Novel Threats is a series of brief conversations with fellows and affiliates of the Reiss Center on Law and Security exploring the intersection of the coronavirus pandemic and key national security challenges.
Tess Bridgeman on Coronavirus and the Role of Law in an Emergency
August 20, 2020
Tess Bridgeman is a Non-Resident Senior Fellow at the Reiss Center on Law and Security at NYU School of Law and the Co-Editor-in-Chief of Just Security. She served as Special Assistant to President Obama, Associate Counsel to the President, and Deputy Legal Adviser to the National Security Council, where she advised on the full range of issues relating to the national security and foreign policy of the United States. Bridgeman previously served in the U.S. Department of State’s Office of the Legal Adviser, where she was Special Assistant to the Legal Adviser. Prior to that role, she served as an Attorney Adviser in the Office of Political-Military Affairs, focusing on detention, civil and criminal litigation, and the intersection of the law of armed conflict and human rights law. Full bio
Most legal systems contemplate a legitimate use for extraordinary powers in the case of an emergency, but of course emergency powers can be easily abused. How should we think about the use of emergency laws in response to the coronavirus pandemic and what their use portends for the rule of law?
How a government responds to a true crisis like the COVID-19 pandemic reveals a great deal about the underlying health of its institutions and the integrity of its leaders. In autocratic regimes or even weak democracies, a crisis can be the perfect excuse for those in power to consolidate authority, remove checks and balances and implement unpopular or even illegal policies under the guise of responding to the emergency at hand.
Hungarian Prime Minister Viktor Orban’s “indefinite rule-by-decree power grab” in March is a prime example. Declaring a state of emergency was, by most accounts, called for when Europe was the epicenter of the pandemic. But the powers Orban was granted weren’t tailored to the public health crisis and lacked the safeguards usually required for the use of the emergency authorities at issue (a sunset clause and parliamentary approval of the types of measures the government can take pursuant to its expanded authority), making them ripe for abuse even after the immediate threat of the virus had subsided.
In the context of weak democracies, Nelson Camilo Sanchez may have put it best when he drew the parallel between the impact of government-imposed states of emergency and the impact of the virus on the human body itself. “Latin American democracies,” he suggests, “are high-risk patients that suffer from at least four underlying conditions: authoritarian trends, high levels of state capture, widespread local corruption, and low levels of government accountability and transparency.” These conditions are symptoms of existing global trends, rooted in deep inequalities, that the COVID-19 pandemic has accelerated.
On the other hand, competent leaders in robust democracies can and do use emergency authorities in legitimate ways that are necessary to safeguard their populations from threats, including infectious diseases. In a true public health emergency, there will often be a difficult balance between taking bold and decisive measures to protect people’s health and long-term economic well-being—which may well rely on the use of extraordinary authorities—and adhering to more normal modes of governance. In a healthy democracy, leaders should be capable of working closely with the public health system to prevent or respond to a pandemic without resorting to long-term use of emergency authorities. And when extraordinary measures do need to be taken, there are guardrails on their use that help to ensure they aren’t abused. In this sense, the law isn’t just a sword, it can also be a shield.
What legal mechanisms can be used in the U.S. context to provide the needed guardrails? At the outset, use of extraordinary authorities should be subject to thorough legal review. Any actions taken pursuant to those authorities also should be transparent to the public, which Congress can support by requiring regular, unclassified reporting. If the administration of large amounts of funding is at issue or contracting outside of normal processes is needed, for example, there should be regular audits. If there are indications that emergency authorities are being misused, Congress can and should investigate and hold hearings, inspectors general should investigate where appropriate, and if needed, whistleblowers with information about abuse of authority or other wrongdoing should come forward. In short, the rule of law can and should still prevail when extraordinary powers are being used in an emergency.
Sadly, much of what we’ve seen in the executive branch is taken right out of the authoritarian playbook. The Trump administration has relied on emergency frameworks in an opportunistic manner and used the crisis when convenient to push policy goals that had otherwise been stymied—such as Trump’s proclamation attempting to halt immigration in the name of protecting against the spread of COVID-19 from abroad when it was already spreading out of control within our borders. But it has also abdicated responsibility, denying outright or at least minimizing the crisis when confronted with the hard task of actually doing something about it. That’s tragic, and we’ve likely lost many thousands of lives as a result.
There’s been some debate on whether pandemic threats like COVID-19 should be treated as a national security issue, a public health issue, or both. What is the significance of this distinction, and what is your take on the right approach?
In an emergency, it takes time we don’t have to create new institutions or learn new modes of coordinating across existing ones. The national security process in the United States comprises a robust and well-functioning set of institutions that are designed precisely to respond to crisis situations as seamlessly as possible, provide up-to-date information and thoroughly vetted policy response options to the President and ensure coordination in implementing the decisions that are made through that process. It can be easy to default to using those processes, even if the subject matter may not be what we typically conceive of as solely a national security issue.
Some aspects of the pandemic and our response to it fall squarely within what we think of as the national security arena. For example, national security agencies should be analyzing how other countries are responding and the State Department should be engaging in diplomacy on both the public health and governance aspects of pandemic response—with human rights issues and potential for abuse of emergency powers as priority issues for that type of engagement. Another example is ensuring that health checks conducted at borders are consistent with our domestic and international legal obligations. This is of course only the tip of the iceberg of pandemic response measures that should be taken, and all of them should be closely coordinated with our public health institutions.
That said, I think there are real dangers in treating COVID-19 response writ large as a national security issue, as some have argued it should be. RCLS Senior Fellow Steve Pomper and Rob Malley, both former colleagues of mine at the National Security Council, made a convincing case in a piece they co-authored for Just Security on the “perils of hyping pandemic response as a national security issue.” They astutely point out that redefining a threat—from the health-specific challenges COVID-19 makes urgent, to the deep social and economic justice inequities the pandemic has also laid bare—as a “national security” issue can allow the Executive Branch to invoke a range of extraordinary authorities that bypass checks and balances that would otherwise apply. It also invites secrecy and normalizes a lack of transparency that is all too often attendant to national security issues. This is particularly dangerous with a leader like President Trump who already shows disdain for democratic principles.
In the end, the strength of the national security process and the resources available through it may prove the point that national security issues have been over-prioritized over many decades, sometimes at the expense of other pressing policy priorities. Correcting this will take leaders with foresight, likely acting in a non-crisis moment, to shift resources and create the coordinating mechanisms we need outside of the national security community.
What is the role of the national security lawyer in global health crises such as the COVID crisis?
If the national security process were functioning normally—and given the complete abdication from the very top, it clearly is not right now—national security lawyers would be involved in an array of substantive and procedural aspects of the pandemic response.
On substance, national security lawyers would be called on to address a range of questions. For example, can emergency laws—like the National Emergencies Act, the Stafford Act and the Defense Production Act—be invoked? What measures can be lawfully taken pursuant to those authorities, and which authorities are the most helpful in taking immediate steps we need, like securing testing supplies, PPE for all who need it and masks for the general population? Are appropriations available for response efforts and what notifications or certifications to Congress need to be made under authorizing statutes? National security lawyers would also be involved in crafting and vetting resolutions advanced at the WHO (and other multilateral bodies, such as the UN Security Council), reviewing operational planning for evacuation of U.S. citizens overseas, crafting travel and health advisories and working with policymakers on directing foreign assistance to hot spots overseas. As was the case with the Ebola outbreak of 2014, robust early action would have largely shifted us into an assistance posture, rather than a domestic response posture.
Issues farther from the spotlight would inevitably have come across our desks as well. For example, while the public all too easily forgets about the detention facility at Guantanamo Bay, Cuba, we’re still detaining dozens of people there, and the population is aging. We’ve seen the way COVID-19 spreads in prisons and similar closed environments—imagine that type of setting but on a military base, on an island, in a country where the U.S. has deeply strained diplomatic relations, where many of those detained have underlying health issues, and where conditions of confinement are shrouded in secrecy. At least two COVID-19 cases have been reported on the base (in March and April), but disclosure of new cases has reportedly been halted and detainees have apparently not been tested. That’s the wrong approach. National security lawyers should be working with those operating and overseeing the facility to ensure medical treatment—including preventive care—is consistent with our international humanitarian law obligations, while also being vigilant that the pandemic isn’t used as an excuse to make conditions of confinement more restrictive than necessary.
National security lawyers also function as guardians of the national security process. When I served in the NSC Office of the Legal Adviser, one key aspect of the job was ensuring the process laid out in Presidential Policy Directive-1 was followed and that career experts were consulted in policy development and empowered in implementation. This is not a box-ticking exercise or a matter of bureaucratic nicety: in the national security context that is often secretive by necessity, and especially when moving quickly in an emergency situation, good process is an antidote to abuse or misuse of authority. On a more mundane but equally important level, it helps to ensure the quality and sustainability of measures that are taken. I had the privilege of working in a White House that cared deeply about good process for precisely these reasons. Unfortunately, in our current crisis, no amount of diligent lawyering will be able to course correct for a President who is more concerned with advancing his personal interests than the good of the country.