Protecting security and privacy: an analytical framework for airborne domestic imagery.
I. INTRODUCTION II. THE LEGAL LANDSCAPE A. Capability Focused Guidance 1. Intelligence Components / Intelligence Component Capabilities (ICs/ICCs) 2. Non-Intelligence Components / Non-Intelligence Component Capabilities (Non-IC/ICCs) 3. Remotely Piloted Aircraft (RPAs) B. Mission Focused Guidance. 1. Defense Support to Civil Authorities (DSCA) 2. Support to Law Enforcement Activities (LEA) 3. Civil Search and Rescue (SAR) 4. Force Protection (FP) 5. Civil Disturbance Operations (CDO) 6. Counter-Drug (CD) Missions 7. Training and Exercises 8. Other Authorized DoD Missions III. THE PROPOSED ANALYTICAL FRAMEWORK A. The Threshold Question--IC or ICC? 1. IC Defined 2. ICC--The "5 Ps" Test B. Step Two--Determine the Mission 1. DSCA 2. Search and Rescue (SAR) 3. Support to Law Enforcement Agencies (LEA) 4. Force Protection (FP) 5. Civil Disturbance Operations (CDO) 6. Counter-Drug (CD) Missions 7. Training 8. Other Authorized DoD Missions C. The Framework Applied 1. The Facts. 2. The Analysis 3. The Key Take-Aways IV. CONCLUSION.
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 (10) 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.
A. Capability Focused Guidance
The capability focused guidance can be sub-divided into three types: (1) intelligence capabilities; (2) non-intelligence capabilities and (3) RPAs. (8) Executive Order (EO) 12333, United States Intelligence Activities, as amended, and its implementing directives and instructions guide intelligence capabilities' collection, specifically collection by Intelligence Components (IC), and by policy extension, Intelligence Component Capabilities' (ICC), on USPER. (9) DoDD 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense, applies to non-ICC/ICs collecting information on persons and organizations that are not affiliated with the DoD. In addition, RPAs have their own special rules. These are discussed, in turn, below.
1. Intelligence Components / Intelligence Component Capabilities (ICs/ICCs)
Executive Order (EO) 12333 provides the framework for ICs to conduct intelligence activities, with such activities defined narrowly as countering foreign threats. The goal of the EO, and consequently Intelligence Oversight (10) in general, is to balance the need for effective intelligence against the "protection of constitutional rights." (10) For this reason, the EO provides strict procedural guidelines for collecting, retaining and disseminating information on USPER.
Under the EO, ICs are only directly authorized to conduct intelligence activities, defined as, "all activities that elements of the IC are authorized to conduct pursuant to this Order." (11) DoDD 5240.01, DoD Intelligence Activities, further refines this definition as "the collection, analysis, production and dissemination of foreign intelligence and counter-intelligence (FI/CI) pursuant to EO 12333 and DoDD 5143.01, Undersecretary of Defense for Intelligence." (12)
Whether through DI or otherwise, when conducting an authorized mission, ICs/ICCs can only collect information on USPER that:
-- is obtained with the individual's consent
-- is publicly available
-- constitutes foreign intelligence or counter intelligence (FI/CI)
-- concerns potential intelligence sources or agents
-- is needed to protect intelligence sources or methods
-- is related to threats to or to protect the physical security of IC-affiliated persons, installations
-- is needed to protect intelligence and CI methods, sources, activities from disclosure
-- is required for personnel security or communications security investigations
-- is obtained during the course of a lawful FI/CI or international narcotics or terrorism investigation
-- is necessary for administrative purposes
-- is acquired by overhead reconnaissance not directed at USPER and is incidentally obtained that may indicate involving in activities that may violate Federal, state, local or foreign laws. (13)
The approval authority for ICs/ICCs to collect permissible USPER information varies depending on any special collection procedures to be used. (14) For example, in non-emergent situations, electronic surveillance, referred to as a "Procedure 5," may only be conducted pursuant to a warrant under the Foreign Intelligence Surveillance Act of 1978 (FISA). Only the Secretary of Defense (SecDef), Deputy Secretary of Defense (DepSecDef), the Secretary of the Air Force (SecAF) or the Director of the National Security Agency (NSA) can submit a request for a FISA warrant for this purpose. (15)
A DoD IC's failure to follow these stringent procedures or otherwise engage in "questionable activity" which may violate the law, any EO, Presidential directive or applicable DoD policy triggers special notification, investigation and reporting requirements to the highest levels of the U.S. government. (16)
By its terms, the EO and its implementing directives apply to elements of the "Intelligence Community." (17) However, DoD 5240.01-R, Procedures Governing the Activities of DoD Intel Components that Affect U.S. Persons, broadens application of 10 to non-intelligence organizations, staffs or offices being used for CI and FI. (18) Similarly, AFI 14-104, Oversight of Intelligence Activities, applies 10 to "nonintelligence organizations that perform intelligence-related activities (e.g., Eagle Vision units) (19) that could collect, analyze, process, retain or disseminate information on U.S. persons," including commanders of such units (emphasis added). (20) The National Guard has adopted a similar application of the IO rules to personnel conducting intelligence activities. (21)
While the AFI does not define "intelligence-related activities," presumably such activities would be similar to an IC's collection activities using interoperable and compatible intelligence systems, databases and procedures. (22) Thus, while performing intelligence-related activities, the 10 rules would apply to ICCs as well as to ICs. The AFI also adds the requirement for a Proper Use Memorandum (PUM) signed at the major command (MAJCOM) (23) level, to define DI requirements, parameters of use and compliance with legal and policy restrictions. (24)
Although not directly codified in the DoDD 5240.01 or DoD 5240.01-R, Procedures Governing the Activities of DoD Intel Components that Affect U.S. Persons, the common understanding of IO practitioners is that because ICs/ICCs are only specifically authorized to conduct CI and FI, any other activity or mission requires SecDef approval, with limited exceptions. (25)
2. Non-Intelligence Components / Non-Intelligence Component Capabilities (Non-IC/ICCs)
DoDD 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense, limits non-ICs/ICCs acquisition of information on non-DoD affiliated U.S. citizens to three situations: (1) to protect DoD functions and property (hereinafter referred to as "force protection"); (2) to conduct personnel security investigations and (3) to conduct operations to assist civil authorities during civil disturbances. (26) With the exception of personnel security, these will be further discussed below in the Mission Focused Guidance section. (27)
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 10 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)
3. Civil Search and Rescue (SAR)
Civil Search and Rescue (SAR) also constitutes a form of DSCA. (51) It is DoD policy to support civil SAR "to the full extent practicable on a non-interference basis." (52) In fact, DoD personnel are specifically authorized to take actions to provide SAR support domestically under the authorities in the National Search and Rescue Plan. (53)
DoDI 3003.01, DoD Support to Civil Search and Rescue (SAR) designates the Commander, USNORTHCOM as the U.S. Inland SAR Coordinator for the Search and Rescue Regions (SRR) that correspond to the 48 contiguous States and CDRUSPACOM, for mainland Alaska. (54) The USAF is the recognized SAR Coordinator for the U.S. aeronautical SRR corresponding to the continental U.S. other than Alaska and in support of that mission, operates the Air Force Rescue Coordination Center (AFRCC) at Tyndall Air Force Base, Florida, to coordinate the conduct of civil SAR operations in those inland SRRs. (55)
When a distress call is received, the AFRCC coordinates with various agencies, including DoD, and requests SAR support. (56) As a practical matter, the AFRCC will directly coordinate at the local unit or wing level and will presume the commander who agrees to have forces respond has the authority to conduct the proposed response with the assets at his or her disposal. Frequently, the commander will respond under Immediate Response Authority, given the nature of the distress call. (57) The DoD SAR directive does not elaborate on such required approvals. However, because inland SAR is considered a form of DSCA, DoDD 3025.18, Defense Support to Civil Authorities and AF1 10-801, Defense Support to Civil Authorities, also apply. As discussed above in the DSCA section, RPA use for DSCA, including SAR, requires SecDef approval. SAR is also one of the seven delegated authorities in the Standing DSCA EXORD. Therefore, USNORTHCOM and USPACOM may use 1C/ICC capabilities for SAR upon SecDef approval. Finally, for civil SAR missions not involving RPA or IC/ICCs, USNORTHCOM and USPACOM authorities, or Immediate Response Authority, ASD(HA&ASA) is the approval authority.
4. Force Protection (FP)
FP is a host-unit commander's responsibility and includes "actions taken to prevent or mitigate hostile actions against DoD personnel ... resources, facilities and critical information." (58) Intelligence, including that gleaned from airborne DI, directly supports FP. (59)
Several different regulations address the FP mission, but none directly address the role of airborne DI in support of it. Rather, they discuss the role of intelligence in anticipating and planning against threats and highlight the importance of complying with 10 rules in the domestic environment. (60) AFI 14-119, Intelligence Support to Force Protection, provides detailed guidance relating to the role of Force Protection Intelligence (FPI) personnel specifically assigned to support FP through a range of activities, including training, mission planning and threat analysis. (61) In addition to intelligence personnel directly tasked to assist with FP, the regulations anticipate that ICs/ICCs may incidentally collect threat information relating to USPER during routine intelligence activities. Both AFI 14-119 and AFI 14-104 indicate that ICs/ICCs who incidentally receive information identifying a USPER as a threat during their routine intelligence activities must pass the information to appropriate authorities, in particular the Air Force Office of Special Investigations. (62)
For non-ICs/ICCs, DoDD 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense, controls and specifically limits the acquisition of information on non-DoD affiliated persons and organizations in support of FP. Whether acquired through DI or otherwise, the directive circumscribes collecting such information for purposes of protection from the activities below:
-- subversion of loyalty, discipline, or morale of DoD military and civilian personnel by encouraging violation of law, disobedience of orders, or disruption of military activities;
-- theft of arms, ammunition, or equipment or destruction or sabotage of DoD facilities, equipment, or records; acts jeopardizing security of DoD elements or operations or compromising classified information by disclosure or espionage;
-- unauthorized demonstrations on DoD installations; direct threats to DoD military or civilian personnel in connection with their official duties or to other persons who have been authorized protection by DoD resources;
-- activities endangering facilities that have classified defense contracts or officially designated as "key defense facilities;" and crimes for which DoD has responsibility for investigating and prosecuting. (63)
None of the regulations that address FP discuss RPAs.
5. Civil Disturbance Operations (CDO)
CDO involves the employment of U.S. military forces to control sudden and unexpected civil disturbances when local authorities are unable or decline to control the situation. The term, "civil disturbances" means, "group acts of violence or disorder prejudicial to public law and order." (64) The significant CDO policy concerns include the primacy of civilian authorities and the use of military force against U.S. citizens in the domestic context.
The authority for CDO derives from the Insurrection Act, which vests decision-making authority in the POTUS. (65) Under DoD policy, military forces shall not be used for CDO unless specifically authorized by the POTUS, except in emergency circumstances. Commanders can provide military assistance using this Emergency Response Authority, "in extraordinary emergency circumstances were prior authorization by the POTUS is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:
(1) Such activities are necessary to prevent loss of life or wanton destruction of property or to restore governmental functioning and public order or
(2) When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal Governmental functions." (66)
6. Counter-Drug (CD) Missions
Counter-drug (CD) missions are not considered to be a form of DSCA. (67) CD operations consist of either Detection and Monitoring (D&M) or Aerial Reconnaissance missions (AR) in support of any other federal department or agency or any State, local, tribal, or foreign law enforcement agency for counterdrug purposes. (68)
CJCSI 3710.01B, DoD Counterdrug Support vests CD approval authority in the Geographic Combatant Commanders (GCCs) of USNORTHCOM, U.S. Southern Command (USSOUTHCOM), and USPACOM, for specific activities within their respective areas of responsibility; otherwise SecDef is the approval authority. (69) SecDef has, however, delegated his authority to the Under Secretary of Defense (Policy)(USD(P)) and the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict (ASD(SOLIC)). (70) The GCCs can conduct CD missions with the exception of: targeting and tracking vehicles, buildings, persons in the U.S.; providing coordinates to LEAs that is not continuation of a D&M mission; or tracing drug air/surface traffic outside 25 miles inside U.S. territory. (71) These all require USD(P) or ASD(SOLIC) approval.
The CD CJCSI addresses not just the mission, but also specific assets and capabilities, including RPAs, that can be used in support of that mission. GCCs can approve RPA use as well as use of non-RPA and non-IC/ICC platforms for AR but must first determine whether Title 32 National Guard forces can accomplish the mission. (72) For IC/ICCs, if the CD mission equates to CI/FI, Procedure 12 of DoD 5240.1-R, and 10 rules, will apply. (73) If the mission is not CI/FI, DoDD 5525.5 will apply and SecDef approval will be required. (74)
7. Training and Exercises
The ability of a Service to train and exercise is derived from the Service Secretaries' organize, train and equip (OT&E) authorities. (75) For this reason, it is commonly understood that within DoD airspace, local unit commanders have wide latitude in conducting training for and with their forces and assets. (76)
AFI 14-104 directly addresses DI in a training context for both non-ICs/ ICCs and RPAs:
9.6. Navigational/Target Training activities.
9.6.1. Air Force units with weapon system video and tactical ISR capabilities may collect imagery during formal and continuation training missions as long as the collected imagery is not for the purpose of obtaining information about specific US persons or private property. Collected imagery may incidentally include US persons or private property without consent. Imagery may not be collected for the purpose of gathering any specific information about a U.S. person or private entity, without consent, nor may be stored imagery be retrievable by reference to US person identifiers. (Added by author: Non IC/ICC)
9.6.2. Air Force Unmanned Aircraft System (UAS) operations, exercise and training missions will not conduct nonconsensual surveillance on specifically identified US persons, unless expressly approved by the Secretary of Defense, consistent with US law and regulations. Civil law enforcement agencies, such as the US Customs and Border Patrol (CBP), Federal Bureau of Investigations (FBI), US Immigration and Customs Enforcement (ICE), and the US Coast Guard, will control any such data collected. (Added by authority: RPA)
The 2006 DepSecDef Memo titled, "Interim Guidance for the Domestic Use of Unmanned Aircraft Systems," also addresses RPA training:
Domestic Exercises and Training
In order to ensure strict observance of executive orders and U.S. law, use of DoD UAS assets in domestic exercises and training requires notification to the Chairman of the Joint Chiefs of Staff if collection systems will be operated outside of DoD-controlled airspace. (77)
This guidance reveals two key facts: (1) non-ICCs / non-RPAs can train outside of DoD airspace and view civilian objects for training purposes if in compliance with AFI 14-10478 and (2) RPA training within DoD airspace is permissible under OT&E authority, and training outside of DoD controlled airspace requires CJCS notification.
With regard to the latter, notifications for RPA training with DI outside of DoD airspace should be sent up to the CJCS through normal chain of command processes, from the Wing, to the Numbered Air Force, to the MAJCOM, to the Service headquarters. (79) Common sense also dictates that the notification should include sufficient information on the activity or event to allow deciding officials to make an informed judgment on its propriety. ACC's Operations Center's Dynamic/ Immediate ISR/Non-Traditional ISR Request (DIIR) Format (8-line Request) For U.S. Missions and Off-Installation Training is a practice worth emulating, particularly in the absence of other guidance. (80) Ide ally, a PUM and, if applicable, an FAA Certificate of Authorization would accompany the 8-line, and all of this would be sent through operations channels with sufficient time to account for approvals at all levels. (81)
Approval authority for training with ICs/ICCs outside of DoD controlled airspace remains uncodified. Some argue that since training is not CI/FI, then SecDef approval would be required except when conducted within DoD airspace under command OT&E authority. Some posit that ICCs train for CI and FI, which is their mission, and should be able to do so without SecDef approval. (82) Still others believe that such training would require approval from a Service Secretary. (83) In the absence of clear guidance, the best approach is to coordinate such training with HHQ, who can determine if SecDef approval is required.
In addition to special requirements that apply "outside of DoD controlled airspace," airborne assets used for training in conjunction with ground forces "off federal real property" also have unique approval authorities and notification procedures based on the risk associated with the event. DoDI 1322.28, Realistic Military Training (RMT) Off Federal Real Property, requires commanders to work closely with their civilian community partners, the media, and keep HHQ closely apprised of RMT events. (84)
As mentioned in the Support to LEA section above, training with airborne assets could occur with LEA. In fact, it is DoD Policy that the military take the needs of civilian LEA be taken into account in the planning and execution of military training or operations. (85)
8. Other Authorized DoD Missions
There are many possible missions besides those noted above, in support of which a commander may desire to use airborne DI capabilities or assets. For example, in support of a major incident resulting in claims against the government, such as a large-scale fire that bums down civilian homes after an aircraft accident, a commander might want to have a full motion video of the damage. Air Force Instruction 51-502, Personnel and Government Recovery Claims, authorizes the investigation of such an event, but does not speak directly to aerial photography or video, other than to generally encourage collecting photos or video to adjudicate the claim. (86) This is but one example of other foreseeable uses of aerial DI in support of legitimate USAF missions and objectives, other than those outlined above. (87) Approval authorities in these scenarios will be fact dependent.
III. THE PROPOSED ANALYTICAL FRAMEWORK
The discussion above illustrates the large quantity of directives, instructions, regulations and policies that exist relevant to the most common airborne DI requests. Which rules apply remains a challenge in some cases because the guidance is codified in terms of capability or asset to be used, the mission to be accomplished, or as a combination of both.
Whereas Section II discussed the baseline capability and mission focused rules, this next section provides the framework to navigate this labyrinth of guidance and determine the appropriate levels of mission approval, restrictions, mandatory notifications, and other key operational requirements. For example, can the local base commander support a request from local police request to fly his RPA to locate a lost civilian hiker? Can an USAF MC-12 (88) unit train by viewing imagery in an in an urban environment off-installation without higher approval? Can a local commander, on his own authority, use an RPA to get a clear picture for force protection when an active shooter is taking shots at the base gate? All of these scenarios are feasible. Despite the volume of guidance available, the answers to the questions posed are not always readily apparent. Who can approve a particular mission and what constraints apply often depends on both what kind of capability will be used (IC/ ICC, Non-RPA/Non-ICC or RPA) and the type of mission to be accomplished (e.g., training, DSCA, CI/FI, civil SAR, FP, etc.).
The suggested approach is to first determine which capability is to be used (IC/ICC, RPA, Non RPA/Non-IC-ICC) and then look to the specific mission (training, CD, LEA support, CI/FI etc.). This approach, boiled down to its core is: who wants to do what and how do they want to do it? Because the rules for ICs/ICCs are so well defined, a good starting point is to ask whether or not the capability desired to be used is an IC or ICC. If the answer is yes, then, for the most part, unless the activity is CI/FI, SecDef approval will be required and the 10 rules will likely apply. (89) If the capability is not an IC/ICC, then practitioners should look to the regulations that relate directly to the proposed mission. Some of these mission-focused regulations contain capability focused guidance. Where they do not, cross-referencing the mission and capability focused guidance will be critical. A thorough discussion of this proposed framework and an illustrative application follows.
A. The Threshold Question--IC or ICC?
The first question to answer is whether or not the capability to be used is an IC or ICC. This is because if the asset or activity is conducted by or with an IC/ ICC, and the mission is not CI/FI, then generally speaking, SecDef approval will be required. This is a relatively simple construct which, at first blush, appears easy to apply. It is not. ICs are well-defined. ICCs lack a codified definition.
1. IC Defined
EO 12333 and its implementing regulations spell out with clarity whether or not something constitutes an IC. In the USAF, the IC consists of its intelligence and CI elements including the AF Deputy Chief of Staff, Intelligence, Surveillance and Reconnaissance, the CI units of the Air Force Office of Special Investigations, the Air Force Intelligence Analysis Agency; and "other organizations, staffs, and offices when used for foreign intelligence (FI) or CI to which EO 12333 applies." (90)
The more difficult issue is determining whether or not an asset or activity is being conducted by or with an ICC.
2. ICC--The "5 Ps" Test
To determine whether an asset is an ICC or whether a non-IC asset is being used as an ICC, for the past twenty years, intelligence law practitioners have been using the "5 Ps" test: People, Pipes, Process, Platforms, and Purpose. (91)
* With regard to "people," the first question to review is: what is the mission of the unit at the time of the activity? Is it an intelligence unit, a training unit, an operational unit, or a different kind of unit altogether?
* When analyzing the "pipes," one must ask: are IC systems being used to collect, retain or disseminate the product? For example, are the products placed on a J2/A2 portal? Do they use an intelligence systems backbone, such as Joint Worldwide Intelligence Communications System, to provide products to clients?
* Regarding "process," where is the information going? Is an IC or its personnel being used to process, analyze, or create products from the data collected?
* When looking at "platforms," determine whether the platform is owned and / or operated by an intelligence unit. If it is not, consider whether or not a non-intelligence platform is being used for intelligence gathering.
* Finally, one must look at the "purpose" of the activity. Is it to gather intelligence? Is it to train? Is it a mission in support of civil authorities?
The answers to the "5P Test" must be viewed holistically, in the context of the time and place of the activity and with the additional overlay of funding (in other words, what funding is used for the people, pipes, processes, platforms?) The reason this test is so critical is that not everything that is in the air that "looks at things" is an intelligence asset, nor is such activity always an intelligence activity or intelligence function. By way of illustration, some might suggest RPAs are, by definition, an intelligence asset. However, RPAs may not always be performing an intelligence activity for purposes of 10 rules. (92) The best argument in favor of this proposition is the fact that many of the mission-specific regulations discussed above, such as the DSCA regulation, contain special rules for RPAs. If they were universally considered ICCs, providing this clarification would not have been necessary.
With limited exceptions, ICs/ICCs can only perform CI/FI without SecDef approval--all other IC/ICC activities require SecDef approval. (93) Thus, whether or not an asset or activity is being conducted by or with an IC or ICC is the threshold question for an airborne DI approval authority determination. (94)
B. Step Two--Determine the Mission
If not an IC/ICC, then the next step would be to review the mission focused regulations and policies to determine what they say regarding approval authority, for a particular capability. Imagine if you will, a Matrix, with each mission outlined in down a column, with a row for each potential asset or capability (IC/ICC, RPA, Non-RPA/Non-lC).
The DSCA directive clearly states that using an RPA for a DSCA mission requires SecDef approval. Likewise, for non-RPA and non-ICs/ICCs, SecDef or ASD(HA&ASA) is the approval authority with limited exceptions: (1) USNORTHCOM or USPACOM CDR is the approval authority when there is a validated Mission Assignment from SecDef and the activity falls within the seven delegated authorities under the Standing DSCA EXORD; or (2) the local unit commander is the approval authority for Immediate Response. (95)
2. Search and Rescue (SAR)
As civil SAR is a form of DSC A, use of RPAs in support of such a mission requires SecDef approval. (96) Because the USAF AFRCC is the designated SAR Coordinator for the conduct of civil SAR operations in those inland SRRs, requests for civil SAR normally flow through them. As mentioned, the AFRCC will directly coordinate with the host unit for asset availability and presume the local unit has authority and approvals where appropriate. Those approvals, for non-RPA and non-IC/ICCs will track the DSCA regulation requirements. Generally, Immediate Response Authority will apply. Otherwise, ASD(HA&ASA) or SecDef approves the mission. SAR is also one of the seven delegated approval authorities for the USNORTHCOM or USPACOM CDRs under the Standing DSCA EXORD. In summary, if not a designated COCOM mission or an incident giving rise to Immediate Response Authority, either ASD(HA&ASA) or SecDef approval would be required for a local unit to use almost any type of asset in support of civil SAR. (97)
3. Support to Law Enforcement Agencies (LEA)
Non CI/FI support to LEA is also a form of DSCA. For this reason, use of most DoD assets, including RPA, in support of LEA will require SecDef approval. (98) Limited exceptions include SecAF approval, in coordination with ASD (HD&ASA), for DoD personnel to provide training or expert advice; DoD personnel for equipment maintenance; DoD personnel to monitor and communicate the movement of air and sea traffic. Practitioners must carefully consult DoDI 3025.21 for special restrictions and requirements in this area.
4. Force Protection (FP)
Intelligence supports FP and the regulations for ICs/ICCs permit direct support (e.g., "Procedure 12" of DoD 5240.1 -R) as well as the ability to pass USPER information incidentally acquired to law enforcement.
For non-ICs/ICCs, DoDD 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense, controls and specifically limits the acquisition of information pertaining to non-DoD persons and organizations in support of FP, as discussed at length above.
No special guidance exists on use of RPAs for FP, so analysis will require extrapolation from other guidance. Host unit commanders have wide latitude for FP within DoD-controlled airspace and presumably have the authority to use RPA assets in support of FP in that area. However, using RPAs to collect DI outside of DoD-controlled airspace should cause further reflection. DSCA, by definition, occurs off-base and as such, provides a reasonable approach from which to analogize. As use of RPAs for DSCA requires SecDef approval, local commanders should seek to use other assets first and if RPAs are necessary, should seek SecDef approval for FP that uses DI outside of DoD-controlled airspace, in addition to other necessary coordination and approvals. (99) If time does not permit coordination with SecDef, and RPAs are used to collect DI for FP outside of DoD-controlled airspace without prior approval, it has been suggested that, after-the-fact, the local unit commander should submit a DoD 5240.1-R Procedure 15 Questionable Intelligence Activity (QIA) report that: 1) explains why the commander made such a decision (immediate threat to life, limb, mission, government property, etc); 2) articulates how he or she had determined that local civilian LEA elements could not meet the threat requirement (timeliness, capability, etc) or prior approval was not possible; and 3) describe in detail the intelligence or other information that was collected during the mission, particularly anything that could be considered USPER information, and how it was being retained and / or disseminated; and 4) any recommendations for any changes to policy, procedures or training that might be required to better deal with such a situation in the future. (99) This conservative approach presumes that an RPA is an intelligence capability or was used as one in a FP scenario. It is also not codified.
5. Civil Disturbance Operations (CDO)
Regardless of the asset to be used, authority to use military assets and forces to quell civil disturbances rests at the POTUS-level with one limited exception, when a host unit commander invokes Emergency Response authority. As discussed above, Emergency Response is limited to extraordinary emergency circumstances where prior authorization by the POTUS is impossible and duly constituted local authorities are unable to maintain control. (101)
6. Counter-Drug (CD) Missions
The applicable directives and policies permit GCCs to use RPAs and non-RPAs / non-ICCs for CD missions except to target and track vehicles, buildings, persons in the U.S., to provide coordinates to LEAs that is not continuation of D&M mission, or for drug air/surface traffic outside 25 miles inside U.S. territory. GCCS are also permitted to conduct aerial reconnaissance missions. SecDef has delegated his approval authority for all other CD ops to USD(P) and ASD(SOLIC), with the exception of using ICs/ICCs for non-CI/FI CD ops. (102) Using Title 32 forces for these missions is a DoD priority. (103) The take-away for local unit commanders is that they will not conduct CD missions except through a valid COCOM or Headquarters Air Force tasking, the latter through the MAJCOM. (104)
Within DoD-controlled airspace, pursuant to OT&E authority, local unit commanders have wide latitude in acquiring DI for training with virtually any asset, whether IC/ICC, RPA or non-ICC/non-RPA. (105) ICs/ICCs training outside of DoD controlled airspace require, at a minimum, discussion with the MAJCOM, as approval authority to do so is not codified. RPA training that involves acquiring DI outside of DoD airspace requires CJCS notification. (106) 107 Non-ICs / ICCs can train outside of DoD airspace and view civilian objects for training purposes in compliance with AFI 14-104. (107) Aviation assets used in conjunction with ground forces who are operating "off federal real property" also have special approval authorities and notification requirements, depending on the risk level of the event. (108) Finally, military planners should take TEA needs into consideration for any training or operation. (109)
8. Other Authorized DoD Missions
Approval authorities in situations other than those delineated above will be fact-dependent. Use of an IC/ICC capability for something other than CI or FI would require SecDef approval. Using other assets remains uncodified. As in the case of other situations that lack specific guidance, we turn to existing guidance by analogy. It may be safe to assume given the special guidance relating to RPAs in current regulations, that, as a matter of policy, using an RPAto collect DI outside of DoD-controlled airspace for an authorized DoD mission other than those discussed above, would require SecDef approval. As a general matter, the approval authority to use a non-IC/ICC or RPA outside DoD airspace is less clear, but arguably more permissive. (110)
C. The Framework Applied
To illustrate how the proposed framework applies, consider the following hypothetical situation.
1. The Facts.
In MC-12 Initial Qualification Training, non-intelligence personnel are trained on sensor operations to enable them to track terrorists during combat operations. As part of the training, the trainees acquire full motion video, but this video only feeds into a mock training Operations Center during the flight, is retained for classroom use (DoD only audience) for 24 hours and is then deleted. The airframe used is not a real MC-12, but rather a civilian mock-up with a sensor ball commercially purchased with operations (not intelligence) funding. During training "missions," the planes fly primarily on the military base, but can turn their sensor ball to areas outside of DoD controlled airspace and property. Adjacent to the base, civilian-inhabited areas in the sensor range include a local trailer home park, a public park and two state highways.
During one particular training sortie, as the trainees are uneventfully tracking a pre-positioned DoD vehicle on the base's training range, they are told by their military instructors to divert their sensors to a particular house in a trailer park and watch a particular individual at his car and as he entered the house. The crew does this, monitors the situation and reports what they see back to their military instructors at the training Operations Center. Their report includes that the individual appeared to take a small package out of the back seat and bring it into the house. The trainees next see the local police arrive and arrest the individual.
Behind-the-scenes, the local police had called the training instructors, given their great relationship, and asked them to use the training mission to assist them in a drug bust. The instructors agreed and directed the students to provide them information, which they, in turn, fed back to the local police.
2. The Analysis.
The first question to answer is whether or not the activity in this case, an operational training sortie by non-intelligence personnel in a mock-up MC-12 with a commercial sensor, constitutes activity of an IC. In the USAF, the IC consists of its intelligence and CI elements including the AF Deputy Chief of Staff, Intelligence, Surveillance and Reconnaissance, the CI units of the Air Force Office of Special Investigations, the Air Force Intelligence Analysis Agency; and "other organizations, staffs, and offices when used for foreign intelligence (FI) or CI to which EO 12333 applies." (111) Because the trainees and equipment were not part of these offices and agencies, they are not part of the IC.
The next issue is to determine whether or the MC-12 mock-up asset under these circumstances constitutes either an ICC or a non-IC asset used as an ICC, using the "5 Ps" Test: People, Pipes, Process, Platforms, and Purpose. (112)
With regards to People, the mission of the unit at the time of the activity was a training unit. The people involved were non-intelligence personnel.
The Pipes, in this case were not IC systems. No IC systems were used to collect, retain or disseminate the full motion video. The information flowed through a system purchased with operational funds.
The Process involved streaming information live into a training Operations Center and holding it only 24 hours for training purposes for a DoD audience. No IC or IC personnel were used to process, analyze, or create products from the data collected. However, military training instructors verbally disseminated the information to civil authorities when they relayed what they saw on the video to the local police.
The Platform was not owned or operated by an intelligence unit. As mentioned, a training unit was involved in this scenario. However, in this case, it appears that a non-intelligence platform (the MC-12 mock up with commercial sensor) was used for intelligence gathering. Specifically, the training crew targeted what appears to have been a USPER with their sensor and reported information on his activities back to the training Operations Center, who in turn, provided the information to local law enforcement.
Initially, the Purpose of the activity was to train future MC-12 sensor operators to perform a combat ISR function, which, by definition is a combined intelligence and operational function. However, when the military instructors directed the trainees to point their sensor at a USPER, monitor and report back on his activities, the purpose of the mission changed from one of training qua training to intelligence gathering. Despite the training value in this monitoring activity, once the information gathered was passed to and in support of civil authorities, it became an intelligence activity.
Holistically, in the context of the time and place of the activity, the MC-12 mock up with commercial sensor and operational training crew constituted a non-IC asset used as an ICC.
With limited exceptions, ICs/ICCs can only perform CI/FI without SecDef approval; all other activities require SecDef approval." (113) DoDD 3025.21, DoD Support of Civilian Law Enforcement Agencies, provides the seminal guidance for DoD support to civilian law enforcement." (114) It also 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." (115) The military instructors in this case directed their trainees to take action for which they had no authority.
Under these facts, the local commander would have to report this incident as a questionable intelligence activity under DoD 5240.1- R (Procedure 15) and DTM 08-052, through channels, to ATSD(IO).
3. The Key Take-Aways
Hopefully, this application of the proposed framework also illustrates that it works as a reasonable means to approach domestic DI issues. Application of the framework should assist legal practitioners in advising commanders and operators to make informed judgments as to the proper approval authorities and constraints on action. In a perfect world, the analysis and concomitant discussions would occur well in advance of a proposed mission.
There are several other learning points to be gleaned from this scenario. The first truism is that in the real world, the issues practitioners in this field will confront will be just as complex and never easy. Another teaching point is that mistakes will happen, and when they do, report as required. Finally, a key lesson from the scenario, and this article in general, is that command authority to use DI sua sponte in the domestic environment is limited. With the exception of training within DoD controlled airspace, approvals for most missions reside at the SecDef level.
Commanders, operators, intelligence professionals and legal professionals need to understand that using RPA and ISR assets to acquire airborne imagery in the domestic environment is different from what they may be accustomed to in an operational combat environment. Numerous directives, instructions, regulations and policies apply to properly employing these assets in the U.S. While the guidance is plentiful, it is not always directly on point. As a result, pinpointing who can approve a particular mission sometimes remains a challenge. Getting it right is critical, however, because failing to do so can have significant consequences that negatively impact the USAF's credibility and otherwise detract from the legitimacy of our operations.
This article reviewed the existing guidance, capability and mission focused, and proposed a comprehensive analytical framework to navigate and cross-reference these two different sets of rules. The proposal, boiled down to its core is: who wants to do what and how do they want to do it? The approach suggested was to first determine which capability is to be used and then look to the specific mission and where the guidance remains murky, extrapolate based on analogous guidance. This common sense approach should assist commanders, operators, intelligence and legal professionals understand the rules for collecting DI and how to apply them to ensure mission accomplishment, consistent with the law.
(1) In 2010, the United States Air Force changed the term "Unmanned Aerial Vehicles" (UAV) to "Remotely Piloted Aircraft" (RPA) by institutionalizing RPA pilot training and designating RPA pilots as rated officers (career aviation status). Technical Sergeant Amaani Lyle, Air Force officials announce remotely piloted aircraft pilot training pipeline, Air Force News, June 9, 2010, http:// www.af.mil/news/story.asp?id=123208561; U.S. Dep't of Air Force, Instr. 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges, 13 Dec. 2010 [hereinafter AFI 11-402,]. This change in terminology is significant in that it recognizes that these vehicles are not "unmanned," but rather are piloted, albeit "remotely," by trained and rated officers. For purposes of consistency, RPA is substituted for UAV throughout.
(2) General Gilmary Michael Hostage 111, Commander, Air Combat Command (COMACC), Remarks at Wing Commander's Conference (13 Sept. 2012).
(3) In response to perceived infringements by civilian law enforcement authorities on rights of U.S. citizens, several Bills addressing RPA use were introduced in the 112th Congress. See Richard M. Thompson III, "Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses," Congressional Research Service, Feb. 6, 2012, available at, http://www.fas.org/sgp/crs/natsec/R42701.pdf.
(4) See, e.g., "Holloman Air Force Base Reaper Rescues Lost Kayakers," UAS Vision Apr. 16, 2012, http://www.uasvision.com/2012/04/16/holloman-air-force-base-reaper-rescues-lost-kayakers/; Mark Mazzetti, "The Drone Zone," New York Times Magazine, Jul. 7, 2012, http://www.realclearpolitics. com/2012/07/07/the_drone_zone 284142.html; Master Sergeant Julie Avey, "163d Reconnaissance Wing Unveils New RPA Hangar," Air Force News, 26 June 2012, http://www.march.afrc.af.mil/news/story.asp?id=l 23307778.
(5) IO rules govern the collection, retention and dissemination of information on U.S. persons. See Exec. Order No. 12333, 3 C.F.R. 200 (1981) [hereinafter EO 12333], availale at http://www.archives.gov/federal- register/codification/executive-order/12333.html; U.S. Dep't of Def. Dir. 5200.01 DoD Intelligence Activities (27 Aug. 2007) [hereinafter DoDD 5200.01]; U.S. Dep't of Def Regulation 5240.1, Procedures Governing the Activities of DoD Intel Components that Affect U.S. Persons (1982) [hereinafter DoD 5240.1 -R]; U.S. Dep't of Air Force, Instr. 14-104, Oversight of Intelligence Activities, (23 Apr. 2012) [hereinafter AFI 14-104]; See also U.S. Dep't of Army, Reg. 381-10 U.S. Army Intelligence Activities, (3 May 2007) [hereinafter AR 381-10], NORAD-USNORTHCOM, Instr.14-3, Intelligence; Domestic Imagery, NORADUSNORTHCOM, Instr.14-103, Intelligence, Intelligence Oversight; available on the unclassified NORAD-USNORTHCOM Portal to U.S. Government[section][section] Civilians, U.S. Military members or allies, or contractors supporting military efforts. Register at https://registration.noradnorthcom.mil/ gateway/Requirements.aspx.
(6) The PCA, 18 U.S.C. [section] 1385 (1878), restricts direct military assistance for law enforcement purposes except as authorized by the Constitution or Congress. It states, "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000, imprisoned not more than two years, or both." For example, the military is generally prohibited from conducting physical surveillance. Flowever, an Intelligence Component can do this for valid counter-intelligence or foreign intelligence purposes under limited circumstances such as physical surveillance of a military member or intelligence employee or pursuant to a valid FISA warrant.
(7) The United States includes the geographic homeland boundaries of the 50 states, the District of Columbia, the territories and possessions of the U.S. to a 12 nautical mile seaward limit of those land areas. AF1 14-104, supra note 5 at para. 9.
(8) Among intelligence law practitioners, there is no general agreement as to whether or not an RPA should always be considered an "intelligence capability." Some have suggested the RPA's categorization depends on the activity or mission it is conducting at any given moment. Various Speaker Remarks, RPA Lawyer's Group Meetings, (25 Sept, 2012). Regardless, in DoD policies and regulations, RPAs are addressed separately. This article therefore treats such RPA guidance as a special sub-category of capability focused guidance.
(9) EO 12333; supra note 5 and AFI 14-104, supra note 5 at para. 3.1. According to the EO, USPER "means a United States citizen, an alien known by the intelligence element concerned to be a permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments." EO 12333, supra note 5 at para. 3.5(k).
(10) EO 12333, supra note 5 at the Preamble.
(11) Id. at para. 3.5g.
(12) DoDD 5240.01, supra note 5 at Enclosure 2, para. E.2.7. See also, EO 12333, supra note 5 at Part 2 paras. 2.3 and 2.4. Information is not considered "collected" "until it has been received for use by a DoD IC employee in course of his or her official duties. DoDD 5240.1 -R, supra note 5 at para. C2.2.1. An "employee" is "a person employed by, assigned or detailed to, or acting for an element within the IC." EO 12333, supra note 5 at para. 3.5(d). U.S. Dep't of Def, Dir, 5143.01 Undersecretary of Defense for Intelligence, (23 Nov., 2005) [hereinafter DoDD 5143.01], available at http://www.dtic.mil/whs/directives/corres/pdf/514301 p.pdf.
(13) EO 12333, supra note 5 at para. 2.3; DoD 5240.1-R, supra note 5 at para. C2.3.
(14) DoD 5240.1-R, supra note 5 at para. C5.1.2. See also: Id. at Procedure 6--Concealed Monitoring, para. C.6.3.3.; Procedure 7--Non-Consensual Physical Searches, para. 7.3.2.; Procedure 8--Mail Searches and Examination, para. 8.3; Procedure 9--Physical Surveillance, para. 9.3.3.; Procedure 10--Undisclosed Participation in Organizations, para. 10.3.2.
(15) To the best of this author's knowledge, SecDef, DepSecDef, and SecAF have never requested a FISA warrant. Rather, the Department of Justice is the one who submits FISA requests in furtherance of CI or FI.
(16) See DoD 5240-1R, supra note 5. See also DepSecDef Directive-Type Memorandum (DTM) 08-052--DoD Guidance for Reporting Questionable Intelligence Activities and Significant or Highly Sensitive Matters, (17 June 2009), [hereinafter DTM 08-052], available at http://www.dtic. mil/whs/directives/corres/pdf/DTM-08-052.pdf.
(17) For the USAF, the intelligence and counterintelligence (Cl) elements which comprise the IC include the AF Deputy Chief of Staff, Intelligence, Surveillance and Reconnaissance; the CI units of the Air Force Office of Special Investigations (AFOSI), Air Force Intelligence Analysis Agency, and "other organizations, staffs, and offices when used for foreign intelligence (FI) or CI to which EO 12333 applies." AFI 14-104, Attachment 1. Note that EO 12333, paras. 1.7 and 3.5(h), outline other IC elements as follows: the Central Intelligence Agency (CIA), Defense Intelligence Agency (DIA), National Security Agency (NSA), the National Reconnaissance Office (NRO), The National Geospatial-Intelligence Agency (NGA), the CI/FI elements of the other Services and the U.S. Coast Guard, the Office of the Director of National Intelligence (DNI) as well as several Interagency Intelligence and CI offices. EO 12333, supra note 5 at para. 1.7.
(18) DoD 5240.1-R, supra note 5 at para. CI 126.96.36.199.
(19) Eagle Vision is "a family of deployable, commercial satellite ground stations that downlink unclassified commercial imagery data from Earth-orbiting satellites. Eagle Vision ground system operators--teams that usually run about 12-15 people--can rapidly process that data into a variety of formats within 2-4 hours of collection." Master Sergeant Kate Rust, Eagle Vision lands at Peterson, AF News, 18 Nov., 2008, http://www.schriever.af.mil/news/story.asp7idM23124695.
(20) AFI 14-104, supra note 5 at para. 3.1. The AFI also applies to "non-intelligence units and staffs when they are assigned an intelligence mission and to personnel doing intelligence work as an additional duty, even if those personnel are not assigned or attached to an intelligence unit or staff' or which operate systems that acquire and disseminate commercial satellite products to intelligence unites and staffs," as well as units and staffs that conduct information operations and cyberspace activities. Id. at paras. 3.2.-3.5.
(21) Air Nat. Guard, Instr. 14-101, National Guard Inspector General Intelligence Oversight Procedures, (13 June 2011), [hereinafter ANGI 14-101], available at http://www.ngbpdc.ngb.army.mil/pubs/14/angil4_101.pdf. Id. at para. 2-3 states, "National Guard requirements. DoD Regulation 5240.1-R reestablishes the requirement for an Intelligence Oversight program in all NG intelligence and intelligence related activities. The procedures apply to the Office of the Chief, NGB, Army and Air NG intelligence units, activities, staffs, and personnel conducting intelligence activities directly related to a federal mission or duty in a Title 10 or Title 32 status. Additionally, the Service components guidance, AR 381-10 and AFI 14-104, further establish requirements for their respective NG elements." See also Chief National Guard Bureau Manual 2000.01, National Guard Intelligence Activities, (26 November 2012), available at http://www.ngbpdc.ngb.army.mil/pubs/CNGBI/CNGBM2000_01 _20121126.pdf; Chief National Guard Bureau Instruction 2000.01, National Guard Intelligence Activities, (17 Sept. 2012), available at http://www.ngbpdc.ngb.army.mil/pubs/CNGBI/CNGBI.htm.
(22) AFI 14-104 does, however, define "intelligence activities," consistent with the EO, as "... all activities that DoD intelligence components are authorized to undertake pursuant to Executive Order 12333 and assigns the Services' intelligence components responsibility for: 1, "Collection, production, dissemination of military and military related foreign intelligence and counterintelligence, and information on the foreign aspects of narcotics production and trafficking;" and 2, "Monitoring of the development, procurement, and management of tactical intelligence systems and equipment and conducting related research, development and test and evaluation activities." AFI 14-104, supra note 5 at Attachment 1, Terms. See also DoDD 5240.01, supra note 5 at para. 5.4.2. for the extrapolated definition of ICCs.
(23) A MAJCOM of the USAF is the second highest level of command and reports directly to Headquarters Air Force. See generally "Air Force Organizational Structure (Chain of Command), " available at http://usmilitary.about.eom/cs/airforce/a/aforganization_2.htm. (last accessed June 23, 2013)
(24) AFI 14-104, supra note 5 at para. 9.5, Attachment 1 Terms and Attachment 4. A PUM is not authoritative in nature for the mission it describes. Rather, the PUM outlines how the imagery will be collected retained and to whom it may be disseminated and certifies that such proposed use complies with applicable laws and policies. Independent approval of the mission at the appropriate level is still required. Airborne missions that acquire DI outside of DoD-controlled airspace will also require a Federal Aviation Administration Certificate of Authorization.
(25) One could extrapolate the requirement for ICs/ICCs to obtain SecDef approval for other than CI/FI from the definition of Intelligence Activities in DoDD 5240.01, supra note 5 at para. E2.7. ("Intelligence Activities. The collection, analysis, production and dissemination of foreign intelligence and CI pursuant to references (b) and (c)") when read in context of both the directive and the EO it implements. Joint Publication 3-28, Civil Support, (14 Sept. 2007), available at http:// www.dtic.mil/doctrine/new_pubs/jp3_28.pdf, however, is the only regulation that overtly codifies the proposition that ICs/ICCs are only authorized to conduct CI/FI and all other missions require SecDef approval. In addition to CI/FI, ICs/ICCs are also authorized to conduct training under certain circumstances, as well as activities otherwise approved by SecDef or the President of the United States on an ad hoc basis. Remarks by various speakers, RPA Lawyer's Group / Domestic Imagery Working Group Meetings, Sept. 25, 2012 and Nov. 7, 2012, [hereinafter Working Group],
(26) Dep't of Def, Dir 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense, paragraphs 2.2.2. and 4.1--4.3(Jan. 7, 1980), [hereinafter DoDD 5200.27], available at www.dtic.mil/whs/directives/corres/pdf/520027p.pdf. It is difficult to imagine a scenario where DI would be used in furtherance of a personnel security (aka security clearance) investigation and thus, such investigations will not be further addressed.
(27) It is difficult to imagine a scenario where a Personnel Security investigation will implicate the need to collect DI on a USPER and as such, the subject is beyond the scope of this article.
(28) DepSecDef Memo, Interim Guidance for the Domestic Use of Unmanned Aircraft Systems, (28 Sept. 2006). Regarding the Memo's currency, see Remarks by various speakers, RPA Lawyer's Group/Domestic Imagery Working Group Meetings, Sept. 25, 2012 and Nov. 7, 2012. It is the author's understanding that this guidance is pending revision.
(29) AFI 14-104, supra note 5 at para. 9.6.2.
(30) DepSecDef Memo, supra note 28 at pg. 2.
(31) Dep't of Def, Dir 3025.18, Defense Support to Civil Authorities (DSCA), incorporating Change 1, para. 4c., (21 Sept. 2012),[hereinafter DoDD 3025.18], available at, http://www.dtic.mil/whs/ directives/corres/pdf/302518p.pdf.
(32) Id. at Glossary, Part II, Definitions
(33) U.S. Dep't of Air Force, Instr. Defense Support to Civil Authorities (DSCA), (19 Sept. 2012), [hereinafter AFI 10-801], available at http://static.e-publishing.af.mi1/production/l/af_a3_5/publication/afi10- 801/afi10-801.pdf.
(34) ACC is the primary provider of air combat forces to America's warfighting commanders. See generally, Air Combat Command Fact Sheet, http://www.acc.af.mil/library/factsheets/factsheet.asp?id=2361. (last accessed June 23, 2013)
(35) DoDD 3025.18, supra note 31 at para. 4d and Working Group, supra note 25.
(36) An EXORD is, "an order to initiate military operations as directed." Joint Publication 5-0, Joint Operation Planning, Glossary, (11 Aug. 2001), available at http://www.dtic.mil/doctrine/new_ pubs/jp5_0.pdf. FIeadquarters, Chairman of the Joint Chies of Staff Office, Defense Support of Civil Authorities, (Aug. 14, 2009), [hereinafter DSCA EXORD], availble at publicintelligence.net/ cjcs-defense-support-of-civil-authorities-dsca-exord/.
(37) The term "Incident Awareness and Assessment" (IAA) is currently not defined in DoD or other policy. Generally speaking, IAA is the use of capabilities to aid the situational awareness of a commander. This could be accomplished using intelligence assets or non-intelligence assets. Working Group, supra note 25.
(38) DSCA EXORD, supra note 36 at paras. BB, 4.B.8, 4.D.7.A, 6.H.3.C., and 9.G.2.A; See also NORAD and USNORTHCOM Instruction 14-103, supra note 5 at para.2.6. It is the author's understanding that the Standing DSCA EXORD is pending revision.
(39) AFI 10-801, supra note 33 at para. 2.1.
(40) Id. at para. 188.8.131.52 and DoDD 3025.18, supra note 31 at para. 4.g. Immediate Response Authority is not carte blanche for local commanders to provide support to civil authorities. Additionally, in today's communications environment, rarely is there insufficient time to seek approval from higher headquarters.
(41) DoDD 3025.18, supra note 31 at para. 4.g(2). However, the likelihood that such communication will not be immediately provided is significantly low given the state of communication connectivity.
(42) Id. at para. 4.i.
(43) Id. at, para. 4.o.
(44) Id. at para. 2.c.(5) and U.S. Dep't of Def, Instr. 3003.01, DoD Support to Civil Search and Rescue (SAR), Enclosure 2, paras 2a--2b, (26 Sept. 2011), [hereinafter DoDI 3003.01], It is worth noting that even though support to law enforcement is a form of DSCA, the CJCS Standing DSCA EXORD does not address it.
(45) U.S. Dep't of Def, Instr 3025.21, Defense Support of with Civilian Law Enforcement Agencies, (27 Feb. 2013), [hereinafter DoDI 3025.21], available at http://www.dtic.mil/whs/directives/corres/pdf/302521p.pdf. 10 U.S.C. 371 (1981), Use of information collected during military operations requires that the needs of civilian LEA be taken into account in the planning and execution of military training or operations. See also U.S. Dep't of Def, Instr 1322.28, Realistic Miltiary Training (RMT) Off Federal Real Property, (18 Mar 2013), [hereinafter DoDI 1322.28], which incorporates 10 USC 371 requirements; See also Secretary of Defense Memorandum, Leveraging Military Training for Incidental Support of Civil Authorities, (11 Dec. 2012), which directs future policy changes to widely implement 10 USC 371.
(46) DoDI 3025.21, supra note 45 at Enclosure 3, para. 1 .b.(6) and Enclosures 4-6.
(47) Id. at Enclosure 3, para. 1.f.; Enclosure 7, paras. 1.d.-f' and Enclosure 9, para. 1 .c.
(48) Id. at, Enclosure 3, para. 1c.(l)(a)--(g).
(49) Id. at Enclosure 3, para. 5.b.. SecDef approval is not required for IC's to report potential threats to life and property to appropriate LEAs when "incidentally acquired" during valid intelligence collection activities, in accordance with AFI 14-104, paras. 10.1 and 12. Also, given that the "surveillance" is authorized in Procedure 5 of EO 12333 and DoD 5240.1-R, such duly authorized missions would not violate either the DoDI or the PCA.
(50) DoDD 3025.18, supra note 31 at para. 4.o.
(51) DoDI 3003.01, supra note 44. SAR is not a "search" within the meaning of the 4th amendment based on the purpose of the search. Although rescinded by DoDI 3003.01, supra note 44 DoDD 3003.01, see U.S. Dep't of Def, Dir 3003.01, Support to Civil Search and Rescue (SAR), paras. 3.2-3.4, (20 Jan. 2006), available at http://www.dtic.mil/dpmo/laws_directives/documents/dodd_3003_01.pdf. This directive provides useful definitions. It defines Civil SAR as "search operations, rescue operations, and associated civilian services provided to assist persons and property in potential or actual distress in a non-hostile environment." A rescue is defined as an "operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety." A search is "an operation normally coordinated by the Rescue Coordination Center or rescue subcenter, using available personnel and facilities to locate persons in distress."
(52) DoDI 3001.01, supra note 44 at para. 4a.
(53) DoDI 3025.21, supra note 31 at Enclosure 3, para. l.b.(6). See also National Search and Rescue Pan of the United States (2007), [hereinafter U.S. SAR Plan], available at http://www.uscg.mil/hq/ cg5/cg534/manuals/Natl_SAR_Plan(2007).pdf and National Search and Rescue Committee, U.S. National Search and Rescue Supplement to the Int'l Aeronautical and Maritime Search and Rescue Manual, (May 2000), [hereinafter NSS], available at http://www.uscg.mil/hq/cg5/cg534/ manuals/Natl_SAR_Supp.pdf. The U.S. National SAR Plan delineates roles and responsibilities but is not considered an authority to conduct SAR. The U.S. National SAR Supplement is the primary U.S. SAR publication.
(54) DoDI 3001.01, supra note 44 at paras. 9a and 10a.
(55) Id. at para. 6d.; U.S. SAR Plan, supra note 53, and NSS, supra note 53.
(56) "Air Force Rescue Coordination Center Fact Sheet," http://www.laf.acc.af.mil/library/factsheets/ factsheet.asp?id=7497. (last accessed June 23,2013)
(57) Working Group, supra note 25. These approvals include not only authorization from the correct approving official (e.g., SecDef) but also a PUM and, if applicable, FAA COA.
(58) U.S. Dep't of Air Force, Doctrine Doc. 3-10, Force Protection, Forward and Chapter 2, (28 Jul. 2011), [hereinafter AFDD 3-10], available at http://www.globalsecurity.org/military/library/policy/ usaf/afdd/3-10/afdd3-10.pdf. See also U.S. Dep't of Air Force, Instr.14-1 19, Intelligence Support to Force Protection, para. 1.6, (4 May 2012), [hereinafter AFI 14-119], available at http://static.epublishing.af.mil/production/l/af_a2/publication/afil4-l 19/afi_14-l 19.pdf.
(59) AFI 14-119, supra note 58 at Terms and para. 1.2-1.3 collectively.
(60) AFDD 3-10, supra note 58 at pg. 11; Dep't of Air Force, Instr 31-101, Integrated Defense (FOUO), (8 Oct 2009), [hereinafter AFI 31-101], is not publically available.
(61) AFI 14-119, supra note 58 at para. 1.6.
(62) AFI 14-104, supra note 5 at para.s. 10.1 and 12; AFI 14-119, supra note 58 at para. 184.108.40.206. Procedure 12 of DoD 5240.1-R specifically authorizes ICs to provide incidentally acquired information to law enforcement as well as provide direct support, in certain circumstances. DoD 5240.1-R, supra note 5 at Procedure 12.
(63) DoDD 5200.27, supra note 26 at para. 2.3.
(64) Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms, (15 Mar. 2013), available at http://www.dtic.mil/doctrine/new_pubs/jpl_02.pdf.
(65) See Insurrection Act, 10 U.S.C. 331-335; (1807); DoDD 3025.21, supra note 45 at para. 4.1.6.
(66) DoDl 3025.21, supra note 45 at Enclosure 3, para. l.b.(3)-(4) and Enclosure 4, "DoD Support of CDO."
(67) DoDD 3025.18, supra note 31 at para. 2.d.(4).
(68) 10 U.S.C. 124, (2004); 10 USC 1004(b)(6), 1004(b)(10) (as amended through the NDAA for FY 2012); 10 USC 371, (1981); 10 USC 374 (1981); Chairman of the Joint Chiefs of Staff Instruction 3710.01B, DoD Counterdrug Support, (26 Jan. 2007); [hereinafter CJCSI 3710.01B]; DepSecDef Memo, Department Support to Domestic Law Enforcement Agencies Performing Counternarcotics Activities, (2 Oct. 2003), available at http://www.dtic.mil/cjcs_directives/cdata/unlimit/3710_01.pdf; DepSecDef Memo, Department International Counternarcotics Policy, (24 Dec. 2008).
(69) CJCSI 3710.01 B, supra note 68 at Enclosure A, para. 5.a.
(70) DepSecDef Memo, Department Support to Domestic Law Enforcement Agencies Performing Counternarcotics Activities, (2 Oct. 2003).
(71) CJCSI 3710.01B, supra note 68 at Enclosure A, para. 1 ,b.
(72) CJCSI 3710.0IB, supra note 68 at Enclosure A, paras. 4,a. and 5.a.(4). As a practical matter, NORTHCOM will obtain SECDEF approval for RPA use for CD, per their own internal policy. Working Group, supra note 25.
(73) CJCSI 3710.01 B, supra note 68 at Enclosure A, para. 8,d.
(74) Id. at Enclosure A, para. 8.d.
(75) 10 U.S.C. 8013 (2004).
(76) Working Group, supra note 25. Even within DoD airspace, a valid PUM should be on file in support of the activity. AFI 14-104, supra note 5 at Attachment 4.
(77) DepSecDef Memo, Interim Guidance for the Use of Unmanned Aircraft Systems, p. 2, (28 Sept. 2006), [hereinafter Interim Guidance] The Memo does not define "DoD controlled airspace." The author's proposed definition is that DoD controlled airspace" includes DoD-restricted or warning airspace, designated Military Operating Areas (MOAs), airspace over DoD installations and training areas, airspace owned, controlled or authorized for DoD training activities, including low level training routes. Airborne imaging should be permitted of surface objects located under the lateral confines of DoD controlled airspace, including but not limited to private property, such as vehicles, without consent, so long as there is no intent to target specific U.S. persons. "Operating collection systems outside" of DoD controlled airspace could mean either that the aircraft is being physically flown outside of DoD controlled airspace or its sensors are pointed at and acquiring imagery in surface areas outside the lateral boundaries of that airspace onto non-DoD property.
(78) Compliance with AFI 14-104 would also dictate the need for a PUM and FAA COA, if applicable. Some have advocated that Secretary of the Air Force approval would be required for ICs/ICCs to train outside of DoD controlled airspace, although this is nowhere codified. Interview with Headquarters Air Staff, (10 Jan. 2013) [hereinafter Interview].
(79) Presumably, a comprehensive notification to the CJCS for recurrent events would suffice, and would be re-submitted annually or as deviations are required. Working Group, supra note 25. Recall that for USNORTHCOM, however, all use of RPAs requires SECDEF approval, vice CJCS notification, according to their own policies. N/NCI 14-103, para.2.6.
(80) "Modified Requirements Procedure/Battle Drills/Checklists," https://acc.eim.acc.af.mil/org/A3/ A30/A3030P/default.aspx. (last accessed June 23, 2013)
(81) Thirty days would be a reasonable amount of time to process RPA training requests to the CJCS. Working Group, supra note 25.
(83) Interview, supra note 78.
(84) DoDI 1322.28, supra note 45.
(85) 10 U.S.C. 371, (1981); DoDI 3025.21, supra note 45; DoDI 1322.28, supra note 45; SecDef Memo, Leveraging Military Training for Incidental Support of Civil Authorities, supra note 45. It is the author's understanding that the final implementation of 10 USC 371, including processes and approval authorities, is still being discussed at the DoD-level, in conjunction with the Department of Homeland Security.
(86) U.S. Dep't of Air Force, Instr. 51-501, Tort Claims, (15 Dec. 2005), [hereinafter AFI 51-501], available at http://static.e-publishing.af.miI/production/l/af_a3_5/publication/afi51-501/afi51-501.pdf. The claims video example is merely illustrative and should not be interpreted to indicate that one should expect the claims instruction to address domestic aerial DI. As a practical matter, instead of using aerial DI, a commander could obtain commercially available imagery or seek approval from the Commander Air Forces North (AFNORTH)/First Air Force to have the Civil Air Patrol (CAP) fly an AF-assigned mission. Working Group, supra note 25.
(87) It is beyond the scope of this article to address every potentiality.
(88) The MC-12W is a medium- to low-altitude, twin-engine turboprop aircraft. The primary mission is providing intelligence, surveillance and reconnaissance, or ISR, support directly to ground forces. "MC-12 Fact Sheet," http://www.af.mil/information/factsheets/factsheet.asp?fsID=15202 (last accessed June 23, 2013).
(89) SecDef will generally indicate, through a CJCS EXORD, whether or not the 10 rules will apply to ICs/ICCs performing non-CI/FI activities, as exemplified by the Standing DSCA EXORD.
(90) AFI 14-104, supra note 5 at Attachment 1.
(91) Working Group, supra note 25. The 5P Test is not codified anywhere other than on the HQ ACC's Domestic Imagery (DI) Authorities Matrix. See "HQ ACC's Domestic Imagery (DI) Authorities Matrix," https://acc.eim.acc.af.mil/org/A3/A30/A3030P/default.aspx (last accessed June 23, 2013). This is not an authoritative document.
(92) Working Group, supra note 25.
(93) For example, in accordance with the Standing DSCA EXORD, SecDef approval of listed resources for the seven authorities delegated to CDR USNORTHCOM and USPACOM includes the approval to utilize traditional ICCs to conduct DSCA missions for non-intelligence purposes. Such missions must be conducted I AW DoD 5240.01-R.
(94) The decision authority as to whether or not an activity or asset constitutes an ICC is not codified. Is has been suggested that this determination should be a command decision, made in full consultation with the A3, A2, and JA and documented in some manner. In potentially controversial cases, it has been suggested that coordination occur with HAF A2, A3 and SAF/GC. See HQ ACC DI Authorities Matrix, supra note 91.
(95) DoDD 3025.18, supra note 31 at para. 4.g.,; AFI 10-801, supra note 33 at para. 220.127.116.11; DSCA EXORD, supra note 36.
(96) DoDD 3025.18, supra note 31 at para. 4(o).
(97) See generally Id., DoDI 3025.21, supra note 45; DoDI 3003.01, supra note 44; AFI 10-801, supra note 33.
(98) DoDD 3025.18, supra note 31 at para. 4(o), states that SecDef approval is required for "UAS" ISO DSCA. See also DoDI 3025.21, supra note 45 at Enclosure 3, para. 5.a.--d. Declinations of assistance to LEA also need to be submitted to SecDef, through ASD(HA&ASA). SecDef approval is required for non-CI/FI missions for all ICs/ICCs, unless incidentally acquired. DoD 5240.1-R, supra note 5 at para. C18.104.22.168.; AFI 14-104, supra note 5 at paras. 10 and 12; AFI 14-119, supra note 58 at para. 2.7.1.
(99) Other coordination and approvals for RPA use for FP outside of DoD-controlled airspace would include the MAJCOM A3 and A2 (for an incident specific PUM), de-confliction with LEA and a FAA COA.
(100) This should be reported immediately as a '"significant or highly sensitive matter'" under DTM 08-052 if any information about the in extremis RPA intelligence activity was going to be disclosed outside of DoD (Congress, media, public, etc.) and might "'impugn the reputation'" of the Intelligence Community/Defense Intelligence Components. This should be reported immediately as a "'significant or highly sensitive matter'" under DTM 08-052 if any information about the in extremis RPA intelligence activity was going to be disclosed outside of DoD (Congress, media, public, etc.) and might "'impugn the reputation'" of the Intelligence Community/Defense Intelligence Components. Email from ATSD(IO) participant from Domestic Imagery Working Group to Author, (Nov. 11, 2012), providing informal and personal opinion, not binding on ATSD(IO), which is on file with the author.
(101) DoDI 3025.21, supra note 45 at Enclosure 3, para. l.b.(3)-(4) and Enclosure 4.
(102) CJCSI 3710.01B, supra note 68 at Enclosure A, paras. 5.a. and 1 .b.; DepSecDef Memo, Department Support to Domestic Law Enforcement Agencies Performing Counternarcotics Activities, supra note 70.
(103) CJCSI 3710.01B, supra note 68 at Enclosure A, para. 5.a.(4).
(104) The Services may further delegate their authority to support Joint Task Forth-North (JTF-N) CD missions, but local units should work through their MAJCOM on any request for support to a CD operation. See CJCSI 3710.01 B, supra note 68 at Enclosure A, para. 5.a.(5). See also 10 USC 1004(b)(6), 1004(b)( 10) (as amended through the NDAA for FY 2012); 10 USC 371, (1981); 10 USC 374,(1981).
(105) 10 U.S.C. 8013,(2004).
(106) Interim Guidance, supra note 77 at p. 2.
(107) AFI 14-104, supra note 5 at para. 9.6. Compliance with the AFI dictates the use of a PUM.
(108) See generally, DoDI 1322.28, supra note 45.
(109) 10 U.S.C. 371, (1981); DoDI 3025.21, supra note 45; DoDI 1322.28, supra note 45; SecDef Memo, Leveraging Military Training for Incidental Support of Civil Authorities, supra note 45.
(110) See AFI 14-104, supra note 5 at para. 9.6. by analogy (permissive use of non-RPA/ non-ICCs off base for training).
(111) AFI 14-104, supra note 5 at Attachment 1.
(112) Working Group, supra note 25. The 5P Test is not codified anywhere other than on the HQ ACC's Domestic Imagery (DI) Authorities Matrix. See "HQ ACC's Domestic Imagery (Dl) Authorities Matrix," https://acc.eim.acc.af.mil/org/A3/A30/A3030P/default.aspx (last accessed June 23,2013). This is not an authoritative document.
(113) For example, in accordance with the Standing DSCAEXORD, SecDef approval of listed resources for the seven authorities delegated to CDR USNORTHCOM and USPACOM includes the approval to utilize traditional ICCs to conduct DSCA missions for non-intelligence purposes. Such missions must be conducted IAW DoD 5240.01-R. DSCA EXORD, supra note 36.
(114) U.S. Dept't of Def, Dir. 5525.5, DoD Cooperation with Civilian Law Enforcement Officials, (20 Dec. 1989), [hereinafter DoDD 5525.5], available at http://www.dtic.mil/whs/directives/corres/pdf/552505p.pdf.
(115) Id. at paras. E22.214.171.124. and E126.96.36.199. SecDef approval is not required to the IC's mandatory requirement to report potential threats to life and property to appropriate LEAs when "incidentally acquired" during valid intelligence collection activities, in accordance with AFI 14-104, paras. 10.1 and 12. Also, given that the "surveillance" is authorized Procedure 5 of EO 12333 and DoD 5240.1R, such duly authorized missions would not violate either DoDD 5525.5 or the PCA.
Colonel Dawn M.K. Zoldi, USAF (B.A. History and Philosophy, University of Scranton (1989); M.A. History University of Scranton (1989); J.D. Villanova University School of Law (1992); M.S. Military Strategic Studies, Air War College, Air University with Distinction (2010)) is the Chief of Operations Law, Headquarters Air Combat Command, Office of the Staff Judge Advocate. She is a member of the Pennsylvania Bar. The author would like to give special thanks and credit to the following individuals who participated in an informal "Domestic Imagery Working Group," from which the Airborne Domestic Imagery Authorities Matrix, upon which this article is largely based, was drawn: ATSD (10) (Mr. Michael Goodroe; Mr. Albert Dyson, Mr. Wilbur Snyder); DoD/ GC (Mr. Frank Short and Mr. Kyle Jacobson); NGA-OGC (Ms. Allison Stevens and Ms. Jo-Ellen Atkins); SAF/GCM (Mr. Anthony Wager and Maj Monica Nussbaum); JSLC (Lt Col Eric Werner); AFJAGs (Lt Col Richard Dashiell); AF/JAO (Lt Col Lori Coleman and Maj Robert Jarman); ACC A30 (Col Ted Uchida); ACC A2X (Col JudyAnn Wehking); 1AF-AFNORTH (Lt Col Brad Larson and Mr. Curtis "Crash" McNeil); NGB J25 (LTC Andrea J. Johnson-Harvey, MI, ARNG); AFRC/JA (Lt Col Andy Kirkpatrick); Army INSCOM (Mr. Mark D Dupont); 601st AOC (Col Mike Guillory); ATSD(IO); USNORTHCOM (Mr. Bob Hilmo and Maj Patrick Schwomeyer); AFISRA/JA (Col Todd Wold); AFOSI/JA (Lt Col Cindy Stanley); NGB/JA (Col John Joseph and LTC Erin McMahon); 74 ATKW /JA Syracuse ANG (Lt Col Brian Lauri).
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|Author:||Zoldi, Dawn M.K.|
|Publication:||Air Force Law Review|
|Date:||Dec 22, 2013|
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