As I sit writing this, August 25, 2001, the DoD has recently asserted that if the manufacturer, BioPort, Inc., passes an October inspection, the anthrax program will re-commence. I hope to be out of the Marine Corps by then. These are the unseen casualties of the program. Notwithstanding my personal journey to disillusionment, I remain dedicated to Marines and the principles the Marine Corps stands for. As a result, I feel compelled to offer a kind of “after action report” or lessons learned section on the AVIP.
First, compulsory inoculation as a pretreatment for biological warfare has not received the kind of public debate and scrutiny that it should. Before we pass such programs off as “just another shot,” there needs to be some discussion about the competing interests involved. Routine immunizations are not at issue and the DoD’s attempts to paint the anthrax vaccine as routine are disturbing.
Chemical and biological warfare defense has changed the face of terrorism and warfare. Genetic engineering of agents may make vaccines useless. Individual immune response may vitiate any vaccine’s effectiveness. Adverse reaction rates vary from vaccine to vaccine and must be known before mass troop inoculation begins.
Long term effects are important for veterans who leave active duty. If a vaccine or treatment causes long-term health effects, a veteran has to show “service connection” for the disability in order to rate VA benefits. If the long-term effects are not known, veterans may well be left with severe disabilities, diseases, or other effects and have no way to get help down the road. Interactions between treatments should also be studied, as well as the potential threats, lest the Gulf War situation be repeated and troops are given a defense which may enhance the effects of certain agents while protecting against others.
These kinds of broad considerations, and a host not listed, must be looked at and balanced before any vaccine or treatment is given. The use of pretreatments necessitates a comprehensive policymaking process, rather than the helter skelter approach taken by Secretary Cohen for political considerations. Title 10, section 1107, appears to strike this balance and require the President to assume the political responsibility and consequences for such a decision. In short, Congress should enforce this statute strictly and treat violations of it as contempt of Congress and call those who violate it to accounting or cut off funding for such programs.
Additionally, the President should closely scrutinize any such program. A mass vaccination program, if not done properly, threatens the health, welfare, and rights of 2.4 million service members, something no single terrorist weapon could do. The President must have consultations with both proponents and opponents of any program before a decision is made to ensure that he has all of the accurate information. This is because, unfortunately, it appears that those in senior leadership positions would rather tell those at the highest level of leadership what they want to hear than the truth.
Finally, senior Generals and medical officers have to be prepared to sacrifice their careers for something higher – their oath to the Constitution. There was a time in the military when senior military officers spoke their minds and were willing to accept the consequences for saying their piece. In the case of the anthrax program, no senior military or medical officer was willing to do so. They must, however, because ultimately, such well-intentioned but ill-executed programs threaten something even more essential to the welfare of our Armed Forces, trust. This trust has become even more important now that we have gone to an all-volunteer force. Gone are the days of ordering conscripts, some without high-school diplomas, to comply because someone in authority said so. We now live in the information age and new troops, even young, eager ones, have grown up with a healthy dose of cynicism. If leaders in the military are going to be effective, we have to deal with the unvarnished truth, pleasant or not. Spin never works. It always comes across as just what it is – an attempt to manipulate the truth for some purpose, rather than deal with those who serve with the same level of integrity that we demand of them.
Unfortunately, right now, junior troops are the ones standing up for what’s right and military courts are refusing to allow them to be heard. Congress should grant relief to anyone who has been disciplined for refusing this vaccine and call on the carpet those political and military leaders who have foisted this program off on unsuspecting and trusting troops. Anything less will leave a stain on the honor of our military. Given its history and its desire to continue with such programs in the future, the DoD can hardly afford to give away what’s left of its tattered credibility.
It’s… odd to read something you wrote almost twenty years ago. I left this above segment from the original book in order to convey context both of the time in which I wrote it and the age I was at that time. I’m not going to poke (too much) fun at the earnestness of my early-thirties Self, but I can’t help but smile when I read this. How serious I was about “fixing” – or at least reporting on – what I believed was an extraordinary and unique event that I just happened to stumble into! Like Scooby and Shaggy and the whole Gang after the Mystery Machine got a flat near that spooky-looking hotel. In my defense, it really was my first direct contact with Leviathan and I was naïve.
The story – and the fight – didn’t end with the convictions of my clients. I had continued to work behind the scenes with Tom Rempfer, Russ Dingle, Lou Michels, and others in our band of merry malcontents, even as I worked in my day job as the chief prosecutor for Marine Corps Base Quantico, Virginia. Of course, 9/11 threw a wrench into everyone’s lives; mine more than some, but certainly less than others like those in the Twin Towers. I was an active duty Marine Captain when the planes hit that September morning. I was still processing what it all meant when the anthrax letter attacks happened exactly one week later – September 18, 2001.
Those two events conspired to make every page of what I had written about the government’s anthrax program instantly worthless. My literary agent’s enthusiasm for my book excoriating the DoD AVIP evaporated faster than water on Phoenix asphalt in summer. Like a mirage. Pundits began seriously discussing vaccinating the entire U.S. population and there I was doing the literary equivalent (to my agent) of screaming “WOLF!” at the top of my lungs. It was just another part of the roller-coaster ride, one of the bigger ‘lows’ that continued to dominate that part of my professional life for many years, long after I had left my original clients behind. There were a few highs, as well, even the hope of Justice.
In March of 2003, Tom, Lou, et al. put together a group of plaintiffs and filed for a temporary restraining order/injunction and a declaratory judgment against the DoD, the Department of Health and Human Services, and the FDA.[i] By then I was in training for deployment to Afghanistan to do my part in the GWOT, but I helped out as I could, mostly moral support and some editing of briefs. For a while it even looked like Justice might be done when the judge in the case issued a temporary injunction and a thoughtful justification as to why. It looked like there was finally a jurist who listened and understood the arguments.
Pending before this Court is a Motion for a Preliminary Injunction. The central question before this Court is whether AVA is an ‘investigational’ drug or a drug unapproved for its use against inhalation anthrax. Upon consideration of plaintiffs’ motion for a preliminary injunction, the opposition, the reply, and oral arguments, as well as the statutory and case law governing the issues, and for the following reasons, it is, by the Court, hereby ORDERED that the Motion for a Preliminary Injunction is GRANTED. In the absence of a presidential waiver, defendants are enjoined from inoculating service members without their consent.[ii]
When I got the email and read the ruling just before Christmas 2003, I felt a sense of vindication that’s hard to describe. In that moment, I thought a great Wrong had been made Right; that the Law had finally come around to correcting the Injustice done to my clients. I was already formulating the email I would right to help them get their records corrected.
Eight days after the injunction, over the Christmas shutdown that normally predominates Washington, D.C., the FDA suddenly issued a new ruling on the status of the AVA, placing it into Category I – stating that the vaccine was effective irrespective of route of exposure! There was zero data to support such a claim. It started to dawn on me that the “highs” of our fight were merely the tops of the roller coaster ride – and each one would be quickly followed by a corresponding drop – or worse.
In 2004, the Court admonished the FDA, wiped out the hurried order, and issued a permanent injunction, but I couldn’t celebrate. I had my fly date for Afghanistan and my concerns were narrowed to life-preserving essentials. Me being me, however, I sent a copy of the court’s order to the judge that had sentenced my clients to jail. Yes, I’m that guy. Years after an argument, there I was sending an Article III court’s decision to the Article I judge just to let him know: See? I was right after all, fucker.
Just another chunk-chunk climb to the peak before the inevitable drop.
While I was spending most of the next two years doing my part in the hunt for bin Laden, the FBI was chasing down leads for the anthrax letter attacks. It ended right where those of us close to the issue knew it would: at Fort Dietrich, Maryland, home of the United States’ biological warfare program. Federal law outlaws the offensive use of chem-bio weapons, so what is developed there is always claimed to be for defensive purposes only, but as soon as the anthrax letter attacks happened, our crew had already narrowed the suspects down to two: Russia and the United States. Anthrax is, comparatively speaking, a rather large and clumpy molecule and trying to aerosolize it – that is, make it into a sufficiently fine powder for dispersal that will fit through sprayer nozzles – requires significant technical capability, a capability known to be possessed by only two labs on planet Earth: Theirs and Ours.
Of course, that’s not how it played out in Washington, D.C. Robert Mueller was the Director of the FBI at the time and those paragons of virtue and investigative acumen focused on Steven Hatfill, a bioweapons expert and civilian who worked at USAMRIID, who had been publicly named by some woman on her website. Politicians, including president Bush, rushed to blame Iraq’s weapons program. Indeed, the wiki on the subject does a fairly good job of outlining all of the political and media pressure that blamed a whole slew of convenient targets, none of which were close to being correct, but “coincidentally” served a variety of political narratives, for both Team Blue and Team Red.
Meanwhile, in our case, the DoD and other defendants took an appeal and, while the case was still pending, the FDA dotted every I, crossed every T, and made certain that no federal district court could overturn its decision on the AVA.[iii] Under the deferential review standards[iv] the Supreme Court has laid upon the judiciary, we never had a chance. It was more crooked than a hundred miles of country road, but the DoD was not going to let some uppity lawyers, or malcontent soldiers, stop a multi-billion dollar program that was supposed to be the crown jewel of its biological defense initiatives.
By spring of 2006, my war was over and I came home to start life again. This included solo legal practice and, given my background, I found myself representing servicemembers and veterans in courts-martial and records correction cases. Back then, a google search of my name would mostly return press around my time fighting the anthrax vaccine. I also got involved in Tom Rempfer’s attempts to correct his service records in light of what had been done to him over his stance against the AVA.
Then came Kisala. I can’t even bring myself to read it again, even now.
Okay, fine. I did it. I went back and read it.
Yes, it’s just as bad as I remembered.
Andrew Kisala was a soldier at Fort Bragg who refused the anthrax vaccine for all of the reasons I’ve outlined in this book. I know this because I was involved in almost every anthrax refusal case and I had passed along all of my work – motions, pleadings, documents, witnesses, everything – to every lawyer who had a refusal case. Kisala’s lawyers made all of the arguments, and even though a federal district court judge, Judge Emmet Sullivan,[v] had found that the FDA had not been licensed for the purpose it was being used in vaccinating soldiers and therefore that the order to take it was unlawful, the Court of Appeals for the Armed Forces made it all retroactively “good” by upholding Kisala’s conviction. To be clear, Kisala was given the order, tried, and convicted all the way back in 2000, when my clients were, yet CAAF relied upon the subsequent FDA “fix” to rule that the order had been valid all along.
The bottom of that roller coaster ride turned out to be an unfinished track.
For years, after doggedly – and incorrectly – pursuing Dr. Stephen Hatfill, the FBI had to publicly exonerate him after he sued them for $4.6 million. Hatfill wound up getting an annuity that totaled $5.8 million. Mueller’s FBI eventually zeroed in on Dr. Bruce Ivins at Fort Dietrich, a government microbiologist whose name was all over the DoD’s anthrax program. The FBI eventually made a public determination that Ivins was the culprit of the anthrax letter attacks after his suicide by overdose of acetaminophen in July 2008. Tom Rempfer had been keeping up on the whole thing through some friends at the FBI and in and around DC. He called me to tell me that the FBI had found references to our cases and work in Ivins’ private papers and emails. The apparent motive for the attack was what we had feared all along: Ivins was disappointed with how the AVIP had been sidetracked and the attacks were an attempt to “make the case” for the AVIP.
And so there was the upshot of all of it. I – We – had fought the good fight and that eventually led to our clients thrown in jail, the law being turned on its head, the FDA and DoD revealing what they really care about, the troops being mass inoculated and experimented upon (just like the good ol’ days!), 5 people being killed, and a bunch of people getting rich off of it. All of this might be enough to break me, but I’d been inoculated against that by a conversation with a military colleague while he was working at the Pentagon.
I was on leave back home from one of my tours in Afghanistan. My buddy was working in the Navy’s ship procurement program and counting the days until his retirement. He was particularly cynical about his job and it came up over lunch in the Pentagon cafeteria. I was kvetching about the anthrax vaccine and he offered some perspective.
“So what’s the problem with work?” I had asked him.
“Bro, let me tell you something, okay? The DoD has spent three billion dollars so far on this new DDG-2020 program. Three billion, with a B, alright?” I nodded my understanding and grunted over my food.
“Well, no one has so much as popped a single fucking rivet. Not one. There is no ship yet. And we’re three billion in… and just getting started.” I looked up to meet his eyes. I had seen a lot of waste – a LOT of waste during the GWOT, so I couldn’t say I was surprised, but three billion is a big number.
“Dude, with three billion dollars, you, me, and Todd would have already built a ship, held the christening, and after I cracked the champagne bottle, it would have slid down the ramp straight into the water and sank. Then we would have salvaged it, fixed what we fucked up, tried again, and sank another ship. But by the third one –” he held up three fingers for emphasis, “we would have an operational ship. And we’d still have another billion left over.” I laughed over my salad at his hyperbole, but his point was well-taken.
“Bro, we’ve done feasibility studies, environmental impact studies, surveys, Congressional junkets all over the fucking country, and powerpoint presentations until I’m ready to kill myself… and not a single. Rivet. Popped. Three billion, baby. Three fucking billion dollars.”
He went back to eating and shook his head, more to himself than to me. That’s when it finally hit me. My experience with the anthrax vaccine program wasn’t unique; it wasn’t some personal hell cooked up to break me, or my clients, or those who dissent from orthodoxy. We were simply grit to be ground up in the gears of the system. Grist for the mill. It wasn’t even personal. There were billions and billions and billions of dollars flowing through that system, a system that rewards those who know how to leverage it, like the Clintons and Admiral Crowe, like the FDA folks who wanted to ensure that the system had vaccines, or the Chem-Bio folks who believe it really is THE MOST SERIOUS THREAT EVAH!, and a whole host of other organisms that ride alongside the Leviathan. And if it later turns out that Agent Orange causes cancer, or being poisoned with mustard gas has long-term effects, or the VA doesn’t have enough money to cover these costs? Well, that’s the price of Freedom, baby.
Where’s your patriotism?
[i] Doe v. Rumsfeld, 341 F. Supp. 2d 1 (D.D.C. 2004).
[iii] See Biological Products; Bacterial Vaccines and Toxoids; Implementation of Efficacy Review; Anthrax Vaccine Adsorbed, 70 Fed. Reg. 75,180 (Dec. 19, 2005)
[iv] See, especially, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984)
[v] Yes, the same judge who took General Michael Flynn’s guilty plea. It is indeed a small swamp in and around DC. Along those lines, one of the attorneys I worked with on Tom Rempfer’s case was Mark Zaid, the lawyer for the *whistleblower* Eric Ciaramella.