“This Is an Emergency, Laws Don’t Apply”
The first chapter of Agamben’s The State of Exception (U. of Chicago, 2005) presents a brief outline of the history of the state of exception, including concrete examples from Nazi Germany, the U.S. (the Civil War and after 9/11), France, Switzerland, Italy, and England, roughly in that order. He explains that World War I was a “laboratory for testing and honing” systems for establishing states of exception, and that there was a “gradual expansion of the executive’s powers during the two world wars.” He quotes Walter Benjamin writing in 1942, that “the state of exception… has become the rule.”
Similarly, Matthew Marino, the Executive Editor of the University of Cincinnati Law Review, summed up the problem in the U.S. in March 2021:
Emergency powers have desirable features. As mentioned, Congress cannot act quickly in response to a crisis. Presidential authority has increased in most liberal democracies so presidents can effectively confront “a world besieged by complexity and crisis” that legislatures are ill-equipped to address. However, with more power vested exclusively in the President comes more potential for abuse of the emergency powers.
According to Marino, the National Emergencies Act (NEA) of 1976 was originally intended to hold back the executive branch, but “accountability and reporting provisions have not been vigorously enforced and therefore do not adequately restrain the President’s broad discretion under emergency statutes.” Congress members had “recognized that by refusing to terminate states of emergency, the President was retaining extraordinary power intended only for use during a genuine crisis.”
Marino adds that at that time, in 2021, the U.S. was under 40 ongoing states of emergency.
The NEA allowed President George W. Bush to declare a national emergency for the September 11 terrorist attacks in 2001, and it allowed former President Trump to issue a “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak” on 13 March 2020. These are two of the “national emergencies” that stand out, but we are now accustomed, in fact, to constantly living under national emergencies, which can also be categorized in Agamben’s terms as “states of exception.” And most U.S. citizens are not aware of this, how different life is for us, compared to generations long ago, such as those who lived during the 19th century.
Agamben explains that the Patriot Act that was issued by the U.S. Senate on 26 October 2001 had already allowed the Attorney General to take into custody any alien suspected of endangering our national security, but under that law, within one week, the alien had to be charged with a crime or let go. (State of Exception 1.3). On 13 November of that year, then President Bush issued a “military order” entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”
But “in a 5-3 vote, the Supreme Court ruled on June 29, 2006, that President Bush overstepped his authority in ordering military tribunals for Guantanamo detainees. The court ruled that the tribunals violate U.S. laws and the international Geneva Conventions.”
In Agamben’s estimation, what was new about Bush’s order was that it radically erased “any legal status of the individual, thus producing a legally unnamable and unclassifiable being.” (State of Exception 1.3). For Agamben the legal situation of Taliban members captured in Afghanistan was similar to that of Jews in Nazi Germany’s concentration camps. With insights from the philosopher Judith Butler in mind, he writes that “bare life reaches its maximum indeterminacy” in the situation of the detainee at Guantánamo. (State of Exception 1.3)
I have argued in previous essays (starting in March 2021) that the U.S. government has engaged in fearmongering in order to establish “states of exception,” increasingly since the 9/11 attack, including establishing such a state in 2020 in the wake of the COVID-19 crisis. In February of this year, I gave examples of how COVID-19 was being manipulated through a filter of censorship by the U.S. “national security state,” allowing them to exaggerate the danger posed by the virus, create a state of exception through our fear of it, and generate suspicion against anyone who would dare downplay the threat of the contagion or criticize the biosecurity industry.
The several years after 9/11 saw a huge expansion of the U.S. budget for biodefense. And to raise awareness about the trajectory that we are currently on, with respect to the ideologies surrounding biodefense, here I outline some of the legal changes that have facilitated biomedical “states of exception” and the growth and empowerment of the biodefense industry.
Emergency Use Authorization (EUAs)
Under these EUAs, it became OK during an emergency to resort to relatively risky medical interventions. In 2004, Congress passed the Project BioShield Act. This called for $5 billion for purchasing vaccines that would be used in the event of a bio terrorist attack. This opened the door to “EUAs,” and on 4 February 2020 the “HHS Secretary determined that there is a public health emergency that has a significant potential to affect national security or the health and security of United States citizens living abroad, and that involves the virus that causes COVID-19.” This legal emergency made it possible for many people to receive the new vaccines, even at the stage when there were doubts about safety and effectiveness. While these vaccines may have saved the lives of millions, some previously healthy people have actually suffered various injuries and harms, such as myocarditis. Surely very few knew, if any, about such risks when they consented to receive the vaccine. Such is the disadvantage of authorizing the use of vaccines that have not been thoroughly tested in clinical trials.
The 2005 PREP Act
The Public Readiness and Emergency Preparedness Act was passed by the U.S. Congress and signed into law by President George W. Bush in December 2005. This law was essential to establishing a new system of irresponsibility for vaccine manufacturers. “During a public health emergency, the Public Readiness and Emergency Preparedness Act (“PREP Act”) gives immunity from lawsuits, for manufacturers, administrators and distributors of vaccines, as well as other qualified persons (i.e., healthcare and other providers) who prescribe, administer, or dispense countermeasures, unless they were acting with willful misconduct.” (Author’s italics. Of course, it would be difficult to prove willful misconduct in a court of law).
This PREP Act was a liability shield that protected manufacturers of “countermeasures.” It limited liability so that potentially life-saving countermeasures would be “efficiently developed, deployed, and administered.” (Author’s italics).
Kadlec and BARDA:
Following the introduction of those major laws in 2004 and 2005, the biodefense industry got a new law that facilitated the stockpiling of countermeasures in 2006. The Pandemics and All-Hazards Preparedness Act (PAHPA, pronounced “Papa”) created the Biomedical Advanced Research and Development Authority (BARDA) and established the Assistant Secretary of Preparedness and Response (ASPR) position. Former President Donald Trump nominated Robert Kadlec for this position and he held it from August 2017 to January 2021.
In the words of Paula Jardine, who has written about various aspects of the military approach to COVID-19, the “ASPR controls the national stockpile of smallpox and anthrax vaccines and other public health emergency medical equipment such as ventilators. During emergencies this Assistant Secretary [the ASPR] has expansive powers enabling him or her to act as the single point of control co-ordinating national response.”
Other Transaction Authority (OTAs)
In 2016, the definition of OTAs was changed such that prototypes of countermeasures could be deployed. Originally, OTAs were up in the 1990s to help DARPA promote basic research and acquire weapons. “DARPA” stands for the Defense Advanced Research Projects Agency, part of the Department of Defense. Tom Burghardt wrote in 2010 that they have “geek squads” working on “bizarre projects hatched in darkness.”
Apparently, the Pentagon “loosened regulations guiding the use” of OTAs for the COVID-19 health policies. And through an OTA the pharmaceutical giant Pfizer gained financial support from the U.S. government. The mass media has not really questioned, problematized, or debated whether we want the mechanism of OTAs to authorize risky products, even when anyone can see that Pfizer used that mechanism. Pfizer is clearly referenced in a judge’s written decision for a case in which an employee named Brook Jackson sued Pfizer. Jackson’s case was dismissed, but the judge wrote:
Defendants claim that “due to pandemic-related exigencies, the Project Agreement was not a standard federal procurement contract, but rather a “prototype” agreement… Such prototype agreements are executed under the DoD’s “Other Transaction Authority.”
Trial Site News explains the case in a clear and succinct way. Jackson claimed that “in the race to secure billions in federal funding and become the first to market, Defendants deliberately withheld crucial information from the United States that calls the safety and efficacy of their vaccine into question.” The Defendants included three companies, Pfizer, ICON, and Ventavia. Jackson had worked for Ventavia until she started to raise questions and blow the “whistle.” That’s when she was fired.
Turning the Switch
By 2020, all the legal machinery for the mRNA vaccine profit-taking was in place. On 31 January 2020, Health and Human Services Secretary Alex Azar declared the novel coronavirus a public health emergency. Six weeks later, on 13 March 2020, Trump issued a “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.” He authorized assistance administered by the Federal Emergency Management Agency (FEMA). Five days later, he notified the FEMA Administrator that his agency would be in charge of the federal pandemic response effort.
That was a first. FEMA had never been in charge of a public health crisis before.
In fact, according to Debbie Lerman, the National Security Council (NSC), a “group of military and intelligence people who advise about war and terrorism,” rather than civilian medical doctors who advise about disease, were the ones in charge of COVID-19 policy. (See Figure 2, “US Government COVID-19 Coordination and Response,” on page 9 of “PanCAP Adapted U.S. Government COVID-19 Response Plan,” 13 March 2020). The NSC decided the policy, and FEMA implemented it. Although Dr. Fauci has recently been publicly grilled about COVID policy failures, in fact, it appears that the NSC should be investigated since they made the big decisions.
Conclusion
In early 2019, Elizabeth Goitein, author of a report entitled “The New Era of Secret Law,” warned about what then President Trump could do to our country, given the unfortunate state of our laws.
Like all emergency powers, the laws governing the conduct of war allow the president to engage in conduct that would be illegal during ordinary times. This conduct includes familiar incidents of war, such as the killing or indefinite detention of enemy soldiers. But the president can also take a host of other actions, both abroad and inside the United States. These laws vary dramatically in content and scope. Several of them authorize the president to make decisions about the size and composition of the armed forces that are usually left to Congress. Although such measures can offer needed flexibility at crucial moments, they are subject to misuse. For instance, George W. Bush leveraged the state of emergency after 9/11 to call hundreds of thousands of reservists and members of the National Guard into active duty in Iraq, for a war that had nothing to do with the 9/11 attacks. Other powers are chilling under any circumstances: Take a moment to consider that during a declared war or national emergency, the president can unilaterally suspend the law that bars government testing of biological and chemical agents on unwitting human subjects. (“In a Crisis, the President Can Invoke Extraordinary Authority. What Might Donald Trump Do With This Power?” The Atlantic Monthly 323:1, p. 42).
Well, thanks to the DNC’s short-sightedness, Trump will probably get four more years to test out those emergency powers, once again, as he did with his “business-government-military partnership” Operation Warp Speed. Many decades ago a liberal president, too, violated our constitution by invoking emergency powers, in his role as the Commander-in-Chief, when he issued Executive Order 9066 directing that all Japanese-Americans residing on the West Coast be placed into internment camps.
In Where Are We Now?, Agamben cites the philosopher before him Michel Foucault, one of the earliest, if not the earliest, to question and analyze contemporary biosecurity ideologies, with his idea that “biopolitics tends to morph into thanatopolitics” (a politics of death). (Section 17, “Law and life,” Where Are We Now?). Arguably, that is especially true under a state of exception that is manipulated by a military institution, such as the Pentagon. He underlines the fact that the “first case of legislation by means of which a state programmatically assumed for itself the care of its citizens was Nazi eugenics” (Section 17)
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