Glibertarians.com 2019 Archive

Author: Ozymandias

  • Chapter 5 – The FDA, DHHS, & Vaccines: Anthrax Slides By

    The quality of a vaccine is closely linked to its manufacturing process, which must be rigorously controlled to ensure that batches of vaccines produced on different occasions are of reproducible and consistent quality. In general, quality is achieved by applying the current good manufacturing practice [cGMP] . . . Such principles also apply to the facilities and equipment in which products are manufactured.  Accordingly, vaccine production is very highly regulated to ensure that the products are of consistent quality and safe and effective for the purpose(s) for which regulatory approval was granted.[i]

    Before 1962, vaccines, drugs, and other such products did not undergo nearly the kind of scrutiny that they do today in order to become licensed.  It wasn’t until the thalidomide disaster of the 1960’s that federal regulation of drugs came to be what it is today. As of 2003, the Department of Health and Human Services (DHHS) is “United States government’s principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves.”[ii] This is a monumental undertaking and is why the DHHS is one of the largest government agencies with over 63,000 employees and an annual budge of $429 billion. It has a number of sub-agencies with their own areas of responsibility, including the Food and drug Administration. The history of these organizations bears some consideration because it is between the historical cracks in legislation and regulation that the current anthrax vaccine would slip.

    In 1906, the first Food and Drug Act was passed, authorizing the federal government to monitor the purity of foods and safety of medicines. The 1906 Act was fairly light, even inadequate by most standards. False statements made about a drug by its manufacturer (i.e., public advertising) were not considered as misbranding by the courts. Additionally, the Act did not grant authority to ban unsafe drugs. For a drug to be legal under the 1906 law, it only had to meet the standards for composition of the United States Pharmacopoeia or the National Formulary. The Bureau of Chemistry – the forerunner to the modern FDA – enforced this law.

    It wasn’t until 1938 that the Food and Drug Administration received broad statutory authority to regulate interstate shipment of unapproved new drugs for investigational use. This kind of federal regulation was a direct result of President Franklin Delano Roosevelt’s policies and the Great Depression. Prior to the Great Depression, the federal government exerted nothing even approaching the kind of regulatory authority that it does today.

    The Sulfanilamide Disaster of 1937 brought the first modification to the 1906 act. Soldiers originally used sulfanilamide as a treatment for wounds. In powder form it was sprinkled over a wound as an antiseptic, to prevent infection. [This is one of the substances the Nazi doctors used in experiments named in the indictment at the Nuremberg Trials. Thus, their defense that what they did differed little from previous U.S. experiments.] A manufacturer decided to expand the anti-infective use of the drug by mixing sulfanilamide with diethylene glycol – diethylene glycol currently enjoys a more popular following among American consumers as anti-freeze in car radiators. The manufacturer marketed the mixture of glycol and sulfanilamide as an elixir for sore throats. No clinical tests were performed prior to marketing. There were 107 reported deaths from this product.

    Subsequently, the Federal Food, Drug, and Cosmetic Act of 1938 was enacted, expanding the government’s control to include advertising and labeling of products.  More importantly, it authorized the Food and Drug Administration (for the first time) to establish a regulatory system for obtaining pre-marketing clearance of an investigational new drug. Manufacturers were now required to submit a new drug application (NDA) containing evidence that a drug was safe for its intended use. Despite this grant of authority, the FDA was fairly ‘light’ (by modern standards) in its regulation. These regulations, which remained in effect without change until 1962, left the protection of human subjects almost entirely to the discretion of sponsors and investigators. For example, it did not require a notice for conducting investigational trials to be submitted to the FDA; it did not require pre-clinical safety studies prior to administration of a drug into humans; and, notwithstanding the Nuremberg Trials, the 1938 Act did not require informed consent of test subjects.

    In 1962, thalidomide, a sleeping pill developed and widely used abroad for several years, was being studied for use in the United States. The FDA did not approve this drug for marketing in the U.S. because of the requirements in the Federal Food, Drug, and Cosmetic Act, and because of the refusal of an FDA medical officer, Dr. Frances Kelsey, to clear the drug on what she believed to be inadequate safety evidence provided by the manufacturer. Notwithstanding this, and even though the drug was restricted to investigational use in the U.S., the sponsoring pharmaceutical company widely distributed it to doctors for their use. [This practice continues to this day by some drug manufacturers.] Later, of course, thalidomide was learned to be a human teratogen which caused malformations in many European children. Children were being born without arms or with other severe deformities. A series of lawsuits demonstrated that, in general, prescribers of drugs had been relying on manufacturers for information pertaining to the drugs, and that this information in some instances had been based on inadequate testing, or even on deliberate falsification and deception. The Kefauver-Harris amendments of 1962 were finally enacted as a result of this incident.

    These amendments contained several important new provisions to the FD&C Act. First, it required that all clinical testing of investigational drugs be conducted under applications submitted to the FDA (Investigational New Drug Applications). Additionally, sponsors were required to submit reports of pre-clinical studies to justify their proposed clinical testing in humans, obtain informed consent from test subjects prior to their entry into a study, and report all findings resulting from the investigational studies to the FDA. Second, Good Manufacturing Practices (GMP) were established. Any drug not produced in accordance with CGMP would be considered adulterated. Prescription drug advertising was also placed under the supervision of the FDA.

    Finally, the 1962 amendments required that all new drugs, in addition to being safe, must be shown to be effective for their intended use, prior to marketing. The standard for scientific evidence acceptable for demonstrating substantial effectiveness was defined by Congress as:

    adequate and well controlled investigations, including clinical investigations, conducted by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could be fairly and responsible be concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling.[iii]

    The FDA had actually proposed new regulations before the 1962 amendments were enacted, and it issued final rules three months after the new law took effect. These regulations are the broad outlines of the investigational drug regulatory system that remains in effect today.

    The former Division of Biologics Standards (DBS), currently the Center for Biological Evaluation and Research (CBER), was involuntarily transferred to the FDA from the Public Health Service in 1973. Its transfer was triggered by the failed Polio vaccine release, on the grounds that old-world style management encumbered it. The DBS was viewed as incapable of protecting the public health because it was too closely involved with the industry it was supposed to regulate (so-called “unholy marriages” between industry and government regulation). This was the same problem that existed with a number of industries and agencies, including the Atomic Energy Commission.  The same agency was tasked with both promoting and regulating a given industry. The AEC was partly responsible for radiation exposure experiments on troops in the 1940’s.  [AEC regulators actually wore protective suits during experiments while soldiers were completely exposed to the radiation from atomic bomb detonations.]

    An important slip occurred between the time of the passage of the Kefauver-Harris Amendments and the time when the Division of Biologics Standards was transferred from the National Institute of Health’s/PHS’s DBS was put under the FDA.  The FDA was charged with enforcing the Act and passing regulations to do so – which it did. However, a certain class of drugs, biologics (which includes vaccines and other blood products), were under the auspices of the DBS, which was under the Public Health Service, a different agency. Unfortunately, because of the hodgepodge manner in which agencies had sprung up, the DBS, which saw itself as controlled by the Public Health Service Act and also sought to promote the industry it was regulating, did not necessarily require efficacy data for approval of its products, namely, vaccines. Thus, it was not until some ten years later when the DBS was transferred under the FDA (because of the failed polio vaccine release mentioned above) and became the Center for Biological Evaluation and Research (CBER) that vaccines were truly required to show efficacy data – notwithstanding a law requiring it some ten years earlier.

    When CBER finally came under the FDA, all of the previously licensed vaccines that had been given without the required efficacy data would be reviewed and placed into categories. Category I products were considered safe, effective, and not misbranded.  Category II products were unsafe, ineffective, or misbranded. Category III products were split into A and B. Category IIIA products had inconclusive data, but the product would remain on the market pending further study and IIIB drugs were data inconclusive, product to be removed from the market. This review would take an incredibly long time and the review of the anthrax vaccine, licensed in 1970 without any efficacy data, would not be done until 1985.

                                                                                                                                                                                                               

    With the creation of so many federal agencies came an increase in the administrative regulations over the industries the agencies were set to watch. The Supreme Court repeatedly deferred to these agencies’ decisions and upheld their regulations. Agencies such as the Equal Employment Opportunity Commission and the Food and Drug Administration (FDA) had increasing roles in their respective areas of concern. As part of the passage of regulations in its area of concern, the Agency first proposes a rule in the federal register for a period of time and invites comment on the proposed rule. The rule is then viewed in practice and left open for comment, then, if necessary, the rule is amended and a final proposed rule is ultimately published. While these regulations do not have the same force and effect as law, if they do not conflict with any preexisting laws and are not inconsistent with the agency’s charter, these rules in effect become law because they are binding upon persons, corporations, or agencies operating in the particular agency’s area of concern.

    The rule regarding testing on human subjects passed with little, if any, comment. Who could disagree with the principle that “no investigator may involve a human being as a subject in research . . . unless the investigator has obtained the legally effective informed consent of the subject[.]”[iv] In fact, almost every federal agency adopted the same or similar version of the regulation regarding human subjects and informed consent. This rule was passed by the Department of Health and Human Services (DHHS) in 1981. The full version of the FDA’s regulations are virtually identical to the full DHHS ones.  They read that

    no investigator may involve a human being as a subject in research covered by these regulations unless the investigator has obtained the legally effective informed consent of the subject or the subject’s legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject’s legal rights, or releases or appears to release the investigator, the sponsor, the institution, or its agents from liability for negligence.[v]

    Even the Department of Defense adopted regulations with much the same lack of fanfare in 32 C.F.R. 219.116-117. These regulations state, just as above, that “[e]xcept as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject’s legally authorized representative.” The 2003 version of the DoD regulations are identical to the FDA’s.  Everyone seemed to agree that when it comes to experimenting on human subjects, consent was a prerequisite. As an important corollary, DHHS also published some definitions of what research would be covered by the informed consent requirements. It is an extremely broad definition.

    Research means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes . . . Research subject to regulation, and similar terms are intended to encompass those research activities for which a federal department or agency has specific responsibility for regulating as a research activity, (for example, Investigational New Drug requirements administered by the Food and Drug Administration).[vi]

    This last “for example” is critical, as it repeats and reinforces the FDA’s requirements that using Investigational New Drugs for the purpose stated in the New Drug Application is research requiring informed consent. This deserves some explanation as it is crucial to understanding one of the reasons why the anthrax program was illegal.

    The FDA regulates the manufacturers of drugs through the licensing and regulatory process, but it does not control the end-user of the product – i.e. a doctor, or in this case, the Department of Defense. Vaccines are subject to the requirements of the FDA under the Food, Drug and Cosmetic Act (FDCA, Title 21, Chapter 9) as prescription drugs and the requirements of the Public Health Service Act (42 U.S.C. 262) as a biologic. The two acts are not exclusive, but complimentary. Typically, a manufacturer submits a proposed New Drug Application with the FDA setting forth what “clinical protocol” or experiment it is going to do in order to demonstrate the efficacy of its drug. At the same time, the manufacturer also must comply with FDA regulations for how its manufacturing process takes place. Normally an approved drug must have a dual part license, a PLA (product license amendment) for the drug, and an ELA (establishment license amendment) for the facility. This ensures that the product meets the four necessary prerequisites for licensing:  sterility, safety, potency, and efficacy.

    The ELA helps ensure that the drug/biologic is sterile in its manufacturing process and potent. The FDA regulates this process in the facility by enforcing CGMPs (Current Good Manufacturing Practices). These practices are industry practices surrounding such procedures as sterility of the filtering systems, handling of the material, and random testing of the finished product to ensure uniformity from batch to batch. Potency is a good measure for quality control and to ensure efficacy of the manufacturer’s claims and proposed advertising. If random samplings of different batches reveal widely differing potency levels, it calls into question the consistency of the manufacturing process (a quality issue) and whether the drug can support the claims of efficacy. FDA inspectors, supposedly experts in the field, go check the facility to ensure compliance.

    The PLA sets forth the clinical protocol for the product. This includes what studies and data the manufacturer will use to demonstrate effectiveness. In other words, a company cannot simply claim they made a product cleanly and safely, that covers the ELA – one half of the license – they have to show the product does what it is advertised to do. This PLA will set forth how the product will be used (or has already been used) and the data from those controlled studies. Initially, in most cases, animal studies and basic research will be used to gather data. The company will then submit a New Drug Application (NDA), for completely new drugs, or an Investigational New Drug (IND) application for drugs already licensed that the company is seeking to modify somehow.  The PLA, and ultimately license for a drug, is so specific, that any change requires a modification to the existing license. The PLA gives the company an “indication” for using the drug. The “indication” in the license will include the route of administration of the drug (taken by injection or by mouth, for example), the number of shots or pills to be taken (twice daily or once a month?), what form it will be in if necessary (pills, liquid, caplets), dosage (20, 30 or 40 mg, for example), and what exactly the drug is designed to prevent, cure, or ameliorate.

    In the typical course of business, the drug will have advanced from the “experimental” stage to the Investigational New Drug (IND) stage, whether it is a new drug or an existing licensed drug, where some animal studies or other data exists indicating the drug’s likely effect. At this point, in order to gain licensure and prove efficacy in human beings, there must be two well-controlled human studies to prove efficacy of the drug. This point cannot be overstated: before a manufacturer can prove efficacy of a drug for its licensed indication, it must have two human studies. This means that no company manufacturing a drug as a pretreatment for chemical warfare can ever get beyond the Investigational stage. As two Army doctors pointed out in an article in 1992,

    For products designed to protect against chemical and biological agents, a clear demonstration of efficacy would require exposure to humans to these lethal agents. Since this practice would be unethical and immoral, these products never advanced beyond the investigational stage.[vii]

    This requirement proved to be the insuperable obstacle for any DoD contractor trying to make a vaccine as a pretreatment for biological warfare agents – because it would be unethical to test drugs on human beings as pre-treatments for chemical warfare.  HOWEVER, if there were an already existing vaccine that could be used as a pretreatment for a chemical or biological agent and it was licensed for some other purpose, the DoD could use that without being subject to FDA regulation, which brings us full circle to the question of whom the FDA regulates.

    The FDA requirements above all apply to manufacturers, not the end-user. Thus, as an example, let us suppose that there is a drug we will call PB that is used to block a particular chemical from being produced by the brain in patients with a certain disease, we will name MG. Let us suppose this has been licensed for many years and shows no side-effects on these patients in the dosages they take for 35 years of licensed use. Now, let us suppose that the DoD gains knowledge about a certain nerve agent named SM that, as its mechanism of attack, causes the brain to massively produce the same chemical that our licensed drug, MG, blocks the production of. The agent is usually delivered in bombs in aerosol form. The DoD could, it would appear, buy large quantities of this drug and give it to troops in order to prevent the effects of the nerve agent SM.  This use of the drug is considered off-label and investigational. This is because the drug is normally used (and has been licensed) to fight a particular disease, not be a prophylaxis against a nerve agent, and so there is no licensed indication for the drug as a pretreatment as a nerve agent. There is certainly no proof of efficacy for this use. Thus, the manufacturer could certainly not advertise the product as a pretreatment for the hypothetical SM without incurring the regulatory wrath of the FDA, but what about the DoD? The DoD could use the drug in such a fashion, provided it obtained informed consent from the individuals it was giving the drug to. While the FDA would have no way to regulate an end-user relationship normally, the FDA is responsible for monitoring IND applications and clinical trials under an IND application. If the above drug were not licensed fully and the DoD intended to use the drug and track who it was given to and when and how many times and record that in servicemembers record books, that would be research as defined under FDA, DHHS, and even the DoD’s own regulations.  Research requires informed consent. Such administration of the product, vaccine or drug, would have to be performed under an IND clinical protocol.

    On the eve of the Gulf War, the DoD was up against the regulations requiring informed consent, with the concomitant intelligence and history showing that Saddam Hussein (a) possessed such agents and (b) had previously used chemical (and perhaps biological) weapons on minorities in his own country. The DoD therefore lobbied the FDA for a waiver from the requirements of Rule 50.23(d) of the FDA’s regulations.[viii] This would happen for a number of licensed, investigational, and even experimental products, with servicemembers having no say in the matter.

                                                                                                                                                                                                               

    Endnotes

    [i] GAO Report T-NSIAD-99-148 (April 29, 1999)

    [ii] Quote from the DHHS website, http://www.hhs.gov/about/profile.html.

    [iii] 21 U.S.C. §355(i) (2000)

    [iv] 45 C.F.R. 46.116 (2000)

    [v] 21 CFR 50.20 (2000)

    [vi] 45 CFR 46.12 (2000)

    [vii] Col. Garland E. McCarty and Lt. Col. Gregory P. Berezuk, Military Medicine, Vol. 157, p. 404 (August 1992)

    [viii] 21 CFR 50.23(d) (1990)

  • Chapter 4 – Judicial Remedies in Our Republic?

    The bar created by Chappell – a judicial exception to an implied remedy for the violation of constitutional rights – surely cannot insulate defendants from liability for deliberate and calculated exposure of otherwise healthy military personnel to medical experimentation without their consent, outside of any combat, combat training, or military exigency, and for no other reason than to gather information on the effect of lysergic acid diethylamide [LSD] on human beings.

    No judicially crafted rule should insulate from liability the involuntary and unknowing human experimentation alleged to have occurred in this case. Indeed, as Justice Brennan observes, the United States military played an instrumental role in the criminal prosecution of Nazi officials who experimented with human subjects during the Second World War, and the standards that the Nuremberg Military Tribunals developed to judge the behavior of the defendants stated that the ‘voluntary consent of the human subject is absolutely essential … to satisfy moral, ethical and legal concepts.’ If this principle is violated the very least that society can do is to see that the victims are compensated, as best they can be, by the perpetrators. I am prepared to say that our Constitution’s promise of due process of law guarantees this much.[i]

    United States v. Stanley, 483 U.S. 669, 709-10 (1987)(O’Connor, J., dissenting)(some citations omitted).

    There are both moral and legal arguments to be made for the proposition that the actions detailed in Chapters 1 and 2 should be allowed. To be explicit, I am speaking of the idea that the Government – the State – has (1) a right to the compelled obedience of its citizens, and (2) the right to the lives of its citizenry in defense of the State. Historically, this has been the default state of affairs for most of what we know of recorded human history. The anthropological and archaeological record strongly suggests that from Africa to Asia to Europe to South and North America, the general organization of human beings has almost always involved a leader, chosen usually by some combination of martial prowess and/or political savvy, with rule enforced upon the rest of the tribe/culture/society through several mechanisms, including cultural/social pressure, including religion, and force. Regardless of the variations, the underlying idea has always been that the people owe their allegiance to the ruler and the larger culture. They could be conscripted to fight in the King’s, Pharoah’s, Queen’s, Caesar’s, The Great Khan’s, Czar’s, Napoleon’s, Comrade Stalin’s Armies against any enemy of the homeland, and forced to march to their certain death by elephant, Russian winter, or German MG-42. The unthinkable, but unassailable, logic follows that if the State can order you to your likely death, or maybe just a group of you as a feint to cover for a larger assault somewhere else – if you can be sacrificed for the benefit of others, why can’t someone, the State, make the same calculus by doing some experiments on you? If you can be ordered into battle as a soldier where you could die, or even be subjected to the enemy’s chemical weapons, then why can’t the military hierarchy sacrifice some of you good chaps for the sake of others, eh? Isn’t this what military commanders do in battles all of the time?

    The political systems under which this is still the case – today – are too numerous to mention.

    Fortunately for United States citizens, that entire idea was explicitly rejected in the American Revolution; that is the great moment of “American Exceptionalism.” The Declaration of Independence’s most trenchant historical observation is coupled with its boldest claim: “that governments are instituted among men, [and] deriving their just powers from the consent of the governed.” Governments are not extensions of the Divine Will; political power does not derive through familial claim, inheritance of religious authority, or other ‘farcical aquatic ceremonies.’ At the time, it was the most radically egalitarian idea that had ever been proposed, on a par with Martin Luther’s heresy to the Catholic Church’s authority. It stripped all of the mysticism and power away from government agents of every kind; all of the King’s Men declaimed as equal to even the lowest yeoman farmer, dock worker, deckhand, or wheelwright.

    That is also what seems to have gone missing in our culture, and why even in the United States there are still people in respectable circles who feel that soldiers give up their rights when they join the military and therefore, have no grounds to complain of their treatment. This is not confined to those outside of the military, either; it is a common misperception, even among active servicemembers. If servicemembers enjoy less than the full rights that other U.S. citizens enjoy: diminished First Amendment protections, for example, because they can’t protest their Commander’s decisions, or lower “expectations of privacy” in the Fourth Amendment context (see mandatory drug testing), then the logic somewhat follows that perhaps servicemembers can be experimented upon without having any grounds for relief.

    Unfortunately for servicemembers, these arguments get additional fuel because they have more than a slight legal basis. There is a specific exemption in the Fifth Amendment of the U.S. Constitution for “those serving in the land or Naval forces.” There are legal scholars who argue that servicemembers do not enjoy the same Constitutional rights as ordinary citizens because of that specific exception to the Fifth Amendment’s grand jury requirement for an indictment. There is still some debate over whether the founders intended all other protections to apply to servicemembers or if that exemption was a recognition that servicemembers were less than full citizens. The Supreme Court has never issued a definitive ruling on whether the Bill of Rights applies to servicemembers wholesale, either. There are also two Supreme Court decisions that hold that servicemembers have no right to a trial by jury. These decisions are particularly odd because neither of the cases involved servicemembers at all. In one case, at the close of the Civil War, a man living in Indiana was tried and convicted by a military commission and sentenced to be hanged. A local grand jury found no evidence against him and was dismissed without an indictment being handed up. While in jail he petitioned for a writ of habeas corpus that eventually went to the Supreme Court. The opinion, in eloquent language, extols the virtue and necessity of the trial by jury and then in one backhanded sentence mentions that every U.S. citizen, except servicemembers, enjoys that right.[ii]

    The second decision, handed down in World War II, involved German saboteurs caught sneaking into the U.S. to commit espionage. Once again, while having nothing to do with the case, the Court manages to mention that only servicemembers have no right to a trial by jury.[iii] Ultimately, Congress fixed this with the comprehensive Uniform Code of Military Justice, which gives servicemembers the right to a trial by jury, albeit a somewhat different method of jury selection than in civilian courts. Nonetheless, these kinds of decisions and the impression they convey is that servicemembers are on a different constitutional footing than other U.S. citizens.

    The Court of Appeals for the Armed Forces, the highest military appeals court (subordinate only to the Supreme Court of the United States in military cases), has, in many cases, spoken in broad terms about the protections afforded to military members and has rejected the notion that particular Constitutional rights do not apply per se to military members. The court has instead held that a particular right, such as the Fourth Amendment’s protections, for example, apply ‘differently’ in the unique circumstances of the Armed Forces.[iv] In a 1995 case, the Court of Appeals for the Armed Forces noted that

    The administration of military justice is rooted in inherent fair play and justice that prevail under the Anglo-American system of law.  ‘In defining the rights of military personnel, Congress was not limited to the minimum requirements established by the Constitution, and in many instances, it has provided safeguards unparalleled in the civilian sector.’ The broad constitutional rights that servicemembers enjoy spring from the fundamental principle that they do not lay aside the citizen when they assume the soldier.[v]

    These kinds of statements would tend to indicate that servicemembers may enjoy the same rights as any citizen, perhaps even more, depending upon what Congress has granted… or those statements could simply could be propaganda, legal pablum for judge advocates and the small legal community around the military that even cares about such legal arcana.

    The fine legal question for servicemembers, relevant to the issue about the anthrax vaccine program, is whether or not there is a Constitutional right, or other right given by Congress, to be free from forced vaccination with an unlicensed or experimental drug. The more general question of whether or not a service member can be punished if he refuses a mandatory routine vaccination was answered in United States v. Chadwell in 1965. In that case a Marine refused to take the smallpox, typhoid, paratyphoid, and influenza vaccine, on religious grounds. The Court found against him and found the order lawful. For some people, this means that the anthrax vaccine program is perfectly valid, end of story, close the book, and let’s all go home.

    Let’s not be done with it so fast, however. First, there are a number of important differences between that order and the current anthrax program. Part of it has to do with the routine nature of that vaccine, meaning that it was already being administered to the entire U.S. population, while the anthrax vaccine had now been so administered. Second, the Marine in that case refused to take the routine shot for religious reasons. Almost none of the servicemembers refusing the anthrax vaccine were relying upon religious reasons. A third important difference was that the smallpox and other vaccines were not being administered as pretreatments against chemical warfare; they were being given for the same reasons as they were being given to the nation at large.[1] Finally, there was – and still is – a massive lesson that was learned as a result of the First Gulf War in 1990-1991 that changed the legal landscape around d this exact issue.

    Prior to the Gulf War, there had never been an inoculation offered as a treatment against chemical warfare.[2] The current anthrax vaccine is a part of the new era of chemical-biological defense. In prior instances, noted in Chapter 1, when military members were harmed by the actions of other soldiers, either military doctors or their commanders, if the military would take no action to redress the wrong, private legal action appeared the only way to go. Servicemembers who learned that they had been given experimental drugs sued the government for monetary damages for their health complications as a result of the experiments performed upon them. These types of suits are called tort suits. Tort is the French word for wrong and under Anglo-American law, it is one means of legal redress for harms suffered by a citizen. Juries may award actual damages for the harm suffered and punitive damages as a punishment to the wrongdoer and as a deterrent to others who would do the same.

    A U.S. citizen can also file for damages for a Constitutional violation, pursuant to a Supreme Court case named Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1967).  In that case, Bivens alleged that FBI agents came into his apartment without a warrant or probable cause, searched his house from one end to the other, arrested him and ultimately charged him with narcotics violations. He sued in district court for damages for the violation of his constitutional rights. The courts below dismissed his suit on the grounds that he had no cause of action, but the U.S. Supreme Court ultimately held that he could sue government agents for the violation of his civil rights. Today, there is a specific statute that allows citizens to sue government agents who commit violations of their constitutional rights. See 42 U.S.C. §1983.

    There would at least appear to be a number of legal remedies available to citizens, including servicemembers, if they can prove some legal harm, either in a regular civil suit with injunctive relief or damages, or if there is a Constitutional violation under Bivens or §1983. This would be true, but for a legal concept known as sovereign immunity and the Feres doctrine.

    The Feres doctrine is named for a famous Supreme Court case[vi]  and relies upon a concept in British law known as sovereign immunity. The syllabus at the beginning of Feres explains the concept this way:

    While the political theory that the King could do no wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown. As the Federal Government expanded its activities, its agents caused a multiplying number of remediless wrongs – wrongs which would have been actionable if inflicted by an individual or a corporation but remediless solely because their perpetrator was an officer or employee of the Government. Relief was often sought and sometimes granted through private bills in Congress, the number of which steadily increased as Government activity increased.[vii]

    In short, the general principle was that no one could sue the Crown because the government creates or grants the rights of its citizens. Despite our Revolution to be free of British rule, in the earliest years of our republic, our courts took their cue from decisions in the British courts. A simple way of explaining this is that if an ordinary citizen ran over a child due to his own negligence, he would be liable in tort law, and perhaps criminally. Contrariwise, if a government agent driving a government truck did the same thing, there would be no relief for the parents if they sued in court. The only way to get relief in the early years was for a citizen to get his or her representative to put a private bill before either the state or federal legislature and for that body to consent to be sued. Eventually, the United States Congress passed the Federal Tort Claims Act as a comprehensive response to some of the arbitrary and unfair results produced when government agents caused serious harm to citizens. The Federal Tort Claims Act sought to relieve some of these inequities. It spells out who can sue the federal government and under what circumstances. In some cases, it even delineates what the maximum amount is that can be received for certain harms.

    The Feres decision actually involved three distinct cases, but the Supreme Court combined them for one decision, named after the lead case. In one of the other cases, a soldier in the army had abdominal surgery. Eight months later, an additional surgery removed a thirty by eighteen-inch towel labeled “Medical Department U.S. Army” from his stomach. His suit against the Army doctor for negligence was denied by the Supreme Court, whereas it would have been what lawyers affectionately call a “slam dunk” if it had been in the civilian context of medical malpractice. The Feres case held that military members were not within the class of persons covered by the Federal Tort Claims Act.  This means, in short, that military members cannot sue the government for harms suffered while on active duty by the tortious conduct of other servicemembers, no matter how egregious the wrongdoing.[viii]

    There have been many subsequent cases, law review articles, and much philosophical debate, questioning both the logic and the viability of the Feres doctrine.  In fact, there have been a number of bills introduced in Congress to overturn the Feres doctrine.[ix] The case quoted at the opening to Chapter 2, United States v. Stanley, is worth reconsidering as it addresses both the Feres doctrine and the ability of servicemembers to sue for civil rights violations (a Bivens claim in the military context, first announced by in a case called Chappel v. Wallace).

    The Feres case, like most cases, is subject to either a broad or a narrow interpretation and can be differentiated on a factual basis or on the basis of its legal holding, that is, the legal principle which applies to the given set of facts. The Feres court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”[x] The legal justification for this was that servicemembers were not within the class of persons allowed to sue under the Federal Tort Claims Act. In U.S. v. Stanley, though, Master Sergeant Stanley was experimented upon, given LSD without his knowledge or consent, and these experiments were subsequently covered up by those in the Army who had administered the drug to him. Being slipped a mickey, as the old saying goes, doesn’t seem to quite fall within ‘arise out of’ or ‘in the course of’ activities of the military. Notwithstanding the 1977 hearings, during which members of the Senate noted that “the Justice Department and the Courts have their proper role to play”, a bare (5-4) majority of the Supreme Court found that MSgt Stanley had no grounds for relief, either under the Federal Tort Claims Act or under a Bivens claim for violations of his Constitutional (civil) rights.  The Court held that

    the reasoning . . . that the special factors counseling hesitation – the unique disciplinary structure of the Military Establishment and Congress’ activity in the field – extend beyond the situation in which an officer-subordinate relationship exists, and require abstention in the inferring of Bivens actions as extensive as the exception to the FTCA established by Feres and United States v. Johnson.  We hold that no Bivens remedy is available for injuries that ‘arise out of or are in the course of activity incident to service.’[xi]

    And yet, there it is, stated as if it were a fact, that being unknowingly experimented upon is now an activity ‘aris[ing] out of or… in the course of’ one’s service; the Feres doctrine barred MSgt Stanley’s tort action and his claim for the violation of his civil rights.

    The fact that the Court found against MSgt Stanley on the tort claim is perhaps not surprising given previous cases involving the Feres doctrine. What is especially shocking is that Chappel v. Wallace involved fairly clear racial discrimination and the Supreme Court had no trouble finding that racial discrimination was so terrible that the Court would intervene and allow intervention and relief from the courts, but being experimented upon without one’s consent, like a lab animal? No problem at all!

    The fact that the Supreme Court found that MSgt Stanley had no (military) Bivens’ claim is tragic, because it means that servicemembers’ most fundamental rights may be violated wantonly and they have no redress in the civil courts of this country.[3] This holding does have one further point to it. The Court, in finding that there were special factors counseling hesitation, apparently believed that the right of informed consent is of a Constitutional stature. Logically speaking, this is a necessary prerequisite for a Bivens’ claim: that there had to have been the violation of a Constitutional right. If not, there would have been no Bivens’ claim at all and MSgt Stanley’s claim would have been summarily dismissed, which is not what the Court did. Instead, the Court found that the Bivens’ claim could not go forward because of the ‘special factors’ that give the Court pause – namely military discipline – but not that there was no Bivens’ claim stated.

    Justice Sandra Day O’Connor, in her dissent in Stanley, took a different approach and found, quite simply, that “conduct of the type alleged in this case is so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part of the military mission.”[xii] Unfortunately, what Justice O’Connor and the American doctors at Nuremberg recognized as “conduct beyond the bounds of human decency” now had a new get-out-of-jail fee card in the majority’s lens: as long as it can be tied to the military mission. Less than three years later, on the eve of the Gulf War, it was to be repeated on a larger scale, this time not only with the aid of doctors, but with lawyers, replete with waivers, lobbying, and in the Nineties, public affairs officers! With decisions such as Feres and Stanley in hand, servicemembers would again be prevented from turning to the courts for relief and the law of unintended consequences would again rear its ugly head.

    Endnotes

    [1] In an interesting aside, the Supreme Court has found that the state can compel ordinary citizens to take a vaccine in a case called Jacobsen v. Massachusetts, 197 U.S. 11 (1905).

    [2] I treat this more fully in Chapter 6 on 10 U.S.C. §1107.

    [3] The Supreme Court left open the very slight possibility of injunctive relief or declarative judgments for servicemembers.  An important point in current military-legal affairs

    [i] United States v. Stanley, 483 U.S. 669, 709-10 (1987)(O’Connor, J., dissenting)(some citations omitted).

    [ii] See In re Milligan

    [iii] Ex Parte Quirin,

    [iv] Both the Supreme Court and the Court of Appeals for the Armed Forces have mentioned this “different” application of Constitutional rights.  See, e.g., Greer v. Spock, 424 U.S. 828 (1976); U.S. v. McCarthy, 38 M.J. 398 (C.M.A. 1993).

    [v]  U.S. v. Manuel, 43 M.J. 282, 286 (C.A.A.F. 1995).

    [vi] Feres v. United States, 340 U.S. 135, 139-40 (1950).

    [vii] Id.

    [viii] Id.  The soldier’s name was Jefferson.

    [ix] Deborah Funk, Bill Would Let Service Members Sue Over Medical Malpractice, Marine Corps Times, Aug. 27, 2001, p. 20.

    [x] Feres, at 136.

    [xi] Stanley, at 688-89 (internal citations omitted).

    [xii] Stanley, at 709.

  • Chapter 3 – The General Did What?

    “Hey D, you got a minute?”  I looked up from behind my computer.  I must have betrayed a look of impatience, because Justin looked back at me and said “What?”

    “I’m sorry, man. Sure, what’s on your mind?” I pushed back from my desk and Justin dropped all of his six-foot, two-hundred five pounds into a chair. Justin Constantine and I had gone to Naval Justice School together back in Newport, Rhode Island. All of the sea-services, the Navy, Marine Corps, and the Coast Guard, send their lawyers to NJS for ten weeks of training in military Administrative law, Criminal law, and Civil law, with a heavy emphasis throughout on practical application and trial advocacy. I hadn’t known Justin that well as he was a single, brand new First Lieutenant, and I was a relatively senior Captain, married with four kids, a year or two away from being on the selection/promotion board for Major. Despite that, when we found out that we both had orders for Okinawa (as did another classmate of ours) out of Justice School, I made an effort to take them both under my wing. As it turned out, Justin and I both got orders for the Defense shop and after long days as brand new criminal defense attorneys together, we also found out we shared a common love of rugby – and drinking beer – which appear together often enough to seem like co-dependent gene alleles.

    “Well, you know I got detailed to those three anthrax refusals from up North, right?” I nodded in reply. Up north referred to Camp Hansen, about an hour north from where we were at Camp Foster. While Camp Foster contained a lot of headquarters and support units, Hansen tended to have combat units like infantry battalions, an artillery regiment, and other front-line trigger-pullers. My assigned office was technically up there in the smaller Legal Services Support Team building, but I kept getting assigned cases in the south because of the fact that the Third Marine Air Wing was there and my boss always seemed to think me being a former pilot would somehow help the Marines who got into trouble in the Wing. It didn’t seem that way to me.

    I knew all about the anthrax cases up north; in fact, I had privately lobbied our boss, Major John Woodworth to give them to Justin because to that point the Boss was only giving him Administrative separation boards, no courts.

    “J.R., I know Justin is new, but he’s solid, and I have the other anthrax cases. These are a great way for him to get his feet wet and we can work on them side-by-side.” I was sitting in the one other chair in his small office in the Defense wing of the Legal Services building. I presumed to use his first name in private because we had known each other on a first name basis when we had both been Captains; I had been interning as a prosecutor at Camp Lejeune at the time, a couple of years earlier.

    The vagaries of our different career tracks made him senior to me, although we had been commissioned around the same year. In order to recruit lawyers, the Marine Corps, and all of the armed services, have to offer incentives because there the pay of a typical Marine officer is in now way comparable to what even a new attorney could get on the open market. One of the ways the military made up that deficit is through a fiction known as “constructive service.” A law student who signs up to be a judge advocate actually gets a reversion back to the date they signed up once they’ve completed training; which means that upon completion of Basic School and Justice School, a guy or gal with only months in service gets promoted to First Lieutenant and then is in zone for Captain, something that usually takes four to five years for the typically accessed officer. This occasionally creates friction within the Marine Corps’ rigid hierarchy because a Marine lawyer walking around with Captain’s bars may have 9 to 18 months of actual, real-life experience and time in the Corps, compared to a ‘regular’ line officer Captain who has been through two promotion boards, several deployments, and could have as much as eight or nine or ten years of service. After a few years it all irons itself out, but it’s a difficult row to hoe for the new attorneys, too. They’re frequently treated as ‘less than’ officers by those who know the system. JR had come in the same way, but he now had something like 8 years of actual time in, same as me, but his JA “reversion back” made him now a Major.

    “Well,” J.R. had begun in his usual southern twang, “he’s gotta mind his clients, and you gotta mind yours, but these should all wind up as Summary Court, Board waivers anyway. Help him out and let me know how it goes.”

    “Wilco, sir. Thank you.” I stood up to attention in front of his desk briefly, spun smartly on my heel and toe as if we were doing an about face on the parade deck, and marched out of his office in an exaggerated high step, to his snickering.

    Now with Justin in front of my desk, I squinted to think of the case names.

    “Stone-something, right? Not Stonehenge, but…?” I tried to remember from our last defense meeting.

    “Stonewall,” Justin supplied, either missing or ignoring the joke. I knew something was on his mind.  “I just got a call from one of my clients and checked out his story with some other sources. You’ll never believe what happened.”

    “Your guy confessed to the Kennedy shooting?” I didn’t even smile. He looked frustrated in return. “Okay, okay. I’m sorry. What happened?”

    “All three of my guys got called into a meeting with the Commanding General for Third MarDiv.” I raised my eyebrows and sat forward. It wasn’t very often that our clients got called into the Division Commander’s office for a chat. “So, of course, the Sergeant Major’s in there, the Division SJA—”

    “Colonel Favors was in there?” I asked. I was curious why the Staff Judge Advocate, a senior lawyer, for the entire Third Marine Division, would need to be in there to talk to three anthrax refusers. Justin nodded and went on. “—the regimental or battalion surgeon, and maybe one other CO, either Battalion or Company CO.” He finished and let that sink in.

    “Okay, you got me, I give up, why the fuck was the CG, Third MarDiv talking to one of your anthrax refusers?”

    “Get this, they all were sitting out in the hall or waiting area and they get called in and have a talking to from the CG about why this vaccine is completely safe, and why won’t they take this? and all this dis-information out there on the internet is just hype and conspiracy theorists and, now for the money ball, if they’ll just take this shot, all will be forgiven. No court-martial; no NJP; nothing. The whole unfortunate incident will be put behind them.” Justin had a deep, gravelly voice and everything he said tended to come out flat and monotone. A long time of hanging around him had taught me the subtle nuances of that monotone. I saw where he was heading.

    “And no one ever called you, their lawyer?” He shook his head slowly from side-to-side. I whistled slowly and rocked back in my chair. “They’ve got charges preferred already, right?”

    Justin nodded.

    “Yep.”

    There were several troubling things about that scenario from a defense counsel’s perspective. First, Commanders of units are the persons who actually create the courts in the military. They have incredible discretion to either prefer (bring) charges against a member of their unit or not, based on how they see the particular offense, after an appropriate investigation has been done. Convening Authorities also grant search warrants, select the jury pool, can grant clemency after a court-martial and lessen the sentence a judge or jury awards, although they cannot increase the punishment. As a result, charges and dispositions can vary widely from unit to unit, depending upon how serious the particular commander views the offense. Prosecutors (known as ‘trial counsel in the military) and staff judge advocates provide advice to commanders and tend to buffer some of the differences out, but there can still be wide divergence on particular charges.

    That all said, Commanders generally stay out of the process once charges have preferred in order to avoid the appearance of impropriety and subject themselves to an unlawful command influence motion or make themselves into witnesses at a motions session. There are also, for all lawyers, some fairly strict rules of professional conduct for dealing with persons who are already represented. The general practice is generally do not talk to a criminal defendant who is already represented without consulting his attorney first. It just invites trouble.

    I was a bit shocked to hear that the SJA for the Division was present while the General talked to a criminal defendant about the charges he was currently pending, without even notifying his attorney. Furthermore, the charges in the anthrax refusal cases were not even convened by a General court-martial – that is, a court created by a General officer – but instead they were brought at a Special court-martial, a lower forum convened by the Battalion commander, where the accused could receive no more than 6 months confinement, forfeiture of 2/3 pay per month for 6 months, reduction to the lowest enlisted paygrade, and a bad conduct discharge. A General Court-Martial could award any punishment authorized for the particular offense, up to and including death. Refusing a direct order or a general order would have carried ‘a nickel’ for our guys – 5 years – but the statutory cap for all special courts-martial limited their exposure.

    “And get this,” Justin went on, “I heard from my sources that the CG was basically asking them ‘why don’t they trust him’ and shit like that. One of my guys is a Sergeant and finally caved in, crying or very upset, after this long heart-to-heart, and finally agreed to take the shot, so the surgeon took him right then, on-the-spot, to medical.” Now Justin’s voice had a real edge to it. “Do you believe that?!”

    “Curiouser and curiouser,” I answered. Justin looked at me and then caught on.

    “Alice in Wonderland?” he mouthed. I nodded.

    My mind was trying to process what it meant, but more importantly, I was trying to find an angle that would help Justin’s clients. Or mine. I was stumped. I genuinely enjoyed these sessions we had in defense, frequently bouncing ideas off of one another to help focus our thinking, as long as we didn’t have conflicting cases. Justin’s thought process, I found, frequently mirrored my own.

    “Let’s ask Hites,” I said finally. Although I had over eight years on active duty, I was as new as Justin as a lawyer, and I couldn’t think of a rule or regulation that had technically been violated, so it was time to ask someone with more experience.

    Major John Hitesman graduated from the Norwich Military Academy a year before I graduated from Boston University. Like me, Hitesman had a “life” before becoming a lawyer. He had been a “grunt,” an infantry officer, stationed in Hawaii before getting picked up for the Funded Law Program, as I had. Okinawa was his first tour as a lawyer, but he had been a defense attorney there for two years. He had a phlegmatic personality, utterly unflappable in every experience I had with him. He was also one smart cookie and he and I had become friends of a sort, especially after we talked and I found out he played ice hockey at Norwich; he also had discovered a local pickup league in Naha and got me on the team. Given that we were peers, more or less, even though he had pinned on Major already and was now a field grade officer, we would alternate driving to play ice hockey together every Thursday night. I enjoyed the conversation on the rides with him almost as much as playing ice hockey. At six-foot-two, two-hundred and fifteen or so pounds, Hites also looked like a linebacker, but was an agile skater and good stick-handler. At five-six (on a tall day), I was shorter than most of the Okinawans we played against and I always appreciated playing on a line with some ‘beef.’

    When I brought John back into the office, he looked at Justin.

    “What’s going on?  Barney told me your clients got pistol whipped this weekend.” John was one of the few people who addressed me by my call sign from when I was a pilot. When I had first moved into the office next to his, I put up my framed print of an AH-1W attack helicopter my squadronmates had signed for me as a going away present. On the plate it had my name, call-sign, and a quote: “Shakespeare was Right.” Either the prosecutors or the clerks later put a picture on my office door at Camp Hansen of Fred Flintstone and Barney Rubble, with “Hitesman” and an arrow pointing to Fred and “Saran” with an arrow pointing to Barney. I thought it was funny and left it up.

    “Sir, I don’t know if Captain Saran told you, but something weird happened this weekend with my clients and I’m not sure what to do about it.” Justin related the story quickly and Hites listened with his hands laced in front of his face, holding the styrofoam cup that he occasionally used to spit some tobacco juice into from the wad occupying the left side of his mouth.

    “Well, I’ll play devil’s advocate, here. Why can’t a CO call in one of his Marines and talk to him? What’s wrong with that?” Justin seemed a little put off by the question. I was, too.

    “I’m not sure,” he began, then held up his hands, “…that’s why I asked.”

    “I can think of a few,” I piped up. “He’s already represented, there are charges pending, the CG is the convening authority’s direct superior, and it all-around stinks.” Hites gave me a quick glance.

    “I might agree, but what kind of relief are you going to get? I mean, how do you frame this in a motion and what do you think one of our judges is going to say? What would you ask for?” Hitesman’s pragmatism stung me into silence. He was right. There was a long pause. He spit again, then went on.

    “I suppose you could write a letter to the SJA’s state bar because I think there may be an ethical problem that she should know about with her being in there and allowing the CA to question your clients. But then again, the JAG Instruction is only for attorneys, not Commanders, and same for the rules of professional conduct. Why couldn’t a Commander have his attorney in there as a witness? Did she ask any questions of your clients?” Hites now directed a question at Justin.

    “No, sir, I don’t think so. I think she was just in there.” Justin looked at the rug. I was still mulling over John’s point. Something about it didn’t smell right, particularly given the fact that Sergeant Terveen, one of Justin’s clients, had changed his mind about the shot under what seemed like pretty coercive conditions. The Sergeant had less than a year before he was getting out and likely decided that the hassle, and risk of losing his veteran’s benefits, probably wasn’t worth it. The other two, a Lance Corporal and a Private First Class, had stuck to their guns. That was probably more impressive than anything else about the story.

    “The only other issue is whether or not they were warned of their rights.” Hites looked at Justin who shrugged his shoulders. “If they weren’t warned, none of their statements are coming in at court, but the prosecution probably won’t use them anyway and doesn’t really need them. I’m sure they can prove your guys were given the order and didn’t take the shot, and they don’t need any subsequent statements your guys might have made in this meeting. Arguably, they knowingly violated his rights if they didn’t read him his rights and that’s an offense under the UCMJ, but that’s a stretch.” Hites waited a minute and then took a step toward the door.

    “It’s just so fucked up, though,” I said. “I mean, how coercive an environment is that? The CG himself is there telling you that everyone else is full of shit, along with the Sergeant Major, the CO, the Doc. And then the guy caves and he’s immediately given the shot while he’s still in frigging tears! That just can’t be right.” I wasn’t sure where I was going, but it all felt wrong to me.

    “It sucks, gents, but welcome to criminal defense in the USMC on the island of Okinawa.” Hitesman slapped me on the shoulder as he went by. “See ya’ Thursday, Barn. You driving this time?” I nodded a couple of times in response and murmured “mmhmm.”

    Justin looked at me after John was gone. He let out a long breath.

    “God, I just love the Marine Corps!” he said in a drill instructor voice. I hated that I didn’t have any answers.

    “Well, how’s Petty Officer Ponder’s case going?” Justin finally asked. “Did his CO ask him to come in and have a chat?” I chuckled slightly at that. But an idea had come to me.

    “Hey, you know what? I’ve got a bunch of anthrax info from Sonnie Bates’s attorney that I’m supposed to look through. Why don’t you have one of your guys submit an Individual Military Counsel request for me? Then, we can put our heads together on one case and then use what we do on that one for our other two separate cases?” Justin nodded.

    “Sure. Would likely save us time individually and let us pool our efforts. Is any of the information helpful?”

    “Yeah, I mean, it looks… thorough, but I’m not going to get my hopes up yet. I have to research what an ‘investigational drug’ is and really dig in on the statute, but it worked for Sonnie Bates, so… I don’t know, maybe it’ll work for our guys.”

    “Sure it will,” Justin deadpanned. This time I couldn’t tell if he was being sarcastic or earnest.

     

    beginning | previous | next

  • Chapter 2 – The Nuremberg Code

    Members of the military are not shorn of their constitutional rights while they remain in the military service. Blackstone said: ‘. . . he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.’[i]

    After the Germans were defeated in World War II, it was not long before both an International War Crimes Tribunal was created, and a separate Military Tribunal, to try members of the German High Command and others for their “War Crimes, Crimes Against Peace and Against Humanity.”[ii] These military tribunals were held under the auspices of the four individual Zone Commanders, into which Germany had been divided at the end of the war. The Chief Prosecutor for the military tribunals in the American Zone was General Telford Taylor, U.S. Army. There were twelve separate trials held at Nuremberg by the American Military Governor, promulgated by Military Government Ordinance Number Seven, dated 25 October 1946. This ordinance was passed pursuant to the authority granted by Control Council Law Number 10, which set forth exactly who and what could be prosecuted and how the process was to occur (including that someone sentenced to death would be executed no later than 30 days after the “decision has become final”).[iii] It was in the American occupation zone that the second “series” of trials occurred in 1947 against the doctors who performed medical experiments on Jews, Poles, and other persons who were being held prisoner. These trials came to be known as the “Doctors Trials” or the “Medical Trials”. German scientists, some of them renowned in their fields, were tried as war criminals because of the experiments they had performed on behalf of the German High Command on unwilling victims.

    Some of the experiments named in the indictment against the German doctors were startlingly similar to those detailed previously in Chapter 1. For example, Count II of the indictment, entitled War Crimes, [specification] Number 6 alleges that

    Between September 1939 and April 1945 all of the defendants herein unlawfully, willfully, and knowingly committed war crimes, as defined by Article II of Control Council Law No. 10, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving medical experiments without the subjects’ consent, upon civilians and members of the armed forces of nations then at war with the German Reich and who were in the custody of the German Reich in exercise of belligerent control.[iv]

    The indictment goes on to list a number of different experiments, the most similar to American experiments of which were the lost (mustard) gas experiments. These were “[c]onducted at Sachsenhausen, Natzweiler, and other concentration camps for the benefit of the German Armed Forces to investigate the most effective treatment of wounds caused by Lost gas. Lost is a poison gas which is commonly known as mustard gas.”[v] One of the most horrifying aspects of the experiments was the scientific precision, and simultaneously the complete disregard for the subjects’ humanity, with which they were carried out – as if they were being conducted on mice. Many of the experiments had obvious utility for all Armed Forces. The U.S. prosecutor acknowledged as much in his opening statement.

    A sort of rough pattern is apparent on the face of the indictment. Experiments concerning high altitude, the effect of cold, and the potability of processed sea water have an obvious relation to aeronautical and naval combat and rescue problems. The mustard gas and phosphorous burn experiments, as well as those relating to the healing value of sulfanilamide for wounds, can be related to air-raid and battlefield medical problems. It is well known that malaria, epidemic jaundice, and typhus were among the principal diseases which had to be combated by the German Armed Forces and by German authorities in occupied territories.

    To some degree, the therapeutic pattern outlined above is undoubtedly a valid one, and explains why the Wehrmacht, and especially the German Air Force, participated in these experiments. Fanatically bent upon conquest, utterly ruthless as to the means or instruments to be used in achieving victory, and callous to the sufferings of people whom they regarded as inferior, the German militarists were willing to gather whatever scientific fruit these experiments might yield.[vi]

    The high altitude tests were done to determine how high pilots would be able to fly; freezing tests on human subjects were done to learn how cold a person could get before dying, as well as what the best ways were to re-heat a freezing person. This had important implications for the Germans fighting on the brutally cold Russian front. Of more specific import for the anthrax vaccine herein discussed, the Germans also conducted a number of experiments involving chemical and biological warfare.

    The most basic mustard gas tests involved simply gassing subjects and measuring its effect upon them. The Germans operated with the complete permission and authority of both their government and the society generally; the subjects weren’t even German soldiers, but captured enemy civilians or belligerents, so some of the tests went a step further and wounded some prisoners first to determine the effect the gas would have upon a wound under battlefield conditions. While it is important to state that none of the experiments involving the U.S. Department of Defense (of which we are aware) involved this kind of treatment, the ‘baseline’ experiments conducted by the German doctors were identical to the U.S. Department of Defense’s ‘man break’ tests conducted in the late Forties and Fifties. In fact, the lawyers for several of the Nazi doctors argued at trial that the German experiments were identical to the experiments conducted by the U.S. and Britain using human subjects in the period between World Wars War and Two. Of course, as has already been shown, the U.S. experiments were conducted, in most cases, AFTER the Nuremberg Trials, and in secret, and on U.S. citizens.

                                                                                                                                                                                       

    During their trial, the Nazi doctors offered several legal defenses to their actions, chief among these was that the doctors had not known that anything they were doing was wrongful because the experiments (in some cases) were no different than ones which had been regularly carried out by the Americans and Germans prior to the War. In other words, the argument is essentially a combination of challenging the war crimes tribunal’s charges as ex post facto laws, as well as a challenge to the notion of being on ‘notice’ that one’s actions are prohibited. i.e. The doctors argued that there existed no agreed-upon international common law on the use of human beings as subjects. While the world might say now, after victory, that the German doctors’ actions were wrongful, there was no law in existence prior to their actions to let them know what they were doing was criminal. This is a fundamental tenet of criminal law generally: the necessary existence of some law making the act criminal before it is committed, in order to provide notice to the actor that such acts are forbidden. This isn’t merely a matter of legal theory; while the reasons aren’t given, four of the seven defendants charged with experiments involving lost gas were acquitted.

    Two doctors who worked with the U.S. prosecution team at Nuremberg, Drs. Andrew Ivy and Leo Alexander, were concerned with the defense arguments about there being no previous international statement or standard regarding the treatment of human subjects and their consent in medical experimentation. In April 1947, Dr. Alexander submitted a memorandum to the American Counsel of six points regarding medical experimentation on human subjects. The verdict against the doctors was returned on August 19, 1947. In the verdict, each of the six points was covered and expanded into ten points under a section entitled “Permissible Medical Experiments.” This came to be known as “The Nuremberg Code.” The Nuremberg Code’s first principle was that “the voluntary consent of the human subject is absolutely essential.” The principles of the Nuremberg Code were adopted by the U.S. Department of Defense in 1953 when the Secretaries of the Army, Navy, and Air Force all adopted a memorandum entitled “Use of Human Volunteers in Experimental Research.” The first principle was verbatim from the Nuremberg Code. In 1964, the World Medical Association in its “Helsinki Declaration” adopted the Nuremberg Code. Eventually, these principles were codified in U.S. law as Title 50, section 1520a, but this didn’t happen until 1977, two years after the famous Church Committee hearings on the CIA and DoD experiments herein discussed.

    There is, however, a seminal case from the Supreme Court called The Paquete Habana, which international law professors will say stands for the proposition that international law, in the form of treaties, executive agreements, and international norms and customs, are an essential part of U.S. domestic law.[vii] If that legal proposition is true, then the DoD’s experiments on its own soldiers without their informed consent was pushing up against the propositions that had been adopted in the aftermath of the Nuremberg Trials. It is certainly clear that by 1977, Congress thought something ‘wrongful’ had happened with the CIA’s MKULTRA program. At the opening of the hearings regarding the program, Senator Inouye, presiding, stated that “[i]t is also the purpose of this hearing to address the issues raised by any additional illegal or improper activities that have emerged from the files and to develop remedies to prevent such improper activities from occurring again.”[viii] Notice, however, what is conspicuously absent from that statement: any mention of holding people accountable for those putative violations of the law.

    Admiral Stansfield Turner, director of the CIA, also seemed to believe that something illegal had happened because he conspicuously noted that (a) he was cooperating with the Attorney General, and (b) reminded the committee that MKULTRA did not occur on his watch, but was a program of another director and that the events were some 12-24 years past at the time of the hearings. MKULTRA lasted from 1953 to 1964 and was conducted in concert with the Department of the Army.[ix]

    Interestingly, no one ever stated exactly what law they believed had been broken, nor what the penalty was for this crime. There was not then, and is not now, any federal criminal statute prohibiting a person or agency from conducting experiments on military members or ordinary citizens without their informed consent. Some members of the committees invoked the  then-newly passed that was the product of a 1975 initial inquiry into these matters, but it wasn’t a criminal statute – it simply mandated informed consent with no actual punishment or remedy listed for violations. Chapter 3 delves into judicial remedies  against a government agent or agency conducting such experiments. Technically, an unconsented medical procedure would constitute a battery or an assault consummated by a battery, but there is no federal “battery” statute; criminal law is almost entirely a matter for the states.

    This raises an uncomfortable moral/ethical/legal question: which is worse, the German doctors who operated (they claimed) out of a genuine ignorance that their actions were wrong – and historically speaking they have a fair case for it – or the DoD and its doctors who clearly knew that their actions were wrongful in light of the German doctors’ trials? Someone will undoubtedly want to take me to task for comparing the CIA’s or DoD’s doctors to the Nazi doctors of World War II, however, either the principles of the Nuremberg Code are the standards of the medical profession or they are not – they cannot be called principles if they can be bent to the will of the doctor performing the particular tests, or justified and waived away after-the-fact with vague references to ‘national survival’ because short of the Revolution or the War of 1812, the U.S. has never faced the kind of military pressure against the homeland as Germany did in WW2.

    The first principle enunciated in the Nuremberg Code is that “the informed consent of the subject is absolutely essential.” There is nothing equivocal about that statement. It does not say, for example, that “the informed consent of the subject is somewhat or mostly essential.” Nor does it manifest any limitation to only Nazi doctors or doctors of defeated Axis powers. As one author has noted, “[t]here is no exception for soldiers or for wartime.”[x] Which all goes to this simple point: there is no “greater good” exception or argument against the principle, because that is exactly what the Nazi doctors said they were doing.

    Sidney Gottleib’s statement that it was considered a matter of ‘national survival’ has two dangerous flaws in it, one obvious, the other insidious. The first, obvious flaw is that it is exactly the same argument that the U.S. and other Allied powers forbade as a defense in Control Council Law Number 10. The Wehrmacht doctors certainly performed a number of experiments whose results had only one possible practical application and that was in the war effort in which they were engaged. In fact, the German doctors, involved as their country was in a losing battle against foreign powers with bombs dropping on them daily, probably had a much better claim to Gottleib’s “national survival” argument than the CIA or DoD had in the continental United States post World War II with the U.S. as one of the world’s only two (nuclear) superpowers.

    More insidious, and hidden in Gottleib’s argument, however, is a claim of moral superiority. Gottleib’s argument allows that either he, or someone else on behalf of the state, can take away the subject’s right to decide the most fundamental question of humanity: the right to live. It is an objectification of the person – the person as tool of the State. As was pointed out by Supreme Court Justice William Brennan’s dissent in the Stanley case, quoting a law review article,

    [Human experimentation authorized by the state] dramatizes the notion that the state is free to treat its nationals in the manner it chooses because it perceives itself as the source of all rights, and therefore as beyond the reach of law, rather than regarding rights as inalienable, that is, not subject to arbitrary cancellation by the State.[xi]

    This is more insidious because it sounds academic and benign, perhaps even agreeable, because, after all, doesn’t each of us owe our way of life to the state? This simple, yet bankrupt, logic, and consequent objectification of human beings can easily be turned on particular groups and yields exactly the kind of thinking that helped create the Holocaust in the first instance. I do not want to oversimplify a tragedy on the scale of the Holocaust into one short sentence; it doesn’t do it justice nor does it take into account the myriad other factors in involving anti-Semitism in Europe that help account for what happened in Europe from 1933 to 1945. It is, however, critical to recognize arguments like Gottleib’s “national survival” and follow them to their logical conclusion, otherwise tragedies like the Holocaust get put aside as historical anomalies and when programs like MKULTRA, the Tuskegee experiments, and yes, even the current DoD anthrax program are announced, apologists differentiate them because, clearly, WE are not in any way morally comparable to the (gasp!) Nazi doctors… even when government actors are violating the exact same principle in the same way.

    It may be that our government agents do not use specifically identical means that the Nazi doctors did: that is, brute force at the point of a gun. Instead, however, the CIA doctors in the MKULTRA program and the DoD doctors in the mustard and lewisite gas tests, or the Atomic Energy Commission in its radiation tests on soldiers, used deception or trickery, additionally backed by the very credible threat of future punishment (court-martial), in order to silence those who might bring their actions to light. In normal criminal trials, attempting to hide conduct is frequently admissible as “consciousness of guilt” – that is, evidence that the actor was aware of the wrongfulness of their actions. Worse than Gottleib’s public justification, however, is that in some cases, government actors consciously change history or the law: destroy documents, close test sites, classify evidence they don’t want to become public, and then offer some higher moral calling as justification – the threat of an invisible enemy, international terrorism, the ticking time bomb, etc. The end result is that these excuses either gain public acceptance, or create a sense of public indifference, to the rights of their fellow citizens.

    Lest there be any question about whether this line of reasoning was ever explored by the Army or CIA doctors at the time, internal documents that were accidentally discovered because they were mis-filed and did not get destroyed like the rest of the more direct source documents became public and put a finer point on it. In 1977 hearings in front of the Senate, internal CIA documents revealed that the CIA believed that it must “conceal these activities from the American public in general,” because public knowledge of the “unethical and illicit activities would have serious repercussions in political and diplomatic circles and would be detrimental to the accomplishment of its mission.”[xii]

    In a 1959 Staff Study, the United States Army Intelligence Corps (USAINTC) even more candidly explained its justification for abandoning the principles of the Nuremberg Code.

    It was always a tenet of Army Intelligence that the basic American principle of dignity and welfare of the individual will not be violated . . . In intelligence, the stakes involved and the interests of national security may permit a more tolerant interpretation of moral-ethical values, but not legal limits, through necessity . . . Any claim against the US Government for alleged injury due to EA 1729 [LSD] must be legally shown to have been due to the material. Proper security and appropriate operational techniques can protect the fact of employment of EA 1729.[xiii]

    That is to say, legal liability could be avoided by covering up the LSD experiments. If no one could prove they had been given the drug, no one on the administering side would ever have to pay the consequences for their actions.

    Putting aside the moral reprehensibility of this position, the issue of the legality of the DoD’s tests is beyond cavil: the experiments violated a slew of laws. They certainly violated the spirit and letter of the Nuremberg Code. They violated any number of state criminal battery or assault statutes: an unconsented drug in one’s drink is a battery. By common law, the person administering such a treatment would be criminally liable for whatever happened to the person taking the drug.[1] These batteries would also be actionable in a tort suit for damages were the doctors in private practice. They violated the “common rule” and accepted standards of medical practice. They violated the civil rights of U.S. citizens, yet no one was ever prosecuted for these (and other) acts; no government agent or agency was ever forced to pay a service member a dime by any court for the harms done to them. The explanation as to why is a sobering bit of legal legerdemain.

                                                                                                                                                                                       

    [1] “During the Rockefeller Commission and Church Committee investigations in 1975, the cryptonym [MKULTRA] became publicly known when details of the drug-related death of Dr. Frank Olsen were publicized. In 1953 Dr. Olsen, a civilian employee of the Army at Fort Dietrick, leaped to his death from a hotel room window in New York City about a week after having unwittingly consumed LSD administered to him as an experiment at a meeting of LSD researchers called by CIA.”  Prepared statement of Adm. Stansfield Turner, Director of the CIA, before a Senate Committee, August 3, 1977.

    [i] U.S. v. Manuel, 43 M.J. 282, 286 (C.A.A.F. 1995)(citations omitted).

    [ii] Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10., Nuremberg, October 1946–April 1949. Washington, D.C.: U.S. G.P.O, 1949–1953.

    [iii] Control Council Law No. 10, Dec. 20, 1945.

    [iv] From the indictment, U.S. v . Brandt, et al. (The Medical Case), 2 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, (1949).

    [v] Id.

    [vi] U.S. v . Brandt, et al. (The Medical Case), 2 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, p. 37 (1949).

    [vii] The Paquete Habana, 175 U.S. 677 (1900).

    [viii] Project MKULTRA:  The CIA’s Program of Research in Behavioral Modification, Hearings Before the Senate Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Committee on Health and Human Resources, p. 2, August 3, 1977.

    [ix] Id. at pp. 9-14.

    [x] G.J. Annas, Changing the Consent Rules for Desert Storm, 326 New Eng. J. Med. 770 (1992).

    [xi] Bassiouni, Baffes, & Evrard, An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J. of Crim. L. & C. 1597, 1607 (1981).

    [xii] S. Rep. No. 94-755, Book I, p. 385 (1976)(quoting CIA Inspector General’s Survey of the Technical Services Division, p. 217 (1957)).

    [xiii] Id., at 416-417 (emphasis added)(quoting USAINTC Staff Study, Material Testing Program EA 1729, p. 26 (Oct. 15, 1959)).

     

     

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  • Chapter 1 – A Brief History, or “I’m from the government and I’m here to experiment on you.”

    I think it speaks to the undercurrent of distrust of the government and the military,” said Lt. Gen. Ronald R. Blanck, the Surgeon General of the Army, the service that oversees the [anthrax] vaccination program.  “Agent Orange. Nuclear tests in the ’50s. People say, ‘How can you say this is safe?’  Clearly, we have a credibility problem.”

    ~ Steven Lee Myers, Armed Services Opt to Discharge Those Who Refuse Vaccine, N.Y. Times, March 11, 1999.

    The United States Armed Forces has a long and not-so illustrious history of testing nuclear, biological, and chemical weapons… on its own citizens. From at least the 1940’s on (and if you want to include Native Americans, we can go back a lot further!), the Department of Defense has conducted experiments on U.S. servicemembers using ‘unconventional’ weapons. A report prepared by the staff of the Senate Committee on Veteran’s Affairs in 1994 concluded that “[f]or at least 50 years, [the] DOD has intentionally exposed military personnel to potentially dangerous substances, often in secret[.]”[i] That report followed a Government Accounting Office inquiry into experiments conducted on servicemembers by the Department of Defense.[ii] The GAO report detailed many different programs, some of which the DoD still lists as classified, in which servicemembers were given experimental drugs and other treatments without their knowledge or consent. A few of the more stunning examples of experimentation are worth discussing in detail, not simply to attack the Department of Defense or the military establishment, but rather as context because it is against this history that the DoD’s anthrax program was launched. And it is against this background of secret experimentation and tests conducted on coerced subjects that the DoD asks members of the Armed Services to “trust us” with regards to vaccines and inoculations claimed to be safe and effective.

                                                                                                                                                                                                   

    [i] An Institute of Medicine report looking at the history of mustard and lewisite gas found the Armed Forces researching chemical warfare after World War I and up through World War II.  The report even traces some research back before the Civil War.  See Senate Report No. 103-97, at 15 (1994).

    [ii] The Government Accounting Office (GAO) is the watchdog arm of Congress that investigates government agencies.  See “Human Experimentation, An Overview on Cold War Era Programs,” U.S. General Accounting Office, September 28, 1994, GAO/T-NSIAD-94-266.

                                                                                                                                                                                                               

    In the 1940’s, the Department of the Navy began soliciting volunteers to participate in a program to test protective clothing. In reality, the program was designed to test mustard and lewisite gases, chemical agents that the United States thought might be used by the desperate Axis powers at the end of World War II. There are some who claim that the tests were done simply to see what effect mustard gas had on soldiers in order to determine the offensive potential of chemical weapons. The truth is likely that these are not exclusive propositions. Either way, the program solicited potential ‘volunteers’ with the promise of two weeks of extra leave or some other similar incentive. “Due to the strategic importance of these experiments [however], the Navy deemed it inappropriate to inform potential volunteers as to the precise nature of the tests.  Instead . . . the . . . volunteers were led to believe that they would be testing uniforms for use in tropical climates.”[iii]  These ‘volunteers’ were sworn to secrecy and threatened with court-martial if they told anyone about the program for which they had just ‘volunteered.’  Of course, at this point, because no one had told them exactly what they volunteered for, it was relatively easy to extract such a promise. It is rather doubtful that most members would have agreed had they known that they were about to be experimented upon with chemical weapons.

    Nathan Schnurman was a young sailor who figured he could use the extra few days off. He had just finished boot camp and was stationed at Bainbridge, Maryland, awaiting further orders when he volunteered for the program. He was put on a bus for Anacostia, Maryland, where the experiments actually took place. Young Nathan Schnurman, along with the other volunteers, was given a bunk in a Quonset hut and some blankets for that evening. All of the volunteers were issued protective clothing, including a gas mask, given a physical, and the next morning the experiments began. The protective clothing and masks were fitted and checked and then the ten volunteers were led to the testing building. At this point, the volunteers had still only been told that they were testing clothing for tropical weather.

    The building itself was a simple structure with an entrance platform and test chamber. A single door separated the platform from the chamber and an intercom allowed for communication between the subjects inside the chamber and the corpsmen on the platform. The subjects were told that, once inside, a vapor was to be introduced into the chamber and that they were to remain in the chamber for one hour. The subjects were not told what the vapor was, but were told that it might produce a slight irritation on the subjects’ skin, similar to a sunburn. The subjects were admonished not to discuss the experiment with anyone.[iv]

    The volunteers were exposed to the vapor for the one hour, as advertised. After that, they were instructed to continue to wear the protective clothing for another four hours, to eat meals and pass the time in their Quonset hut. They later disrobed and were given physical exams to check primarily for burns on the skin. This routine repeated itself the next day. The second day’s physical was the last one that any volunteer ever received as a part of the experiment.

    The hour-long gas exposures continued on a daily basis for the next four days without incident, save the departure of a few of the subjects due to painful burns. On one of those days, just prior to the morning’s exposure, plaintiff [Schnurman] was informed by a corpsman that they would be testing mustard and lewisite gas that day.

    On the sixth test day, while inside the chambers, plaintiff’s gas mask malfunctioned and plaintiff breathed the noxious vapor being tested. The inhalation of the gas produced extreme nausea and a burning in his eyes, nose and throat. Before being helped out of the chamber, plaintiff regurgitated in his mask. Once outside the chambers and free of his mask, plaintiff continued to experience nausea and dizziness, plus an intense pain in his chest. After further vomiting, plaintiff lost consciousness. No record was made of this incident.

    Upon regaining consciousness, plaintiff was informed that he would no longer be needed for the experiment and that he could return to Bainbridge. He was not given any physical examination or treatment with the exception of local treatment for the minor burns on his skin. Plaintiff left the site of the experiment and traveled to his home in Roanoke, Virginia for a ten-day leave.[v]

    Mr. Schnurman went on with his life, experiencing long-term health problems. Sworn to secrecy, Schnurman felt that he could not tell his personal physician about the source of his ailments because of his oath and the threat of punishment. Thus, he did not provide essential information to his doctors about his health because of his fears of what would happen to him if he told. This scenario was not uncommon.

    A Mr. John T. Harrison described to a senate committee how he was sworn to secrecy in 1943 when mustard gas tests were conducted on him.[vi] Because of these vows to which the man had been sworn, it was not until much later in life that plaintiffs, such as Mr. Schnurman, (1) learned of what had been used on them, and (b) then filed lawsuits against the government.

    A very similar incident happened to a John William Allen in 1945, according to a statement before the Senate Committee on Veterans’ Affairs. Mr. Allen testified that the real purpose of the testing was to determine how much sulfur mustard a man could take before being overcome: these were known as ‘man-break tests.’  “He was exposed several times to sulfur mustard and was removed from further exposure on May 5, 1945, when he passed out in the gas chamber. A physical examination on May 14, 1945, revealed many wounds as the result of exposure to mustard gas.”[vii]

    It is important to understand that these are not isolated incidents.  An Institute of Medicine report in 1993 estimated that some 60,000 military members were used as human subjects in the 1940’s to test just for two particular chemical agents, mustard gas and lewisite, and the majority of these people were not informed about the nature of the experiments, nor were they given proper medical care or follow up after the research.[viii]

                                                                                                                                                                                                               

    [iii] Few things have amazed me more in my time in service than what members of the Armed Forces – even moreso Marines – will do for just a few extra days of leave or liberty. I am still not sure what that says about the military, but leave and liberty are the promise land to most servicemembers.

    [iv] Schnurman v. United States, 490 F. Supp. 429, 430 (E. D. Va. 1980).

    [v] Schnurman, at 431.

    [vi] Is Military Research Hazardous to Veterans’ Health? Lessons from World War II, the Persian Gulf War, and Today, Senate Committee on Veterans’ Affairs, 103rd Cong. May 6, 1994.

    [vii] S. Rep. 103-97, at 18 (1994).

    [viii] Veterans at Risk: The Health Effects of Mustard Gas and Lewisite, Pechura, C.M. & Rall, D.P. (Eds.) Institute of Medicine, National Academy Press, Washington, DC, 1993, p. 3-4, 6-8, 50-52, 224-226.

                                                                                                                                                                                                               

    During the 1950’s and 60’s, the CIA and the Army engaged in experimentation on U.S. servicemembers, both with and without their knowledge. In several different experiments, the DoD caused servicemembers to unknowingly ingest hallucinogens. Most of the experiments centered around ‘mind control’ and interrogation of persons under the effects of hallucinogens. This was prompted by the perception in U.S. intelligence that China and the Soviet Union had used, and were using, hallucinogens for ‘brainwashing’ and interrogation of prisoners of war. This program was known by the code name MKULTRA. It involved giving LSD and another substance known as quinuclidinyl benzilate, a hallucinogen code-named BZ, to unsuspecting members of both the Armed Forces and civilian communities.

    In 1958, Master Sergeant James Stanley responded to a posting on Fort Knox, Kentucky, that solicited volunteers to help the Army develop methods for testing and defending against chemical weapons. Ironically, the volunteers were told they would be testing protective clothing (just as in World War II). MSgt Stanley was transferred to Aberdeen, Maryland, for the testing. He did not learn until seventeen years later that he had been unknowingly given LSD during the program. He found this out accidentally in 1975 when contacted by Walter Reed Army Medical Center, which was conducting follow-up on those who had participated in the 1958 test. Walter Reed wanted to know of any long-term health consequences to MSgt Stanley from his ingestion of the hallucinogen. MSgt Stanley in the intervening years had suffered health problems and hallucinations that he had no explanation for that eventually led to a divorce. See United States v. Stanley, 483 U.S. 669 (1987).

    In another instance, Lloyd Gamble, who enlisted in the U.S. Air Force in 1950, volunteered for a special program to (yet again!) test new military protective clothing in 1957.

    He was offered various incentives to participate in the program, including a liberal leave policy, family visitations, and superior living and recreational facilities. However, the greatest incentive to Mr. Gamble was the official recognition he would receive as a career-oriented noncommissioned officer, through letters of commendation and certification of participation in the program. During the 3 weeks of testing new clothing, he was given two or three water-size glasses of a liquid containing LSD to drink. Thereafter, Mr. Gamble developed erratic behavior and even attempted suicide. He did not learn that he had received LSD as a human subject until 18 years later, as a result of congressional hearings in 1975.  Even then, the Department of the Army initially denied that he had participated in the experiments, although an official DOD publicity photograph showed him as one of the valiant servicemen volunteering for “a program that was in the highest national security interest.”[ix]

    What is worth noting about these programs, beyond the experimentation on servicemembers without their informed consent, are the arguments offered by the proponents and defenders of these programs. According to Sidney Gottlieb, a doctor and former CIA officer, MKULTRA was established to investigate whether and how an individual’s behavior could be modified by covert means. Dr. Gottlieb testified before Congress that “it was felt to be mandatory and of the utmost urgency for our intelligence organization to establish what was possible in this field on a high priority basis.”[x] Although many human subjects were not informed or protected, Dr. Gottlieb’s defended these actions by stating, “. . . harsh as it may seem in retrospect, it was felt that in an issue where national survival might be concerned, such a procedure and such a risk was a reasonable one to take.”[xi]

    These attitudes persist even today. Dr. Gottleib’s responses in the 1970’s sound remarkably like the reasons offered to justify mandatory vaccination of troops today with unapproved, unlicensed, or investigational drugs. In a television appearance in 1997, Secretary of Defense Cohen held up a five-pound bag of sugar and stated that if the bag were filled with anthrax spores, it could wipe out half of the population of Washington, D.C.[xii] In a later opinion editorial appearing in Army Times, Secretary Cohen wrote that

    At least 25 countries, including Iraq and North Korea, now have – or are in the process of acquiring and developing – weapons of mass destruction . . . This is not hyperbole. It is reality . . . The race is on between our preparations and those of our adversaries. We are preparing for the possibility of a chemical or biological attack on American soil because we must. There is not a moment to lose.[xiii]

    The truth of these matters will be examined in greater detail later. The point to be made here is that Secretary Cohen’s defense of the anthrax program, and the justification for biological warfare programs generally, distilled to its essence, is nothing more than “the ends justifies the means.” Where matters of national security (Gottleib called it “national survival”) are at stake, it does not matter how we go about defending ourselves, even if it means experimenting on unsuspecting troops, because it involves ‘National Security’.

    This is a particularly dangerous path for a number of reasons, some obvious and others not as obvious. While there are any number of moral points of view about using troops in this way, one’s opinion about whether it is right or wrong to experiment on troops in this fashion depends largely on one’s view of individual liberty for the citizen-soldier and the limits of a nation state’s ability to protect ‘itself.’ These arguments inevitably devolve into philosophical debates, punctuated by twelve-letter words and citations to long-dead philosophers, spoken by people far removed from the gas chambers and vomiting victims on their hands and knees; much like Dr. Gottleib’s testimony in an air-conditioned chamber in front of politicians and cameras during the famous Church Committee hearings. More importantly, where ‘military’ or ‘national security’ matters are concerned, the academics inevitably defer to those wearing uniforms with stars on their collars.

    It would appear on the surface that this issue was decisively concluded at the end of World War II in favor of the rights of the individual. In August 1947, the Nuremberg Trials of the Nazi Doctors, including those such as Karl Brandt, came to a close, resulting in the death penalty for many of the doctors who conducted such experiments on unwilling prisoners in concentration camps across Hitler’s Reich. It is there that we must turn briefly in order to understand the law of informed consent and how it applies to the military, if at all. But if it seems that the present author is ‘laying it on a little thick,’ compare Secretary Cohen’s above remark about the necessity of the mandatory anthrax vaccine program to this one:

    We are not conducting these experiments, as a matter of fact, for the sake of some fixed scientific idea, but to be of practical help to the armed forces and beyond that to the . . . people in a possible emergency.

    This is from a letter written by Doctor Wolfram Sievers, Colonel in the German Army in November, 1942, to Dr. Karl Brandt, both convicted Nazi War Criminals, excerpted from Prosecution Exhibit No. 263 at their trial.

                                                                                                                                                                                                               

    [ix] Id., notes omitted.

    [x] Human Drug Testing by the CIA, 1977: Hearings Before the Subcommittee on Health and Scientific Research, Committee on Human Resources, U.S. Senate, September 20-21, p. 169 (1977).

    [xi] Id., pp. 169-217.

    [xii] Paul Richter, Experts Assess Risk of ‘New Terrorism’ Threat, Los Angeles Times, Feb. 7, 2000.

    [xiii] William S. Cohen, Preparing for a Grave New World, Washington Post, Jul. 26, 1999.

     

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  • The Untold Story of the DoD’s Anthrax Vaccine Program, Serialized: Prologue

    “This court will come to order in the case of United States versus Petty Officer David M. Ponder, United States Navy, at Marine Corps Base Camp Foster, Okinawa, Japan.” I’m a little nervous, like I am at the beginning of every trial, but I don’t show it. It’s just an arraignment anyway. We’re mostly here to arrange dates for trial and I’ve already talked to the prosecutor, known as the “trial counsel” in military parlance, a professional Marine Captain by the name of Chris Kolomjec, and we’ve agreed to push the dates out a bit on this case. Like me, he had another specialty in the Marine Corps before becoming an attorney, so we have a collegial relationship. Chris is going on temporary duty to an exercise in Thailand called “Cobra Gold” and I’m in the beginning stages of a plan to plead this case out under very favorable terms if I can get in to see the Convening Authority – my client’s Commanding Officer – while he’s out of town. In courts-martial, the prosecution has one-hundred twenty (120) days to be ready to go to trial and the arraignment stops that clock from running.

    In David Ponder’s case, stopping the clock is mutually agreeable, but we have to coordinate our plans with the judge’s trial schedule.
    I put on the required lawyerly mask of indifference, but inside, my guts still twist a little. A trial is like the start of a “big” game in sports, except the stakes are a whole lot higher. I am, as one might expect, extremely competitive, particularly in sports, but I’ve played and lost enough games to have perspective – at the end of a game, even after a loss, nobody goes to jail, gets busted, kicked out of the service, or loses their pay. On the other hand, as a defense counsel I also have a standard line to my clients: “At the end of the day, I’m not the one going to jail. I’m going home to my wife and four daughters.” Notwithstanding this shpiel, I’m a bit new at this and keenly feel the punishment hanging over my clients, the mythical sword of Damocles hanging there, waiting to fall. One mistake on my part…. On the Defense side of the courtroom, it is your intellect, initiative, imagination – and a ball point and legal pad – against the resources of “The United States of America.” While it can be a unique intellectual challenge, it is also daunting because I am gambling with another person’s liberty. Anyone who ignores that is either another class of lawyer than I am or a fool.

    I edge a little closer to Petty Officer Third Class Ponder, a sailor who refused the controversial anthrax vaccine. My move closer might appear to outsiders as a sign of my solidarity with my client; and in David’s case, it’s got some truth. We’ve only just met, but I like him. In most cases, however, being proximate to my client makes me feel less alone. I am six months removed from Naval Justice School, nine months from passing the Bar, eleven months from law school graduation, and a lifetime away from my former occupation in the Marine Corps as a Cobra attack helicopter pilot.

    Captain Kolomjec finishes reciting his bona fides and how the court came to be created by the Commanding Officer of Naval Mobile Constriction Battalion Seventy-Four, Petty Officer Ponder’s C.O. This part really was boring, scripted, and I waited for my turn to speak.
    “Captain Saran?” the military judge, Lieutenant Colonel Tim Miller, looked up from his Military Judges’ Benchbook in my direction, my cue to do my part.

    “Sir, I have been detailed to this court-martial by Major J.R. Woodworth, Senior Defense Counsel, Legal Services Support Section, Third Force Service Support Group, Camp Foster, Okinawa, Japan. I am qualified and certified under Article 27(b) and sworn under article 42(a) of the Uniform Code of Military Justice.” I don’t need to look down at my trial guide for this, which is a script for Navy and Marine Corps trial proceedings for the repetitive parts in the process. It keeps everyone tracking where the trial is, but the real reason for it is to make for better records of trial. Anyone who receives a punitive discharge in the military gets an automatic appeal up to their service specific appellate court. Given the number of courts-martial in the military, this helps the appellate courts do their jobs. Arguably, it also helps the accused get a better, cleaner trial. The familiar recitation helps my nerves dissipate; I suspect it has something to do with being raised Catholic.

    “I have not acted in any manner which might tend to disqualify me in this court-martial and no other defense counsel, either military or civilian, have either been detailed to or are on this case.” I start to sit down and then stay on my feet in anticipation of my client standing up when the judge speaks to him for the first time – just as I instructed him to do.

    “Are you Petty Officer Ponder, the accused in this case?” David Ponder stands up to the position of attention.

    “Yes, sir.” Firmly, not too loud, perfect. He looks good in his uniform, as well. I know because I inspected him myself before we came into court. The defense shop keeps an extra set of uniforms, spare ribbons and devices, and whatever else we can scavenge for when our clients are brought in by the chasers – military escorts – from the brig. They come over in those ubiquitous orange jumpsuits in shackles; while their units are supposed to provide the uniforms for them, we always wind up with clients missing ribbons and sundry uniform items, so we have a small stock available.

    “Okay, Petty Officer Ponder, you may take a seat, and you may remain seated unless I otherwise direct you to stand.” Lieutenant Colonel Miller nods gently from behind his glasses. I notice he’s still rubbing his hand as he continues, a habit since the pins were removed. The judge flipped over the handlebars of his bike and busted his wrist up pretty badly and I knew the scar must itch where the pins had come out. Reconstructive shoulder surgery at 15 left me with an intimate understanding of that feeling.

    We finish with the preliminaries; I rattle off all of the awards which David Ponder had earned during his three years as a Navy Seabee. The judge goes through my client’s rights to counsel, military and civilian, and then his own qualifications. He then gives us a chance to challenge him or ask any questions if we think he might be partial for any reason, a formality at this point, because I’m pretty sure that Lieutenant Colonel Miller isn’t even going to hear this case if we go to trial. He’s likely to pass it to Major Eric Stone, the other military judge on Okinawa, because of some scheduling conflicts with other cases in the Pacific region, which includes mainland Japan and Korea. We all do a good bit of traveling because of the odd and disbursed units that have occasional courts-martial, but the bulk of the work is on Okinawa.

    I look over at my client; David Ponder looks young to me – and I just turned thirty. He has the beginnings of a moustache, but it’s just that, the beginnings. The good thing is that he likes to keep his hair short by Navy standards, which helps in a Marine court. He’s also a genuinely squared-away sailor. I liked him, which is supposed to be irrelevant to attorneys, but it’s not. Everyone gets the same level of representation; it’s just a question of whether you like defending them or not and whether or not you’ll feel badly if they’re convicted. It also helps in generating the emotional energy to work late nights and long hours cheerfully, as opposed to drearily.

    “Petty Officer Ponder,” the judge breaks into my thoughts, “I now ask you how do you plead, but before accepting your pleas, I advise you that any motion to dismiss or grant any other relief should be made at this time. Captain Saran?”

    I stand up, my stomach now fully settled, which is great because we’re just about done; we have our dates for trial, but I’m thinking this gets pled to a Summary Court martial, where my client can get no more than 30 days in the brig and no punitive discharge, but he’s probably going to have to waive his right to an Administrative Discharge Board and they’ll kick him out with ‘bad paper’ – an ‘Other Than Honorable’ discharge, which is like being fired from the military.

    “Sir, at this time Petty Officer Ponder requests to defer entry of pleas and motions in accordance with the schedule the court has already set forth.”

    The judge goes through the dates Kolomjec and I have already picked for motions, responses, witness requests, and discovery. All parties are agreed.

    “Anything else from either party before we adjourn?”

    “No, sir,” both Kolomjec and I answer after glancing at each other.

    “Then this court is in recess.”

    “All rise!” Kolomjec intones. I’m already on my feet and David joins me as the judge passingly says “Carry on” and departs.

    As my client and I walk out, we almost bump square into David Allen, a reporter from the Pacific “Stars and Stripes.” I’ve only been on the island for a few months, but my reaction is immediate – I step in and tell David Allen we’ll give a statement at some point and he’ll be the first to know. Blah blah blah.

    The first thing any decent defense attorney wants regarding his client’s talking – to anyone, but particularly law enforcement and the press – is to STFU and let the lawyer do the talking. The cop shows and movies are dead-on in one respect: anything you say can and will be used against you. Plus, offhand I can’t remember either the Code of Professional Responsibility or the more stringent Navy Instruction for all Judge Advocates on speaking to the press. I know generally it’s frowned upon, if not outright verboten, to speak to the press. Add to that my natural aversion to the media as a military officer and I’m curt, but polite.

    Oddly enough, this is one of the few times it likely won’t matter. It’s not as if David could say anything damning – he had refused a direct order to take the anthrax vaccine and even talked about it in interviews with local media in his homeport of Biloxi, Mississippi. There isn’t a whole lot of dispute factually. I don’t want to give the government any additional ammunition for sentencing, however, should we ever get there. A jury or military judge would probably not look kindly on someone who was bashing the military in the local paper. So, we pass on the “exclusive.”

    Back in my office, I drop into my chair.

    “Sir,” Petty Officer Ponder begins, “what happens now?”

    “Well, you heard the dates for motions. That’s the next big milestone. It’s likely that the prosecutor will file a motion asking the judge to find the order to take the vaccine lawful. That’s been the standard in the few other anthrax cases that have gone to trial. The good thing is that Captain Kolomjec leaves for Thailand the day that our response is due. Likelihood is he won’t be around in the afternoon when I drop the response off on the prosecution. He also won’t be back until right before the motions session and I’m betting no one else is going to pick up our response and run with the ball. So, it may not win the day, but it will certainly limit his time to be ready to answer our motion.” David Ponder nods, but I can tell he’s nervous. I would be, too, if I were in his shoes.

    “Sir, did you get in touch with Major Bates’s attorney, Mister Smith, at that number I gave you?” David Ponder put me in touch with an attorney in the States named Bruce Smith, an administrative judge in North Carolina and Major in the Air Force Reserve. He defended Air Force Major Sonnie Bates, the highest ranking officer to refuse the anthrax vaccine. He had been discharged with ‘good paper’ as a result of a plea negotiation.

    “Yeah. I talked to him. Interesting conversation.”

    When I spoke to Bruce Smith, he calmly asked me if I could consider that the order to take the anthrax vaccine was unlawful. Not quite expecting the question, I had said, sure, albeit hesitantly. In my own mind, I figured he was a loon, a conspiracy theorist, but he had gotten a good result for Major Bates, so what did I have to lose by listening to the guy? He told me to look up a particular federal statute and then said he would send me some other materials and asked if I would I please keep them “close hold.” His manner was so cordial, I casually agreed, thinking nothing of it.

    My boss, Major John Woodworth, figured he had done me a favor by assigning me – a brand new judge advocate – three of the four anthrax refusal cases on the island of Okinawa. The assumption was that these were guys looking for an excuse to get out of the military and the units would likely agree to Summary Court deals with a Board waiver and these would be over in short order. Like Tom Cruise in a “Few Good Men” I came to David Ponder’s case with the goal to get him the best deal possible, and do it quickly and quietly. I also have several major cases pending, including a rape defense.

    I got the first three of my anthrax shots just before coming to Okinawa. I took them somewhat reluctantly, as I had read an article in a major news magazine about the possibility of some experimental substance called squalene being in the anthrax vaccine given to soldiers during Desert Storm. I had sat in the medical clinic at Naval Justice School in Newport, Rhode Island, discussing the matter with another Marine attorney. Both of us had served previously as officers in the Fleet Marine Force and while we tended to think that squalene had been used in the anthrax vaccine, our leaders wouldn’t allow it to be used now. Quite simply, we trusted our chain of command, our senior officers.

    David breaks into my thoughts.

    “Do you think my CO might consider not court-martialing me or something if you explained this to him?” David Ponder’s question was laden with ethical implications that I was glad I explained to him. While the anthrax vaccine was getting a lot of attention in the press back in the States, and the issue was very interesting legally, I couldn’t let that interfere with my duty to my client, which is to advocate his interests. If he wanted to deal, to plead guilty, no matter how much I might like to litigate the issue, it was his ass on the line. I explained as much to him from the start. David Ponder didn’t have a Juris Doctor, but he was sharp and understood the bottom line.

    “Well, I’m going to set up a meeting while Kolomjec’s away and see if the C.O. won’t listen to what we’ve got to say. I’ll get back to you as soon as I get out of that meeting, okay?” I smiled at him.

    “Okay, sir. I’m going to change up. Where can I go to have a smoke?”

    “Out on the stairs at the end of the building.” I nodded toward the general direction. When he left, I went back to work. I was concerned with the other fifteen other clients who were counting on me to keep them out of jail. At the time, I had no idea that David Ponder’s case would take us both from Okinawa to the highest military court of appeals, to the doorstep of the Supreme Court, and eventually to testifying in front of Congress. It would also eventually cost me my active duty career, but that was a long way off.

     

     

  • Science, Part 2: Where did it Go Wrong?

    In part one of this two-part article, I made the following (paraphrased) claims:

    1. The state of science is unwell.
    2. A sample of the majority of published papers are likely irreproducible, or just plain garbage.

    I know of no other way to make the case for these propositions than by example, knowing full well that this is subject to the counterclaims that “these are just anecdotes” and/or that they are not representative of the whole of science. To somewhat blunt such criticism, I begin with examples of people who were at the pinnacle of some of the most prestigious scientific and medical journals and let their experiences begin the discussion. I finish my proof by offering a history lesson on the origins of these phenomena, which I believe assists in showing that the “how” of “how we got here” helps explain and buttress the conclusion that “here” is, scientifically speaking, a very bad place.

    Ben Goldacre is a British doctor and author who wrote the wonderfully evocative “Bad Science” and its companion follow-up “Bad Pharma.” Ben makes a living speaking and writing about the vagaries of pseudoscience and does so in a wonderfully humorous and accessible way. Having seen him speak in person, I tend to think of him as a kind of Malcolm-Gladwell-meets-Michael-Lewis of junk #science. His examples are relevant, modern, funny (most of the time), pervasive, and cross cultural boundaries. His chapter in “Bad Science” entitled “The Doctor Will Sue You Now” should be read by all high school students as an introduction to science by showing these future adults how governments, physicians, and all of the supposed checks and balances of peer review don’t prevent, but in actuality help enable, the kind of fraud peddled by Dr. Matthias Rath (who claimed he could cure AIDS with his multivitamins and managed to get the support of the South African government for a completely unethical clinical trial on human beings).

    Goldacre’s book begins with an offhand remark that I believe merits consideration on this notion of the poor state of science.

    “The hole in our culture is gaping: evidence-based medicine, the ultimate applied science, contains some of the cleverest ideas from the past two centuries; it has saved millions of lives, but there has never once been a single exhibit on the subject in London’s Science Museum.”

    Bad Medicine, Preface, p. x (emphasis added).

    If Goldacre is correct that medicine is truly an “applied science,” then I feel confident that my claim that science is a mess can be amply proven because “The Mess” that is modern medicine can be considered an archetype for all of the ills of science. Additionally, the greatest killer of human beings in the United States right now is chronic disease: that is to say, far and away in the United States, more people die every year as a result of repeated, entirely optional, bad behaviors than any other single disease or causal factor. We also spend about $0.86 out of every healthcare dollar on the various chronic diseases. As just one salient example, when I was the general counsel for CrossFit, Inc., and we were approaching 7,000 gyms in the United States, we got curious to know what other ‘chains’ were growing as fast. Starbucks and Subway certainly had more locations, but they had started well before us and were no longer opening stores as quickly. After some web searching we found the only business opening as many new locations was DaVita – kidney dialysis centers – owned by Berkshire Hathaway. Diabetes and its associated disease states are a massive drain on the healthcare budget. Then think about adding in coronary artery disease (Thanks govt nutrition guidelines!) and the associated problems, most strokes (Thanks doctors who advocated smoking!), etc. Yet these are diseases of advanced civilization. We continue to pat ourselves on the back at our advanced #science(!) while we kill ourselves with lifestyle behaviors at a rate that approaches the death chambers at Auschwitz. And speaking of which, one would think that the entirety of WW2 and its aftermath, with the use and application of science to produce more efficient ways of killing, should give us great pause to consider whether our science (with or without the hashtag) might need some recalibration, yet there is no post-war period of philosophical introspection about science at all to which one can point. FN 1

    Richard Smith began his career as a physician in Great Britain, and finished it as the chief editor of the “prestigious” BMJ (previously known as the British Medical Journal) from 1991-2004. He was also head of the BMJ publishing group and worked at BMJ for a total of 25 years, beginning in 1979. Here is his take from 2006 on some ideas for reform, or even abandonment, of the peer review process in medical and scientific journals. Ten years later, however, in a lecture to the International Journal of Epidemiology, he was singing a different tune: blow the entire system up. One might argue that this is simply a case of one man’s bitterness, but Marcia Angell, the former editor-in-chief of the New England Journal of Medicine, arguably the most influential medical journal on the planet, had very similar things to say after her time in academic publishing (in 2009). She was disenchanted enough to write a book entitled “The Truth About the Drug Companies: How They Deceive Us and What to Do About It.” Her conclusion?

    “It is simply no longer possible to believe much of the clinical research that is published, or to rely on the judgment of trusted physicians or authoritative medical guidelines. I take no pleasure in this conclusion, which I reached slowly and reluctantly over my two decades as an editor of The New England Journal of Medicine.”

    Dr. Marcia Angell, 2009

    A great place to really get one’s “bad science” on is Retraction Watch. Retraction Watch, as the name implies, began as a simple blog about scientific papers that were subsequently retracted, in part because – just like other publishers, especially newspapers and magazines – science publishers aren’t particularly keen on reporting that something they previously published was completely wrong. More importantly, in addition to burying subsequent retractions, no one is charged with connecting a paper’s retraction to all of the subsequent papers and research that relied upon the conclusions of the original faulty paper. Entire fields of study have been wiped out by faked papers and research.

    John Ioannidis wrote a paper attempting to explain mathematically why “Most Published Research Findings Are False.” The sidebar to that article is worth following as Ioannidis responded to the firestorm that his paper generated.

    My own personal favorite is based upon my experience as a criminal defense attorney with government run forensic laboratories. While this may bum-out the viewers that keep the “CSI” franchise and its sponsors in business, I invite anyone to go to a search engine and type in the name of a state agency’s lab – the ones that handle forensic analysis of evidence in criminal trials – and the word “scandal” after it and see what results return. Massachusetts, for example, is still dealing with the fallout from their drug-using forensic chemists. But. Massachusetts. is. hardly. unique. Indeed, one could argue that government attempts to use #science to put people in cages is the perfect jumping-off point for explaining how we got “here” with bad science.

    The “Generally Accepted” Test

    In Frye v. United States, 293 F. 1023 (D.C. Cir. 1923), a man was convicted of second-degree murder and appealed his conviction. The basis for his appeal was the trial court’s decision to exclude the results from what amounted to an early form of the lie detector, which the defendant had ‘passed’ and wanted to submit to the jury via expert testimony. The judge did not allow the evidence and on appeal the D.C. Circuit upheld the court’s ruling.

    Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

    We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

    Id., at 1023.

    This case and its announced legal standard held sway in courts around the Nation for almost seven decades, even surviving the court reforms of the 1950s and the adoption of the Federal Rules of Evidence in 1975. What is important about the decision, however, was that it gave legal definition to “science” in courtrooms across the United States, or at least, that is what subsequent courts did with it. The so-called “Frye standard” consulted no scientists nor, perhaps even more importantly, scientists steeped in the philosophy of science. The standard did nothing more than reify the idea of a ‘consensus’ of opinion about some particular technology – in this case, the so-called ‘lie detector’ – at any given moment as being the standard of admissibility for ‘scientific evidence’ in federal courts. It is a fundamental misapprehension about what makes something “science.”

    The case was, of course, *not* the single causative event of its era that led to the diminution of real science. In point of fact, it may not have been even the second, or third, or fourth most important event, but it was certainly a part of a series of events between World Wars that changed the course of science. (FN 2) The inter-bellum period of the early twentieth century saw radical changes in the prevailing models of how economics, politics, public policy, and even how the universe worked. In the ‘science’ of economics, Marxism rose to ascendance in the same period that eugenics was a very real policy of multiple states in the U.S., born out of the (mis)application of Darwin’s theories on evolution to social structures. The same was true for Einstein and relativity.

    It is hard to fully appreciate now the impact Einstein’s general theory of relativity – and its “proof” by the eclipse of May 29, 1919 – had on the underlying faith in science and a wide swath of popular culture. As Brittanica notes:

    The ideas of relativity were widely applied—and misapplied—soon after their advent. Some thinkers interpreted the theory as meaning simply that all things are relative, and they employed this concept in arenas distant from physics. The Spanish humanist philosopher and essayist José Ortega y Gasset, for instance, wrote in The Modern Theme (1923),

    ‘The theory of Einstein is a marvelous proof of the harmonious multiplicity of all possible points of view. If the idea is extended to morals and aesthetics, we shall come to experience history and life in a new way.’

    The revolutionary aspect of Einstein’s thought was also seized upon, as by the American art critic Thomas Craven, who in 1921 compared the break between classical and modern art to the break between Newtonian and Einsteinian ideas about space and time.

    Encyclopedia Brittanica, “Relativity” entry, accessed 7/8/2019.

    David Stove of the University of Sydney makes a compelling case for where the philosophy of science in the western world went awry in his book Popper and After: Four Modern Irrationalists, Pergamon Press, 1982. He also points to the disruption that Einstein’s relativity wrought upon the scientific world.

    The crucial event was that one which for almost two hundred years had been felt to be impossible, but which nevertheless took place near the start of this century: the fall of the Newtonian empire in physics. This catastrophe, and the period of extreme turbulence in physics which it inaugurated, changed the entire history of the philosophy of science. Almost all philosophers of the 18th and 19th centuries, it was now clear, has enormously exaggerated the certainty and extent of scientific knowledge.

    D.C. Stove, “Popper and After,” p. 51.

    Stove takes only 100 pages to fully identify and explicate the source of irrationalism in science, beginning his work with Karl Popper and his fellow scientific irrationalists, and leading eventually to Hume’s extreme inductive skepticism, going so far as to detail the flaw in inductive skepticism by use of symbolic logic.  Stove contends that Hume’s belief that one could draw no conclusions at all from repeated observations in the past about the future was revived by Karl Popper in the aftermath of the “fall” of the Newtonian view of the universe. FN 4.

    In this dependence on Hume, Popper is only an extreme case of a general condition. For the influence of Hume on 20th-century philosophy of science in general is so great that it is scarcely possible to exaggerate it. He looms like a colossus over both of the main tendencies in philosophy of science in the present century: the logical positivist one, and the irrationalist one. His empiricism, his insistence on the fallibility of induction, and on the thesis which flows from those two, of the permanent possibility of of the falsity of any scientific theory, are fundamental planks in the platform of both of these schools of thought.

    Id. p. 50.

    By the time we get to the Supreme Court finally updating the “Frye standard” to discuss what the can qualify as ‘scientific knowledge’ for admissibility in the case Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the battle has already been lost, with Chief Justice Rehnquist’s mewling lament of a concurrence:

    I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its “falsifiability,” and I suspect some of them will be, too.

    I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role.

    Daubert, at 600-01. (emphasis and bold added).

    Sacre bleu! Why, the very idea that a learned man or woman – and jurist – should know what science is!

    AGW being taught in schools as “science” is simply the culmination of a journey that begins with Karl Popper and his intellectual heirs – Kuhn, Lakatos, Feyerabend – coming to dominate the philosophy of science.  Some seventy years after “general acceptance” in Frye the Supreme Court is now citing a self-admitted irrationalist, who did not believe that it was possible for human knowledge to be cumulative and advance, for its definition of what “scientific knowledge” is. The opinion itself discusses all manner of non-science as being characteristic of science, or should I say #science, including “peer review” and consensus.

    And that, my friends, is how fast we went from a society bursting with innovation and the understanding that science was an attempt to model underlying universal truths, to a level of specialization that approaches only insects, and our schools hammering our children with post-modernist ideas about what makes something #science.

    FN 1 – There is no post-WW2 ‘scientific reformation,’ for example, with a commitment to use the awesome power of the atom to provide energy for all – there are instead only more bombs that can reach farther faster. This doesn’t even begin to address the science used to make chemical and biological weapons.

    FN 2 – In order to avoid claims of plagiarism, I want to be clear that I am hardly the first person to point to the era between the First and Second World Wars as being historically significant for the changes that were wrought in this country – and across the world – most specifically in the outcome of the clash of ideas of the day. For example, the influence of Progressivism and the Eugenics movements, as well as Marxism’s influence on Russia and its subsequent Lysenkoism, show that as early as 1935, people were sounding the alarms on the influence of post-modernist ideas in seemingly diverse fields of human action.

    FN 3 – Stove’s work puts me in mind of Albert J. Nock sounding the alarm in 1935 in “Our Enemy, The State,” or “Isaiah’s Job.” Stove also authored a compelling book titled The Plato Cult: And Other Philosophical Follies, Basil Blackwell Ltd., 1991. The book’s jacket has a professor describing Stove as “an entirely worthy member of a distinguished tradition of outrageous curmudgeons.” That phrase immediately invokes Richard Weaver and his “Ideas Have Consequences,” as well (1948).

    FN 4 – To be clear, Einstein’s theories did not in any lessen the utility or power of Newton’s Laws, they only shortened their reach, but Einstein’s ideas about space-time and how gravity would bend light were a departure from Newton’s corpuscular model of light, as well as what had been the prevailing notion of space as essentially “inert.” Regardless of subsequent interpretations, for many people and pundits in that era, the boundaries of what could be known with certainty certainly seemed to have shrunk.

  • WTF Happened to Science, Part 1: What is Science and What Isn’t It?

    A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.

          • Max Planck

    I’m going to begin with two claims about the state of #science in the United States. I use the hashtag advisedly because one of my assertions is that the majority of what passes for science in the current zeitgeist is generally non-science, or, most charitably, bad conjecture, if we’re properly classifying some of the current crop of pop-culture fads attempting to pass themselves off as real Science (yes, I’m looking at you AGW). To begin with, here are my two claims:

      1. The current state of science in the United States is…unwell. This is not to say that there isn’t some good science being done to which one can point, but the measure of the health of science in any age isn’t simply what things are invented, or what new technologies may be invented or arise that lead to the ease of living of the species. I will take this up in detail below, but for now I make the claim that science in the U.S. is in a deplorable state, due to a confluence of factors that began from within science itself, but spread to other areas, such as the Law, for example, and reinforced the rot that has led us to our current state, which an esteemed scientist and friend of mine calls “the Post-Rational Epoch.” More on him below, as well.
      2. While a direct consequence of #1, it is also a piece of evidence while being its own separate problem, but the odds are that anything you’ve read recently in a mainstream media science piece, no matter how ‘peer reviewed’ it was, is garbage. My estimate is that it’s about 70/30 – in favor of garbage. I’ll back up that claim, as well.

    Before I can properly begin my argument, however, I must first define what I mean by science, as well as a number of related concepts in order that a metric is established by which I can show where things are currently awry, as well as the how and why that happened. So, I’ll leave these here and return to their proof below. Without trying to be pedantic, and in respect to the science knowledge of the Glibertariat, I ask some forbearance on this reiteration of the basics. Blame public education – I do. (See my prior writing on that topic if you’re curious.)

    What is Science?

    It is a methodology for modeling the universe; nothing more, and certainly nothing less. To be more precise, science is the process by which we develop models of the real world with predictive power better than random chance. Science proceeds on an underlying assumption: that there are underlying truths of our material world, of the universe itself, that can be discovered, and modeled, by mankind. In some cases, like Newton’s Law of Gravity, the model can be so powerful, with such mathematical precision, that predictions can be made about the future time, position, and even energy state of bodies on Earth or in space.

    Science is also how you have been understanding the world from the moment your senses turned on and became capable of taking in and processing stimuli. You have been producing models, using heuristics and other cognitive mechanisms, to come to grips with the stunning array of information presented to you, then updating these as more data comes in, confirming some hypotheses, discarding others, modifying yet others, limiting the domain and range of some theories… What we traditionally learned as the scientific method is an articulation of that mental machinery that churns out models of how the world works.

    1. Observe
    2. Ask a question
    3. Develop a testable hypothesis
    4. Experiment – TEST your hypothesis
    5. Analyze the data/results
    6. Conclusion

    This is also an iterative process and can be entered from different points along the path. You may have a simple question that nags at you, or you may have a particularly well-developed theory – as in the case of Einstein’s gravitational waves – but in either case, if you don’t have a testable hypothesis, one that has measurements and criteria for validation, the problem remains. (P.S. it turns out Einstein was correct – it just took 100 years for the equipment to be invented to confirm it). As this example above (hopefully) illustrates, Science does not necessarily yield absolute, universal truth… at least not NOW, or maybe not on the first go-around, which is why we have categories for models. The generally agreed upon definitions are:

      1. Conjecture – An incomplete model, or an analogy to another domain;
      2. Hypothesis – A model based upon all data in its specified domain, with no counterexample, and incorporating a novel prediction that has yet to be validated by facts;
      3. Theory – a hypothesis with at least one non-trivial validating datum;
      4. Law – a theory that has received validation in all possible ramifications, and to known levels of accuracy;

    One scientist, an author on the subject of science, science education, and former two-time chief scientist at Hughes Aircraft Company, has offered the following addenda to the hierarchy above.

    • Rational argument must be the zeroth axiom.
    • Observable evidence must be reduced to measurements—that is, to comparison against a standard.
    • Scientific facts, the foundation of all model building and testing, are measurements with an established accuracy.
    • Science is a branch of knowledge, the objective branch, and ultimately public.
    • The application of science to public policy with unvalidated models is unethical. FN1

    What Science Isn’t

    With this as the foundation upon which we build, it’s evident that the IFL #Science! Crew traffics in something more akin to a religion – scientism, but certainly not science. For example, nowhere in our schema above for science does the word ‘consensus’ appear. For some of us of a certain age, the word ‘consensus’ was never taught in conjunction with science; the word was never spoken in a science classroom. This is  because consensus is not a part of the scientific method and its adoption into #science has a direct correlation to the cheapening of real science. Science cares nothing for votes or popularity; either a model delivers predictions that can be tested and measured, that is validated or not, or it is either (1) an incorrect model, or (2)  isn’t science at all. This is where the popularity of certain ideas, mingled with the need for funding for continued research, can lead to bad outcomes. This is at its worst when popularity includes the government concretization of  ideas. FN2

    In truth, the new #science is the politicization of science, and it is, unfortunately, nothing new. The Lysenkoism of the 1930’s charts its rise quite nicely with the fall to our current state of scientific illiteracy and innumeracy. Science in service to the state is another of the defining characteristics of statist systems of government, such as socialism, communism, fascism, and even corporatism, of which we have more than our share. AGW is simply the newest version of Trofim Lysenko’s politicized science that seeks its answers not in universal truths, but in power and control, in popularity, populism, and the censorship of competing ideas, all of which undermines the very foundations upon which science is built. Science proceeds on the refinement of models, as Einstein slightly narrowed the domain of Newton’s Laws of Motion to more accurately model what happens when the v = velocity in Newton’s equations approaches c, the speed of light. It is easy to forget that was a refinement that was four-hundred years in the making. Or to cast it in a slightly different light, five years before the Puritans started the Salem Witch trials of alleged witches, Isaac Newton published the Principia. Newton’s models withstood four-hundred years of human progress in science and even then, Einstein only narrowed them for a few special classes of objects traveling at light speed.

    Einstein left us with numerous other models, some of which bear his name, on the basis of the profundity of his contributions. The same is true for Otto Warburg: the Warburg effect is what occurs when you drink a radioactive sugar and then have a PET Scan that “lights up” the cancerous tumor cells, as those cells preferentially uptake the glucose over surrounding healthy, non-cancerous cells. FN 3.  It’s why Glenn T. Seaborg had an element of the periodic table named after him, (Seaborgium, Sg – 106), while he was still alive. Seaborg and Edwin McMillan discovered Plutonium and both won the Nobel Prize in Physics in 1951.  That line of transuranium elements on the bottom of the periodic table – the actinide series? Seaborg, as well.

    Industrial Science

    In the late 1960’s, a gentleman named Jeff finished his PhD in Engineering from UCLA. Like many of his fellow graduates,  given their interests and multiple degrees in electronics, applied mathematics, applied physics, and communication and information theory, employment was plentiful in the corridor north of Los Angeles that contained the heart of the United States’ burgeoning aerospace/defense industry, chief among them Hughes Aircraft Company. Jeff’s family had a legacy at Hughes and it was no accident that he would spend half of his three decades at Hughes as the Division Chief Scientist for both the Missile Development and Microelectronics Systems Divisions.

    Among the projects to which Jeff contributed significantly was the AWG (pronounced in military slang like it rhymes with dog) Nine (AN/AWG-9) radar. That caught my attention when I learned about it from his son. I was an attack helicopter pilot in the 1990’s, but I grew up keenly interested in American military aviation of the 1980’s. The AWG-9 radar, and the plane that ultimately carried the famous missile guided by it, would be featured in “Top Gun.” The F-14 Tomcat ultimately was what arrived at the end of a long acquisition process to find a fighter-intercepter capable of taking advantage of the standoff distance of both the radar and the vaunted Phoenix missile. While the Iranians claimed to have splashed over 60 Iraqi MiGs with the Phoenix and the AWG-9, the only three ever (admitted to being) fired by U.S. fighters missed their targets.

    Regardless of its record, the chief deterrent effect of it lay in its effect on pilots on the other side of the Cold War. Almost all fixed-wing aircraft, and even some rotary-wing, have devices much like the ones you use in your car to detect police radar. The detectors work in specified frequency bands and detect the radiated electromagnetic energy that is being sent at your car by the cop’s radar gym. In return you get a tone, or a spike, on your detector. The ones in planes are using fundamentally the same principles, but the receivers will give returns for slightly more sophisticated radars, including a strobe for direction and strength of signal, up and including targeting radars, like the kind on missile seeker heads and their radars. These produce the “tone” that is now ubiquitous in modern aviation movies.

    The old adage in dog-fighting is that ‘first in sight wins the fight.’ This is because in dog-fighting, the person in the higher energy state – typically the person at higher altitude – all other things being equal, can translate that extra potential energy into kinetic energy at some decisive point in the fight, usually as airspeed, sufficient to shoot down the opponent. For Soviet-bloc fighters going up against the Tomcat, its radar, and the accompanying Phoenix (AIM-54) missile, it meant getting a tone in our headset and a “lock” signal while you were still flying blind, unable to “see” anything, because that’s what happens when someone else’s radar can “outreach” yours. Hence, regardless of the U.S. record with the Phoenix missile, the AWG-9 likely helped keep the Cold War cold and gave the U.S. air superiority because it could see farther than anything the Russians had.

    The AWG-9 and the accompanying technology for the missile seeker head, the ability for the missile to track multiple targets, to travel at supersonic speeds, and to be able to shunt fuel in turns at 5-6 times the force of gravity, is all Science at an extraordinary level, where getting it wrong means lives lost. Notice also that all of that work was classified top secret or better and therefore not subject to “peer review” or “publication” in a science-y journal; yet the mathematics behind radar is at a level that very few people can understand. Radar is, fundamentally, the ability to distinguish signal from noise among a radar return from, say, 75 nautical miles away… that is a math problem of a very, very high order. And none of that even begins to address the ability of the radar to acquire, track, and target multiple aircraft traveling at high velocities in different directions all intent on doing harm to the person sitting in front of that radar.

    I want to finish this first chapter on Science with a reminder of Science’s truth-seeking function. I also note here that Science is in this aspiration no different than the Law, or Literature, or, more broadly, all of good Art. Good comedy is funny because of how well it presents the Truth – or apparent Truths – typically in an odd or unusual light. Shakespeare’s Romeo and Juliet was written in the context of 17th century Elizabethan drama, yet it has been remade time and time again, into the Sharks v. the Jets and many other variants. This isn’t because it’s false. Indeed, even Religion would be well included in this list of truth-seeking human endeavors and it serves (perhaps) as a reminder why the IFL #Science crew is so much closer to being a religion than they are to being scientists.

    In the next installment, I will make good on proving the two propositions I began with and trace the history of the degradation of science, from Karl Popper and his colleagues to David Stove to Daubert v. Merrell Dow Pharmaceuticals. Yes, we finally get after the lawyers next time.

    FN 1:    Conjecture, Hypothesis, Theory, Law: The Basis of Rational Argument, by Dr. Jeff Glassman, Ph.D., CrossFit Journal #64, Dec. 1, 2007.

    FN 2: I’ll explore a number of those specific instances in future articles, in order to show how wrong science can go in model-building, but how much worse it is when government becomes involved in choosing which is the “correct” model. This is true  from nutrition guidelines to cancer research, from fitness to hydration, and many more. It’s almost as if the government is completely ignorant of the ‘procedural’ nature of genuine science. For the more cynical, it may be assumed that this is no accident at all, and instead a feature of politicians intentionally picking whatever theory works best for their political purposes, the truth-seeking function of science be damned.

    FN 3: Warburg’s contributions to what might be called biochemistry now, but had no such name during his life, rival Einstein’s in physics. Warburg received the Nobel prize in 1928 for his articulation of the aerobic and anaerobic processes of cellular respiration.

    FN 4: I am aware that various publications list the AWG-9 anywhere from 50-100nm depending upon what one reads and at what classification and when it was published. Suffice it to say that the AWG-9 outdistanced (and thus out-scienced) anything the Russians had during that timeframe.

  • A Case Against Public Education

    I have zero guilt about pointing out how awful compulsory public education is. Now, when I say awful, I don’t just mean bad like everyone else who’s lamenting the woes of publicly funded education in the aftermath of U.S. test scores being released; I mean it as a matter of morals. Forced state education isn’t just another item in a mind-numbingly long list of overfunded, underdelivering government institutions that swallow vast sums of taxpayer dollars while completely ignoring its original charter… like Congress or the Supreme Court, for example. No, compulsory public education is worse because it is an indoctrination center for our children’s minds, an obedience machine, that feeds and fuels the rest of the items on the above list of bad government, irrespective of whether it’s my list, or your list, or your neighbor’s list.

    If anyone truly wants to fix what’s ailing America and make it a livable bastion of freedom into the future, it won’t matter what other arguments you make in the public square or what legislation We, the People, get our bought-and-paid-for politicians to finally push through to tinker with some other broken institution. None of that will matter one whit; it will be only a temporary band-aid on the sucking chest wound of the body politic until we destroy compulsory public education.

    I know what you’re thinking: Don’t sugarcoat it, Dale; tell us what you really think.

    I love learning; always have. I consider myself a perpetual student and tell friends and loved ones that the day I stop learning will be the day you all are kicking dirt over me. But that love of learning is exactly why I hate public education as it currently is constituted. When I graduated from Boston University in 1991, I told everyone I knew: “I swear to God I will never go to school again. I’m done.” Sixteen years of the U.S. education system had ruined my love for not just education, but learning itself.

    Paul Lockhart’s brilliant essay-turned-book, “A Mathematician’s Lament,” explains how public education destroyed his favorite subject, mathematics, but it applies with equal force to all subjects. Indeed, one might well observe that Lockhart’s Lament is simply a slight-variant of the Gell-Mann Amnesia effect, in which a person reads the front page of the newspaper, noting to herself how completely wrong it is, only to turn the page and treat every subsequent story with complete credulity, as if they were somehow of a different specie. I don’t want to impute opinions to Lockhart that he doesn’t hold, but his introduction strongly implies that he recognizes public education hasn’t only ruined mathematics.

    A musician wakes from a terrible nightmare. In his dream he finds himself in a society where music education has been made mandatory. “We are helping our students become more competitive in an increasingly sound-filled world.” Educators, school systems, and the state are put in charge of this vital project. Studies are commissioned, committees are formed, and decisions are made – all without the advice or participation of the single working musician or composer.[1]

    Lockhart fleshes out this nightmare in the succeeding pages in satire worthy of Swift, finishing the scene with the devastating postlude: “Meanwhile, on the other side of town, a painter has just awakened from a similar nightmare…”[2] The critique repeats itself for that subject and it doesn’t take a genius to recognize that the same issues raised in the musician’s and painter’s nightmare apply with equal vigor to all subjects.[3]

    I had a great personal experience with the Gell-Mann amnesia effect before I had even heard of the term. Over breakfast one day, I asked an older business associate about a long-form article I had read the day before; it concerned a subject that I knew he had extensive knowledge and experience with.

    “What did you think of that story?” I asked, quoting the source.

    “It was garbage – complete and total shit,” he said over bites of his breakfast burrito. I raised my eyebrows in response.

    “Really?”

    “I only know one subject really well and that author has no idea what he’s talking about.” I made an “Ahhh” face and dug into my breakfast.

    “Let me ask you something,” he went on after a brief pause, “You ever read a newspaper or magazine article about a subject you know really well… like flying helicopters, for example?”

    I thought for a moment.

    “Sure.”

    “Well? Were they ever any good? Did they accurately portray what flying helicopters was like?” I gave it some thought.

    “Nah. Not even close,” I replied. Probably 90% of the stories I’d ever read that were about just being in the military fell into that category, as well.

    “Then why do you assume that it’s only the subject that you know about that’s like that and not anyone else’s…?”

    I sat there with my mouth open for several moments while that sunk in and changed my entire worldview on the press.

    As Fate would have it, when I matriculated from BU with half an English degree and half an Engineering degree (and not in that order), notwithstanding my proclamation that I was done with formal education, I knew I was headed right back into another “education” pipeline as a newly commissioned Second Lieutenant of Marines. Like all new Marine lieutenants, I would spend the next 26 weeks learning how to be a basic infantry platoon commander and Marine officer at the aptly named “Basic School.” The acronym TBS (include “The” at the front) would get all kinds of wonderful student monikers, such as “Ticks, Bugs, and Snakes,” or “Time Between Saturdays,” a fair description of the general Monday thru Friday routine, with Sunday largely devoted to getting uniforms ready and prepping for the upcoming week’s field exercises, live fires, or patrolling, or – worst of all – hours spent sitting in the classroom getting lectured on everything from military administration (Marine Corps-style) to the German war machine’s blitzkrieg campaign to military customs and courtesies to how to write a fitness report, thus earning it my favorite nickname, “Thousands of Boring Slides.” Yet as bad as it was at “The Baby School” – and whatever justified criticisms can be leveled at military training and education – it was a considerable upgrade from what I had endured in the prior sixteen years.

    First, I note that TBS had training, a necessary sanity-check and counterpoint to classroom education. There may be some merit to sitting in a classroom being force-fed hours of lectures, slides, and discussions about any subject, but those benefits are shadows compared to the benefits of hands-on training, particularly when the subjects are closely related.

    As an example, when I went on to flight school, i.e. Naval Aviation Flight Training at NAS Pensacola, Florida, our first six weeks consisted of something called AI, Aviation Indoctrination. The best cultural reference I can call upon is “An Officer and a Gentleman,” except that all of us were already officers and had gone through Officers Candidate School, so we didn’t have Lou Gosset breaking our balls.[4] The altitude chamber and dunkers, swimming tests and obstacle courses, the boxing and academics, and all of that other fun stuff, however, was fairly well-depicted.

    What they don’t show in the movie is the genuine interest our instructors had in wanting the students to learn the material. They viewed and treated us as fellow professionals who might be in the air with them someday, a not-too-ridiculous possibility. Most of our instructors were just there as a temporary duty away from the cockpit after a successful tour as a pilot. So, there is Huge Difference Number One between real education and academe. Universities and even high schools have raised ‘academic freedom’ to a deity-like status; tenure for professors is supposed to inure them from bureaucratic concerns, yet nothing could be further from the truth. Most academics have not even a nodding acquaintance with the practical application of whatever subject they’re teaching, as Lockhart notes – and this is, in my experience, even more prevalent, worse in every way, the higher one goes up the education ladder. Take a look at how many economics or MBA professors have a track record of successful business endeavors. How many are heading back out to ‘the real world’ after just 3 or 4 years of teaching? This also makes a huge difference in the relationship between teacher and student.

    Our course on jet engines wasn’t only tons of pages of reading from a book and hours of lectures – although there were plenty of both of those. We also had two jet engines in our classroom, cutaways that you could rotate, and see the various sections and how they worked together: the intakes, combustion chamber, the stator vanes, compressor, the accessory gear box and where other components attached, the splined shaft that ran the length of the engine, etc. One of the engines was a very close cousin to the one that would be powering our training aircraft, the T-34C Turbo Mentor. Thus, we had not merely dry recitation of theory, but also hands-on experience with a no-kidding jet engine that we would see in a month bolted inside of our aircraft’s engine compartment.

    One can, of course, point to a myriad of other factors that differentiate military training and education from “regular” everyday education of the citizenry, not the least of which is the ‘death’ factor. Military training at its core is about killing other people, who will likely be trying to avoid that fate and also to inflict it upon you; that has a tendency to sharpen the mind in ways little else can. The differences in education needs, however, are not as significant as one would imagine. First, there are many professions that are significantly more dangerous to life and limb on a daily basis than the military – (and no, the police isn’t one of them. Not even close. Firefighting usually doesn’t crack the top 30 either). Tree work almost always ranks among the deadliest professions on the planet. Underwater welding is also no picnic and the margins for error are razor thin, yet none of the aforementioned careers relies upon the model that we as a nation are currently inflicting upon our children to train and educate them for their future. Second, having put four daughters through a variety of education systems, from DoD schools, to very highly rated school systems in Boston suburbs, my takeaway from it was that they truly are about indoctrination, and in some cases, it’s not even subtle. To wit: when the last President was running for his second term, I had three daughters in high school together. ALL of them were mandated to read a sitting President’s autobiography and write a paper about it; the oldest would be eligible to vote in the upcoming election. Worst of all, the youngest wrote a paper critical of the autobiography, and got her worst grade in all of high school because of it. The other two were smart enough to regurgitate what their teachers had already made clear in class – and they were graded accordingly. I read all of the papers

    Training and Education together are wonderful complements, facilitating learning, yet it strikes me now that the only training there ever was in public education took place in the arts: whether it was Music, Language, Art, or Gym class. (I purposely eschew the term ‘physical education’ for ‘gym’ because it is another one of those wonderful, modern malapropisms that is helping systematically destroy the English language). Vocational training has all but disappeared from high school and middle school. I know this because I’m old enough to have been in school when public education shifted from its Prussian roots of identifying who the laborers would be and who was destined for college – and therefore middle management – and schools instead became college-entrance mills, a pipeline for everyone, regardless of aptitude or even desire, to go to almighty college. By the time I was in high school in the mid-80’s, society had almost gotten to the point where we are now – where anyone who didn’t want to go to college was considered somehow a less than. Despite my best efforts, my four daughters cannot help but believe that anyone who does not go to college will shortly become part of the homeless population.

    Ohmygod, you’re not going to college?! What will you do?? How will you even get a job?!

    It is likely not surprising to anyone with a little history, or experience in that part of the world, that the Germans first established the public funding of compulsory education.

    Utilization of the property tax to support public schools is an Anglo-Saxon tradition, in the history of the tax is inseparable from the movement for universal, compulsory, and free education that arose from the Reformation and constituted one of its greatest influences on Western culture. There was a nascent belief among the Protestant peoples, particularly in Germany and England, that universal education was necessary to ensure the welfare of the “state” in a period of rising secular nationalism, to assure that individuals could read and interpret scripture for themselves under the Protestant religious systems, and to ameliorate ecclesiastical and monastic control of education previously exercised by the Catholic Church.[5]

    This experiment and tradition managed to transmit itself across the channel to the English, and also over the Atlantic Ocean to the early New England colonies. The Puritans in the Massachusetts Bay Colony passed the first compulsory education law in 1647. It called for every town of 50 families or more to have a schoolmaster and every town of 100 or more families to have someone who could teach Latin and prepare students for Harvard College, which had been established in 1636. (Just for perspective, consider that two years later the first printing press in the colonies was established at Harvard.)

    The intent of the Act of 1647, called the “Old Deluder Satan Law,” was to ensure that every child could read the bible and knew the central tenets of their Puritan faith. The law got very little traction outside of New England, although the district system it established with local control over the curriculum would eventually come to be the model for the Nation – several hundred years later. It’s also worth noting that 45 years after the law was passed the Salem Witch trials took place in Massachusetts. So much for the merits of education abolishing ignorance!

    But Dale, there’s proof right there that compulsory education has been a part of the Republic since the very beginning!

    True enough – all manner of slavery was extant in the early colonies, but that’s no justification for its continued existence. It’s a naked appeal to tradition as authority. An interesting historical fact often overlooked by scholars to me, however, is that the early colonists established various legal regimes, done so under their authority as British Crown subjects, that continued ‘on the books’ as it were, even after the Declaration of Independence and Constitution had undercut or outlawed the foundational principles upon which these legal regimes rested. (‘Sovereign immunity’ is a good example of this).

    In the case of compulsory education, the colonial law of Massachusetts rested upon notions of authority that emanated from the Crown, as the Divine Head of State, with his/her authority coming directly from God. The most radical notion in the Declaration of Independence was not that a group of subjects rebelled and declared their independence from a monarch – that had been happening for as long as there had been monarchs, both on the Continent and elsewhere – nor was it that “all men are created equal” and imbued with “unalienable rights.” Such notions had justification in the Bible and other significant religious and political movements prior to the Founding Fathers. No, the most radical political notion in the Declaration of Independence was that “Governments… deriv[e] their just powers from the consent of the governed” and furthermore, that ‘the governed’ could “alter or abolish” these forms of governance whenever it suited them to do so.

    Compare that sentiment to the notion in the Old Deluder Satan Act that ‘the State’ could compel the citizenry of every town to (1) appoint someone to educate their children, and (2) pay for it out of their own pockets. And if one still insists that there is no conflict, or that the people of Massachusetts ‘consented’ to such a form of governance, that argument falls apart when run up against the First Amendment’s anti-Establishment clause 140 years later. Early colonial schools were not beacons of secular Enlightenment thinking, teaching scientific ‘truths,’ or other anti-religious curricula – they were explicitly religious indoctrination centers designed to ensure the continuation of the Puritan strain of religious thought.

    Lest this seem like a mere academic argument in political theory, it’s worth noting that John Hathorne, the chief inquisitor during the Salem Witch Trials, was born in 1641. He would have been 6 years old when the aforementioned Law was passed. While I cannot find direct evidence of his attending the schools so established, there is significant circumstantial evidence of his having received an education under that system, given the prominence of his family in Salem and surrounding Essex County, and biographical evidence of his start as a bookkeeper, later land speculator, and then his having served as a significant political and judicial figure in Salem, Mass., and Essex County.

    Oh, c’mon Dale, you’re using an extreme example, a strawman of what modern education really is to justify your hostility to it. You’re not seriously suggesting modern education is equivalent to the Puritan education model.

    “Modern” education certainly didn’t begin with the Puritans, although the vast majority of states that eventually created their own compulsory education did so based upon the original Massachusetts Act of 1647, or upon land grants similar to the “Land Ordinance of 1785” by the federal government that established Ohio into 640 acre parcels, with a set aside for schools. Widespread adoption, however, of compulsory state education had to overcome a number of hurdles, chief among them being the unwillingness of the poor (and most everyone else) to pay the taxes necessary to fund the system. Again, it’s worth remembering that the early colonists were people who resorted to acts of war over a 2 pence tax on their tea, even though it actually lowered the price of British tea in the colonies from what it had been. That tax – the Townsend duty – was a subsidy to prop up the failing British East India Company, an early example of the kind of political cronyism that is rampant and openly accepted today. Back then, however, the colonists went to war with the greatest Land and Naval Force history had ever seen over the principle of “taxation without representation” and the British abuses of what they saw as their God-given rights.

    The other reason that compulsory education was ‘on the books’ but largely ignored (until 1852 when Massachusetts passed the first mandatory state education law) was that most people lived in rural areas. Outside of the few ‘big cities’ of the day, most people lived on a farm where parents were the major source of education, and which consisted principally of the skills necessary for daily living: farming, hunting, and/or whatever trade a person’s father practiced to make ends meet. Finally, there was – and continues to be – the common agreement that education itself is a “good thing.” The average person would be hard-pressed to argue against education, much less to make the distinction between private education and publicly-funded education and to argue the merits of either. Thus, there was no public outcry in 1779 when Thomas Jefferson proposed a “two-track” educational system for “the laboring and the learned.” Indeed, that Prussian model held sway until late in my childhood. Jefferson received no clapback, nor did he get ratioed on Twitter, for observing that the education system for laborers might “rake… a few geniuses from the rubbish.”[6]

    Given these realities, one has to wonder what it took to finally see widespread adoption of the Massachusetts Model: much like every other plank in the platform of Progressivism, it was spurred on by good old-fashioned racism and fear-mongering, of the exact same kind that animated state education in the first place. The attempt by the Puritans to ensure their ‘posterity’ against the Catholic church was adopted by the broader Protestant population of the United States after waves of Irish Catholic immigration in the 1840s. Over a million Irish immigrants came to the United States fleeing the Potato Famine in their homeland. In the decade from 1846 to 1856, roughly 3 million immigrants arrived in the New World. That number represented about 1/8th of the entire U.S. population – and those Catholic immigrants didn’t want their children being taught Protestant theocracy. Private Catholic schools began to pop up in larger numbers via private endowments and other funding mechanisms. The Industrial Revolution also put large numbers of people in cities and factory owners needed compliant workers. It is no coincidence that Horace Mann, considered by many to be the leading figure in the history of compulsory “free” education, when he was appointed head of the Massachusetts State Board of Education in 1837, had offers to supplement his meager state salary from the pocket of industrialist Edmund Dwight, among others.

    The justification used in the 1840’s and thereafter in favor of compulsory education was the ubiquitous “for the children.” Specifically, “assimilation” of immigrant children. The New York streets were beset by gangs of kids who spent much of their free time in mischief and crime. Nor was it a happenstance that the Ku Klux Klan was a vocal supporter of compulsory state education acts into the 1920s that would ensure the “papists” would not change the character of the Nation. Lest this seem like character assassination by lumping in the KKK with education reformers, they were following in a tradition that included people like Thomas

    Jefferson, who was also an ardent supporter of public education for the same reasons:

    Preach, my dear Sir, a crusade against ignorance; establish and improve the law for educating the common people. Let our countrymen know that the people alone can protect us against these evils, and that the tax which will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests and nobles who will rise up among us if we leave the people in ignorance.

    Jefferson wrote the above to George Wythe in 1786, a legal mentor and friend, while Jefferson was in Paris, commenting repeatedly on the problems he saw with the influence of the Catholic Church in education in France.[7] Indeed, Protestant anti-Catholic animus remains a staple in American public discourse, from John F. Kennedy’s run for the presidency in the late 1950’s to Congressional hearings over Supreme Court nominations as recently as last year.

    Okay, Dale. Fine. Regardless of your historical point, you’re not seriously arguing that we should end free public education. Where will kids go during the day? What will happen to poor children who can’t afford education? What will they do all day?

    Some will claim that I’m belittling the best of the arguments for compulsory public education, but the above questions are a fair summation of what I usually get in response to my occasional rants on public education to those who will stand still long enough to listen. It’s also not an unfair summation of all of the arguments offered in favor of compulsory education over the history of our Republic. I want to give them their due, but because there are so many implicit assumptions that underlie these questions, I’ll ask for a little indulgence and “back into” my answer and proposed solutions. In an attempt to give air to these concerns, however, I’ll note that the ‘horrible hypothetical’[8] of gangs of indigent kids running amok on the streets if they’re not in school is not without validity. As I noted above, it was one of the factors that helped make forced primary education in the U.S. a reality in the first place.

    I’ll also add two anecdotes to that sentiment: first, my friends and I grew up on the streets of Providence, Rhode Island. I attended Oliver Hazard Perry Middle School on Hartford Avenue, right across the street from the Hartford Projects, the same school my mother attended when she was a child living in those same housing projects. We – meaning me and my knucklehead friends – were just one of many gangs of (mostly, latchkey) kids roaming the surrounding streets and neighborhoods causing mayhem, much like the guy on the All State commercials, as soon as school let out. Second, a well-traveled business friend of mine once observed that his standard for judging the likely criminality of a society, or even a particular section of it, was by how many young men he would see standing around on corners or walking the streets with nothing to do. Reams of studies bear this out, however uncomfortable that may be for the male of the species.

    Now, before I return to answer this concern and others, let me begin with the most devastating takedown of the public education system of which I’m aware.

    Data. Placed onto graphs.

    The late Andrew Coulson of the CATO Institute did yeoman work on the subject of education and its costs, along with numerous papers and studies over decades of research. It really doesn’t matter how the numbers are graphed, however, what domain or range is used, whether they’re placed on the abscissa or ordinate line, because the underlying data is all the same: the costs of compulsory state education almost always go in one direction – up – and the product that is supposed to result, student test scores, or literacy rates, no matter how they are controlled or measured, always stay flat, or worse yet, go down. It doesn’t matter if it’s per pupil spending, or by percentage from a zero line (such as the start of the Department of Education), total dollars spent (hundreds of billions), if it’s fixed to 2009 inflation dollars, or 2013, or 1975, on and on and on. The data only shows one thing: no matter how much this country spends on education, the results show little to no impact.

    None of this data tells the complete story, either.

    Consider that the DoE isn’t judged by some independent body, like the American National Standards Institute, for example, or audited by an outside agency. In fact, the DoE actually gets to determine what the standards are by which it will be judged, what the curriculum will be, and it administers the tests through its agents (the public school system and administrators). Notwithstanding all of this, it still fails. It’s like a student being able to write the questions for his own test and then complaining its unfair when he can’t answer his own questions. Only in the government, however, could one fail so miserably after spending tens of billions of dollars, and then with an absolutely straight face, look into a camera and say, “We need more money.”

    It’s not enough to show that test scores and literacy rates haven’t improved, though. Nor to show the depressing amount of money spent with flat achievement lines. That’s just the tip of the iceberg. The real tragedy is that none of the benefits that the most ardent compulsory education advocates told us would undoubtedly occur did; and none of the ills that they claimed would be solved were.

    For a diverse nation, we share a remarkable consensus with respect to educating children. As reflected in polls and focus groups, Americans are nearly unanimous in their commitment to certain fundamental ideals: that all children have access to a quality education regardless of family income; that they be prepared for happy and productive lives; that they be taught the rights and duties of citizenship; and that the schools help to foster strong and cohesive communities. These are the ideals of public education.

    One hundred and fifty years ago, a band of dedicated reformers declared that progress toward those ideals was too slow and proposed that a new institution be created to more effectively promote them. Led by Bostonian Horace Mann, the reformers campaigned for a greater state role in education. They argued that a universal, centrally planned system of tax-funded schools would be superior in every respect to the seemingly disorganized market of independent schools that existed at the time. Shifting the reins of educational power from private to public hands would, they promised, yield better teaching methods and materials, greater efficiency, superior service to the poor, and a stronger, more cohesive nation. Mann even ventured the prediction that if public schooling were widely adopted and given enough time to work, “nine-tenths of the crimes in the penal code would become obsolete,” and “the long catalogue of human ills would be abridged.”[9]

    I can only imagine that the ghost of Horace Mann is spinning his grave like a cornish game hen on a spit powered by a gas-turbine engine. Let’s forget Mann’s hyperbole and limit ourselves to the ideals in the first paragraph and answering the questions I asked above, which are touched upon in Coulson’s first paragraph:

    Have public schools eliminated gangs? No, they’ve simply extended their reach from the streets into the schools in the same neighborhoods.

    Have they prevented crime? Not even close. It’s why we now have cops (er, SRO’s) patrolling inner city schools, metal detectors at the entrances, and turf fights by drug dealers in the hallways.

    Have public schools produced an educated citizenry capable of understanding complex issues in a pluralistic society? It is hard to even write the question without wanting to stop and laugh.

    In other words, none of the “horrible hypotheticals” that helped justify compulsory state education have been eliminated. Conversely, none of the supposed benefits of the ideals of compulsory education have been achieved… And we’ve managed to flush several nations worth of GDP down the toilet in the process.

    None of this even begins to address school shootings, the outsized influence of teacher’s unions, the continuous degradation of curricula, the college-loan debt fiasco that is a direct consequence of the “everyone must go to college” mantra, the millions of unfilled jobs in the skilled trades, and a list of horribles that are in no way hypothetical, but entirely real and ongoing. NOW add in the taxpayer dollars that have been poured into this bottomless money pit, and an honest person can reach only one conclusion: the entire experiment has been a complete and total failure and one that was entirely predictable. Blow it up.

    This failure is just another example of what Friedrich Hayek and other economists of the Austrian and Chicago schools would have called the failure of central planning. The idea that a school guidance counselor, or any government official, knows whether or not your 12 year-old son or daughter should go to college for some particular future career a decade hence imputes a level of sagacity and foresight to that person approaching Godlike omniscience. It is just one among many laughable assumptions at the heart of the entire compulsory education system. It presupposes that social engineers in government are qualified to make qualitative value judgments about your child’s future career from their limited interactions with that child – and several hundred others, too. Worst of all, you – the parent – are a mere witness to all of it, lashed to that ship, in fact, pressured by our entire brainwashed society into accepting its false premises.

    I recently learned a new word: introjection. It’s when you unconsciously adopt the ideas of others. I was reading a wonderful book by Anthony De Mello called “Awareness” and he suggests that a good test to tell if you’re brainwashed is by your emotional reaction to someone attacking an idea that isn’t your own. If you defend it reflexively, that’s a pretty good sign that you’ve been brainwashed.

    Now ask yourself this: do the things I say about public education offend you? Do you find yourself reacting emotionally, defending the system of which you were a part? Did you think up the idea of public education yourself? Now ask yourself if public education is really as necessary as you think it is.

    Even if one argues that it was a necessary service in the 1700s, or 1800s, or even 1900s because of a lack of access to information, scarcity of the written word, or any other factor, does any of that hold true today? Even the most unfortunate children in the country have access to all of the world’s information on a public library computer, or, much more commonly, in the palm of their hand.

    The solution to this problem – and many others – will require the abolition of state schools and a completely free market in education, but teacher’s unions and their grip on the political class – or should I say the grip their donations have on the political class – will never allow that to happen, so it begins with school choice, an incremental approach that will return education decisions and tax money to parents. Will it solve the problem for poor people? Not initially, but as has already been demonstrated, neither has the public school system. It’s not a satisfactory answer, really, and I understand that, but what we’re doing isn’t just “not working,” it is a blight on the country and a national embarrassment.

    Consider this, though: if I had told you in 1985 that people living in housing projects would have cell phones comparable to the richest among us, tools that would be able to do everything that Captain Kirk’s communicator could (except vaporize bad guys) and shoot professional quality video and photographs – it would have been laughably absurd. Yet here we are living in that reality through the miracle of (relatively) free markets. It is long past overdue for this Nation to give markets a chance to deliver on the ideals of education that the State and its staunchest advocates and defenders have promised for several centuries and spectacularly failed to do.

    Q.E.D.

    [1] Paul Lockhart, A Mathematician’s Lament, p.15

    [2] Ibid., p.18

    [3] This includes science. Most notable among compulsory state education failures is what has been done to degrade science and turn it into politics: “consensus” – where we ‘science’ by vote. Because the subject itself is so vast, ranging from the replication crisis to Karl Popper (and the Irrationalists) to Daubert v. Merrell Dow Pharmaceuticals, I request a bit of indulgence and leave it in favor of its own separate post, so that this piece does not bog down and detract from the larger, broader point about education.

    [4] The movie depicts AOCS candidates, whom we would occasionally see during our training. They kept us segregated largely, I believe, so we didn’t ruin those kids with kindness. After all, just a few years ago that had been us during our last college summer, enduring the roasting humidity of Quantico, Virginia, at Marine Officer’s Candidate School. We had a lot of empathy for them – and we hadn’t been simultaneously trying to learn to fly a plane!

    [5] Walker, Billy D. “The Local Property Tax for Public Schools: Some Historical Perspectives.” Journal of Education Finance 9, no. 3 (1984): 265-88. http://www.jstor.org/stable/40703424.

    [6] From: Notes On Virginia. viii, 388. Ford Ed., iii, 251. (1782.), as quoted in The Jefferson Cyclopedia, a comprehensive collection of the views of Thomas Jefferson, Ed. John P. Foley, Funk and Wagnalls Company, New York, 1900, page 275.

    [7] “From Thomas Jefferson to George Wythe, 13 August 1786,” Founders Online, National Archives, accessed April 30, 2019

    [8] Hat tip to my 1L Civil Procedure professor Mel Zarr, who first coined that phrase – and occasionally used it as a bludgeon against students. As in: “Ah. The old horrible hypo; without the position you’re advocating, the Republic will crumble.”

    [9] Andrew J. Coulson, “Are Public Schools Hazardus to Public Education?” Education Week, April 7 1999, Vol. 18, No. 30