BY CHARLIE DUNLAP, J.D.
With rattled governors calling out the National Guard, politicians demanding the mobilization of the military, pundits characterizing the coronavirus emergency as a national security threat, analysts claiming that “battling a pandemic is a job for the military,” and even talk of “martial law”, the pressure is growing to further militarize the coronavirus response.
In a sense, this is understandable given the high-standing of the military in the eyes of the American people and, as one commentator put it, the “reflexive assumption by many policymakers and senior officials that our military forces are able to take on any threat in any location in the world.” However, while there are certainly some things the armed forces can and should do now, a significant militarization of the coronavirus response (at this point anyway) is a bad idea. Allow me to explain why.
1) The military needs to be ready to counter any adversary who seeks to exploit the situation
The grim fact is that notwithstanding the coronavirus emergency, there is no reason to think that our adversaries around the world will slow their hostilities; quite the opposite, there are “soaring” cyber attacks on Department of Defense (DoD) computers, rocket attacks in Iraq, continued violence in Afghanistan, and more all suggest that many state and non-state actors may seek to exploit the pandemic.
Terrorism
Much has be made of the claims that ISIS has told its fighters to steer clear of Europe because of the coronavirus. However, though we haven’t seen reports of this yet, we need to be prepared for terrorists – who have made suicide bombing one of their main techniques – to attempt to do something like infiltrating a ‘suicide disease carrier’ into civilian areas.
They’ve seen the damage done to our economy and the disruption to our lives by the pandemic. The mere fear of infection is damaging, so terrorists may see the crisis as a chance to magnify that fear.
Jonathan Tepperman explains in Foreign Policy, that “despite the likelihood that the majority of people will never get the virus and that the vast majority who do (assuming it doesn’t mutate) will survive, people and governments are reacting in some extreme ways.”
This is exactly the kind of situation terrorists want to exploit. Grady Means warns in The Hill:
“[T]he coronavirus…is now a roadmap for future bioterrorism. The damage has been quick and enormous — much greater than 9/11 — and worldwide. The responses have been predictable and ineffective. And the cost of a potential weapon such as this is close to zero. It represents the perfect asymmetric warfare strategy, and there should be little doubt these lessons are being studied carefully by military planners in North Korea, Tehran, Moscow, Beijing and desert caves throughout the Middle East”
Nation-states
With respect to nation-states, history shows that when regimes come under internal stress they will sometimes lash out externally with military force in the hope of drawing people’s attention away from their domestic woes.
For example, given that one of the most serious outbreaks is in Iran, we need to be very wary of what Iranian leaders might do to distract their people from the regime’s failings. Much the same can be said about China, which fears the virus has compromised its place in the world and may threaten the Communist Party ‘s grip on power.
Even if those reporting less serous outbreaks are to be believed – North Korea and Russia, for example – they might see the situation as an opportunity for adventurism. Additionally, apart from any deliberate nefariousness, the disease itself could destabilize countries in already dangerous parts of the world jeopardizing U.S. security interests.
Consequently, although other parts of American society may be standing down, the military can’t – and isn’t. The Air Force Chief of Staff, General David Goldfein said yesterday:
“We’re still conducting global missions around the globe, which is Priority 1,” he said. “We’ve got fighters, bombers [and] maintainers deployed, working to keep Americans safe, and we’re still flying global mobility missions and conducting global space operations. With the global missions that we as an air force support in the joint force, all those missions continue.”
Of course, it’s also vital that no nation doubt the continued readiness of America’s nuclear deterrent – the U.S.’s ultimate protection against existential threats.
That is why it was so important for the Commander of U.S. Strategic Command to say on March 17 that “the U.S. nuclear deterrent is strong, even during the coronavirus pandemic,” and that the command is continuing to look for any “changes in any potential adversaries’ operational stance.”
U.S. Northern Command coordinates the military’s support to civilian authorities in situations like the current pandemic, but Pentagon’s policies make it clear that the military’s priority for its forces and capabilities are Department of Defense missions, not civilian support. At a March 2 news conference (and reiterated at a March 17 press event) Defense Secretary Mark Esper frankly laid out what the military’s priorities must be:
In my view, it is too dangerous a time to do anything that would suggest to any adversary that our military is distracted, or that its capabilities are being diffused or eroded because of the coronavirus emergency.
Now – more than ever – America’s armed forces need to be especially alert to those actors who would seek to exploit the outbreak, and to be ready to swiftly counter whatever hostilities such adversaries may attempt.
2) Military health capabilities are more limited than many suppose
On March 17th Secretary Esper announced that “five million N-95 respirator masks and other personal protective equipment from the [Pentagon’s] strategic reserves [will be provided] to the Department of Health and Human Services for distribution,” and that the DoD is “prepared to distribute to HHS up to 2,000 deployable ventilators.”
However, as DoD recently pointed out, it’s important to understand that the military’s medical capabilities are less than many might think.
Well before the current crisis, the U.S. armed forces were already suffering shortages of military and civilian physicians, a situation that has “limited patient access to care in the military service branches.” Indeed, not long ago the Pentagon announced a multiyear plan that would eventually deny service to “200,000 Tricare beneficiaries, including 80,000 active-duty family members” at 37 military health clinics. The plan is expected to force “many beneficiaries to find civilian doctors in their communities over the course of two to four years.”
The medical challenge is exacerbated for the military because of America’s overseas commitments. As the New York Times reported on Mar 1:
“The coronavirus threat may still seem distant to much of civilian America, but it has been a clear and present danger for the military almost from the start. The United States has more than 75,000 troops stationed in countries that are experiencing outbreaks, including South Korea, Japan, Italy and Bahrain.”
Moreover, military medical capabilities are scaled for the size of the armed forces and the dependents of those serving, and no more. As Defense One reported:
“We do have tent hospitals, deployable hospitals. The challenge is, they’re designed to take care of trauma patients and combat casualties,” U.S. Air Force Brig. Gen. Paul Friedrichs, the Joint Staff surgeon, told reporters at the Pentagon and on a conference call, “We don’t have any 500-bed hospitals designed for infectious disease outbreaks.”
In other words, the military’s medical capabilities are not designed for caring for those most at risk for coronavirus; the elderly and those with “serious chronic medical conditions.” As one expert puts it, “the military is not the nation’s emergency room doctor.”
Robbing Peter to pay Paul?
The Pentagon has announced that the the hospital ship USNS Comfort is being dispatched to New York harbor (and the USNS Mercy is being prepared to deploy). They are to handle trauma cases so as to free up shore-side hospitals for coronavirus cases (these ships are not especially suited to handle infectious diseases). These ships can project medical services to places near the water, but it comes at a real cost, and I’m not talking about dollars and cents.
To man these ships requires pulling about 1,200 medical providers from an active and reserve military system already under strain. This could mean that thousands of military dependents would have their appointments cancelled, and be forced into the civilian medical system that we are told is under siege. It really is a zero-sum situation.
Secretary Esper underlined the point that using these ships could disrupt civilian care as well. Noting that the main issue isn’t the ship, but rather that “all those doctors and nurses [that] either come from our medical treatment facilities or they come from the Reserves, which means civilians.” He added:
“[W]e’ve got to be very conscious of and careful of as we call up these units and use them to support the states, that we aren’t robbing Peter to pay Paul, so to speak….[W]hat I don’t want to do is take Reservists from a hospital where they are needed just to put them on a ship to take them somewhere else where they are needed.
20th CBRN Command logo
The military does have some units specifically designed to address weaponized biological agents. For example, the Army’s 20th Chemical, Biological, Radiological, Nuclear and Explosives Command has about 4,000 soldiers and civilian employees, but not everyone is a biological defense specialist, and all are thinly spread across 16 States and 19 different installations.
The other services do have some capabilities, but Al Mauroni, the director of the US Air Force Center for Strategic Deterrence Studies, points out that “biodefense is not the same as disease containment,” and that these units “don’t train to be disease-containment specialists or to oversee medical treatment units.”
In any event, these relatively small cadres of specialists ought to be reserved for defending the most critical military and governmental missions.
3) Civilian leaders and agencies are better suited for what is needed now.
The armed forces does have a doctrine for aiding civil society in times of a domestic crisis, but in virtually every instance Joint Publication 3-28, Defense Support of Civil Authorities, calls for the military to be in a supporting role, mainly through the Department of Homeland Security.
Relying primarily on civilian agencies makes sense because the real expertise in many, if not most, instances in a situation like this one will be outside of the armed forces. For example, a USA Today poll (Mar 12) revealed that “Americans are more worried about finances than their health amid coronavirus outbreak”, but bolstering the economic outlook is simply not within the military’s wheelhouse. Even defense-related actions in the economic sphere like the invocation of the Defense Production Act are focused on commercial industries, not the activities of the military.
In my view, the establishment of the civilian-dominated Coronavirus Task Force in the current crisis is very much the right approach.
Quarantine enforcement?
What about quarantine enforcement? Yes, although the military is normally precluded from enforcing the law, there are emergency authorities that could permit doing so (see this post for details: “Disasters and Emergencies: Legal authorities and the military’s role” and also the information here.) This doesn’t mean, however, that the active-duty military ought to be used for quarantine enforcement other than as a last resort.
The Centers for Disease Control does have legal authority derived from the Constitution’s Commerce Clause for isolation and quarantine in certain circumstances. It “is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.” Surprisingly, the authority to impose quarantines within states, to include especially persons not expected to be moving between states, is largely a matter of state law.
Accordingly, in terms of enforcing a quarantine, the Posse Comitatus Act would normally bar the active-duty US military from doing so. Beyond mere legality, the active-duty troops are not trained in – or well-suited for – domestic law enforcement duties. Yes, the military can control areas, but it should not be used at this stage for this purpose.
Little Rock, 1957
Today there are certainly military police who are just as professional as their civilian counterparts, but their numbers are limited, and they are tasked carrying out the security and disciplinary duties the armed forces need, especially in a crisis. In any case, a large scale quarantine would require numbers of troops well beyond the available military police units.
Regardless, it’s inevitable that friction with the civilian population would result from a major quarantine effort. That would jeopardize the military’s sterling reputation in an American society, the loss of which would plainly undermine the military’s ability to recruit and retain troops for a force that will depend upon volunteers in the years to come.
It is far better for the states to rely first upon America’s more than 686,000 civilian police officers with all their experience and expertise in dealing with the citizenry. Many might also use their National Guard units who are not federalized and are under the command of the governor or, for those that have them, state defense forces. The latter two groups are uniformed forces, but have the advantage of the local connection which might ameliorate potential conflicts with the public.
Martial law is unnecessary
Even where the military was needed for a quarantine-enforcement operation, it would not call for a declaration of martial law. In fact, the Constitution doesn’t mention martial law, and there isn’t much in the way of precedent for it in the U.S. history. If it exists at all, it would be a form of the President’s constitutional authority as Commander-in-Chief.
However, as a 2005 Congressional Research Service report points out, the “President may also exercise certain authority to create a condition similar to, but not actually one of, martial law.” He would likely do so by using what are sometimes called the “Insurrection Acts” which provide emergency authority. For example, § 252 of the Acts says:
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. (Emphasis added).
That statutory language would give the President enormous power to act in an emergency – and enough to use the military in quarantine situations.
It is not, in my view, helpful to even raise the specter of martial law as it can only serve to heighten the public’s anxiety.
4) There are perils to characterizing even a serious national health issue as a “national security” threat.
The reality is that almost any serious public issue – to include those health-related – can be characterized as a “national security threat” if one is disposed to do so. For example, 31% of young people in the primary age group for military service – more than ten million people – are unqualified for the armed forces because of obesity.
Is that really enough to transform obesity into a national security issue? How about the National Institute of Drug Abuse report? It says that in the U.S. there were “67,637 drug overdose deaths reported in 2018” – numbers that represent a staggering carnage.
But are these issues true national security threats? In a way they are, but would designating them that way really help? This is about more than mere semantics: over 28 years ago I addressed the perils of turning even serious societal issues into a national security matters with a view towards a militarized solution (text found here). More recently, in a post (here) about the overuse of “national security threat,” I said this:
The problem is that if you denominate something as a “national security” threat, it’s naturally assumed that it’s to be addressed (if not solved) primarily by the defense establishment (to include specifically the military). A militarized approach to every issue is bad idea, plain and simple….More generally, do we really want the military as the nation’s all-purpose problem-solver for everything that has serious implications for our society? I believe doing so would inevitably diffuse the focus of armed forces away from what the Supreme Court tells us is the “primary business” of our military, which is “to fight or be ready to fight wars should the occasion arise.”
5) This particular threat is not one for which the military – and military families – ought to disproportionately bear the burden
Since 9/11 only a small portion of the population – less than one half of 1% – served in the military at any given time. In the overseas wars the military fought over the past 18 years more than 6,900 were killed, and over 52,000 thousand were wounded. In a real way, the American public was not asked to sacrifice, and they generally didn’t. This paradox led one soldier to utter the oft-cited phrase “We’re at war; America’s at the mall.”
The military has already “served” in the coronavirus pandemic. U.S. citizens evacuated from Wuhun, China, were quarantined on 15 U.S. military bases that were home to not just thousands of troops, but also their families. With the deployment of the Navy’s hospital ships, fewer military medical resources will be available to these families.
In short, military members (and, actually, their families as well) are again being asked to be on the frontlines, but this time it isn’t on some distant battlefield where only those in uniform can really go, but rather here at home where there are millions of civilians who could take on their fair share of the burdens and risks of battling the illness or its consequences.
Why does this matter? It’s one thing to ask military members to take on dangerous and even deadly tasks, but it’s quite another to ask their dependents to not only worry about the dangers their uniformed family-member is facing, but also to take on more risk because of diminished access to the promised medical services or because of the utilization of the bases on which they live for coronavirus response activities that could raise the risk for them.
We can’t forget that one reason military members are willing to risk their lives for others is the belief that their own families are being protected and well taken care of. This is not the time to raise questions in their minds if that is really true.
What can the military do?
None of this is to suggest that the military should be exempted from what is rightly a whole-of-government response. As Secretary Esper announced, DoD is furnishing supplies, medical personnel, and hospital ships.
In addition, 14 certified DoD testing labs have been made available to test civilians, and “military research laboratories are working ‘feverishly’ to try to come up with a vaccine.”
Furthermore, as of March 18, “just under 2,000 Air and Army National Guard professionals in 23 states began their day actively supporting COVID-19 response at the direction of their governors.” The National Guard describes their activities this way:
“Current National Guard COVID-19 response missions include, but are not limited to: response planners; support to medical testing facilities; response liaisons and support to state Emergency Operations Centers; support to healthcare professionals; logistics support; assisting with disinfecting/cleaning of common public spaces; providing transportation support for health care providers; collecting and delivering samples; and assisting with sample administration.”
It’s beyond question that in a whole-of-government response, the military has to do its part. But we ought to be sensitive to those, to include their families, who already have sacrificed so much since 9/11. The military’s “part” plainly includes defending against America’s enemies who might try to exploit the crisis. Thus, its assistance to civil authorities – while still significant – must not compromise its fundamental mission.
6) We are not yet in extremis
To be sure, the U.S.’s civilian health capabilities are being severely tested, but they are robust. For example, the U.S. has as many as 1.1 million doctors (including 160,00 currently “inactive”) and 5,564 registered hospitals (of all types). In addition, there are 3.8 million registered nurses, and they “comprise one of the largest segments of the U.S. workforce as a whole.” There is also a “$7 billion stash of emergency medical equipment.”
Authorities agree that the stockpile would not alone be sufficient for a “full blown” coronavirus outbreak, so it makes sense to, for example, ramp up production of personal protective gear, and to permit alternatives in certain situations. Much the same can be said about Secretary Esper’s decision to release medical supplies from the military’s strategic reserve.
As of this writing (March 18) the CDC reports that there are 7,038 cases of coronavirus and 97 deaths. Significantly, “22 are associated with Life Care Center of Kirkland,” Washington. In other words, almost a quarter of all U.S. deaths are associated with a single facility in Washington state.
As noted above, even if infected the effects will likely not prove fatal. According the New York Times, the “virus can be deadly [but] the vast majority of those infected so far have only mild symptoms and make full recoveries.”
In analyzing how serious the current coronavirus situation is, consider that in 2019 “an estimated 38,800 people lost their lives to car crashes” or about 106 deaths per day. Additionally, the chart at the right is what the CDC is reporting about seasonal flu, to include the estimated 22,000 to 55,000 deaths in the U.S. – which translates into 139 to 348 deaths each day.
Of course, we can’t underestimate coronavirus as it presents an unusually lethal threat because 1) we don’t necessarily know everything as to how it spreads; 2) there is no known vaccine or cure; and 3) while most who contract it will suffer only mild symptoms, the fatality rate (at about 3.4%) is much higher than, for example, seasonal flu.
7.) The military has to be reserved – and preserved – for the worst case scenario
How bad could it get? A Canadian infectious disease expert, Dr. Abdu Sharkawy, said in early March in a much-reported Facebook post that he was not “not scared of Covid-19,” but added :
“Covid-19 is nowhere near over. It will be coming to a city, a hospital, a friend, even a family member near you at some point. Expect it. Stop waiting to be surprised further. The fact is the virus itself will not likely do much harm when it arrives. But our own behaviors and “fight for yourself above all else” attitude could prove disastrous.” (Emphasis added.)
In a profile in Atlantic Magazine a little more than a week ago Dr. Francis Collins, the director of the National Institutes of Health, grimly described the worst case scenario this way:
“There are estimates that if nothing goes right and if we fail to flatten the curve and if health systems are overwhelmed, we might see the deaths of as many as a million and a half people in the United States.”
If we do get to that point – and especially if the deaths were to be accompanied by the behaviors that concern Dr. Sharkawy – there would be little choice but to deploy the military in great numbers. It is worth noting that the military was needed to help keep order in the aftermath of Hurricane Katrina when nearly 250 civilian police officers “left their posts without permission” during the storm.
A nationwide coronavirus “storm” as Dr. Collins describes it could be much worse, as not only would there be widespread illness and death over an extended period, but also the likelihood of civil disorders as essential supplies and services become scarce or unavailable. In such a situation, the military’s organization, discipline, and altruism would be an indispensable bulwarks against chaos.
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