[Congressional Record Volume 155, Number 97 (Thursday, June 25, 2009)]
[Senate]
[Pages S7079-S7081]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Bond):
  S. 1361. A bill to amend title 10, United States Code, to enhance the 
national defense through empowerment of the National Guard, enhancement 
of the functions of the National Guard Bureau, and improvement of 
Federal-State military coordination in domestic emergency response, and 
for other purposes; to the Committee on Armed Services.
  Mr. LEAHY. Mr. President, today I am pleased to join with Senator 
Bond in introducing the National Guard Empowerment and State-National 
Defense Integration Act of 2009. This is a clearly needed piece of 
legislation that will enable the Nation to tap more of the tremendous 
experience and expertise that exists within the National Guard.
  This legislation--known as Empowerment II--ensures that the 
Department of Defense takes advantage of the Guard's unique strengths 
and focuses on the critical mission of domestic operations and military 
support to civilian authorities. This bill is about focusing attention 
on the military's response to emergencies at home and fleshing out the 
structure of that response. Doing that will ensure our National Guard, 
Reserves and active forces can bring their specialized capabilities to 
bear, all while safely under the control of democratically elected 
officials and civilian authorities.
  The bill will specifically make the Chief of the National Guard a 
full member of the Joint Chiefs of Staff, while creating a new three-
star deputy to the Bureau Chief to reflect the Bureau Chief's increased 
responsibilities. Additionally, the 2009 Empowerment Act provides the 
National Guard Bureau with limited budget authority to be able to 
acquire specially designed equipment for domestic operations, and it 
requires the Department of Defense to establish procedures to formalize 
arrangements to allow National Guard forces to have tactical control 
over active forces that operate in a domestic setting.
  Today Senator Bond and I seek to build on some of the major 
improvements to the Guard that we, together, made in the Fiscal Year 
2008 Defense Authorization Bill. That landmark bill enacted large 
portions of the first version of the Guard Empowerment Bill which 
elevated the Chief of the National Guard from three-star general to 
full General. The goal of all the changes enacted was to begin to 
ensure that the Guard has a seat at the table in major budget and 
policy decisions.
  We need to pick up where we left off early last year and sharpen the 
focus on the National Guard's role as a homeland defense and defense 
support to civilian authorities force. In fact, we are trying, in the 
realm of domestic operations and military support to civilian 
authorities, to do exactly what Secretary of Defense Robert Gates is 
trying to do in the realm of irregular warfare. The Secretary is 
working to ensure that at least a good portion of the Department of 
Defense's equipment has utility in counterinsurgency situations. The 
Secretary has recently testified that he foresees about 10 percent of 
procured equipment to be dedicated solely for counterinsurgencies. I 
strongly support the Secretary's initiative.
  There also is a need to carve out a small wedge of the defense budget 
to develop technologies and systems that will help the National Guard, 
serving in a Title 32 capacity under the control of the Governors. Much 
of all Guard equipment is considered and should be ``dual use,'' but a 
sliver should be specially designed and used solely for domestic 
situations.
  The Guard Empowerment bill we are introducing today will also reduce 
the confusion that sometimes exists when there is a domestic emergency 
about how National Guard forces, serving under a Governor during an 
emergency, will interact with active duty forces that serve under the 
President's command. United States Northern Command in Colorado has 
unfortunately only exacerbated those concerns through attempts to 
override Governors and take command-and-control of National Guard 
assets in a State even though they are in their so-called Title 32 
status.
  There is nothing in this bill that the National Guard is not already 
undertaking. The President and the Secretary of Defense look to the 
Guard Bureau Chief on matters related to defense at home. The Guard 
works to purchase homeland defense-oriented equipment through the so-
called Guard and Reserve Equipment Account, and the Governors already 
wield active duty personnel during so-called National Security Events. 
The chain of command arrangements made during last year's political 
conventions in Minnesota and Colorado are a good example.
  The President recognizes that this legislation makes sense. In his 
``Blueprint for Change,'' his new Administration's national security 
plan, President Obama endorsed the idea of making the Guard Bureau 
Chief a full member of the Joint Chiefs of Staff, a move that Vice 
President Biden also has endorsed. In developing the bill, we worked 
closely with The National Guard Association of the United States, the 
Adjutants General Association of the United States and the Enlisted 
National Guard Association of the United States--organizations that we 
expect to formally endorse the bill after its introduction.
  Everyone recognizes that if there is an emergency like Katrina and 
our civilian resources at all levels get overwhelmed, the military is 
going to have to come in to assist. The American people expect no less 
than a swift, coordinated and effective response. And it is the 
National Guard that knows how to do this mission right. Providing 
support to civilian authorities at the State level is what the Guard 
has done since its inception more than two centuries ago, and it is a 
mission that the National Guard continues to take seriously.
  This legislation solidifies and codifies sensible approaches to 
improving the Guard's ability to support civil authorities in an 
emergency. Enactment of this legislation is the very least we owe our 
proud citizen soldiers and airmen for their efforts.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1361

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Guard Empowerment 
     and State-National Defense Integration Act of 2009''.

     SEC. 2. EXPANDED AUTHORITY OF THE CHIEF OF THE NATIONAL GUARD 
                   BUREAU.

       (a) Membership on Joint Chiefs of Staff.--
       (1) In general.--Section 151(a) of title 10, United States 
     Code, is amended by adding at the end the following new 
     paragraph:
       ``(7) The Chief of the National Guard Bureau.''.
       (2) Conforming amendment.--Section 10502 of such title is 
     amended--

[[Page S7080]]

       (A) by redesignating subsections (d) and (e) as subsections 
     (e) and (f), respectively; and
       (B) by inserting after subsection (c) the following new 
     subsection (d):
       ``(d) Member of Joint Chiefs of Staff.--The Chief of the 
     National Guard Bureau shall perform the duties prescribed for 
     him or her as a member of the Joint Chiefs of Staff under 
     section 151 of this title.''.
       (b) Annual Report to Congress on Validated Requirements.--
     Section 10504 of title 10, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(c) Annual Report on Validated Requirements.--Not later 
     than December 31 each year, the Chief of the National Guard 
     Bureau shall submit to Congress a report on the following:
       ``(1) The requirements validated under section 10503a(b)(1) 
     of this title during the preceding fiscal year.
       ``(2) The requirements referred to in paragraph (1) for 
     which funding is to be requested in the next budget for a 
     fiscal year under section 10544 of this title.
       ``(3) The requirements referred to in paragraph (1) for 
     which funding will not be requested in the next budget for a 
     fiscal year under section 10544 of this title.''.

     SEC. 3. EXPANDED FUNCTIONS OF THE NATIONAL GUARD BUREAU.

       (a) Military Assistance for Civil Authorities.--Chapter 
     1011 of title 10, United States Code, is amended by inserting 
     after section 10503 the following new section:

     ``Sec. 10503a. Functions of National Guard Bureau: military 
       assistance to civil authorities

       ``(a) Identification of Additional Necessary Assistance.--
     The Chief of the National Guard Bureau shall--
       ``(1) identify gaps between Federal and State military 
     capabilities to prepare for and respond to emergencies; and
       ``(2) make recommendations to the Secretary of Defense on 
     programs and activities of the National Guard for military 
     assistance to civil authorities to address such gaps.
       ``(b) Scope of Responsibilities.--In meeting the 
     requirements of subsection (a), the Chief of the National 
     Guard Bureau shall, in coordination with the adjutants 
     general of the States, have responsibilities as follows:
       ``(1) To validate the requirements of the several States 
     and Territories with respect to military assistance to civil 
     authorities.
       ``(2) To develop doctrine and training requirements 
     relating to the provision of military assistance to civil 
     authorities.
       ``(3) To acquire equipment, materiel, and other supplies 
     and services for the provision of military assistance to 
     civil authorities.
       ``(4) To assist the Secretary of Defense in preparing the 
     budget required under section 10544 of this title.
       ``(5) To administer amounts provided the National Guard for 
     the provision of military assistance to civil authorities.
       ``(6) To carry out any other responsibility relating to the 
     provision of military assistance to civil authorities as the 
     Secretary of Defense shall specify.
       ``(c) Assistance.--The Chairman of the Joint Chiefs of 
     Staff shall assist the Chief of the National Guard Bureau in 
     carrying out activities under this section.
       ``(d) Consultation.--(1) The Chief of the National Guard 
     Bureau shall carry out activities under this section through 
     and utilizing an integrated planning process established by 
     the Chief of the National Guard Bureau for purposes of this 
     subsection. The planning process may be known as the 
     `National Guard Bureau Strategic Integrated Planning 
     Process'.
       ``(2)(A) Under the integrated planning process established 
     under paragraph (1)--
       ``(i) the planning committee described in subparagraph (B) 
     shall develop and submit to the planning directorate 
     described in subparagraph (C) plans and proposals on such 
     matters under the planning process as the Chief of the 
     National Guard Bureau shall designate for purposes of this 
     subsection; and
       ``(ii) the planning directorate shall review and make 
     recommendations to the Chief of the National Guard Bureau on 
     the plans and proposals submitted to the planning directorate 
     under clause (i).
       ``(B) The planning committee described in this subparagraph 
     is a planning committee (to be known as the `State Strategic 
     Integrated Planning Committee') composed of the adjutant 
     general of each of the several States, the Commonwealth of 
     Puerto Rico, Guam, the Virgin Islands, and the District of 
     Columbia.
       ``(C) The planning directorate described in this 
     subparagraph is a planning directorate (to be known as the 
     `Federal Strategic Integrated Planning Directorate') composed 
     of the following (as designated by the Secretary of Defense 
     for purposes of this subsection):
       ``(i) A major general of the Army National Guard.
       ``(ii) A major general of the Air National Guard.
       ``(iii) A major general of the regular Army.
       ``(iv) A major general of the regular Air Force.
       ``(v) A major general (other than a major general under 
     clauses (iii) and (iv)) of the United States Northern 
     Command.
       ``(vi) The Vice Chief of the National Guard Bureau.
       ``(vii) Seven adjutants general from the planning committee 
     under paragraph (B).''.
       (b) Budgeting for Training and Equipment and Military 
     Construction for Military Assistance to Civil Authorities and 
     Other Domestic Missions.--Chapter 1013 of such title is 
     amended by adding at the end the following new section:

     ``Sec. 10544. National Guard training and equipment and 
       military construction: budget for military assistance to 
       civil authorities and for other domestic operations

       ``(a) In General.--The budget justification documents 
     materials submitted to Congress in support of the budget of 
     the President for a fiscal year (as submitted with the budget 
     of the President under section 1105(a) of title 31) shall 
     specify separate amounts for the National Guard for purposes 
     of military assistance to civil authorities and for other 
     domestic operations during such fiscal year as follows:
       ``(1) Amounts for training and equipment, including 
     critical dual-use equipment.
       ``(2) Amounts for military construction, including critical 
     dual-use capital construction.
       ``(b) Scope of Funding.--The amounts specified under 
     subsection (a) for a fiscal year shall be sufficient for 
     purposes as follows:
       ``(1) The development and implementation of doctrine and 
     training requirements applicable to the assistance and 
     operations described in subsection (a) for such fiscal year.
       ``(2) The acquisition of equipment, materiel, and other 
     supplies and services necessary for the provision of such 
     assistance and such operations in such fiscal year.''.
       (c) Clerical Amendments.--
       (1) The table of sections at the beginning of chapter 1011 
     of such title is amended by inserting after the item relating 
     to section 10503 the following new item:

``10503a. Functions of National Guard Bureau: military assistance to 
              civil authorities.''.

       (2) The table of sections at the beginning of chapter 1013 
     of such title is amended by adding at the end the following 
     new item:

``10544. National Guard training and equipment and military 
              construction: budget for military assistance to civil 
              authorities and for other domestic operations.''.

     SEC. 4. REESTABLISHMENT OF POSITION OF VICE CHIEF OF THE 
                   NATIONAL GUARD BUREAU.

       (a) Reestablishment of Position.--
       (1) In general.--Chapter 1011 of title 10, United States 
     Code, is amended--
       (A) by redesignating section 10505 as section 10505a; and
       (B) by inserting after section 10504 the following new 
     section 10505:

     ``Sec. 10505. Vice Chief of the National Guard Bureau

       ``(a) Appointment.--(1) There is a Vice Chief of the 
     National Guard Bureau, selected by the Secretary of Defense 
     from officers of the Army National Guard of the United States 
     or the Air National Guard of the United States who--
       ``(A) are recommended for such appointment by their 
     respective Governors or, in the case of the District of 
     Columbia, the commanding general of the District of Columbia 
     National Guard;
       ``(B) have had at least 10 years of federally recognized 
     service in an active status in the National Guard; and
       ``(C) are in a grade above the grade of colonel.
       ``(2) The Chief and Vice Chief of the National Guard Bureau 
     may not both be members of the Army or of the Air Force.
       ``(3)(A) Except as provided in subparagraph (B), an officer 
     appointed as Vice Chief of the National Guard Bureau serves 
     for a term of four years, but may be removed from office at 
     any time for cause.
       ``(B) The term of the Vice Chief of the National Guard 
     Bureau shall end within a reasonable time (as determined by 
     the Secretary of Defense) following the appointment of a 
     Chief of the National Guard Bureau who is a member of the 
     same armed force as the Vice Chief.
       ``(b) Duties.--The Vice Chief of the National Guard Bureau 
     performs such duties as may be prescribed by the Chief of the 
     National Guard Bureau.
       ``(c) Grade.--The Vice Chief of the National Guard Bureau 
     shall be appointed to serve in the grade of lieutenant 
     general.
       ``(d) Functions as Acting Chief.--When there is a vacancy 
     in the office of the Chief of the National Guard Bureau or in 
     the absence or disability of the Chief, the Vice Chief of the 
     National Guard Bureau acts as Chief and performs the duties 
     of the Chief until a successor is appointed or the absence of 
     disability ceases.''.
       (2) Clerical amendment.--The table of sections at the 
     beginning of chapter 1011 of such title is amended by 
     striking the item relating to section 10505 and inserting the 
     following new items:

``10505. Vice Chief of the National Guard Bureau.
``10505a. Director of the Joint Staff of the National Guard Bureau.''.

       (b) Conforming Amendment.--Section 10506(a)(1) of such 
     title is amended by striking ``and the Director of the Joint 
     Staff of the National Guard Bureau'' and inserting ``, the 
     Vice Chief of the National Guard Bureau, and the Director of 
     the Joint Staff of the National Guard Bureau''.

     SEC. 5. STATE CONTROL OF FEDERAL MILITARY FORCES ENGAGED IN 
                   ACTIVITIES WITHIN THE STATES AND POSSESSIONS.

       (a) In General.--Part I of subtitle A of title 10, United 
     States Code, is amended by inserting after chapter 15 the 
     following new chapter:

[[Page S7081]]

  ``CHAPTER 16--CONTROL OF THE ARMED FORCES IN ACTIVITIES WITHIN THE 
                         STATES AND POSSESSIONS

``Sec.
``341. Tactical control of the armed forces engaged in activities 
              within the States and possessions: emergency response 
              activities.

     ``Sec. 341. Tactical control of the armed forces engaged in 
       activities within the States and possessions: emergency 
       response activities

       ``(a) In General.--The Secretary of Defense shall prescribe 
     in regulations policies and procedures to assure that 
     tactical control of the armed forces on active duty within a 
     State or possession is vested in the governor of the State or 
     possession, as the case may be, when such forces are engaged 
     in a domestic operation, including emergency response, within 
     such State or possession.
       ``(b) Discharge Through Joint Force Headquarters.--The 
     policies and procedures required under subsection (a) shall 
     provide for the discharge of tactical control by the governor 
     of a State or possession as described in that subsection 
     through the Joint Force Headquarters of the National Guard in 
     the State or possession, as the case may be, acting through 
     the officer of the National Guard in command of the 
     Headquarters.
       ``(c) Possessions Defined.--Notwithstanding any provision 
     of section 101(a) of this title, in this section, the term 
     `possessions' means the Commonwealth of Puerto Rico, Guam, 
     and the Virgin Islands.''.
       (b) Clerical Amendments.--The tables of chapters at the 
     beginning of title 10, United States Code, and at the 
     beginning of part I of subtitle A of such title, are each 
     amended by inserting after the item relating to chapter 15 
     the following new item:

``16. Control of the Armed Forces in Activities Within the States and 
    Possessions..............................................341''.....

     SEC. 6. FISCAL YEAR 2010 FUNDING FOR THE NATIONAL GUARD FOR 
                   CERTAIN DOMESTIC ACTIVITIES.

       (a) Continuity of Operations, Continuity of Government, and 
     Consequence Management.--
       (1) Authorization of appropriations.--There is hereby 
     authorized to be appropriated for fiscal year 2010 for the 
     Department of Defense amounts as follows:
       (A) For National Guard Personnel, Army, $11,000,000.
       (B) For National Guard Personnel, Air Force, $3,500,000.
       (C) For Operation and Maintenance, Army National Guard, 
     $11,000,000.
       (2) Availability.--The amounts authorized to be 
     appropriated by paragraph (1) shall be available to the Army 
     National Guard and the Air National Guard, as applicable, for 
     costs of personnel in training and operations with respect to 
     continuity of operations, continuity of government, and 
     consequence management in connection with response to 
     terrorist and other attacks on the United States homeland and 
     natural and man-made catastrophes in the United States.
       (b) Domestic Operations.--
       (1) Authorization of appropriations.--There is hereby 
     authorized to be appropriated for fiscal year 2010 for the 
     Department of Defense, $300,000,000 for Operation and 
     Maintenance, Defense-wide.
       (2) Availability.--The amount authorized to be appropriated 
     by paragraph (1) shall be available for the Army National 
     Guard and the Air National Guard for emergency preparedness 
     and response activities of the National Guard while in State 
     status under title 32, United States Code.
       (3) Transfer.--Amounts under the amount authorized to be 
     appropriated by paragraph (1) shall be available for transfer 
     to accounts for National Guard Personnel, Army, and National 
     Guard Personnel, Air Force, for purposes of the pay and 
     allowances of members of the National Guard in conducting 
     activities described in paragraph (2).
       (c) Joint Operations Coordination Centers.--
       (1) Authorization of appropriations.--There is hereby 
     authorized to be appropriated for fiscal year 2010 for the 
     Department of Defense amounts as follows:
       (A) For National Guard Personnel, Army, $28,000,000.
       (B) For National Guard Personnel, Air Force, $7,000,000.
       (2) Availability.--The amounts authorized to be 
     appropriated by paragraph (1) shall be available to the Army 
     National Guard and the Air National Guard, as applicable, for 
     costs of personnel in continuously staffing a Joint 
     Operations Coordination Center (JOCC) in the Joint Forces 
     Headquarters of the National Guard in each State and 
     Territory for command and control and activation of forces in 
     response to terrorist and other attacks on the United States 
     homeland and natural and man-made catastrophes in the United 
     States.
       (d) Supplement Not Supplant.--The amounts authorized to be 
     appropriated by subsections (a), (b), and (c) for the 
     purposes set forth in such subsections are in addition to any 
     other amounts authorized to be appropriated for fiscal year 
     2010 for the Department of Defense for such purposes.

     SEC. 7. ENHANCEMENT OF AUTHORITIES RELATING TO THE UNITED 
                   STATES NORTHERN COMMAND AND OTHER COMBATANT 
                   COMMANDS.

       (a) Commands Responsible for Support to Civil Authorities 
     in the United States.--The United States Northern Command and 
     the United States Pacific Command shall be the combatant 
     commands of the Armed Forces that are principally responsible 
     for the support of civil authorities in the United States by 
     the Armed Forces.
       (b) Discharge of Responsibility.--In discharging the 
     responsibility set forth in subsection (a), the Commander of 
     the United States Northern Command and the Commander of the 
     United States Pacific Command shall each--
       (1) in consultation with and acting through the Chief of 
     the National Guard Bureau and the Joint Force Headquarters of 
     the National Guard of the State or States concerned, assist 
     the States in the employment of the National Guard under 
     State control, including National Guard operations conducted 
     in State active duty or under title 32, United States Code; 
     and
       (2) facilitate the deployment of the Armed Forces on active 
     duty under title 10, United States Code, as necessary to 
     augment and support the National Guard in its support of 
     civil authorities when National Guard operations are 
     conducted under State control, whether in State active duty 
     or under title 32, United States Code.
       (c) Memorandum of Understanding.--
       (1) Memorandum required.--Not later than 180 days after the 
     date of the enactment of this Act, the Commander of the 
     United States Northern Command, the Commander of the United 
     States Pacific Command, and the Chief of the National Guard 
     Bureau shall, with the approval of the Secretary of Defense, 
     jointly enter into a memorandum of understanding setting 
     forth the operational relationships, and individual roles and 
     responsibilities, during responses to domestic emergencies 
     among the United States Northern Command, the United States 
     Pacific Command, and the National Guard Bureau.
       (2) Modification.--The Commander of the United States 
     Northern Command, the Commander of the United States Pacific 
     Command, and the Chief of the National Guard Bureau may from 
     time to time modify the memorandum of understanding under 
     this subsection to address changes in circumstances and for 
     such other purposes as the Commander of the United States 
     Northern Command, the Commander of the United States Pacific 
     Command, and the Chief of the National Guard Bureau jointly 
     consider appropriate. Each such modification shall be subject 
     to the approval of the Secretary of Defense.
       (d) Authority To Modify Assignment of Command 
     Responsibility.--Nothing in this section shall be construed 
     as altering or limiting the power of the President or the 
     Secretary of Defense to modify the Unified Command Plan in 
     order to assign all or part of the responsibility described 
     in subsection (a) to a combatant command other than the 
     United States Northern Command or the United States Pacific 
     Command.
       (e) Regulations.--The Secretary of Defense shall prescribe 
     regulations for purposes of aiding the expeditious 
     implementation of the authorities and responsibilities in 
     this section.

     SEC. 8. REQUIREMENTS RELATING TO NATIONAL GUARD OFFICERS IN 
                   CERTAIN COMMAND POSITIONS.

       (a) Commander of Army North Command.--The officer serving 
     in the position of Commander, Army North Command, shall be an 
     officer in the Army National Guard of the United States.
       (b) Commander of Air Force North Command.--The officer 
     serving in the position of Commander, Air Force North 
     Command, shall be an officer in the Air National Guard of the 
     United States.
       (c) Sense of Congress.--It is the sense of Congress that, 
     in assigning officers to the command positions specified in 
     subsections (a) and (b), the President should afford a 
     preference in assigning officers in the Army National Guard 
     of the United States or Air National Guard of the United 
     States, as applicable, who have served as the adjutant 
     general of a State.
                                 ______