Covid-19 and Military Law

COVID-19 and Military Law

Eugene R. Fidell*

INTRODUCTION

The coronavirus, the longer-term trajectory of which necessarily remains

unknown at this writing,

1

has already affected every part of the globe, every as-

pect of society, and of course the cornucopia of governmental institutions.

Eventually it will doubtless leave its mark on literature, art, and music. If journal-

ism is fairly described as the “rough f‌irst draft of history,”

2

writing about the

health and social effects of COVID-19 in this moment is most def‌initely writing a

rough f‌irst draft of a rough f‌irst draft. This is equally true of writing about it from

a legal perspective.

With rare exception, contemporary nation states maintain standing and reserve

military forces, and these forces are directly tied to national security. COVID-19

has already spawned a host of legal issues. This article will identify a few of these

in light of developments in the f‌irst half of 2020. It is a certainty that others will

arise in coming years.

It is often said that the military is “a specialized society separate from civilian

society.”

3

There is a good deal of truth to this aphorism. Jonathan Turley has

described the U.S. armed forces, for example, as a semi-autonomous “pocket

republic,” pointing out that it “has all of the characteristics of a classic governing

unit. It collects garbage, operates hospitals, runs voting booths, stops speeders,

manages museums, enforces environmental laws, operates golf courses, licenses

businesses, arrests wrongdoers, runs childcare services, promulgates laws, incar-

cerates convicts, and even has authority to execute citizens.”

4

As a result, the

armed forces will experience many if not all of the same challenges the larger so-

ciety experiences. In addition, however, they face a host of other challenges

because of the missions that are their normal raisons d’être—as well as the addi-

tional missions that may come their way in times of crisis, such as the one that

descended on the United States and the rest of the world in 2020.

* Eugene R. Fidell is Adjunct Professor at NYU Law School; editor of Global Military Justice

Reform, globalmjreform.blogspot.com; and of counsel, Feldesman Tucker Leifer Fidell LLP. © 2020,

Eugene R. Fidell.

1. This article was completed on June 20, 2020.

2. The phrase is commonly, but incorrectly, attributed to Philip Graham, the late former publisher of

the The Washington Post. Although Graham used it, he was not the f‌irst to do so. See Jack Shafer, Press

Box: Who Said It First? Journalism is the “Rough First Draft of History,” SLATE (Aug. 30, 2010, 8:04

PM), https://perma.cc/D99D-D7X5.

3. See, e.g., Parker v. Levy, 417 U.S. 733, 743 (1974); see generally PAULINE COLLINS, THE

MILITARY AS A SEPARATE SOCIETY: CONSEQUENCES FOR DISCIPLINE IN THE UNITED STATES AND

AUSTRALIA (2019).

4. Jonathan Turley, The Military Pocket Republic, 97 NW. U. L. REV. 1, 5 (2002).

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Rather than attempt to catalog the many legal issues that have already arisen in

the military world as a result of the COVID-19 pandemic, this article will high-

light a few as illustrations, mindful that there are many others that have arisen,

5

or could arise, but whose nature, scope, and probability cannot currently be pre-

dicted, much less chronicled.

6

The perspectives to be considered are: f‌irst, the

intersection between commanders’ responsibility for the health and safety of their

personnel and operational requirements; second, systemic effects on and adjust-

ments to the internal administration of justice and correctional programs within

the armed forces; and third, the challenges of shifting to a domestic law enforce-

ment mission paradigm while maintaining accountability and—in some countries

an even taller order—resisting the temptation to seize the opportunity to overdo

things and meddle in politics, with adverse consequences not only for domestic

law and legal institutions but also human rights. This is obviously not a complete

catalog, even based on what we currently know.

7

5. Here are a couple of examples: (1) Does the pandemic justify chaplains’ providing soldiers with

“faith building strategies” in response? The Military Religious Freedom Foundation objected when this

issue surfaced at Fort Drum, New York. See Craig Fox, Group Objects to Religious Content on Fort

Drum Videos, NNY 360 (Apr. 25, 2020), https://perma.cc/AZ27-SMLM. (2) May the military require

service members to participate in COVID-19 drug trials? Compare Jennifer Bard, Why the Military Can

Use Emergency Powers to Treat Service Members with Trial COVID-19 Drugs, THE CONVERSATION

(May 15, 2020, 7:49 AM), https://perma.cc/PR87-PZ8W, with Marian Faa, Coronavirus Drug Trial on

Volunteer Military Personnel Resumes Following Ethics Concerns, ABC NEWS (AUSTL. BROAD. CORP.)

(May 4, 2020), https://perma.cc/HN27-YMAU.

6. One of these entails the potential for martial law, about which relatively little has been written.

See, e.g., Joseph Nunn, Can the President Declare Martial Law in Response to Coronavirus?, THE HILL

(Apr. 4, 2020, 11:30 AM), https://perma.cc/LS3C-KF7B. Depending on the extent to which the

pandemic generates or aggravates civil unrest due to scarcity of medical attention, food, clothing,

shelter, and employment, a declaration of martial law cannot be ruled out conclusively; however, it

remains diff‌icult to imagine disorder of such intensity that the courts would be closed and Congress

would be moved to suspend the privilege of the writ of habeas corpus. See generally U.S. Const. art. I,

§ 9, cl. 2; Ex parte Milligan, 71 U.S. 2 (1866). Suspension of the writ is not a precondition, but is usually

believed to be a consequence, of martial law. Congress has never suspended the writ but has, on rare

occasion, authorized the President to do so. Various acts of Congress have, however, been challenged as

suspensions of the writ. See, e.g., Felker v. Turpin, 518 U.S. 651 (1996).

7. For example, it seems inevitable that domestic legal issues will arise concerning the protection of

military personnel from vexatious or justif‌ied litigation while they are engaged in COVID-19 related

duty. Attention has already turned to the application of the Servicemembers Civil Relief Act, 50 U.S.C.

§§ 3901- 4043 (2018). See David Vergun, As COVID-19 Crisis Continues, Servicemembers Civil Relief

Act Protects Military, DOD NEWS (Apr. 15, 2020), https://perma.cc/BCM5-A6TZ. Similarly, domestic

legal issues will certainly arise under the Posse Comitatus Act, 18 U.S.C. §1385 (2018), if and when

federal military personnel (as opposed to state National Guard personnel in Title 32 status) are called

upon to provide direct assistance in law enforcement in connection with the pandemic. See generally

STEPHEN DYCUS ET AL., NATIONAL SECURITY LAW 1186-96 (7th ed. 2020). The pandemic has also

generated controversy with respect to recruitment. Policy has varied over time as to whether individuals

who have tested positive for the COVID-19 virus may be permitted to enlist. At the other end of the

military service spectrum, how long must a soldier remain on active duty? A Colombian decree

extending obligatory service by conscripts by three months because of the pandemic, was unanimously

upheld by the Constitutional Court, where it had been challenged by several NGOs. See Ministerio de

Defensa Nacional, Decreto Legislativo Número 541 de 2020 [Ministry of National Defense, Legislative

Decree No. 541 of 2020] (Colom.), https://perma.cc/R2E7-SUDN; see also Johana Rodrı

´guez, Servicio

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