Independent Perspective News

Reporting and Commentary by Peter B. Chowka

On Nov. 13, 2002, the U.S. House of Representatives passed, by a vote of 299-121, legislation to create a cabinet level Department of Homeland Security. Quick approval by the US Senate is expected, followed by President Geoge W. Bush signing the legislation into law before the end of the month.

The new department would combine workers from 22 agencies, including the Border Patrol, the Coast Guard, the Secret Service, FEMA, and the Customs Service, into one mega-department with expanded powers, a $37 billion budget, and about 170,000 employees. The reorganization is the largest in government since the creation of the Defense Department in 1947.

One sticking point that prevented passage of the bill prior to the Republicans' Congressional victories on Nov. 5 involved disagreements about the creation of an independent panel to review possible government lapses prior to the terrorist attacks on Sept. 11, 2001. Another barrier had been opposition by Democrats who argued that the bill lacked adequate job protections for the new agency's workers, a position espoused by labor unions. It is these two issues that the media focused on in most coverage of the legislation. But there is much more at stake here than federal employees' job security.

A Mystery Bill

In the House, there was an unprecedented limited debate on the legislation before the vote. In fact, the final 484-page House bill creating the department, H.R. 5710, was not available for review - including by members of Congress and their staffs - until midday Nov. 13, the same day it was voted on. It was not available to the media and public online at the US House Web site at all before it came up for a vote. (On the afternoon of Nov. 13, an 800 kb pdf version of the bill was put online by the Association of American Physicians and Surgeons, Inc. which apparently found the legislation posted at the House Rules Committee Web site, a place where it normally wouldn't be expected to be found.)

Notwithstanding the unusual difficulty of accessing and evaluating the legislation, a small number of privacy and medical experts immediately sounded alarms about some of the bill's provisions.

For example, Kent Snyder of the Liberty Committee issued a release at 9:52 a.m. EST on Nov. 13. "The U.S. House is scheduled to vote on a revised version of legislation creating the Department of Homeland Security by 2:00 p.m. ET today," Snyder writes. "The revised text is not available to read and we've been told the revised text might not be available for awhile. . .So House members will have to rely only on a summary to decide their vote on the biggest reorganization of the federal government since the Department of Defense was created in 1947."

The Liberty Committee, a citizen action group whose "entire focus is on the legislative process" according to Snyder, was founded by Rep. Ron Paul, MD (R-Texas) in 1998. Meanwhile, about twenty members of Congress meet periodically as a "Liberty Caucus."

In a speech on the House floor about H.R. 5710 on Nov. 13, Rep. Paul, after noting problems with the legislation, said "Worst of all, the text of the bill has not been made readily available to most members, meaning this Congress is prepared to create a massive new federal agency without even knowing the details. This is a dangerous and irresponsible practice."

Snyder mentioned a report in the New York Times on Nov. 9 which detailed a Pentagon plan to create a massive new data mining computer system that, according to the Times, "will provide intelligence analysts and law enforcement officials with instant access to information from Internet mail and calling records to credit card and banking transactions and travel documents, without a search warrant" of American citizens. The plan is called the Office of Information Awareness of the Defense Advanced Research Projects Agency (DARPA). DARPA is the central research and development organization for the Department of Defense.

Snyder asks, "Is this new system included in the revised Homeland Security legislation? We don't know and when we asked -- nobody will talk about it."

As George Washington University professor of law Jonathan Turley said on ABC Nightline, Nov. 14, 2002, “The government has proven to be the greatest threat to personal liberty and privacy."

In a related development, noted New York Times columnist William Safire made the Defense Department's domestic spy plans the subject of his regular Op-ed column on Nov. 15, titled "You Are a Suspect."

Health Freedom Takes a Hit

More to the point of medical privacy and personal health freedom, the Association of American Physicians and Surgeons, Inc. (AAPS) issued a news release on Nov. 13 "urging Members of Congress to eliminate the section of the new Homeland Security Bill that would give the HHS [Health and Human Services] Secretary virtually unlimited powers to declare an emergency and order smallpox treatment that could include forced immunizations and quarantines." In particular, the AAPS objected to Section 304, Subsection C, titled “Administration of counter measures against smallpox,” which begins on page 76 of the 484-page House bill. According to the AAPS, "It gives the Secretary of HHS these unchecked powers to declare an actual or POTENTIAL [original emphasis] bio-terrorist or other kind of incident. He can administer 'countermeasures' to a category of individuals or everyone. He can continually extend the declaration without Congress’s consent. Also, if you are harmed, you cannot sue or take any other civil remedy."

Kathryn Serkes, the AAPS spokeswoman, said “This section will give the Secretary unlimited power to define a real or potential threat, to take any measures he decides, and to do it for as long as he wants.

“Just what are the ‘counter measures’ allowed? Forced immunizations? Quarantines? It’s not clear, but the powers seem virtually unchecked by any other agency,” said Serkes. “We need an honest accounting of how this will work. It’s too frightening to allow it to be rammed through.” The AAPS sent out thousands of email alerts urging voters to ask that the section be removed. The AAPS is a "a non-partisan professional association of physicians in all specialties dedicated since 1943 to the protection of the patient-physician relationship from third-party intrusion."

In his speech Nov. 13 prior to the vote, Rep. Paul added, "HR 5710 grants major new powers to the Department of Health and Human Services (HHS) by granting HHS the authority to 'administer' the smallpox vaccine to members of the public if the Department unilaterally determines that there is a public health threat posed by smallpox. HHS would not even have to demonstrate an actual threat of a smallpox attack, merely the 'potential' of an attack. Thus, this bill grants federal agents the authority to force millions of Americans to be injected with a potentially lethal vaccine based on nothing more than a theoretical potential smallpox incident.

Furthermore, this provision continues to restrict access to the smallpox vaccine from those who have made a voluntary choice to accept the risk of the vaccine in order to protect themselves from smallpox. It is hard to think of a more blatant violation of liberty than allowing government officials to force people to receive potentially dangerous vaccines based on hypothetical risks."

On Nov. 14, Rep. Paul appeared by phone on Bill O'Reilly's nationally syndicated talk radio program The O'Reilly Radio Factor, and raised some of his concerns including about the smallpox issue. The smallpox vaccination provisions and powers in the Homeland Security legislation appear to resurrect a proposal from earlier in 2002, the Model State Emergency Health Powers Act, which contended, according to the Institute for Health Freedom (IHF), a non-partisan, non-profit Washington-based think tank, that in instances of bioterror, "Individuals who refuse medical treatment (including vaccination) could be quarantined or isolated."

On Nov. 14, Sue Blevins, the founder and president of the IHF, issued a release on the H.R. 5710 legislation, "How Congress Can Defend the Homeland and Secure Our Civil Liberties." She writes, "Are you ready for forced vaccinations? Without your informed consent? Against your objection? This outrageous scenario would be permitted under a fast-moving federal bill granting dictatorial powers to the Secretary of the U.S. Department of Health and Human Services (HHS). . .

"If signed by the President, the new law could strip Americans of their precious health freedom—the freedom to decide what medical treatments and risks they will accept for themselves and their children."

The Institute for Health Freedom recommends that any homeland security legislation should respect:

Conscientious belief exemption (freedom of conscience): No citizen should be forced to accept medical treatments contrary to one's own conscience. Furthermore, medical and other practitioners should not be forced to carry out state orders contrary to a practitioner's conscience.

Religious exemption (freedom of religion): No citizen should be forced to receive medical treatments contrary to one's own religious beliefs. For example, pro-life advocates should not be forced to accept a vaccine manufactured from fetal tissue.

Medical exemption: No citizen should be forced to receive medical treatments contrary to their own physician's or other health care provider's individual professional judgment.

"The choice regarding vaccination and medical treatments should be up to individuals—not a federal political appointee," Blevins writes. "You can't defend freedom by eliminating it. Let's maintain our precious health freedoms while strongly defending the homeland."

Planning is Already Underway

Assuming it is approved by the Senate and signed into law by President Bush, the Homeland Security Department will not be up and running until sometime in 2003. In the meantime, the government is moving forward with smallpox vaccination plans. According to ABC News (Nov. 13), "Health officials who met with the president Wednesday [Nov. 13] favor a plan that would begin by offering the vaccine to people most likely to see a contagious smallpox patient starting with hospital emergency room workers. Eventually, it would be offered to the general public, probably by early 2004. Others in the White House, including Vice President Dick Cheney, have favored offering the vaccine to the public more quickly, even before the Food and Drug Administration licenses it. Bush has not said what approach he prefers."

The ABC News report continues, "The U.S. population is highly vulnerable to an attack with smallpox, which has no known treatment and historically has killed 30 percent of its victims. Routine vaccinations ended in the United States in 1972, and experts believe those last vaccinated more than three decades ago have little if any residual immunity. But the vaccine is not without risks. . .Experts estimate that 15 out of every 1 million people being vaccinated for the first time will face life-threatening complications, and one or two will die."

But the mainstream media, like most politicians, appear to largely favor the concept of mass smallpox vaccinations or at least don't see any major problems with it, including the fact that vaccinations might be made compulsory. For example, on Oct. 29, 2002 the Washington Post editorialized, "At the federal level, there has also been some progress [in homeland security]. . .Should it be needed, enough smallpox vaccine is being readied to vaccinate every American."

A Questionable Process

In an interview on Nov. 14, Kent Snyder of the Liberty Committee said "The biggest problem that we had [with the legislation] is the process. . .To put this in perspective, the original hearings to create the Department of Defense started in 1945. [President Harry S.] Truman signed the bill in 1947. Here, we're trying to do something as major in less than 48 hours in a lame duck session of Congress. It's preposterous.

"The questions are, What's bad in the bill? Who knows." With the US Senate, as of this writing, considering the bill, Snyder commented, "All the Senators constantly remind us that they are members of the most deliberative body on earth, which of course is a laugh. Do they deliberate? I mean, they have these little shows but there's no deliberation.

"The Homeland Security bill will be one of the most important pieces of legislation that's been voted on and passed in Congress probably in decades. And the ramifications - who is to know."

Rare among the nation's newspapers, the Orange County Register counseled caution. In a hard-hitting editorial published on Nov. 13, the paper's editors described the proposed reorganization as "reshuffl[ing] deck chairs on the Ship of State" and added: "The only substantive opposition to some of the more troubling aspects of the homeland security proposal has come from a dwindling band of libertarian-minded Republicans led by House Majority Leader Dick Armey (who is retiring) and Georgia Rep. Bob Barr (who lost in his party's primary). They managed to eliminate a national ID card from the House version, and to put Congress on record in opposition to Attorney General Ashcroft's TIPS program, which would have mustered private citizens to spy on their neighbors. But the proposal still expands government power to snoop on ordinary citizens."

The next day, the Register concluded in another editorial, "The Senate should slow this too-hasty process, and ask the important questions related to security, civil liberties and effectiveness."