Imagine that you are a US citizen living or traveling overseas, and find yourself in a place of possible danger. The US government, as part of its “services” to US citizens abroad, offers to charter a plane to evacuate US citizens and repatriate them to the US, and you agree to pay a pro-rated share of the cost of the flight back to a US gateway airport, from which you are told you will be free to proceed to your home or to wherever else you choose to go.

But the flight, which was scheduled to take you to San Francisco International Airport, is diverted first to Ontario [CA] Airport and then to an Air Force Reserve Base in the Mojave Desert, where passengers are confined in a  cordoned-off section of the base. When one of you tries to leave, they are detained by the authorities.

This is what has happened to 195 US citizens “evacuated” from Wuhan, China.

Have they been “rescued” by their government? Or have they been kidnapped?

Questions are already being raised about this and other incidents of individual and mass “quarantines”.  Some have questioned the medical argument for quarantine orders, while others have suggested that the current panic reflects ethnic and national bigotry.

Our particular concern is — as it has been for many years, and as it has been for other legal experts who have criticized the Federal quarantine regulations — with the legal basis and procedures for restricting the right to freedom of movement, extrajudicially, on ostensibly medical grounds, rather than  relying on existing legal mechanisms for the issuance by judges of temporary restraining orders or injunctions restricting individuals’ movements.

Unfortunately, US authorities, especially the Centers for Disease Control and Prevention (CDC), have tried to avoid acknowledging the scope of the authority they claim, or giving either the public or specifically affected individuals clear notice of their rights. Instead, as in other recent incidents of quarantine orders, they have tried to avoid any judicial review of their actions by persuading individuals to waive their rights, just as police avoid judicial review of other types of detentions, searches, and interrogations by intimidating members of the public into giving “consent”.

KTLA television reports that “None of the passengers showed signs of the illness after being evacuated from the epicenter of the deadly coronavirus outbreak. However, they agreed to stay voluntarily, according to Dr. Chris Braden of the U.S. Centers for Disease Control and Prevention.”

The CDC claim that passengers “agreed to stay voluntarily” seems to be contradicted by other facts reported in the same news story:

One of the Americans evacuated from Wuhan, China… has been placed under quarantine after trying to leave March Air Reserve Base, where a chartered flight landed the previous day, Riverside County health officials said Thursday. As a result, the traveler will be required to “stay for the entire incubation period or until otherwise cleared,” according to a statement from the agency. The incubation period is two weeks.

According to the Associated Press:

After the plane chartered by the U.S. government arrived at the base Wednesday with the evacuees from the Chinese city of Wuhan, federal officials dodged questions from reporters on whether people would be allowed to leave before a three-day testing and monitoring period was up.

And the Washington Examiner reported that:

When pressed, Rear Adm. Dr. Nancy Knight, the director of the CDC’s Division of Global Health Protection, confirmed the passengers could leave at their own will, as they are not being quarantined.

“They can leave, however, they are sitting in the middle of a military base,” Knight said. “Any discussion around departure would be just that.”

The actual scope of the powers claimed by the CDC is spelled out in regulations that were issued in January 2017, which we described at the time they were proposed as giving CDC employees “sweeping martial-law powers of warrantless search, interrogation, tracking of movements, arrest, and extrajudicial mass detention (at the detainees’ own expense!) of individuals or entire groups of unlimited numbers of people for unlimited periods of time.”

According to the formal comments we submitted to the CDC:

The CDC’s proposal completely ignores existing medical and legal procedures for involuntary commitment of individuals determined to constitute a danger to themselves or others….

The proposed rules would allow any designated CDC “official” to issue, “A Federal order authorizing quarantine, isolation, or conditional release” of an “individual or group”. Violation of such an order would be subject to criminal penalties.

The proposed rules would place no limits on:

• the size of the group subject to such an order;
• the duration of such “quarantine or isolation” (detention) or “conditional release” (restrictions on movement, assembly, and/or other liberties); or
• which CDC officials could be designated as authorized to issue such orders, or the medical, legal, or adjudicatory qualifications of such officials.

The only review of such an order provided by the proposed rules would be a “medical review” by a single “physician, nurse practitioner, or similar medical professional”. This review would be limited to “ascertaining whether the CDC has a reasonable belief that the individual is infected with a quarantinable communicable disease in a qualifying stage,” and would exclude any consideration of legal or other objections to the order. An unlimited number of such reviews could be consolidated in a single proceeding before a single reviewer. An indigent detainee could be “represented” before the reviewer by a “medical representative”, but that “representative” would be appointed by the CDC, and would be a “physician, nurse practitioner, or similar medical professional”, not an attorney.

There are no provisions in the proposed rules for access of detainees to legal counsel, representation of detainees by retained or appointed counsel, confrontation or cross-examination of witnesses, compulsory process for obtaining evidence or testimony, independence of the reviewer from the initial decision-maker, judicial review, or any other aspect of due process.

So the lowliest single CDC employee, subject only to review on an exclusively medical basis by a single reviewer employed by the same agency and with qualifications “similar” to those of a nurse practitioner, could order the extrajudicial arrest and detention for an unlimited duration of a “group” defined in any manner and including an unlimited number of individuals.

The CDC brushed off our objections and more than 15,000 other comments from members of the public including public health organizations and unions representing airline flight attendants. The proposed rules were finalized with only minimal changes. The final rule was modified slightly, in response to our objections, to allow a detainee to be represented by a lawyer at the kangaroo-court CDC “medical review”, but the final rules promulgated in 2017 and in force today still make no provision for consideration of legal objections in the “medical review”, or for judicial review of CDC “quarantine” orders. Legal questions remain as to whether the regulations exceed the CDC’s statutory and Constitutional authority.

This is in notable contrast to quarantine orders issued by state and local authorities under California law, or the laws of other states, which are subject to explicit procedures for judicial review. The CDC regulations also entirely ignore and bypass existing legal procedures for involuntary commitment and/or involuntary treatment of persons determined to pose a danger to themselves or others, which are also subject to judicial review.

The CDC rules also require airlines to provide passenger information to the CDC on demand, and allow the CDC to enter lists of individual names, categories, and/or algorithmic criteria into the “no-fly” rule set used by the TSA and CBP  to decide on issuance of Boarding Pass Printing Results sent to airlines to determine who is, and who is not, allowed to fly.

It appears that the CDC is eager to avoid judicial review of these rules, and has avoided issuing Federal quarantine orders in favor of getting local officials to order the detention of individuals who don’t “voluntarily” agree to Federal “requests”.

Whatever the legitimacy of current concerns about coronavirus, the potential for abuse of such sweeping, extrajudicial CDC powers appears great. Please let us know if you hear of any legal challenges to Federal “quarantine” restrictions or “no board” orders.