Facing the Truth

Acknowledging DoD's Unlawful Mandate

Photo by Hakan Nural on Unsplash

The Department of Defense’s (DoD) August 24, 2021 covid-19 vaccine mandate was unlawful.

That sentence above needs no additional context or qualifier to make it true. It is true as stated. The mandate was unlawful when it was implemented and has never somehow become lawful. Additionally, the fact that the mandate has since been repealed does not in any way negate its unlawful status while in effect.

Earlier this week, on July 4th to be exact, Rob Green's book, Defending the Constitution Behind Enemy Lines, was released. Rob Green is a Navy commander who has spoken out vigorously about the plight of the service members who sought to resist DoD’s vaccine mandate. As the July 4th release date may suggest, Rob's book is the true story of troops engaged in a bitter fight for freedom. Though paradoxical it may seem, these troops find themselves in this bitter fight for freedom against the U.S. military that they are a part of.

I’ve never met Rob personally, but we have communicated quite a bit. We’ve also participated together in an interview. I consider him to be one of the foremost leaders when it comes to trying to correct the heading that the military is currently on.

My copy of Rob’s book

For those who may be interested, I've previously reviewed Rob's book. That review, along with an introduction provided by L. Todd Wood, can be found here. In addition to that review, I also recently appeared on the Children’s Health Defense (CHD) program, Good Morning CHD, alongside Rob and Tommy Waller (Retired USMC lieutenant colonel and current CEO of the Center for Security Policy) to discuss Rob's book and DoD’s malfeasance.

One of the reasons this book is so important is because it articulates very clearly what many of us have been saying for a long time. Regardless of what one thinks about the covid-19 vaccine mandate in terms of safety, efficacy, or need, it was based on deception brought about via collusion between the FDA and DoD. I've written about this multiple times before, most notably here, here, and here. However, today I want to focus specifically and exclusively on the claim that the mandate was unlawful.

The beauty of Rob’s book is that it must be responded to. The book is out in the public space now and people will begin to read it. His book is very clear and well-researched. He also names names. If any of the claims seem outlandish, it’s only because DoD’s actions have been outrageous. After all, Rob is not the only one claiming that the mandate was unlawful.

Two weeks after the mandate went into effect, the Defender, a CHD publication, released an article reporting that CHD had filed a lawsuit that challenged the FDA licensure (upon which the DoD mandate was predicated), which the authors referred to as a “bait and switch.” The Defender reports that:

According to the lawsuit, the FDA violated federal law when it simultaneously licensed Pfizer’s “Comirnaty” vaccine and extended Pfizer’s EUA for its vaccine that has the “same formulation” and that “can be used interchangeably,” according to the FDA.

The article cited above from the Defender follows up on a previous article dated August 24, 2021 (the day the mandate was implemented and one day after the FDA licensure/approval of Comirnaty). I’ll share a few citations but this short article, authored by Robert F. Kennedy, Jr. and Dr. Meryl Nass, must be read in its entirety to fully appreciate what has happened and why. We read that the FDA’s August 23, 2021 approval included “several bizarre aspects…that prove confusing.” The article states:

First, the FDA acknowledges that while Pfizer has “insufficient stocks” of the newly licensed Comirnaty vaccine available, there is “a significant amount” of the Pfizer-BioNTech COVID vaccine — produced under Emergency Use Authorization (EUA) — still available for use.

The FDA decrees that the Pfizer-BioNTech vaccine under the EUA should remain unlicensed but can be used “interchangeably” (page 2, footnote 8) with the newly licensed Comirnaty product.

There are two distinct products being referenced here. I agree with Kennedy and Nass that it certainly seems “bizarre” that the “licensed” product isn’t well stocked while the EUA product is well stocked and remains available. The article continues:

Second, the FDA pointed out that the licensed Pfizer Comirnaty vaccine and the existing, EUA Pfizer vaccine are “legally distinct,” but proclaims that their differences do not “impact safety or effectiveness.”

There is a huge real-world difference between products approved under EUA compared with those the FDA has fully licensed.

So, again, we must understand that there are two products, and both carry the Pfizer name. One is referred to as Comirnaty and was licensed/approved on August 23, 2021 by the FDA. The other product, known as Pfizer-BioNTech, remains under EUA. Regardless of formulation, the two are “legally distinct.” Why is that so important? What is the “huge, real world difference” mentioned above? The article informs us that:

EUA products are experimental under U.S. law. Both the Nuremberg Code and federal regulations provide that no one can force a human being to participate in this experiment. Under 21 U.S. Code Sec.360bbb-3(e)(1)(A)(ii)(III), “authorization for medical products for use in emergencies,” it is unlawful to deny someone a job or an education because they refuse to be an experimental subject. Instead, potential recipients have an absolute right to refuse EUA vaccines.

U.S. laws, however, permit employers and schools to require students and workers to take licensed vaccines.

EUA products, because of their experimental status, can’t be mandated. That means that the Pfizer-BioNTech product, which has never been approved by the FDA, can’t be mandated. The other Pfizer product, Comirnaty, (that wasn’t well-stocked) was approved and therefore could ostensibly be mandated. What about the aspect of the two being “legally distinct?”

EUA-approved COVID vaccines have an extraordinary liability shield under the 2005 Public Readiness and Preparedness Act. Vaccine manufacturers, distributors, providers and government planners are immune from liability. The only way an injured party can sue is if he or she can prove willful misconduct, and if the U.S. government has also brought an enforcement action against the party for willful misconduct. No such lawsuit has ever succeeded.

So, if you take an EUA product and are injured, your chances of receiving compensation are virtually nil. What about taking an FDA-approved product?

At least for the moment, the Pfizer Comirnaty vaccine has no liability shield. Vials of the branded product, which say “Comirnaty” on the label, are subject to the same product liability laws as other U.S. products.

So there you have it. The FDA approved a ghost product (Comirnaty) that could ostensibly be mandated, if it were available. If you took Comirnaty (good luck finding it) and were injured, then you could possibly sue for damages. However, if you took the EUA product, Pfizer-BioNTech — the one that is actually available — and were injured, you are out of luck. Its EUA status means that you assumed the risk by taking the product. Why would Pfizer, the FDA, and DoD collude in this fashion? Isn’t it obvious? Kennedy and Nass tell us that “The FDA appears to be purposefully tricking American citizens into giving up their right to refuse an experimental product.” How many people have even been aware that there were two Pfizer products? How many people held out on taking the shot until there was an FDA-approved product just so that they could take the approved one? Well guess what? If you took the Pfizer shot, you didn’t take the approved Comirnaty, you took the Pfizer-BioNTech (the EUA product).

Rob Green explains this as well in the chapter of his book that is appropriately titled The Nuremberg Shrug. He also includes two important additional points. First, he explains that in order for two products to be used interchangeably, both must be independently licensed (page 57). That means that an EUA product can’t be used interchangeably with an FDA-approved product. The formulation of the two products, regardless of how similar, has no legal bearing on that interchangeability. After all, words have meaning, and “legally distinct” means legally….distinct. Perhaps if they were not legally distinct, then neither could have a liability shield whereas under the current status of each, the Comirnaty product has no liability shield.

Second, Rob addresses the issue of exceptions for the military. In other words, are there certain exceptions under which unlicensed products can be mandated to the military (perhaps due to a grave security threat)? Rob explains that there are limited circumstances under which this could occur, but only the president has that authority (pages 54-5). In this case, this presidential authority to mandate unlicensed products was never sought or given.

Another officer who has brought attention to the unlawful nature of the mandate is Major David Beckerman, a pilot in the U.S. Air Force. He has given an hour long presentation in which he explains exactly why the mandate was unlawful. His explanation is thorough and nuanced but presented clearly and concisely. Anyone wanting to know the specifics of how the mandate was implemented and the timeline of events should consult this presentation. He addresses the issue of whether Comirnaty was ever produced at all or whether there were only “Comirnaty-labeled” products, whatever that means. Dave also explains explicitly that two products can only be used “interchangeably” if both are fully licensed (FDA-approved).

Let’s look at the case of Navy lieutenant Bill Moseley, captured in detail in Rob’s book. Rob explains how Moseley faced an administrative separation board, after having sought and been unlawfully denied a court-martial (page 108). The board’s members, three Naval officers, decided that Moseley’s refusal of the vaccine did not constitute misconduct and that therefore he should be retained by the Navy (page 109). Moseley’s attorney, R. Davis Younts (former military JAG who also had refused the covid vaccine) provided some details of the case, available here in this press release, from which we read the following:

Attorney Younts represented LT Moseley at the administrative hearing and successfully argued that the order for military members to receive the experimental COVID 19 injection was not a lawful order. In particular, Attorney Younts successfully demonstrated that the military has not made the FDA approved version of the vaccine available to military members.

Clearly, the members of this Navy administrative board weighed the arguments presented before them and made the only decision that they could. Refusing to obey an unlawful order can’t be misconduct. The order can’t be considered lawful if there is no approved vaccine available (since the ghost product Comirnaty is nowhere to be found). Unfortunately, the board’s decision, as Rob explains, can’t serve as legal precedent (page 109). He also describes how Younts and Moseley further exposed the legal house of cards by showing that courts-martial were being denied specifically to avoid the possibility that the mandate’s unlawful status might be proven in trial (page 109).

Those of us who have resisted this tyranny are not the ones who have gone rogue. We're the ones who refused to go along as DoD has gone rogue. We all understand that DoD and other federal agencies obfuscated their actions. We also understand that virtually all senior leaders were lockstep in pushing the mandate and insisting that it was lawful. This created a environment in which it was difficult to know the truth and therefore do the right thing.

But military leadership, particularly positions of command, aren’t for those who can only make good decisions or do the right thing when it’s easy to do so.

As I have said over and over, ignorance of DoD’s nefarious actions in the beginning might have been understandable. Now, nearly two years later, it can no longer be considered unintentional. At this point, continued ignorance is willful, presumably because of the fear of what one may find by looking into this. That willful ignorance is unacceptable.

Even I, who was skeptical of the covid narrative from Day 1 and assumed our government was lying all along, did not know about the Comirnaty/BioNTech “bait and switch” until after I had been relieved of command. I spent August 2021 preparing for a month-long, intensive training deployment that would take place in September, and then during all of September I was almost totally disconnected from the news cycle. Therefore even I, who had researched this heavily, missed the reporting about the fraud until a little while later. I knew the shots were unsafe. I knew there was something extremely sinister going on. I knew that the military was being destroyed from within. However, I did not know about the specific fraud surrounding the two Pfizer products until roughly December 2021 or January 2022. By the time I decided in March 2022 to resign from the Army I was well aware of the fraud upon which the mandate had been based and that weighed heavily in my decision that I could no longer be a part of the military that was so clearly engaged in willfully destructive policies.

If you are a military leader who has gone along with the unlawful mandate for the past 22+ months, you must understand that you have participated in unlawful activities that have destroyed the careers of untold numbers of service members. If you participated in the separation of specific troops, then you personally engaged in their unlawful removal from service. Help correct the problems you participated in causing. Engage with DoD leadership to repair the damages unlawfully perpetrated against our best, brightest, and most courageous service members. Demand that they be made whole to the fullest extent possible and even commended for their courage and commitment in the face of extreme adversity and the moral collapse of virtually all military leaders. Demand that those who have engaged in open and deliberate criminal activity be held accountable for their actions. Demand that those who willingly continue to promote unlawful policies be promptly removed from their posts. Be part of the solution moving forward so that we can repair the extreme moral injury that plagues our military.

Should you feel compelled to dismiss this information, you should at least consider this side of the issue. Do the following before you further dismiss our concerns on the legality of the vaccine mandate:

1. Read Rob’s book.

2. Read the two articles from the Defender that I cited above.

3. Read the press release from Atty. Davis Younts on the Moseley case.

4. Listen to Dave Beckerman’s presentation.

The two articles and the press release can all be read in less than a total of fifteen minutes easily. Dave’s presentation is an hour long. Rob’s book will take the longest but can easily be read over the course of a few days. If you care about the truth, none of these can be considered too much to ask.

In conclusion, let me draw a stark comparison. To do so, I’m relying on Rob’s description of a young man that I do not know. In fact, I was totally unaware of his story until I read it in Rob’s book. Yet, it’s one of the most awe-inspiring stories I’ve heard in this entire covid vaccine mandate saga. I’m not going to tell you the story here (read the book), but it was my favorite part of Rob’s book (and the entire book is incredible). This one story is worth the price of the entire book.

As I said, to drive my point home I’m going to draw a comparison between two military leaders. When I refer to leaders, I mean that in both the formal and informal sense. One commanded thousands over the course of his career. The other supervised no one. One is a man whose career is measured in years and decades. The other is a man whose career is measured in days and weeks. The first served nearly as many years in uniform as the second served days in uniform. The first retired with stars on his uniform. The second barely held any rank at all. The first achieved a strong reputation among the entire Marine Corps for his accomplishments. The second was seen as a problem among the Navy. The first, despite all his previous accomplishments, ended his career shamefully, knowingly putting Marines at risk through his cowardice.[1] The second stood up to the Navy, never bending the knee to their unlawful demands and never yielding to their tyranny.

In a military full of Generals Alford, be a Seaman Recruit Owen.

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Notes:

[1]. I personally have nothing against Major General Alford (USMC, Ret). In fact, if the opportunity ever availed itself, I would love to speak to him and would do so professionally and cordially but also firmly and resolutely. I’ve written about his case before here. I feel equal parts sympathy and disgust towards him. I acknowledge his many career accomplishments and truly hate that he has been injured by the covid injection. I would never wish that on anyone. However, I think he’s a poor excuse for a leader for kicking Marines out of the service for refusing the same shot that injured him. That means he kicked Marines out for not taking a shot that he knew could injure them as it had him. Since his retirement, he has permitted others to speak out publicly about his injury (an act for which I give him a small amount of credit), but he has not yet decided that the truth, the law, and the military are worth him speaking out in his own voice. For that, I think he’s a coward. Maybe he can take some lessons on courage and integrity from Seaman Recruit Owen.

On the one hand, I hate trashing someone with such a storied career but on the other hand, we can’t allow this type of cowardice to permeate our upper ranks. It must be condemned in the strongest terms if we’re ever to repair our military. At some level, a man of his rank and experience knows this.

Since I have no desire to denounce someone behind his back, feel free to send this to him. I stand by what I’ve said.