Shouldn’t the SecDef do everything he can to address his #1 priority?

Surprisingly, the Pentagon’s answer to the question above seems to be “no.”  Let’s unpack this a bit as the current situation is troubling…and rather inexplicable.

Yesterday the Military Times reported that only “about a third” of military members have voluntarily taken the COVID-19 vaccine, even though the Pentagon told the public in January that Secretary of Defense (SecDef) Lloyd Austin’s “number one priority” is “combatting the pandemic.”

According to the Military Times, “vaccine refusal” is a factor explaining why the immunization rate isn’t higher.  It points out, for example, that 40% of the Marines have “opted not to get vaccinated.”  This tracks with earlier reports that almost one-third of US troops are refusing the COVID vaccines.

If “combatting the pandemic” really is the SecDef’s top priority, shouldn’t he take decisive action and end voluntary vaccination and direct that all military members be immunized?  If it actually isn’t, shouldn’t he plainly state what is, and clearly explain why the inoculations aren’t important enough to mandate?

Keep in mind that, as Lawfire^® readers know from a previous post (“Can troops be ordered to take the COVID vaccine? A guest post analyzes the law”), there is a clear legal path for the SecDef to issue a lawful order to take the shots.  To my knowledge, however, he hasn’t embarked upon it.

What makes Austin’s inaction so inexplicable is that just this morning, the Washington Post headlined that “Biden casts vaccinations as a patriotic duty, urges Americans to protect themselves, others.”  Why then is the administration allowing the military to opt out of what the Commander-in-Chief says is a “patriotic duty”?

Background

In his “Day One” message Secretary Austin said “keep[ing] this country safe” is “job one.”  But the only threat to that safety he referenced was the pandemic.

If there was any ambiguity about what Austin meant, the Department of Defense (DoD) issued a press release citing Max Rose, Austin’s special advisor on COVID-19, for the proposition that Austin’s message “firmly established that combatting the pandemic is [Austin’s] number one priority.”  (Note: the “combatting” spelling is used in the original)

Again, if “combatting the pandemic” really is DoD’s “number one priority,” what can explain Secretary Austin’s lack of action to mandate the COVID-19 vaccine for those in uniform?  This situation suggests a raft of uncomfortable questions.  Here are just a few:

Is the pandemic not truly a defense crisis in the SecDef’s mind? 

In DoD’s view, are there issues about the safety of the vaccines? 

If so, why is the commander-in-chief calling for a “blitz” to vaccinate millions of civilian Americans?

Let me be clear, I’ve long opposed militarizing the nation’s response to the pandemic.  Of course, the pandemic is a very serious national issue, but so are cancer and heart disease, both of which killed significantly more Americans than did COVID-19 in 2020.  Should the SecDef also be addressing those killers as a top DoD priority?  I don’t think so.

Ironically, Secretary Austin inherited a DoD that’s done a very commendable job at containing the pandemic within the ranks.  Although 24 servicemembers have tragically died from the illness, DoD managed to continue to accomplish its mission while keeping the vast majority of its more than 2.3 million active and reserve personnel free of the disease.  Moreover, DoD has done its share to aid civilian authorities by contributing millions of dollars in resources and thousands of personnel for the vaccination effort.

Shouldn’t DoD’s “number one” priority be to “fight or be ready to fight wars should the occasion arise”?

Of course, government writ large does need a powerful response to the pandemic.  If General Austin was Secretary of Health and Human Services (HHS) or perhaps Secretary of Homeland Security it might sense to make the pandemic his “number one priority.”  But DoD has plenty on its plate facing down a range of extraordinarily dangerous state and non-state actors; it doesn’t need to take a mission away from other organizations who can focus upon it in a way DoD cannot and should not.

The fact is that for the Pentagon specifically (as opposed to other government entitles) its priority has got to be, as the Supreme Court put it, to “fight or be ready to fight wars should the occasion arise.”  Of course, DoD needs to be a part of a government-wide effort to address domestic medical emergencies like the pandemic, but its priority has to be focusing on nefarious actors who present dangerous, even existential, threats of a decidedly different sort.

That said, mandatory vaccines for the military might still make sense, even if “combatting the pandemic” isn’t the “number one” priority.  As the Supreme Court noted in Haig v. Agee, “it is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”  The health of the force is, undeniably, intrinsic to its ability to provide that security, and that’s why the military mandates a range of requirements and activities to maintain its fitness to fight.

George Washington’s example

I believe the armed forces could set an example without compromising its primary focus on military threats.  George Washington never said that combating smallpox was his “number one” priority, but he did order the Continental Army to be inoculated against the disease.

This was a very bold decision at the time.  History.com says that the “best inoculation technique at Washington’s disposal during the Revolutionary War was a nasty and sometimes fatal method called ‘variolation’.”  Here’s how it worked:

“An inoculation doctor would cut an incision in the flesh of the person being inoculated and implant a thread laced with live pustular matter into the wound,” explains [an expert]. “The hope and intent was for the person to come down with smallpox. When smallpox was conveyed in that fashion, it was usually a milder case than it was when it was contracted in the natural way.”

Variolization still had a case fatality rate of 5 to 10 percent. And even if all went well, inoculated patients still needed a month to recover. The procedure was not only risky for the individual patient, but for the surrounding population. An inoculee with a mild case might feel well enough to walk around town, infecting countless others with potentially more serious infections.

Fortunately, medical science has advanced since Washington had to make his difficult decision.  Nevertheless, many in the U.S. today remain skittish about the COVID vaccine.  Just last week a poll showed that “21% of Americans claim they will never get the vaccine if they can avoid it.”

While I’ve personally welcomed being vaccinated, I recognize that lots of people have concerns about the shots, and this may partly explain the recent decline in vaccinations nationwide.  I can’t help but think that some—and perhaps many–Americans are hesitant to get the vaccine when they see the armed forces, the Nation’s most trusted institution, isn’t requiring what the Commander-in-Chief has declared to be a “patriotic duty.”

Concluding thoughts

Finally, I fear the SecDef’s own credibility and leadership may be undermined by his inaction.

Though I believe there are more perilous issues that are better fits for the Pentagon’s “number one” priority, since the SecDef chose to declare the pandemic his top concern, he needs to follow through with decisive action which demonstrates his commitment to do everything he can to address it.

To date, that hasn’t happened, and that could send all the wrong messages not just to the force, but to others–friends and foes alike.  A top priority without action is merely a hope and, as is so often said in the military, hope is not a plan.

Still, remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!