Exceptions - Cont'd

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."

(AR

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

equivalent emergency."

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

authorities."

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

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