Executive Order 13139, which implements 10 U.S.C. § 1107, clearly states that the requirements it incorporated from the statute are for internal management only and confer no right enforceable by any party against the United States. E.O. 13139, §6(b). Additionally, Secretary of the Navy Instruction 6230.4 of 29 April 1998, which implements the Department’s anthrax vaccination implementation program states that the anthrax vaccine is a FDA-licensed product and not an IND requiring informed consent for its administration.
“Someone from the editorial board will be down to get you and bring you up to the Boardroom in a minute,” the secretary smiled politely and then went back to answering the telephone, no longer concerned with my presence. I looked around the foyer of the Army Times Publishing Company. It was a large, open-air affair. Just past the circular receptionist’s desk there was a staircase leading to the upper floors. Beyond that the ceiling opened up all the way to the top of the building and I could see people moving on the upper catwalks, worker-bees in the hive. Off to my left was a hallway that disappeared out of view, with an elevator at the beginning where it opened into the foyer. To the right looked like a glass-enclosed company store with the usual assortment of sweatshirts, tee-shirts, and coffee mugs with the company logo on them. Army Times published a newspaper dedicated to each service, with the imprint Marine Corps Times, Navy Times, etc. The papers were widely read and respected in each service. I didn’t know how it had happened, but my friends had gotten us a meeting with the Editorial Board of the parent company.
The door behind me came open and I could feel the cold December air blow in. I played with the zipper on my flight jacket, trying not to fidget. A Marine officer in uniform should not appear nervous. An older gentleman walking by with a long-sleeve tee-shirt with the company logo smiled at me.
“How are you today, Captain?” He was looking at the leather patch with the wings on it on the front of my jacket.
“Fine, sir. Thank you.” I flipped my fore and aft cap around in my hand and then looked at my watch. I was forty-five minutes late but the receptionist told me when I asked that the meeting had gotten a late start. I hoped my part hadn’t come up yet. I started thinking that maybe I should have brought my briefcase in with me. Right then a young black woman appeared from the stairs and looked at me for confirmation.
“Captain Saran?” I nodded. “Come with me, please.”
“Thank you,” I responded and followed her up the stairs. As we turned for the second flight I saw a familiar face. Colonel John Richardson, United States Air Force Reserve, was coming down the stairs in a light blue power-suit. He smiled and stuck out his hand.
“Great to see you, Dale, traffic was terrible, huh?” We shook hands as he reached my step.
“Meh, just sick as a dog. I would have stayed home had my boss not made me go in this morning.” I tried not to whine but I felt like crap. My wife and four girls were all sick at home with some kind of stomach virus that had everyone throwing up, including me. I had gotten back from the hospital with my wife the night before at 2:00 am and I still felt weak and achy.
“Well, go on up,” he said. “Lou is on right now, then Russ, then you. Are you sure you’re still okay doing this? You know you don’t have to?”
“No, JR, I’m fine. I just don’t care anymore. Lou and I talked about my status and the relevant instructions. This is a freely made decision. Sometimes a man’s gotta stand up and be counted.” Though he was quite senior to me, I had come to know and think of him by his nickname from our many e-mail chats.
“Okay,” he nodded reassuringly. “I’ll be up in a minute.” JR turned and continued down the stairs.
“Great,” I answered with more enthusiasm then my body had in it.
It wasn’t bravado, nor some inflated sense of honor; I felt comfortable talking to John Richardson about such matters as personal honor and integrity. All of the members of our small band had incurred significant professional risks and opprobrium already in order to bring the flaws and illegality of the anthrax program to light. I couldn’t very well be a part of their group and not be willing to stick out my neck. They had all done a lot more.
My guide and I reached the top of the stairs, turned left, and I could see a set of large oak wooden doors. As we got closer, I could see a little placard that read “Main Boardroom.”
“Here you are,” the young lady said and turned away as I reached for the door. I could hear voices. I wanted to make as unobtrusive an entrance as possible so I turned the doorknob slowly and tried to slip in.
I took in the room with a glance. There were two groups of people – ours and theirs. About seven or eight reporters and editors on the far side of a long meeting table, none of whom I knew or recognized. Everyone had a placard identifying them, but I didn’t have time to read each one. Behind “them” was a bright light with an umbrella behind it and a photographer taking pictures. On “our” side of the table there were five men, three I knew, two I guessed at their identities by our email correspondence. ‘Lou’ Michels – actually J.J. Michels, Lieutenant Colonel, USAFR, attorney-at-law, as well as partner at McGuire, Battle, and Woods, whom I had met at David Ponder’s Congressional testimony – was speaking intently.
“Hey, Dale! Come on in,” he waved me in without breaking stride. “Hey, Lou” I replied and started to take off my coat, heading for the seat on his left, farthest from the door. “So again,” he went on, “the informed consent issue is completely separate from the issue about whether or not the vaccine is safe and effective.” As I reached the seat beside him and slid into it, I could feel people on the other side of the table watching me. The photographer started snapping pictures of me.
I am not impressive in uniform, but I had a few “been there” ribbons from when the squadron I was with rescued Air Force Captain Scott O’Grady from inside Bosnia-Herzegovinia in 1995. Atop the few ribbons I had was a set of gold Naval Aviator’s wings. I could tell the reporters on the other side of the table were curious about where I fit into all of this. Not wanting to appear self-conscious, I swiveled my chair to face Lou as he spoke. I could hear the shutter of the camera clicking. I could only imagine what my boss was going to think if a color photo of me showed up in the next issue of Marine Corps Times. I began to wonder if I should have agreed to do this after all. I was just snapping into my new job as a prosecutor and here I was (still) playing defense attorney – to the media, no less, against the entire U.S. military.
I listened attentively, even though I had heard Lou make this argument before Congress and I had made a more detailed version of the same one to a judge on several occasions myself. Lou Michels is a seasoned attorney at a prestigious law firm and a former active duty Air Force officer. He is articulate and confident when he speaks, particularly on the legality of the anthrax vaccine. Although I was a Captain and he was a Lieutenant Colonel in the Reserves, I had come to think of Lou, and all the members of our group as a kind of Robin Hood and His Merry Men-like affair. There was JR who was the most senior of all, a full bird Colonel; Tom “Buzz” Rempfer, a Major, Air Force Academy graduate, F-16 and A-10 pilot; Russ Dingle, also a Major and A-10 pilot, and Redmond Handy, another Colonel. Despite the fact that I was by far the junior member of the group, it all felt quite easy and natural. I was conscious of my place in the hierarchy, but certainly not anything like a chain-of-command. Perhaps it was because more than a few of us were former pilots and pilots have a long history of being somewhat less conscious of rank and more conscious of ability, a byproduct of the nature of aviation.
“It’s like Rogaine,” Lou continued on, “which has some particular relevance to my own situation,” he added parenthetically, looking upward with his eyes toward his own hairline. I noticed for the first time that he had a small patch of thinning hair on the back of his head. “It was originally licensed by the Food and Drug Administration as a blood pressure medication. Now, during some of the trials they determined that it would grow hair on a billiard ball. Notwithstanding the fact that it was already licensed, they had to go back and get a change in the license because of the change in the purpose for which it was going to be used.” He paused for that to sink in. He looked around the table at each of the editors and reporters, the shutter of the camera clicked away. “That’s the law for getting medications legally approved. It is even more imperative when it involves biologics like vaccines.”
Lou went on for a while longer, hitting the high points of his brief and then excusing himself. I knew he had another meeting to attend at his law firm. We had talked on the phone the day before and everyone knew what their role was in this presentation.
Russ Dingle, Major, USAFR, went next. He gave a presentation of how the vaccine was, by the definition in the FDA regulations, an “adulterated product” and thus should not be allowed to be shipped in interstate commerce. I had not heard his presentation and I had not met Russ before, except to exchange a few emails over the previous nine months. His knowledge of the company that makes the anthrax vaccine, BioPort, Inc., was unmatched. The reporters asked questions and Russ always had an answer and could cite to the document from which he got it. I was known among my colleagues for being able to pull legal case cites out of my ass on demand, but Russ made me envious.
I had read all of the FDA inspection reports, but he obviously had access to information that I had never even guessed at. John Richardson had told me that he and Russ had been going through twenty-six boxes of information that they had gotten access to from the House Committee on Government Reform. Russ appeared to have memorized all twenty-six boxes. When he started describing how BioPort’s predecessor in interest, Michigan Biologic Products Institute had added two fermenters to its production line without FDA approval, then added two more and removed the original fermenter from the production line, I felt like my defense of David Ponder and Jason Stonewall had been inadequate.
As I listened to Russ detail the failed inspections – the dripping paint into production vats, contaminated product lots containing other medicines like penicillin in them, and a list of other egregious quality control violations – the anger and frustration of nine months of defending David ponder and Jason Stonewall welled-up in me. Even worse, the Navy-Marine Corps Court of Criminal Appeals had denied our writ-appeal of the judge’s ruling on our motions. I had until today to submit an appeal of the NMCCA decision to the highest military appellate court, the Court of Appeals for the Armed Forces, one step below the Supreme Court of the United States. My turn was approaching, so I tried to focus and make sure I maintained the momentum in our joint presentation. I also knew I had to control my mouth; the Judge Advocate General (JAG) Instruction that controls the conduct of Navy and Marine Corps attorneys had strict limits on what attorneys could say to the press and I still technically had pending cases on this issue.
As a practical matter, most Judge Advocates (myself included) avoided the press completely and referred any questions to the Public Affairs Office (PAO). I was cognizant of the Code of Professional Responsibility for lawyers that also prohibits using the press to influence the outcome of a court. I had just moved to Quantico, Virginia, and, due to my daughter’s health problems, I was now working as a prosecutor in the Office of the Staff Judge Advocate, Marine Corps Base Quantico, Virginia. I didn’t think my new boss, a long-time Colonel, would be particularly enthused to see my name popping up in the Marine Corps Times bashing the government’s anthrax program.
An Air Force doctor, Captain John Buck in Biloxi, Mississippi, had requested me to be his Individual Military Counsel (IMC) and that request had been denied by my bosses – they had good legal reasons, but in my heart I had hoped that they would carve an exception and let me do it. It dawned on me that perhaps I had become too personally involved with the anthrax issue and that it might be affecting my judgment as a lawyer, but I had been over that ground both in my own mind and with my clients many times.
“And that’s the vaccine that the Department of Defense is making your service members take, under threat of imprisonment,” I heard Buzz saying. He and Russ had been thrown out of their Connecticut Guard unit over the Anthrax Vaccine Immunization Program (AVIP). Tom looked nothing like what I had imagined. He was young, lean, and a poster-boy for an Air Force pilot. I had pictured him much older from my conversations on e-mail with him.
“And now,” he went on, “Captain Dale Saran, U.S. Marine Corps, will brief you on some of the current anthrax cases and their status. Dale,” Tom turned to me and winked.
“Thanks, Buzz,” I answered and turned to my section in the briefing book that John Richardson and some of the others had put together the previous few days. I looked up at the reporters across from me. I tried to ignore the photographer snapping pictures. I could handle my portion of the brief any number of ways. Cool, dispassionate, the quintessential picture of a lawyer. A bit of an act for me, as I am a much more direct and blunt naturally, but I was trying to gauge my audience. What would be most convincing to a group of reporters? I could be more intense, somewhat exasperated at the situation my clients find themselves in. I decided against that – the last thing I wanted to do was come across as histrionic. I had thought a lot about this moment and had never been able to arrive at a decision. I decided to just start speaking and see where it took me.
I cannot remember exactly what I said, but at one point I recall answering some questions about the status of our appeal.
“This is nothing new,” I blurted out. There was silence from the other side of the table. “I invite any of you to look at the history behind the current version of Title Ten, section eleven-oh-seven.” And then I launched into my argument. I could feel myself heating-up as I recounted the use of the investigational and experimental drugs on troops prior to and during the Gulf War. I explained how the Food and Drug Administration had struck a deal with the Department of Defense to grant a waiver to allow these drugs to be used on service members without telling them what was being used on them. I recounted the withdrawal of this waiver and the reports of Gulf War Illness. I spoke forcefully, passionately, without consideration for what the ramifications might be to me. I spoke The Truth as I had come to know it in the past year defending my clients.
I took a breath and looked around. Tom Rempfer and my cohorts were looking at me, waiting for more. I gathered myself, the calm after the storm.
“That is exactly why this statute was passed, to prevent these types of things from happening again, to prevent another Gulf War-type Illness.” There were some questions. I answered and eventually Tom or someone else picked up a thread and my turn was done. I had so much more I wanted to say. I wanted them to know The Truth, The Whole Truth, as I had come to know it down to the marrow in my bones.
I looked at my watch. Shit! I thought. I still had to get to CAAF in downtown D.C. and turn in Petty Officer Ponder’s writ-appeal of the NMCCA decision rejecting our request for extraordinary relief. I had to go.
I listened for a while and slipped out at an appropriate time, saying my goodbyes by touching each man’s shoulder briefly as I passed on the way out. I was proud to have been invited to be a part of their panel.
Outside the snow was beginning to fall more heavily. I started our family minivan and quickly got into the flow of traffic inbound on I-395 for the District. I had a writ-appeal to finish typing on my laptop and I didn’t have much time to get it into the Court. With the NMCCA decision, the stay on our court-martial had been lifted. Although David Ponder had come home to Mississippi and his wife and son, Jason Stonewall and Vitolino Arroyo were still in Okinawa, six months after their unit had left and returned to Camp Lejeune, North Carolina, and all three were facing the brig unless I got a higher court to listen to me and overturn the lower appellate court. I looked at my watch again. Suddenly that stay – and the nail in Kolomjec’s door on Okinawa – seemed a very hollow victory.
 Ponder v. Stone, 56 M.J. 613 (NMCCA, 2000)