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So often when an international humanitarian disaster occurs relief organizations ask, “Why can’t the military just … ?” One can complete the question with almost any phrase. The sense of frustration felt by international relief organizations is palpable. The United States Department of Defense (DoD) has an enormous defense budget, hundreds of thousands of well-trained soldiers and civilians, stockpiles of supplies and a command structure to rapidly coordinate its activities across the globe. It is a combination second-to-none and unique in the history of mankind. Yet, this vast and talented resource is rarely perceived as doing all it can during a relief mission. Understanding the constraints placed on the DoD will help explain the limited and sometimes seemingly bureaucratic response of the military. Relief organizations can better plan their response when they have the correct grasp of what the DoD can do and how rapidly the DoD can assist them. While formal synchronization of relief organizations’ efforts with the DoD’s effort is unlikely, anticipating the DoD response is crucial to leveraging the unique support that the DoD can bring to any relief operation. The civilian humanitarian community has missions, goals and resources that are broader than the DoD’s. In some cases, the goals of a civilian humanitarian organization will make cooperation with the DoD problematic for the organization. However, cooperating with and leveraging from the DoD’s support and sustainment abilities may enable an organization to better meet its disaster relief mission. The purpose of this article is to describe the DoD’s response to overseas humanitarian disasters so that civilian humanitarian organizations may be able to take advantage of the DoD’s unique abilities. It will first distinguish the DoD role in overseas disaster response from that of the U.S. Department of State (DoS), the civilian foreign affairs agency of the U.S. government. Second, it will shed light on the significant legal constraints on the DoD response. The legal constraints have their origins in a body of law that governs how the U.S. Government spends money, known as fiscal law. It is the legal constraints that most often frustrate both commanders and cooperating relief organizations. Third, this article will clarify the bounds of the DoD response. Finally, I will suggest how the civilian humanitarian community can use the abilities of the DoD to help ameliorate a humanitarian disaster should a situation warrant this assistance. Throughout this article I make the assumption that any DoD presence in a foreign country is with the consent of the host country’s government and with the consideration of the host nation’s laws. I. The DoD Role in International Disaster Response The most important aspect to understand about the DoD is that its primary mission is not humanitarian relief. While this would seem obvious, the consequences are manifold. The DoD prioritizes its vast resources for relief efforts only in the context of its stated mission to deter war and protect the security of the U.S. U.S. government regulations and policy are designed to keep the DoD focused on its primary mission and only permit a limited diversion of resources to relief operations. This is not to imply that the DoD does not care about relief operations. Disasters, manmade and natural, are known to greatly affect the peace and stability of regions. The DoD will always seek to minimize the chaos caused by disasters because chaos affects the DoD’s primary mission of keeping the U.S. safe. The U.S. government has determined that the Department of State (DoS), not the DoD, should be the lead US agency in responding to overseas disasters.2 Within the DoS, the United States Agency for International Development (USAID) is tasked to coordinate international disaster assistance.3 Within USAID, the Office of Foreign Disaster Assistance (OFDA) has been delegated the mission of coordinating humanitarian assistance:
OFDA has its own budget and highly talented staff and contractors with expertise in disaster relief:5 “Section 491 of the Foreign Assistance Act of 1961 . . . provides flexible authority that permits OFDA to respond to the needs of disaster victims in a timely manner.”6 In fiscal year 2006 OFDA coordinated the spending of over US$402 million on declared disasters.7 The majority of the funds are spent by contracting with nongovernmental organizations (NGOs), UN agencies and international organizations to conduct the relief work. The scope of relief can include airlift, medical care, and providing shelter to displaced persons. However, OFDA also engages in projects to limit the damage of a disaster before it occurs. By contrast, the DoD has a much smaller budget to engage in preventative measures to mitigate future disasters. For the purposes of this article the DoD’s disaster response will be explained in two categories: “immediate response” and “deliberate response.” Immediate response is fast and limited in scope. Deliberate response, more long-term, is fully coordinated inside the U.S. government and may involve the full range of the DoD’s resources. When engaged in a deliberate response, the DoD is required to work closely with OFDA and the relevant U. S. embassy. Before starting a deliberate response mission, the DoD’s response plan must first be coordinated with USAID through OFDA.8 A good example of successful OFDA-DoD coordination was provided by the 2004 Indian Ocean Tsunami disaster relief operation.9 Andrew S. Natsios, former USAID Administrator, expounded on the OFDA-DoD relationship in his testimony to the U.S. Senate:
The DoS, through OFDA, can respond as quickly as the DoD to a disaster with personnel trained in relief operations because of its years of experience and deep connections to the relief community.11 What OFDA lacks is an aircraft carrier to park offshore to ferry supplies and act as a command center. In responding to international humanitarian disasters, the DoD’s only advantage over the DoS is the DoD’s highly visible inventory of ships, planes and specialized deployable equipment (e.g. hospitals, water purification) combined with the ability to rapidly move into the affected area. II. Legal Constraints on DoD’s Response The legal constraints on the DoD come from two sources. The first source is the body of law that has grown up around the Congressional limitations on U.S. government spending. This body of law is commonly known as fiscal law. Many violations of fiscal law have criminal sanctions, and all of its violations are career damaging. The second source of legal constraints is the policies that the DoD imposes on itself. In many cases, the DoD creates restrictive policies to ensure proper implementation of a Congressionally-mandated limitation. Consequently, many violations of DoD policy are also violations of fiscal law. The origins of Congressionally-imposed fiscal law limitations are in the founding of the U. S. and the checks-and-balances system in the Federal Government. Fiscal Law The Framers of the Constitution of the United States gave the “power of the purse” to the Congress. The “power of the purse” includes not only the ability to raise money, but also the authority to say how the money may be spent. The ability to control how the government spends money “has been described as ‘the most important single curb in the Constitution on Presidential Powers.’”12 Congress can specify the terms and conditions under which any money can be spent.13 Most importantly for this discussion, Congress has specified how the Government will be funded to conduct relief missions. Most of the funding goes to the Department of State/USAID/OFDA. Therefore, the DoD should not use its budget to accomplish the DoS’s relief missions. Fiscal law requires that Government agencies spend their budgets only for purposes for which Congress has appropriated the money. It is a violation of law (31 USC 1301(a) “purpose statute”) for the DoD to use its appro-priation for anything other than what is stated in the appropriation. In other words, money given to the DoD for national defense may not be used for another purpose, such as relief operations. It is also a violation of law (31 USC 3302(b) “miscellaneous receipts statute”) for the DoD to keep money or support from sources other than its Congressional appropriation. It is this legal constraint that keeps the DoD from receiving “free” supplies and services from Non-Governmental Organizations.14 Acknowledging the reality that the DoD will always be involved each year in some type of disaster response, Congress does appropriate a small amount for the DoD to conduct very limited humanitarian and disaster relief missions. The funds are known as Overseas Humanitarian Disaster and Civic Assistance (OHDACA). The appropriation reads:
For worldwide disaster response, Congress appropriated only US$40 million dollars for the DoD.16 The DoD cannot exceed this amount without violating fiscal law. However, in times of significant relief operations, the DoD can request supplemental OHDACA money, or it can request that funds given for normal operations be permitted to be spent on disaster relief. The process for increasing OHDACA funds involves Congressional oversight. However, it is not swift, and there is no guarantee that Congress will approve the funding change. Regulations and policy restrict the DoD’s ability to assist in relief operations reinforcing the fiscal limitations placed on the DoD.17 Policy Constraints The policy constraints in responding to foreign disasters result from DoD efforts to comply with US domestic law. Congress wrote into law how it intends the DoD to provide foreign disaster assistance. In Section 404 of the United States Code, Congress prescribes: 1) the types of disasters the DoD may respond to; 2) the forms of the assistance the DoD may provide; 3) the Congressional notification requirements; and 4) requirement for OHDACA funds for paying for the DoD’s mission expenses. The president, carrying out his duty to enforce the law, promulgated Executive Order 12966 to implement Congress’ intent. The Executive Order provides direction for the secretary of defense when responding to a foreign disaster. The U.S. president has directed that the secretary of defense can only carry out foreign disaster assistance at the direction of the president, or with the concurrence of the secretary of state, or in emergency situations to save lives when there is insufficient time to get prior concurrence from the secretary of state. In turn, the secretary of defense provides further guidance to the DoD when conducting foreign disaster assistance in DoD Directive 5100.46 (or DoDD 5100.46) issued in 1975. It presents the basic policy guidance for the DoD’s response to foreign disasters. DoDD 5100.46 reiterates U.S. law that the DoD is not authorized to undertake deliberate, or long-term, foreign disaster relief missions on its own authority. The deliberate DoD response is predicated on a specific request for assistance from the DoS.18 The request should identify the country to be assisted, the form and amount of assistance needed, and whether the DoS will reimburse the DoD. Thus, the DoD’s response to disasters is focused on short-term relief. This is reflected in the deliberate choice of terms in DoDD 5100.46. In the directive, the DoD’s mission is to “alleviate the suffering,” not end it; provide “temporary shelter and housing,” not permanent; and make “repairs to essential services,” not build infrastructure.19 Long-term reconstruction, as well as disaster mitigation, is a mission for USAID. The ability of the DoD to give its own supplies to non-U.S. government entities becomes important in a disaster relief operation. The rules about giving away U.S. government property in a disaster are complex, and require good judgment and proper characterization of the purpose of the transfer. The circumstances in which the DoD may transfer DoD supplies to a relief organization are discussed in Section IV of this article. The legal and policy framework in which the DoD operates provides both “bright-line” rules and guidance that are clearly defined. The DoD’s response to foreign disasters is a result of complying with the rules and guidance. Over time, the DoD’s compliance has resulted in an archetype DoD response, characterized by immediate response and deliberate response. III. Bounds of DoD’s Immediate and Deliberate Response With the understanding that the DoD is not the lead for disaster response by the United States and that the DoD is not funded to conduct significant disaster relief operations, we can turn to what the DoD can do and how fast it can do it. The military commander of a Unified Command or Combatant Command executes the DoD response to overseas disasters.21 The first is immediate response. Immediate response is prompt, limited in scope and typically very short-term. The second component is deliberate response and encompasses the deliberate actions based on receiving prior higher headquarters’ approval. Although the DoS is the lead federal agent in foreign disaster relief, the DoD is not constrained from taking immediate action. Immediate Response The accepted duration of immediate response is only the first 72 hours after a disaster.22 Military commanders may immediately take two actions on their own inherent authority.23 First, commanders may take actions to prevent the immediate loss of life. The authority for this action is found in DoDD 5100.46. The directive states, “[n]othing in this Directive should be construed as preventing a military commander at the immediate scene of a foreign disaster from undertaking prompt relief operations when time is of the essence and when humanitarian consideration make it advisable to do so.”24 If the immediate scene commander requires assistance he should request it from the higher headquarters. For example, in 2007 a joint U. S. military medical team was training in Bangladesh when Cyclone Sidr struck. The team commander immediately changed its mission from cooperative training to assisting the injured from the cyclone. Later this mission was folded into the larger DoD deliberate response to the cyclone. The second action a commander may immediately take is to assess the situation (DoDD 5100.46, para 5.3.4). The authority to assess the situation comes from the requirement that a commander be aware of situations that may affect their defense mission. The means of assessing the situation will vary with each disaster. It may involve reconnaissance aircraft and ships, or sending in a team of specialists. The assessment team will have the relevant skills and use of available military air or sealift. In the response to Cyclone Sidr, the U. S. military’s Pacific Command (PACOM) dispatched a Humanitarian Assistance Survey Team (HAST) to Dhaka, Bang-ladesh, to conduct an initial assessment of scope and duration of the disaster. This is always coordinated with the U.S. embassy for the required diplomatic clearances. Deliberate Response Typically commanders of a Unified Command or Specified Command will stand-up (or formally activate) a Joint Task Force in the area affected by the disaster to manage the actual day-to-day relief effort.26 The Joint Task Force commander will be responsible for executing the DoD’s deliberate relief mission in the affected area. At the same time that the DoD has begun its immediate response, the OFDA should already be swinging into action with all its specialized resources (e.g. the DART). Based on a disaster declaration from the US ambassador to the affected country, the secretary of state will formally request that the secretary of defense assist the DoS in the disaster relief effort. When the secretary of defense agrees to the request, he will instruct the DoD to make available certain assets to the relief effort. It is the direction from the secretary of defense that authorizes the DoD’s deliberate response. Once the secretary of defense has directed a relief mission, the OHDACA funds that Congress has appropriated for DoD relief missions may be used.27 These crucial funds are managed by the Defense Security Cooperation Agency (DSCA), which is mandated to lead, direct and manage security cooperation programs. Until the DSCA releases the OHDACA funds to the commander to conduct the relief operations, he should not incur any costs related to the relief operation.28 Recall that Congress only gave a small amount of OHDACA money for the DoD to conduct relief operations. If the commander spends money given to him for his defense mission on relief operations, he is violating the law. The very real consequence of the DoD’s deliberate response process is this: until the US ambassador forwards a request to the DoS, the DoS sends a request to the DoD, the secretary of defense approves the request, and the DSCA electronically transfers the funds from Washington DC to the military commander’s account, no significant relief operations should occur. Every cost for the relief operation must As soon as the relief funds are in hand the military commander can order military units to conduct relief operations. Although invisible to those outside of the DoD, considerable effort is made to ensure relief operations do not overspend the available funds. The DSCA typically will provide an initial amount of relief funds. The DSCA will not provide further funding without reliable information about the types of costs and how fast the costs are mounting. For this reason, DoD personnel on the ground at the site of the disaster and at the regional disaster headquarters will always be making daily tallies of the costs (for the tsunami relief, for example, the DoD was spending US$4.6 million per day).30 Relief organizations and military personnel at regional disaster headquarters should understand that without this flow of information, it is very likely that funding would be turned off and military assistance would cease. Having the correct funds is necessary but not sufficient. For example, although the DSCA releases funds for military aircraft to carry relief supplies, it does not mean that the DoD has authority to carry relief supplies from relief agencies and foreign governments. The DoD must have both funds and the authority to conduct a foreign relief mission. Consequently, at the same time as the DoD works its internal processes to ensure a steady flow of relief funds from Washington, the legal staff of the military commander will request authority from the secretary of defense to carry out certain types of relief support. Different types of relief support in deliberate response require authority from different levels within the DoD. The most common example is the DoD authority to move people and cargo by military aircraft (known generically as MILAIR). Other organizations that want to use DoD military airlift must reimburse the DoD or have an explicit waiver. This applies even to other U. S. federal agencies, as well as foreign governments and civilian relief agencies. Frequently, federal agencies and foreign governments are eager to contribute to disaster relief so long as the DoD pays the cost of getting the supplies or equipment there. However, the DoD cannot spend its relief funds to pay for transportation of non-DoD cargo until it has been promised reimbursement, or the secretary of defense has authorized a waiver. In the 2004 tsunami relief operation, the waiver to move nongovernmental and third-country forces without reimbursement was signed ten days after the tsunami. Even this waiver authority limited the ability of the DoD to transport equipment and personnel by tying it directly to disaster support and the DoD mission. When the DoD mission ended, so did the authority to transport civilian organization and third-country personnel and equipment. The DoD deliberate response will terminate when either the military commander declares his mission complete, or the US ambassador to the host country declares that DoD support is no longer required. Termination of the DoD mission ends all funding for further relief actions, as well as the authority to transport civilian and third country personnel and equipment without reimbursement. The ambassadorial declaration only turns off DoD support; USAID usually remains continuing the long term relief projects. Upon mission completion, the DoD transitions back to its primary defense mission. IV. How to Best Utilize the DoD’s Abilities To achieve better cooperation with the DoD, civilian relief organizations may benefit from an understanding of the DoD’s processes and organization. When a civilian relief organization decides that its mission and goals are compatible to working with the DoD, the relief organization should know some basic facts about how to approach the DoD. Like most large government agencies, the DoD is a very hierarchical organization. Therefore, the relief organization must engage the DoD at the correct level to achieve maximum responsiveness. The relief organization must know how to make their request one that the DoD wants to fulfill. Finally, a basic understanding of rules governing the DoD’s ability to loan or give away its property, as well as haul civilian relief organization personnel and equipment, will allow these organizations to match their needs to the DoD’s abilities. A very useful organization that can help a civilian relief organization liaison with the DoD is the Center for Excellence in Disaster Management & Humanitarian Assistance (COE).31 COE operates worldwide but has a strong Asia-Pacific focus. One of COE’s purposes is to facilitate cooperation between the civilian and the DoD’s disaster response. The Center has the ability to explain the DoD response in a current relief operation and may be able to provide useful military and civilian points of contact. However, the Center focuses on providing assistance in civil-military coordination even before a disaster occurs by executing courses and workshops that can educate civilian humanitarian practitioners about the DoD’s typical response, and vice versa. In many cases, the DoD will have a limited understanding of the mission, goals and funding of civilian humanitarian organizations. Therefore, when in the field, civilian humanitarian organization personnel should expect to educate the DoD responders about their organizational structure and funding. As in any large organization, authority within the DoD is not uniformly distributed in a way that is easily understandable to the outsider. Each level and organization in the DoD relief operation will be authorized to approve certain types of support.32 For example, the person who has the authority to approve movement of relief workers by air may not have the authority to move the relief worker’s supplies on the same aircraft.33 Knowing which DoD organization has been delegated the authority to approve the movement of the civilian relief organizations’ supplies is crucial in getting a quick response from the DoD. If a relief organization is unsure of which person is authorized to approve their requested support, they should ask a military representative participating in the relief mission. Other alternatives include contacting COE (http://www.coe-dmha.org) or military unclassified webpages related to a current disaster.34 If a civilian relief organization determines that its mission can be enhanced by cooperating with the DoD, then the relief organization can communicate to the DoD in a way that leads toward cooperation. Essentially, a “win-win” proposal should be discussed. The DoD only has authority to expend funds to advance the DoD’s mission. Therefore, a relief organization should be able to explain to the DoD representatives how its presence directly aids the DoD mission. If a relief organization asks the DoD to perform a service that does not relate to the DoD relief mission, no matter how worthy, the DoD is extremely unlikely to perform. For example, if the DoD mission includes alleviating suffering, then working together with a medical-focused NGO furthers both the mission of DoD and the NGO. On the other hand, if a village bridge desperately needs repair, and the DoD does not find that repairing the village bridge furthers its medical mission then it will not help repair the bridge.35 In a typical foreign disaster relief operation, relief organizations may look to the DoD to loan or transfer supplies and to move people and cargo by air (as they did during the 2004 Indian Ocean Tsunami or the 2005 South Asia Earthquake). Although there is a thicket of rules governing the transfer of military property and moving people and cargo by air, some general observations can There is a distinction between giving away U.S. government property and allowing someone else to use it. The DoD uses two different analyses when deciding whether to loan a generator to a civilian relief organization’s field hospital versus giving the generator to the relief organization. In short, it is much easier to loan the equipment than to give it away. Of course, with a loan, when the military departs it takes its equipment back regardless of whether the relief organization considers its mission complete. The authority to move civilian cargo, including civilian organizations’ relief supplies, is held by the secretary of defense.37 When the secretary of defense approves a relief mission, one of the first actions of the Unified Command staff (in charge of the mission) will be to ask for a delegation of authority from the secretary of defense to move civilian relief supplies on military-controlled air assets. A typical delegation (in response to the 2006 Philippine mudslide in Leyte province) for the secretary of defense states: The delegation will contain further instructions about how the DoD will cover the costs of the free transportation, and not violate internal U.S. Government fiscal and accounting policy. To many civilian organizations, the payment of the costs of transporting relief supplies is transparent. However, it is very important for the Combatant Commander charged with making sure fiscal and accounting rules are followed. Although it is not the intent of this article to present the bureaucratic workings of the DoD, it is useful to a civilian humanitarian organization to have an overview of who holds the authority that a civilian organization may want to utilize. The MILAIR regulation on the transportation of people is complex, and for the purposes of responding to an international disaster, it is the authority of the Unified Commander39 that is most relevant. The Unified Commander has at all times, international disaster or not, the authority to approve non-DoD personnel traveling on military-controlled aviation assets.40 One of the first actions taken by a Unified Commander in response to an approved relief mission is to delegate his authority to the subordinate commander in charge of the US relief mission. This will typically be the Joint Task Force Commander.41 For example, in the 2004 Indian Ocean Tsunami relief operation the United States Pacific Command (USPACOM) Commander, the relevant Combatant Commander, delegated his authority to approve MILAIR to the American Joint Task Force Commander in Thailand. The travel may secondarily benefit the civilian relief organization. However, the main determining factor for MILAIR approval is that the movement of the civilian relief personnel must advance the DoD’s mission. Conclusion When a civilian humanitarian organization decides that its mission and goals could benefit from cooperation with the DoD, the organization should not hesitate to engage the DoD. A clear understanding of the DoD’s role and its limitations in responding to a foreign disaster can put a civilian relief organization at better ease in its interaction with the DoD. While the DoD has a very visible presence, the US government actually places responsibility for foreign disaster response with the Department of State (DoS). The DoS, acting through the ambassador and OFDA, will request and help define the scope of DoD’s assistance. If approved, the DoD is very likely to be one of the first responders with the greatest supply and sustainment capacity. In an immediate or short term response, the unique DoD capabilities can come to the forefront. These capabilities, however, are not without legal and operational constraints. Charged with the defense of the United States, the DoD’s authorities and perspectives are always tied to its defense mission. Civilian relief organizations are similarly bound by their overarching mission and goals. This does not imply that the DoD and relief organizations cannot achieve a win-win relationship. As with any relationship, understanding and respecting the bounds of the other party is essential. Engaging the DoD at the right level of authority
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Major Bradford Byrnes is an active duty military lawyer currently serving on the U. S. military’s Pacific Command staff. He is the subject matter expert for the Pacific Command on international and fiscal law. His academic achievements include a Master’s of Law from the University of Virginia and a Master’s of Military Law from the Army’s Judge Advocate General’s School. He is a graduate of Penn State Dickinson School of Law and is licensed to practice law in Pennsylvania. He also holds a Master’s in Economics from Virginia State University. His assignments include a deployment as the senior U. S. attorney for the American task force in Kosovo. Byrnes has served as military lawyer in Panama, Korea and Germany.