SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2015, Issue No. 62
September 28, 2015

Secrecy News Blog: http://fas.org/blogs/secrecy/

DEFENSE SUPPORT OF CIVIL AUTHORITIES, UPDATED

Before the Department of Defense can use an unmanned aerial system within the United States for domestic operations such as search and rescue missions or disaster response, specific authorization from the Secretary of Defense is necessary.

However, if DoD wants to use a UAS to help control domestic civil disturbances (such as a riot or insurrection), then further authorization from the President of the United State is required.

The patchwork of legal authorities and requirements for domestic military missions is presented in a newly updated DoD manual on Defense Support of Civil Authorities (DSCA).

Military support to civil authorities may be prompted by a variety of natural disasters and emergencies, including wildfires, earthquakes, floods, chemical, biological, radiological, and nuclear accidents or attacks, and -- a new addition -- cyber incidents. But such domestic missions have their own peculiar characteristics.

"Operations conducted by the US military in the homeland and US territories are very different from operations conducted overseas," the DoD manual says, particularly since they are executed "under the authority and within the limitations of federal, state, and local laws."

In particular, "For fear of military encroachment on civil authority and domestic governance, the PCA [Posse Comitatus Act] and policy limit DOD support to LEA [Law Enforcement Agencies]," the manual says.

More specifically, "DOD directives prohibit interdicting vehicles, searches and seizures, arrest, and similar activities (e.g., apprehension, stop, and frisk). Furthermore, engaging in questioning potential witnesses; using force or threats to do so, except in self-defense or defense of others; collecting evidence; forensic testing; and surveillance or pursuit of individuals or vehicles is prohibited."

On the other hand, "the Insurrection Act permits the POTUS [President of the United States] to use armed forces under a limited set of specific circumstances and subject to certain limitations."

(The President has used the authority under the Insurrection Act twice in recent history. In September 1989 the President ordered federal troops to the US Virgin Islands to restore order in the aftermath of Hurricane Hugo. In April 1992 the President ordered federal troops to restore order in Los Angeles during riots following the Rodney King verdict.)

The updated manual includes a new appendix presenting a matrix of domestic military missions along with the relevant approval authority and policy guidance.

For the first time, the manual includes "cyberspace-related incidents" among the circumstances that may trigger military involvement in domestic matters.

"Large-scale cyber incidents may overwhelm government and private-sector resources by disrupting the internet and taxing critical infrastructure information systems. Complications from disruptions of this magnitude may threaten lives, property, the economy, and national security.... State and local networks operating in a disrupted or degraded environment may require DOD assistance."

See Multi-Service Tactics, Techniques, and Procedures for Defense Support of Civil Authorities (DSCA), Army, Marine Corps, Navy, Air Force, September 2015.

The authorized use of DoD unmanned aerial systems in domestic operations is described in "Guidance for the Domestic Use of Unmanned Aircraft Systems," Policy Memorandum 15-002, February 17, 2015:

HOLDING CONTRACTORS ACCOUNTABLE, AND MORE FROM CRS

When government contractors fail to fulfill a contract or engage in some form of misconduct, there are various ways to hold them legally accountable, a new report from the Congressional Research Service explains.

"This report provides an overview of selected legal mechanisms that the federal government could rely upon in holding contractors accountable for deficiencies in their performance under the contract, or for other misconduct. Not all of these mechanisms involve 'penalties' as that term is generally understood. In some cases, the controlling legal authority expressly provides that the government may take certain actions only to protect the government's interest, and 'not for purposes of punishment.' However, in all cases, the government's action represents a consequence of and response to the contractor's delinquencies, and could be perceived as punitive by the contractor or other parties."

"The report does not address prosecution of government contractors, although it is important to note that contractors could be subject to criminal penalties for misconduct related to contract performance or otherwise."

"Also, the discussion of the government's potential mechanisms for holding contractors accountable in this report should not be taken to mean that contractors and contractor employees are more likely to fail to perform or engage in misconduct than government employees. That is a separate debate, outside the scope of this report," CRS said. See Legal Mechanisms Whereby the Government Can Hold Contractors Accountable, September 23, 2015:

Other new and updated reports from the Congressional Research Service that were published last week -- but not publicly released -- include the following.

The FY2016 Continuing Resolution (H.J. Res 61), CRS Insight, September 23, 2015:

Economic Effects of the FY2014 Shutdown, CRS Insight, September 24, 2015:

Federal Support for Reproductive Health Services: Frequently Asked Questions, updated September 25, 2015:

Congressional Redistricting: Legal and Constitutional Issues, September 22, 2015:

DOT's Federal Pipeline Safety Program: Background and Key Issues for Congress, September 22, 2015:

Copyright Licensing in Music Distribution, Reproduction, and Public Performance, updated September 22, 2015:

The Help America Vote Act and Election Administration: Overview and Issues, updated September 22, 2015:

Legal Issues with Federal Labeling of Genetically Engineered Food: In Brief, updated September 22, 2015:

U.S. Trade in Services: Trends and Policy Issues, updated September 22, 2015:

A Framework for Understanding Health Insurance Consolidations, CRS Insight, September 22, 2015:

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated September 23, 2015:

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, updated September 23, 2015:

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, updated September 23, 2015:

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated September 22, 2015:

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated September 22, 2015:

Navy LX(R) Amphibious Ship Program: Background and Issues for Congress, updated September 22, 2015:

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated September 21, 2015:

A Shift in the International Security Environment: Potential Implications for Defense -- Issues for Congress, updated September 24, 2015:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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