thedrifter
05-04-05, 06:27 AM
05.03.2005 <br />
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Military Discipline vs. Constitutional Rights <br />
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By Michael S. Woodson <br />
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As the U.S. military prepares to resume its controversial mandatory anthrax vaccine immunization program...
law_student
05-05-05, 07:33 AM
My understanding is that Congress has already passed a law requiring informed consent for investigational drugs. 10 USCS § 1107.
Then, President Clinton issued Ex. Or. No. 13139 of Sept. 30, 1999, 64 Fed. Reg. 54175, which required informed consent for investigational drugs. However, the president can waive the informed consent requirement if necessary.
May 3rd, the same day as the Woodson article, DoD announced the resumption of anthrax vaccinations. DoD plans to provide an education and information program highlighting the FDA's decision to provide for emergency vaccinations.
According, to the Sec Def's April 29th directive, service members can still refuse the shots.
Woodson is probably right that Congress should provide some sort of remedy for people like Stanley, but he is unfairly critical of the Supreme Court. Woodson ignores the procedural aspect of the case. Scalia is rejecting a claim based on the Federal Tort Claims Act (FTCA), using the same reasoning as the lower District Court (which was reversed by the 11th Circuit Court of Appeals -- it was the 5th Circuit before being split.). This isn't about elitist abuse of military personnel. This was the court's concern that allowing a FTCA claim to proceed would open the flood-gates to tort litigation, particularly when Congress has already provided a compensation system for veterans through the VA.
As for providing a monetary remedy, I think Stanley still would have had a claim for up to $100,000 under the Military Claims Act, 10 USCA § 2733. Also, I'm curious as to any disability benefits that he could have obtained. So, I don't think he was hung out to dry or that the system and courts are trying to hose us veterans.
While Stanley obviously was going for the big dollar punitive damages available in negligence cases, I still think fair compensation was available to him AND that Congress fixed the problem by requiring informed consent for investigational drugs.
Semper Fi,
Dan
You can find more info at: http://www.anthrax.mil/whatsnew/eua.asp
Also, the Stanley case is at 483 U.S. 669.
mike7woodson
11-14-07, 10:17 PM
My understanding is that Congress has already passed a law requiring informed consent for investigational drugs. 10 USCS § 1107.
Then, President Clinton issued Ex. Or. No. 13139 of Sept. 30, 1999, 64 Fed. Reg. 54175, which required informed consent for investigational drugs. However, the president can waive the informed consent requirement if necessary.
May 3rd, the same day as the Woodson article, DoD announced the resumption of anthrax vaccinations. DoD plans to provide an education and information program highlighting the FDA's decision to provide for emergency vaccinations.
According, to the Sec Def's April 29th directive, service members can still refuse the shots.
Woodson is probably right that Congress should provide some sort of remedy for people like Stanley, but he is unfairly critical of the Supreme Court. Woodson ignores the procedural aspect of the case. Scalia is rejecting a claim based on the Federal Tort Claims Act (FTCA), using the same reasoning as the lower District Court (which was reversed by the 11th Circuit Court of Appeals -- it was the 5th Circuit before being split.). This isn't about elitist abuse of military personnel. This was the court's concern that allowing a FTCA claim to proceed would open the flood-gates to tort litigation, particularly when Congress has already provided a compensation system for veterans through the VA.
As for providing a monetary remedy, I think Stanley still would have had a claim for up to $100,000 under the Military Claims Act, 10 USCA § 2733. Also, I'm curious as to any disability benefits that he could have obtained. So, I don't think he was hung out to dry or that the system and courts are trying to hose us veterans.
While Stanley obviously was going for the big dollar punitive damages available in negligence cases, I still think fair compensation was available to him AND that Congress fixed the problem by requiring informed consent for investigational drugs.
Semper Fi,
Dan
You can find more info at: http://www.anthrax.mil/whatsnew/eua.asp
Also, the Stanley case is at 483 U.S. 669.
Law student, thank you for commenting. In the statute you cite, what the big print gives, the small print takes away. This is not a requirement, it is a loophole and nothing in the statute bars the president from waiving informed consent as to a specific group of personnel at one time, and delegating statutory compliance rationale fulfillment to subordinates -- like the former AG.
"Under 10 U.S.C. 1107(f) the President may waive the prior consent requirement for the administration of an investigational new drug to a member of the armed forces in connection with the member's participation in a particular military operation." Source 21CFR50.23 (http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfCFR/CFRSearch.cfm?fr=50.23)
The statute you refer to can also be challenged as an unconstitutional invasion into the plenary powers of the Commander in Chief to control discipline in his Chain of Command, just as Stanley's attempted availment via the FTCA was challenged. It all depends on what sort of president you have at the time as to whether the deed (human experimentation) is desired and a legal challenge prepared for the Act (in some cases utilizing enthusiastic young law students who are later traumatized to discover what their research may have enabled).
You may have missed content within Stanley concerned with putting down interference with the chain of command and disciplined execution of orders given by officers senior. This interest, rooted in the CINC power, trumped Stanley's rights. Reread the piece and then reread Stanley.
Also, if what you say is true, that the Courts handling the Stanley case were primarily interested in preventing a flood of litigation in cases responding to situations in which the military had fraudulently used a service member as a guinea pig, then that would mean the military was using troops as guinea pigs on a large scale. A "flood" implies this, doesn't it? Are you suggesting that in such a situation, a flood of litigation shouldn't ensue?
Let's add another element: the Congress is peopled with a good many folks who receive campaign finance support from corporations and their employees at defense firms whose substances and systems would often be those tested on military personnel in the scenarios at issue here. And if the government were sued in tort, who do you think it would join for contribution or comparative liability if it were unsuccessful? The companies producing the agents. As the military or government counsel, I'll bet you'd recommend it. In any case, the litigation would be healthy because it would air the truth about what is being done that shouldn't.
I love this country. But I am not so naive as to believe that a person in a place of power who would use our own NCO's/enlisted/officers as guinea pigs in human experimentation in the first place would have any qualms about disobeying a statute, an executive order of the past, or God Himself if he came down and shook his head about the matter.
It seems also that we haven't examined the actual punishments readied by the statute for those breaching it, i.e. doing the experiments without passing the fact up the chain to the president. Are they deterrent, or a joke?
And we don't even see a bright line rule against bootstrapping in the president's waiver, that is, a subordinate creating a sheist-storm of such politically apocalyptic proportions for a president that it would force anyone less stalwart than Ike to save himself by ratifying the waiver after the fact.