Category: Liberty

  • Chapter 8: “It’s Against the Law!!”

    I didn’t even knock on Justin’s door, I busted in like Kreamer on a Seinfeld episode.  Justin had a client sitting in front of his desk.

    “Sir–” Justin began as a young lance corporal turned around to see who had just come in.

    “Oh, shit. Sorry. When you’re done, could you come by my office?”  I asked.

    “Yes, sir, we’re almost done.” Justin continued to call me “sir” for appearances, but we had already tried a case or two as co-counsel, he was due to pin on Captain soon, and we spent a lot of time off-duty, playing rugby and roller hockey, along with the fact that as a single guy there wasn’t a whole lot for him to do off-base in Okinawa. My kids loved him, while he and my wife had an ongoing North-South argument that made the Civil War appear just that. I went back to my office to wait.

    “What’s goin’ on?” he asked curiously, when he came by a few minutes later. He could see the smile on my face.

    “Dude, I got this in the mail.” I held up a stack of documents, about four hundred pages total, bound together.

    “Is that the stuff from Bates’s attorney, what was his name?” Justin asked.

    “Yes, Bruce Smith and a guy named Lou Michels, who’s a partner in McGuire, Battle, and Woods, by the way.” McGuire, Battle and Woods was a fairly well-known law firm outside of Washington, D.C. in Virginia, not far from where Justin went to high school. He raised his eyebrows.

    “Well, what’s in there?” he asked.

    “Listen to this carefully – there is a federal statute, ten u.s. code section one-one-zero-seven, that says the DoD cannot give a service member an investigational new drug or a drug unapproved for its applied use without the service member’s informed consent.”

    “Okay . . .”  Justin waited for the punch line.

    “Here, my good man,” I brandished a thick sheaf of papers, “I hold in my hand, the investigational new drug application from the company that makes the anthrax vaccine.” Justin’s eyes opened wide. “And,” I went on, “here is the cover page for the IND application, in which the DoD asks to join the application and even asks the FDA to hurry up and approve it so they can start testing!”

    “No way! Come on.” I handed him the application, which contained the entire clinical protocol.

    “And, better yet, the application specifically asks for a change to get the anthrax vaccine licensed for an aerosolized exposure.” Justin looked at me quizzically. “You know how all of those AFARTS radio commercials have been saying that the vaccine has been licensed for thirty years; that it’s been licensed against anthrax?”

    “Oh, you mean the ‘education program’ – the DoD brainwashing campaign? Yes, I’ve been taking copious notes since there’s only one English speaking radio station on the island and the Armed forces owns it.” Justin’s voiced dripped with sarcasm. I laughed. I was sick of hearing about the mandatory anthrax education video, too.

    “Well,” I ploughed on, “you can get anthrax three ways: you can get it through your skin, you can get it intestinally by eating some infected food, or you can inhale the spores – and that’s how it would be delivered in combat, in an aerosolized form –”

    “— from an artillery round,” Justin jumped in.

    “. . . or a sprayer from a crop duster, or bomb of some kind.” I finished. “The company that manufactures it and the DoD specifically asked the FDA for a modification of the existing license in order to get it approved for that use.”

    “What does that mean, though? Was it approved or just ignored?” Justin was still suspicious.

    “Neither, it was acted upon, and here’s the ace in the hole, the President of the company testified before Congress like six months ago that ‘we still continue to hold an IND for the anthrax vaccine.’ Dude, it’s an IND, hence you can’t give it without informed consent, hence the program currently violates federal law. Quod Erat Demonstratum, Homes.”

    Justin looked at me.

    “I follow everything except the Latin.”

    “Oh, sorry, dude. Q.E.D. It’s what you put at the bottom of a geometry proof when you solve it. It means like ‘what was to be shown, was’ or something like that.  You didn’t have to do that in high school?” Justin looked at me and shook his head.

    “Proofs, yes. Trivial Latin phrases, no. We had to learn to speak English first,” he deadpanned.

    “Backwards Virginia school systems.”

    “Yeah, right.” He sat down.

    “I can’t believe this,” he went on, thumbing through some papers. “I mean, how the hell did somebody not find this before? Don’t get me wrong, Dale. I think you’re a good attorney, and I know I’m great, but these aren’t the first anthrax refusal cases. How come it hasn’t come up before?” I had asked myself this same question and done some research.

    “I think a couple of reasons. First, the law only changed in late 1998 and some of the first cases were at 29 Palms. Second, would you have ever thought to look for a federal statute regarding investigational drugs in order to show the order wasn’t lawful?”

    “Hmmmm. Yeah, good point. But how come no one in the SecDef’s office picked up on this? He must have a host of lawyers working for him.”

    “Same answer, man. The anthrax program was launched in late 1997 and early 1998, but the law didn’t change until late 1998. So, in the Secretary of Defense’s defense, that law wasn’t out yet. However, the law actually reached back and so it doesn’t grandfather anything. In other words, if the SecDef wants to give troops an IND or a drug unapproved for its applied use, then he has to get a waiver from no one less than the President himself.” I sat back in my chair. I couldn’t have been prouder, although in truth I had done very little of the grunt work. My client, David Ponder, had actually hounded me to contact Mr. Bruce Smith, who had in turn put me in touch with Mr. Lou Michels, a LtCol in the Air Force Reserves and partner at McGuire, Battle and Woods, who sent me a very nice packet of information. By miraculous coincidence, David Ponder was from the same part of Kentucky as Major Sonnie Bates and had followed Major Bates’ case in the press pretty closely, as had his wife Jennifer. Eventually, David’s wife got in touch with Major Bates’ wife, Roxanne, who then connected David with some information and now here I was.

    “There’s one other possibility, ya know,” Justin murmured. I sat forward. He looked up. “They knew about the law and just fucking ignored it.” I hadn’t thought of that and refused to consider it; it sounded ominous the way he said it. He went back to reading.

    “This is unbelievable,” he said it out loud, but he was talking to himself as he read. I was thinking the same thing. The anthrax program, on its face, violated a federal statute.

    Normally, in an orders violation case, the government enjoys a strong presumption that an order is lawful. Usually, all the government has to do is ask the judge to find as a matter of law that an order was lawful and then, once the judge rules in the government’s favor, the prosecutor only has to show that the order was transmitted to the accused and the accused refused to obey it. The defense has a pretty high burden to overcome the presumption of lawfulness… but there I sat with the smoking gun.

    The DoD’s own signature on an IND application to amend the existing anthrax license in order to get an indication against aerosolized anthrax, the exact use to which the government was putting the vaccine. I sat there smiling, luxuriating in the feeling. I could tell Justin was, too.

    “You know what?” he began, smiling.

    “What?” I was smiling back, almost laughing.

    “I cannot wait to tell this to Jay tonight at the O club.” I bust out laughing. Jay Town was another of our classmates from Naval Justice School. He and Justin were close friends, had attended The Basic School together, a six month infantry school for all Marine officers, and lived near each other in the Bachelor’s Officers Quarters (BOQ).  Unfortunately, however, depending upon one’s view, Jay was assigned as the Deputy Staff Judge Advocate for 1st Marine Aircraft Wing. He was the assistant to the General’s lawyer. In our parlance as defense attorneys, he was a government “hack” and we taunted him endlessly about it. With a few beers in us all, the Officer’s Club on Kadena Air Force Base should supply some laughs that night. He was constantly needling us about our job defending “criminals.”

    “Do you think he’ll feel obligated as a government weenie to tell someone about this?” I asked, considering whether we should share it. Our anthrax cases had nothing to do with 1st MAW, so Jay was a spectator on this case. Jay was also a good friend, but then again….

    “No, he won’t care.” I nodded agreement. “But that won’t stop me from harassing him as the government representative,” Justin said, laughing.

                                                                                                                                                               

    “In short, sir, that means that if the defense can show that the anthrax vaccine is an investigational new drug, then the order violates the express terms of . . . 10 U.S.C. §1107. The statute creates rights, namely the right to informed consent before any service member accepts an investigational new drug.”

    June 27, 2000.

    It was almost three months after our first session of court in April. We had a discovery hearing on 9 June that accomplished nothing, just jousting. I could probably get my hands on anything I needed. Bruce Smith, Lou Michels, and some of their cohorts, were quick to answer any email and seemed to have an incredible list of contacts. If, for example, I had a question about FDA licensing procedures, ten minutes later an affidavit from a former high-ranking FDA official, now retired, appeared on my fax machine.

    “So,” I continued, “it’s the defense’s contention that under Supreme Court case law, under FDA regulations, and under any of the other applicable standards that have been set forth as to what is an investigational new drug, the defense will put on evidence to show that the anthrax vaccine is an investigational new drug.” Okinawa in late June was tropical, so it was hot in the courtroom. I looked over to see Petty Officer Ponder with a sheen of sweat on his forehead, but it might just as well be from nerves. I could feel my white tee-shirt sticking to me under my “Charlie”, service “C”, uniform. The air conditioner was on, which made a noise like a 707 engine being turned up. I had to speak loudly.

    “Therefore, if it is an investigational new drug and service members are being forced to take it against their will, that violates statutory rights that have been conferred by the Executive Order and the statute, 10 U.S.C. §1107.” I felt like I was starting to hit my stride. “And I would note, sir, that in the Manual for Courts-Martial . . . on page IV-20, at the top of the page, the first full paragraph – it says, ‘Relationship to Statutory or Constitutional Rights. The order must not conflict with the statutory or Constitutional rights of the person receiving the order.’” I had set it out as clearly as I could and the judge appeared genuinely interested, or he was doing a good job of faking it.

    I sat down and wrote some notes and we debated some discovery issues and eventually the government called the Group surgeon to put some evidence in the record about the threat of anthrax and the general nature of the anthrax program. During the doctor’s direct testimony, I made some notes, but I couldn’t have cared less about what he was going to say. While the judge was going to allow me to cross-examine the doctor, a Navy Commander, it would be for giggles mostly. He had very limited information on the program. Our case would rise and fall on 10 U.S.C. §1107, not on my cross-examination of a Navy doctor.

    Back in my office, I put my air conditioner on full and tried to pull the sticky tee-shirt away from my body. David Ponder and Justin were in the room. I turned to newly pinned Captain Constantine.

    “Well, how did it come off? Do you think the judge got it?” I was asking for reassurance more than critique. It was lonely in defense and it wasn’t often that someone came and watched a case to offer support.

    “I was actually looking for pointers on how to present the arguments for Arroyo’s case. I thought it went pretty well.” Justin represented PFC Vittolino Arroyo, one of three Marines who had all refused the shot together. Justin and I represented LCpl Jason Stonewall together.

    “Sir, I thought you did great.” David Ponder sounded genuinely impressed, with his southern drawl. He was as sincere a person as I had ever met. It was the first time a client had used such words; most clients I had acquitted were less effusive than David was being.

    “I just hope he gets it,” I mumbled to myself as much as anyone else. On some visceral level, it was crucial for me to convince the judge. I had crossed over the line at some point from mere advocacy to personal entreaty. I believed in 10 U.S.C. §1107 as fervently as my young daughters believed in Santa Claus, probably more so.

    I went to the window and opened it. There was a slight breeze stirring the hot, sticky, Okinawan air, a few scattered clouds in an otherwise blue sky. I heard a familiar slapping and thudding sound and looked to the right, over the trees toward Marine Corps Air Station Futenma, perhaps a mile straight line distance from where I was on Camp Foster. A Cobra helicopter was in a climbing left hand turn, the thirty-two inch thick blades beating the air as the pilot climbed to what must be the autorotation pattern altitude of one-thousand feet. Those blades were truly awesome in their power, the tips turning at just under the speed of sound, each blade weighing 385 pounds. I had once seen what they could do to another aircraft and the human body up close. In 1996, I had served on an aircraft mishap board for a mid-air collision between a Cobra and a CH-46 Sea Knight, or “Phrog”, as it was affectionately known. During that board I had learned that I was selected for the Funded Law Education Program. Sifting through the wreckage, and then having to return home at the end of the day, living a block from the wife and children of one of the dead pilots, had made my decision to either accept or turn down the program a lot easier.

    “Beautiful day for flyin’,” I said to no one in particular.

    “What’s that, sir?” Ponder asked. I turned around and brought my thoughts back to the present.

    “Nothing. Hey, don’t worry too much about the judge denying our discovery. We’re just playing footsy at this point. I can get my hands on everything through “alternative means,” but I was hoping to have the government produce the documents to eliminate any concerns about their authenticity. Even the judge denying our expert, Doctor Nass, isn’t a killer. Remember that biology professor I told you about?”

    “Yes, sir. Mr. Cohen, is that his name?”

    “Yeah. He said he will testify if we can’t get our expert here and he may not have the specific knowledge that Dr. Nass does, but he’s got a PhD in microbiology and he thinks the program is shitty. So, that gets him there in my book.” Justin laughed.

    “What are our chances, sir?” Nobody laughed at David’s question. I had thought about this a lot. I had four acquittals, three of them came in bench trials in front of the same judge now hearing the anthrax cases. Some of the prosecutors had needled me that Judge Stone was partial to me. In reality, the cases had not only been shitty for the government, but I believed, no – knew, they had come out the right way.

    “I don’t know, BT3. I mean, there is a federal law that says pretty clearly that you can’t be ordered to take the shot without your informed consent. All we have to show is that the vaccine is investigational and we’ve got the friggin’ application. That would seem to sufficiently rebut the presumption of lawfulness, but the judge was saying some weird things in chambers in Stonewall’s case. I just hope he gives us our chance to put this on in front of a jury. We sure have a lot of evidence.” I nodded toward the box in the corner of my office that was filled with Government Accounting Office reports, briefs, binders, transcripts of other cases, an Inspector General’s report on the contractual relationship between the DoD and the manufacturer, and a number of Congressional committee transcripts and reports. And that didn’t include the stuff I had at home and on my computer, not yet printed.

    “Looks like you’re earnin’ what I’m payin’ you, sir,” Ponder cracked. I laughed.  Justin moaned. He was always talking about ‘getting out’ and finally getting paid like a ‘real lawyer’ for the work he did.

    “Hopefully you’ll still be saying that if the judge loses his mind and things don’t go so well.” I was only half-joking.

  • Chapter 7 – Congress Acts: 10 U.S.C. §1107

    More can and must be done, however, to rebuild trust, to avoid repeating past mistakes, and to prevent future health consequences similar to those experienced during and after the Gulf War. Our troops must be assured that when we send them into battle, they will be protected by the best military technology, the best leaders, and the best medicine. Protection also means proper education and training, as well as provision of critical information, including information about investigational new drugs that may be administered to our troops for their protection against chemical and biological threats.[i]

    At the end of multiple hearings on Gulf War Syndrome and many inquiries into the DoD’s use of experimental and investigational drugs during the Gulf war, in 1997 Congress (finally) decided that enough was enough. Representative Patrick Kennedy (D, RI), introduced a bill on the floor of Congress to provide some small measure of protection for service members. In its original form, the bill imposed three requirements on the DoD: either prior to, or within 30 days of, administering an investigational new drug, the DoD would have to inform military members that

    1. The drug being administered is investigational;
    2. The reasons why the drug is being administered;
    3. The potential side effects of the drug, including side effects resulting from interactions of the drug with other drugs or treatments being administered to the individual.

    Representative Kennedy’s remarks made clear that the bill was the direct result of inquiries into the Gulf War and what he perceived as a DoD cover-up of possible chemical exposures of U.S. troops. He noted that the trust between soldiers and the government

    “has been called into question. One need merely read newspaper articles surrounding the Persian Gulf war to see what I mean. On February 28, the New York Times ran an article entitled: ‘Pentagon Reveals It Lost Most Logs on Chemical Arms;’ ‘Missing From Two Sites: Gulf War Veterans Now Raise Questions of Cover-Up or Criminal Incompetence.’”[ii]

    Mr. Kennedy went on to cite another article that revealed that the Army had been warned by the CIA five years prior (to the article) about the possible exposure of troops to chemical agents and that the DoD had claimed that it only became aware of the exposures the prior year. Additionally, Kennedy referenced the DoD and FDA negotiations that took place prior to the Gulf War regarding a waiver of informed consent detailed in the previous chapter. He criticized the DoD for failing to comply with the conditions the FDA had set forth in order to grant the waiver of informed consent that the DoD legally needed and had negotiated in order to use both pyridostigmine bromide and botulinum toxoid on troops. Oddly enough, however, Kennedy then seemed to concede that the DoD could now use investigational drugs without informed consent because “[u]nfortunately, for our troops, the threat of chemical and biological weapons have become an increasing reality[.]” Mr. Kennedy seemed to believe that, at the least, “the men and women who served in the Gulf War had a right to know that the vaccines administered to them were investigational” and that “[t]he same service members had a right to know about the side effects of the investigational drugs.”[iii] As an author’s note, I feel compelled to add that Representative Kennedy did swear an oath to “defend the Constitution of the United States of America against all enemies foreign and domestic” and “to bear true faith and allegiance to the same.” Which can only mean that either (a) Kennedy believed that it is perfectly fine for the U.S. government to experiment on its troops, or (b) he doesn’t know very much about the Constitution. (‘Both’ is also an acceptable and likely answer).

    To his credit, however, Kennedy did introduce the bill in order “to ensure that in the future our troops are informed of investigational drugs, and to help ensure that our service members can and will trust their government.”[iv] The legislation received some discussion on the floors of both the Senate and the House, always with reference to the Congressional investigations surrounding Gulf War Illness and the mistakes made with pyridostigmine bromide.[v] Finally, as part of the National Defense Authorization Act for fiscal year 1998 (from October 1997 to October 1998), Mr. Kennedy’s proposed bill became 10 U.S.C. §1107. In something that couldn’t be made up, within a year of this bill being approved and becoming law, Secretary of Defense William Cohen announced that he would begin the inoculation of all U.S. military personnel with the anthrax vaccine.

    As this vaccination program was kicking off, the Senate Armed Services committee was already calling high-ranking DoD officials to explain how the program was going to work in light of the Persian Gulf experience and even the then recent deployment of troops to Bosnia. In fact, members of the committee pointed to the Presidential Advisory Committee’s review of the DoD’s efforts in Bosnia and pointed out that they were deemed “an abysmal failure.”[vi] This committee even addressed the issue of how the DoD proposed to handle the administration of clinical protocols in accordance with FDA regulations. It is important to note that here the DoD was acknowledging that it had to comply with clinical protocol requirements of the FDA if it administered a drug in such a way as to render it an investigational new drug. An FDA official opined that “we [the FDA] believe that they [DoD officials] understand… [the need to comply with IND procedures]. We believe that they have the capability of complying with all of our IND rules and regulations.  As to whether they will comply in the next deployment situation, obviously we can’t predict that.”[vii]

    The Acting Secretary of Defense for Health affairs, Gary Christopherson, tried to assuage the concerns of committee members by admitting that the Bosnia experience[1] was a “situation where we believed we ought to be able to do an IND and do it well, it still did not come off 100 percent. It did not meet their standards. It did not meet our standards in there.”[viii] He went on to add that the DoD and the FDA were engaged in a “conversation” to improve their compliance with the FDA’s regulations. In a bit of backpedaling, Mr. Christopherson implied that there was some kind of agreement between the FDA and DoD that there would not need to be full compliance with the requirements of the Nuremberg Code, the FDA’s regulations, and the DoD’s own internal regulations. He offered that “[t]he one thing that I think both FDA and we have come to somewhat – not necessarily a conclusion, but close to – is that in real combat situations it’s very difficult if not impossible to do a full investigative new drug protocol.” This did not seem to arouse much comment from any of the Senators, despite the clear implication that DoD was not going to comply with the requirements for informed consent for an IND procedure. One other question not raised (of course) was how combat would be defined. Even if the DoD were granted a waiver for combat exigencies, would Bosnia and other peacekeeping operations fit the justification given for the Gulf War?

    At the same time that the Senate hearings were going on and the anthrax program (AVIP) was going forward, the FDA was also trying to determine if the interim rule that it had published to allow DoD to use investigational drugs without informed consent should become a final rule. That rule, granting the DoD waiver, was still “on the books” as the interim rule pending finalization. The FDA solicited comments by October 29, 1997. This means that (legally speaking) as late as autumn of 1997, the DoD still had a waiver from the FDA’s requirements of informed consent. The language of the rule was broad and did not specifically exempt just those two products, although that was the agreement reached in 1990. Now, as the DoD was preparing to use another investigational drug in Bosnia and not doing it particularly well, the FDA was asking whether or not the DoD should be allowed to maintain the waiver. This produced some interesting exchanges in committee hearings in Congress. In 1996, the Director of the FDA brought forward Ms. Mary Pendergast, a doctor at the FDA’s Center for Biologics Evaluation and Research (CBER), to answer the question about this rule.

    REP. NETHERCUTT:  So your conclusion five years later is that waiving the Informed consent requirements is acceptable?

    PENDERGAST: Yes, basically. It’s not the preferred option, but there are some products that you cannot ethically test. . .

    REP. NETHERCUTT:  Okay. I’m trying to get to now. . . as to why you feel it’s acceptable to do that.

    PENDERGAST: If there is another war —

    REP. NETHERCUTT: Which is prospective.

    PENDERGAST: Yes. If there is another war and if there is a circumstance where the military might need to give prophylactic treatment to its troops, then we would create simply the framework that would give them the opportunity to come to the FDA to ask for permission to waive informed consent. It’s not saying that we would waive it during peacetime; it’s not that we would automatically waive it, rather, we would create a framework that would permit them to ask for permission.

    KESSLER: I think the presumption is, if it is at all possible, you get informed consent. That certainly is my personal position.[ix]

    In this exchange, the head of the FDA, Dr. Ronald Kessler, asserts that informed consent would not be waived during peacetime at the same time that the FDA has on the books an interim rule that allows the DoD to waive informed consent, not just for combat, but also for the “the immediate threat of combat.”[x] How immediate would the threat have to be and what level of combat would it have to be? One can only envision that the DoD would get to make both of these determinations; certainly the FDA is not going to question a military officer’s determination that combat is imminent or immediate or of sufficient ferocity to be deemed combat.[2] Thus the rule is really no rule at all in terms of limiting the application of when the DoD can waive informed consent.

    In a 1997 Congressional hearing on Bioethics, this issue also came up by Dr. Arthur Caplan, a professor of Bioethics at the University of Pennsylvania. He offered quite simply that “the handling of the waiver with respect to the troops was unethical.”[xi] His opinion was that even with the waiver of prior informed consent, the DoD should have informed troops after the fact, if nothing else; that “the Defense Department – and those military agencies have not – did not do what they needed to do to after the fact inform people when they were exposed to innovative or experimental substances.”[xii]

    His second point of contention was that “there’s still been no formulation of a policy about what we do with respect to research on our troops. We don’t have it today. We didn’t have it six years ago. And I find it incredible that we have not had more than an interim rule to guide us with respect to research in the military.” At the time he said this, the FDA’s interim waiver rule for 50.23(d) was still in effect. Another doctor looked back even further and questioned the underlying assumption of the waiver, which, unfortunately, more people have not done.

    BENJAMIN WILFOND: I think I was not convinced this morning that they ever gave a clear reason why it was not feasible to have given – asked for consent in the first place. I mean, presumably if you ask the soldiers: You may be exposed to nerve gas. This medication may help you, but we really don’t know and would like to do a project. Would you like to participate? Most of them would probably say yes.[xiii]

    Some discussion ensued and there was the usual deference about the “quick” mustering up of forces, but Dr. Wilfond continued to question the assumption: “my point is that there’s still no – it’s not clear that they couldn’t have done it ahead of time either.”[xiv]

    This is an important issue that seems to get swept away amidst the rhetoric and large questions, but it is a particularly pragmatic point but deserves some attention. Every member of the Armed forces has, at one time or another, stood in line awaiting some inoculation. There is absolutely no explanation by these people in Congress why – if a member of the Armed Forces has to stand in line to get the shot – there would not be sufficient time to obtain the member’s informed consent? Even if the requirement for written consent were waived, if medical records have to be annotated anyway, how much more difficult would it be for the corpsman or medical personnel to hand a sheet out to everyone as they are standing in line? Or, how hard would it be to include a standard medical brief along with all of the other briefs that servicemembers have to receive when deploying, during which the ranking surgeon explains that this is the only possible treatment for the known threat. As both Doctor Wilfond and another doctor pointed out in their testimony to the Congressional committee:

    CAPLAN:  We took a lot of testimony at the Presidential Advisory Committee on this matter, and it was summed up fairly well by one of our people who came to testify to us who said, if someone is shooting very large bullets at you which may be filled with biological weapons, the likelihood of your refusing an antidote is zero.[xv]

    This may or may not be true: indeed, my own informal surveying concludes quite the opposite. The troops will take the known risks of being shot over the unknown risks of (yet another) DoD boondoggle with unproven chemicals being shoved into one’s body (a point to which I will return in detail later in this book). Despite these committee hearings, most of which had an FDA  representative attending and concurring in the recommendations of others, the FDA had still not issued a new rule to replace the interim waiver rule from the Gulf War in late 1998. By this time, Congress had held so many hearings on the issue of informed consent and military members that it moved from the committee level onto the floor of Congress.

    Representative Christopher Shays, a vocal opponent to the waiver granted to the FDA, rose as the speaker pro tempore in the House on June 16, 1998. He pointed out that there had been 13 hearings in three and-a-half years looking into Gulf War Illness. During this time, various agencies had testified in order to “try to get a handle on the problems that our Gulf War veterans have faced when they returned home. Out of the 700,000 that have returned, almost 100,000 have had some types of physical problems to deal with and have sought to have their illnesses be dealt with by the Department of Veterans Affairs.”[xvi] Mr. Shays noted that after 11 hearings, there had been a number of findings and recommendations made, among them that

    “the VA and the Pentagon did not properly listen to sick Gulf War veterans in terms of the possible causes of their illness[;] [that] there is no credible evidence that stress or Post Traumatic Stress Disorder caused the illnesses reported by many Gulf War veterans[; and] that Congress should enact legislation establishing the presumption that veterans were exposed to hazardous materials known to have been present in the Gulf War theater.”[xvii]

    Most importantly, Congressman Shays recommended that “the FDA should not grant a waiver of informed consent requirements allowing the Pentagon to use experimental or investigational drugs unless the President signs off and approves.[xviii] This recommendation would become the cornerstone of a new version of Representative Patrick Kennedy’s first, more modest legislation. Interestingly, all it really did was seek a return to the “common rule” set forth in the Department of Defense’s own regulations, the Department of Health and Human Services regulations, the FDA’s regulations (prior to the waiver), the Nuremberg Code, and the federal statute passed which codified the Nuremberg Code. All of these regulations and laws have always stated that “the informed consent of the subject is absolutely essential” and all of them stated a presumption that “informed consent is feasible except . . .” in certain limited circumstances, usually when the subject was incompetent or incapable of giving consent or in a life threatening situation where the subject could not consent.[xix] As an example, the DoD’s own regulations state, unequivocally:

    Except 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. 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.[xx]

    The FDA and DHHS regulations are identical, almost word-for-word. Additionally, the same regulation goes on to assure the subject that the only way that informed consent could be waived is if an appropriate Institutional Review Board, composed of doctors and other experts and members of the given community, determined that

    • The research involves no more than minimal risk to the subjects;
    • The waiver or alteration will not adversely affect the rights and welfare of the subjects;
    • The research could not practicably be carried out without the waiver or alteration; and
    • Whenever appropriate, the subjects will be provided with additional pertinent information after participation.[xxi]

    This language is hard to reconcile with the policy in the Gulf war that Mr. Shays noted that “our troops were ordered to take an experimental drug referred to as PB . . . It was used . . . as an experimental drug to do something it was not designed to do. Our troops did not have the option to decide whether or not to do this. They were under order. If they did not live by their order, they would be prosecuted by the military.”[xxii] Congressman Shays, looking back at that moment, probably had no idea that his words actually foreshadowed what was to come under the anthrax vaccination program that had just begun in April of 1998. Notwithstanding his intent to prevent just such occurrences – the threat of forced/coerced inoculation – embodied in the legislation that was to pass later that year, courts-martial were already beginning for those who would try to exercise the very rights being re-issued to them under the new version of 10 U.S.C. §1107.

    The 1998 version of 10 U.S.C. §1107 was passed as part of the National Defense Authorization Act for fiscal year 1999, in October 1998. The differences between the 1997 version and the 1998 version are startling and important to note, not only for their legal effect, but for what they reveal about the rational for making the changes. The original (1997) 10 U.S.C. §1107 required the Secretary of Defense to provide written notice to service members of the use of an investigational new drug or a drug unapproved for its applied use “unless the Secretary of Defense determines that the use of written notice is impractical because of the number of members receiving the investigational new drug or drug unapproved for its applied use, time constraints, or similar reasons.”[xxiii]  This means that the Secretary of Defense had almost unfettered discretion to determine that written notice was not feasible. The only condition or enforcement mechanism was that the Secretary was supposed to provide Congress a written explanation if written notice was not used. The 1998 version, however, in sharp contrast, would strike that language out (from “unless” to the end), thus eliminating anything except written notice.  The new version would then add one significant paragraph, (f) and change the current (f), the definitions section, to (g). The new paragraph, unchanged since 1998, reads as follows:

    (f) Limitation and Waiver.—

    1. In the case of the administration of an investigational new drug or a drug unapproved for its applied use to a member of the armed forces in connection with the member’s participation in a particular military operation, the requirement that the member provide prior consent to receive the drug in accordance with the prior consent requirement imposed under section 505(i)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(i)(4)) may be waived only by the President. The President may grant such a waiver only if the President determines, in writing, that obtaining consent–

    (A) is not feasible;

    (B) is contrary to the best interests of the member; or

    (C) is not in the interests of national security.

    2. In making a determination to waive the prior consent requirement on a ground described in subparagraph (A) or (B) of paragraph (1), the President shall apply the standards and criteria that are set forth in the relevant FDA regulations for a waiver of the prior consent requirement on that ground.

    This portion of the statute vests the decision to use or not use investigational drugs with one person and one person alone, the President of the United States. While the President appoints a cabinet member, the Secretary of Defense, to be his representative on military affairs, this law specifically lifts the power to make these decisions out of the Secretary’s hands and placed it squarely on the President.

    3. The Secretary of Defense may request the President to waive the prior consent requirement with respect to the administration of an investigational new drug or a drug unapproved for its applied use to a member of the armed forces in connection with the member’s participation in a particular military operation. With respect to any such administration –

    (A) the Secretary may not delegate to any other official the authority to request the President to waive the prior consent requirement for the Department of Defense; and

    (B) if the President grants the requested waiver, the Secretary shall submit to the chairman and ranking minority member of each congressional defense committee a notification of the waiver, together with the written determination of the President under paragraph (1) and the Secretary’s justification for the request or requirement under subsection (a) for the member to receive the drug covered by the waiver.

    The crucial portion of this new law is that only the President could waive the requirement for informed consent. Furthermore, even if the Secretary wishes to request a waiver, he cannot delegate that request, putting him- or herself on the hook, as well, if something were to go wrong. The President could also only grant the waiver in writing, and then the Secretary has to submit a copy of the waiver and his justification for requesting it in writing to both the House and Senate Committees involved that have cognizance over military affairs AND appropriate the money for such operations.

    This section thus vests political liability for the decision to waive informed consent with the President. Second, it provides Congress with the weapon to veto the Presidential decision with its mightiest tool – control over the appropriations to conduct such an operation. While there is still an ongoing battle over the two provisions of the Constitution that vest control of the military in two different branches of government,[3] ultimately Congress could win such a battle by denying the funding for any military operation under its plenary power to appropriate money. Perhaps the most important aspect of the statute comes from the enabling public law. The National Defense Authorization Act for FY 1999, which passed and enacted the second version of 10 U.S.C. §1107, contained two notes that would affect any existing waivers of the requirement for informed consent. The first paragraph (paragraph (2) of the 1998 act) explains that the new paragraph (f) applies to any new operation involving service members. The second of these two clauses addressed the possible “grandfathering” of any pre-existing waivers and states that

    (3) <10 USC 1107 note> A waiver of the requirement for prior consent imposed under the regulations required under paragraph (4) of section 505(i) of the Federal Food, Drug, and Cosmetic Act (or under any antecedent provision of law or regulations) that has been granted under that section (or antecedent provision of law or regulations) before the date of the enactment of this Act for the administration of a drug to a member of the Armed Forces in connection with the member’s participation in a particular military operation may be applied in that case after that date only if

    (A) the Secretary of Defense personally determines that the waiver is justifiable on each ground on which the waiver was granted;

    (B) the President concurs in that determination in writing; and

    (C) the Secretary submits to the chairman and ranking minority member of each congressional committee referred to in section 1107(f)(4)(C) of title 10, United States Code (as added by paragraph (1)) –

    (i) a notification of the waiver;

    (ii) the President’s written concurrence; and

    (iii) the Secretary’s justification for the request or for the requirement under subsection 1107(a) of such title for the member to receive the drug covered by the waiver.

    Thus, the statute not only looked forward to future operations, it also reached back and effectively wiped out the existing interim FDA rule and waiver that the FDA still had not changed. The FDA would update its regulations in May 1999, incorporating all of the requirements of 10 U.S.C. §1107, some 7 months after the passage of the act and some eight plus years after it issued an “interim” rule for Desert Storm.

    Endnotes

    [1] In the Bosnia deployment, the DoD vaccinated troops against a tickborne encephalitis with an investigational drug.

    [2] This is not a game of semantics, either. Our predecessor veterans in Vietnam, having spent time in the “Arizona Valley” near Da Nang or serving near the DMZ, might not characterize the role of our troops in Bosnia as “combat”, yet any time a bullet flies from a hostile rifle, there is the possibility for death and harm. The FDA is certainly not going to gainsay the military in such matters.

    [3] The Constitution, in Art. I, §2, names the President as Commander-in-Chief of the armed forces. Art. II, §8 grants Congress the power to make rules for the land and naval forces, to raise armies, and the power to make all necessary rules in carrying out its duties under Art II.

    [i] 143 Cong. Rec. E 637, April 10, 1997 (remarks of Representative Patrick Kennedy of Rhode Island).

    [ii] Id. See also https://www.nytimes.com/1997/02/28/us/pentagon-reveals-it-lost-most-logs-on-chemical-arms.html

    [iii] Id.

    [iv] Id.

    [v] See, e.g., 143 Cong. Rec. H. 9137 (Oct. 23, 1997).  Section 766 of the National Defense Authorization Act for fiscal year 1998 contained this bill under the subtitle Persian Gulf Illness (Subtitle F).

    [vi] U.S. Senate Committee on Veterans’ Affairs Holds Hearings on the Nomination of Togo West to be Secretary of Veterans’ Affairs and U.S. Biologic Vaccines for Gulf War Veterans.  Statement of Senator Rockefeller.  March 17, 1998.

    [vii] Id.  Testimony of Mr. Randolph Wykoff, Associate Commissioner for Operations, Food and Drug Administration.

    [viii] Id.  Testimony of Mr. Gary Christopherson.

    [ix] Testimony before the House Committee on Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies, (March 12, 1996).

    [x] 21 C.F.R. 50.23(d) (1990).

    [xi] House Government Reform Committee and Subcommittee on Human Resources Holds a Hearing on Biomedical Ethics, (May 8, 1997).

    [xii] Id.

    [xiii] Id.

    [xiv] Id.

    [xv] Id.

    [xvi] 144 Cong. Rec. H. 4616 (June 16, 1998).

    [xvii] Id.  Remarks of Congressman Shays.

    [xviii] Id. (emphasis added)

    [xix] See 32 CFR 216.107, 46 CFR Part 45, 21 CFR 50.23(d), 50 USC 1520a and The Nuremberg Code.

    [xx] 32 CFR 219.116 (2001).  These regulations have been in place since 1991.

    [xxi] Id.

    [xxii] 144 Cong. Rec. H. 4616 (June 16, 1998).

    [xxiii] 10 USC 1107 (1997).

  • 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)).

     

     

    beginning | previous | next

  • 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.

     

    beginning | next

  • Free to Ask Permission

    When I was younger, I used to be a robotic hacker.  There’s like four ways to parse that, but I was the most boring kind.  I hacked at it until it worked. And I wasn’t a robot, I made robots. It was a great hobby back when you had to dumpster dive for a Pentium II board, take measurements, and then beg time on a Bridgeport to make a Lexan case to whatever size the board was.

    I learned a lot.  I learned that science is more like art.  I learned about technical debt before it was even a term.  I learned that if you treat your support staff well, they are your best friends and will let you have time on the Bridgeport after hours.

    I learned that the best part of programming a robot is that they do exactly what you tell them.  Also, I learned that the worst part of programming a robot is that they do exactly what you tell them to.

    Two decades later, and I’m not making fighting robots anymore.  Or any kind of robots, really. Unless I’m doing it with my first kid.  On easy mode. With Legos or Arduino. The kid is funny. He also does exactly what I tell him to, which is really pretty weird for a kid, right?

    Everyone thinks their kids are great.  And smart. And special. And cute. So how is a Dad supposed to know when their kid really is great.  And smart. And special. And cute. Well, my son is cute. He’s gorgeous. He has the warmest, most soulful eyes God’s ever put into man.  We’ve had pro, working photographers give us free sessions in exchange for a release to photograph him for their portfolio. And he’s smart.  He’s not even in middle school, and he’s reading at a college level. He’s been playing piano for a couple months, and he’s working on books for adults in their third or fourth year.  He breaks every paper-based standardized test he takes because he doesn’t get any of the questions wrong. And he’s great. He has more empathy in his heart than even his eyes would lead you to believe.  If I come home from work and have a bad day, he doesn’t say anything to me. He just comes over, puts his arms out, and lumbers in the last few steps for an awkward hug.

    Why is it awkward?  Because he has to think about every step, and every motion of his hands, and where to place his chin.  Why does he do that? Same reason he’s always awkward. He needs me to show him how to take all kinds of physical actions and he repeats them.  Exactly. Robotically. Because he’s special.  

    Special.  I’ve never said that before, or typed it out.  My son is Special. He is “On the Spectrum” is how it’s usually put now.  And it only took me half a decade to figure it out and another half a decade to admit it.

    I always knew this was a statistical possibility.  I have all the risk factors. My ancestry is in the high risk ethnicity.  My IQ is… high. On my paternal side of the family it’s… scary high. Theoretical physicist high.  World-level ELO in chess high. I’m educated. Suburban. Upper middle class. And I’m… how do I put this.. A systematic thinker that has trouble interpreting social cues and making eye contact and finds comfort in converting normal social situations into mathematical models.  The Spectrum is just that. It’s a spectrum of behavior. If it’s not a problem for you, it’s not a problem. You just have these behaviors and modes of thought. If its a problem for you, it’s not a problem just because you have these behaviors and these modes of thought. Its a problem because you have these behaviors and modes of thought too much and it makes you feel bad.  I have them a lot, but not so much it causes problems. I’m generally happy and well adjusted.

    The first time my infant son made eye contact with me and giggled, my stomach dropped out.  Babies who can’t do this sometimes never do. It’s an early sign of Autism if they can’t. I felt like I was out of the woods  As my kid grew up, it became very clear that he was very social. He never made a lot of eye contact, but he would play mirror games with adults, and he would make prosocial hand-to-hand contact.  He would echo back baby noises. He would laugh and giggle and cuddle up with anyone within arm-range. Normal baby stuff. Normal toddler stuff.

    But as he grew older, the behaviors and modes of thought common to people on the spectrum started showing up more and more.  The aversion to eye contact got worse. He always needs something to chew on. He likes heavy blankets and one-piece pajamas.  He freezes when confronted with confrontation. He keeps a pair of earmuffs in his book bag because he can’t process the noise and chaos of a school bus some days.

    Most days, it’s not a problem.  But sometimes it is. This year, his mother and I agreed that he was responsible enough to own a firearm.  Honestly, I think he could have handled it years ago, but we don’t own land and public ranges have age restrictions.  But now we have Secret Outdoor Range we can go to, so now he owns a bolt action .22.

    And if you sat down in a lab to design up a hobby that’s perfect for my kid, you couldn’t do better than target shooting with his Dad.  For a systematic thinking, the hobby provides SO. MANY. SYSTEMS. There are four rules. Would you like to hear them? Because he can spout them off at the drop of a hat.  You want a series of repeatable physical motions? Ask him what the steps are to load, shoulder, fire, and cycle his rifle. When he goes to execute these motions he is smooth and fast.  I’ve seen more variation out of a FANUC. Safety checklist? This is a kid that makes checklists for fun. Social contact with someone like him, but where there’s no pressure to make eye contact?  Target shooting with Dad requires close social contact and has a big rule that says you have to keep your eyes down range and on your gun.

    It is perfect.  Except for one small problem.

    Boom.

    Or more accurately, one big problem.  A big BOOM!

    You see, .22LR out of a rifle is pretty damn quiet.  The first time we went to Secret Outdoor Range, it was all we shot.  And it was the best day of his life. His big soulful eyes were wide above the most confident grin you have ever seen.  A year ago he looked like a cross between a baby colt and a baby giraffe. Dedicated exercise has solved most of that, but this activity merged his mind and his body in a way he’s never felt before, and his pride at his mastery of self rolled off him in waves.

    So we went to Secret Outdoor Range again recently with a couple friends.  It was our second time there. I brought my 12 gauge that I always try to put a few rounds of buckshot through, just to stay in muscle memory.  The friends’ Dads both brought a few of their own firearms, including a few AR-15. After “.22 Time” it was “Daddy Gun Time” and we started with the buckshot and 5.56.  12 gauges are loud. 5.56 is loud. Daddy Gun Time is loud.  

    Daddy… is an idiot.

    Stress is a funny thing for a body.  It doesn’t really matter where it comes from, it impacts the body the same way.  I know of one doctor who teaches his patients how to meditate so that they can meditate before he cuts them open.  Exposing internal organs to atmosphere is incredibly stressful, and leads to Postoperative Nausea and Vomiting (PONV).  Anything you can do to reduce stress before surgery reduces the incidence of PONV. He swears by this meditation trick.

    Some stress responses include white face, the shakes, and anxiety.  About 15 seconds into Daddy Gun Time, and my son’s face is white as a ghost, his whole body is quivering like a leaf, and he’s wobbling his way into the cabin by Secret Outdoor Range to get away from the noise.  A few hours later, and he’s puking up the contents of his stomach.

    You see, my son, who is On the Spectrum but generally doesn’t have a problem, now has a problem.  This hobby, the one that has helped him grow more in one day than anything we’ve ever seen, produces Very Loud Noises.  Noises his body interprets as stress.

    In a civilized society, the answer is simple.  Go to the hardware store and pick up a few mufflers back by the auto parts.  Stick em on the end of your guns and you are good to go.

    But we do not live in a civilized society.  In order to purchase this safety device, we need to play mother may I with the ATF, wait for the better part of a year for approval, and pay $200 for the pleasure.  And this needs to be done for each and every purchase. Then, once you’ve done that, you need to try to navigate a Byzantine web of state and federal laws where, if you accidently fuck up, you are instantly and accidentally a felon.

    So I’ve been doing a lot of reading in the past couple of days.  Some of it has been about the ballistics properties of a little misfit round that has come to be called the .300 Blackout.  Some of it has been about the properties of various mufflers. But mostly, I’ve been trying to learn about the Byzantine web of state and federal laws surrounding the purchasing and ownership of these safety devices.

    And it feels like I’m walking on a balance beam.  At the end is quality time spent with my special son in the most supportive environment he’s ever been in.  But there’s no net. If I slip, I’m a felon.

    Happy 4th of July.  We’ll probably skip the fireworks again.  They go Boom.

  • Standard Libertarian Disclaimer Episode 2: EPA

    I think that environmental law is the single biggest issue I “struggle” with when I do thought experiments about the philosophy of libertarianism. How does self- and property ownership interact with the externalities caused by the things that you do pursuant with your ownership of yourself and your property? There are many answers, but the currently implemented one is the EPA.

    [Insert Standard Libertarian Disclaimer Here]

    Everybody has that annoying neighbor. The one who shoots off fireworks at 2am on Thursday April 17th. The one who blows all of the lawn trimmings into your vegetable garden. The one who honks his horn every time he drives past his friend’s house (yeah, I’m looking at you, jackass!). A core competency of government is balancing your annoying neighbor’s habits with your want for peace and quiet. Noise ordinances keep the fireworks to a reasonable hour, trespass laws keep the lawn trimmings out of your food, and I’m pretty sure I’ll be given the keys to the city when I complete my horn-triggered IED.

    One could argue, however, that a well-constructed civil court system may prevent the need for all of these laws and regulations. Between monetary damages and injunctive relief, a civil court could restore me to whole and prevent my annoying neighbor from further annoying me. Tort law has been a hallmark of government for millennia, and its classic application is neighbor v. neighbor.

    I'm glad that Spud and Winston's mom made up

    Great! We’re done! Torts take care of annoying neighbors. On to minarchy!

    Not so fast, my friend!

    There is a genre of annoying neighbor that is downright toxic. Let’s say, for example, that I have a well pulling groundwater from the regional aquifer, and my neighbor’s in-ground heating oil tank leaks heating oil into the aquifer. If the amount of heating oil is enough to spoil the aquifer and make it non-potable, tort law make for an easy, albeit inefficient, resolution to the issue. Neighbor pays everybody who uses the aquifer enough money to get them hooked up to an alternative water source, and voila!  Everybody is restored to whole!

    Oh wait, the neighbor is living in a house still using heating oil in 2019, and the aquifer supplies 15,000 people. Neighbor is judgement proof, and those 15,000 people will not be made whole again.

    Animal in a previous life?

    Not For Sale

    This exposes one of the core issues with the tort system as currently formulated. The default relief from damages is cash money. If, for some reason or another, the cash judgment is insufficient or left unpaid, many people are left damaged by the negligence/recklessness/idiocy of Neighbor.

    I can hear the rejoinder already. In beautiful harmony, a thousand libertarians belt out “Insurance!” There are two issues with that answer, though.

    First, insurance is protection against bearing the full consequences of an injustice. It doesn’t prevent the injustice. Insurance may pay out enough money to tap into the local city’s water system, but it can’t unpollute the aquifer. Insurance still doesn’t make the person whole again, because the insured is paying for the service. Insurance is akin to hanging a portrait over a hole in the drywall. As long as you’re happy with that portrait staying there for the foreseeable future, it’s a decent restoration. However, there’s still a hole in the wall.

    Second, insurance operates on the convenient fiction that everything has an objective value. It’s a fine assumption for commodities and furniture, but it starts to break down when more unique property is involved. The easiest example is life insurance. That’s not an even trade. I’m not gonna off myself for a few hundred thousand dollars. Even if the insurance pays way over the “market value” of unique property (like a family farmhouse), the sentimental value can’t be replaced. Properties that are “not for sale” are not easily compensated for when they are damaged.

    If the aquifer under my “not for sale” 5th generation family homestead is poisoned to the point that there is no convenient way to get potable water to the house, Neighbor has done irreparable, uninsurable harm to me. I may have some of the harm reversed through cash payments, but nothing is going to restore me to being able to live in that house again.

    There are three solutions that come to mind for handling this issue. The first one isn’t all that appealing: tell victims of such environmental harm to suck it up and deal with it. Maybe you can get some traction telling somebody displaced from a sentimental property to get over it and smile about your payday, but this one doesn’t translate well when the damage is to people instead of things. “Suck it up and deal with your 5 year old dying of leukemia” isn’t a winning argument.

    The second option is prevention. There may theoretically be some libertopian way to do this without using government force, but color me skeptical. Unfortunately for libertarians, the two most effective ways to prevent environmental damage are 1) an expansive growth of the use of injunctions by courts; or 2) a regulatory agency (e.g. the EPA). Self-policing doesn’t work. Communities usually don’t even know enough about the issue (because it’s occurring on a company’s private property) to be able to gin up an angry mob in time. Heck, the injunctive power of the court only works if the community knows that the polluter is planning on polluting. Short of a whistleblower giving his/her best Louis Armstrong impression, it’s too late for injunctive relief by the time it ends up in court. That only leaves the regulatory option. Hello EPA!

    The third option is remediation. This is a “sometimes” solution in cases where pollution can be reduced or made inert using chemical or mechanical processes. It’s great when it works, but it’s not all encompassing, and it’s not a substitute for prevention. As they say, “an ounce of prevention is worth a pound of cure.”

    Don't lick the walls!

    A Wafting Stench of Statistical Significance

    Another issue causes the reactive systems of justice to bind up. Risk factors. In a car accident, for example, it’s pretty easy to prove that Neighbor swerved out of his lane, causing his car to impact my car, causing me to smack my head into the steering wheel, breaking my nose. It doesn’t always work that way with environmental contaminants. To take an obvious case, not everybody got cancer in Hiroshima and Nagasaki. However, epidemiological surveys show a massive uptick in the amount of certain cancers and birth defects.

    Exactly how much is a 3x elevated risk of leukemia worth in Benjamins? Can you even say that it was caused by environmental contaminant X if somebody gets lung disease after being exposed to it? Again, the reactive system of justice fails when these unique harms are merely compensated ex post facto with greenbacks.

    Libertarians apply the NAP in situations where somebody employs force, fraud, or coercion, but it may be appropriate to expand that to “risk” as well. It’s a bit of a blurry line, and it’s rife with totalitarian pitfalls, but risk is just diluted force, and the pollution itself is a form of force and/or coercion. Much like celebratory gunfire, the lack of a guaranteed harm doesn’t prevent the community from proactively stopping behavior that presents a high risk to others.

    The EPA may be a bloated monstrosity these days, but the preventative justice it affords to the community is a unique form of protection for land, life, and limb that would otherwise be sacrificed to short-sighted and irresponsible polluters.

    [/SLDs]

  • Mentally Incompetent to Stand Trial – What does it mean?

    There’s a few concepts about mental states, and how they affect a defendant during legal proceedings.

    Let’s cover the first : Mentally Incompetent to Stand Trial. What does that mean?

    Here’s the scenario: State of Michigan is charging that the Defendant committed a crime (duh). Defendant meets with attorney. After the first meeting, the attorney wonders a few things about the defendant, based on the D’s behavior.

    Such as: he can’t remember facts of the alleged crime. Sure, he could have been too intoxicated . . . . however, he can’t remember where he lived before he moved here. He knows he’s in jail, and he doesn’t like that, but can’t really seem to keep the conversation going to help his attorney understand his version of events. And maybe he has a few odd gestures, expressions. (More signs of mental illness are listed here, from the national alliance for mental illness).

    You see, the idea of “due process” is broad. It includes that the defendant, to have due process, has to understand the proceedings and be able to assist his attorney in defending the case. If the D can’t do that, then he is mentally incompetent.  And if a defendant is  mentally incompetent, then the proceedings are halted (but not dismissed).

    Any questions about a D’s competence should be raised by the attorney as soon as apparent. (However, the prosecutor or the judge can raise the issue as well). The defense attorney should make a motion regarding competence that asserts that 1. the D can’t assist his attorney in defending the case and 2. possibly, the D lacked the capacity to appreciate that his conduct was wrong, or didn’t conform to requirements of law. That last sentence is the lead-in for the affirmative defense of NGI, or not guilty by reason of insanity. Also called “legally insane.”

    After that motion is made, the court will refer the D to an interview by a forensic psychologist to make a determination of competency. The report of the psychologist is then released to the court, attorneys, etc.

    Option 1: the Defendant is found not competent. Just because a D is found incompetent does not mean that there will never be a trial. Instead, the next step is that the D has to have mental health treatment – and the court issues an order for this – so that he will become competent to stand trial, at a later date.

    This idea seems to also offend the D’s right to speedy trial, as guaranteed in the Sixth Amendment. However, dismissing the case based on competence is not fair to the state (sadly). Also, the speedy trial right has never been interpreted to have a definite deadline by the Supreme Court. For example, the Supreme Court hasn’t ruled that “any delay to trial longer than 24 months would prejudice justice.” Michigan however, does limit the amount of time a D can be treated, (MCL 330.2034) to no longer than 15 months, or 1/3 of the maximum sentence which the D would have if convicted, whichever is shorter.

    Also, technically speaking, the D is not being punished by receiving treatment, as he is no longer in jail, he’s in the hospital, receiving treatment.

    Option 2: Defendant is found competent. If a defendant is interviewed, and found to be competent, an alternative to halting trial for D’s treatment  is a “no contest” plea, which would be based on the idea that he was too intoxicated/ abusing substances, etc, to be able to recall the crime. But use of alcohol /substances is not a defense, and does not make a person legally insane at the time of the crime.

    Also, some crimes are open to alternative sentencing, through mental health treatment courts. This is a diversion program, that is essentially the same as sobriety court. It requires that the offender plead to a crime, then complete mental health treatment for a period of months. In exchange, the state will “nolle prosse” the charges, once the program is completed by the offender. The likelihood of repeat offenses goes down significantly when the program is completed. However, it is much like intensive outpatient, and requires a lot of participation by the offender, such as 3-4 weekly appointments at counseling, group therapy, probation /parole appointments, and regular medication review.

    Next installment: legally insane – or Not Guilty by reason of Insanity.

  • 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

  • Muh Culture!!: Conservative Values in a Libertarian Society

    10Politics is downstream from culture.

    This has become a popular turn of phrase in conservative and libertarian circles.  And, by all means, there’s certainly a lot of truth to it.  But, I think it misses an incredibly important point.  It’s a mistake to treat culture itself as an entirely exogenous variable.  Culture doesn’t happen in a vacuum.  Culture itself is shaped and altered by policy, and consequently politics.  That is to say, if politics is downstream from culture, it’s also a tributary into the culture.

    But, how do politics shape culture, you might ask.  Well, you first have to consider the nature of what is culture.  Culture is the manifestation of the social beliefs, values, conventions and tastes shared by a group of people.  But, all of those things happen in the context of the success they produce for those who practice them.  A great many, if not all, cultural traits arise because they work.  They provide a practical advantage in the conditions in which they are adopted.  In fact, they very well may become elements of the culture precisely because they provide such advantages.  Success breeds imitation and imitation breeds institutionalization.  To the point that the initial advantage may well be beside the point.  But those conditions are hugely affected by the politics prevalent in the society in which they are adopted.

    As just one example, you see longstanding reputations for a poor work ethic for certain cultures.  Why would that be?  I’m not saying that it’s not just the random interplay of luck or providence with certainty.  But, you find a remarkable correlation of those cultures regarded as having poor work ethics and those cultures with high levels of official predation.  For the libertarian, this relationship should be obvious.  If the consequence of your busting your behind is just going to be that the guy with the club bashes you over the head and takes your stuff, busting your butt is a suckers’ game.  It’s not surprising, then, that you don’t see work elevated to a particularly high status in those societies.

    All of which brings us to a point of contention between libertarians and social conservatives.  “What sort of licentious den of iniquity would a libertarian society look like,” social conservatives ask, “without laws to uphold standards of decency and public morality”.  And if their solution is an abysmal one, their concerns aren’t necessarily unreasonable.  I think it is fair to say that, at least in some ways, we’ve become a coarser, less responsible (if more “genuine”, whatever the hell that means) society over the last few generations.

    I think the point they miss is not that politics is downstream from culture, but the fact that politics is a tributary into culture.  A libertarian society would create a particular form of culture.  And in many regards, that culture would be remarkably conservative in its values, habits and behaviors.  In many regards, libertopia would look much more like Mayberry than like Mad Max.

    This notion might seem counter-intuitive at first glance.  How can a society that provides less, or even no, enforcement of traditional values have more popular adherence to traditional values?  Because traditional values, for the most part, work.  Not universally.  Not perfectly flawlessly.  And developments might make them less useful over time.  But, as a general rule, adhering to them makes for a better life.  You’re more likely to be successful, happy, and fulfilled if you work hard, don’t philander, stay in school, exercise sobriety or at least moderation, and have an active spiritual life.

    And, in a libertarian society, you’re much more responsible for ensuring your own success than you are under the status quo.  Absent the mandated, state-sponsored, safety net, the consequences of vice are more likely to fall on those engaged in that vice.  Not only does that affect incentives, that change in incentives can change the culture.  If a behavior makes you less successful, that behavior becomes less popular and that change in popularity itself makes that behavior less acceptable.

    The cost of vice, though, regularly indulged in, isn’t trivial.  You don’t have a lot of prospects in the world if you regularly show up to work hung over or coming down from a cocaine bender.  Single motherhood, absent outside help, is a major life challenge to the single mother as much as the child.  And being a “player” is a bad reputation because it’s more likely to leave his female romantic prospects in that situation.  A liar or a cheat is something that you don’t want to be because your audience has significant incentive not to trust you.  In a libertarian society, simple reality provides strong incentives to avoid vice.

    But those incentives are not in play under the status quo.  The safety net provides a floor on the consequences of vice.  You don’t have to believe the cliché of the welfare mother pumping out babies to increase her welfare check to understand that that check does reduce her downside to having sex with a guy who isn’t going to support her.  And, on the margins, that matters.  You don’t have to be a teetotaler panicking about the dangers of demon rum to recognize that some people will indulge in the nightlife more aggressively if getting fired means they’ve lost their only source of income.

    Now, living with the consequences of your vices might seem a brutal, even vicious means of punishment.  Harsher, perhaps, than the legal penalties imposed by the social conservatives.  However, the removal of the state-sponsored safety net doesn’t mean the abandonment of any safety net.  It’s not the case that, before 1932, every minor transgression in human behavior meant certain ruin.  People relied on civil society for their safety net.  They turned to their churches, the local lodge of their fraternal organizations, their unions and private charities for help when they’d fallen on hard times.

    But, unlike the government, these institutions had an ability to draw distinctions, to discriminate.  They could demand the person asking for their help change his behavior and refuse him assistance if he didn’t change.  But, the government can’t do that.  And I’m not sure I’d want it to be able to.  Not only is there a real matter of equal protection to consider, but the concentrated political demands of those demanding assistance despite their vices provide a much more powerful constituency than the diffuse expectations of those expected to pay for it.

    Unfortunately, the space of civil society has fallen dramatically.  In his 1995 essay Bowling Alone, Robert Putnam discussed the decline in American “social capital” and civil society in the post-World War II era.  One of the examples he cites is the decline in bowling league participation even as the number of bowlers has increased (hence the title of his essay).  However, this was not always the case.  Consider this quote from Alexis de Tocqueville’s Democracy in America,

    “In the United States, as soon as several inhabitants have taken an opinion or an idea they wish to promote in society, they seek each other out and unite together once they have made contact. From that moment, they are no longer isolated but have become a power seen from afar whose activities serve as an example and whose words are heeded”

    The America that de Tocqueville was describing was the America of the 1830’s.  It was an America where the government played, at most, a negligible role in the life of the country of the life of most citizens.  And what he found astonished him.  This was in contrast to his experience in the more heavily ruled and governed Europe, where such institutions were much sparser.  Huge swaths of the American civil society that remain with us to this day were formed in this era preceding the rise of the government leviathan, the SPCA, the Red Cross, the Salvation Army, various local hospitals, various colleges.

    Putnam examines and largely dismisses the notion that this phenomenon might be a result of women entering the workforce.  Instead, he suggests, the more likely cause is the rise of television.  What he misses is the explosion in the size and scope of government at all levels:

    Government grows at the expense of civil society.  There’s a crowding out effect.  And that reduced role for civil society translates to a diminished respect for traditional values.  It’s not shocking, to me at least, that the Baby Boom generation, the first to grow up with this expanded role of government as normal, was the first that turned away from both civil society and traditional values.

    “But,” a hypothetical social conservative might counter, “even if limited government will give us much the same thing, surely the right top men could institute policies that would get us there faster.”   But, that’s doubtful.  As I note before, vice will inevitably have a greater constituency than its absence.  Vice, after all, is fun, at least while you’re doing it.  And trying to tamp out others’ fun makes you, well, kind of a killjoy.  So, when you leave these decisions to the government, there’s going to be an inevitable drift toward vice.  That is unless there is an ongoing expenditure of energy on new moral crusades, which people tire of eventually, anyway, the inevitable trend is toward vice.

    So, in a world where politics is downstream from culture and where culture is downstream from politics, the sensible stand for social conservatives is actually libertarianism.  While it may not give them their ideal world, it is a world far closer to it than they can hope to achieve through ever-expanding government.

  • What is Burning Man? Pt. 2

    In the last part of this series, I mentioned that the Burning Man attendees are the event. There are many ways in which this fact manifests, but the most prominent ways are theme camps and artwork. But what exactly is a “theme camp”?

    In short, a theme camp is a group of burners who bring an offering to the playa. They are interactive, open to the public, and of course they’re free. There is no specified set of rules on what a theme camp can be offering, but the nature of the camp will generally determine placement based on the whims of the BMOrg.

    As with everything else related to Burning Man, the concept of theme camps has evolved over the years. Back in the day before anyone I knew personally went to the event, you just showed up with your camp and set up whatever you wanted, however you wanted. This was also back in the days when you could drive around in a Jeep shooting guns into the air, dig holes in the ground to fill with gasoline and set ablaze, and engage in all sorts of otherwise fun anarchy.

    This changed as the event grew, particularly after the 1997 burn which was apparently “terrifying”. Growing demands from the government resulted in most of the changes, though a few things like a ban on handheld lasers came from the BMOrg without being forced upon them. As far as theme camps go, it used to be a completely different and mostly random structure every year with no clue what you would get. Once certain groups started showing up regularly and bringing more or less the same camp every time, placement disputes started cropping up with multiple groups wanting the same location. Sometimes a camp would show up to find one person had staked out the entire area for themselves.

    They addressed with issue with camp placement. For as long as I’ve been a burner, the prime real estate has been reserved for camps which apply to the BMOrg for space. If you want a premium location in the city, which is redefined to cover broader swaths every year, you have to draw up a design for your camp and submit the plans to the BMOrg along with a description of what you’ll be offering. The more closely you adhere to the 10 principles the more likely you are to be approved, but the BMOrg is capricious.

    The city is laid out shaped like the letter “C”, with concentric streets that are always named alphabetically from a word starting with “A” to “Whatever Letter We Need This Year” based on the theme and expected population, although the innermost and most prominent street with the “best” camps is always named “Esplanade”. My first year it was “A” through “H”, though by the end of the event they’d added two more (“I” and “J”) at the back to accommodate more people. There’s radial streets which stretch from the center at Esplanade to whatever the last street is that year spaced “30 minutes” apart. So you get addresses like “4:30 & A”, “8:00 & F”.

    The theme camps are all placed within this grid according to where the BMOrg thinks you belong. The massive sound camps which play dubstep and other electronic music non-stop for the entire week (and I mean it) generally get placed at the ends of the C, 10:00 and 2:00, facing outwards so they aren’t bombarding “residential” areas and causing more sleep deprivation. Smaller musical camps or ones which play different music may end up closer to the interior.

    During the few hours these guys were closed, the camp right next door was just getting started

    That said, their standards often change with the wind. One year I was with a camp that had been there for over 10 burns and was on “A” every year. The following year they ended up getting pushed back to “C”. The next year they placed on “H”. This year they apparently didn’t even get approved for placement at all and the camp may not happen since nobody involved managed to secure a ticket, which is getting increasingly difficult each year are ever greater percentages of tickets are reserved for approved/placed theme camps rather than being open to the general public.

    Not all camps are theme camps; not every camp is open and interactive. On one occasion my camp was just my wife and I, though we weren’t married yet during that burn. Definitely a small, non-interactive, closed camp. There’s also the hated “plug-n-play” camps, which are still non-interactive and closed, but are often quite large and provide everything a rich and famous burner could want on the playa, for a hefty fee, of course, sometimes exceeding $100,000. There’s controversy as to how to deal with these groups and some get explicitly barred from future burns, like a camp called Humano was.

    One example of a plug-n-play ‘fortress camp’, so people like Paris Hilton and Elizabeth Holmes don’t have to risk being seen out of costume

    As to the actual interactive theme camps themselves, they can generally be broken into two broad categories: daytime camps and nighttime camps. Similarly, most burners are either “daytime” burners or “nighttime” burners. During the day, the city has a slower pace and is dominated by smaller camps. There’s still some daytime party spots like Pink Mammoth and Distrikt that serve all the booze you can drink, but it’s not nearly as wild.

    They were giving out pancakes

    During the day, you’ll find a lot of camps offering things like yoga or aerials sessions, body painting and tattoos, bars, TED talks, bondage workshops, tasty food, hatmaking, film screenings, places to smoke hookah, theatre performances, woodworking pagodas, bouncy houses, and pretty much anything else you could expect to find in a major city (during the event, it’s Nevada’s third biggest city, complete with an airport). Except trash collection or recycling – that’s on you to take care of yourself.

    There’s also some ‘services’ offered by burners, like postal delivery, RV servicing, and bicycle repair shops. That last one is key, as bicycles are the primary mode of transit in Black Rock City due to the fact that the city measures over 2mi in diameter and, other than art cars, driving is not allowed (unless you’re a cop or emergency responder of some sort). More on that next time. The highly alkaline dust on the playa tends to eat away at tires and bicycle chains, making frequent repairs a necessity. Burning Man has claimed 5 different bicycles from me. One bike didn’t even make halfway through the event, leaving me on foot for the rest of the burn except when I could find an unused community bike to borrow.

    At night almost all of these services stop operating and most of the daytime camps close up, though some like the roller derby and mini golf stay open 24/7. Generally the city takes on a completely different aura. The people are completely different, too, as the nighttime burners tend to sleep during the day when it can get well over 120 degrees F. If you’re a nighttime burner, though, you need to pack for summer and winter temperatures, as it can be anywhere from 80 to 30 on a given night.

    When the sun goes down, the city lights up and things get more intense. The Thunderdome opens up for fighters to beat the crap out of each other with foam weaponry. Foot traffic to the orgy dome picks up and lines start to form outside it. The daytime bars shut down and the nighttime bars open their doors. Things you never realized were there during the day suddenly appear, such as one camp that projected Donald Trump’s face onto the ground for passersby to jump on, only to have him move out of the way every time and laugh. Interactive mazes spring out of the ground like Theseus’ labyrinth for you to navigate in complete darkness. One camp created a series of old-school arcade games where you were the “character” on a pressure-sensitive platform of LEDs. The lights, lasers, and fire generally associated with Burning Man are suddenly everywhere you look.

    No matter who you are, it will impress you. No pictures can adequately depict it and nobody can accurately describe it. Any two people could go and have completely different experiences; it’s entirely possible that you’ll come with someone whom you never cross paths with again until it’s time to leave, with both of you having never even entered the same camps.

    The interactivity of the theme camps is only half the splendor though. The people who are only there to party tend to limit their experience to a few select major sound camps, but in my personal opinion the most impressive part of Burning Man is the art, many of which end their lives by burning to the ground. We’ll take a look at some of the art and art cars, next time.