Colonel Dawn M.K. Zoldi, 70 Air Force Law Rev. 1 (2013)
I. INTRODUCTION
More than ten years of war in the combat zones of Iraq and Afghanistan have taught a generation of Total Force Airmen valuable lessons about the use of Remotely Piloted Aircraft (RPA) 1 and other Intelligence, Surveillance and Reconnaissance (ISR) assets. The lesson yet to be learned, however, is that this battle space experience is not directly applicable to operations in the United States (U.S.). 2 As the nation winds down these wars, and United States Air Force (USAF) RPA and ISR assets become available to support other combatant commands or U.S. agencies, the appetite to use them in the domestic environment to collect airborne imagery continues to grow, as does Congressional 3 and media interest 4 in their employment. Commanders, operators, intelligence and legal professionals must understand the limited circumstances in which USAF RPAs and ISR assets may be used to collect, process, view, analyze, retain and distribute domestic imagery (DI) consistent with Intelligence Oversight (IO) rules, 5 the Posse Comitatus Act (PCA) and other laws and policies. 6 Although numerous directives, instructions, regulations and policies exist relevant to the most common airborne DI requests in the U.S., determining which guidance actually applies and who can approve a particular mission remains a challenge in some cases. The purpose of this article is to review existing rules and present a comprehensive analytical framework to guide practitioners in obtaining the appropriate level of approval for typical airborne DI requests. 7
II. THE LEGAL LANDSCAPE
As a general proposition, the Department of Defense (DoD) cannot domestically collect information on non-DoD affiliated individually identifiable U.S. persons (USPER) or organizations using airborne DI or otherwise unless some very specific conditions are met. Yet, at the same time, the DoD has a wide range of national security responsibilities which may require DI collection. The DoD needs to train using DI for combat proficiency, including for combat search and rescue operations. At any given time, and without warning, the DoD may be called upon to give support to civil authorities with DI during crisis situations ranging from hurricanes, to lost hikers, to acts of domestic terrorism. Commanders at local units may need to use DI to protect the people, facilities and equipment under their charge. These examples of potential DI needs are but a few. Given this broad spectrum of operational requirements, the DoD has issued a host of policies and rules that govern this sensitive area. The challenge is to determine which rules apply and when. This is an important determination because the rules designate whether DoD can participate in the mission, whether DoD participation requires a request from an outside agency, which agencies can make the request (and at what level), what DoD capabilities, if any, can be utilized, who can approve DoD participation in the mission and under what constraints. Capability does not equal authority.
The rules applicable to DoD collection of airborne DI are codified in terms of the capability to be used, the mission to be accomplished, or as a combination of both. Below is an overview of the current legal landscape to provide the baseline understanding necessary to analyze a DI request.
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3. Remotely Piloted Aircraft (RPAs)
In September 2006, the DepSecDef issued a Memorandum, Interim Guidance for the Domestic Use of Unmanned Aircraft Systems, which still remains in effect. 28 According to this memo, DoD RPA operations "shall not conduct surveillance on specifically identified U.S. persons, unless expressly approved by the Secretary of Defense, consistent with U.S. law and regulations." AFI 14-104, reiterates this requirement verbatim. 29
SecDef approval for RPA use is also required for specific missions, including Defense Support to Civil Authorities (DSCA), Military Support of Civilian Law Enforcement Agencies (LEA), Counter-Drug (CD) Operations and National Guard use of DoD RPAs for governor-requested state missions. For training purposes, use of RPAs "outside of DoD-controlled airspace," requires notification to the Chairman of the Joint Chiefs of Staff (CJCS). 30 These missions, including training, will be further discussed below in the Mission Focused Guidance section.
B. Mission Focused Guidance
The mission sometimes lends itself to using airborne assets, whether IC/ICC, Non-IC/ICC or RPA, to acquire DI for a particular purpose. The DoD and the USAF have mission focused regulations that commanders, operators, intelligence professionals, judge advocates and paralegals must consult, in conjunction with the capability focused rules addressed above, to determine applicable approval authorities, procedures, and other guidance. A brief discussion of the relevant directives, instructions, regulations and policies for the most common airborne DI missions in the U.S. follows.
1. Defense Support to Civil Authorities (DSCA)
A request from civil authorities for DoD assistance, or independent authorization from SecDef or the President of the United States (POTUS), triggers DSCA. 31 DoDD 3025.18, Defense Support to Civil Authorities (DSCA), governs DoD's provision of temporary support to U.S. civilian agencies for "domestic emergencies, law enforcement support, and other domestic activities, or from qualifying entities for special events." 32 The USAF has further implemented DoDD 3025.18 through AFI 10-801, Defense Support to Civil Authorities. 33
The typical approval process for DCSA involves a Request for Forces or Assets from a civilian agency to the DoD Executive Secretary. This request goes up to SecDef, then down to the Joint Staff's Joint Director of Military Support (JDOMS), who sends it to the appropriate Combatant Command as well as to the Services, who then provide the people, equipment or other capabilities needed. For USAF assets or forces, JDOMs will send this request to the Headquarters Air Force, who will likely send it to Air Combat Command (ACC) 34 for the sourcing solution. 35 However, the SecDef has delegated seven specific authorities to the Commanders U.S. Northern Command (CDRUSNORTHCOM) and U.S. Pacific Command (CDRUSPACOM) in the Chairman of the Joint Chiefs of Staff (CJCS) Standing DSCA Execute Order (EXORD). 36 Once SecDef validates the mission from the primary agency in charge of the incident (e.g., Federal Emergency Management Agency or FEMA), USNORTHCOM and USPACOM can provide Incident Awareness and Assessment 37 for:
. situational awareness
. damage assessment
. evacuation monitoring
. Search and Rescue
. Chemical, Biological, Radiological, Nuclear and Enhanced Conventional Weapons (CBRNE) assessment
. hydrographic survey
. dynamic ground coordination.
Of note, the DSCA EXORD permits USNORTHCOM and USPACOM to request traditional IC/ICC resources to conduct DSCA missions. SecDef approval authorizes the use of IC/ICC capabilities for non-intelligence purposes. However, these missions must be conducted in accordance with IO requirements, including DoDD 5240.01-R. 38
SecDef has also delegated approval authority for several DSCA events to the Assistant Secretary of Defense for Homeland Defense and America's Security Affairs (ASD(HD&ASA), with the following exceptions: assistance to respond to CBRNE events and civil disturbances, assistance to law enforcement, responding with assets "with the potential for lethality," and any time USAF equipment will be operated under the command and control of civilian authorities. 39
DSCA normally requires high levels of approval, but when time does not permit the type of coordination discussed above, under "imminently serious conditions," and upon civilian authority request, local commanders may exercise Immediate Response Authority "to save lives, prevent human suffering or mitigate great property damage." 40 Absent higher headquarter direction, the local commander should reassess his or her position at least every 72 hours and terminate the response when the necessity giving rise to it no longer exists. 41 Commanders also have "Emergency Authority" to quell civil disturbances, which will be discussed further below in the section on Military Assistance to Civil Disturbances. 42
The DoD Directive on DSCA does not address particular assets or capabilities, with the exception of RPAs. Thus, in this limited manner, the DSCA regulation is both capability and mission focused. It states:
No DoD unmanned aircraft system (UAS) will be used for DSCA operations, including support to Federal, State, local, and tribal government organizations, unless expressly approved by the Secretary of Defense. Use of armed UAS for DSCA operations is not authorized. 43
Defense support to civilian law enforcement agencies (LEA) and civil search and rescue (SAR) are forms of DSCA. 44 Discussion follows on the additional regulations and policies that apply to each.
2. Support to Law Enforcement Activities (LEA)
DoD support to Law Enforcement Activities (LEA) is limited by law, including the Posse Comitatus Act, and policy, for fear of military encroachment on civil authority and domestic governance. DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, provides guidance on the sharing of information collected during military operations, the use of military equipment and facilities, training with LEA, funding and reporting mechanisms for such support. 45 Among other activities, Search and Rescue (SAR), Explosive Ordinance Disposal (EOD), domestic terrorist incident support and Civil Disturbance Operations (CDO) are specifically authorized. 46 The directive also addresses training with LEA in great detail. 47
Restrictions on DoD support to LEA include many prohibitions including interdicting vehicles, searches and seizures, arrest and similar activities (apprehension, stop and frisk), as well as engaging in questioning of potential witnesses, using force or threats to do so except in self-defense of defense of others, collecting evidence, forensic testing and surveillance or pursuit of individuals or vehicles. 48
The LEA directive, like the DSCA directive, addresses not only the support to LEA mission, but also use of specific capabilities for that purpose. While the directive generally applies to all DoD assets and capabilities (non-ICs/ICCs), it specifically requires that LEA requests for DoD IC/ICC assistance be processed pursuant to DoDD 5240.1 and DoD 5240.1-R and subject to SecDef approval. 49 While the LEA directive does not directly address use of RPAs, the DSCA directive does and requires SecDef approval. 50