COVID 19 and Use of the Military in the United States

The current COVID 19 situation is not the first pandemic of the modern era. In fact, we had one 10 years ago and we got through it just fine.

There was concern that the H5N1 flu would become pandemic so, the Homeland Security Council issued the National Strategy for Pandemic Influenza in November 2005. H5N1 did not become pandemic, but H1N1 did according to the World Health Organization as of June 2009, which was not ended until August 2010. The US implemented pandemic response plans at that time, with some media fanfare- but nothing approaching the current situation. This is likely because H1N1 did not have a high mortality rate.

The Department of Defense has longstanding guidance on this issue called the Department of Defense Implementation Plan for Pandemic Influenza (issued in 2006).

The plan is nothing like the conception of martial law being loosely bandied about by ill-informed scare mongers. The Plan anticipates that there will be a need for organizational capacity to potentially handle assistance with mortuary affairs; aid to control entry points to the US; assistance to State, tribal, and local governments to provide essential services; monitoring or moderating Interstate transportation to contain the spread of the virus; securing critical infrastructure; lending what capacity as may be available to augment medical treatment facilities and local medical efforts- including personnel and supplies.

The military will be focused on protecting personnel and facilitating planning with all levels of government. It will lend some of its abilities to local civil authorities and protect critical national infrastructure.

Some military people may get tasked to support and distribute vaccines and medicines, and provide local governments models to continue functioning under very trying circumstances and afford communications abilities to those governments to get public information disseminated.

In the worst of circumstances, the military may be called upon to support local authorities in a quarantine. And, very rarely, to quell civil disturbances- but we are nowhere near there yet. 

The Federal statutes implicated in military emergency operations include the Public Health Service Act and the Stafford Act. Much of the military planning done over the past few years for this exigency concerns quarantine support to prevent the transmission, or spread of communicable diseases from foreign countries, or from one State to another State.

The Director of the CDC is heavily involved in the decision making process here. The Department of Homeland Security provides support to the CDC. 

It is always the intent of the Federal military to act secondarily to the States, which have primary quarantine and isolation authorities under State law. (In accordance with our federal model of government.) Where a local effort is inadequate, the Federal government may assume primary responsibility for such activity.

To the extent that State and local efforts prove ineffective, the likelihood of Federal intervention rises.

Federal intervention raises many difficult legal questions about law enforcement and intelligence, which are beyond this little explanation of disaster response.

We are currently in a Presidentially declared emergency under section 501 of the Stafford Act. The real import of this declaration is not to scare anyone, but to free up money through the Federal Emergency Management Agency (FEMA) to assist state and local governments in areas where they are overwhelmed.

FEMA may ask the military to provide assistance. This is a legally intensive effort and not a knee jerk reaction to an out of control situation. Despite the close scrutiny, FEMA’s request for military assistance can usually be resourced and acted upon within 1-3 days. 

There are some other authorities for local military commanders to take action, but these situations are extremely rare and require imminently serious conditions which require immediate action to save lives, prevent human suffering, or mitigate great property damage, without time to work the request up the chain. 

Federal troops cannot, but National Guard troops can, provide active or direct support to law enforcement, which includes arrest, interdiction, search and seizure, security patrols, surveillance, stop and frisk, traffic control points, or forcible quarantine. 

Some military troops will be carrying weapons, some will not, depending upon who they are and what they are doing. Soldiers who are military police will have a sidearm, some with security or guarding duties may have weapons for that purpose.

 The military folks assigned to your area, if any, are very well trained and have very strict protocols for any use of force, which they must follow. Most of those rules involve keeping the service member safe from harm in the course of their own duties.

Hopefully, knowing that there is nothing new under the sun and we have actually been here before, will allay some fears and give everyone a little boost of confidence that we will see this through to the other side without too great a burden on society and economy.