical infrastructure” and “defense industrial base” be defined?

2. What are the non-defense CI/KR “of national significance” such that the President or DoD Secretary may order U.S. military forces (and National Guard) to protect them?

3. What is the role of the National Guard in protecting defense CI/KR and non-defense CI/KR? May a state governor use National Guard troops (in Title 32 status, not federalized) to perform homeland defense activities without the approval of the DoD Secretary (this question may merely relate to whether approval is needed only in the case of using Federal funding, or may be a deeper concern)? What kind of activities fall into the “homeland defense activities” category? When should the National Guard move from state to Federal status in order to provide “homeland defense” (without domestic law enforcement capabilities) under the DoD?

4. How is such protection and planning coordinated among the state governors, DoD, DHS, and President?

As federal agencies in D.C. are actively attempting to define their roles and interrelationships (CIP, homeland defense, homeland security, etc.), the states are reaching out for similar levels of communication. As seen by the governors’ active response to the draft National Guard provisions in the 2007 Defense Authorization Act, the states are an integral part of this kind of planning.

The questions posed in this article, and many more, are thus up for debate not only between the federal agencies but also between the states and federal government. Some of the answers and definitions are fluid, and criticality of an asset may depend on the circumstances. However, emergency preparedness requires a certain level of common understanding and categorization so that, for example, a governor may plan for the prioritization and allocation of state resources -- including the National Guard. Yet if the governor’s plan conflicts with the DoD’s priorities, and the conflict is not discovered until the emergency is already occurring, not only is the state response plan unexpectedly skewed, but the emergency situation may be worsened as a result.