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Philip W. Buchen Files
Philip Buchen's General Subject Files
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American Revolution Bicentennial, 1776-1976
Civil disobedience
Armed forces reserves
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The original documents are located in Box 42, folder "Philadelphia" of the Philip Buchen
Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 42 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
June 9, 1976
Dear Mayor Rizzo:
On behalf of President Ford, this is to confirm the understanding
recently reached between Deputy Attorney General Harold Tyler
and Mr. Hillel Levinson, City Manager of Philadelphia. Requests
for Federalized National Guard and reserve components of the
Armed Forces in suppressing civil disorders must be in accord
with the provisions of Title 10 U.S. C. Section 331. Additionally,
it is my understanding that the Deputy Attorney General also
apprised Mr. Levinson of the Interdepartmental Action Plan for
Civil Disturbances governing the use of Federal troops in a state
in the event of domestic violence.
We are, of course, hopeful that the City of Philadelphia will not
be the site of any mass disturbances during the Nation's
Bicentennial celebration this July 4th. However, I trust that
your efforts and the contingency plans of the Department of
Justice authorized by 10 U.S. C. 331 will insure that the city is
prepared to deal with any eventuality.
I trust this satisfies your inquiry.
Sincerely,
They Buchen W. Buchen
Counsel to the President
The Honorable Frank L. Rizzo
Mayor of Philadelphia
Philadelphia, Pennsylvania 19107
is
FORD
GERALD
LIDRARY
THE WHITE HOUSE
WASHINGTON
June 3, 1976
MEMO FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
K
Mayor Rizzo has requested that the President
make available 14,000 troops for the July 4th
celebration in Philadelphia. Attached are
materials relevant to the legal questions raised
by the inquiry.
I thought you might want to
familiarize yourself with them. The Domestic
Council is handling the letter.
Attachments
GERALD R. FORD VIBRART
MEMORANDIM
Re: Legal Authority for Using Federalized
National Guard and Reserve Components
of Anned Forces in Suppressing Civil
Disorders at the Request of 2 State.
Questions have arison as to whether the President, in
responding to = request by a State for military aid to sup=
press civil disorder, is authorized by 10 U.S.C. 331 1/
(1) to federalize "the militia" (i.e., National Guard) of
the requesting State, for use along with whatever other forces
the President may send into that State to suppress the dis-
order; or (2) to use, for the same purpose, components of the
Reserve of any of the armed forces. For reasons stated below,
it is concluded that section 331 alone would not authorize
either of these actions. However, in practical terms, ample
authority exists under other provisions for federalizing the
Guard of the requesting State; such authority is lacking for
calling up units of the Reserves except under a temporary
provision expiring June 30, 1968.
1. Federalization of the Guard of the Requesting State.
Section 331 provides that the President may call into Federal
service such of the militic "of the other States" as be con-
siders necessary. This plurase need not be construed as pro-
hibiting by implication the federalization of the Guard of the
requesting State. It is clear, however, that no explicit
authorization for such action can be found in section 331.
The legiclative history of the original Act of 1792 from
which section 331 derives, 1 Stat. 264, sheds to light OR
1/ 10 U.S.C. 331 provides as follows:
"Whenever there is an insurrection in any State
against its government, the President may, upon the
request of its legislature or of its governor if the
legiclature 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 forces, as he considers necessary to
FORD
suppress the insurrection."
is
GERALD
LIBRARY
this omission. We are not aware of any instance (and understand
that Army historians are not either), prior to last summer's riot
in Detroit, in which the Guard of the requesting State was fed-
eralized for use in operations authorized primarily by section
331 or its statutory predecessors. 2/
In the Detroit riot, as well as in the riots of April 1968
in Chicago and Baltimore, federalization of Guard units of the
respective States of Michigan, Illinois and Maryland was based
primarily upon the President's authority, under 10 U.S.C. 332,
to call into Federal service the nilitia "of any State" to re-
move obstructions to the enforcement of Federal law, and, under
10 U.S.C. 333(2), to use "the militia" to suppress domestic
violence and other unlawful activity which obstructs the execu-
tion of Federal law. 3/ On each of these occasions, the Predident's
proclamation invoked Chapter 15 of Title 10 in its entirety
(sections 331-34) as the basis for Federal intervention, after
paraphrasing the key words of sections 332 and 333 by reciting
that "domestic violence and disorder are
obstructing the
execution of the laws of the United States, including the protec-
tion of federal property.
12
2/ Congressional debate on the provisions of the Act of 1792 is
reported in 3 Annals of Cong. 575-79.
On several past occasions, forces of the requesting State,
without being called into Federal service, have been placed un-
der the operational command of the military officer in command
of the intervening Federal troops See B.M. Rich, The Presidents
and Civil Disorder 112, 191 (Brookings Institution, 1941).
3/ Pursuant to 10 U.S.C. 332 and 333, Guard units of the home
State have been federalized in recent years to assist in enforc-
ing Federal court orders protecting the exercise of civil rights
in several Southern States, beginning with the Little Rock epi-
sode of 1957.
41 Proclamation No. 3795 (32 Fed. Reg. 10905, July 24, 1967)
No. 3S41 (33 Fed. Reg. 5497, April 7, 1968); No. 3642 (33 Fed.
Reg. 5499, April 7, 1968).
Although not explicitly cited in these proclamations, tempo-
rary supplementary authority for federalizing Guard units of the
States in which those riots occurred may be found in the so-called
Russell Amendment (Title I, 1967 Defense Appropriations Act, SO
Stat. 931), which authorizes the President until June 30, 1963 to
order Ready Reserve units (including National Guard units to
10
months.
U.S.C. 269(b)) of the armed forces to active duty for BERALE up
-
ONLIBRANY
- 2 by
As a practical matter, when domestic violence breaks out on
a wide enough scale to warrant a request and an affirmative re-
sponse under section 331, the President will have sufficient
grounds for invoking sections 332 and 333 (2) along with 331 in
dealing with the situation. Disorders of this magnitude are
bound to violate Federal as well as State laws, and to obstruct
the operations and endanger the property of the Federal Govern-
ment. The absence of express authority under section 331 to
federalize the Guard of the requesting State is therefore no
obstacle to securing unified Federal command over all military
forces in the field, pursuant to the several provisions of Chap-
ter 15 of Title 10 (sections 331-34). 5/ It should be noted,
however, that in the absence of a request under section 331 based
on the inability of the requesting State to restore law and order
with all the resources at its command, including its own National
Guard in militia status, and an affirmative Presidential response
[under section 331 to that request, there will not ordinarily be
sufficient grounds for using Federal military force pursuant to
sections 332 and 333 (2) alone to suppress the disturbance. The
primary responsibility for preserving a climate of Iaw and order
in which Federal as well as State laws can operate remains with
the States under our Federal system.
5/ It has also been suggested that since the federally recog-
nized portion of the Army National Guard is 3 reserve component
of the armed forces (10 U.S.C. 261), that portion of the Guard
of the requesting State may be included among the "arned forces"
which the President is authorized to "use" under section 331.
However, as discussed below in section 2 of this memorandum, re-
serve components may not be used == parts of the armed forces
until they are called or ordered into active service pursuant
to statutory authority. The President's authority under section
331 to "use" the armed forces does not include authority to order
into active service reserve components of the armed forces.
6/ However, if the primary effect of a disturbance should be to
obstruct the execution or enforcement of Federal laws, or if
this should be the incidental effcct of a disturbance that con-
tinues for an unreaconable length of time without a request for
aid being submitted by the Governor to the President under sec-
tion 331, intervention under section 332 or 333 (2) clone to
suppress the disturbance may be justified.
- 3 -
LIBRANT GERALD FORD
2. Use of Reserves Chanter 15. The second question
is whether units of the Away Reserve, as part of the "armed
forces," 6/ may be ordered into active service and "used" by
the President pursuant to 10 U.S.C. 331-333 to suppress civil
disorders. For simplicity of presentation, the question will
be discussed in terms of the Army, but the same analysis would
be applicable to the Air Force and Navy Reserves.
The National Defense Act of 1916, as amended, established
the National Guard of the United States and the Organized Ro-
serve Corps as reserve components of the Army. These are now
the Army National Guard of the United States and the Army De-
serve. As reserve components of the Army, they were from the
time of their creation part of the "land and naval forces" of
the United States.
Under present Title 10, both the Army Reserve and the Army
National Guard of the United States are reserve components of
the Army, 10 U.S.C. 261, and thus within the statutory definition
of the "arned forces" of the United States, 10 U.S.C. 101(4).
However, we believe, and we understand the Army lawyers concur,
that it is implicit in the reserve provisions of Title 10 that
reserve components may not be "used" as part of the arued forces,
in the sense of sections 331-333, until they have been "called"
or "ordered" to active duty pursumt to statutory authority.
See especially 10 U.S.C. 672, 682, 3495. 11 The Army National
6/ Prior to the Act of August 10, 1956, 70A Stat. 1, the prede-
cessor provisions to 10 U.S.C. 331 and 333 authorized the Presi-
dent to use such part of the "land or neval forces" as he deems
necessary for the purposes of these provisions, while the prede-
cessor provision to 10 U.S.C. 332 authorized use of "Land and
naval forces." That Act codified these as sections 331-333 of
Title 10, United States Code, and substituted the words "armed
forces" for the quoted phrases. The legislative history makes
clear that this codification did not intend any substantive
change. Moreover, the variant uses of the words "and" and "or"
in the predecessor sections do not appear to have any signifi-
cance.
71 Pursuant to section 632, it is clear that units of the Army
Reserve on active duty my be used to suppress civil disorders
upon exercise of the President's authority under sections GERALD 331089
333.
LIBRARY
- 4
Guard, as the "militie" of a State, explicitly may be "called"
into Federal service pursuant to 10 U.S.C. 331 or 332, and we
understand section 333 likewise to réquire a "call" though the
word is not used there. CE. 10 U.S.C. 3500.
There is no similar authorization in sections 331-333 for
ordering to active duty units of the Army Reserve. Permanent
authority for ordering various parts of the Army Reserve to
active duty is to be found in 10 U.S.C. 672, 673 and 674, none
of which appears applicable at the present time. Temporary
authority to order units of the Ready Reserve to active duty
now erists in the so-called Russell Amendment (Title I, 1967
Dafense Appropriations Act, 80 Stat. 931), which authorizes
the President until June 30, 1968 to order such units of any
of the armed forces to active duty for up to 24 months. I
With the exception of exercise of the temporary authority
contained in the Russell Amendment, it appears that under
present law units of the Army Reserve may not be ordered to
active duty to suppress civil discrders.
si Section 303 of P.L. 90 - 500, 82 Stat. 850, extended tris authority
to June 30, 1969.
- 5 -
FORD is LIBRARY
APR 1 1969
MEMORANDUM FOR THE PRESIDENT
Re: Interdepartmental Action Plan
for Civil Disturbances
Introduction
This memorandum outlines a plan by which the Departments of
Defense and Justice propose (1) to coordinate their preparations for
and their responses to any serious civil disturbance that may hereafter
occur in a city in the United States, and (2) to assist the President
in responding appropriately and effectively to any request he may receive
for Federal military forces to aid in suppressing such a disturbance.
While the plan is principally geared to situations involving a State
request for assistance in controlling urban violence and disorder under
section 331 of Title 10, United States Code, the relationships it formalizes
are equally applicable to other situations, such as the enforcement of
Federal law under 10 U.S.C. 332 or the protection of civil rights pursuant
to 10 U.S.C. 333, that may require the employment of Federal armed forces.
The Secretary of Defense and the Attorney General join in submitting
this plan for your consideration and approval. If you approve it, our
Departments will work out the details. We believe that the proposed
plan merits your prompt attention because you may have to decide, on
short notice, whether to honor a request for military aid to quell a
civil disturbance.
FORD
GERALD
LIBRARY
A principal feature of the plan is the designation of the Attorney
General as the chief civilian officer in charge of coordinating all
Federal Government activities relating to civil disturbances. The
Attorney General is the logical choice for this role in view of his
responsibilities as chief law enforcement officer of the Federal Government,
and as chief legal adviser to the President on the critically important
decisions the President must personally make as to whether and when to
commit military forces in response to a request.
On the other hand, all essentially military preparations and operations,
including especially the employment of military forces at the scene of a
disturbance, will be the primary responsiblity of the Secretary of Defense.
In discharging these functions, he will observe such law enforcement policies
as the Attorney General may determine. To the extent practical, such law
enforcement policies will be formulated during the planning stage so that
military commanders can familiarize themselves with them and train their
personnel to implement them. This will assure that military planning and
operations are consistent with Administration policy and the requirements
of law.
- 2 -
IUND
GERALD
LIBRARY
The responsiblities of the Department of Defense under this plan
will be carried out principally through the Department of the Army,
inasmuch as the Secretary of the Army is assigned primary responsi-
bility for civil disturbance matters, as Executive Agent, subject to
the general supervision of the Secretary of Defense. Within the
Department of the Army, a Directorate for Civil Disturbance Planning
and Operations serves the Secretary and the Army Chief of Staff as the
principal military staff agency for such matters.
Prior to the time a decision has been made to commit Federal armed
forces in a locality the White House shall be responsible for all public
information activities. Thereafter, the dissemination of all public
information in connection with the control of civil disturbance shall
be undertaken by or as directed by the White House.
I. The Basic Plan
The plan is divided chronologically into four phases:
1. The period of civil disturbance planning and intelligence
operations prior to the outbreak of any actual disturbance.
2. The period from the initial outbreak of an actual disturbance
to the time at which the President decides to employ Federal military
force.
3. The period during which Federal military forces are employed
at the scene of the disorder.
BERALD R. FORD LIBRARY
- 3 -
4. The portion of the latter period during which the advisability
of withdrawing the Federal forces is considered decided, and acted upon.
The basic plan for each of these phases is as follows:
Phase One--Advance Planning and Intelligence Operations
As in the recent past, the Secretary of Defense will have the primary
responsibility for training, equipping, and designating the forces to
be used in controlling civil disturbances. He will also retain primary
responsibility for preparing operation plans, determining procedures
for alerting and moving the forces, and testing command and control arrange-
ments. The Attorney General will be consulted on important questions of
law and law enforcement policy arising in connection with these plans and
preparations.
The Attorney General will contact all the State Governors, reminding
them of the legal requirements for obtaining Federal military aid pursuant
to section 331 of Title 10, United States Code; that a situation of
serious domestic violence exists within the State; that such violence
cannot be brought under control by the law enforcement resources available
to the Governor, including local and State police forces and the National
Guard; and that the Governor requests the President to employ the Armed
Forces to bring the violence under control. The Governors will be advised
to direct to the Attorney General all preliminary communications concerning
the possible need for Federal military assistance under such circumstances.
is
FDHD
- 4 -
GERALD
LICENSE
Under the supervision of the Attorney General, raw intelligence
data pertaining to civil disturbances will be acquired from such sources
of the Government as may be available. Such data will be transmitted to
the Intelligence Unit of the Department of Justice, and it will be
evaluated on a continuing basis by representatives from various depart-
ments of the Government. After evaluations have been made, the data
will be disseminated to the Attorney General, the Secretary of Defense,
and the White House.
Phase Two--Responding to Early Phases of a Civil Disturbance
During the early stages of a crisis in which it appears that à
request for Federal military assistance may be forthcoming, the intelli-
gence organization of the Department of Justice will alert the Attorney
General and the Secretary of Defense. It is expected that responsible State
and local officials will promptly inform the Attorney General of the
situation and will thereafter keep him informed of developments. When
advised that a serious disturbance is in the making, the Attorney General
will immediately inform the President.
If time permits, the Attorney General and the Secretary of Defense
may dispatch their personal representatives to the disturbance area to
appraise the situation before any decision is made to commit Federal forces.
Such action can help to assure that the Federal Government responds in
accordance with the realities of the situation as perceived by its own
observers.
GERALD R. FORD
- 5 -
Precautionary steps, such as alerting Federal armed forces and
prepositioning them relatively near the disturbance area, can be
taken by the Federal Government prior to receipt of a formal request
from a Governor for. Federal military assistance. Prepositioning of
more than a battalion-sized unit (approximately 500 men) by order of
the Secretary of Defense will be undertaken only with the informal
approval of the President. Such approval will be sought by the Attorney
General, and, ordinarily, only if there appears to be a substantial
likelihood that such forces will be required.
When the State Governor anticipates that a request for Federal
military assistance will shortly become necessary, he will confer with
the Attorney General concerning the facts of the situation, so that the
Attorney General can review the legal sufficiency of the impending request.
After consultation with Department of Defense officials on the gravity of
the situation, the Attorney General will advise the President whether the
conditions would warrant honoring a request at that particular time.
When the Governor concludes that a formal request for military
assistance is necessary, he will address it directly to the President.
At such time, the President must exercise his personal judgment as to
whether or not to commit Federal armed forces. The decision may be a
difficult one, as it involves a weighing of the apparent need for Federal
- 6 -
FORD
GERALD
LIBRATA
forces in the circumstances, and the President's responsibility to
respond to State requests for such assistance, against the primary
responsibility of State and local authorities for maintaining local
law and order, and the inadvisability of employing Federal military
force for that purpose except in the last resort.
The Attorney General will have furnished the President with an
appropriately drawn Proclamation and Executive Order, to be signed by
the President in the event that he decides to honor the request. These
documents will formalize the decision and state the factual and legal
grounds on which it is based.
Phase Three Management nf Federal Troops
The Executive Order will authorize the Secretary of Defense to conduct
the military operation, subject to the law enforcement policies determined
by the Attorney General during the planning phase. Guided by such policies,
pursuant to established procedures within the Department of Defense the
* / Attached are proposed forms of Proclamation and Executive Order, one
set for use in response to a State request, the other for use in connection
with a civil disturbance in the Washington Metropolitan area.
The Proclamation is essentially a formality which fulfills the require-
ment of 10 U.S.C. 334. The attached Proclamations are based on the form
developed by Attorney General Brownell in the Little Rock disturbance of
1957, and used since that time in a variety of civil disturbance situations.
The attached forms of Executive Order, however, embody several improvements
over those used in recent incidents, notably in spelling out the respective
responsibilities of the Attorney General and the Secretary of Defense in
coping with a civil disturbance.
FORD
GERALD
- 7 -
Secretary of Defense is responsible for the necessary military decisions
and for issuance of the appropriate orders to the military commanders
concerned. Thus the chain of military command running down from the
Secretary of Defense will be preserved. The established law enforcement
policies may require revision or elaboration during the actual military
operations; in that event, the Secretary of Defense will refer such
matters, military exigencies permitting, to the Attorney General, together
with his recommendations. The Executive Order further authorizes the
Secretary of Defense to federalize National Guard Units and, if required,
to order units of Reserve Components of the Armed Forces to active duty
for purposes of the operation.
The Attorney General will have a personal representative located
with the military task force commander in each city where armed forces
are committed. Standing military instructions to Task Force Commanders
will instruct the commanders to consult with the Attorney General's
representative on all significant matters.
By the terms of the Order, the Attorney General will remain responsible
(1) for coordinating the activities of all Federal agencies assisting in
the suppression of violence and in the administration of justice in the
affected area, and (2) for coordinating these activities with those of
State and local agencies similarly engaged.
Phase Four--Withdrawal of Federal Troops
As the employment of Federal military forces succeeds in bringing
the disturbance under control, the military commander and the representative BERALD
- 8 -
of the Attorney General at the scene of the disturbance will make
recommendations to their respective superiors concerning the timing
for the withdrawal of Federal units, the defederalization of National
Guard units, and the release from active duty of any Reserve units. It
is expected that the Secretary of Defense will decide these matters in
the light of the Attorney General's recommendations as to the ability
of the civil authorities to resume full responsibility for the main-
tenance of law and order in the affected area.
II. The Basic Plan for the Washington Metropolitan Area
The respective roles of the Secretary of Defense and the Attorney
General in preparing for and responding to a civil disturbance in the
Washington metropolitan area are essentially the same as described above
with respect to disturbances within a State. Thus the Attorney General
will be responsible for coordinating Federal activities and determining
Federal law enforcement policies relating to civil disturbances in this
area, and the Secretary of Defense will be in charge of military operations
to suppress such a disturbance.
There are, however, several supplemental features and variations
that characterize the basic plan as applied to the Washington area.
Those are as follows:
1. The basic plan must include not only provisions for dealing
with generalized disturbances, but also provisions for protecting
government property, functions, or personnel in this area against any
- 9 -
GERALD FOND LIBERTY
form of unlawful interference. Military operations to suppress such
interference will be the responsibility of the Secretary of Defense,
subject to the law enforcement policies of the Attorney General.
2. The President will ordinarily look to the Mayor of the
District, as he does to the Governor of a State, to make a formal
request for military assistance to control a local civil disturbance.
3. In addition to his general authority to employ Federal military
forces as described above, the President, as Commander-in-Chief of the
D.C. National Guard, is authorized to use that Guard in militia status
to suppress a civil disturbance in the District without the necessity
for a Proclamation or Executive Order.
To facilitate the practical availability of this option, the
outstanding Executive Order of 1949 vesting administrative control over
the D.C. Guard in the Secretary of Defense (E.O. 10030) should be amended
to establish the Secretary's authority in such cases to call out the
Guard in militia status to control a local civil disturbance. An amended
Executive Order will be prepared for the President's approval and signature.
The D.C. National Guard will be used in militia status for the purpose
of suppressing a civil disturbance only after the informal approval of the
President has been obtained. In a particular civil disturbance situation,
the Attorney General, after consulting with the Secretary of Defense, will
advise the President as to the choices available to him with respect to
utilization of the D.C. National Guard and active armed forces.
- 10 -
GERRED
GREE
4. In addition to actual outbreaks of civil disorder, the D.C.
planning takes account of the possibility that peaceful demonstrations
in the District may develop into civil disturbances. In order to
minimize that risk, provision can be made for the policing of such
demonstrations by National Guardsmen in their militia status as well
as by District police forces. Moreover, planning provides for the
limited use of active armed forces to protect Government property and
functions against unlawful interference (as on the occasion of the
demonstration at the Pentagon in October of 1967).
If you approve the plan as outlined above, the Departments of
Defense and Justice will take all necessary steps to implement it.
Melvin R. Laird
John N. Mitchell
Secretary of Defense
Attorney General
- 11 -
R.
1046
GERALD
Office of the Attorney General
Washington, n. C. 20530
Dear Governor:
At the President's request, I am writing you regarding
the legal requirements for the use of Federal troops in case
of severe domestic violence within your state. The require-
ments are simple. They arise from the Constitution. So the
principles will be clearly in mind, I will briefly outline here
the basic considerations of Federal law applicable to such a
situation.
The underlying constitutional authority is the duty of
the United States under Article IV, Sec. 4, to protect each of
the states "on Application of the Legislature, or of the Execu-
tive (when the Legislature cannot be convened) against domestic
Violence. " This pledge is implemented by Chapter 15 of Title
10, U.S. C and particularly 10 U.S. C. 331, which derives from
an act of Congress passed in 1792. The history of the use of
Federal forces at the request of governors in varied circum-
stances of local violence over more than a century is also in-
structive.
There are three basic prerequisites to the use of Federal
troops in a state in the event of domestic violence:
(1) That a situation of serious "domestic Violence" exists
within the state. While this conclusion should be supported with 2
statement of factual details to the extent feasible under the circum-
stances, there is no prescribed wording.
(2) That such violence cannot be brought under control by
the law enforcement resources available to the governor, includ-
ing local and State police forces and the National Guard. The
R
03RALD
FORD
judgment required here is that there is a definite need for
the assistance of Federal troops, taking into account the re-
maining time needed to move them into action at the scene
of violence.
(3) That the legislature or the governor requests the
President to employ the armed forces to bring the violence
under control. The element of request by the governor of a
State is essential if the legislature cannot be convened. It
may be difficult in the context of urban rioting, such as we
have seen this summer, to convene the legislature.
These three elements should be expressed in a written
communication to the President, which of course may be a tele-
gram, to support his issuance of a proclamation under 10 U.S. C.
334 and commitment of troops to action. In case of extreme
emergency, receipt of a written request will not be a prerequisite
to Presidential action. However, since it takes several hours
to alert and move Federal troops, the few minutes needed to
write and dispatch a telegram are not likely to cause any delay.
Upon receiving the request from a governor, the President,
under the terms of the statute and the historic practice, must
exercise his own judgment as to whether Federal troops will
be sent, and as to such questions as timing, size of the force,
and federalization of the National Guard.
Preliminary steps, such as alerting the troops, can be
taken by the Federal government upon oral communications and
prior to the governor's determination that the violence cannot
be brought under control without the aid of Federal forces.
Even such preliminary steps, however, represent a most serious
departure from our traditions of local responsibility for law en-
forcement. They should not be requested until there is a sub-
stantial likelihood that the Federal forces will be needed.
While the formal request must be addressed to the President,
all preliminary communications should be with mc. When advised
by you that serious domestic violence is occuring, I will inform
the President and alert the proper military authorities. You
can reach me at my office, my home, or through the White House
switchboard at any hour.
&
GERALD
FORD
2
LIBRARY
Enclosed are çopies of the relevant constitutional
and statutory provisions and a brief summary of past occasions
on which a governor has requested Federal military assistance.
Your legal counsel, I am sure, keeps you fully advised of re-
quirements of state law as well.
If you have any questions or comments, please let me
know.
Sincerely,
Attorney General
Enclosures
GERALD
BRARY
3
THE CONSTITUTION
Article IV, Section 4
The United States shall guarantee to every State in
this Union a Republican Form of Government, and shall protect
each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature
cannot be convened) against domestic Violence.
TITLE 10, UNITED STATES CODE
Chapter 15
§ 331. Federal aid for State governments.
Whenever there is an insurrection in any State against
its government, the President may, upon the 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 forces, as he considers necessary to
suppress the insurrection.
§ 334. Proclamation to disperse.
Whenever the President considers it necessary to use
the militia or the armed forces under this chapter, he shall,
by proclamation, immediately order the insurgents to dis-
perse and retire peaceably to their abodes within a limited
time.
8.
FORD
GERALD
LIBRARY