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Chertoff Memo: How to Declare an Anthrax Emergency with no basis and make liability *vanish*

On October 1, 2008 DHHS Secretary Mike Leavitt declared an anthrax emergency, which will last through 2015. It was published in the Federal Register Volume 73, Number 194, pages 58239-58242, and can be read here:
http://edocket.access.gpo.gov/2008/E8-23547.htm

What was the basis for the emergency declaration? Nothing. A must-read (short) memo
is attached
http://www.dhs.gov/xlibrary/assets/ofsec_ signed_determination092308.pdf, in which DHS Secretary Chertoff told DHHS Secretary Leavitt the following:

"That statute authorizes the Secretary of Health and Human Services to declare an emergency on the basis of, among other things,

A determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a specified biologial, chemical, radiological or nuclear agent or agents.

There is not currently a domestic emergency involving anthrax. Additionally, there is not currently a heightened risk of an anthrax attack. We have no credible
information indicating an imminent threat of an attack involving Bacillus anthracis.

But these findings are not necessary to make a determination under 5 564(b)(l)(A). Rather, a significant potential for a future domestic emergency involving a heightened risk of attack with anthrax is a sufficient basis for such a determination. "

Here is a discussion of the Public Readiness and Emergency Preparedness Act under which the Declaration was made:
http://www.cidrap.umn.edu/cidrap/content/influenz a/biz-plan/news/dec2805liability.html

"The liability provision offers broad legal protection for the makers of drugs, vaccines, and other medical "countermeasures" used when the HHS secretary declares an emergency. The provision says people claiming injury from a medical countermeasure can sue only if they prove "willful misconduct" by those who made or administered it. The bill calls for Congress to set up a compensation program for injuries, but it provides no funds for that purpose." The bill also grants immunity specifically to "government program planners" who are involved with declared emergencies.

Here is the actual December 2005 bill:

ftp://ftp.hrsa.gov/countermeasurescomp/Public_Readiness_and_Emergency_Preparedness_Act.pdf

Here is Secretary Leavitt's October 1, 2008 Declaration:

http://edocket.access.gpo.gov/2008/E8-23547.htm

And on October 22, 2008 the CDC's Advisory Committee on Immunization Practices will vote on expanding its recommendation for anthrax vaccinations to civilian first responders, now that the threat of liability for vaccine injuries or vaccine failure is a thing of the past.
http://gsn.nti.org/gsn/ts_20081016_1491.php

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