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America’s Pandemic Law

By: Martin Alperen

Since 9/11/2001, in the name of homeland security, America has drafted laws to protect us

These laws, collectively called homeland security laws, are an intertwined mix of Congressional statutes, homeland security and national security strategies and directives, and other executive orders. They all have the force of law. Some agency policy documents, and military policy documents are prepared because of or pursuant to a law and are an essential part of homeland security law.

From this has developed a robust and rich legal, administrative, and agency framework to protect us. These laws are the foundation of homeland security. There is not one law, and not even one agency that defines homeland security. It is all of the laws, and it is a whole-of-government effort.

At least 18 of these laws specifically address pandemics. (Don’t be distracted by the word “bioterrorism.” Bioterrorism causes pandemics. Preparation for one is preparation for the other.)

America has been planning for pandemics since 2002 . The most recent of the 18 laws is an executive order entitled 2018 “National Biodefense Strategy” (Strategy) and deserves special attention because it claimed it “brings together and puts in place for the first time, a single coordinated effort … to protect the American people from biological threats.

Every single item planned for in this Strategy was a problem during our pandemic response. The 2018 Strategy recognized that “Biological threats… among the most serious threats facing the United States and the international community… can cause catastrophic harm... death, sicken, and disable on a massive scale…psychological trauma and economic and social disruption… originate in one country and spread to many others.

The Strategy was well thought out and reads like a playbook for COVID-19. Tragically, we now know how important each of these concerns was. The Strategy addressed the importance of “PPE,” “Stockpiles,” and “Testing,” “to use the Defense Production Act of 1950,” to "Ensure the safety, security…and reliability of supply chains,” and to "Improve Federal Messaging”… to “provide clear, consistent, and coordinated information."

The monitoring of public health information from around the country and the world is called biosurveillance. It is so critical, the word, “biosurveillance,” is mentioned 22 times in the Strategy.

Our biosurveillance failed. In addition, every single one of the concerns addressed in the Strategy was a problem during America’s COVID-19 response .

The 2018 Strategy “superseded and replaced” 2 earlier laws, both of which would have helped us. Both of these were superseded and replaced by the 2018 Strategy. That strategy was never implemented. The Strategy did not even get to step one of its implementation plan.

Public Health Security and Bioterrorism Preparedness and Response Act of 2002. ref https://www.congress.gov/bill/107th-congress/house-bill/3448 ref

2018 National Biodefense Strategy ref https://www.hsdl.org/?view&did=815921 ref, (Federal Register / Vol. 83, No. 202 / Thursday, October 18, 2018 / Notices. Pages 52841-52843)

The 2018 National Biodefense Strategy was itself Required by Section 1086 of the National Defense Authorization Act for Fiscal Year 2017, (130 STAT. 2423). https://www.congress.gov/bill/114th-congress/senate-bill/2943/text

[Also note who was supposed to participate.]

SEC. 1086. <> NATIONAL BIODEFENSE STRATEGY. (a) Strategy and Implementation Plan Required.--The Secretary of Defense, the Secretary of Health and Human Services, the Secretary of Homeland Security, and the Secretary of Agriculture shall jointly develop a national biodefense strategy and associated implementation plan, which shall include a review and assessment of biodefense policies, practices, programs and initiatives. Such Secretaries shall review and, as appropriate, revise the strategy biennially.

(2018 Strategy page 1.)

(2018 Strategy page 1.)

(2018 Strategy Annex I, 3.3.3, 3.3.4)

(2018 Strategy Annex I, 3.3.3, 3.5.2, 3.9.2)

(2018 Strategy Annex I, 2.2.2, 3.3.1).

(2018 Strategy Annex I, 4.4.1).

(2018 Strategy Annex I, 3.3.3. Also 1.1, 3.3.6)

(2018 Strategy Annex I, 3.4.1. Also 3.4, 3.4.2, G4, 4.4, 4.4.1, 5.2.1).

(2018 Strategy pages 1, 6, 28. Annex I, 1.2, 1.2.4, 3.3.1, 4.1.2, 5.1,)

Presidential Memorandum on the Support for National Biodefense, September 18, 2018 (NSPM 14), Sec. 3. ref https://trumpwhitehouse.archives.gov/presidential-actions/presidential-memorandum-support-national-biodefense/ ref

(Federal Register. https://www.federalregister.gov/documents/2018/10/18/2018-22742/posting-of-the-national-security-presidential-memorandum-14-support-for-national-biodefense

GAO, March 11, 2020, ref https://www.hsdl.org/?abstract&did=835086 ref

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