JP 3-28, page 33

Overview I-11 5. All Hazards Scope of Defense Support of Civil Authorities The homeland is confronted by a full spectrum of threats and hazards. Some can be difficult to categorize as either a traditional military threat requiring only a DOD response capability or a purely law enforcement threat requiring a nonmilitary response from DHS, the Department of Justice (DOJ), or other civilian agency. The characterization of a particular threat may ultimately rest with the President. Other threats (e.g., civil disorder) may be characterized by individual governors. 6. Legal and Policy Considerations a. Legal Considerations. The legal authorities governing the employment of US military forces in DSCA operations include federal and affected state laws and several directives, making a comprehensive legal review of DSCA plans essential. (1) Commanders should allow for the application of military capabilities and resources within the constraints of the law. Accordingly, commanders should seek legal advice regarding DSCA plans, policies, and operations from their staff judge advocates to ensure compliance with legal requirements. This may require prior education and training of assigned staff judge advocate personnel in operational functions and processes. (2) The NG provides requested military response to domestic emergencies. The early employment of the NG is often in state active duty status at the direction of the governor and the command of the adjutant general (TAG). The NG could also be employed in Title 32, USC, status or Title 10, USC, status, both of which require SecDef approval. (3) There are advantages associated with employment of the NG in either state active duty or Title 32, USC, status. Most notable is the ability to assist law enforcement as the Posse Comitatus Act (PCA) does not apply to Title 32, USC, or state active duty forces. To support operational continuity, most, if not all, NG forces supporting a response will remain in state active duty or Title 32, USC, status throughout an event. The military response to events that require DSCA will be a coordinated effort between the NG in state active duty or Title 32, USC, status and Titles 10 and 14, USC, USCG forces. When federal military forces and the NG are employed simultaneously in support of civil authorities in the US, appointment of a commissioned officer as a dual-status commander (DSC) serving as commander of federal forces by federal authorities and as commander of state NG forces by state authorities should be the usual and customary C2 arrangement. b. Policy Considerations. Military commanders, executing validated missions, should use DOD resources judiciously while conducting DSCA operations by adhering to the validation criteria of cost, appropriateness, risk, readiness, legality and lethality as discussed in DODD 3025.18, Defense Support of Civil Authorities (DSCA). Some supporting principles include: (1) DOD resources are provided only when response or recovery requirements are beyond the capabilities of local, state, and federal civil authorities and when they are requested by an LFA and approved by SecDef. An exception to this is in the case of immediate response authority. When requested by civil authorities, and when time does