Background: Using Defense Funds for Construction in a National Emergency

Background: Using Defense Funds for Construction in a National Emergency

Background:
Using Defense Funds for Construction
in a National Emergency
February 6, 2019

DOD Context
• Two Presidents have invoked the NEA and cited Title 10 U.S.C.
§2808 to carry out otherwise unauthorized construction with
military construction funds:
• Operation Desert Shield, EO 12734 of November 14, 1990
• 9/11, EO 13235 of November 16, 2001. Under this, the president was required
and able to renew the authority.
• Recent Border Operations – under Title 32
• Operation Jumpstart, 2006 – 2008, $1.2B, Title 32
• Operation Phalanx, 2010-2016, $.15B – 2010-2011, Title 32
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Defense Actors
Secretary of Defense: 10 USC §113
Mission: To provide the military forces needed to deter war
and to protect the security of the United States. The
department's headquarters is at the Pentagon
Commander, USNORTHCOM: 10 USC 164
Mission: To conduct homeland defense, civil support and
security cooperation to defend and secure the United States
and its interests.
U.S. Army Corps of Engineers (USACE)
Mission: To deliver vital public and military engineering
services; partnering to strengthen national security, energize
the economy, and reduce disaster-related risks.
U.S. Army North (ARNORTH)
Mission: conduct homeland defense, civil support operations
and theater security cooperation activities.
U.S. Marine Forces Northern Command
Mission: To execute antiterrorism program and force
protection responsibilities; advise on proper employment of
USMC Forces; coordinate with and support USMC Forces when
attached to USNORTHCOM
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Geography: Border Lands by Agency
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Geography: DOD lands
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Further Reading
• The U.S. Army on the Mexican Border: A Historical Perspective,
https://www.armyupress.army.mil/Portals/7/combat-studies-
institute/csi-books/Matthews_op22.pdf.
• Drugs on the Border: The Role of the Military, Parameters
Magazine, Winter 1991-92,
https://ssi.armywarcollege.edu/pubs/Parameters/articles/1991/
1991%20brown.pdf.
• After Desert Storm, The U.S. Army and the Reconstruction of
Kuwait, https://apps.dtic.mil/dtic/tr/fulltext/u2/a531941.pdf.
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Selected Statutes for Discussion
• Title 10 §2808 - Construction authority in the event
of a declaration of war or national emergency
• Title 33 §2293 - Reprogramming during national
emergencies
• Title 10 §284 - Support for counterdrug activities and
activities to counter transnational organized crime
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Title 10 §2808
Construction authority in the event of a declaration of war or national emergency
• (a) In the event of a declaration of war or the declaration by the President of a
national emergency in accordance with the National Emergencies Act (50 U.S.C.
1601 et seq.) that requires use of the armed forces, the Secretary of Defense,
without regard to any other provision of law, may undertake military construction
projects, and may authorize the Secretaries of the military departments to
undertake military construction projects, not otherwise authorized by law that are
necessary to support such use of the armed forces. Such projects may be
undertaken only within the total amount of funds that have been appropriated for
military construction, including funds appropriated for family housing, that have
not been obligated.
• (b) When a decision is made to undertake military construction projects authorized
by this section, the Secretary of Defense shall notify, in an electronic medium
pursuant to section 480 of this title, the appropriate committees of Congress of
the decision and of the estimated cost of the construction projects, including the
cost of any real estate action pertaining to those construction projects.
• (c) The authority described in subsection (a) shall terminate with respect to any
war or national emergency at the end of the war or national emergency.
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Title 33 §2293
Reprogramming during national emergencies
•
(a) Termination or deferment of civil works projects; application of resources to national
defense projects
In the event of a declaration of war or a declaration by the President of a national emergency
in accordance with the National Emergencies Act [50 U.S.C. 1601 et seq.] that requires or
may require use of the Armed Forces, the Secretary, without regard to any other provision of
law, may (1) terminate or defer the construction, operation, maintenance, or repair of any
Department of the Army civil works project that he deems not essential to the national
defense, and (2) apply the resources of the Department of the Army's civil works program,
including funds, personnel, and equipment, to construct or assist in the construction,
operation, maintenance, and repair of authorized civil works, military construction, and civil
defense projects that are essential to the national defense.
•
(b) Termination of state of war or national emergency
The Secretary shall immediately notify the appropriate committees of Congress of any
actions taken pursuant to the authorities provided by this section, and cease to exercise such
authorities not later than 180 calendar days after the termination of the state of war or
national emergency, whichever occurs later.
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Title 10 §284
Support for counterdrug activities and activities to counter transnational
organized crime
FY2019 DOD Appropriations for
(a) SUPPORT TO OTHER AGENCIES.—The
“Drug Interdiction and Counter-Drug
Secretary of Defense may provide
Activities” (P.L. 115-245)
support for the counterdrug activities
or activities to counter transnational
$881.5 million, of which:
organized crime of any other

department or agency of the Federal
$517.2 million for counter-narcotics
Government or of any State, local, tribal,
support

or foreign law enforcement agency for
$121.9 million for drug demand
any of the purposes set forth in
reduction program

subsection (b) […]
$217.2 million for National Guard
counter-drug program
(b) TYPES OF SUPPORT FOR AGENCIES OF
$25.3 million for National Guard
UNITED STATES.- […]
counter-drug schools program
(7) Construction of roads and fences and
installation of lighting to block drug
For FY2019, DOD requested $130.3
smuggling corridors across international
million for “domestic support.”
boundaries of the United States. [...]
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