Public Health and National Security Law
Spring 2005
Professor Richards

This is a take home exam due on or before the last day of exams.  Turn your answer in to Susan Sarnataro in room 434.  Put your exam number on every page of the exam, and number the pages, and note the total number of pages on the front page.  The exam must be typed and use the word counter on your computer.  Print it single spaced, with a blank line between paragraphs.  Use headings as needed to make your answer clear and easy to follow.  As explained below, you have 3,000 words.  Do not talk to anyone about this, it is to be your own work. 

Background Scenario

It is Thursday, April 21, 2005.  Over the past 3 days, cases of smallpox have begun showing up all over the United States and in some foreign countries.  There are about 400 cases at this point.  All 400 cases passed through Reagan International Airport on the afternoon of April 10, 2005.  They were on many different airlines and some cases included terminal workers, so the assumption is that the smallpox was spread in the terminal.  There was a cluster of cases on one flight arriving from London, which investigators assume was the flight on which the terrorist arrived.  It was a slow morning and only 3,000 people passed through the airport during the estimated time of the attack. About half of the people boarded planes for other destinations in the US and abroad, but mostly in the US, and the rest left the airport for destinations in the Washington metro area.  Some were local residents and some were business persons who flew back out of Washington later in the week.  Many were foreign nationals and some of those may have been on forged papers.  Some of the foreign nationals stayed in the US and others left the country.  Homeland Security, in cooperation with the local police and public health departments across the US and in the foreign cities where departing passengers landed, is attempting to track down and quarantine every passenger.  The names are from the airline manifests.  They will be held until they develop smallpox or three weeks from the initial exposure passes, at which time there is little risk of the disease developing.  They have found about 85% of the persons, but many have not yet been located.  Some are travelers who went on by car without known destinations.  Some may also be persons on forged papers and fake names.  Some cases of smallpox have developed during the quarantine, and other cases were identified by health care providers during the initial phase before the quarantine was begun.

Each person will also be interviewed to determine their contacts.  Their families and everyone they have had contract will be identified and offered vaccination and will be quarantined.  US and foreign officials expect significant more cases in the next weeks among these contacts.  This is taken as a high level national security threat by both US and foreign officials.  At this point they are following the ring immunization and contact tracing model and have not instituted any general restrictions on travel.  These policies are under review and will be revised as conditions change.  There are significant efforts underway to vaccinate health care workers and other personnel who may be at risk.

Your Role

You are an expert in national security at the CIA, which, under the new national security czar, is working closely with the FBI criminal division.  The CIA believes this is the work of foreign terrorists, based on the high probability that the smallpox virus came from the stores originally in Russia and perhaps diverted through North Korea.  It believes that the terrorist is among the 3,000 passengers, perhaps traveling on forged documents.  It is concerned that the terrorists may have more smallpox virus and that the person or persons who spread it in the airport may already have spread it in a new location.  They assume that the terrorist has been vaccinated recently and is not at risk of infection himself, but of course do not know this.

The CIA wants to find these terrorists as fast as possible and wants to be able to prosecute them afterwards, if possible.  This means that as far as possible it wants the evidence they collected to be admissible in court.  You have been given a series of questions to research.  Your instructions are to develop as aggressive a strategy as is legal, but to fairly assess the legalities and authorities and precedents so that the Attorney General can make an independent assessment based on your memo.  You are looking at what can be done in the US, someone else will worry about what can be done outside the US.  Remember that you will be dealing with citizens, US persons, and foreign nationals.  While there is suspicion that one or more the 3,000 is a terrorist, there is no specific knowledge, and extra cases on the London flight might be because the virus was released in the part of the terminal where it disembarked.  It is critical to explain the potential criticisms of your recommendations so the AG will not be blind-sided by the press.  You have been asked a series of questions. 

Write a memo that addresses them in order, staying within a total word limit of 3,000 words.  Remember, the AG wants clear, well supported memos. You need to use cases and statutes, and you need to point to specific language that supports your position, not just a general cite.  You are limited to the materials in your book and everything on the class WWW site.  This is not an open ended research assignment.

1)         The CIA wants to use the public health detention and interview process to collect information to try to find the terrorist.  They want people picked up and immediately "decontaminated" so that their cell phones and other communication devices can be taken without arousing too much suspicion.  To keep them from contacting a lawyer or warning other conspirators, they will be told that they cannot contact anyone because it would slow down the investigation of the disease.  They will be taken directly from decontamination to interrogation.  After interrogation, the CIA wants them watched and all of their communications monitored while they are in quarantine.  What legal issues does this pose, what warrants will you need, and do you see any insurmountable problems in doing this and using the evidence?

2)         The CIA wants an agent, posing as a public health worker, to participate in every interview of every person.  The interviewees will not be told that the information can be used for law enforcement, and any such use will be denied if they ask specifically.  Some of these will be citizens and others will not.  Does it matter? What kind of warrants will you need and what problems do you anticipate in using the evidence in court?

3)         It is anticipated that the ACLU will bring habeas corpus petitions challenging the confinement as a sham that is not necessary for public health purposes.  They will allege that the dual purpose of the detention means that it has to satisfy the higher standard for criminal law detentions, not the standard for public health detentions.  What is your response and the ACLU's best arguments?  Remember that you need to explain the factual basis for the detention as well as the legal basis.