Glibertarians.com 2019 Archive

Category: Military

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                                                                                                                                                                               

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                                                                                                                                                                               

    Endnotes

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

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

    [iii] 21 U.S.C. §355(i) (2000)

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

    [v] 21 CFR 50.20 (2000)

    [vi] 45 CFR 46.12 (2000)

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

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

  • Chapter 4 – Judicial Remedies in Our Republic?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Endnotes

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

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

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

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

    [ii] See In re Milligan

    [iii] Ex Parte Quirin,

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

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

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

    [vii] Id.

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

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

    [x] Feres, at 136.

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

    [xii] Stanley, at 709.

  • Chapter 3 – The General Did What?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Justin nodded.

    “Yep.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     

    beginning | previous | next

  • Chapter 2 – The Nuremberg Code

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

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

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

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

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

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

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

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

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

                                                                                                                                                                                       

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                                                                                                                                                       

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

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

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

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

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

    [v] Id.

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

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

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

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

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

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

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

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

     

     

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

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

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

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

                                                                                                                                                                                                   

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

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

                                                                                                                                                                                                               

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

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

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

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

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

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

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

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

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

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

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

                                                                                                                                                                                                               

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

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

    [v] Schnurman, at 431.

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

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

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

                                                                                                                                                                                                               

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

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

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

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

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

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

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

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

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

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

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

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

                                                                                                                                                                                                               

    [ix] Id., notes omitted.

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

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

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

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

     

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    “Anything else from either party before we adjourn?”

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

    “Then this court is in recess.”

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

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

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

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

    Back in my office, I drop into my chair.

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

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

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

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

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

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

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

    David breaks into my thoughts.

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

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

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

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

     

     

  • Profiles in Toxic Masculinity III: Joshua Chamberlain

    Profiles in Toxic Masculinity, Part 3

    I thought that I’d profile someone a little more palatable – indeed, admirable – this time.

    Appearances Can Be Deceiving

    The fellow in this photo to the right looks a distinguished figure; a bank president, perhaps, or a judge, a governor, maybe a college professor.  He is a figure of great dignity and gravitas, indeed.

    Well, he was a college professor and a Governor (of Maine), in fact, but that’s the least of his story.  The old man here is Brigadier General Joshua Chamberlain, hero of Gettysburg, one of America’s premiere military heroes, a man who may have single-handedly saved the Union on a fateful day in 1863.

    His Maculate Origin

    Lawrence Joshua Chamberlain (for unknown reasons he is best known by his middle name) was born on September 8, 1828, in Brewer, Maine, to Joshua and Sarah DuPree Brastow Chamberlain.  A studious and deeply religious child – his mother raised him in a strict Congregationalist household – he was shy and spoke with a pronounced stammer.  His father instilled in the young Lawrence an understanding of the importance of educating one’s self, as well as an abiding interest in military matters.  This was to lead to one of the most remarkable feats of American arms in our history.

    As a young man he pursued various occupations including lumberjack (hardly a novelty in Maine) and bricklayer, meanwhile studying Greek and Latin, because lumberjacking and bricklaying are both occupations that give you plenty of spare time for studying Greek and Latin.  At age twenty he entered Bowdoin College, graduating in four years.  Then, perhaps remembering his mother’s insistence on rigid Calvinism, Chamberlain entered the Bangor Theological Seminary.  On his graduation from that institution, however, he declined the ministry and returned to Bowdoin, where he was hired as a professor, teaching Rhetoric and Natural and Revealed Religions.  In 1855, he married his childhood sweetheart Frances “Fanny” Adams, and no, I will not speculate as to the source of her nickname.

    Then, in 1862, Chamberlain was to embark on his military career, and it is possible that no other American Army officer has ever led a more distinguished career with so little preparation.

    His Adventurous Career

    Chamberlain in Uniform.

    On the outbreak of the war, Chamberlain lectured his students on the necessity of preserving the Union and, being one to put his money where his mouth was, then wrote to the Governor of Maine, one Israel Washburn Jr., “I fear, this war, so costly of blood and treasure, will not cease until the men of the North are willing to leave good positions, and sacrifice the dearest personal interests, to rescue our country from desolation, and defend the national existence against treachery.”  Chamberlain then proceeded to do just that, declining the command of the 20th Maine Volunteer Infantry until, as he put it, he could “start a little lower and learn the business first.”  He didn’t start that much lower, serving first as Lieutenant Colonel of the regiment under Colonel Adelbert Ames.  The 20th was assigned to the 3rd Brigade, 1st Division, V Corps of the Army of the Potomac under the command of Brigadier General Dan Butterfield.  With these men Joshua Chamberlain went to war.

    The 20th saw first action at Fredericksburg, where the inept General Burnside ordered repeated attacks against the Confederates entrenched on Marye’s Heights.  The entire mess could have been avoided had Burnside, who despite his impressive facial hair and his invention of a successful breech-loading carbine was only a fair general, allowed one of his subordinates, Winfield Hancock, to cross the river the day before.  Had they done so, Hancock’s men could have occupied the heights before Lee’s men arrived; but that was not to be the case, and so the 20th Maine charged the heights.

    The charge of the 20th came late in the day, and like the units before them, they failed to take the heights.  They were still on the long, deadly slope when night fell and the men of the 20th, with Chamberlain in their midst, spent a cold and uncomfortable night using the bodies of slain soldiers as shields from the Confederate bullets that kept probing their lines throughout.  Come morning, they withdrew.

    A faulty smallpox vaccine that made much of the regiment ill spared them from the debacle at Chancellorsville, but about this time Colonel Ames was promoted away from the 20th, and Chamberlain ascended to Colonel and command of the regiment.

    The next July, Lee invaded Pennsylvania, and the 20th Maine marched towards a little Pennsylvania town called Gettysburg.

    His One-Man War

    To call what happened on July 2nd, 1863 as a one-man war is perhaps a bit of a misnomer.  The entire 20th Maine fought that action, after all, and their commander, Colonel Chamberlain, thereafter, always insisted that credit for their victory on that day properly went not to him but to the regiment.  But the command was his, the responsibility was his, and the decisions were his.  On that day, Chamberlain prevented another Chancellorsville-style disaster and may have saved the Union.

    On that fateful morning the 20th Maine was ordered to secure a hill called Little Round Top, which formed the extreme far left of the Federal line.  “You may not withdraw under any circumstances,” Colonel Chamberlain was ordered by his Brigade commander, Colonel Strong Vincent.  Realizing that if his men faltered and lost Little Round Top, the entire Union line could be flanked out and rolled up like a cheap carpet, Chamberlain spoke to his men, ordering them to prepare positions, to pile up rocks, to be ready for a stubborn fight.

    The attack was not long in coming.  The 15th Alabama attacked in force, charging up the steep hill several times.  The 20th suffered losses, but for the most part the men fared well in their defensive positions.  As the Alabama men probed for the 20th Maine’s flank, Chamberlain reportedly ordered his left flank to refuse the line, forming a new line at a 90-degree angle to the old.

    “Bayonets Forward!”  Gettysburg, PA, July 2, 1863 – Little Round Top – Colonel Joshua Chamberlain, his 20th Maine almost out of ammunition, orders a bayonet charge against a superior force of attacking Confederates.
    Original Commissioned by the U.S. Army War College, Carlisle, PA.

     

    During the fighting, Chamberlain was hit twice, both minor injuries; a bullet struck his sword scabbard, leaving a large bruise on his leg, and a spent bullet hit his boot.

    After several charges by the Alabama men convinced Chamberlain that the Confederates didn’t intend to give up, he decided to change tactics.  The Maine men were running low on ammo, and Chamberlain reckoned that charging down a hill beat the daylights out of charging up it, so he ordered his men to fix bayonets.

    The 20th fixed bayonets and charged.  As they charged, the left flank wheeled forward like a slamming door, hitting the 15th Alabama’s flank.  In the charge the 20th took over a hundred prisoners, including an Alabama captain captured personally by Chamberlain.

    Thus, ended the Battle of Little Round Top and the threat to the Federal left flank.  But while the battle ended that day, the history has stayed with us; when I was a U.S. Army officer candidate in the mid-Eighties, we studied this battle as an example of what thoughtful, courageous and committed leadership can achieve on the battlefield.

    The 20th Maine went on to fight at Cold Harbor, Second Petersburg, White Oak Road, Five Forks and Appomattox.  Chamberlain was badly wounded at Second Petersburg, taking a bullet through the hip.  The brigade surgeon predicted he would die, but he survived and, after an extended leave, during which he was promoted to Brigadier General – an honor that was intended to be posthumous – returned to duty.

    Because of his well-known bravery and gallantry, General Grant personally named General Chamberlain to accept the surrender of the arms of the Army of Northern Virginia.  Chamberlain, seeing the defeated Confederates lining up to surrender their muskets, raised some eyebrows when he ordered his men to attention, showing respect for a valiant foe.

    Thirty years after the Battle of Little Round Top, Chamberlain was belatedly presented with the Medal of Honor for his defense of the Federal flank; the citation described his “extraordinary heroism,” and “daring heroism and great tenacity.”  Fewer citations were delivered with such accuracy.  By war’s end, Chamberlain had served in twenty battles, been cited for courage four times, had six horses shot from under them and was wounded six times.  His biography, The Passing of the Armies, details all these things with much more detail that I could present here.

    His Golden Years

    Professor Chamberlain

    After the war, Chamberlain returned to Maine, where he won four one-year terms as Governor, in 1866, 1867, 1868 and 1869.  He eventually tired of political service and, in 1871, returned to Bowdoin College as President of the institution, a position he held until 1883, when complications of his Civil War wounds forced his resignation.

    But a few old wounds weren’t enough to keep Chamberlain at home.  He served as the Surveyor of the Port of Portland, Maine, dabbled in real estate, and even traveled to the West Coast to supervise the building of a railroad.  In 1898, he volunteered for service in the Spanish-American War, figuring that even a seventy-year-old man could serve in some way, but was rejected due to his age and the wounds from which he never fully recovered.

    Chamberlain died in 1914, not long before the explosion of the Great War in Europe.

    This is a particularly interesting piece for me to write.  The first two men portrayed in this series were remarkable in many ways; W.D.M. Bell was a man of iron courage and endless lust for adventure and possessor of an enormous set of brass balls, while John Johnston was an unsavory, drunken lout who nevertheless was tough, resolute and fearless.

    But unlike them, Joshua Chamberlain is one of my personal heroes, and has been since I first read an account of the battle of Little Round Top.  He possessed many admirable qualities, not least among them iron courage.  His is an example that young men today would do well to emulate.

  • A History of Bolt Guns, Part Four

    The Great War

    A War of Bolt Guns

    The 1914-1918 War was a horrific, world-changing event.  I won’t go into the causes of the conflict or the issues that arose from it, as that’s a story to be told some other time.  But whatever else it was, the Great War was the war of the bolt gun.  The War to End All Wars was the crucible in which the modern bolt-action rifle was formed, hardened and tempered.

    In this conflict, all the major players were using bolt-action rifles.  Autoloaders were at this time a novelty, considered too unreliable for martial use.   (There was at least one exception, which we’ll note later.)    Single-shot breechloaders were obsolete.  With a few exceptions lever guns never caught on as primary battle rifles.  World War I introduced the horrors of the machine gun, the airplane and the tank, but the primary soldier’s weapon was a turn-bolt rifle.

    The Allies

    Possibly a relative of mine.

    Britain and her Empire entered the war with the No. 1 Mk III Short Magazine Lee-Enfield (SMLE) as their primary service rifle.  The “Smelly” was a good infantry rifle, reliable, powerful and with twice the magazine capacity of most of its competition.  Its smooth action, rear-mounted bolt handle that placed the firing hand near the bolt handle when in operation, and the high magazine capacity for the time all combined to make for a high rate of fire.  Lee-Enfield rifles were at this time made around the Empire, mostly in the UK at not only the Enfield arsenal but also at the Royal Small Arms Factory at Smallbrook, the BSA and LSA small arms companies, the Lithgow Small Arms factory in Australia and the Ishapore Arsenal in British India.  Post Great-War variants were also made at the Long Branch Armory in Canada and by Savage Arms in the United States.

    France entered the war with a few older Gras, Kropatschek and Lebel rifles in inventory, but their primary Great War arm was the various marks of the Berthier rifle, a 3 or 5 round bolt gun firing the good old 8mm Lebel cartridge and later adapted to the new 7.5x54mm French service round.  The Berthier-pattern rifles were invented by a French civil engineer, Emile Berthier, whose primary occupation was the building of railroads; nevertheless, he came up with a pretty fair infantry weapon.  About two million of these guns were made in various configurations.

    In 1917, though, France did something unexpected; preceding America’s famous M1 Garand by quite a while, France adopted an autoloader, the Fusil Automatique Modèle 1917.  I know this is discussion of bolt guns, but this merits a mention; the Model 1917 was a gas-operated semi-auto that held five rounds of 8mm Lebel ammo in a clip-fed internal box magazine.  The rifle had some serious issues with reliability; from 1917 to 1921 only about 90,000 were made.

    Those Belgians and their wacky hats.

    The Kingdom of Belgium used a variety of rifles in the Great War, including the French Gras and Lebel rifles, but their primary arm was the 1889 Belgian Mauser, which were produced for the Belgian Army by the famed Fabrique Nationale until that works was overrun by the Germans, the first of two times that would happen in the 20th century.  While FN was in German hands, the Kingdom outsourced manufacture of the M89 rifle to Greener in England and Hopkins & Allen in the United States.  The M89 Belgian Mauser proved to have some serious staying power, as some were still in use by the Republic of Congo/Leopoldville as late as 1960.

    Russians, pre-Trump collusion.

    The Russian Empire’s participation in the Great War was cut short by two uprisings that saw the Tsar and his family dead and, in time, a new Bolshevik government in place.  The result of this was the formation of the Soviet Union in 1922, but the primary arm of the Red Army didn’t change; the Mosin-Nagant served Red Army soldiers as it had Imperial Russian soldiers before.

    I’m probably overly fond of twitting Mosin-Nagant aficionados with the roughness of that arm.  (All in good fun, of course.)  But the fact is that the Mosin-Nagant is a rifle admirably suited for what it was designed for:  Rough use in the field and casual maintenance by poorly educated peasant soldiers.  Years after the Mosin-Nagant first saw service a Soviet designer named Mikhail Kalashnikov designed a select-fire, medium-power short rifle with much the same types of soldiers in mind, and that arm was as successful in peasant armies worldwide as the Mosin-Nagant before it.

    It’s the mark of a good martial rifle that it suits the intended user.

    The Central Powers

    A German lad with his Gewehr 98.

    The GEW 98 saw the Imperial German Army through the Great War for the most part.  But the need for a shorter, lighter arm for cavalry and artillery units had led to the development of the kar98a in 1902, and that small-ring 98 carbine saw service with those mobile units in the Great War.  Some years ago, I managed to obtain a kar98a with an original bayonet.  I ran a few boxes of 8mm ammo through it – it kicked like a mule – and eventually, regrettably, ended up trading it off.

    I really need to think twice before selling/trading away a gun, given how often I end up wishing I hadn’t; but I also lack a giant Scrooge McDuckian vault to store my collection in, so…

    We’ve already discussed the Gewehr 98 in the last segment, so I won’t revisit that ground.  It’s worth remembering that the Gewehr 98 was produced and fielded in great numbers, over nine million being made.  It’s not particularly hard to find decent examples of this rifle today.  This first of the 98 Mauser service rifles was a great success, and it proved to only be the beginning of the career of this famous bolt gun action.

    In 1918, with the British beginning to field the MkI tank in some numbers, Mauser responded with their first attempt at a anti-armor weapon, that being the 13.2mm Mauser 1918 T-Gewehr, or anti-tank rifle.  This single-shot behemoth fired a .525 caliber, 795 grain bullets at about 2500 fps, and proved dangerous to the armor of the time.  While post-Great War advances in armor would swiftly make the anti-tank rifle obsolete, the T-Gewehr nevertheless remained in use until 1933.

    Meanwhile, the Ottoman Turks were building their own version of the Gewehr 98.  The M1903 Turkish Mauser was more or less a clone of the German rifle, using a large-ring 98 Mauser action and much of the same specifications.  There was one oddity in the Turkish guns; while they had a large-ring action, they used a barrel threaded to the pattern used for small-ring actions.

    When examining the Turkish Mausers, it’s important to note the manufacturer.  Guns made by Mauser were of good quality, but the guns I have examined that were built at Turkey’s Ankara appear to be of rather slapdash workmanship.  Also, late in the Great War and for a few years afterwards, some guns were assembled from parts with little regard for such things as tolerances and headspace.

    While the Turks were whiffing at the quality pitches, the Austro-Hungarian Empire had examined the rifles produced by one Ferdinand Mannlicher and found them worthy, and that evaluation was spot-on.  The Mannlicher designs included the M1890 carbine and the M1893 rifle, both traditional bolt guns, and the M1895 straight-pull bolt rifle.

    The United States: Early Player, Late Entry

    By the time the Great War’s western front had settled into an entrenched, fixed war of attrition, the British Empire was having trouble producing enough Lee-Enfield rifles to meet the needs of the troops.  In what was to prove a prescient move, they looked across the Atlantic to one of the Empire’s estranged offspring, who had grown mighty.

    The United States already had a substantial firearms industry by 1914.  Designers like John Browning and Sam Colt had made their name on the firearms world, so it wasn’t unreasonable for the British to think that America may be able to help supply their Tommies with shooting irons.

    The Pattern 17 Enfield.

    For a bit of relevant history, we must go back to 1899, to the Second Boer War.  The British were faced in that conflict by sharp-shooting Boer farmers mostly equipped with 1893 and 1895 Mausers firing the high-velocity 7x57mm cartridge.  To match that performance, in 1910 the British War Department developed their own 7mm cartridge, the .276 Enfield, and built a Mauser-pattern bolt gun to fire it, which was designated the Pattern 13 Enfield.  But the outbreak of the Great War dissuaded the War Department from attempting to field a new rifle and a new cartridge, so production of the No. 1 Mark III SMLE continued.

    But the pattern was not forgotten.  In 1914, the British Army contracted with the American manufacturers Remington and Winchester to produce a version of the Pattern 13 Enfield modified for the standard .303 cartridge.  This new rifle, the Pattern 14 Enfield, was slow in the developing and the British Army received no rifles until 1916.  Relatively few of these guns were delivered, and their long barrels and excellent accuracy resulted in most of them being used as sniper rifles.  The Pattern 14 was well suited for this, with a long (26”) barrel, good sights with the rear peep solidly protected by big steel mule-ear projections and the front sight likewise surrounded by steel guards.  It was a heavy, long piece but not unusually so for the time, and proved to be a good shooter.

    But the Enfield pattern didn’t end there.  When the United States entered the Great War in 1917, Remington, Winchester and the Eddystone Arsenal (a Remington property) quickly retooled to produce the Enfield design in the standard American rifle cartridge, the redoubtable caliber .30 Model of 1906.

    This new piece became the Pattern 17 Enfield rifle, and with three manufactories putting them out, the Enfield surpassed the standard issue 1903 Springfield in numbers supplied to American doughboys.  In fact, no less a figure than Alvin York performed his famous acts of marksmanship not with a Springfield, as has been shown in movies, but with a Pattern 17 Enfield.

    A bit over two million Pattern 17 rifles were built, and about one and a quarter million of the earlier Pattern 14 guns.  Later, the Pattern 14 actions became popular for rebarreling to the big new belted magnums that were making their appearance, as the .303 case head was similar in diameter to the belted magnums introduced by Holland & Holland.  Any reasonably-sized gun show in the United States to this day will have a few of these rifles on display.

    The Aftermath

    On the eleventh hour of the eleventh day of the eleventh month, the Great War ended.

    1903 NRA Springfield Sporter

    In the United States, 4.7 million doughboys returned home, bringing their new-found familiarity with the Springfield 03 and Pattern 17 Enfield rifles with them.  Many of them who were outdoorsmen and shooters, a proportion of the populace likely higher today than now, had cut their teeth on lever guns, but the accuracy and power of the military bolt guns and the .30-06 cartridge had made an impression.

    The Springfield Armory got in on the action, producing a civilian-sale version of the 1903 rifle known as the NRA Sporter, and plenty of surplus rifles were converted to sporters, as were many captured and surrendered Mausers and Mannlichers as well as Smellies and others.

    But that wasn’t going to keep up with demand.  American gun companies responded, and Remington was an early bird, adapting the Pattern 17 action into a civilian sporter and releasing it in 1921 as the Remington Model 30, initially available only in .30-06 but later in a variety of chamberings.  This was, of course, just the beginning.  Winchester and many other manufacturers were quick to follow; things were, as the kids say nowadays, about to get real.

    And Then This Happened

    It begins – the Remington Model 30.

    The War to End All Wars…  didn’t.  The sequel, World War II, again saw most of the major players operating bolt guns at the outset; the Brits used their updated Lee-Enfield throughout that conflict, the Soviet Union and Germany started with bolt guns and experimented with autoloaders   The United States mostly used the ground-breaking semi-auto M1 Garand throughout, although a fair number of 1903 and the later, cheaper 1903A3 bolt guns saw service early in the war.   And, of course, today, the bolt gun is absent from military use except in certain highly specialized applications, like snipers.

    But the Great War Part Two didn’t see much change in martial bolt guns.  There were some minor updates to Enfield, Mauser, Carcano, Mosin-Nagant and other rifles, but the form was pretty much set, and the rise of the military autoloader would see the bolt gun slowly phased out of the world’s armed services.

    On the civilian side, though, things were just getting started in 1918.  The bolt gun, with its strong, solid action capable of handling high-pressure cartridges, with its solid attachment of barrel to receiver with sights permanently fixed in place, had proven to be reliable, accurate and powerful.  What’s more, that solid receiver was ideal for mounting the newfangled telescopic sights that were becoming popular.

    The new trend in the game fields post WWI was towards bolt-action sporters, and a great expansion of rifles and cartridges was about to take place.  More on that in Part Five, in which we shift focus from military rifles to civilian sporters, which in my opinion are more fun.  And finally, in Part Six, we’ll examine the state of the bolt gun today.  Stay tuned.

  • A History of Bolt Guns, Part Three

    When Gunpowder Went Smokeless

    Germany Makes a Move

    We’ve got a lot of ground to cover and not much bandwidth, and this will be an image-heavy post to support that.  So hang on.

    While the French were developing the Lebel, Europe’s first military smokeless powder repeater in mass production, the Germans weren’t hiding behind the door.

    In response to France’s adoption of the Lebel rifle, the Germans did something that almost never happens – they formed a government commission that successfully designed a cutting-edge infantry rifle.

    The 1888 Commission Rifle
    The 1888 Commission Rifle

    The 1888 Commission rifle had a five-round magazine and a bolt with two locking lugs at the front of the bolt body.  While the 1888 is frequently referred to as the 1888 Mauser, this is incorrect, as Mauser had no hand in the design of this weapon and, in fact, made few if any of the almost three million Commission rifles; most were made by the Ludwig Loewe works (later renamed the Deutsch Waffen und Munition-Fabriken, or DWM) by the Steyr works in Austria and by Imperial arsenals at Amberg, Danzig, Erfurt and Spandau.

    The 1888 Commission rifle was only in primary German service for ten years, but it did have one outstanding characteristic:  Its cartridge.  The 1888 Commission rifle introduced the 7.92x57mm (generally known as the 8×57 Mauser) cartridge, in its original Patrone 88 J-bore configuration, firing a .318 diameter, 227-grain round-nose slug at about 2400 fps.

    The 7.92x57mm cartridge would effectively father an incredible variety of rifle cartridges.  Such legends of riflery as the great .30-06 Springfield, the .308 Winchester and the .270 Winchester share its case head, which has become damn near standard for medium-power bolt gun rounds.  Unlike the rimmed Lebel case, the 7.92x57mm was rimless, using an extraction groove in the case to remove fired cases from the chamber; this made it easier to feed rounds from a magazine quickly, smoothly and efficiently.

    Down in Oberndorf, Paul Mauser was, to put it mildly, displeased at the German government’s bypassing his design people to build their own infantry rifle.  Mauser-Werke was at the time still churning out the 71/84 rifle, but Paul Mauser had some ideas, and if the German government didn’t want an improved Mauser, there were other governments in Europe and elsewhere that would.

    The Run Up to The Final Mauser

    Mauser’s late-nineteenth century battle rifles went through three main phases, each marked by several technological innovations.  Those phases included:

    1. The 1889 Belgian, 1890 Turkish and 1891 Argentine Mausers
    2. The various 1893-1895 small-ring Mausers, which include the 1894 and 1896 Swedish Mausers
    3. The 1898 Mauser
    1889 Belgian Mauser

    So, let’s look at each in turn.

    By today’s standards, the 1889/90/91 rifles looked a little odd, at least if you’re used to more modern Mauser-type actions.  Missing was the big claw extractor.  The magazine was a protruding single-stack affair, loading five of the new 7.65x53mm Argentine cartridge, a fast, powerful round for the time.  But these rifles did retain the 71/84’s over the top safety and the bolt locked securely into the receiver ring by the expedient of two large opposed locking lugs at the front of the bolt.

    Some years ago, I picked up an 1891 Argentine that had been rebarreled with a 7x57mm tube and had a Redfield peep mounted on the receiver.  I put on a nice blonde walnut stock with a narrow Schnabel fore-end; I re-blued the action and refinished the wood, had the bolt body jeweled and a butterknife bolt handle installed.  It was a beautiful rifle, handy and light; I fed it mild handloads and killed a few deer and a couple of javelina with it.

    The Belgian Army used their 1889 model in the Great War; the Ottoman Turks still had some by that fateful day in 1914.  All in all, a little over a quarter-million of these rifles were made.

    1893 Mauser

    Following close on the heels of the Belgian/Turk/Argentine rifles came a new design, which entered the market with what became known as the 93/95 action.  This was a more modern-looking piece, retaining the safety but exchanging the single-stack magazine for a flush-fitting staggered-stack magazine, and introducing the characteristic claw extractor.  Previous Mausers were, like many modern bolt guns, push-feed operated; the bolt simply stripped a round from the magazine and pushed it into the chamber.  The new Mausers big claw extractor engaged the extraction groove on the cartridge and guided it into the chamber directly, making for what most bolt gun mavens consider a more reliable feed; the down side of this system is that one cannot simply drop a round in the action and close the bolt.  Loading a single round requires the shooter to place the round into the magazine so the bolt can engage it as designed.

    Most of the new Mausers were chambered for the new 7x57mm rimless cartridge, a low-recoil, high-velocity round that would prove popular in martial circles and, later, in the game fields.  In fact, of all the Mauser cartridges, the 7x57mm alone remains popular among American shooters to this day.  The first models turned out by Mauser went to Spain, and these rifles still are often referred to generically as “Spanish Mausers.”  But many of these guns were made and sold all over, seeing service with the armies of Belgium, Brazil, Chile, Congo, the Ottoman Empire and Serbia.

    In Sweden, the Carl Gustaf works turned out what may be the finest of the pre-98 rifles in the M94 and M96 Swedish Mausers, chambered for the excellent 6.5x55mm Swede cartridge.  Many Swedes have been imported into the States, and as they are easily converted into lightweight sporters, make excellent rifles for deer-sized game.

    In 1898, though, Paul Mauser produced his finest work.

    The 1898 (or, simply the 98) was the culmination of Mauser’s design work.  Most bolt-action sporters today are adaptations of the 98 Mauser.  This new action had a larger receiver ring with a stout reinforcing web, a solid bolt with the usual two big locking lugs but also a third safety lug at the rear; the bolt shroud was larger and had a large flange to direct hot gases away from the shooter in the event of a case rupture.

    There was one other major innovation.  Prior to the 98, Mauser actions combined the initial lift of the bolt handle with a slight camming action to initiate the extraction of a fired round.  When closing the bolt, the shooter was required to push the bolt home against the mainspring, thus cocking the piece.

    The Gewehr 98

    The 98 changed that, using the camming action of the bolt to cock the striker on opening, rather than closing.  This made operation of the action faster, more secure, and allowed the force of the run forward to be devoted to chambering the next round.

    It was with this action and the Gewehr 98 rifle built around it that Paul Mauser finally regained the attention of the German Army.  Germany entered the Great War fielding this long, heavy, powerful rifle and its 7.92x57mm S-bore (.323) cartridge; over 9 million Gewehr 98s were made, many millions more rifles were built around the basic M98 action, and the 98 Mauser action would become the basis for martial and sporting rifles all over the world.  I have in the past mentioned my favorite hunting rifle, built on a 98 Mauser action made by DWM in Berlin around 1911 on contract for Brazil; if you own a Winchester Model 70 or a Remington 700, you are shooting a rifle closely modeled after the 98 Mauser.

    Mauser produced a wonder, but across the English Channel, the Brits were developing a gun that may well have surpassed it as a pure battle rifle.

    Meanwhile, in Britain

    James Paris Lee

    In 1879, the British Army was looking to replace their single-shot black-powder Martini-Henry rifles with something more modern.  Enter a sporting chap named James Paris Lee.  Lee had developed a practical box magazine that allowed a shooter to load multiple rounds with a new device called a stripper clip, or to simply stuff single rounds into the magazine.

    Working with another inventor named William Ellis Medford, the two came up with a bolt-action repeater with an eight-round (later ten round) magazine, locking lugs on the rear of the bolt, and a cock-on-closing mechanism similar to the pre-98 Mausers, the thinking in Blighty being that the cock-on-close action was quicker to operate.

    My personal experience is just the opposite, but I’m just one guy, after all.

    While Lee-Enfield’s the short bolt throw (60 degrees compared to the Mauser’s 90) was probably as much to do with that quick operation as the action, nevertheless the new rifle proved acceptable and in 1888, after nine years of tests, the British Army adopted the Lee-Metford magazine rifle and its .303 rimmed cartridge.

    Important note:  In the last issue I incorrectly identified the Italian Vetterli as the first mass-produced bolt gun with a box magazine; as a sharp-eyed reader noted, the Lee-Metford preceded it.

    The Lee-Metford rifle would, however, only stay in primary service until 1895, when a modified version was adopted.  This was the Short Magazine Lee-Enfield (SMLE) rifle, a ten-shot magazine-fed adaptation of the Lee-Metford built at the Royal Small Arms Factory in Enfield.

    The Lee-Enfield

    The Lee-Enfield would prove successful indeed as a battle rifle.  Its ten-round capacity was double that of most magazine rifles of the time.  Like its competitors it would be loaded by stripper clip or with single rounds; unlike them, the magazine could be removed from the rifle and replaced with a loaded one, although this practice was not encouraged at the time due to fears that the common soldiery would simply lose the detached magazines.

    Over seventeen million Lee-Enfield rifles would be manufactured in several variations.

    But about this time, across the Atlantic, the United States Army was finally thinking of moving past single-shot black-powder breechloaders, and another Lee design would be part of that calculation.

    The Americans Upgrade

    In 1894, the same year the immortal Winchester Repeating Arms Company brought out the immortal 1894 lever gun, the U.S. military was looking around for a smokeless-powder repeater to replace their single-shot black-powder Springfields.  The Navy chose to adopt a semi-rimmed 6mm cartridge, and the Navy Test Board invited manufacturers to submit repeaters for their testing at the Naval Torpedo Station.

    After screening a mess of rifles, including no less than five Remington bolt-action prototypes, the Navy settled on a straight-pull bolt gun designed by no less than James Paris Lee.

    The M1895 Lee Navy rifle had a fixed box magazine that was loaded with a five-round en bloc clip, which had the advantage of speedy reloads but the disadvantage of not being able to top off the magazine with single rounds.  Nevertheless, the Lee was an interesting design and, in 1895, the choice of the small-bore cartridge was unprecedented.

    That cartridge design survives today, incidentally, necked down to .22 caliber, as the .220 Swift.

    The Lee Navy rifle only ended up in front-line service for three years, though, as in 1898 a board of Army, Navy and Marine officers determined a standard rifle was in order.

    The 1898 Krag Rifle.

    The story of the first inter-service standard turn-bolt repeater begins in Norway with a gun designer named Ole Herman Johannes Krag and a gunsmith named Erik Jørgensen.  Krag had been in the small-arms business since 1866 and was unsatisfied with the tubular magazines in military rifles of the time; he sought out Jørgensen to design something new.  What they came up with was a solid bolt gun with a 5-round magazine that loaded through a loading gate on the right-hand side of the rifle.  This novel loading system had two big advantages; it allowed for topping up the magazine with single loads, and allowed for fast reloads as loose rounds could be dumped into the open magazine gate and, when the spring-loaded gate was closed, the rounds would automatically be aligned for proper feeding.

    Denmark had adopted what became the Krag-Jørgensen repeater in 1889.  In 1892, after a competition among 53 rifle designs, the U.S. Army, Navy and Marines adopted what would be called the M1892 Krag rifle, firing the .30 Government cartridge, later known as the .30-40 Krag.

    The Krag was a good, solid reliable rifle.  About half a million were manufactured by the Springfield Armory between 1892 and 1907.  Krag repeaters saw service in the Spanish-American war, the Philippine Insurrection, the Boxer Rebellion and the Mexican Revolution, and as a reserve weapon in the Great War.  But during the Spanish-American War, the Krag performed poorly against Spanish troops armed with 1893 Mausers and their 7x57mm cartridge.  The Army determined that a more modern rifle was in order.

    The Great Springfield.

    Thousands of Spanish Mausers were surrendered by Spanish soldiers in Cuba.  Many of those found their way to Massachusetts, where Springfield Armory gunsmiths examined that design and came up with an American counterpart.  Features of the 93 and 98 Mauser patterns were combined along with some American requirements, like a knurled cocking knob on the striker rear and a magazine cut-off.  A new, powerful rimless cartridge was designed that fired a 220-grain round-nose jacketed bullet at about 2200 fps, but after three years and a distinct lack of zap, the original .30-03 round was replaced by a new round with a slightly shorter-necked round firing a 150-grain spitzer bullet at about 2800 fps.  Now the combination of rifle and cartridge was complete:  The M1903 Springfield and the Ball Cartridge, Caliber .30, Model of 1906, or simply the .30-06, which remains today one of the most popular centerfire rifle cartridges in the world; it has been claimed that more North American big game has been killed with .30-06 rounds than by all other centerfire rifle cartridges combined and while I have never seen numbers to support that, I don’t find it outside the realm of possibility.

    This rifle would be the primary weapon of the U.S. Army and Marines when the U.S. entered the Great War in 1917.

    In Russia

    The story of bolt-action repeaters in Russia is the story of the Mosin-Nagant.

    A middling rifle, but a great tent pole.

    Russian troops were armed with the Berdan single-shot rifle when they went off to fight the Ottoman Turks in the Russo-Ottoman War of 1877.  Unfortunately for them, the Turks were equipped with Winchester repeaters.  Although Russia eventually won that conflict, the Russian troops fared poorly in direct action against the fast-firing Turks, and this was enough to make even Russian military planners realize a change was in order.

    In 1889, the Russian Army evaluated three rifles:  Captain Sergei Ivanovich Mosin’s “3-line” (.30 caliber) rifle, Belgian Leon Nagant’s “3.5-line” (.35 caliber, more or less) rifle and third design by one Captain Zinoviev.  Trials continued until 1891, when the officers in charge of the evaluation commission decided to combine the best features of the first two rifles, resulting in the M1891 Mosin-Nagant rifle.

    The Mosin-Nagant was certainly a robust piece, even if most examples I have seen lacked the fit and polish of German, British and American-made rifles of the time.  The M1891 used two big opposed front locking lugs like the 98 Mauser, a fixed single-stack magazine like the 89/91 Mausers and a push-feed system.

    Like the Kalashnikov rifles that succeeded it, the Mosin-Nagant was stoutly built, made to withstand slapdash maintenance and hard use by poorly educated peasant soldiers.  Its 7.65x53R cartridge was on a par with the German, British and American rounds, and the Russian rifle, however rough in design, certainly stood the test of time.  Like the AK, it was service all over the world; also, like the AK, it is impossible to know precisely how many Mosin-Nagant variants have been built, but the number probably approaches forty million.

    And Then This Happened

    There is a saying among bolt gun aficionados that among Great War battle rifles, “the Mauser is the best hunting rifle, the Springfield the best target rifle, and the Lee-Enfield the best battle rifle.”  (The Mosin-Nagant, on the other hand, made the best tent pole.)  The Great War provided us with plenty of evidence of how these three guns worked in action, but truisms aside, the impact of these pieces would go well beyond the war.

    With the breakout of the Great War, the Allied powers and the Triple Alliance were all equipped with bolt guns.  While the European powers went into the fray well-equipped, the British found themselves struggling to produce enough Lee-Enfield rifles for their troops.

    Enter that industrial powerhouse across the Atlantic.  Great Britain’s estranged offspring, the United States, was about to bail out the Brits (not for the last time) by producing a new bolt rifle for the .303 British round – and later, in 1917, another version of that same rifle to supplement the standard-issue Springfield.  The result of that was almost five million American doughboys who became accustomed to shooting bolt guns at the detested Hun, and an American firearms industry that was suddenly proficient at building bolt guns.  More on this in Part Four.

    This trend would continue through the inter-war years.  While the American bolt gun trend started with service rifles, the various gun companies here would quickly bring out their own bolt-action sporters, and competition among the companies resulted in a great variety of rifles available for sale.  We’ve already examined the career of the prescient Charles Newton in a separate work, but Newton had plenty of competition.

    Americans then and now love them some guns.  Plenty of shooters then and now like to be in on the latest big thing, and after the Great War and on into the rest of the 20th century, bolt-action sporters were the New Hotness.  Not to be left out, European manufacturers weren’t about to miss this growing market either.  But that’s a story for Part Five.

  • The Lost Company

    Pretty damn small

    After we lost the house, the wife and I ended up at her Mom’s house.  Wendy in the spare bedroom and I live in a very small room in the back of the garage with Bella and my cat. Even though we are saving money and my studio is in storage, I still needed a small project to occupy my limited free time, so I went small scale and cheap. How small?

    I found some Sherman tanks in 1/300 scale, ordered them, and then came up empty searching for more tanks, what to do?

    Dollar tree diorama

    I managed to find some scale people that architects use and bought 100 for five bucks, now what?

    Off to DT! Purchase glue, spackle, modge, podge, painters blue, florist foam and a strong flat picture frame, oh and some baking soda…

    Next we go to Hobby Lobby for acrylic paints and a few brushes, and off we go.

    After a few afternoons worth of work this is the result.  I love the way the road cuts turned out, the stone looks pretty nice, and the mud/ice mix is just right.

     

     

    The only thing left is the trees; coming from China, hard to find, but that will wait until next time.

    Coming in at a whopping 10 inches square, this the smallest I have done.  The men are ¼” tall, the tanks are the size of a quarter, and I’m going blind here. While it’s one of my best, it’s more like a desk ornament than anything else. It may even get sold, but we shall see.

    As of this writing, I’m in a motel and the situation is tenuous at best, so this project is in storage til my trees come in.  Once they arrive, I’ll bring it out and finish it, hopefully. Lesson learned? Don’t just buy stuff hoping you can find other stuff—Research Dammit! So the next project will be in 1/144 scale, I bought a few, then my friend tells me he has about 14 more, in collectible boxes, these should work.

    MOAR TANKZ

     

    The story:  December 1944

    Elements of Patton’s 3rd Army are northbound for Bastogne and have become hopelessly lost.  Upon hooking up with an infantry company, they proceed north.  There just isn’t much more to add, perhaps a stray mortar shell?

    Link to album, some good pix.  Also, gas prices are outrageous, and Belarus Women are as crazy a German Women, until next time…

    CHANGE YOUR FILTER!