COVID-19: A Judge Advocate’s Role in Advising Decision-Makers
By Major Matthew T. Bryan
The virus known as COVID-19 is a novel coronavirus originating in Hubei, China.1Since its discovery in December, the virus has spread the world over. As of 12 March 2020, the World Health Organization reporteds more than 125,000 cases and 4,600 deaths worldwide. Those infected include service members, dependents, and overseas Civilian employees.
As of this writing, we have our first confirmed cases on Camp Humphreys.2 Resources at 2d Infantry Division are stretched thin—we are ready to “Fight Tonight,” ready to combat North Korean aggression, and already running twenty-four-hour operations attempting to blunt the spread of this virus.
Judge Advocate General’s (JAG) Corps personnel will see COVID-19 issues related to every foundational area of law. COVID-19 travel restrictions are affecting witness travel for courts-martial. National security law teams associated with U.S. Forces Korea were recently preparing for combined exercises, and now they are focused on internal security and gate screening. Client services is assisting service members with the financial repercussions of command-directed leave cancellations and the real-world need for thoughtful estate planning. Administrative law and contract and fiscal law are also taxed. The competing requests for information coming out of the command operations and information center, from across the division staff, and from our subordinate elements are varied, time-sensitive, and have serious implications.
Chiefs of administrative law on an installation near a COVID-19 hotspot should refresh their knowledge of several legal issues that may arise. What follows is a list of key issues they should consider.
Command Authority. You may face questions about restricting installation access, rules for the use of force, conditions on liberty, mandatory recall, cancelling leave, cancelling classes in Department of Defense (DoD) Education Activity schools, and involuntary extensions. You must consider whether and under what conditions command authority extends to civilians. Familiarize yourself with DoD Instruction 6200.03, “Public Health Emergency Management.”3 Print it, and keep it on your desk.
Government Information Practices. Evaluate how your organization uses personal information protected by the Privacy Act and the Health Insurance Portability and Accountability Act.4 Is there too much information in that battle update brief slide? Who is on the division surgeon’s distribution list, receiving trackers with personally identifiable information of infected personnel? Read up on the minimum necessary information rule, disclosure, and civil remedies.
Law of Federal Employment. Which civilian employees are mission-essential and which are not? Commanders will need advice on telework policies, alternate work schedules, paid time off, and administrative leave (hint: weather and safety).
Federal and State Relations. In Korea it’s “Federal and Host-Nation Relations.” The issues are analogous and generally pertain to the extent and impact of command decisions and authority outside of the installation. Know the difference between exclusive and concurrent jurisdictions. Review the mutual support agreements your installation may have with local governments. Familiarize yourself with defense support of civil authorities.
Contract and Fiscal Law. Want to be a hero? Know fiscal law. You will eat, sleep, and breathe the “necessary expense test.” Stockpiling is a bona fide needs violation—except for emergency planning. Your commands will become very interested in Government Purchase Card purchases and required sources of supply for infrared thermometers, N95 respirators, hand sanitizer, and disposable coverall suits. Contract administration decisions will impact operations when risk mitigation measures restrict installation access. We have had U.S. civilians request to be quarantined, and we said yes—then had to figure out how to write a contract for quarantine services (i.e., lodging, food, linens, and laundry, etc.). Speaking of quarantine, what about free internet for Soldiers in isolation for fourteen days? The list goes on.
While judge advocates should not be nervous or anxious, they must be ready. The issues you will confront are diverse, interesting, and complex. Leaders will rely on your answers because they value your principled counsel in challenging times and circumstances. The advice you give will be critical to facilitating the commander’s ability to assess risk and make necessary tough decisions. TAL
MAJ Bryan is currently the Chief of Administrative and Civil Law at 2d Infantry Division, Camp Humphreys, Republic of Korea.
Notes
1.Pneumonia of unknown cause–China, World Health Org. (Jan. 5, 2020), https://www.who.int/csr/don/05-january-2020-pneumonia-of-unkown-cause-china/en/.
2. U.S. Dep’t of Def., Instr. 6200.03, Public Health Emergency Management (PHEM) Within the DoD(28 Mar. 2019).
3. Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1897 (1974) (codified as amended at 5 U.S.C. § 522a (2019)); Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (Aug. 21, 1996).