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Who Will Deliver Justice to Our Service Members?

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While Pfizer and Moderna were testing rats in their labs, our government had their own guinea pigs lining up for the largest biomedical experiment the world has ever seen, except these were not test animals. These were our United States service members–our men and women in uniform. 

And the test was not for general health, military readiness, or preparedness; rather, it was a social and pharmaceutical experiment that has severely hampered the readiness of our military and weakened trust in the once-formidable institution.

Our national military was built on the foundation of “civilian control,” which our Founders divided amongst both the executive and legislative branches under the Constitution to avoid tyrannical usurpation of power through armed forces. Although the President serves as Commander-in-Chief, Congress bears numerous powers over the military to ensure service members are subject to the Constitution and the People above any command. Despite this vision, their concerns have come to fruition: military leadership compromised our service members and our country under the direction of President Biden and his administration by defying laws enacted by Congress.

Although President Biden did not order all service members to be vaccinated against Covid-19, he instructed Secretary of Defense Lloyd Austin to “look into how and when” the Department of Defense would add the Covid vaccines to the required inoculation schedule. Within a month of the President’s directive, Secretary Austin ordered all active duty, reserve, and National Guard members be “fully vaccinated” against Covid-19. The order required troops be vaccinated with an “FDA-approved” product and only specified involvement in vaccine clinical trials during the duration of that trial as an exemption.

On its face, the order appears lawful. Yet the order precipitated an unlawful and inhumane course of conduct violating both the US Constitution and federal law. Military leadership created a coercive campaign from the top down intended to force service members into compliance with the directive, effectively disavowing their sworn duty to the Constitution and People of the United States. 

Members experienced a coordinated and systematic attack on their legal and constitutional rights: those afforded by Congress under the PREP Act and Religious Freedom Restoration Act, protections created by the Belmont Report, and failure to follow the DoD’s own medical policies. Those who refused to relent suffered many adverse social and employment actions from leadership.

PREP Act

Former Green Beret Captain John Frankman described initial concerns within the ranks about the vaccines, safety data, and leadership’s subversion to get members vaccinated. By the time the mandate came down, a large portion of soldiers were already vaccinated. His Special Forces team, however, was mostly unvaccinated with only two of twelve getting the shots. He and his team monitored the VAERS safety reports coming in and noted a post-vaccination death trend in the thousands, raising serious concerns for the group about vaccination.

At the time of the mandate, the only FDA-approved vaccine was Comirnaty. Yet, that Pfizer product never actually made it to production. Instead, pharmaceutical companies were only producing vaccines that were emergency-use-authorized only by the FDA as part of the DoD’s “prototype project.” Dr. Terry Adirim, while Acting Assistant Secretary of Defense for Health Affairs, issued an order to service members on September 14, 2021 instructing that DoD health providers will use BioNTech and Comirnaty interchangeably despite BioNTech not being licensed.

Dr. Adirim’s order mandating service members take an unlicensed medical product in lieu of the licensed product was unlawful because it ran contrary to Secretary Austin’s order and President Biden had not waived informed consent requirements for the unlicensed drug. Military members are under no obligation to obey unlawful orders. When CPT Frankman confronted medical personnel about the legal discrepancy between Comirnaty and the EUA-only products, they advised “it was fine” because the products were “medically the same.” His BN doctor brought the concern to the Judge Advocate General, who also failed to see the importance of the distinction according to the doctor.

Of note, even the FDA acknowledged that Comirnaty and EUA BioNTech are legally different in spite of medical similarities. The legal distinction created a huge conundrum for law-abiding and safety-minded service members because the EUA indemnifies manufacturers from product liability. If a soldier suffered an injury or death from the non-licensed injections, they would then be unable to recover damages from a civil lawsuit or would face an uphill battle to try and get compensation from the Vaccine Injury Compensation Fund.

Atrociously, command staff realized early on that Dr. Adirim’s order was not lawful and willfully failed to correct it. During litigation against the DoD, former Air Force Master Sergeant Nickolas Kupper, who is currently running for Arizona House Legislative District 25, uncovered a draft amended order correcting Dr. Adirim’s order to inform service members that they would be able to refuse the EUA products. Internal review documents show that the amended order was never issued after senior USAF members decided it would open the DoD up to liability for adverse employment actions already issued and the correction “subvert[ed]” the vaccine mandate policies.

So, the adverse actions instead continued across the branches. When confronted by command about his and his team’s vaccination status, CPT Frankman and his team were threatened with undesirable assignments for his team and negative career ramifications for himself. The threats came about as promised when his team was removed from deployment. Those who remained unvaccinated following the mandate were unable to deploy, travel, or even move to different bases to progress their careers. Even after CPT Frankman submitted his religious exemption, he remained in a policy-induced, punitive career stall awaiting a decision on the exemption until his ultimate resignation.

RFRA and First Amendment Violations

The First Amendment of the Constitution protects our free exercise of religion. In recognition that some secularly-purposed laws may interfere with a person’s religious exercise, Congress passed the Religious Freedom Restoration Act to ensure that no government action substantially interferes with free exercise of religion unless it is a compelling government interest with no less-restrictive means of enforcement. 

Military leaders decided that Covid vaccination was such a compelling government interest that most religious exemptions were outright denied. One USAF medic with 13 years of experience was honorably discharged following his religious exemption denial and subsequent withdrawal from service. The circumstances of his denial illustratively depict the oxymoronic, arbitrary, and capricious nature of the DoD vaccine mandate in practice.

In 2020, the medic had been on the front lines treating Covid patients, meaning he had been actively assigned duties while unvaccinated and exposed to Covid many times over before the vaccine was mandated. He detailed his experience in 2021 caring for inoculated patients who died of Covid despite being vaccinated, “I personally cleaned their bodies at the bedside, placed them on the gurney, and covered them with our American Flag.”

For six months following the mandate, this medic remained actively treating Covid and other patients on duty despite being unvaccinated while he appealed the religious exemption denial. During his tenure, he was required to be masked, he provided face-to-face care with patients without social distancing, and was mandated to take weekly Covid tests. This led him to question (as it should lead anyone to question): if he was truly such a danger while unvaccinated, if the government interest was truly so compelling, and if there truly were no less restrictive means than vaccination, then why did the military allow him to remain caring for patients and actively completing the mission

Truthfully, the unvaccinated medic remained healthy and “deployment ready” (considering he was fulfilling his duties) throughout the pandemic contrary to what President Biden and his administration claimed would be the “winter of severe illness and death” for the unvaccinated. Regardless of his years of service, good health, and steadfast commitment to God and country, command denied his appeal under the pretext of “preventing the spread of disease” when Biden’s administration knew since early 2021 that the vaccine would not prevent transmission.

The DoD Office of Inspector General had received numerous complaints of religious exemptions being generally denied by their superiors without an assessment of relevant individual facts and circumstances. Acting Inspector General for the DoD Sean W. O’Donnell advised Secretary Austin that the DoD must review each request for religious exemption individually. O’Donnell then directed Secretary Austin to review the DoD Instruction 1300.17, “Religious Liberty in the Military Services,” which provides that sincerely held religious beliefs may not result in adverse employment actions.

Once denied, service members had to either take the Covid shots or leave. However, many members sat in limbo awaiting decisions on their religious exemption requests that never came. CPT Frankman is one such example, missing out on career development and advancement opportunities while awaiting the exemption decision. MSgt. Kupper identified many USAF pilots who submitted religious exemptions and, similarly to CPT Frankman, were unable to advance their careers or perform duties to the fullest extent since they also did not receive any decision on their applications. At least these members stood by their conscience and informed decisions and did not submit to the injections.

Belmont Report Violations

Although the Nuremberg Code is not codified into US law, the premise of informed consent under medical research and experimentation is through the National Research Act of 1974 and the subsequent HHS Rule known as the Belmont Report. The report outlines that informed consent is required for participation and gives information on what will be considered sufficient information for consent such as: giving notice about risks, benefits, alternatives, etc. “Information about risks should never be withheld for the purpose of eliciting cooperation.”

Lieutenant Mark C. Bashaw served during the pandemic as an officer making public health recommendations to DoD. As Secretary Austin’s vaccine mandate came out, Lt. Bashaw quickly alerted command staff to safety signals he observed, but he was ignored. He was then court-martialed for his own refusal to vaccinate or participate in all EUA protocols such as masking and PCR testing.

Lt. Bashaw declared in his whistleblower statement that troops were not advised the products they received were EUA-only and not FDA-licensed. Meaning, troops were not informed that there was no product liability action available to them nor were they advised of their right to refuse the EUA products. Soldiers who happened to be informed of the risks and exercised their rights of refusal, like Lt. Bashaw, were retaliated against by command.

MSgt. Kupper recalled that neither he nor his subordinates were advised of the safety risks, such as myocarditis, or possible alternative treatments as required under the Belmont Report. This experience is not unique to the USAF or military members themselves, but also other branches and their families.

Whistleblower Navy Lieutenant Ted Macie recalled their vaccine “rodeos” where Navy members would be corralled into gymnasiums and lined up along an assembly line for vaccination. Although service members had to sign a consent form, they were not advised the product being injected into their bodies was legally different from the mandated FDA-approved vaccine, that there were known health risks, that they had the right to refuse the EUA product, and that there were alternative treatments. Members were only told the injection was to prevent infection.

Lt. Macie’s wife, Mara, who is currently running for US Congress to represent Florida’s 5th Congressional district, recounted that she was not advised of her right to refuse EUA products when she needed surgery on base. The providers required she take a Covid test prior to receiving the surgery. She was already aware that no Covid test had been FDA-approved and confronted providers about her legal right to refuse. She received the response, “Refuse the test; then, you will not get the surgery.” “Coercion is not consent,” Mara aptly retorts during this interview.

Although Lt. Macie remains on active duty and unvaccinated as a result of an injunction granted by Judge Reed O’Connor, he is now facing retaliation from command and the DoD for blowing the whistle on the unlawful and unethical conduct of military decision-makers. However, both he and his wife have become a beacon for those medically separated following Covid vaccine injuries–many have reached out to share their histories. The themes of others’ experiences are common: injured members were not informed of the health risks before injection, they developed severe and life-threatening disorders such as heart attacks and pulmonary embolisms, and they have been abandoned by the very “leaders” who mandated they take the prototype injection.

Following vaccine injury, these members had to go before a medical evaluation board to investigate their symptoms and any underlying cause. The Macies discovered that these boards and the members’ military primary care managers would go out of their way to diagnose the cause of the injury as anything but the vaccine. Remember, our service members must go through medical examinations before admission into the military. In some cases, such as for pilots and divers, members must go through continuing medical exams to ensure they remain medically fit for duty. 

These injured members were all previously healthy with no underlying disorders, but the military determined their injuries were not caused by the mandated vaccine and therefore, their injuries were not “service-related.” Upon medical separation, these members have been facing significant challenges receiving the treatment and care they need since they did not receive the benefits to which a “service-related injury” would have entitled them. 

DoD Vaccination Policy Violations

Beyond violating constitutional and federal law, military command failed to even abide by their own policies regarding vaccination. These policies include exemptions for documented preexisting immunity, religion, and medical contraindications.

DoD medical personnel are required to evaluate for preexisting immunity. Where immunity already exists, vaccinations are not required. Despite this medical policy, commanders stopped accepting natural immunity in lieu of vaccination. CPT Frankman had documented natural immunity to Covid, but was still denied career opportunities such as mission deployment and an instructor position at West Point because of his vaccination status. Even when located at a training base, he and his team were ordered to wear red wristbands and gear tape so others would know that they were unvaccinated. A neighboring team jokingly made them golden stars, recognizing the literal scarlet “letters” were akin to Jewish branding in Nazi Germany.

DoD medical personnel are also instructed that medical contraindications are a basis for vaccine exemption. Yet, MSgt. Kupper observed USAF health providers would not recognize contraindications unless it came directly from the first shot. Even if a member had a prior documented contraindication in his or her medical records, he or she still had to receive the first dose. Medical contraindications were only grounds for exception if they appeared as a result of that first shot; then, the member would not be required to take the second dose. The requirement callously and recklessly placed these members in harm’s way.

Preceding and throughout the course of these unlawful actions, military command took further steps to shame, humiliate, and degrade members who remained unvaccinated. Beyond the literal branding of CPT Frankman’s team, the men and others unvaccinated in the Army were further segregated from their colleagues by forced masking where vaccinated were not required to mask, mandated testing, longer quarantine periods following Covid exposures, and requiring unvaccinated new recruits to stay on base and train while vaccinated recruits were permitted to go on leave.

MSgt. Kupper recollected group-shaming where unvaccinated airmen would be paraded in front of vaccinated airmen for “re-education.” His superior would also send out emails disclosing which members were unvaccinated to other service members in violation of privacy laws to socially ostracize the non-compliant. When MSgt. Kupper spoke out publicly against the military vaccine mandate and its application, he was formally reprimanded.

Accountability

Congress finally ended the mandate via legislation in 2022, but by then, the damage was already done. Thousands of service members departed from the military, both voluntarily and involuntarily, as a result of this inexcusable mandate. Some involuntarily terminated were less-than-honorably discharged, costing them pensions and benefits they are otherwise entitled to for their years of service. Some voluntarily resigned and kept their benefits. Others were forced to medically separate following debilitating injuries from the pharmaceutical products that rendered them unfit for duty.

Combine those departures with a significant reduction in recruitment, and our military is struggling with a staffing crisis. CPT Frankman, MSgt. Kupper, and other service members pleaded with Congress to include amendments to the NDAA to incentivize the return of members who left due to the mandate, but such amendments did not make it into the final resolution. Most of the senior leaders who led the unlawful vaccination campaign are still on staff within DoD. To date, there has been no meaningful accountability for the harm done to our troops.

Now, 231 current and former military members are taking personal and professional risks to speak out against the military’s actions surrounding the Covid pandemic. Titled “Declaration of Military Accountability,” the authors penned an open letter to the American People promising to uphold the Constitution and seek court martial of those responsible for these injustices and injuries. These servicemen are not alone in the desire to hold government actors accountable for violations of the Constitution and laws of the United States.

To date, over 22,000 have signed the public petition concurring in the quest for military accountability. Rep. Andy Biggs (R-AZ) moved the Declaration into the record at the House Oversight Committee’s January 11, 2024 hearing on Risks of Progressive Ideologies in the US Military as detracting from the lethality of our armed forces. Dr. Ryan Cole mentioned during his testimony before Rep. Marjorie Taylor Greene’s (R-GA) Covid Vaccine Injury hearing the accountability called for within the Declaration as “reasonable action” for tampering with the readiness of troops and forcing them to take the investigational products. 

It’s clear that for accountability to occur and faith in this once-honorable institution to be renewed, harmed members must first be restored. Restorative justice in this instance can take many forms. For one, members who were less-than-honorably discharged as a result of non-compliance with the unlawful mandate should receive an automatic adjustment to a favorable discharge status that will allow them to receive benefits lost by the negative separation, like use of the GI Bill and pensions. 

Next, members who wish to return to service should be rehired at their departing rank and salary. Those returning members should also be able to recover back pay for unemployment or the length of their involuntary separation. Finally, members injured by the EUA injections that they were mandated to take should receive full military benefits, including recognition their injuries are “service-related” and Vaccine Injury Compensation.

Once our harmed service members have been restored, retributive justice is necessary to ensure command staff who acted unlawfully are held accountable and similar future unlawful conduct is deterred. As outlined by the Declaration, court martial proceedings are appropriate to reach such an end. The fact-finding mission of a military tribunal will bring to light not only the unlawful orders, but the true socially coercive tactics used to pressure members into compliance. Upon conviction, penalties available to the tribunal will provide a personal atonement for the harm each commander caused to our service members.

We the People must demand further accountability of our elected legislature. Thus far, the elected body has not stood by our service members or protected the rights of the People. We must challenge our representatives to enact prophylactic laws against such mandates that inhibit personal freedoms and use the purse to ensure those laws are enforced. If these representatives fail to do so, then we must replace them. Our Congress must act to protect our country and its citizens from harm that comes from within as much as from without. Freedom and accountability must return here for the US to become healthy again and for our military to be ready to defend us once more.



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Author

  • Gwendolyn Kull

    Gwendolyn Kull is an attorney who coauthored the prosecutorial ethics guide for the Pennsylvania District Attorney’s Association and developed a youth anti-gun violence engagement program within her jurisdiction of practice. She is a mother of two boys, dedicated public servant, and is now zealously advocating to defend the United States Constitution against bureaucratic tyranny. A graduate of University of Pennsylvania Law School, Gwendolyn has focused her career primarily on criminal law, representing the interests of victims and communities while ensuring proceedings are fair and defendants’ rights are protected.

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