d. Emergency (the Constitution exceptions).
In an emergency, the federal
government may act to "prevent loss of life or wanton destruction of property" or
to "restore governmental functioning and public order."
Such a situation might
exist "when sudden and unexpected civil disturbances, disasters, or calamities
seriously endanger life and property, and disrupt normal governmental functions so
much that duly constituted local authorities are unable to control the situation."
A similar situation would exist when "prompt and vigorous federal action" is
necessary for the "protection of federal property and functions...when (a) the need
for protecting exists (and) (b) duly constituted local authorities are unable to
provide adequate protection." (AR 500-50, paragraph 2-4.)
Remember, the protection of life and property and the maintenance of order
within the territorial jurisdiction of a state are "the primary responsibilities of
state and local civil governments. Federal armed forces are used only after state
and local civil authorities have utilized all of their own forces which are
reasonably available for use, and are unable to control the situation, or when the
situation is beyond the capabilities of state or local civil authorities."
500-50, paragraph 1-3a.)
This emergency exception applies, then, "in cases of sudden and unexpected
invasion or civil disturbance, including civil disturbances incident to earthquake,
fire, flood, or other public calamity endangering life or federal property or
disrupting federal functions or the normal process of government, or other
Also, if the situation is "so imminent as to make it
dangerous to await instructions from the Department of the Army requested through
the most expeditious means of communication available", then the local commander
may act "before the receipt of instructions." (AR 500-50, paragraph 2-4a.) Note,
however, that "in view of the availability of rapid communications capabilities, it
is unlikely that actions under this authority would be justified without prior
Department of the Army approval while communications facilities are operating."
When such emergency action is taken, persons not subject to military law
who are taken into custody "will be transferred, as soon as possible, to the civil
e. Statutory exceptions (10 USC Sections 331-334). There are several federal
statutes "which permit the commitment of federal forces to restore order in
conditions of civil disturbance, including terrorism...
Congress has enacted
legislation providing that the President may, upon request of a state legislature,
or its governor if the legislature cannot be convened, use such of the armed forces
as he consider necessary to suppress the insurrection." (DA Pam 27-21, paragraph
3-8.) This is very similar to the constitutional exception we just looked at, and
reflects similar interests.
An example of this is 10 USC Section 331, which states: "Whenever there is
an insurrection in any state against its government, the President may, upon
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