Military Law / National Security

Baker, James E, ‘From Shortages to Stockpiles: How the Defense Production Act Can Be Used to Save Lives, Make America the Global Arsenal of Public Health, and Address the Security Challenges Ahead’ (2020) 11(1) Journal of National Security Law & Policy 157–179
Abstract: The Hon. James E. Baker writes that Defense Production Act (DPA) was enacted to provide the federal government with the authority to systematically mobilize the industrial capacity of the nation to address national security emergencies. While it has been primarily used to prioritize DoD contracts and to incentivize the production of goods for which there is otherwise too small a market, it may prove to be useful in combatting the effects of COVID-19. If the DPA were to be used to its fullest extent, it may become an important authority for producing a COVID-19 vaccine at scale; for constructing a long-term, secure, and independent medical supply chain; and stimulating the economy by making the U.S. a global arsenal of public health. In his examination of the DPA, Baker outlines the ways it has been used both during and before the pandemic, considers real and perceived concerns over its potential use, and highlights issues that should be addressed as soon as possible. He further provides three lessons that can be learned from the DPA’s non-use and suggests methods to ensure the adequate preparation for challenges yet to come.

Douvas, Alexander et al, ‘Breaking Quarantine: Using Article 84 to Combat COVID-19 No. 1’ [2020] (2) Army Lawyer 44–55
Abstract: Introduction: Coronavirus Disease 2019 (COVID-19) is caused by the virus Severe Acute Respiratory Syndrome-Coronavirus-2 (SARSCoV -2). This virus is highly contagious, with an estimated average incubation period of five days prior to symptoms,4 during which time it can still be transmitted.5 Within three months of its discovery in late 2019, the rapidly spreading SARS-CoV-2 reached global pandemic status. The current national strategy to combat COVID-19—‘social distancing’—is designed to slow the spread of the virus and enable the medical community to treat the most severe cases without exceeding hospital capacity. The military is neither immune to this pandemic nor exempt from the efforts to combat its spread. Instead, it is currently working to strike a balance between operational readiness and restrictive personnel policies. While the ultimate impact of COVID-19 on military operations and service policies remains uncertain, one thing is clear: with an estimated 1.3 million active duty service members subject to some form of COVID-19 restrictions, the newly re-designated Article 84, Uniform Code of Military Justice (UCMJ) (Breach of Medical Quarantine), is about to be field tested.

Fidell, Eugene R, ‘COVID-19 and Military Law’ (2020) 11(1) Journal of National Security Law & Policy 181–197
Abstract: As a ‘specialized society separate from civilian society,’ the military experiences not only many of the same challenges as the larger society as a result of COVID-19, but also other challenges arising in the contexts of their normal missions and times of crisis. In light of the developments during the first half of 2020, Eugene Fidell’s article on COVID-19 and Military Law highlights some of the legal challenges that have arisen in the military world due to COVID-19. In doing so, he focuses on various perspectives, including the intersection between commanders’ responsibility for the health and safety of their personnel; systemic effects and adjustments to the internal administration of justice; and challenges presented to domestic law, legal institutions, and human rights following a shift to a domestic law enforcement mission. These perspectives have direct and indirect effects on unit cohesion, mission-readiness, mission-accomplishment, and public trust.

Nevitt, Mark, ‘Domestic Military Operations and the Coronavirus Pandemic’ (2020) 11(1) Journal of National Security Law & Policy 107–129
Abstract: This article proceeds in three parts. Part I considers the emergency authorities invoked to address the coronavirus, including the Public Health Service Act (PHSA), National Emergencies Act (NEA), and Stafford Act. Part II deals with the laws, regulations, and policies governing the military’s role as a law enforcer— including restrictions on the military’s role to quell civilian disturbances. I also briefly discuss martial law, a rarely invoked but powerful authority held at the federal, state, and local levels. Part III deals with the scope of the military as emergency aid and relief provider. Unlike the military’s role in quelling domestic disturbances, there are far fewer restrictions when it provides relief following a natural disaster or health crisis.

Swalwell, Rep Eric and R Alagood, ‘Biological Threats Are National Security Risks: Why COVID-19 Should Be a Wake up Call for Policy Makers’ (2021) 77(2) Washington and Lee Law Review Online 217-247
Abstract: A national security strategy is the ‘nation’s plan for the coordinated use of all the instruments of state power—nonmilitary as well as military—to pursue objectives that defend and advance its national interest.’ Perhaps the most straightforward national security objective is to protect the country from foreign invasion, but national security involves other objectives that aim to protect people in the United States as well as their values. For example, protecting U.S. elections from foreign interference is a security objective that advances the nation’s interest in democratic governance. The outbreak of a highly contagious disease like COVID‑19 strikes at the core of national security and the nation’s interest in protecting its citizens from unnecessary harm.

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