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Legal situation is murky in anthrax vaccine fight

This is probably the most blatant lie I've seen so far in this, where it is easily accessible to prove the statement below as a complete and total fabrication.

"...said Pentagon spokesperson Cynthia Smith. "No judicial judgment has declared such orders to have been unlawful."
Air Force Times
By Gayle S. Putrich, Staff writer

Lawyers for six anonymous plaintiffs suing the government over the military's use of the anthrax vaccine claim that a federal court has ruled the Pentagon acted unlawfully both in ordering all service members to take the vaccine from 1998 through 2004 and in punishing hundreds of troops who refused that order.

But in a reflection of the increasingly tangled nature of the legal fight over the vaccine, the Pentagon is claiming just the opposite.

"DoD continues to believe the Anthrax Vaccine Immunization Program has been administered consistent with the law, and orders to military personnel to be vaccinated were lawful," said Pentagon spokesperson Cynthia Smith. "No judicial judgment has declared such orders to have been unlawful."

Sorting out just where things stand is difficult, because at press time the Defense Department had little more to say about the issue other than that the anthrax vaccine program remains under review, as it has been for months.

Another official familiar with the Defense Department policy hinted that changes to the current voluntary vaccine program are imminent, but declined to provide details.

All this leaves service members as much in the dark as ever since a federal court shut down the Pentagon's mandatory vaccine program in late 2004.

At that time, U.S. District Court Judge Emmet Sullivan ruled that the Pentagon could not force troops to take the vaccine because the Food and Drug Administration failed to follow its own regulatory procedures in declaring the vaccine safe and effective against all forms of anthrax, including the inhalation variety that defense officials say poses a threat to U.S. forces.

The FDA issued a final ruling to that effect in December 2005, and defense officials hoped that move would force a reversal of Sullivan's earlier court order stating that the shots could be given only on a voluntary basis, with informed consent.

Defense officials got their wish when a three-judge panel of the U.S. District Court of Appeals for the District of Columbia agreed Feb. 9 that "the injunction is dissolved and this case no longer presents a live controversy on which we may pass judgment."

That ostensibly opened the door for the Pentagon to resume mandatory vaccinations - but more than seven months later, it still has not done so.

One possible reason: That was not the only legal issue to be resolved. The Pentagon also wanted the appellate court to rule that the government was within its rights all along to order troops to take the vaccine, going back to the dawn of the program in 1998.

Back to Sullivan

The appeals panel kicked that issue back to Sullivan, the original judge, 'with instructions to ... consider that request.'

But at a Sept. 7 hearing in Sullivan's court, for reasons that remain unclear, government lawyers did not specifically ask Sullivan to vacate his earlier decision on that specific issue, said Lou Michels Jr., one of the attorneys for the six anonymous service members and Defense Department civilians who are plaintiffs in the lawsuit.

As a result, Sullivan's ruling that it was illegal for the Pentagon to force anyone to take a vaccine that was not properly approved by the FDA stands, Michels said.

That, in turn, opens the door for any current or former service members who were punished or involuntarily separated for refusing to take the vaccine to seek redress, he said.

"Anybody that suffered damages could go back and ask for their records to be corrected," he insisted.

Michels said the government should just admit that service members were punished when they should not have been and voluntarily correct their records.

That the Pentagon has not done so may be due in part to the potential cost of providing back pay, and possibly even retirement pay, to service members whose careers were cut short when they refused to take the vaccine.

No reliable statistics are available on how many troops were punished over the more than six years of the mandatory program, but estimates range from hundreds to more than a thousand. That could drive the cost of providing restitution into tens of millions of dollars, if not several hundred million.

Michels cautioned that petitioning for changes in military records is a lengthy process, and even if a board of corrections agrees that changes should be made, it does not necessarily happen because those decisions must be approved by service officials. There have been instances of the Office of the Secretary of the Navy refusing to sign off on such changes.

"Final approval on this is an exhaustive process," said Michels, a former Air Force lawyer.

Records correction is an administrative, not legal, process. Each service has its own board, each with slightly different rules.

As if not enough doubt hovers over the anthrax vaccine, the cases of 15 service members who were court-martialed for refusing to take the vaccine and appealed their punishment are lingering in the Court of Appeals for the Armed Forces, the military's highest court.

With two of the CAAF's five civilian judges poised to retire this fall, lawyers expect a decision one way or another on those cases soon. The CAAF is the functional equivalent of a federal appeals court.

"The courts-martial can be reversed," Michaels said. "If that happens, that makes the boards of correction a lot easier."

But as with so many aspects of this saga, what might happen if the CAAF upholds those courts-martial 'in essence putting it at odds with the civilian courts on whether the mandatory vaccine program was lawful' is one more unanswered question among many.

Staff writer Gordon Lubold contributed to this story.
On Oct 27, 2004 federal Judge Emmett Sullivan ruled:

"The men and women of our armed forces deserve the assurance that the vaccines our government compels them to take into their bodies have been tested by the greatest scrutiny of all - public scrutiny. This is the process the FDA in its expert judgment has outlined, and this is the course this Court shall compel FDA to follow....Accordingly, the involuntary anthrax vaccination program, as applied to all
persons, is rendered illegal absent informed consent or a Presidential waiver..."
See: http://www.dcd.uscourts.gov/03-707c.pdf