Several questions have arisen over the past few days about whether the National Guard could be mobilized by the Oregon governor and sent to Harney County. So we have an answer in one place, here’s the link to the National Guard Bureau’s fact sheet. And here’s the actual fact sheet itself:
Understanding the Guard’s Duty Status*
Many events trigger responses across multiple jurisdictions and different levels of government. The National Guard is exceptionally suited for its Homeland Defense role due to its geographically disperse forces with links to local communities and ties to state and local governments. These relationships allow for rapid and integrated responses in times of emergency. Because of its unique dual constitutional authority, the National Guard serves to bridge the “zone of ambiguity” across State and Federal government boundaries.
The National Guard is the only United States military force that operates across both State and Federal responses, leveraging State Active Duty (SAD), Full-Time National Guard Duty (Title 32) and Active Duty (Title 10). While SAD, Title 32 and Title 10 are different statuses and roles, they provide mutually supporting capability.
In the 2010 National Defense Authorization Act, Congress passed legislation which partially eliminated mutual exclusivity with regard to Chain of Command, allowing specially designated National Guard officers to command forces in both Title 10 and Title 32 statuses – designated as a Dual Status Commanders.
State Active Duty (SAD)
The Governor can activate National Guard personnel to “State Active Duty” in response to natural or man-made disasters or Homeland Defense missions. SAD is based on State statue and policy as well as State funds. Soldiers and Airmen remain under the command and control of the Governor. A key aspect of this duty status is that the Posse Comitatus Act does not apply, giving National Guardsmen the ability to act in a law enforcement capacity within their home state or adjacent state if granted by that state’s Governor.
Title 32 Full-Time National Guard Duty
“Full-time National Guard Duty” means training or other duty, other than inactive duty, performed by a member of the National Guard. Title 32 allows the Governor, with the approval of the President or the Secretary of Defense, to order a member to duty for operational Homeland Defense activities in accordance with the following sections of U.S. Code (USC): 1. 32 USC 502 (f): This statue allows member of the National Guard to be ordered to full-time National Guard duty to perform operational activities. It was used for the Airport Security mission after 9/11 and also for Hurricane Katrina and Rita response effort. 2. 32 USC § 901: The term “Homeland Defense activity” means an activity undertaken for the military protection of the territory or domestic population of the U.S., or of infrastructure or other asset of the U.S. determined by the Secretary of Defense as being critical to national security and at risk of a threat or aggression against the U.S. 3. 32 USC § 902 – Homeland Defense activities: funds. (a) The Secretary of Defense may provide funds to a Governor to employ National Guard units or members to conduct Homeland Defense activities that the Secretary determines necessary and appropriate for participation by the National Guard or members. The key to this instance is that Federal Law provides the Governor with the ability to place a soldier in a full-time duty status under the command and control of the State but is directly funded with Federal dollars. Even though this duty status is authorized by Federal statue, this section is a statutory exception to the Posse Comitatus Act; the Governor may use the Guard in a law enforcement capacity while the chain of command rests in the State.
Title 10 Active-Duty
“Active duty” means full-time duty in the active military service of the U.S. Title 10. It allows the President to “federalize” the National Guard forces by ordering them to active duty in their reserve component status or by calling them into Federal service in their militia status in accordance with the following USC sections:
1. 10 USC § 12301 (d) – Voluntary Order to Active Duty: At any time, a member of the National Guard may be ordered to active duty voluntarily with his or her consent and the consent of the Governor. Understanding the Guard’s Duty Status
2. 10 USC § 12302 – Partial Mobilization: In time of national emergency declared by the President, the Secretary concerned may order any unit and any member to active duty for no more than 24 consecutive months.
3. 10 USC § 12304 – Presidential Selected Reserve Call Up: When the President determines that it is necessary to augment the active force or any operational mission, he may authorize the service secretaries to order any unit and any member to active duty for not more than 365 days.
4. 10 USC § 331 – Federal Aid to State Governors: Whenever an insurrection occurs in any State against its government, the President may, upon the request of its legislature or of its Governor, if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection. This section is a statutory exception to the Posse Comitatus Act.
5. 10 USC § 332 – Use of Militia and Armed Forces to Enforce Federal Authority: Whenever the President considers that unlawful obstructions, combinations, assemblages, or rebellion against the authority of the U.S., make it impractical to enforce the laws of the U.S. in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces as he considers necessary to enforce those laws or to suppress the rebellion. This section is a statutory exception to the Posse Comitatus Act.
6. 10 USC § 333 – Interference with State and Federal Law: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if it: a. So hinders the execution of the law of that State, and of the U.S. within the State, that any part or class of its people is deprived of a right, privilege, immunity or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail or refuse to protect that right, privilege, or immunity, or to give that protection; or b. Opposes or obstructs the execution of the laws of the U.S. or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
7. 10 USC § 12406 – Air and Army National Guard: Air and Army National Guard call into Federal service in case of invasion, rebellion or inability to execute Federal law with active forces.
Additional Laws and Authorities
Stafford Act (42 USC § 5121) – designed to bring an orderly and systemic means of federal natural disaster assistance for state and local governments in carrying out their responsibilities to aid citizens. Congress’ intention was to encourage states and localities to develop comprehensive disaster preparedness plans, prepare for better intergovernmental coordination in the face of a disaster, encourage the use of insurance coverage, and provide Federal assistance programs for losses due to a disaster. Posse Comitatus Act (18 USC § 1385)
* The table in Item #7 wouldn’t reproduce, so please click over to see that.
When can the Guard go in and arrest these guys peacefully like they did at Kent State?
@BGinCHI: Any time the governor says so. But not the feds.
@Mike J: I’m waiting for them to occupy an old jail and then we just let them. Maybe rename a ghost town in the desert Obamaland?
The Air National Guard is 24/7 active ready and can be launched into full war mode within 24 hours and have fighter wings in Europe within 48 hours. They fly every weekend and rarely does anyone willing miss duty. These are tip of the spear units that can top the regular Air Force in flight hours and missions flown on a monthly bases.
Some are even nuclear capable; all fighter units can handle bio/chem environments. An Air Guard unit even defends Washington.
@BGinCHI: You’re a damn genius the equal of Baud, maybe even. Get on your social media and make sure the Malheur Freedom Fighters and their supporters see that great idea.
Edit: could Obama use executive order to declare the visitor center a combo federal court and prison? Then set up a temporary courtroom building and bunkhouse near the visitor center for judge and jury, throw the Freedom Fighters a few bull horns and we are ready to go.
Why on earth would you want that??? That was a nightmare.
@MomSense: I hope that was snark. I assumed it was.
I just requested deletion because I missed the nym and thought it was a new commenter.
Good basic info I expect to have to restrain myself from muttering at the TV many times over the next week.
Does this not tangentially resemble much of what we (re)discovered when Sarah Palin sought Nat’l Security cred by being “in command” of the National Guard back in 2008 and “keepin’ an eye on Putin’s incoming jet”?
It wouldn’t be the first time; a group of Native American activists occupied Alcatraz.
“It wouldn’t be the first time; a group of Native American activists occupied Alcatraz.”
That groups was more competent, they at least had the wits to formulate specific demands before they occupied, IIRC.
FYI The Oregonian said that law enforcement is going to have an update at 3 p.m.
So it sounds like the governor could potentially make National Guardsmen available to back up law enforcement in this situation.
This family anecdote may help explain what I’m envisioning: my teenage nephew with ADHD and bipolar was sent to a therapeutic boarding school for kids with psychiatric issues (a REAL school, not one of those bullshit “basic training” places that just abuse kids). They basically had a team of therapists on staff that would enforce the rules. The kids could argue as long as they wanted, because as soon as one therapist was off the clock, another one would come on duty and continue to enforce the exact same rule.
If you have two groups involved in a siege, and one side has easy access to food, water, and rotating relief and reinforcements while the other one does not, there’s only one way for that siege to end as long as the stronger side doesn’t get impatient and try to rush things.
I presume the deployment of the national guard to post-riots Los Angeles was under the rubric of State Active Duty. Notwithstanding that regular Army and Marine units were also deployed to south Los Angeles…
Our occupiers today have a specific objective, and that is to get the press to report every little piece of nonsense they say every day and to keep themselves in the news as often as possible. This is a publicity stunt. Having nebulous non-demands is part of this strategy. Frankly I’m surprised they don’t just tell the press their objectives cannot be given due to “operational security,” since the press seems to be completely happy to report this without comment or analysis (whose security?) whenever they say it.
Villago Delenda Est
@Mnemosyne: Yup. The only catch is maintaining the larger side in place for as long as it takes. You could always rotate forces in and out who are maintaining the siege, of course, which is even more advantageous, as those besieged have no such option.
Trailer Daesh is hoping to provoke the siege force into firing first. Not giving them that makes it more likely that the Yeehadis will, though a combination of demoralization and exhaustion, try to force the issue. The besiegers have no interest in that. All they have to do is maintain the siege and wait. It’s not like those besieged are holding up operations elsewhere through their efforts, which might be a reason to storm them.
@JPL: The update was brief. The sheriff said that the Hammonds’ reported to jail today. What started off as a peaceful protest, was turned into overtaking of the refuge by a few. He then asked them to leave the refuge and go home to their families. No mention of rotting in jail.
Villago Delenda Est
@sigaba: Our MSM is easily manipulated by just about anyone as they are utter slaves to ratings, whatever attracts eyeballs. That is their sole raison d’etre now.
They’re not going to call up the National Guard to take down 15 guys with a Thule trailer. Besides, that wouldn’t give us what we really want, seeing these guys groveling and begging, wrapped in blankies and drinking cocoa in the back seat of a paddy wagon. Their crime is pride, and all people really want is to see them taken down a notch and being made to eat their “Sovereign Citizenship.”
I don’t think we’re ever going to get that, President Cool has sorta made a career out of winning liberals victories while simultaneously denying them any kind of moral satisfaction seeing their vanquished foes suffer.
In best Fred Rogers voice:
Can ya say “Posse Comitatus” ?
I thought you could.
Given that white butthurt is the fuel which powers the modern GOP, denying oxygen to it is probably a prudent tactic in the long run. The question liberals need to ask themselves here is whether we want our policies to win or to feel like winners? Trump makes conservatives feel like winners, but he’s not helping the GOP advance policy in any way. Let’s not sign onto that plan.
@Villago Delenda Est: “Our MSM is easily manipulated by just about anyone as they are utter slaves to ratings, whatever attracts eyeballs. That is their sole raison d’etre now.”
It’s not manipulation, and it’s not eyeballs. For example, they could have gotten massive ratings from honestly covering any number of corrupt police departments. They could put pictures of the victims onscreen, show the (almost always) career criminal history of the officers involved, and then show clips of corrupt, slimy prosecutors who are clearly trying to protect the guilty.
 I’ve seen at least one study which showed that it’s a rare thing indeed for an officer to get into major (deserved) trouble without having a long history of lesser offences – just like for street criminals.
According to 10 USC 311, all able-bodied male citizens between the ages of 17 and 45 are members of the “unorganized militia”. So the governor could declare martial law, activate the unorganized militia and order the occupiers to disperse themselves…
Well it makes as much sense as anything else about this situation.
Exactly freekin correct.
Why give Gomer and Goober and their dozen friends the prestige of a mobilization? Right now this is an ant hill. No need to make it a mountain.
Ridiculous. This is three guys and a dog holing up in one building. You don’t need the National Guard for that, all you need is some cops and a pizza. When the dufoids get hungry enough, just open the pizza box and place a fan behind it to waft the smell into the bird sanctuary.
The Other Bob
Could Obama just declare the lands a sanctuary for gays, lesbians and liberal-commies and watch them run home?
a different chris
Discussions about the legal nuances of activating the Nat’l Guard are kinda pointless when nobody seems particularly interested in even arresting the morons when they are out and about. Do criminals now get a pass just because they might be dangerous?
What’s the current situation down at the Freeloader Ranch? Did all the law enforcement just leave, and everybody was given a pass on what happened two years ago? Is old man Bundy still grazing cattle on Federal land? Did anybody ever pay the outstanding fees? Any charges filed, arrest warrants issued? Anything?
@Cermet: I’ve seen the fighter jets flying out of PDX.
Amanda in the South Bay
@Doug R: They always do that, because their mission is continental air defense.