Biodefense and Pandemic Vaccine and Drug Development Act of 2005

Senate Bill 1873 was a senate bill introduced October 17, 2005 that wanted to create a new agency relating to biomedical r&d agency called BARDA (Biomedical Advanced Research and Development Agency). According to govwatch.org, this was the second time this kind of agency was attempted to be created.

The bill was sponsored by then-Senate Majority Leader Bill Frist and Sen. Richard Burr (R-NC).

The bill also had elements that would restrict public access to the operations of the BARDA, which generated shockwaves in the journalism community. A Freedom of Information alert regarding its possible passage was created by the Society of Professional Journalists in November.

Below is an old press release relating to the issue.

FOIA alert from the SPJ (press release)
Society of Professional Journalists FOI Alert: November 10, 2005

Senate seeks to create cradle-to-grave exemption

THE ISSUE: A bill moving quickly in the Senate would create a new Biomedical Advanced Research and Development Agency (BARDA) that would become the first-ever agency categorically exempt from disclosure under the Freedom of Information Act (FOIA).

The FOIA exemptions have always placed specific categories of information beyond the reach of the act, but Senate Bill 1873 seeks to create cradle-to-grave secrecy over an entire agency – a level of secrecy unheard of in the United States.

"Information that relates to the activities, working groups, and advisory boards of the BARDA shall not be subject to disclosure under section 552 of title 5, United States Code [i.e. the FOIA], unless the Secretary or Director determines that such disclosure would pose no threat to national security,” the bill states.

The fact that the FOIA already includes an exemption for properly classified national security information is a fact lost on the bill’s authors.

This means that, in the absence of a ruling by the head of the agency that the release of information would pose no threat to national security, every document created by BARDA -- every working group (the bill also categorically exempts BARDA from the Federal Advisory Committee Act), all of its activities, its relationships with industry, its advisory boards -- will not be subject to disclosure through FOIA. S. 1873 appropriates $1 billion in 2006 alone from Project Bioshield to fund BARDA – and no one, save for the agency, will provide accountability.

Then, in a sweeping departure from constitutional norms, the bill seeks to forestall any judicial scrutiny whatsoever.

"Such a determination shall not be subject to judicial review,” the bill adds.

While S 1873 is intended to protect public health and safety, it guts the public safety benefit that flows from citizen participation in government. The key to public health is the public, which cannot avoid transmission of epidemic or pandemic disease unless it has knowledge of the disease, and understanding of how to treat it.

Members of the public cannot identify and stop bioterrorists unless they are made aware of the bioterrorists’ potential existence. Major epidemics throughout history have shown that government secrecy does more to spread disease than prevent it. One lesson of the Great Influenza of 1918 – the worst flu epidemic of all time – was that its rapid spread was due, in part, to government censorship of news coverage regarding this disease.

The bill, co-sponsored by Senator Richard Burr (R-NC) and Majority Leader Bill Frist, among others, was introduced on October 17 and promptly reported out of Committee on October 24. It now awaits action by the full Senate.

See S. 1873, a bill “to prepare and strengthen the biodefenses of the United States against deliberate, accidental, and natural outbreaks of illness”: http://www.fas.org/irp/congress/2005_cr/s1873.html

The new agency would help spur private industry to develop and manufacture medical countermeasures for bioterrorism agents and natural outbreaks such as a possible avian flu pandemic. But the bill also makes oversight and accountability of much of America’s biodefense efforts nearly impossible.

"Suspicions on the part of nations about the intent of each other’s biodefense activities can lead to an arms race in biological weapons,” wrote Alan Pearson, director of the Center for Arms Control and Nonproliferation’s Program on Biological and Chemical Weapons, and Lynn Klotz, a senior fellow at the center, in a joint statement.

See: http://www.armscontrolcenter.org/archives/002155.php