– Domani Spero
In September, we blogged that the State Dept Awarded $4.9 Million Contract to Phoenix Air for Air Ambulance Evacuation #Ebola. Apparently, the last couple of days there was a flap over a State Department memo on a plan to bring non-Americans with Ebola to U.S. soil for treatment. The memo labeled Sensitive But Unclassified – Predesicional is available to read here and notes USG obligation to non-U.S. citizen employees and contractors of U.S. agencies (USAID, CDC, etc.) and programs as well as NGOs and private firms based in the United States.
The Washington Times identified the memo’s author as Robert Sorenson, deputy director of the Office of International Health and Biodefense (OES/IHB). The Office of International Health and Biodefense is the primary State Department policy office responsible for a variety of international health issues. It takes part in U.S. Government policymaking on infectious disease, environmental health, noncommunicable disease issues, global health security, antimicrobial resistance, and counterfeit and substandard medications. A clearance sheet attached to the memo reportedly says it was cleared by offices of the deputy secretary, the deputy secretary for management, the office of Central African affairs and the medical services office.
The memo did make it to the Daily Press Briefing at the State Department. Excerpt below:
QUESTION: And then the last one on this is: There was a report last night and again this morning about this memo that was – the State Department memo –
MS. PSAKI: Sure, let me address that.
QUESTION: — about bringing –
MS. PSAKI: Mm-hmm. One, just factually, the document referenced was drafted by a midlevel official but not cleared by senior leaders. It never came to senior officials for approval. And any assertion that the memo was cleared by decision-makers is inaccurate. There are no plans to medevac non-Americans who become ill with Ebola to the United States. We have discussed allowing other countries to use our medevac capabilities to evacuate their own citizens to their home countries or third countries subject to reimbursement and availability. But we’re not contemplating bringing them back to the United States for treatment.
QUESTION: So the – but essentially, what you’re saying is that one guy somewhere in this building came up with this idea and put it on paper, but it never went anywhere? Is that what you’re saying?
MS. PSAKI: Correct. It’s also weeks old and the memo isn’t current because European – our European partners –
QUESTION: All right. Okay.
MS. PSAKI: — have addressed this matter by providing their own guarantees, but go ahead.
QUESTION: One problem that – I mean, that I see is that a week ago, the Pentagon and the White House was insisting that, no, no, no, there is no overall quarantine order and it’s just this one commander, or these guys who are in Italy. And now all of a sudden, today we have Secretary Hagel saying no, it’s going to be – it’s Pentagon-wide and it’s going to go to all of the troops that are there. What is there to prevent this memo from coming back to life, as it were –
MS. PSAKI: Well, I think with this –
QUESTION: — and becoming policy? Has it been flat out rejected or is it just kind of sitting on a shelf someplace and maybe could be implemented at some point?
MS. PSAKI: It’s sitting on a shelf or on a computer – since we use computers nowadays – by the individual who wrote it, I suppose. I think the important point here is that our European partners, since several weeks ago when that was written, have addressed this by providing a guarantee to international health workers that they would either be flown to Europe or receive high-quality treatment on the spot. So it’s not applicable at this point.
QUESTION: Okay. Well, in general, why was this never approved? I mean, it seems – I mean, you could make the argument that the U.S. has great healthcare facilities, that no one who has contracted the disease in the United States has actually died. So I think there might be some who could make the argument that why not bring people?
MS. PSAKI: Sure, but many countries have decided to make that decision to deal with it themselves, and we’ve certainly been discussing with them how to do that.
QUESTION: So this has been discarded as unnecessary rather that rejected –
MS. PSAKI: It was never discussed at any levels, in any serious level with decision-makers. So I don’t – wouldn’t say it was discarded, but –
QUESTION: Along the lines of what Matt was saying, on page 5 of the memo, it says that it was approved by Nancy Powell, the head of the Ebola Coordination Unit. Doesn’t that suggest it was fairly further along in the process?
MS. PSAKI: I’m happy to look at the approval memo. As I understand, and just so you know, sometimes there are people listed. It doesn’t mean they cleared it. It just means there are people who need to clear a memo. So I will check and see if there was anybody who actually cleared it.
“One guy somewhere in this building came up with this idea and put it on paper, but it never went anywhere?” And the official spokesperson, without blinking said, “correct.”
Don’t you just hate it when they say things like that and throw some midlevel official under the medevac plane?
In fact, the justification for the air ambulance evacuation contract awarded to Phoenix Air on August 18, 2014 appears clear enough as to why this was necessary:
The USG is left with only two options in supporting a CDC scientist that has a high risk exposure to an EVD patient — use the PAG capability to ﬂy the person back to the US for observation and optimum care should disease develop, or leave the person in place where no care is available if the disease develops. The question, then, is not how many EVD patients will be moved, but rather how many contacts and EVD patients will be moved across the entire international response population (as many as three per month). Finally, from a pragmatic stand point, given the limited options for movement of even asymptomatic contacts, it has become clear that an international response to this crisis will not proceed if a reliable mechanism for patient movement cannot be established and centrally managed.
That leaked memo is not saying we’re moving Liberia’s entire infected population for treatment in U.S. hospitals, is it? An argument can be made that the USG has an obligation to assist in the treatment of those infected in the course of their work fighting the ebola outbreak on behalf of the international community. The State Department is not/not making that argument, of course. The only official argument it is making is that — that memo, that never went anywhere beyond the midlevel officer’s desk.
Nothing to do with an election coming up? Sure, okay.
* * *
– Domani Spero
ABC News’ Kirit Radia wrote recently about how the US Embassy in Moscow is facing cold war-era harassment:
One American diplomat’s tires were slashed. Another’s personal email was hacked. Still others reported mysterious break-ins.
The incidents are all signs, U.S. officials and experts said, that aggressive, Soviet-era counterintelligence tactics are back in fashion in Russia.
The number of incidents targeting American diplomats in Moscow has increased in recent years to levels not seen since the Cold War, officials said.
Taken together, they paint an escalating pattern of intimidation and harassment that is believed to be led by Russia’s Federal Security Services (FSB), a successor to the Soviet KGB.
Some of the alleged Russian actions seemed petty. In several instances, U.S. officials returned home to find their belongings had been moved or a window left open in the middle of winter. American diplomats have also been trailed more overtly by Russian security agents.
Others attempted to interfere with diplomatic work, like disrupting public meetings with Russian contacts. Uniformed guards provided by Russia to stand outside the embassy, ostensibly for protection, have harassed visitors and even employees trying to enter the building.
Ambassador McFaul was followed almost everywhere he went in an aggressive, at times threatening way by both Russian security agents and pro-Kremlin television stations, even while attending private events with his family.
In one notably flagrant episode, according to officials, McFaul was stranded in the Russian Foreign Ministry parking lot after police stopped his driver for a minor infraction and revoked his driver’s license on the spot.
Read in full: US Embassy in Moscow Faces Cold War-Era Harassment.
On October 29, the Russian Foreign Ministry said it believed “the allegations could have been cooked up at the suggestion of the U.S. State Department,” according to TASS and accused the United States of spying on official Russians in the United States, as well as the following:
[T]he United States is making regular attempts to recruit our diplomats by means of gross provocations involving the use of illegally obtained personal data, including information on the health of family members,” the Russian Foreign Ministry stressed.
Perhaps this is in reference to the 49 Russian Diplomats/Spouses Charged With Picking Uncle Sam’s Pocket in Medicaid Scam? That one where the FBI says that of the 63 births to the Russian diplomats and their spouses in New York City between the years 2004 and 2013, 58 of those families, or 92% were allegedly paid for by Medicaid benefits.
In any case, we can tell you that the U.S. Embassy in Moscow is not alone when it comes to host country harassment.
In Belarus where parliamentary democracy ended with the 1994 presidential election of Alexander Lukashenko, staff members at the U.S. Embassy in Minsk, both American and local nationals have also been subjected to regular harassment by the Belarusian security services. “To visit Embassy Minsk is to step back in time to an era when American diplomats in Eastern Europe operated in inhospitable environments,” reports the OIG. The following is excerpted from the State/OIG inspection report from September 2013:
American staff residences have been entered surreptitiously [REDACTED]. The embassy and all U.S. and Belarusian staff are under constant physical surveillance.
Staff members operate on the assumption that everything sent on unclassified systems or spoken on the telephone is monitored by Belarusian security services and other local security agencies. See OIG, Belarus September 2013 (pdf).
In July 2012 authorities installed police checkpoints at all embassy gates and at the public affairs office. Police take personal information from both U.S. and Belarusian citizens before allowing visitors to enter. Except in rare cases, when U.S. Government officials make temporary visits to Minsk, host-country authorities require that an equivalent number of permanent American staff members leave the country to maintain the five-person limit. This restriction and persistent harassment hamper mission operations and program implementation.
Take a look at this current staffing that has been the norm for a while:
In May 2012, State/OIG noted the official harassment of US Mission Pakistan by the Pakistani Government. We should note that Pakistan is the 3rd largest recipient of U.S. foreign assistance in FY2012 at $1.821B, after Israel and Afghanistan. In the FY 2014 budget request, Pakistan slipped to #4, dislodged by Egypt, but still receiving foreign assistance in the amount of $1.2B. Below is what the OIG inspector wrote about the harassment of U.S. mission elements in Pakistan; most of the section on this topic, of course, is redacted from the report:
Official Pakistani obstructionism and harassment, an endemic problem in Pakistan, has increased to the point where it is significantly impairing mission operations and program implementation (REDACTED (b) (5). The issue of harassment must be made an integral part of high-level policy discussions with the Pakistani Government regarding the future of the bilateral relationship.
Official Harassment: U.S. official entities operating in Pakistan have long been subjected to unusual, government-initiated obstructionism and harassment. That harassment has reached new levels of intensity, however, after the events of 2011. The embassy describes the harassment as deliberate, willful, and systematic. While other diplomatic missions have experienced similar treatment, the United States is clearly the principal target. The harassment takes many forms: delayed visa issuances; blocked shipments for both assistance programs and construction projects; denials of requests for in-country travel; and surveillance of and interference with mission employees and contractors. (REDACTED).
The scope and impact of official Pakistani harassment and obstructionism is described in the Background section of this report. (LOOONG REDACTION).
The good news here is that so far, except in Homeland, no ex-CIA director has yet been kidnapped and spirited out of Islamabad while locked in the trunk of a car.
Beyond petty harassment like blocked shipments and delayed visa issuance, perhaps the worse ones are reports of harassment out of Havana, Cuba where the OIG in 2007 says that “USINT life in Havana is life with a government that “let’s you know it’s hostile.”
Apparently, retaliations at that time have ranged from the petty to the poisoning of family pets. The regime had also gone to great lengths to harass some employees by holding up household goods and consumable shipments. The apparent goal apparently, had been “to instigate dissension within USINT ranks. “
C’mon, poisoning the pets?!
Fast forward to 2014 and not much have changed. Here is what the OIG report says:
- Mission employees face a difficult working environment. U.S. officers can meet only with certain government officials. They are allowed to travel only a limited distance from Havana without special permission. Shipments of supplies, mail, and personal effects are frequently delayed. Normal banking operations are nonexistent. Consumer goods are scarce and expensive. Communication facilities are substandard.
- Surveillance of U.S. and local employee staff members by Cuban authorities is pervasive.
- USINT officers’ travel is limited to within Havana province. Permission to travel outside that area requires sending a diplomatic note a minimum of 5 days before travel begins.
- Shipments of official procurements take 6 months or more to be cleared even after receiving pre-clearance from the Ministry of External Relations–another lengthy process. Unclassified pouches with personal mail are often rejected and sent back to the United States. Incoming household effects, which take 1 day to sail from Miami to Havana, have sat for months in the port awaiting clearance; the same holds for personal vehicles and consumables.
- Cuban customs authorities open and x-ray both inbound and outbound shipments before they will clear them.
At least there’s no more poisoning of the family pets of the U.S. Interest Section Havana staffers. And no one, as far as we know, has been reported to accept the offer of “*Cigars, señora?” from a handsome young man. (*from an FS spouse short fiction about life in Cuba via American Diplomacy).
* * *
– Domani Spero
On October 29, 2014, the House Foreign Affairs Committee Chairman Ed Royce (R-CA) and Ways and Means Committee Chairman Dave Camp (R-MI) wrote to IRS Commissioner John Koskinen seeking information after learning that foreign diplomats working in the United States are eligible for subsidized health coverage under the Affordable Care Act (ACA). Excerpt from their letter:
The Committees on Foreign Affairs and Ways and Means are investigating the extent to which these diplomats receive taxpayer-subsidized premium tax credits and cost-sharing subsidies under the Affordable Care Act. We are seeking to determine how many such individuals participate in these programs and the total cost of such benefits. As the agency principally responsible for administering health coverage tax credits, we request that you provide this information as soon as possible.
According to the Department of Health and Human Services, foreign diplomats holding “A” or “G” visas are eligible to participate in an array of medical programs administered by the federal government, including participation in Health Insurance Marketplaces governed by the Affordable Care Act (ACA). The Secretary of Health and Human Services has informed the Committee on Foreign Affairs that, if they meet basic ACA requirements, “a foreign diplomat could satisfy the statutory criteria to be eligible for a premium tax credit and cost-sharing reductions.” The State Department has gone so far as to advertise to Foreign Missions, Permanent Missions to the United Nations, and the United Nations Secretariat that health care exchanges and “the benefits of the United States Affordable Care Act are available” to them.
The Foreign Affairs Committee has sought to determine the number of diplomats receiving coverage and subsides under the ACA. Unfortunately, the State Department has informed the Foreign Affairs Committee that it “is not involved in the process through which foreign diplomats obtain government-funded benefits” and cannot provide that data. The Department of Health and Human Services is likewise unable to provide this information. Specifically, it noted that “[t]he Department does not collect data that identify whether individuals receiving services through our medical programs have diplomatic status.” Similarly, “the Department does not collect data that identifies whether individuals receiving tax credits and/or cost sharing reductions have diplomatic status.” Copies of these letters are attached for your reference.
We fully support the ability of foreign diplomats to purchase health care coverage in the United States. We do not, however, believe that American taxpayers should subsidize these services. To assist with our oversight of this matter, we ask that you please provide the following information as soon as possible, but not later than 5:00 p.m. on November 12, 2014.
- The total number, including from which country, of all non-immigrant, non-citizen “A” and “G” visa holders who are eligible for, and who have received, premium tax credits for qualified health plans under the Affordable Care Act;
- The total number, including from which country, of all non-immigrant, non-citizen “A” and “G” visa holders who are eligible for, and who have received, cost-sharing reductions for qualified health plans under the Affordable Care Act; and
- The total cost, and cost per individual, of all subsidies provided to the individuals above.
The signed letter and referenced attachments are available here.
Did you know about this? Do you know the rationale for this? International relations is based on reciprocity, are our American diplomats eligible for healthcare subsidies in countries that avail of Obamacare subsidies here? Since the State Department is “is not involved in the process through which foreign diplomats obtain government-funded benefits,” in the United States, how is it supposed to press countries for reciprocal treatment on behalf of our diplomats?
According to a notice circulated (pdf) by the State Department in February 2014, individuals who are lawfully present in the United States, including U.S. citizens, permanent residents (green card holders), and “A” and “G” visa holders (principal or dependent), may purchase coverage through the health insurance marketplace/exchange. Additionally, the notice states that “Those Permanent Missions whose employees do not receive health and medical insurance benefits through the sending state, or Permanent Missions who have not entered into a health and medical insurance plan with a private insurance provider, may find the benefits provided by the ACA a cost effective way to insure their employees against high physician, hospital, and prescription drug costs.”
Note that A-1 – 2 visas are for foreign government diplomats and officials and their immediate family members while G-1 – 4 visas are for international organization officials and employees and their immediate family members.
* * *
-02/20/14 OAS Note No. 07-B: OAS Affordable Care Act Guidance [98 Kb]
-02/18/14 Notice: Town Hall Meeting – Health Insurance and the Affordable Care Act [280 Kb]
-11/26/13 USUN Diplomatic Note HC-115-(S)-13: UN Secretariat Affordable Care Act Guidance [43 Kb]
-11/26/13 USUN Diplomatic Note HC-115-13: USUN Affordable Care Act Guidance [42 Kb]
-11/21/13 Diplomatic Note 13-1117: Affordable Care Act Guidance [33 Kb]
– Domani Spero
Eligible U.S. government employees may be detailed or transferred to certain international organizations in which the United States participates. Authority and procedures for such details and transfers are found in: 5 U.S.C. §§ 3343, 358l-3584 and 5 C.F.R. and §§ 352.301 through 352.314. via
This past summer, we learned that for the past several years, the Department and AFSA have agreed to a “procedural precept” for the Foreign Service Selection Boards that explicitly excludes from promotion consideration Foreign Service Officers who have been transferred to some international organizations. We could not find hard numbers on how many officers have been impacted or which IO assignments are excluded.
We did hear that this particular issue (separation to work in an international organization, with re-employment rights) apparently affects “a very small number of people,” and that in the past, officers, typically not willing to rock the boat, have made themselves content with simply accepting a time-in-class (TIC) extension (pdf).
That’s weird, right? This appears to disincentivize U.S. citizen employment in international organizations, something that is apparently a congressional mandate; so much so that an office in the Bureau of International Organization Affairs (State/IO) is actually tasks with promoting such employment. Well, actually the policy for agencies to take affirmative steps in having U.S. citizens work in international organization dates back to President Lyndon B. Johnson’s tenure. Seriously.
We understand that the justification for the exclusion in the Precepts was articulated over five years ago and is contained in a June 23, 2008 AFSA letter:
“The rule prohibiting Selection Board competition of members on certain secondments became effective in June 2004 on issuance of the Procedural Precepts for the 2004 Foreign Service Selection Boards and has been in effect for the past five years [sic]. It was introduced to prevent employees from using secondments to extend their time-in-class and the length of their tours of duty in Missions such as Vienna, Brussels and Geneva while continuing to compete for promotion, performance pay, etc.”
An FSO who is familiar with the process and the exclusion told us that this explanation is “nonsense.” Apparently, this exclusion also applies to personnel transferred to UN agencies in Afghanistan, Darfur, Southern Sudan, Kenya, East Timor, etc. We were also told that the Precept (see (I(B)(6)(j) of the Procedural Precepts), is a “Bush-era ham-fisted attempt” to punish any service outside of Iraq and Afghanistan, with “scant attention paid to broader policy implications or legal norms.”
So in essence, we really want more Americans to serve in international organizations, but if FS employees do serve in those capacities, it is likely that some of them will not be considered for promotion. And since international org assignments can run longer than foreign service tours, that basically puts a career in deep ice; surely a concerning detail in an up or out system like the Foreign Service. And you wonder why there’s not a single stampede for these jobs.
What do the Federal regulations say?
Title 5 (see CFR § 352.314 Consideration for promotion and pay increases) has this:
(a) The employing agency must consider an employee who is detailed or transferred to an international organization for all promotions for which the employee would be considered if not absent. A promotion based on this consideration is effective on the date it would have been effective if the employee were not absent. (pdf)
We were told that the State Department’s Legal Adviser’s (State/L) position is that… “The Precepts are authorized under Title 22, and the Secretary has the authority to prescribe what they say”.
And what exactly does Title 22 says?
22 USC § 3982 (2011) §3982. Assignments to Foreign Service positions
(a) Positions assignable; basis for assignment
(1) The Secretary (with the concurrence of the agency concerned) may assign a member of the Service to any position classified under section 3981 of this title in which that member is eligible to serve (other than as chief of mission or ambassador at large), and may assign a member from one such position to another such position as the needs of the Service may require.
So basically since “L” had apparently ruled that FS Assignments are made under Title 22 (which does not address promotions), and Title 5 (the part of the regs that actually addresses promotion), does not apply — there is no desire to reconcile the conflict between the promotion eligibility of detailed/transferred employees to an international organization contained in Title 5 with the exclusion contained in the Precepts?
Wow! We’re having an ouchy, ouchy headache.
If this interpretation stands, does it mean that the Secretary of State is free to disregard any legal norm, standard or entitlement that is not spelled out specifically in Title 22?
And we’re curious — where does HR/CDA/SL/CDT obtain its legal authority to pick and choose among transferred members on who should and should not be considered for promotion? It appears that 5 CFR 352.314 spells out a clear entitlement to promotion consideration for ALL transferred officers but for the “L” interpretation.
We understand that there is now a Foreign Service Grievance case based exactly on this exclusion in the Precept. If not resolved by FSGB, this could potentially move to federal court as it involves not only adjustment in rank, and withheld benefits but also TSP coverage which has retirement implications. Will State Department lawyers go to court citing “FS Assignments outside DOS” booklet, issued by HR/CDA/CDT over the federal regulations under Title 5?
Perhaps, the main story here is not even about a specific precept, but the fact that Department management is disregarding Federal law and from what we’ve seen — AFSA, the professional representative and bargaining unit of the Foreign Service has been aware of this for years but has no interest in pressing the issue.
* * *
* * *
– Domani Spero
On October 25, WaPo reported that the governors of New York Andrew Cuomo and New Jersey Gov. Chris Christie ordered on Friday the imposition of a mandatory 21-day quarantine for medical workers returning from the countries hit hardest by the ebola epidemic. Illinois later in the day imposed similar restrictions. Today, NYT reported that the Obama administration has expressed deep concerns to the governors and is consulting with them to modify their orders to quarantine medical volunteers returning from West Africa.
Ebola CRS report via Secrecy News (pdf):
On August 8th, the World Health Organization declared the outbreak of the Ebola Virus Disease in West Africa a Public Health Emergency of International Concern. The recent arrival in the United States of several health care workers who contracted the disease, combined with the first diagnosis of a case in the U.S. at a hospital in Dallas, has sparked discussion about the appropriate government response. Aside from the various policy considerations at issue, the outbreak has generated several legal questions about the federal government’s authority to restrict specific passengers’ travel and/or contain the outbreak of an infectious disease. These questions include, inter alia, whether the federal government may: (1) restrict which countries U.S. nationals may travel to in the event of a public health crisis; (2) bar the entry into the United States of people who may have been infected by a disease; and (3) impose isolation or quarantine measures in order to control infectious diseases.
Passport restrictions on which countries U.S. citizens may visit can be imposed by the Secretary of State. Pursuant to the Passport Act, the Secretary of State may “grant and issue passports” according to rules designated by the President, and may impose restrictions on the use of passports to travel to countries “where there is imminent danger to the public health or the physical safety of United States travellers” (sic). The Supreme Court has recognized that the authority to “grant and issue” passports includes the power to impose “area restrictions” – limits on travel to specific countries (restrictions must comply with the Due Process Clause of the Constitution). Although passport restrictions are not criminally enforceable, they may prevent travelers from boarding a flight to a restricted area.
Restrictions may also be imposed on who may enter the United States, though the range of applicable restrictions may differ depending upon whether a person seeking entry into the country is a U.S. national. The government enjoys authority under federal immigration law to bar the entry of a foreign national on specific health-related grounds, including when a particular foreign national is determined to have a “communicable disease of public health significance.” More broadly, section 212(f) of the Immigration and Nationality Act authorizes the President, pursuant to proclamation, to direct the denial of entry to any alien or class of aliens whose entry into the country “would be detrimental to the interests of the United States.”
These restrictions do not apply to U.S. citizens, who may enjoy a constitutional right to reenter the country. Nonetheless, certain travel restrictions may impede the ability of any person – regardless of citizenship – from traveling to the United States in a manner that potentially exposes others to a communicable disease. For example, airlines flying to the U.S. are permitted under Department of Transportation regulations to refuse transportation to passengers with infectious diseases who have been determined to pose a “direct threat” to the health and safety of others. In making this determination, airlines may rely on directives from the CDC and other government agencies. Pilots of flights to the United States are also required to report certain illnesses they encounter during flight before arrival into the U.S.
In addition, the Department of Homeland Security and Centers for Disease Control and Prevention (CDC) maintain a public health “Do Not Board” (DNB) list, which contains the names of people who are likely to be contagious with a communicable disease, may not adhere to public health recommendations, and are likely to board an aircraft. Airlines are not permitted to issue a boarding pass to people on the DNB list for flights departing from or arriving into the United States. People placed on the DNB list are also “assigned a public health lookout record,” which will alert Customs and Border Protection officers in the event the person attempts to enter the country through a port of entry. The CDC’s Division of Global Migration and Quarantine (DGMQ) can conduct exit screening at foreign airports to identify travelers with communicable diseases and alert the relevant local authorities.
Finally, both federal and state governments have authority to impose isolation and quarantine measures to help prevent the spread of infectious diseases. While the terms are often used interchangeably, quarantine and isolation are actually two distinct concepts. Quarantine typically refers to separating or restricting the movement of individuals who have been exposed to a contagious disease but are not yet sick. Isolation refers to separating infected individuals from those who are not sick. Historically, the primary authority for quarantine and isolation exists at the state level as an exercise of the state’s police power in accordance with its particular laws and policies.
However, the CDC is also authorized to take measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” In order to do so, the implementing regulations “authorize the detention, isolation, quarantine, or conditional release of individuals.” This authority is limited to diseases identified by an Executive Order of the President, a list which currently includes Ebola. Whether an isolation or quarantine order originates with the federal or state government, such orders will presumably be subject to habeas corpus challenges, and must also comport with the Due Process Clause of the Constitution.
View the original CRS Legal Sidebar here (pdf) includes active links.
And that legal challenge may soon be upon us. On October 26, Kaci Hickox, a nurse placed under mandatory quarantine in New Jersey, went on CNN on Sunday and criticized the “knee-jerk reaction by politicians” to Ebola. According to CNN, Hickox, an epidemiologist who was working to help treat Ebola patients in Sierra Leone, has tested negative twice for Ebola and does not have symptoms. Norman Siegel, Hickox’s attorney, and a former director of the New York Civil Liberties Union told CNN that he will be filing papers in court for Hickox to have a hearing no later than five days from the start of her confinement. Siegel told CNN that Hickox’s quarantine is based on fear.
[T]he following communicable diseases are hereby specified pursuant to section 361(b) of the Public Health Service Act:
(a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named).
July 31, 2014 Update
“(b) Severe acute respiratory syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled. This subsection does not apply to influenza.”
A side note, the U.S. Ambassador to the United Nations, Samantha Power is currently traveling to the countries in West Africa hardest hit with the ebola outbreak:
— US Embassy Ghana (@USEmbassyGhana) October 26, 2014
Landed in Guinea. Here to see how world is responding to #Ebola outbreak. 1st country in current outbreak, 1st stop on my trip to W. Africa.
— Samantha Power (@AmbassadorPower) October 26, 2014
Now, since Ambassador Power is not a medical worker, she probably will not be subjected to the NJ/NY mandatory quarantine when she gets back. However, on October 22, the Centers for Disease Control and Prevention (CDC) announced that public health authorities will begin active post-arrival monitoring of travelers whose travel originates in Liberia, Sierra Leone, or Guinea. Active post-arrival monitoring, according to the CDC means that travelers without febrile illness or symptoms consistent with Ebola will be followed up daily by state and local health departments for 21 days from the date of their departure from West Africa. Except that Ambassador Power’s return trip will not be originating from West Africa but from Belgium, the last stop on this West Africa-Europe trip before returning to the U.S.
* * *