A Framework for National Guard Employment in the Homeland

Paul Jara


The country’s active, reserve, and National Guard forces . . . must continue to enhance their ability to provide support to civil authorities, not only to help prevent terrorism but also to respond to and recover from man-made and natural disasters that do occur.
—Homeland Security Council
U.S. strategic guidance to the Department of Defense (DoD) and the National Guard presses both organizations to assume important supporting roles in the homeland. To this end, the DoD propagates doctrine that describes three distinct domestic missions: homeland security (HS), homeland defense (HD), and defense support to civil authorities (DSCA). The DoD’s doctrine relating to civil support clarifies that these “are distinct operations.” However, these doctrinal distinctions are primarily designed to inform DoD action in the homeland, particularly DSCA, and National Guard action in narrowly impractical federal missions. If the DoD and the Guard are to provide effective support to civil authorities, then doctrine will need to be improved to provide for National Guard action across a more diverse continuum of domestic action.
The National Guards are able to serve at the extremes of—and in the space between—purely federal and purely state action. Their dual nature complicates discrete treatment within the DoD’s doctrinal framework. DoD guidance describes the action of National Guards in the homeland in support of their governors and of DoD action via integration into domestic operations. The guidance does not adequately explain how the National Guard operates in the space between, apart from, or in cooperation with DoD action. This research examines the doctrinal and directive space between purely federal National Guard action in support of the DoD and purely state action accomplishing state matters.
National Guards operate within their states under the governors’ direction, can be activated in state active duty, and in this capacity, are funded from the state’s budget. The DoD operates at the request of lead federal agencies supporting states’ requests for assistance, and DoD forces are employed in accordance with DSCA regulations—from the federal budget. However, when National Guard forces from an unaffected state are employed in support of an affected state, the authorities, funding solutions, and federal and state demarcation become less clear. Hurricane response actions in 2017 demonstrate that senior emergency managers from the DoD and the National Guard are ill-equipped to adjudicate these doctrinal lines. The adjudication debate rested on a central question: Were the disasters a national concern and, therefore, a federal responsibility, or were the responses independent state matters? This then-unanswered question has implications for what doctrinal space National Guard forces should occupy.
Admittedly, it is the Guard’s ability to operate as either a federal or a state entity that makes this doctrine so difficult to define. DoD guidance is justifiably written to serve its own purpose and to describe how it operates in the domestic environment. References to the Guard, therefore, naturally focus on its integration into DoD activities rather than operations distinct from DoD activities. DoD guidance describes how the Guard integrates into DoD operations but fails to consider that the DoD normally integrates into operations in which the Guard has primacy—in support of state-led response and recovery. National Guard units are the primary military responders in domestic operations and emergencies. Nevertheless, DoD doctrine and directives remain largely silent in recognizing the Guard’s obvious leadership role in military homeland security roles.
Doctrinarians looking to discriminate between domestic mission spaces should look to precedent within homeland defense; large-scale, complex disasters; and national special security events (NSSEs). These situations serve to clarify the domestic actions of the DoD and the Guard and hint toward ways to improve existing military doctrine. HD missions are well described in domestic doctrine, and legislation, policy, and guidance all provide clear instruction for how the Guard should integrate into these activities. HD is well defined because its doctrine lays upon unambiguous legislation and policy derived from relatively recent modifications to Title 32 of the U.S. Code (U.S.C.). Similar clarity in Title 10 and Title 32 provide equally useful insight for National Guard counter-drug units and weapons of mass destruction–civil support teams. These federally funded, state-controlled teams regularly accomplish nationally significant HD and HS missions.
When Guard personnel responded to Hurricane Katrina, they did so through bottom-up engagement in keeping with the National Response Framework and under the authority and direction of their governors. At the same time, a state-to-federal conversation immediately sought to determine whether the emergency was a national or state concern. This federalism debate led to presidential disaster declarations that opened the doors to assistance from federal agencies including the Federal Emergency Management Agency and the DoD. Additionally, the assistant secretary of defense agreed to federally fund the state-controlled National Guard response as it accomplished homeland security missions. While the Katrina response is a good model for debating federalism and funding, the DoD immediately worked to ensure the results of this particular debate did not establish precedent. The changes it made to DSCA regulations aimed to clarify that the DoD could not afford to fund Guard disaster response and that DSCA would no longer be approved based on a governor’s request. The DoD’s current doctrine is built on the premise that missions like these are not authorized by law. From a financial perspective, the 2017 hurricane season was more devastating than the 2005 season that saw Katrina. A major earthquake associated with the New Madrid Seismic Zone would vastly eclipse either of these events, and effective response would hinge on proper Guard employment. Clearly, some policy action is required to bridge the practical reality that federally funded, state-controlled Guard personnel are critical enablers in large-scale, complex disasters with the legal reality of fiscal restrictions imposed on the DoD.
NSSEs point toward an established mode of adjudicating matters of scale, federalism, jurisdiction, and funding. When events like the Super Bowl exceed local capabilities or capacities, local executives have a mechanism for petition that attempts to adjudicate federal and state equities. Federal and state officials consider the size, federal participation, significance, size, location, duration of the event, media coverage, threat environment, and the availability of state or local resources. This conversation provides an objective model that could be duplicated or emulated for use in the same kind of federal–state conversations that differentiate Guard action in the homeland.
The DoD struggles to adjudicate the Guard’s dual nature. Its existing doctrine and directives do not anticipate Guard action in response to large-scale, complex disasters, and there is room for new, or clearer, directives describing how the Guard operates domestically outside DoD strictures. New guidance should adjudicate the jurisdictional space between HD and HS and provide a way to engage in a federalism discussion to differentiate disasters that are national matters from disasters that are state matters. State Guards engaged in state matters respond in state active duty and accomplish HS actions. For national matters, especially in the context of large-scale, complex disasters, new policy needs to more effectively guide the Guard in accomplishing federally funded, state-controlled HS. Ultimately, legislators need to look for improvements to Title 32 of the U.S. Code, which relates to Guard training, or to the language in Title 42, which relates to the Stafford Act. These improvements will serve as the foundation to improve guidance and remove legal and fiscal barriers to new DoD doctrine able to guide National Guard domestic action more effectively.

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