Civil-Military Relations

Militarizing Civilian Emergencies? Professor William C. Banks Interviewed for the NATO M4CE Project

Professor Emeritus William C. Banks recently was interviewed as part of the M4CE Project, an initiative of the NATO Foundation for Global Governance and Sustainability, on the subject of military intervention in domestic natural and man-made emergencies:

“At the Foundation for Global Governance and Sustainability (FOGGS) we appreciate the role that military personnel and equipment can play and have already been playing in areas struck by natural or human-made disasters ranging from pandemics, like the current COVID-19 one, to floods, forest fires, hurricanes, earthquakes, industrial accidents and oil spills. We believe that this role has to be highlighted for policy makers and the public, and can be further improved on the basis of best practices that need to be collected and shared broadly.”

THE M4CE PROJECT

European policy news organization Katoikos, summarizes the M4CE interviews at its blog:

The M4CE Project: Interviews with Key Experts on Militaries for Civilian Emergencies

“Finally, perhaps the most significant challenge ahead relates to perceptions, both in terms of public opinion towards military involvement in civilian emergencies, and in terms of the military’s opinion about working alongside civilian authorities. As both Dr. William Banks and Mr. David Burke remind us, those nations with a complicated history of military abuse of power may hold deeply embedded but well-founded mistrust towards the military. Mr. Nikos Votsios raises the important question of whether militaries can be “convinced that providing assistance to state services and local communities in case of emergencies and disasters is in their mission” or constitute a distraction from the armed forces’ “real tasks.”

Watch Professor Banks’ full M4CE Project interview:

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 —Moderna, Johnson & 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 argued, Jacobson reaffirms the “basic police power of the government to safeguard the public’s health.” This decision, Jacobson 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.

NBC News Asks Professor William C. Banks About National Guard and Protests

Who decides when there are helicopters? Experts weigh in on National Guard monitoring protests

(NBC News | Jan. 10, 2020) It was not lost on many Americans — including President-elect Joe Biden — that after a violent mob of President Donald Trump’s supporters broke into the Capitol in Washington, D.C., the delayed use of National Guard troops was far different than it was during the Black Lives Matter protests last year.

In late May, governors called on 43,000 troops nationwide. The nation hasn’t deployed National Guard troops at a comparable scale since the civil rights movement of the 1960s. By comparison, on Wednesday, acting Secretary of Defense Christopher Miller approved the deployment of less than 6,200 National Guard troops …

… But the use of National Guard units in June was “fundamentally exceptional and different from the way civilians and the military have ordinarily worked together,” said William Banks, emeritus professor of law at Syracuse University and co-author of “Soldiers on the Home Front,” a book about the domestic deployment of U.S. military assets. He fears that the new use of military surveillance technology for domestic protesters presents deeply troubling implications. “The civilian-military relationship, which is critical to the success of our society, has broken down” …

Read the full article.

 

Professor Mark Nevitt Asks Four Questions About Capitol Hill Riot

Tragedy at the Capitol: Four Questions that Demand Answers

By Mark P. Nevitt

(Just Security | Jan. 9, 2020) How can the U.S. Capitol, surrounded by one of the largest concentrations of law enforcement and national security personnel in the world, be so quickly overrun by Trump insurrectionists hell-bent on “stopping the steal,” halting our cherished democratic processes, and potentially harming lawmakers?

This tragedy and breach of the Capitol Building on Wednesday is a failure of leadership and planning at the highest levels. A full and comprehensive investigation will be conducted. And it is important not to jump too quickly to conclusions without having a full understanding of the events and decisions that took place that day and the days leading up to it.

Nevertheless, several key questions and themes are beginning to emerge. These must be addressed prior to President-elect Joe Biden’s inauguration on Jan. 20.

These questions center around the difficulty in swiftly coordinating a response across overlapping federal, state, and local jurisdictions. Despite being surrounded by the nation’s vast national security and law enforcement apparatus, the U.S. Capitol response appears to have been plagued by and not taking the threat of right-wing extremism seriously. This was further exacerbated by different chains of command, overlapping legal authorities, and complex jurisdictional issue.

I highlight four initial questions to focus on:

  1. Was the District of Columbia National Guard properly deployed and resourced?
  2. What prevented other state National Guards from being expeditiously deployed?
  3. What role do other federal law enforcement have and why did the DC police have to play such a critical role in the Capitol’s defense?
  4. What other assets may have assisted? …

Tragedy at the Capitol: Four Questions that Demand Answers

Professor William C. Banks Comments on the Capitol Hill Riot

SU Law Professor Saddened, Concerned About Democracy’s Future

(Spectrum News | Jan. 7, 2021) Sadness: That’s how Syracuse University Law Professor Bill Banks felt when he watched a mob rush the Capitol on Wednesday. A group of people took extreme measures to vindicate a president who refuses to accept defeat, he said.

“It’s quite an ironic and disturbing spectacle to have the president of the United States engage in sedition.”

“It’s quite an ironic and disturbing spectacle to have the president of the United States engage in sedition,” said Banks. “That is in violent, illegal attempts to overthrow the government of the United States.”

Capitol police were overwhelmed Wednesday afternoon. The logistics are still unknown.

Law enforcement in Washington, D.C., is unique because the Defense Department usurps the city’s power, said Banks. He says either the police misapprehended where the group was or they were underprepared.

“They simply didn’t have the numbers to stand up to the thousands of violent thugs who were using any means available to them to break into the building,” said Banks …

Read the full article.

CNY Reactions to Washington D.C. Attack on Congress from Disgust to Anger to Blaming Trump

(WAER | Jan. 7, 2021) Reactions to the storming of the U.S. Capitol building by a large number of President Trump supporters Wednesday sparked some strong reactions from New York’s Congressional delegation and political experts in Central New York …

Syracuse University Professor William Banks, founder of the Institute for Security Policy and Law says the mob and its activities fall short of a coup attempt, though said it was appropriate for police to use force to quell rioting …

Read the full story.

 

Professor William C. Banks Mulls Election Scenarios in Medium and AP

Will There Be Blood?

(Medium | Oct. 26, 2020) In his inaugural address four years ago, President Donald Trump declared a crusade against the “carnage” he said his predecessors had wrought on the nation, lining their own pockets while creating a nation of “forgotten men and women.” Five hours later, fired up and triumphant, Trump filed for re-election, the earliest incumbent to do so in memory. So it was that Trump set the stage for what a lot of people thought was him governing, but in effect has been the most foreboding, nerve-frazzling — and by far the longest — re-election campaign in modern U.S. history.

Just a week away from its climax, some of the country’s most sober voices say one cost of Trump’s term-long barrage of grievance and accusation is the possibility of civil unrest on and after Election Day. There is always the chance that fraught tempers will dissipate, either by luck or a landslide one way or the other that imposes a forceful quiet on the contest. But, with an animated Trump issuing daily allegations of a sinister plot to unseat him, and supporters of both sides apprehensive of how far the other is prepared to go to win, the fear is that Americans will erupt in the worst political violence since Jim Crow …

… William Banks, a law professor at Syracuse University, said the president’s actions reflect mere “Trumpian rhetoric, played to maximum volume for his base.” Perhaps, though we won’t know until we see his reaction should he be defeated next Tuesday …

Read the full article.

An Election Day Role For National Guard? Maybe, But Limited

(AP | Oct. 30, 2020) Federal laws and long-standing custom generally leave the U.S. military out of the election process. But President Donald Trump’s unsubstantiated warnings about widespread voting irregularities have raised questions about a possible military role.

If any element of the military were to get involved, it would likely be the National Guard under state control. These citizen soldiers could help state or local law enforcement with any major election-related violence. But the Guard’s more likely roles will be less visible — filling in as poll workers, out of uniform, and providing cybersecurity expertise in monitoring potential intrusions into election systems …

… William Banks, professor at Syracuse University College of Law, said that sending uniformed troops to the polls, including the Guard, would be unwise.

“The overriding point is that we don’t want the military involved in our civilian affairs. It just cuts against the grain of our history, our conditions, our values, our laws,” he said …

Read the full article.

Professor Mark Nevitt on Pentagon Labyrinth: What’s the Military’s Role in a Contested Election?

What’s the Military’s Role in a Contested Election?

(POGO Pentagon Labyrinth | Oct. 27, 2020) We are on the eve of what could be a contentious and disputed election, and a turbulent transition. Given the possibility that we will not know who the winner is for some time after November 3, there are increased concerns about domestic disturbances and violence.

This is prompting many to openly discuss the military’s role in such a scenario. The Military Times recently published an article titled “How the president could invoke martial law.” Several legal scholars have also weighed in on the issue in the past few months.

One is Mark Nevitt, a professor of constitutional law, national security law, environmental law, and climate change law at Syracuse University College of Law. He has a solid military background as well. He started his career as a Naval aviator flying the S-3 Viking; he flew over a thousand hours and had approximately 300 carrier landings. When the Navy retired the S-3s, it sent Mark to Georgetown Law. He spent the rest of his career as a Navy judge advocate general before retiring in 2017 to join academia.

Listen to the segment.

Professor Corri Zoli Joins HDIAC Podcast to Discuss Culture and Civil-Military Relations

The Homeland Defense and Security Information Analysis Center (HDIAC) is a Department of Defense Information Analysis Center sponsored by the Defense Technical Information Center.

Rethinking Culture in the Context of Civil-Military Relations: Part 1 of 3

This podcast is the first in a multi-part series discussing the impact of culture in the context of civil-military relations. In this episode, Dr. Corri Zoli and the Maxwell School of Citizenship and Public Affairs’ Dr. Robert Rubinstein explore definitions of culture and discuss how different organizational cultures have led the U.S. military and humanitarian groups to pursue divergent on-the-ground security strategies in conflict zones.

Rethinking Culture in the Context of Civil-Military Relations: Part 2 of 3

In Part 2 of Rethinking Culture in the Context of Civil-Military Relations, Dr. Rubinstein and Dr. Zoli discuss the strategic effectiveness of DoD efforts to engage culturally in Iraq and Afghanistan as well as debate enduring questions regarding these efforts’ processes and outcomes.

Rethinking Culture in the Context of Civil-Military Relations: Part 3 of 3

In the third installment of Rethinking Culture in the Context of Civil-Military Relations, Dr. Zoli and Dr. Rubinstein continue the conversation around different cultural models of risk and security and discuss the broader impacts of taking a militarized approach to security abroad.

 

Professor William C. Banks to Vox: Southern Deployment Legal, But Is the Wall?

The US military will stay on the US-Mexico border, even with migration falling

(Vox | June 25, 2020) The Pentagon will officially keep as many as 4,000 troops at the US-Mexico border in October — ensuring President Donald Trump’s military deployment continues throughout the election season despite no signs of an actual crisis.

In a Thursday statement, Army Lt. Col. Chris Mitchell, a Defense Department spokesperson, said Defense Secretary Mark Esper approved the Department of Homeland Security’s request for assistance at the border. Most military backup will come from the National Guard, he noted, which will help monitor the frontier, provide logistics, and offer transport to Border Patrol personnel. Troops can’t engage in law enforcement activities.

In a follow-up comment to Vox as to why such a decision was made months in advance, Mitchell said, “The current mission is set to expire at the end of September. This is just an extension of the mission through the next fiscal year.” The new authorized number of troops would actually be a decrease from the 5,500 military personnel currently at the border …

… William Banks, an expert on national security law at Syracuse University, told Vox that such a deployment, like the previous ones, is clearly legal. But, he added, “I continue to question whether the wall construction itself is lawful,” noting that multiple lawsuits proceed.

All this sounds well and good, but the issue is that what was supposed to be a temporary backfill at the border has now become a perpetual solution, and it’s not clear the military is even needed at the Mexico frontier anymore …

Read the full article.

 

Professor William C. Banks Speaks to PBS Newshour About National Guard Deployments

‘Optics matter.’ National Guard deployments amid unrest have a long and controversial history

(PBS Newshour | June 9, 2020) When major protests erupted in dozens of cities around the country in the wake of George Floyd’s death, many states responded by calling on the National Guard to police demonstrations and to enforce curfews.

“They are members of the military, not law enforcement.”

In all, more than 30 states activated about 32,000 National Guard members to supplement local police efforts to manage the unrest, which was largely lawful, but in some cases resulted in the destruction of businesses and instances of violence.

A number of high profile clashes between law enforcement and protesters have prompted criticism about what many have decried as excessive use of force — the very issue that gave rise to the demonstrations.

For decades, the guard has served the dual function of operating both domestically, in a number of capacities, and internationally. For instance, about 60,000 additional guard members are assisting this year with public safety efforts amid the coronavirus pandemic and natural disaster preparation and response as tropical storm season gets underway. But in light of recent confrontations, many are questioning the wisdom of using trained military to monitor American civilians protesting on American soil …

… The National Guard is trained to help domestically in a variety of capacities, said William Banks, a professor emeritus at Syracuse University College of Law. “That said, they are members of the military, not law enforcement, so they are largely trained to supplement military jobs,” Banks said …

Read the full article.