Podcast: “Law in the Age of COVID: Lessons Encountered” (and more!)

Today’s podcast is the last but hardly the least from our 27th Annual National Security Law conference held in February.  Entitled “Law in the Age of COVID: Lessons Encountered“ it is a fascinating take on Operation Warp Speed (OWS), which has been described as “a public-private partnership initiated by the United States government to facilitate and accelerate the development, manufacturing, and distribution of COVID-19 vaccines, therapeutics, and diagnostics.”  The Department of Defense was one of the public partners in OWS, and it played a significant role, to mainly positive reviews. 

Photo: Joy Dunlap

Your speakers discussing OWS (and much more!) are my friends, the Hon. Michele Pearce, an Air Force vet and formerly the acting General Counsel of the Army, as well as Professor Adam Oler, also an Air Force vet and now teaching at the National War College. 

There was a lot of ground covered in this presentation that you can listen to (and watch)  here.  Ms. Pearce related how complicated the OWS really was: “inter-agency, military, civilian, HHS [Health and Humans Services] personnel, and DOD [Department of Defense] personnel.”  She explained the challenge of team-building in the midst of a crisis:

And it’s interesting to note that as we are trying to identify what the characteristics and capabilities and the skill sets we are looking for to team– put this team together, we realized that we needed an acquisitions attorney, of course, we needed an intel attorney, and then we needed a contracts attorney.

So those are the skill sets that these three attorneys brought to the team. And remarkably, for a very small team– there were others that we brought on board, but these were the three initial attorneys. And you can see how complicated the wiring diagram is here, reflecting the numbers of people involved in coming to decisions as the task force and then, of course, the operation got underway.

And I would say that one of the most challenging aspects, at least initially, from a legal perspective, was making sure that this team of people who had never worked together before could rapidly get together. And we didn’t have the luxury of allowing people to telework, right? Because we were supporting an operation that was critical to addressing this crisis.

She later added this hopeful note:

[I]t was very complicated: multi– numbers of agencies, stakeholders in Congress, others in the medical community– it took all of those people working together. And I think that is a bright spot, considering where we are as a country, that we’ve had this network of people coming together to address a national crisis and they did such a phenomenal job, of course, despite the circumstances.

Professor Oler made a very insightful observation:

I think one of the lessons here to take from this, too, is we sometimes have to reconsider how we look at national security law. And what do I mean by that? The paradigm that we typically use for national security law begins with the interaction among states– conflict between states, states in competition with each other.

If you go over to Europe right now, or you start looking at a lot of other places, there’s a different security lens to look through stuff. Not so much through the lens of states interacting, but with states in a Westphalian perspective, but in a human security perspective.

Ms. Pearce talked about the difficult leadership calls she had to make in order to ensure that expert legal advice was readily available to senior decision-makers:

I would say, in my view, the differences between civilian service and military service really came to light in the Pentagon with respect to who was teleworking and who wasn’t.

The military members were reporting into the Pentagon, a lot of civilians were not. And that was a policy that was enacted and implemented at the highest levels of the Department, because we didn’t want everybody reporting into the Pentagon and getting sick and then inevitably confronting a much more dire situation.

But, I think, for national security lawyers, I don’t think teleworking is the right answer. I think you have to show up. If you work in the Pentagon, to the extent that you can safely, you need to be there.

I mean, it’s not just a question of accessing secret and classified information. It’s also an issue of making sure that the civilian and military teams that are jointly working on problem sets are in the same space, talking and working together to solve problems.

And I am sensitive to individual needs. And one of the very difficult decisions that I had to make preliminarily in my office, managing all of the 1500 attorneys who reported up through to my office was: were we going to have a uniform policy on teleworking? And if we were going to do that, who could stay home legitimately and that there were legitimate needs that would require them to stay home. And could we make accommodations for them? And then who were going to be forced to basically show up?

We ultimately decided as a team that we were going to have our senior attorneys report in. And so all of the deputies who reported to me– so acquisition, the deputy for acquisition, contracts, intel, and other areas reported in and came to the Pentagon every day, but at great cost to them and their families. And they expressed concern about reporting in at that time. We had no vaccines, of course.

But I felt we didn’t have a choice. We really needed to have that team there so that when the Secretary called and said, I’m trying to put out a legal [policy], the right attorney with the right skill set could provide the Secretary with that advice.

All of this led to a wide-ranging and very thoughtful discussion about the impact of COVID-generated norms and policies on the future legal profession, both military and civilian. It was very interesting, and you’ll want to hear it!

Again, you can listen to (and watch) the presentation here.

Disclaimers

The views and opinions expressed in the podcasts are personal to the speakers and do not necessarily reflect reflect those of their employers, law firms, the U.S. Department of Defense, U.S. Government, or any other organization.

The views and opinion expressed also do not necessarily reflect the views of myself, the Center on Law, Ethics and National Security, or Duke University (see also here)

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