In 2000, then-Marine Corps Capt. Dale Saran defended three U.S. service members who refused direct orders to take anthrax vaccines. He is once again coming to the legal defense of troops — this time for those who refuse to take the newly mandated COVID-19 vaccine.
In an interview with American Military News, Saran said he sees many different limits to what the military can order of its troops, including with COVID-19 vaccines, and noted both medical and administrative exemptions to compulsory vaccinations should be honored.
Saran first served as an active-duty attack helicopter pilot in the Marine Corps and was selected to join the Marine Corps’ Judge Advocate General’s (JAG) Corps in 1996. By 2000, he was involved in representing three service members who faced court-martial for refusing the military’s orders to take vaccines for anthrax. Saran detailed his efforts to defend the service members against the mandatory anthrax vaccine requirement in his 2020 book, “United States v. Members of the Armed Services: The Truth Behind the Department of Defense’s Anthrax Vaccine Immunization Program.”
While all three service members lost their initial court-martial cases, a federal court issued a permanent injunction in 2004, stopping the military’s mandatory anthrax vaccination program. In his 2004 ruling, U.S. District Court Judge Emmett Sullivan said, “Congress has prohibited the administration of investigational drugs to service members without their consent. This Court will not permit the government to circumvent this requirement.”
Following the 2004 ruling, Saran has argued before Boards for Correction of Military Records (BCMR) of each military service, in an effort to correct the records of service members who were dishonorably discharged for refusing the anthrax vaccine.
Saran has continued to observe the similarities between the military’s anthrax vaccine mandate and its roll-out of the COVID-19 vaccines among service members.
Saran told American Military News that there is a popular argument made in favor of vaccine mandates for the military, that suggests once someone joins the military, they essentially become government property for their term of service and must follow orders like those to receive a vaccine shot.
“No one’s really litigated that issue,” Saran said. “. . .But we’ve come so far down the road that we just believe it, we just accept that.”
“It is not correct to say, as a matter of law, that you are suddenly property of the U.S. government once you join the military,” Saran said.
“For example, if the military said tomorrow ‘we’re going to sterilize everybody who comes into the military because we don’t want to have pregnancies, would anybody think that that was legitimate? I mean you could make a very good argument for it, you could make a very good case for the practical nature of it, but it would be completely illegal, immoral and just terrible,” Saran said. “So as soon as you go with that you could think of all kinds of limits on that power. Does it give you the right to experiment on troops? No.”
For months the U.S. military had been hinting at mandating the vaccines for all U.S. military personnel but hesitated to go through with the order without full licensure from the U.S. Food and Drug Administration. On August 9, amid speculation the FDA could approve one of the COVID-19 vaccines by September 15, Secretary of Defense Lloyd Austin said “I will seek the President’s approval to make the vaccines mandatory no later than mid-September, or immediately upon the U.S. Food and Drug Agency (FDA licensure), whichever comes first.”
FDA approval did come first, with the FDA announcing full approval to the Pfizer vaccine on August 23. A day later, the Pentagon announced it would go forward with mandatory vaccinations for “all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard.”
While the Pentagon announcement did not immediately provide a timeframe for the vaccination effort, the Department of the Navy is already moving forward with the mandatory vaccination effort. In a message to the U.S. Navy and U.S. Marine Corps, Navy Secretary Carlos Del Toro said active-duty sailors and Marines are required to get the COVID-19 vaccine within the next 90 days or face “punitive or administrative action or both.” Personnel in reserve components would have 120 days to comply with the requirement.
While President Joe Biden’s administration has suggested a COVID-19 vaccine with full FDA approval would provide sufficient legal basis to mandate all U.S. troops take the vaccine, Saran believes there are still legally valid reasons to refuse the vaccine even with FDA approval.
Even before the FDA granted its full approval to the Pfizer vaccine and the DoD moved forward with its mandatory vaccination efforts, Saran and two other attorneys filed a lawsuit in the U.S. District Court for Colorado, requesting a judge declare a medical exemption to the military’s vaccine mandate for service members who had already survived a prior infection and have a measure of natural immunity.
“Army Regulation 40-562 (“AR 40-562”) provides documented survivors of an infection, a presumptive medical exemption from vaccination because of the natural immunity acquired as a result of having survived the infection,” the legal complaint states.
The complaint further argues DoD policy instruction DoDI 6200.02 states “Federal law requires that the SECDEF requests to the President for a written authorization to waive a servicemember’s right to informed consent include the certification that such vaccination is required as to a particular member’s participation in a specified military operation.”
According to the complaint, when requesting authorization to waive servicemembers’ informed consent privileges, DoDI 6200.02 states the Secretary of Defense must show a “specified military operation presents a substantial risk that military personnel may be subject to a chemical, biological, nuclear, or other exposure likely to produce death or serious or life-threatening injury or illness.”
As of Wednesday, September 1, the Department of Defense has recorded 230,284 COVID-19 cases within the military, with 40 fatal cases, a fatality rate of less than .02 percent.
“There is near zero risk to healthy, fit, young men and women of the U.S. Armed Services,” Saran’s lawsuit says.
The complaint also notes DoDI 6200.02 requires that in order for a vaccine to be mandated, “There is no available satisfactory alternative therapeutic or preventive treatment in relation to the intended use of the investigational new drug.” The complaint raises such alternative therapeutics as monoclonal antibodies, which the FDA has granted an emergency use authorization for, and a more controversial medication known as ivermectin.
The complaint also argues the military’s COVID-19 vaccine mandates “are not being used in response to any specific military threat in a theater of operations, but rather are a naked attempt to leverage the Plaintiffs’ military status against them in order to move forward with an unnecessary public health mandate.”
Saran’s complaint requests that a judge treat service members with prior COVID-19 infections as a plaintiff class and “find that all members of the Plaintiffs’ class are still entitled to a medical exemption from vaccination” even after the DoD complies with what he argues are the necessary prerequisites for a vaccine mandate.
In addition to his own specific legal argument that troops who survived past COVID-19 infections should be exempt from a vaccine mandate, Saran said service members could also request a religious exemption to the vaccine mandate.
“If [service members] have a genuine religious concern about it, they should avail themselves of the religious exemption,” Saran said.