Tuesday, December 23, 2003

Court to Pentagon: Don't Make Soldiers Serve as Guinea Pigs

Tuesday's New York Times reports that Judge Emmet G. Sullivan has preliminarily enjoined the military from requiring soldiers to submit to anthrax vaccinations. See Doe v. Rumsfeld, No. 03-707 (D.D.C. Dec. 22, 2003).

Among other bases for objection, the soldiers contend that the drug has not been licensed by the FDA, or proven effective, for purposes of preventing transmission of anthrax via inhalation -- the likely battlefield anthrax risk. A federal statute bars the administration of investigational drugs, or drugs not approved for the intended use, to service members, without their informed consent. The bar can be overcome by executive fiat -- the president has discretion to waive the prohibition. But rather than approach President Bush for the waiver, the Department of Defense has chosen to litigate instead.

An interesting choice, given the seeming weakness of the military's substantive position. The Department of Defense website reportedly justifies the vaccination program with the claim that the Iraqis possess "thousands of pounds of anthrax agent." No such lethal cache has yet been found, of course. But the weakness in DoD's case runs deeper. If we are reading Judge Sullivan's opinion correctly, DoD is unable to cite any controlled clinical studies showing the vaccine to be effective against inhalation anthrax in humans.

One wonders what the Bush Administration's reaction would have been, if Saddam Hussein had involuntarily administered the same unproven vaccine to American POW's.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.