News & Events

Professor Mark Nevitt: Should the COVID-19 Vaccine Be Required for the Military?

By Mark P. Nevitt

(Just Security | April 12, 2021) By some estimates, approximately one-third of U.S. military service members have opted out of the COVID-19 vaccine. Some think that number could be higher, for example, according to a new report, nearly 40 percent of U.S. Marines are declining vaccinations. An earlier December report from the nonprofit advocacy group Blue Star Families estimated that nearly half of military members would decline the vaccine if offered. In response, six members of Congress recently sent a letter to President Joe Biden, asking him to make the vaccine mandatory for all military service members.

In what follows, I address three questions that have arisen from the U.S. military’s ongoing efforts to vaccinate members of the armed forces:

  • Can military members be legally required to receive the COVID-19 vaccination?
  • What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied to COVID-19?
  • What is the impact on vaccination refusal on military readiness?

Can military members be legally required to receive the COVID-19 vaccination?

Ultimately, yes—but this answer requires a bit of nuance and process. As of this writing, the president and defense secretary have not ordered mandatory vaccination for the military (or the general public for that matter). COVID-19 vaccination remains strictly voluntary for all military service members, consistent with earlier pledges by Biden that he would not make vaccinations mandatory. But that could change, particularly for deployed service members who work in tight quarters where infection rates can spike quickly. For now though, DoD appears committed to the voluntary vaccination approach.

As a statutory matter, in 2003, Congress passed a law (10 U.S.C. § 1107a) that requires informed consent prior to military members receiving vaccinations issued under an emergency use authorization (EUA). All three COVID-19 vaccinations being used in the United States —ModernaJohnson & Johnson and Pfizer—are being administered under an EUA. And all three have not been fully approved by the Food and Drug Administration. By some estimates, full approval may take up to two years.

But, according to the law, the president can waive this informed consent requirement if he determines that it is “in the interest of national security” to do so. While Biden has not done this, some members of Congress have called upon him to do just that.

If this informed consent provision is ultimately waived, military commanders can clearly order military members in their command to receive the vaccine. This is consistent with the “Failure to obey an order or regulation” under the Uniform Code of Military Justice (UCMJ). Even if the informed provision is not waived by Biden, a mandatory military vaccination order may survive challenges in military criminal courts implementing the UCMJ. Federal civil courts would likely scrutinize such a move much more closely. This is based upon prior decisions and the military’s experience in implementing the anthrax vaccination program, which I turn to below.

Relatedly, outside the military context, over 100 years ago, the Supreme Court upheld a local Board of Health’s authority to require smallpox vaccinations during a smallpox epidemic. As Professor Lawrence Gostin at Georgetown Law has previously arguedJacobson reaffirms the “basic police power of the government to safeguard the public’s health.” This decisionJacobson v. Massachusetts, has been relied upon during this pandemic to implement mandatory mask wearing and social distancing.

What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied here?

Quite a few. The anthrax vaccine was administered as an “investigational new drug” (IND) in the late 1990s. Congress passed a law in 1998 (10 U.S.C. § 1107), effectively requiring informed consent from military members prior to administration of INDs such as anthrax. This is a different but analogous law to the COVID-19 emergency use authorization. President Bill Clinton signed an executive order in 1999, reaffirming the informed consent requirement and laying out the process for seeking a waiver. But both President Clinton and Bush did not waive the informed consent procedure. The mandatory anthrax vaccination program was administered anyway, although it was started and stopped several times in the early aughts. This was due to issues with the manufacturer’s ability to pass inspections and disagreements about whether the anthrax vaccine was administered consistent with its labeling. Perhaps not surprisingly, orders to take anthrax vaccinations were challenged by military service members in both military and federal courts.

As military commanders ordered anthrax vaccinations, some service members refused, arguing that they had not provided their informed consent to the anthrax inoculation. Federal courts heard civil, administrative, and constitutional challenges, while military judges heard challenges under the UCMJ …

Read the full article.

Military Times Speaks to Professor Robert Murrett About China’s Navy

China’s navy has more ships than the US. Does that matter?

(Military Times | April 9, 2021) Exactly if and when the increasing antagonism between United States and China will boil over into full-on conflict remains anybody’s guess.

But for now, one thing is as clear as the aqua-blue waters that lap up on the shores of China’s man-made islands in the South China Sea: Beijing’s naval fleet is larger than that of the U.S. Navy.

Citing the Office of Naval Intelligence, a Congressional Research Service report from March notes that the People’s Liberation Army Navy, or PLAN, was slated to have 360 battle force ships by the end of 2020, dwarfing the U.S. fleet of 297 ships.

Such numbers are hard to pinpoint because the PLAN doesn’t release public reports on its future shipbuilding efforts like the U.S. Navy does …

… When it comes to fleet size, Robert Murrett notes that China’s fleet largely remains in its backyard, while a good number of the U.S. force is underway around the world, making a number-to-number assessment incomplete.

There’s also a tendency to view any maritime conflict between the United States and China as a two-party affair, which sidelines the significant role America’s allies in the region would likely play, Murrett said.

Japan, Australia and South Korea all sport robust navies in the region, and the United States is increasingly working to bring India into the fold as that country deals with its own Beijing-related rivalries.

“We just take for granted the incredible network of allies we have around the world,” Murrett said. “The view from Beijing in terms of maritime partners is pretty bleak. They don’t have any that are worth mentioning” …

Read the full story.

 

 

 

Professor Robert Murrett Talks to Fox News About Russia’s Arctic Build-Up

Putin so upset over Biden’s killer comments he moved 28,000 Russian troops to Ukraine border, report

(Fox News | April 8, 2021) Vladimir Putin was reportedly so angered when President Joe Biden called him a “killer” in his first sit-down interview after taking office, the Russian president left his quarantine, got a COVID vaccination and moved 28,000 Russian troops to the border with Ukraine.

“It was really a shock. And it changed his behavior a lot,” argues Pavel Baev, a senior researcher at Norway’s International Peace Research Institute in Oslo.

Russian Bear bombers went into action, forcing NATO to scramble 10 jets to intercept the Russian warplanes flying over the North Atlantic Ocean last week, a rare show of force near the Arctic. On Monday, Putin quietly changed Russia’s constitution to allow him to stay in power until 2036. He would be 83 years old …

… Vice Admiral Robert Murrett is the deputy director of the Institute for National Security and Counterterrorism at Syracuse University and served as the director of the National Geospatial-Intelligence Agency for four years overseeing the Pentagon’s top secret spy satellites until 2010. He says Russia is developing a series of weapons that are very concerning to the U.S. military.

“The Arctic is a terrific shortcut, whether you’re in an aircraft, whether you’re underneath the surface of the ocean and also for intercontinental ballistic missile, this goes back to the Cold War,” said Murrett, who has spent his career watching Russian military movements.

The U.S. Air Force recently deployed 4 B-1 bombers to an Arctic base in Norway for the first time, another sign that Putin is getting the response he wants: attention and a diversion from his domestic opponents.

Read the full story.


Experts worry Russia is seeking a ‘new Cold War’

(Fox News | April 8, 2021) FOX News’ Jennifer Griffin reports Russia is expanding its military bases in the Arctic on ‘Special Report’ …

Watch the clip.

Professor Corri Zoli: China Changes Tone as US Changes Administration

By Corri Zoli, Director of Research

A new tone on the part of Chinese Communist Party (CCP) officials is unmistakable. This was evident in the verbal scuffles in Anchorage, AK, over a week ago at the first diplomatic meeting between China and the new Biden Administration. There, human rights and forced labor violations were raised, including with respect to the Uighurs and other Muslim Turkic minorities in Xinxiang, one of the world’s leading cotton producers. 

“These specific reports, data collection, and outreach efforts are unifying international pressure from many angles to force China to address these severe human rights issues.”

What caught the Biden team off guard was senior CCP diplomat Yang Jiechi’s pointed criticisms of the US’s own record on human rights violations (referencing the Black Lives Matter movement, for instance) and its “long-arm jurisdiction” in foreign interventions across the globe, which had also created instability. A clearly more assertive China made international foreign policy observers around the world take notice when President Xi’s delegation told US Secretary of State Antony Blinken that “they don’t have the qualification to say they speak to China from a position of strength.”

Beyond the United States, Chinese officials have recently asserted to other nations, international organizations, and now corporations (H&M, Nike, Converse, Under Armour, and others) that the “era of bullying” of China by foreign powers has come to an end. That includes, according to Chinese official statements, the use of sanctions against China (and President Joseph R. Biden Jr. has not yet removed the Trump-era tariffs and sanctions). 

Both Biden’s and former president Donald J. Trump’s secretaries of state (Mike Pompeo, officially on his last day in office) have publicly accused China of carrying out a genocide against the Uighur and other minority groups, and Canada and the Netherlands have agreed. A block of 30 countries, including the European Union, which has not imposed sanctions since the 1989 Tiananmen Square crackdown—as well as the UK, US, and Canada—have recently imposed new sanctions on China with those allegations in mind.

In addition to the EU and US coordinated response, today, the UN’s High Commissioner for Human Rights Working Group on Business and Human Rights used their mandate to express their own deep concerns that the Chinese government was violating what they see as emerging obligations to follow the United Nations Guiding Principles on Business and Human Rights. What appears to have prompted their announcement is increasingly reliable accounts of Uighur treatment (in part from BBC, Australian Strategic Policy Institute, and Human Rights Watch reporting) and results from the UN Human Rights Working Group’s own investigation into the abuses of Uighurs, which have “tainted” China’s cotton supply chains. 

The UN Working Group has reached out to many private businesses in and outside of China who are part of these supply chains involving Xinxiang, as well as 13 other governments that may be implicated in these alleged abuses (and to ensure businesses in their territory respect all human rights throughout their operations). These specific reports, data collection, and outreach efforts are unifying international pressure from many angles to force China to address these severe human rights issues. UN Secretary General António Guterres is currently holding “serious negotiations” with China to gain unfettered access to the Xinjiang region to verify reports of Uighur treatment and persecution.

In response, Chinese officials have called for its own consumer base to boycott Western brands, especially those that have criticized the Chinese government in light of its use of forced labor, detention, reeducation camps, and other reports of crimes against the Uighurs. 

China also has flooded social media with information campaigns to control the narrative and highlight other nation’s human rights’ abuses (including slavery), while trying to persuade their domestic population. Chinese “netizens” and the Chinese Communist Youth League, for instance, also have fought back, telling Western firms that major Chinese e-retailers will remove all of their products from online stores, noting on H&M’s official Weibo account, for instance: “Are you ready [to] completely disappear in China?” and “Countdown to the beginning of withdrawing from the China market,” as reported by Human Rights Watch.

Professor Corri Zoli Speaks to SCMP About Xinjiang, Global Brands, and Human Rights

UN panel warns that ‘well-known global brands’ may be linked to Xinjiang human rights abuses

(South China Morning Post | March 30, 2020) Scores of Chinese and foreign companies producing “well-known global brands” may be involved in human trafficking, forced labour and other human rights abuses in China’s Xinjiang region, a United Nations working group said on Monday, calling more attention to an issue that Beijing is increasingly on the defensive about.

“Several experts appointed by the Human Rights Council said they had received information that connected over 150 domestic Chinese and foreign domiciled companies to serious allegations of human rights abuses against Uygur workers,” the Office of the United Nations High Commissioner for Human Rights (OHCHR) said …

Corri Zoli, director of research at the Institute for Security Policy and Law at Syracuse University in New York, called accounts of abuse in Xinjiang from groups including Human Rights Watch “increasingly reliable” and said they buttressed the UN working group’s investigations.

“These specific reports, data collection and outreach efforts are unifying international pressure from many angles,” Zoli said. “What we are seeing in this issue is the first-generation of the supply chain wars with complex information campaigns overlaid on these conflicts” …

Read the full article.

 

Professor Robert Murrett: China Has a Large and Growing Navy—What is the Rest of the Story?

By Robert B. Murrett, Deputy Director, Institute for Security Policy and Law

(Military Times | March 22, 2021) There is a good deal of interest these days in the growth of the Chinese navy, known officially as the Peoples Liberation Army Navy (PLAN). Most of the discussion tends to focus on the steady and significant increase in the inventory of PLAN ships and submarines, as well as the gradual expansion of the operational reach of these ships.

However, the other dimensions of seapower that constitute the real effectiveness of any navy are not always sufficiently considered. In the case of China, an assessment of strategy, operational proficiency, regional and global naval power, and leadership deserve additional emphasis.

The PLAN “order of battle” — the total number of ships, submarines, naval aircraft and supporting infrastructure continue to make gains, which will likely continue in future years. With this as a baseline, the strategic, operational and tactical proficiency of the Chinese navy has also made progress in parallel, with varied results. At the strategic level, the Chinese navy has attempted to strike a balance between regional focus on the western Pacific and adjoining waters, and other, sustained operations in distant waters.

While it is accurate that the Chinese navy has expanded the scope of their operations over the past decade, they do not have sustained global presence and reach. Concentrating maritime power in areas such as the East China Sea and South China Sea has certain advantages, although the cumulative impact of years of at-sea time and tough challenges in the world’s oceans is an important barometer of capability. The PLAN will achieve the proficiency associated with extended maritime employment in time, but a strategy which allows both a regional and global deployment posture has yet to be fully realized.

As China’s strategic naval posture is dealt with, operational-level skills associated with complex warfare challenges are a second important standard. Integrated anti-surface, anti-submarine and anti-air operations are fundamental and can only be gained by hard experience. These warfare basics should be viewed in the context of operational-level integrated joint and combined command, control and communications, and a sober assessment of Chinese capability and experience in this area cannot be overemphasized …

Read the full article.

 

Hon. James E. Baker to Speak at CSIS Civic Education and National Security Event, March 12, 2021

March 12, 2021 | 2 p.m. – 3:30 p.m.

More Information

As part of its Strategic Dialogue on Civic Education as a National Security Imperative, CSIS invites you to a conversation with FBI Director Christopher Wray and national security lawyers to get their perspectives on why civic education is a national security issue.

Why is it important for the American public to understand the role of national security institutions and the rule of law in our democracy? Why is it important for individuals operating within these institutions to come in with a strong understanding of these concepts? And how does civic education play a role in rebuilding that trust, maximizing security, and strengthening our democracy?

Following opening remarks from Director Wray and a fireside chat with Suzanne Spaulding, Senior Adviser for Homeland Security at CSIS, CSIS will host an expert panel co-sponsored by the American Bar Association’s Standing Committee on Law and National Security.

PANELISTS

  • James E. Baker, Director, Institute for Security Policy and Law, Syracuse University; Former Chief Judge, United States Court of Appeals for the Armed Forces
  • Steve Bunnell, Chief Legal Officer, Diem Association; Former General Counsel, DHS
  • M. Tia Johnson, Visiting Professor, Georgetown Law; Colonel (ret.), U.S. Army JAG Corps
  • Elizabeth Rindskopf Parker, Former General Counsel, NSA and CIA
  • Jennifer O’Connor, Vice President and Deputy General Counsel, Northrop Grumman; Former General Counsel, DoD
  • Christopher Wray, Director, Federal Bureau of Investigation

The Centaur’s Dilemma Reviewed by APSA Law and Politics

By Tobias T. Gibson, Department of Political Science, Westminster College

Judge James E. Baker, Director of the Institute for Security Policy and Law and Professor of Law at Syracuse Law School, begins THE CENTAUR’S DILEMMA with two truisms. The first is that artificial intelligence (AI) is widespread and will only become more ubiquitous. The second is that law is rarely, and perhaps never, in line with the technology that it is supposed to govern.

As described by Baker, the approaching dilemma is that of decision making, especially in the realm of national security, that will combine human and machine—like the half human, half horse centaur of mythology. Yet, while this is imminent, and in some ways a current issue—think of your reliance on the Waze app—Baker’s stated goal of this book is to allow generalists, including policymakers, to debate and design a legal framework. The time is now because allowing time for debate, including a wide variety of stakeholders, will allow lawmakers “to make informed, purposeful, and accountable decisions about the security use of governance of AI” (pp. 5-6).

The first four chapters of the book establish the problems and provocations of artificial intelligence in a national security setting. To be sure, uses and issues related to AI will certainly arise in areas of policy spaces related to traditional national security spheres, such as military and intelligence. Fighter pilots, autonomous vehicles—whether air based “drones,” or increasingly land and water-based ones—and international surveillance tools and data collection all will be enhanced by cooperative work between human and AI. Baker’s work is focused on establishing a protocol of law and policy that will not allow the cooption of decision making by the coming, and many would argue present, AI revolution.

However, he also adds that the use of AI in everyday items, the so-called Internet of things, also needs to be governed to prevent excessive action on the part of the government and corporations that build smart cars, smart toasters, smart coffee makers, smart refrigerators, and smart phones. As Baker notes, a series of recent Supreme Court cases, discussed below, have led to bright lines in the ways that collected data is used by law enforcement. However, there is much to discern and develop, as AI technology advances beyond Facebook and Amazon algorithms and becomes far more ubiquitous.

That said, however, some of the most directly applicable and, quite frankly, most developed portions of the proposed framework are found in case law, much of which is seminal …

Read the full article.

 

Professor Corri Zoli: Intelligence Strategy Highlights Workforce

A new plan aims to retain and recruit diverse experts.

By Corri Zoli & Brian Holmes

(AFCEA Signal | March 1, 2021) For many in the U.S. intelligence community, choosing the profession was neither a career goal nor even a consideration until later in life. Few set out to join the agencies that comprise the community while in high school or college. This pattern—usually based on a knowledge gap—needs to change immediately to meet the United States’ national imperative for a talented and diverse workforce.

Because the U.S. intelligence community’s federal workforce is responsible for a disproportionate impact on the country’s security and has global implications, leaders must take a more proactive stance, driven by their external academic engagement programs, to meet their own staffing strategies. The 2019 National Intelligence Strategy clearly expresses this imperative. In addition, the need for a workforce of experts also requires using innovative engagement solutions for intelligence community advisers to understand better and even drive technology advances in real time to broaden their own knowledge base.

The reasons for the current makeup of intelligence community employees are many. Historical unfamiliarity with the community can produce a schizophrenic public perception, resulting in an overly homogeneous workforce. In addition, a deficiency of education about a potential career in the field creates an inherent barrier to entry for many potential employees; therefore, a smaller pool of candidates for the agencies to draw on.

Unfortunately, this paradigm is counter to research that shows intelligence community agencies would benefit from socially diverse groups, which are more innovative and better at solving complex nonroutine problems, a typical environment for an intelligence officer …

Read the full article.

 

 

Professor Mark Nevitt: Is Climate Change a National Emergency?

(Just Security | Feb. 25, 2021)  Members of Congress recently introduced legislation mandating the declaration of a national climate emergency, while Senator Chuck Schumer (D-NY) invited President Joe Biden to declare climate change a national emergency. Reaction to these calls for a climate emergency has been mixed. Some environmentalists cheered. Others argued that using emergency powers to address climate change won’t help Biden fight it and would pose an unacceptable risk to democratic governance. 

These criticisms are not unfair, and they deserve careful consideration. But in light of the current, sobering state of climate science as well as the scientists’ call to take transformational action this decade, a climate national emergency should not be dismissed out of hand.

To be sure, declaring a climate emergency will not “solve” the climate crisis, and it shouldn’t be a substitute for legislative efforts and the work of the international Paris Climate Agreement (which the United States recently re-joined). It would, however, send a powerful signal from the White House about the urgency of the climate crisis—while also activating several legal authorities that could be put to work immediately. It would also reflect reality. A legal climate emergency acknowledges what climate scientists and experts already know: We are in a state of planetary emergency.

Climate Change: The One-Shot Problem

Climate change is unlike any problem facing the nation and the world: It has been aptly described as the “mother of all collective action” problems and a “super-wicked” problem.

Climate change is complicated by a unique temporal characteristic that penalizes inaction. Because greenhouse gas (GHG) emissions stay in the atmosphere for decades, dithering on climate action imposes escalating costs that rise over time. Unlike other thorny problems (e.g. health care, immigration), we may lack the luxury of ever coming back to the political system for a climate retry in the future—this is the so-called “one shot” problem. At some point, the effects of climate change will be too acute, have had too much impact, or be too late to stop or reverse. Climate scientists exclaim that now is the time for political leaders to take our “climate shot” or risk irreversible, catastrophic harm, not just to Americans, but to humans as a species …

Read the full article.