Kirby on HuffPo: The Other Secret Bush Court?

The Other Secret Bush Court?
David Kirby
The Huffington Post

Next year, a "Special Master" in an obscure Federal court known only to a few Americans will preside over a highly sensitive judicial matter of urgent national importance. The Bush Administration wants to hold the hearings in a sealed courtroom, off limits to the press and public, with stiff "sanctions" for any outsider who attempts to gain unauthorized access to the secretive proceedings within.

Terror trials in faraway Gitmo? Good guess. But these are vaccine trials on New York Avenue, in downtown Washington, at the U.S. Court of Federal Claims.

You may not know it, but there is an official federal "vaccine court," where some 4,750 autism-related cases have been pending for years. Claimants believe the mercury-based vaccine preservative, thimerosal, and/or the MMR vaccine, contributed to their children's autism, and they are seeking compensation from a special vaccine injury fund administered by the federal government.

The long-awaited autism vaccine trial will commence on June 11 in the courtroom of Special Master George Hastings. The plaintiffs and their attorneys have asked for complete transparency in every aspect of the tribunal, including public disclosure of all evidence and unhindered media access to the hearings. The few autism families whose medical records will be scrutinized as legal examples are waiving their right to privacy and confidentiality, so that their stories may finally be told in an open court of law.

But the DOJ (technically, the "defense") has other plans. On November 3rd, the Department wrote to Hastings saying it "would oppose public access to the courtroom and public broadcast of the trial," because such an arrangement. "would pose security and privacy concerns" for those in attendance.

Exactly whose privacy are they trying to protect? It can't be the parents, because they don't want privacy. The only party fretting about privacy is the DOJ itself, and presumably, the vaccine makers. (As for "security" concerns, isn't that why we have court officers?).

The government may call this privacy, but I call it secrecy. In fact, there has been a long and unseemly history of secrecy when it comes to federal data on thimerosal and autism.

And let's face it: People don't hide something unless they have something to hide.

Back in 2002, Health and Human Services lawyers quietly slipped into vaccine court to file a protection order to permanently seal all thimerosal-related documents. They proposed sanctions for any lawyer who shared the secret government information with autism families, the public or the press. All thimerosal data would be banned from use in future civil cases, and any materials already given to plaintiffs would be rounded up by federal agents and destroyed. The motion was withdrawn after appropriate public outcry.

Many of those federal documents pertained to an off-limits database called the Vaccine Safety Datalink (VSD), which tracks the medical records of hundreds of thousands of American children. Lawyers for the families have tried to gain access to the VSD for years, including a 2004 "Motion to Compel" that went nowhere.

In 2005, the Institute of Medicine issued a report slamming the Centers for Disease Control and Prevention, which manages the VSD, for a "lack of transparency" in handling the data. Even more alarming, CDC officials testified that the original datasets they examined had "not been archived in a standard fashion," meaning they were either lost, or destroyed. Take your pick.

If the disappearance of these datasets was intentional, that would be a clear violation of the federal Data Quality Act. No wonder the IOM urged vaccine officials to "seek legal advice" on the status of the missing records.

But those missing datasets could well have been a bonanza to attorneys for the autism parents. Now they are gone.

And, without access to any of the raw data to which government lawyers are privy, the families' cases are woefully, and unconstitutionally, disadvantaged. In what other American court of law are defendants allowed access to evidence that is kept secret from plaintiffs?

Meanwhile, family lawyers have received 216,000 pages of discovery materials, sourced from federal agencies and private companies alike. They might well paint an incriminating portrait of thimerosal's role in autism, and that may be why individuals face a $250,000 penalty for any paper that is leaked.

But some documents have already been leaked, including one published in the Los Angeles Times showing that Merck officials knew of the cumulative and alarmingly high levels of mercury in vaccines way back in 1991, but said nothing about it to anyone.

Are there other incriminating memos from Merck (or Lilly or Glaxo, etc.)? My sources indicate that there are, but we may never get to see them. And now, by barring public access to the trial, we may never get to hear them, either.

If the DOJ has its way, only claimants and their attorneys will be allowed to sit in the courtroom, or receive password-enabled access to a live audio webcast of the trial. The media will be barred, and so will everyone else. And though there will be an official written transcript, such documents are sometimes redacted, or even sealed, after the trial.

As a journalist, I will be subject to "sanctions" if I sit in on a webcast without authorization from the court. In fact, unauthorized access to the proceedings, according to the DOJ proposal, might lead to "termination of the webcast and closing of the courtroom."

What remains unclear is whether journalists will be prosecuted for interviewing families who have access to the webcast, or who attend the trial in person. But if I get arrested for hanging around outside the court with my pen and notepad, don't blame me for trying.

Curiously, a final reason cited for barring reporters and others from vaccine court is that "opening the courtroom to the general public would make it more difficult for claimants themselves to attend." I know plenty of parents who would gladly give up their seat for, say, Wolf Blitzer or Brian Williams, but the DOJ apparently hasn't asked them.

I think it's safe to say that the Bush Administration does not want this trial publicized. That seems curious to me. The entire thimerosal question will likely be left up to just one man: Special Master Hastings. Whether he decides for the parents, or for the DOJ, his ruling will forever be considered within a vacuum, subject to intense criticism from either side, unless he agrees that all thimerosal evidence should at long last be made public.

I hope he rules that his courtroom is not Guantanamo. These parents, and the public at large, deserve no less.

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PS: My last post predicted that most autism parents would be voting Democratic this November, without giving proper credit to two members of the House GOP. Dan Burton (R-IN) and Dave Weldon (R-FL) are among the most open minded members when it comes to the mercury-autism hypothesis, and I apologize for the omission.

Meanwhile, Rep. Henry Waxman (D-CA) has been hostile, at best, to the theory. I congratulate Rep. Waxman on his ascendancy to the House Government Reform Committee Chairmanship, and respectfully ask him to read "Evidence of Harm," and, if possible and when he has time, to offer a response on the Huffington Post.