On habeas corpus, probable cause, warrants, detention and extrajudicial state killing under declared public health emergencies.

Katherine Watt

Aug 12

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Orientation for new readers - American Domestic Bioterrorism Program - Tools for dismantling kill box anti-law

Below are excerpts from email exchanges about HHS-CDC’s demonstrated use of quarantine authorities under 42 USC 264, 42 CFR 70 and 42 CFR 71, to arrest and detain 3,000 cruise ship passengers at US military bases in March 2020 (killing at least 10 people while they were held in detention).

Sasha Latypova is working on a second report about this. Her first report was published in June 2024 in video (Jane Ruby interview) and written format:

June 2, 2024 - Grand Princess Quarantine Orders - Discussion with Dr. Jane Ruby. Partial FOIA response has been obtained from HHS by Children's Health Defense.

The information below is from my replies to readers seeking more information about federal quarantine law.

KW email, May 30, 2024:

Under PHE, CDC Director becomes judge, jury and executioner.

HHS cites to Congress passing and amending 42 USC 264 (the quarantine statute) as denying courts judicial review authority, because Congress put the quarantine power into sole HHS Secretary control (delegated to CDC director) and (HHS argues) it would be an agency rewrite of federal statutes to "grant" federal courts "legal jurisdiction that they do not already possess:"

"To the extent, however, that the commenter contends that HHS/CDC should follow legal procedures other than those set forth through the Federal quarantine statute at 42 U.S.C. 264, we disagree.
HHS/CDC notes that as a Federal agency it lacks the ability to rewrite Federal statutes or grant Federal courts with legal jurisdiction that they do not already possess.
HHS/CDC also rejects as impractical and as insufficient to protect public health, the notion that isolation or quarantine should only occur based upon the consent of the subject individual."

In the 2002 amendments in PL 107-188, Congress eliminated a National Advisory Health Council and Surgeon General role, put it all in HHS Secretary hands (with "consultation" with Surgeon General), and added the "qualifying stage" "precommunicable," and "if the disease would be likely to cause a public health emergency if transmitted to other individuals" language.

See p. 35/105 PDF of 2002 law, Public Health Security and Bioterrorism Preparedness and Response Act of 2002.

It's part of the Fourth Amendment suspension, under "non-law enforcement" activities of government.

The expanded power was transferred to CDC director with the Jan. 19, 2017 Final Rule (82 FR 6890) on communicable disease control. If you keyword search on 70.14 and 71.37 in the attached 2017 Federal Register notice, you'll find some citations about it.

Also search on "judicial review" and "Fourth Amendment."

For example:

"Courts have held, however, that not all types of searches and seizures necessarily require probable cause and a warrant.
Searches and seizures conducted with the consent of an authorized person and those searches and seizures that are conducted to avert an imminent threat to health or safety do not run afoul of the Fourth Amendment even when conducted without probable cause and a warrant."

It's meant to look like a form of probable cause, warrant, due process and judicial review, without being substantive, but instead being fake, like everything else.

After being taken into detention, a detainee can file a habeas corpus petition for judicial review under 28 USC 2241, like any other criminal, [except they haven’t been charged with a crime, but are detained for “non-law enforcement” reasons], and can also request an administrative hearing, not for constitutional or due process issues, only for medical and scientific issues.

Attaching another FR notice — they tried to put these rules in place in 2005 (70 FR 71892) and ended up withdrawing them in 2016, only to push them through in Jan. 2017.

In the 2005 version, there was going to be a 42 CFR 70.20, providing administrative procedures for "hearings." That section wasn't included in the 2017 version that's currently force.

Also interesting, re the FOIA. It may be that there aren't individual quarantine orders for the 3,000+ cruise passengers, but they were just covered by a notice posted in a public place, addressing them in the aggregate.

42 CFR 70.18 of the 2005 proposed rule, which ended up as 42 CFR 70.16(m) in the 2017 version:

§ 70.18 Service of quarantine order.
(a) A copy of the quarantine order shall be personally served on the person or group of persons at the time that quarantine commences or as soon thereafter as the Director determines that the circumstances reasonably permit.
(b) In circumstances where the Director deems it necessary, the quarantine order may be posted or published in a conspicuous location, except that the Director may omit the names and/or identities of persons and take other measures respecting the privacy of persons.

In the Jan. 19, 2017 Final Rule, (82 FR 6890) HHS reported on these and other comments raising Constitutional concerns, emphasizing the “non-law enforcement,” “border search,” “special need, and “emergency civil commitment” character of apprehension and detention procedures carried out under public health pretexts.

HHS respondents connected quarantine authority to warrantless drug and alcohol testing conducted without probable cause in employment contexts, as upheld by the Supreme Court in two 1989 cases.

Jan. 19, 2017 Final Rule, Control of Communicable Diseases, (82 FR 6890) at pp. 6899-6900:
...Several commenters questioned whether quarantine and isolation may be carried out consistent with the Fourth Amendment to the U.S. Constitution. One commenter also suggested that implementation of public health prevention measures at airports would lead to ‘‘unreasonable searches and seizures’’ under the Fourth Amendment.
HHS/CDC disagrees with these assertions. The Fourth Amendment protects the rights of persons to be free in their persons, houses, papers, and effects, against unreasonable government searches and seizures.
HHS/CDC notes that at ports of entry, routine apprehensions and examinations related to quarantine and isolation may fall under the border-search doctrine, which provides that, in general, searches conducted by CBP officers at the border are not subject to the requirements of first establishing probable cause or obtaining a warrant. See United States v. Roberts, 274 F.3d 1007, 1011 (5th Cir. 2001); see also United States v. Bravo, 295 F.3d 1002, 1006 (9th Cir. 2002) (noting that only in circumstances involving extended detentions or intrusive medical examinations have courts required that border searches be premised upon reasonable suspicion).
Similarly, apprehensions and examination of persons traveling interstate under this rule are authorized under the special-needs doctrine articulated by the Supreme Court in Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) because of the ‘‘special need’’ in preventing communicable disease spread.
Furthermore, to the extent that ‘‘probable cause,’’ rather than ‘‘special needs,’’ would be the applicable Fourth Amendment standard, HHS/CDC contends that meeting the requirements of 42 U.S.C. 264 satisfies this standard. See Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir.1992) (noting that probable cause for emergency civil commitment exists where "there are reasonable grounds for believing that the person seized is subject to the governing legal standard.")...
HHS/CDC received a comment citing Missouri v. McNeely, where the U.S. Supreme Court ruled that police must generally obtain a warrant before subjecting a drunken- driving suspect to a blood test, and that the natural metabolism of blood alcohol does not establish a per se exigency that would justify a blood draw without consent.
In response, HHS/CDC notes that courts have recognized that while the requirements for probable cause and a warrant generally apply in a criminal context, these standards do not apply when the government is conducting a non-law enforcement related activity. See Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 665 (1989) (reaffirming the general principle that a government search may be conducted without probable cause and a warrant when there is a special governmental need, beyond the normal need for law enforcement).
HHS/CDC reiterates that the special-needs doctrine articulated by the Supreme Court in Skinner v. Railway Labor Executives’ Ass’n., 489 U.S. 602 (1989) provides the appropriate legal standard under the Fourth Amendment for apprehensions and detentions under this final rule...

KW email, Aug. 8, 2024

I recommend reading the attached HHS Notice of Final Rule issued Jan. 19, 2017, (82 FR 6890) keeping in mind that HHS-CDC agents, when detaining and killing people, believe that the Constitution has already been suspended, that the country is in a national security emergency, that those who refuse to comply with instructions are insurrectionists in rebellion who threaten national security, that SCOTUS has already affirmed the HHS position as valid (South Bay Pentecostal v. Newsom, May 2020 decision, courts should not second-guess executive and legislative branches on issues fraught with scientific and medical uncertainties), and that the state governments have already adopted laws enabling them to enforce federal programs, through the mechanism of declaring emergencies at the state level and engaging in federal-state cooperation under 42 USC 247d et seq.

The state laws are called Model State Emergency Health Powers Acts (MSEHPA), and they are in place.

HHS specifically addresses habeas corpus at p. 9, 26 and 27 of the PDF (82 FR 6890) It's paid lip service, but HHS claims "HHS lacks the ability to rewrite Federal statutes or grant Federal courts with legal jurisdiction they do not already possess" to support its position that the only appeal venue in quarantine cases is HHS itself. HHS argues federal courts do not "possess" jurisdiction; Congress and executive branch stripped it through 42 USC 247d-6d(b)(7) and similar provisions of emergency powers law.

Also attaching an email thread from May…

There are several keywords that will help you get a better understanding of how the quarantine-gulag system works, including "special needs doctrine" and "non-law enforcement" activity, as related to suspending requirements for probable cause and warrants.

My overall recommendation is that any document to be presented to sheriffs or to courts should begin by acknowledging that the HHS-CDC position is that the Constitution has been suspended through the national emergency framework, and that this position has been upheld by SCOTUS, and then argue for a nullification of the enabling Congressional and state laws, and restoration of Constitutional rule of law.

Documents should not pretend that the Constitution is still operative and that SCOTUS has not already weighed in.

Help sheriffs and judges understand that we are already in a post-Constitutional society, and that they can go along with the overthrow, or be part of reversing it.

Reader reply:

…it's my current understanding Congress may lawfully "strip[] jurisdiction to issue [a] writ [of habeas corpus" and "avoid[] the Suspension Clause mandate" so long as Congress "provide[s] [an] adequate substitute procedure[] for habeas corpus." Boumediene v. Bush (2008)…

Given your statement "Congress and executive branch stripped it through 42 USC 247d-6d(b)(7) and similar provisions of emergency powers law[,]" the legal question is whether the "substitute procedure for habeas corpus" in 42 USC 247d-6d(b)(7) and similar provisions are "adequate[.]"

KW email, Aug. 9, 2024

[Those] trails probably will run in parallel to the CICP and VICP alternate due process systems, set up by Congress to keep vaccine-injured plaintiffs out of the Article III courts.

Some attorneys in the Covid arena (Aaron Siri of Siri & Glimstad; Jeff Childers) have filed cases arguing the CICP program is not an adequate substitute for ordinary civil tort proceedings. Siri and Childers present the products as consumer products, not as weapons, and attempt to fit them into ordinary consumer product litigation parameters.

They argue that 7th Amendment right to jury trial, along with 14th amendment due process rights, are violated by CICP, with the injury being the taking of the plaintiffs’ property interest in litigation.

The HHS Motions to Dismiss the Siri case include some of the broader, Constitution-preemptive arguments and precedents that HHS brings to bear to defend itself against such challenges.

The Notices of Removal and Motions to Dismiss the state-filed consumer product cases (Paxton/Texas v. Pfizer, for example) contain similar arguments, about the state-court and state-law preemption function of the public health emergency, medical countermeasure liability-exemption laws.

Zip file of some of the motions to dismiss attached.

I have other case documents for these cases, but the MtDs shed the most light on HHS/DOJ views of federal authority. Please let me know if you want other case documents…

The three cases in the zip file are:

Smith v. HHS-HRSA, an attempt to get a federal court to rule that CICP is an inadequate substitute for a jury trial. Siri has filed substantially similar cases in other federal districts, and Jeff Childers filed a substantially similar case in Florida in June 2024, Moms v. HHS, HRSA. I check on PACER for recent activity every 6-8 weeks, but have not checked recently to see if HHS filed a MtD Childers' case yet, or if court ruled on Smith v. HRSA yet.
Texas AG v. Pfizer, an attempt to get a state court to rule that Pfizer violated state consumer protection laws. Removed to federal court. Pfizer filed MtD in March 2024. Kansas AG filed substantially similar case in Kansas state court in June 2024. I haven't checked to see if Pfizer filed a Notice of Removal to have the Kansas case removed to federal court and/or consolidated with the Texas/Paxton case.
Texas, Oklahoma AGs v. HHS - States petitioned HHS to remove WHO acts from HHS' list of valid predicates for public health emergency determinations. HHS refused/ denied petition; their Oct. 2022 letter of denial is where Sasha Latypova found the info about use of 42 CFR 70 and 71 to detain cruise passengers at military bases in March 2020. Federal court upheld HHS decision, found states lack standing to challenge HHS policies. States did not appeal to circuit court.

Oct. 17, 2023 - Texas and Oklahoma v. US Department of Health and Human Services and Xavier Becerra: case documents
Oct. 18, 2023 - There is never going to be another "deadly global pandemic." There have not been any in the past.
Jan. 20, 2024 - On the historical development and current list of 'quarantinable communicable diseases.' - “…Local law enforcement and public health officials — acting under the legal authority they believe is delegated by HHS Secretary or Surgeon General federal quarantine orders and corresponding state-level quarantine orders — may at some point engage in door-to-door visits indicating an interest in conducting diagnostic tests, providing treatments, or escorting people to a nearby vehicle for transport to a hospital or medical holding facility. Such law enforcement officers (LEO) and health care workers (HCW) will verbally suggest that they have the targets’ best interests in mind. They do not. LEOs and HCWs will be tasked with transporting targets to secondary locations at which additional crimes will take place, committed by a different team of law enforcement and public health officers…”
June 27, 2024 - Intentional infliction of harm is not a legitimate government purpose; enabling it is not a permissible legislative object. (Links to case documents for Smith v. HRSA, Texas AG v. Pfizer, Moms v. HRSA and more.