In January 2020, when the novel coronavirus (COVID-19) began sweeping across mainland China and the world quickly thereafter, command teams immediately started to plan their attack against the spread of the virus. The initial messaging focused on remaining calm and instructing people that washing their hands and cleaning surfaces would be enough to slow—if not stop—the virus’s spread. While positive messaging was being sent out to the world, Army commanders were asking their judge advocates what powers they had to protect the force, Families, and installations if the situation progressed into a worldwide pandemic. This article addresses the commander’s inherent authority; it also addresses the Department of Defense Instruction (DoDI) that is the bedrock of a pandemic outbreak and, specifically, what actions the senior commander at Fort Bragg, North Carolina, took to protect the force, Families, and the installation that look to him, as the Commanding General (CG), for protection and guidance.
First and foremost, a commander has the inherent authority to maintain good order and discipline of their Soldiers.1 A senior commander,2 such as the CG of XVIII Airborne Corps in Fort Bragg, holds authority over an installation which is “necessarily extensive and practically exclusive, forbidding entrance and controlling residence as the public interest may demand.”3 Further, Army Regulation (AR) 600-20, Chapter 4, specifically states that a senior commander’s authority includes all that inherent in command. This includes the authority to maintain good order and discipline of Soldiers both on and off the installation. It also states that, in the case of communicable diseases, a senior commander can choose to quarantine Soldiers who may be infected or at risk for infection.4 While the corresponding DoDI 6200.03 provides the regulatory guidance on the military response to a pandemic event in the context of a public health emergency, the authorities themselves are generally inherent in the role of the senior commander.
What specifically does inherent authority allow a senior commander to do in a situation like COVID-19? With respect to Soldiers, the CG was immediately able to limit leave and pass privileges; implement travel restrictions; define “essential travel”; and cancel non-mission essential activities and non-mission essential leave. The CG’s authority over Soldiers is particularly broad, and the authority can take any reasonable measure necessary to prevent or limit the transmission of a communicable disease and enhance public safety, including ordering Soldiers into quarantine, isolation, or conditional release.
Department of Defense Instruction 6200.03
When it comes to responding to a communicable disease like COVID-19, DoDI 6200.03 is the true King of the Battle. It provides substantial regulatory guidance regarding the military response to a pandemic event. When a public health emergency occurs, the senior commander assesses the impact of the emergency on the installation, considers whether to declare an installation-wide public health emergency, and decides what subsequent actions to take to protect the health and welfare of the force, Families, and installation community. The Public Health Emergency Officer (PHEO) for the installation assists the senior commander in making these determinations.5
If both the senior commander and the PHEO believe that a public health emergency declaration on the installation is necessary, the commander will declare the public health emergency in writing. The staff judge advocate will ensure the declaration is within the scope of the senior commander’s authority and the public affairs officer (PAO) will consult with the senior commander to ensure adequate publication of the order. A declaration must be immediately reported through the chain of command to the Secretary of Defense and to all installation personnel within twelve hours. Unless renewed and re-reported, public health emergency declarations within the Department of Defense (DoD) will terminate automatically in thirty days. A PHEO must also evaluate the threat as a potential public health emergency of international concern.
Upon declaration of a public health emergency, the senior commander is authorized to take “relevant emergency actions to respond to the situation to achieve the greatest public health benefit while maintaining operational effectiveness.”6 These measures can include, but are not limited to, directing Soldiers to submit to medical examinations or testing; closing, directing the evacuation of, or decontaminating any asset or facility that endangers public health; controlling evacuation routes on, and ingress and egress to and from, the affected DoD installation or military command; and restricting movement to prevent the spread of communicable disease.7
One type of reasonable and necessary response is the restriction of movement—either through quarantine or isolation—to prevent or limit transmission of a communicable disease. Quarantine is defined as “the separation of an individual or group that has been exposed to a communicable disease, but is not yet ill, from others who have not been exposed, in such manner and place to prevent the possible spread of the communicable disease.”8 Isolation, on the other hand, is defined as “the separation of an individual or group infected or reasonably believed to be infected with a communicable disease from those who are healthy.”9 Said more simply, if an individual or group is showing symptoms or is known to be infected, then whoever is infected should be isolated; however, if someone is potentially infected but it is not yet confirmed, then they should be quarantined until a final diagnosis is made.
In conjunction with orders from higher levels, the senior commander at Fort Bragg instituted numerous reasonable measures to weaken the spread of the virus—such as ordering immediate quarantine for Soldiers returning from high risk countries, limiting the local leave radius to no more than fifty miles, and ordering all Soldiers to wear face coverings over their noses and mouths when entering a post exchange or commissary facility.
Senior commanders have a significant amount of inherent authority to protect the force and protect good order and discipline, but they also have an important weapon in their commander’s ruck sack—DoDI 6200.03. Many of the measures taken by the senior commander at Fort Bragg during COVID-19 grew from the language in the DoDI; however, they fell under his inherent authority as a senior commander.
1. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy ch. 4 (6 Nov. 2014) [hereinafter AR 600-20].
2. Note the 2014 version of AR 600-20 replaced the term “Senior Mission Commander” with “Senior Commander.” Id.
3. See Cafeteria Workers v. McElry, 367 U.S. 886 (1961).
4. See AR 600-20, supra note 1, para 5-4(c)(3).
5. According to the Department of Defense Instruction 6200.03, the military commander will direct the Public Health Emergency Officer (PHEO) to (a) determine the existence of cases suggesting a public health emergency affecting the installation’s population, (b) ensure that sources of the health hazard are investigated, (c) define the distribution of the illness or health condition, and (d) recommend implementation of proper mitigation and/or control measures. U.S. Dep’t of Def., Instr. 6200.03, Public Health Emergency Management Within the Department of Defense, para 3.1(d) (27 Sept. 2010).
6. See id. para 3.2(a).
7. See id. para. 3.2(b).
8. See id. at Glossary.