Did Pentagon chief Austin’s secret hospitalisation break the law?

United States Secretary of Defence Lloyd Austin may have violated the law by

failing to report his recent hospitalisation to his boss,

but likely faces only a reprimand from US President Joe Biden, despite some calls for his resignation, two legal experts said on Jan 8.

What did Austin do?

Mr Austin, 70, was admitted on New Year’s Day to an intensive care unit at Walter Reed National Military Medical Centre for what the Pentagon has said were “complications following a recent elective medical procedure”, a fact the Defence Department kept under wraps for five days.

Mr Austin sits just below Mr Biden atop the chain of command of the US military, but his staff did not inform the White House of his condition for three days, and even his own top deputy was kept in the dark.

Public, private protocol

His handling of the situation appeared to be a stark breach of protocol for high-ranking Cabinet officials, who typically inform the public of planned medical absences ahead of time and identify who will be filling in for them.

Mr Austin’s duties require him to be available at a moment’s notice to respond to any national security crisis. He said on Jan 6 that he “could have done a better job” and took “full responsibility” for the secrecy over his hospitalisation.

White House officials have said Mr Biden still has “complete confidence” in Mr Austin, who remains in the hospital but has returned to his regular duties.

What rules might he have broken?

Legal experts said Mr Austin may have violated a US law on “reporting of vacancies” that requires executive agencies to report top-level absences and the names of anyone serving in an acting capacity to both houses of Congress. The law is largely procedural and does not spell out any penalties for lapses.

Legal experts said that Mr Austin appears to have clearly violated the rule but will likely face only a reprimand and a warning from Mr Biden. Any top deputies or staff responsible could face similar consequences.

Mr Austin may have also violated internal US Department of Defence protocols, and officials say they are conducting a full review of the incident to determine how future lapses could be prevented.

When did he talk to Biden?

Mr Austin spoke to Mr Biden, National Security Adviser Jake Sullivan and Secretary of State Antony Blinken on the morning of Jan 1 before he went to the hospital, the White House said. The “secure conference call” was about the Middle East. Mr Biden was in St Croix on vacation at the time.

There was then no contact with the White House or National Security Council until Jan 4, the White House said. Mr Biden and Mr Austin next spoke on Jan 6, the White House said.

White House officials said Mr Biden continued to be briefed on national security issues by other officials during Mr Austin's hospitalisation, and the President received his daily national security briefing prepared by the intelligence community. The daily briefing includes input from the Defence Department but is not produced by them.

What does Congress say?

Congressional leaders are calling for an inquiry.

Lawmakers from both parties said they were deeply concerned that the President did not know his top civilian commander was hospitalised for three days at a time when wars are being fought in Gaza and Ukraine.

US Senator Roger Wicker, the highest-ranking Republican on the Senate Armed Services Committee, said on Jan 6 that the situation was “unacceptable” and demanded a “full accounting of the facts immediately”.

Former president Donald Trump, who is Mr Biden’s likely Republican challenger in the 2024 election, said on the night of Jan 7

that Mr Austin should be fired

for his “improper professional conduct and dereliction of duty”.

Democratic Senator Jack Reed, the chair of the Senate Armed Services Committee, said: “This lack of disclosure must never happen again.”

Pentagon review

Asked if the general counsel’s office at the Defence Department believed Mr Austin violated laws, the chief Pentagon spokesman, Air Force Major-General Patrick Ryder, told reporters: “We are considering the impact of any statutory reporting requirements and will provide updates as appropriate.”

He later added that the reporting requirements being examined would not just involve Congress. “It’s to Congress, the White House or anyone else,” he said. REUTERS