Richard Blumenthal and the Stolen Valor Act

On Monday, The New York Times published a shocking story on Richard Blumenthal, current Connecticut Attorney General, and frontrunner for the Democratic nomination for Chris Dodd’s Senate seat. On at least one occasion, Blumenthal suggested that he served in the Vietnam war.

“We have learned something important since the days that I served in Vietnam,” Mr. Blumenthal said to the group gathered in Norwalk in March 2008. “And you exemplify it. Whatever we think about the war, whatever we call it — Afghanistan or Iraq — we owe our military men and women unconditional support.”

In fact, Blumenthal obtained five deferments to avoid going to Vietnam, and as a member of the Marine Reserves never went abroad, instead conducting drills and performing community work in D.C. and New Haven. While the Times couldn’t find other examples of Mr. Blumenthal misrepresenting his service history, it did indict his campaign for failing to correct numerous mistakes in the press, with multiple news sources writing about his service in Vietnam. Politicians lying, even about their qualifications, is no new thing. But sometimes, lying can be illegal.

Unsurprisingly, some veterans are furious over this newest scandal involving military service exaggeration. Lies involving military service have become such an issue, particularly over Iraq and Afghanistan service, that Congress passed the Stolen Valor Act of 2005 (signed into law in 2006), which I first read a while ago as the subject of a constitutional/1st Amendment challenge in federal courts. According to this law:

Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.

The Day Newspaper of New London reported on one Vietnam vet, “standing in front of the state Capitol Tuesday morning, waving a U.S. Marine Corps flag on a white plastic pole, holding a white dry-erase board on which he had written the following slogan: Prosecute Blumenthal Stolen Valor Act” However, even Rob Simmons, a three-term Congressman from Connecticut and Vietnam vet who voted for the law, who has called for Blumenthal to apologize publicly to Vietnam vets, has said the law probably wouldn’t cover it. “Simmons, who voted for the act while a member of the House of Representatives in 2005, said he did not believe it would apply to Blumenthal’s remarks, since the law is narrowly tailored to affect those who falsely claim medals or other awards won in combat.”

From watching HBO’s The Pacific (which everyone should watch, great show), and researching some of the real-life characters this weekend, I found out that the military actually grants medals across the board for service in a particular war. Bob Leckie, for example, got the Asiatic-Pacific Campaign Medal, along with everyone else who served in the Pacific Theater during WWII.

There is a corresponding medal for Vietnam service, the Vietnam Service Medal, that was, at least according to Wikipedia,  “awarded to all members of the United States Armed Forces serving in Vietnam and contiguous waters or airspace thereover.”

Does saying “I served in Vietnam” represent that you received the medal automatically given to all those who served in Vietnam, and thus open the door for prosecution?

Technically, I think it does represent medal-winning, insofar as one intends to communicate the logical implications of a statement. If you say that you played on the 2009 World Series Championship Yankees, you are representing you have a World Series ring. If you say that you graduated from Harvard, it’s reasonable and expected for listeners to assume you have an actual degree from Harvard. Being awarded a World Series ring, a degree, and a service medal are all necessary conditions of their respective accomplishments. Since all the service medal demonstrates is physical presence, as a member of the military, in Vietnam, I think Blumenthal enjoyed the same functional benefit from saying he “served in Vietnam” as if he had worn the Vietnam Service Medal.

This probably isn’t enough for a prosecution, based on the legislative intent of narrow-tailoring and what seems like a simple misstatement by Blumenthal, who was otherwise careful to suggest that he only served during the Vietnam period. Still, if a state Attorney General and Senate candidate were ever prosecuted (under a Justice Department controlled by his own party, no less), or even threatened with prosecution, for misrepresenting military service, it would go a long way toward publicizing the problem of and punishment for stolen valor.

It’s interesting to imagine what could have happened if Blumenthal had been asked by an audience member at one of these rallies, “where do you keep your service medal?” or “were you harassed on the streets by protesters when they saw your Vietnam Service Medal on your uniform?” Depending on the answers, a political gaffe could have turned into a federal crime.

edit::

This story from the Huffington Post on Orrin Hatch’s amendment to the Stolen Valor Act that would ban false claims of military service pretty much confirms that from a legislative point of view, Congress did not think a false claim of service was covered by the original law.

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The Antibiotics Shortage and How to Solve It.

update (11/5/2010) :: The NYTimes published a good article about subsidizing antibiotic research: http://www.nytimes.com/2010/11/06/health/policy/06germ.html?ref=antibiotics

The U.S. Should Establish a No-Fault Antibiotic Injury Program.

Few inventions in the history of mankind have saved more lives than antibiotics. Antibiotics are compounds that can kill or inhibit (long enough for our immune systems to kill) microorganisms–bacteria, fungi, and protists. In 1928, Alexander Fleming discovered penicillin, a substance exuded from a humble fungus that would spawn the modern pharmaceutical industry and revolutionize our lives both in war and in peace. Manufactured in time for WWII, penicillin saved countless lives that, in previous wars, would have been lost to bacterial infection. Despite the ever-increasing deadliness of modern weapons, equally rapid innovations in medicine and pharmaceuticals, especially antibiotics, has steadily lowered the likelihood of death in war. In every American war since they started counting, more soldiers died due to disease (or accident) than on the battlefield. In the Civil War, 224,097 died of disease or accident compared to 140,414 battle deaths; in WWI, over half of the deaths were attributable to disease. WWII was the first war where more soldiers were killed by fellow man than by microorganism, with under 30% of deaths due to disease. In times of peace, antibiotics are used from the beginnings of our lives to the very end, everywhere from combating bacteria that kill women in childbirth, to fighting pneumonia that wracks our aged lungs. 

And yet these vital drugs that we daily take for granted, no longer fearing every minor scratch or major gash, are quickly running out.

The first problem is bacterial resistance. Over time, bacterial strains will naturally mutate and evolve, through natural selection, to become immune to once-effective antibiotics. This process is exacerbated when patients do not take their full course of antibiotics–feeling better, they decide to stop taking their medicine early, thus allowing the small amounts of bacteria still alive (the ones resistant to the medicine) to grow, restart the infection, and spread to other hosts. Sometimes antibiotics can be overprescribed (for example, in common cold cases), which gives bacteria exposure to the antiobiotic and starts the resistance clock. Bacteria can also get exposure through our use of antibiotics in agriculture–approximately 60% of antibiotic usage in the United States. Bacteria can exchange genes that confer resistance to antibiotics across strains, and even across species, through plasmid transfer. This enables bacterial strains to accumulate resistances, and leads to the development of multiple-drug resistant bacteria (MDRs). Bacteria could also increase their expression of resistance genes, for example, in increasing the amount of pumps that filter out the antibiotic. Microbiologist Kenneth Todar writes,

70 percent of the bacteria that cause infections in hospitals are resistant to at least one of the drugs most commonly used for treatment. Some organisms are resistant to all approved antibiotics and can only be treated with experimental and potentially toxic drugs. An alarming increase in resistance of bacteria that cause community acquired infections has also been documented, especially in the staphylococci and pneumococci (Streptococcus pneumoniae), which are prevalent causes of disease and mortality. In a recent study, 25% of bacterial pneumonia cases were shown to be resistant to penicillin, and an additional 25% of cases were resistant to more than one antibiotic.

A few famous examples of MDR bacteria include multiple-drug resistant tuberculosis (MDR TB), and Methicillin-resistant Staphylococcus aureus (MRSA). Drug-resistant TB requires treatment with more expensive and dangerous second-line TB drugs, and if the TB develops resistance to those second-line drugs as well, there are few good options for the third line. MDR TB is a serious public health problem in the developing world where the WHO is seeking to eradicate TB. Resistant staph infections are a pressing concern in the First World. In the United States, a Department of Health and Human Services study estimated 390,000 hospitalizations from MRSA cases in 2005, and researchers estimated 17,000-19,000 deaths were attributed to MRSA. It’s important to remember that despite antibiotics, infections remain the second-leading cause of death in the world, and this is a problem not limited to the Third World, but right in our backyards, in our local hospitals and community health clinics.

Despite the steadily decreasing supply of antibiotics, drug companies are not rushing out new antibiotics, nor do they have clinical trials already on track. For example, despite the resistance of gram-negative bacteria, a “study released about a year ago by the Infectious Diseases Society of America found no drugs in middle- or late-stage clinical trials directed specifically at Gram-negative organisms.”

Why are drug companies unexcited about inventing life-saving products? Antibiotics are less profitable than drugs like Lipitor and Viagra that are used to treat chronic conditions and that are chronically consumed; they are taken for short treatment courses, and doctors, cognizant of the resistance problem, are loathe to overprescribe them. Antibacterial resistance can render a drug obsolete, so drug companies must bear the risk of losing all profitability even before the life of the patent expires.

Due to the low profit margins of antibiotics, drug companies are particularly sensitive to profits that are lost from drug liability suits–the cost of hiring lawyers, and the risk of losing millions. These facts mirror, in fact, the conditions experienced by vaccine manufacturers in the 1980s. Vaccine manufacturers threatened to abandon the market because of the threat of lawsuits over vaccine-related injuries. Congress, fearing a vaccine shortage and public health crisis, passed the National Childhood Vaccine Injury Act of 1986, which shielded vaccine manufacturers from many tort claims, and established a Vaccine Court to adjudicate payment from a no-fault injury fund. Instead of suing a vaccine manufacturer and proving negligence, individuals would/must file a claim before the Vaccine Court (Court of Federal Claims) and merely demonstrate they were injured by the vaccine. If successful, they would be paid damages from the Vaccine Fund, which is funded from small surcharges on every vaccine purchase. This, apparently, assuaged the fears of vaccine manufacturers, and our nation’s (and the world’s) vaccine crisis passed. A similar system should be created for antibiotics, and perhaps it, alone, will be sufficient as well to encourage antibiotics research.

This system benefits not just drug companies, but plaintiffs as well. Under the vaccine injury program, for example, the legal fees for bringing a claim forward are reimbursed by the Vaccine Fund, not out of the plaintiff’s pocket, or out of the plaintiff’s damages check. Additionally, victims have a difficult time winning tort claims against large multinational corporations and their legions of lawyers. Companies have a huge incentive to resist and drag out even valid injury claims, for fear that one winning suit will become the seed for hundreds of others. As with medical malpractice suits, even if the odd plaintiff wins, the vast majority will lose and end up with nothing. With medical malpractice, the doctors “lose” as well because they have to spend so much money on lawyers/insurance. Analogously, drug companies lose when they are forced to spend money on lawyers despite the low profit margins of antibiotics. With an injury fund, the majority of legitimately injured claimants can receive compensation and funds for future medical care, and drug companies can keep their profits.

While shielding drug companies from liability goes against the sentiment in last year’s Wyeth v. Levine ruling, this plan is also beneficial from a regulatory point of view. If antibiotic suits are preempted, the safety judgments on antibiotics will be performed by FDA instead of state juries. Where juries see only the terrible, individual harms in front of them and may be careless in punishing drug companies (and disincentivizing their activities), FDA is in a better position to perform a holistic cost-benefit analysis of drug safety vs. drug accessibility. They see all those who would suffer if deprived of a drug, even a drug that carries dangerous risks. This concern is true of all drugs, but I think particularly true in cases of vaccines and antibiotics, where the public health concerns are tremendous.

Under this plan, the vast majority of legitimate injury victims will receive fair compensation, going through a claims court, without needing to attempt a long and painful tort process. This plan saves millions of lives, as antibiotic manufacturers, hopefully like vaccine manufacturers did in the 80s, will find a no-fault liability system sufficient to re-stimulate their investment in antibiotic research. Government subsidy of pharmaceutical research in antibiotics, and increased government grants for university development of antibiotics could also go a long way toward restoring the healthy profitability and incentive for antibiotic research, and this tort scheme would only serve to supplement any additional incentives the government could enact. These life-saving drugs could perhaps become even cheaper as drug companies no longer need to create legal war chests in case of tort suits, or no longer need to front the whole sum of R&D costs, increasing the availability of these drugs in the Third World, and saving millions more lives abroad.

In these times of corporate repugnance, it seems distasteful to erect yet another shield for large businesses to protect themselves from judgment at the hands of the people, before twelve angry men. Yet the alternative, a shortage of novel antibiotics to combat newly-mutated bacterial strains, is far more perilous to the public health.