This was the fourth installment I posted on my blog regarding vaccine mandates. This one is pretty DoD specific, but here be linky if anyone wants it.
If you’re a service member, or family member of one, who hasn’t taken the mandatory vaccine, I know: your anxiety meter is pegged. Mine, too. Take a deep breath.
There is some good news out there. An Army message – the relevant page of which is posted here – at least acknowledges that there are procedures for filing for exemptions and that those should be honored. I’ll take the good news even from people I don’t otherwise trust. More importantly, hold them to their word. “3.D.8.B.1.F. (U)… Commanders will not take adverse action against soldiers with pending exemption requests.”
It’s right there in the message, so everyone who has any medical exemption under 40-562/AFI 48-110/etc. should file for one post-haste. I’ve said it before, but go to the regulation, ¶2-6 and look at the list of exemptions that apply. The first paragraph discusses pregnant women. Pregnant women were excluded form the ongoing clinical trial for the Pfizer vaccine. (Yes, you can find the clinical protocol. It was an exhibit to our motion in court – it’s a massive document. Get a PACER account and you can pull it down. It’s 146 pages, as a PDF anyway.) But the point is, if you give it a moment’s thought, you can probably imagine it wouldn’t make a lot of sense to INCLUDE pregnant women in your first ever clinical trial for the first ever mRNA gene-modifying technology for an injectable biologic. In fact, you would kind of have to be a little daft to want to do that, at least from my perspective. So, if anyone repeats the mantra that it’s “safe and effective” in regards to pregnant women, you’ll know they are brain dead and have no idea what they’re talking about. They’re just repeating the propaganda; don’t get worked up. The clinical trials for the Pfizer vaccine have not even been completed – and won’t until 2023. Anyone acting like they have definitive answers (“the science!”) is lying. You don’t judge vaccine safety – any vaccine – before it’s even completed a single, clinical human trial. You know how else we know it hasn’t yet been deemed “safe and effective” as those words are used by the law and required by regulations? Because the FDA said so in their letter that they were extending the EUA for the Pfizer vaccine. A vaccine that is under the authority of an EUA is, by definition, an “unapproved product” under 21 USC §360bbb-3. That’s what the FDA is claiming the authority to do all of this shucking and jiving under – the Emergency Use Authorization statute. None of this is how FDA biologics approval works normally. Anyone pretending otherwise is either a liar or a moron, so don’t bother wasting your time on them, either.
The most important thing to know, however, is that once the FDA extended the EUA for the Pfizer vax, something else happens automatically – and there’s nothing the FDA or SecDef can do to change that. (Here is where being an old fart and having suffered under the prior Anthrax Vaccine debacle helps). The anthrax vaccine first caused a mess in the Gulf War in 1990. The DoD had gotten a bunch of waivers from the FDA rules regarding informed consent (21 CFR 50.23(d), if you care to know where it used to be found). The crux of it was that the DoD wanted to use a bunch of different experimental, investigational, and approved drugs – but for an unapproved uses (i.e. indications, in FDA-speak) – in anticipation that Saddam Hussein actually had Chem-Bio weapons during the first Gulf War. Needless to say, it was a complete disaster and a lot of service members wound up with Gulf War Syndrome. Congress did what it does – hold a lot of hearings, not a ton else – except that by 1997, after the DoD had screwed up deploying a vaccine against tickborne encephalitis in Bosnia, Congress had seen enough. An excerpt from the book I wrote about this exact subject:
Representative Patrick Kennedy (D-RI), introduced a bill on the floor of Congress to provide some small measure of protection for service members. In its original form, the bill imposed three requirements on the DoD: Either prior to, or within 30 days of, administering an investigational new drug, the DoD would have to inform military members that
- The drug being administered is investigational;
- The reasons why the drug is being administered;
- The potential side effects of the drug, including side effects resulting from interactions of the drug with other drugs or treatments being administered to the individual.
Representative Kennedy’s remarks made it clear that the bill was the direct result of inquiries into the Gulf War and what he perceived as a DoD cover-up of possible chemical exposures of U.S. troops. He noted that the trust between soldiers and the government
… has been called into question. One need merely read newspaper articles surrounding the Persian Gulf War to see what I mean. On February 28, the New York Times ran an article entitled: “Pentagon Reveals It Lost Most Logs on Chemical Arms”; “Missing From Two Sites: Gulf War Veterans Now Raise Questions of Cover-Up or Criminal Incompetence.”
U.S. v. Members of the Armed Services, p. 50.
Why does any of this matter? Because right after that law was passed, the DoD went straight ahead and announced the mandatory anthrax vaccine program anyway. It was while I was in law school as a Marine officer, so none of this is ancient history to me. I got commissioned in 1991 as a 2nd Lt of Marines. By 6 years in, I was well aware of what had happened to the guys just in front of me – the Gulf War vets – and I was finishing up Naval Justice School as a judge advocate in 1999 when the mandate came down from on high – and hard: Get the vaccine, or else. I was a young judge advocate and got assigned a number of those cases.
Representative Christopher Shays, a vocal opponent to the waiver granted to the FDA, rose as the speaker pro tempore in the House on 16 June 1998. He pointed out that there had been 13 hearings in three and a half years looking into Gulf War Illness. During this time, various agencies had testified in order to “try to get a handle on the problems that our Gulf War veterans have faced when they returned home. Out of the 700,000 that have returned, almost 100,000 have had some types of physical problems to deal with and have sought to have their illnesses be dealt with by the Department of Veterans Affairs.” Mr. Shays noted that after 11 hearings, there had been a number of findings and recommendations made, among them that “the VA and the Pentagon did not properly listen to sick Gulf War veterans in terms of the possible causes of their illness[;] [that] there is no credible evidence that stress or Post Traumatic Stress Disorder caused the illnesses reported by many Gulf War veterans[; and] that Congress should enact legislation establishing the presumption that veterans were exposed to hazardous materials known to have been present in the Gulf War theater.” Most importantly, Congressman Shays recommended that “the FDA should not grant a waiver of informed consent requirements allowing the Pentagon to use experimental or investigational drugs unless the President signs off and approves.” This recommendation would become the cornerstone of a new version of Representative Patrick Kennedy’s first modest legislation. Interestingly, all it really did was seek a return to the “common rule” set forth in the DoD’s own regulations, the DHHS regulations, the FDA’s regulations (prior to the waiver), the Nuremberg Code, and the federal statute passed which codified the Nuremberg Code. All of these regulations and laws have always stated that “the informed consent of the subject is absolutely essential” and all of them stated a presumption that “informed consent is feasible except … in certain limited circumstances, usually when the subject was incompetent or incapable of giving consent or in a life-threatening situation where the subject could not consent.”
Id., p. 54. That law was the cornerstone of Doe v. Rumsfeld, 297 F.Supp.2d 119 (D.D.C., 2003), a decision in which a federal court judge found that the DoD and FDA had circumvented their regulations (more than once) and forced service members to take a vaccine that was “unapproved for its applied use” – in violation of 10 U.S.C. §1107. I know because I helped work on some of those cases, including Doe I. Not long after that litigation, including appeals and subsequent opinions, in 2006, the Congress passed all of the FDA’s Emergency Use Authorization statutes, 21 USC §360bbb-3. Interestingly, they also passed another “mirror image” statute: 10 USC §1107a, which again gave the non-delegable authority to waive service members’ rights to informed consent right where it should be: in the President’s hands as the Commander-in-Chief of the Armed Forces. In other words, Congress enacted two statutes that covered two kinds of drugs: drugs that are FDA-approved, but “unapproved for their applied use” – meaning that they’re being used for some use or indication that they don’t have approval for; OR “unapproved drugs,” which means anything that the FDA hasn’t granted a full-license to yet, including if it’s under an EUA. The first kind fall under 10 USC §1107’s requirements, and the latter – like Pfizer’s BioNTech – fall under 10 USC §1107a, but either way, both invest the President as Commander-in-Chief with the sole authority to waive service members’ right to informed consent.
That awesome responsibility is his and his alone, in his role as Commander-in-Chief. He CANNOT hide behind the FDA, or the SecDef playing word games to try to step into the CinC’s shoes. 1107/1107a both say clearly in text, and by their legislative (and real-life) history, that in the all-volunteer force, after what has happened historically to service members with unapproved drugs, biologics, and the wreckage that results, the President has a non-delegable responsibility to put in writing why he is doing that to citizens who have voluntarily given up many, MANY Freedoms that other citizens do not have to. This is all a very traceable, historical and legal phenomena that goes from Vietnam draft end in 1973, 1977 MKULTRA admissions on live TV that soldiers were experimented on in a joint CIA-Army program for 12 years spanning the 50s and 60s, a lawsuit by one of those soldiers – Stanley Robinson’s 1987 Supreme Court heartbreaking loss that upheld Feres – and then it went right into the Gulf War workup and the waivers of 50.23(d) that begat Gulf War Syndrome, begat 10 USC 1107, then anthrax begat Doe, which gave us all the EUA statutes, but ALSO Congress added 1107a – reaffirming that if either of those two types of unlicensed drugs are to be used on the all-volunteer force, ONLY the President can do so.
Now here’s the most important part of my argument: THAT’S THE WAY IT SHOULD BE as a matter of moral correctness. The President SHOULD have to look the people in the face that have voluntarily given up their Freedoms and pledged their lives to his discretion, if necessary, but NOT to be EXPERIMENTED UPON. SO… the President needs to stand up and be a f****ng leader and accept the responsibilities that come with it. If the President claims the right to lead Free Men and Women, and to call upon their bodies and souls to endure the Nation’s wars, to give up their freedoms and endure great hardships, to endure random drug testing, loss of liberty, etc., while the rest of the citizens get to stay home and eat popcorn, then He – and HE ALONE – needs to explain exactly WTF he is doing and why his troops need to stick an unlicensed product into their bodies.
Period. That hasn’t been done. QED.
The FDA can’t name-change drugs, do dipsy-doodles, or substitute away President Biden’s – or any President’s – obligations as CinC for him. And neither can a lesser official like SecDef Austin. And NEITHER CAN A COURT. It is a matter of obligation that inheres to a leader of this country’s Armed Forces – that is how it works if you want to claim the authority to lead free men and women who volunteered for service in an (allegedly) free country. It’s a matter of moral correctness – it may be one of the few times ever in this country’s history that Congress has ever gotten a statute so correct. The only thing a court can and should do is the same thing that the judge did in Doe v. Rumsfeld – hold government officials accountable to their legal responsibilities and obligations to the citizenry. That’s the highest calling a court has in this country… though they’ve lost their way on that – (but that’s a rant for a separate time and place about our black-robed politicians on the bench).
Now, does that mean if the DoD shows up with Comirnaty that you have to take it? Not necessarily. If you have prior immunity, now you can assert it and you have every right and expectation to be medically exempted from the vaccine under ¶2-6, which is where we started this whole thing. Circle of life and all that. And one of the most infuriating aspects of the government’s behavior in all of this is the random, completely contradictory and hypocritical positions regarding when they acknowledge “natural immunity” or pretend it doesn’t exist. For example, many military doctors have told us (privately) they’re being pressured not to grant any medical exemptions for people who can show they’ve already had Covid. This is because of Lloyd Auston’s near-gibberish level memorandum regarding what counts as “fully vaccinated” – which is a complete non sequitur to whether or not you should take a vaccine if you can show you already had Covid. Now consider these two gems:
First, the CDC does recognize natural immunity: for international visitors! People coming from other countries were allowed to come into the United States, as long as they could demonstrate either (a) that they had a negative Covid test within 3 days of flying here, OR (B) they could show they previously had Covid with a serological test of some kind. So, if you’re an international traveler, no need for a vaccine because – ! you can show you’ve already had Covid! https://www.cdc.gov/quarantine/fr-proof-negative-test.html
Somehow, however, not so much for you, healthy young Americans in the U.S. military.
Second gem, illegal immigrants also don’t have to be vaccinated! In a lawsuit by the Arizona attorney general filed a while back, AG Mark Brnovich points out that the federal government’s own policy is NOT to vaccinate illegal immigrants, even the ones who are released into the United States to await hearings that may not happen for years. Arizona AG Suit. Read the whole thing, but p. 2 of the complaint spells out that there is no federal vaccine mandate for illegal immigrants. If correct, this would mean that both legal travelers and illegal immigrants evidently have more rights than service members to forego a vaccine. See? It’s #SCIENCE!
This is what you’re up against and, unfortunately, your Commanders can be pitted against you because many of them care about their careers more than your well-being. That’s just an inescapable conclusion of their actions in seeking to enforce this garbage on people they allegedly are supposed to protect and serve. Unfortunately, the dominant feature of government service now is the exact opposite of what it should mean – they are completely unaccountable to us, the citizenry. Our leaders see us fundamentally as their servants, to shut up and do what we’re told, rather than seeing themselves as public servants, even though it’s right in the flipping name, working for the public.
So, what can you do? File those medical and administrative exemptions, no matter what the Chaplain or your command says. Make them do the work to explain why natural immunity only counts for foreigners and not healthy American military members. Hang together. Don’t put that garbage in your body if you don’t want it. Be resolute and make the government do what it will. There are 700,000 or more service members who don’t want this. If you stick together you are a force. If you cave, you’ve learned to bend the knee to something you know is wrong, illegal, and immoral. I know they threaten your life will be over and you’ll get a “DD”. No one is getting a “DD” for a single specification of Article 92 for refusing this vaccine. The military doesn’t even do 2500 courts-martial in a year any more. If 10,000 people insisted on courts-martial the system would collapse.
We’re continuing to push forward in our suit, and others have been filed, as well, and continue to be filed pointing out how wrong this is. A judge in NY granted a TRO against the state on behalf of healthcare workers trying to implement a vaccine mandate and providing no religious exemption. That’s a plain violation of Title VII. LAPD has filed suit against the county’s vaccine mandate there. More are coming. You are not alone in this. Hang in there.