The Role of the Department of Defense During A Flu Pandemic
Released: 2009-06-04T00:00:00

The Federal Response to a Flu Pandemic

A flu pandemic is a worldwide epidemic of an influenza virus. As such, the United States' response to a flu pandemic would have both international and domestic components. Additionally, the domestic response effort would depend upon contributions from every governmental level (local, state, tribal, and federal), non-governmental organizations, and the private sector. This report will focus largely on the role of the Department of Defense (DOD) in supporting the nation's domestic response effort, although it will also touch on DOD's international role.

The National Response Framework

The federal response to a flu pandemic would be broadly shaped by statute and executive branch plans and policies. Statutes such as the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), the Public Health Service Act, and other public health emergency authorities permit the federal government to provide various forms of assistance to eligible applicants, including state and local governments, non-profit organizations and individuals. While these statutes authorize the federal government to provide assistance, the manner in which the array of federal agencies provide that assistance in coordination with other levels of government, non-governmental organizations, and the private sector is guided by an executive branch planning document known as the National Response Framework (NRF).

The NRF "is a guide to how the Nation conducts all-hazards response." Among other things, it establishes broad lines of authority for federal government agencies to prepare for and respond to any terrorist attack, major disaster, or other emergency (i.e., "all-hazards"). Under the NRF, the Secretary of State is responsible for "managing international preparedness, response and recovery activities relating to domestic incidents and the protection of U.S. citizens and U.S. interests overseas." The Secretary of Homeland Security is "the principal Federal official for domestic incident management...[and is] responsible for coordination of Federal resources utilized in the prevention of, preparation for, response to, and recovery from terrorist attacks, major disasters, and other emergencies." However, the Secretary of Health and Human Services (HHS) "leads all Federal public health and medical response to public health emergencies and incidents covered by the NRF." Given the centrality of public health and medical response during a flu pandemic, HHS would be the primary response agency for the domestic response, even while DHS coordinates the overall domestic response effort.

The role of the Department of Defense (DoD) in supporting domestic response efforts under the NRF is potentially significant, while recognizing certain limits due to the Department's principal mission of national defense:

The primary mission of the Department of Defense (DOD) and its components is national defense. Because of this critical role, resources are committed after approval by the Secretary of Defense or at the direction of the President. Many DOD components and agencies are authorized to respond to save lives, protect property and the environment, and mitigate human suffering under imminently serious conditions, as well as to provide support under their separate established authorities, as appropriate. The provision of defense support is evaluated by its legality, lethality, risk, cost, appropriateness, and impact on readiness. When Federal military and civilian personnel and resources are authorized to support civil authorities, command of those forces will remain with the Secretary of Defense. DOD elements in the incident area of operations and National Guard forces under the command of a Governor will coordinate closely with response organizations at all levels.

A more thorough discussion of the types of support DoD might be called upon to provide to civil authorities, and the process whereby such support can be requested, occurs later in this report.

The National Strategy for Pandemic Influenza

While the NRF provides an "all-hazards" response framework, the federal government also has a strategic plan which specifies in more detail precisely how it will prepare for and respond to a flu pandemic within the context of the NRF. The National Strategy for Pandemic Influenza ( hereafter National Strategy) provides an overarching outline of how the federal government will prepare for, detect and respond to a such an event. It is based on three "pillars": preparedness and communications; surveillance and detection; and response and containment. A related document, the National Strategy for Pandemic Influenza Implementation Plan ( hereafter Implementation Plan) , details the specific actions and policy decisions which will be needed to execute this strategy and bring all the resources of the federal government to bear in a coordinated manner. Like the NRF, it affirms that the Secretary of State would be responsible for the coordination of the international response, the Secretary of Homeland Security would have overall responsibility for the federal government's response to a pandemic, and the Secretary of Health and Human Services would be responsible for the "overall coordination of the public health and medical emergency response during a pandemic...." It describes the role to the Secretary of Defense as follows:

The Secretary of Defense will be responsible for protecting American interests at home and abroad. The Secretary of Defense may assist in the support of domestic infrastructure and essential government services or, at the direction of the President and in coordination with the Attorney General, the maintenance of civil order or law enforcement, in accordance with applicable law. The Secretary of Defense will retain command of military forces providing support.

Subsequently, the Implementation Plan assigns some 300 tasks to various federal agencies. For each of these tasks, a lead federal agency is identified and, if need be, supporting agencies as well.

The Role of the Department of Defense

A DoD analysis of the Implementation Plan identified 31 tasks which were assigned primarily to DoD and 83 which were assigned to other agencies with DoD in a supporting role. Of the tasks assigned primarily to DoD, most were related to one of these four objectives:

Assisting in disease surveillance Assisting partner nations, particularly through military-to-military assistance Protecting and treating US forces and dependents Providing support to civil authorities in the United States Each of these general objectives is discussed in more detail below.

Disease Surveillance

The Department of Defense plays an important role in detecting and tracking diseases. Given the wide dispersal of U.S. military forces around the globe, the Department of Defense has long maintained a system for detecting infectious diseases in order to maintain intelligence on possible threats to force readiness. DoD conducts continuous worldwide influenza surveillance at domestic laboratories as well as at military installations around the world. More than a dozen different DOD entities cooperate with each other, foreign militaries, and some nonmilitary organizations in a complex arrangement that allows global surveillance of emerging infections. International cooperation is important due to the rapid transmission of disease made possible by high levels of global travel. DOD policy is designed to provide for detection capabilities at the lowest possible organizational level. The Institute of Medicine reviewed DOD's global influenza surveillance network in 2007 and issued a mainly favorable assessment, although the Implementation P lan required the Department of Defense to improve its capacity to detect and monitor new influenza strains, and to enhance its ability to share information with international organizations and agencies. DOD's influenza surveillance programs actively coordinate with the Centers for Disease Control and Prevention, Food and Drug Administration, and World Health Organization.

Partner Nation Assistance

Under the Implementation Plan , the Secretary of State is responsible for

the coordination of the international response, including ensuring that other nations join us in our efforts to contain or slow the spread of a pandemic virus, helping to limit the adverse impacts on trade and commerce, and coordinating our efforts to assist other nations that are impacted by the pandemic.

However, DoD has well-developed relationships with key leaders in many nations -- particularly with respect to foreign military officers and defense officials – and it also has expertise and capabilities that could be useful to the efforts of foreign governments to detect and contain a pandemic. As such, the Implementation Plan directed DoD to conduct a number of actions, in coordination with the Department of State and other appropriate agencies, to assist partner nation militaries in preparing for a pandemic. Examples of this type of assistance include assessing the preparedness and response plans of foreign militaries, validating these response plans with military-to-military exercises, conducting training programs to improve military infection control and case management, and assessing the capacity of foreign military labs and response teams. The Implementation Plan also directed DoD to support the Department of State in providing U.S. response capabilities to international response efforts. Examples of this type of support would include participating in investigative or technical assistance teams, or delivering countermeasures to affected countries. Additionally, if the Secretary of Defense approves a request from another federal agency for such support or if the President so directs, DoD may support containment operations or stability operations in another nation.

Protecting and Treating U.S. Forces and Dependents

In responding to an influenza pandemic, the Department of Defense would place a very high priority on protecting DoD personnel, including uniformed military servicemembers, DoD civilian employees, and contractors performing critical roles. The rationale for this is based on the national security implications of a virus disabling a sizable proportion of the DoD workforce. For example, an influenza pandemic could conceivably render naval ships unable to perform missions, shut down training and support activities on major bases, seriously degrade security at critical sites, and break the supply chain that sustains forward deployed forces. The Implementation Plan states:

The primary responsibility of DOD is to preserve national security by protecting American forces, maintaining operational readiness, and sustaining critical military missions. DOD's first priority with respect to protecting human health will be to ensure sufficient capability to provide medical care to DOD forces and beneficiaries. DOD can provide medical, public health, transportation, logistical, communications, and other support [to non-DOD beneficiaries] consistent with existing legal authorities and to the extent that DOD's National Security preparedness is not compromised.

In addition to conducting world-wide surveillance of potential disease threats (discussed previously), DoD protects its workforce through preparedness, communication, and medical response.

Preparedness

Preparedness includes acquisition and prepositioning of vaccines, medicines, and other supplies. For example, DOD reports having 8.2 million treatment courses of Tamiflu on hand. With respect to the current H1N1 flu outbreak, testing to date shows the virus is susceptible to the antivirals Tamiflu and Relenza. However, over time, increasing resistance is a possibility. DOD also reports that it has an 80-day supply of personal protective equipment (gowns, masks, and gloves) for medical providers. Although at this time there is no vaccine available for H1N1, DOD has policies and organizations, such the Army's Military Vaccine Agency (MILVAX), in place to issue vaccination policies and guidance and to coordinate with the Department of Health and Human Services in acquiring vaccines when they are available. In general, it is DOD policy to follow the immunization recommendations of the Centers for Disease Control and Prevention and its Advisory Committee for Immunization Practices consistent with requirements and guidance of the Food and Drug Administration and consideration for the unique needs of military settings and exposure risks.

Communications

With respect to communications, DOD has developed both passive and active channels for disseminating relevant guidance and information. DOD established a medical "watch board" web site ( http://fhp.osd.mil/aiWatchboar d /dodleadership.jsp ) to provide the up-to-date information and links to other sources of information. The Assistant Secretary of Defense for Health Affairs maintains three other websites tailored to different audiences with the DOD community.

DOD's influenza pandemic policies anticipate the need for flexibility as circumstances change, such that, for example, if a shortage of antiviral medications were encountered, treatment priority categories could be identified and implemented. On April 24, 2009, NORTHCOM issued a force health protection advisory including guidance for North America that included general influenza risk reduction measures.

Medical Response

If a servicemember or other eligible person becomes infected, the military health system operates both direct care and purchased care systems through which he or she may receive treatment. The direct care system's primary objectives are first, to support the national security mission and second, to provide beneficiaries enrolled in the Tricare Prime and Tricare Plus programs with primary care at military treatment facilities. The purchased care system, consisting of three regional Tricare contract providers, allows beneficiaries using the Tricare Standard program to access care from civilian providers.

Defense Support of Civil Authorities

During a serious flu pandemic, there is a strong possibility that local, state, and federal responders will request assistance from the Department of Defense. DoD has a broad range of capabilities that could be useful to civil authorities in emergency situations, including transportation assets, medical personnel and supplies, security forces, and communications equipment The NRF and the Implementation Plan refer to this type of assistance as Defense Support of Civil Authorities (DSCA), while DoD often refers to it as Civil Support (CS) or Military Assistance to Civil Authorities (MACA). This report will follow the NRF terminology unless otherwise specified.

Examples of Defense Support Which Civil Authorities Might Request During a Flu Pandemic

The types of defense support which would likely be in greatest demand during a flu pandemic are contained in the Implementation Plan and the NRF's Emergency Support Function (ESF) # 8, Public Health and Medical Response Annex . A review of these documents indicates an anticipated demand for the types of support from DOD listed below. Note, however, that DOD's ability to support these requests would be limited by its national defense and force protection responsibilities.

providing disease surveillance and laboratory diagnostics transporting response teams, vaccines, medical equipment, supplies, diagnostic devices, pharmaceuticals and blood products treating patients evacuating the ill and injured processing and tracking patients providing base and installation support to federal, state, local, and tribal agencies controlling movement into and out of areas, or across borders, with affected populations supporting law enforcement supporting quarantine enforcement restoring damaged public utilities providing mortuary services

Mechanisms for Providing DSCA

The two principal ways in which such support could be provided are by way of an "immediate response," or in response to a formal "request for assistance" (RFA). Additionally, in extreme circumstances the federal government may expedite or suspend the RFA process and initiate a "proactive federal response."

Immediate Response

Certain defense officials can provide DSCA in a limited manner using "immediate response" authority. Immediate response authority enables local military commanders and certain DOD civilians to act immediately "to save lives, prevent human suffering, or mitigate great property damage" when they receive a request from a civil authority and "[w]hen such conditions exist and time does not permit prior approval from higher headquarters." Assistance provided under this authority might include providing medical care, restoring critical public services, distributing food and other supplies, and disposing of the dead. However, commanders using this authority are obligated to seek approval or authorization through their chain of command as soon as possible. It is therefore likely that this authority would only be used if the onset of a flu pandemic were abrupt and unanticipated. Providing DSCA in this manner would typically be limited to the fairly short period of time, until a more systematic federal response could be undertaken within the context of the NRF and the Implementation Plan . Once that occurred, support would normally be provided in response to an RFA.

Responding to a Request for Assistance

One of the tenets of the NRF is "tiered response." Tiered response means that the response to any emergency should be "managed at the lowest possible jurisdictional level and supported by additional capabilities when needed." This means that response efforts typically begin at the local level and, if the need arises, support is requested from neighboring jurisdictions, the state, or the federal government. The federal government has a number of broad statutory authorities it can use to assist state, local, and tribal governments in responding to such requests. This assistance typically takes the form of funding, personnel, equipment, supplies, services, facilities, information and technical assistance.

In the event of a flu pandemic, the federal government would establish one or more operational response centers to coordinate the federal response. State, local, or tribal entities would submit their RFAs to the designated response center. The lead federal agency – either HHS for public health and medical response requests or DHS for all other requests -- would receive these requests and attempt to fill them by drawing on the full range of assets and capabilities available throughout all the federal agencies. Those RFAs which needed DoD assets would be forwarded to the Defense Coordinating Officer (DCO), who serves as the single point of contact for DOD resources for other government agencies in the center. The DCO would be responsible for "processing requirements for military support, forwarding mission assignments to the appropriate military organizations through DOD-designated channels, and assigning military liaisons, as appropriate, to activated [Emergency Support Functions]."

The DCO would submit any such requests to the Office of the Secretary of Defense, where they would be evaluated by the Assistant Secretary of Defense for Homeland Defense and Americas' Security Affairs (ASD/HD & ASA) according to the following criteria: legality, readiness, lethality, risk, cost, and appropriateness. This would be done on an expedited basis and then forwarded to the Secretary of Defense for approval. The Secretary of Defense has the principal authority for approving DSCA requests. His office retains approval authority for all requests for assistance from civilian agencies and retains control of all DOD assets provided. Once the Secretary of Defense approved the requests, they would be forwarded to the Joint Director of Military Support within the Joint Staff, who in turn would provide the appropriate orders to NORTHCOM. (See Figure 1 ).

U.S. Northern Command (NORTHCOM) has the operational responsibility for providing DSCA for most of the United States. It carries out the DSCA missions approved by the Secretary of Defense with forces assigned as required from all the armed services, typically through the creation of a joint task force. Although NORTHCOM has had an Army brigade assigned to it since October 1, 2008, it probably would not be used to conduct DSCA missions in support of a pandemic flu response. Rather, additional forces would be assigned to NORTHCOM to conduct approved DSCA missions. These additional forces could include units from multiple military services and could include activated members of the National Guard and Reserve. Note, however, that National Guard forces remain under the control of their respective governors unless ordered into federal service. Current DOD plans do not anticipate the mobilization of Reserve or National Guard personnel . This topic is discussed in more detail later in the report.

Proactive Federal Response

The NRF provides for a proactive federal response to a "catastrophic incident." If a flu pandemic were severe enough – that is, if it caused extraordinary levels of death or illness which had severe societal impacts -- it could qualify as a catastrophic incident. A proactive response would allow for the prepositioning of federal assets in anticipation of state, local, or tribal requests for assistance; it would also permit the federal government to take charge of coordinating the response if the affected state, local, or tribal governments were unable to do so. Key guidelines for a proactive federal response are quoted below:

•The primary mission is to save lives, protect property and critical infrastructure, contain the event, and protect the national security.

•Standard procedures outlined in the NRF regarding requests for assistance may be expedited or, under extreme circumstances, temporarily suspended in the immediate aftermath of an incident of catastrophic magnitude, pursuant to existing law.

•Pre-identified Federal response resources are mobilized and deployed, and, if required, begin emergency operations to commence life-safety [sic] activities.

•Notification and full coordination with States occur, but the coordination process should not delay or impede the rapid mobilization and deployment of critical Federal resources.

As indicated by the above, if a flu pandemic were severe enough to qualify as a catastrophic incident, the DoD response could be anticipatory in nature. This anticipatory response would likely conform to the general requirements contained in the NRF Catastrophic Incident Annex, which specifies that DoD would be expected to "provide capabilities in the following support categories: aviation, communication, defense coordinating officer/defense coordinating element, medical treatment, patient evacuation, decontamination, and logistics." If possible, the standard RFA process would be used with DHS or HHS submitting requests to DoD. However, this process could be expedited or even temporarily suspended in certain circumstances.

The Role of the Reserves and National Guard

The Difference Between the Reserves and the National Guard

Although the term "reserves" is often used as a generic term to refer to all members of the seven individual reserve components, there is an important distinction between the five reserve components which are purely federal entities (the Army Reserve, Navy Reserve, Marine Corps Reserve, Air Force Reserve, and Coast Guard Reserve) and the two reserve components which are both federal and state entities (the Army National Guard and the Air National Guard). In this context, the purely federal reserve components are sometimes referred to collectively as the Reserves, while the dual federal/state reserve components are referred to collectively as the National Guard.

The Reserves are of comparatively recent origin, having all been established in the 20 th century. They were organized under Congress' constitutional authority "to raise and support Armies" and "to provide and maintain a Navy." The National Guard has a much longer historical pedigree. It is descended from the colonial era militia which existed prior to the adoption of the Constitution. The Constitution does, however, contain provisions that recognize the existence of the militia and that give the federal government a certain amount of control over it.

Unlike the Reserves, which are exclusively federal organizations, the National Guard is usually both a state and a federal organization. The National Guard of the United States is made up of 54 separate National Guard organizations: one for each state, and one each for Puerto Rico, Guam, the U.S. Virgin Islands, and the District of Columbia. While the District of Columbia National Guard is an exclusively federal organization and operates under federal control at all times, the other 53 National Guards operate as state or territorial organizations most of the time. In this capacity, each of these 53 organizations is identified by its state or territorial name (e.g., the California National Guard or the Puerto Rico National Guard), and is controlled by its respective governor. Due to their dual federal and state role, National Guardsmen can be called to duty in several different ways, which will be discussed later in this report.

Activating the Reserves for Pandemic Flu Response

Current DOD plans do not anticipate mobilizing the Reserves to respond to a flu pandemic. However, these plans could be modified if circumstances warranted (for example, if the severity of the pandemic significantly exceeded DOD's planning assumptions).

Members of the federal reserves are always activated under Title 10 of the U.S. Code. Therefore, they always operate under the control of the President, receive federal pay and benefits, and are subject to the Posse Comitatus Act in the same way that active duty military personnel are. There are a number of statutory authorities that can be used to activate members of the reserves, but the one most likely to be used in a flu pandemic would be 10 USC 12302. This authority may be used "in time of national emergency declared by the President...or when otherwise authorized by law," and permits the President to involuntarily activate up to one million members of the Ready Reserve for up to 24 consecutive months.

Activating the National Guard for Pandemic Flu Response

National Guard personnel would almost certainly be involved in state efforts to respond to a flu pandemic as members of their state militia under the control of their governor. Current DOD plans do not anticipate calling the National Guard into federal service to respond to a flu pandemic. However, as with the case of the federal reserves, these plans could be modified if circumstances warranted it. DOD policy guidelines currently specify that, if Reserve Component medical personnel are required to respond to a flu pandemic, the military services are to "use [federal] Reserve forces first, leaving National Guard forces to be available to meet their state-based missions."

Members of the National Guard can be activated under state law, under Title 32 of the U.S. Code, and under Title 10 of the U.S. Code. Depending on which authority it used, the duty status of National Guard members is characterized as State Active Duty, Title 32 status, and Title 10 status. A brief discussion of each status is provided below.

State Active Duty

Normally, the National Guard operates under the control of state and territorial governors. As part of a state-level response to a flu pandemic, governors could order their National Guard personnel to perform full-time duty under state law. This is commonly referred to as "state active duty." In this state capacity, National Guard personnel operate under the control of their governor, are paid according to state law, can assist civil authorities in a wide variety of tasks, and are not subject to the restrictions of the Posse Comitatus Act (that is, they can perform law enforcement functions).

"Title 32" Status

Another way in which National Guard personnel can be activated and remain under the control of their governor is under the authority of 32 U.S.C. 502(f). This provision of federal law provides that "a member of the National Guard may...without his consent, but with the pay and allowances provided by law...be ordered to perform training or other duty in addition to [inactive duty for training or annual training]." The advantage of using this authority is that the National Guard personnel called will receive federal pay and benefits and are entitled to certain legal protections as though they were in federal service, but they remain under the control of their governor and are therefore not subject to the restrictions of the Posse Comitatus Act. This is the provision of law which was used to provide federal pay and benefits to the National Guard personnel who provided security at many of the nation's airports in the aftermath of the terrorist attacks of September 11, 2001. It has also been used to respond to major disasters such as Hurricane Katrina in 2005.

Federal Status

National Guard personnel can also be activated in a purely federal status. The authorities used to do this include all of the Title 10 authorities discussed in footnote 50 . When in this federal status, National Guard personnel serve under the control of the President, receive federal pay and benefits, and are subject to the Posse Comitatus Act in the same way that active duty military personnel are. National Guard personnel can also be called into federal service under 10 USC 331-335 and 12406. If called up under one of these authorities, National Guard personnel would operate under the control of the President, receive federal pay and benefits, and could perform law enforcement duties.

Considerations

When considering the federal activation of the Reserves and National Guard, one important consideration is the impact this would have on state, local, or tribal response efforts that are already ongoing. For example, the activation of Reserve and National Guard medical personnel may pull them out of local hospitals where they are already engaged in the response effort, thereby undermining state and local response efforts. Such activations are a particular concern with respect to National Guard personnel, who often constitute a large portion of a state's emergency response force. Another important factor to consider when federalizing National Guard forces is the impact of the Posse Comitatus Act. While they remain in a state status (either state active duty or Title 32 status), National Guard personnel are not covered by the Act and therefore are a valuable tool for state governors in maintaining public order. Federalization of the National Guard generally brings them under the restrictions of the Act and thereby limits their utility for law enforcement purposes.