Nonconsensual Human Subject
Research Legal?
An Attorney's Analysis

Below is a letter from an attorney, which details the laws and regulations for nonconsensual human subjects research.  This letter is insightful; however there is one problem with the attorney's opinion:  Executive Orders do NOT have force of law. It's this type of statement, intentional or not, which is slipped in to the body of an otherwise factual article or report which ever so subtly serves to imprint the impression into the mind of the reader.

"First, executive orders become effective on the date they are signed unless there is an effective date set within the body of the E.O. Second, executive orders do NOT become law."

--  Mr. Brian Merchant, NSC

"There is no criminal or legal penalty for failure to obey an executive order."

-- Mr. Bill Leary, NSC

Jon F. Hummel
Attorney at Law
530 S. Capitol Ave.
Lansing, MI 48933
Phone: (517) 484-1419
Fax: (517) 372-8003

July 8, 1999

Thomas Clark
Deleted for Internet
Deleted for Internet

RE: Protection of Human Subjects Law and Regulations Dear Mr. Clark:

I have examined the background information and documents you sent me, and have completed the legal research and analysis needed to attempt to answer your questions.

"Informed consent" is a well established legal rule developed traditionally in common law and more recently embodied in statute. It applies most commonly to procedures used by medical personnel, and requires a patient to be fully informed of the relative risks and benefits of a procedure, and their consent to the procedure. The same rule applies to experimentation and research involving human subjects.

This informed consent requirement is a significant part of the regulations of the Department of Health and Human Services that you sent me. The identical regulations are also published elsewhere in the Code of Federal Regulations in the section concerning the Department of Defense.

First, I believe that these regulations apply to any governmental agency and to any private organization conducting research involving human subjects. Sec. 46.l0l(a)(l) and (2). Even research that is not "conducted or supported by a Federal Department or Agency" would be "subject to regulation". Sec. 46.l0l(b) lists research activities that are exempt from the regulations. None of these exceptions would appear to apply to the kind of radiation experiments with which you are concerned.

You asked specifically about the waiver provisions of Sec. 46.101(i). This would appear at first glance to give an agency such as the Department of Defense an ability to ignore some or all of the restrictions these regulations impose, including the informed consent requirements. However, I believe the "unless otherwise required by law" language prevents this from happening legally. USC 10 Sec. 980 (copy enclosed) mandates informed consent of research subjects.

The waiver provision of Sec. 46.1 16(d)(l)-(4) is perhaps more troublesome. This would appear to allow waiver of informed consent where "research involves no more than minimal risk to the subjects". "Minimal risk" is defined in Sec.46.102(i) as where "the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests". An agency conducting radiation experimentation might be able to assert that their experiments involve nothing more dangerous than the typical X-Ray used for medical diagnosis.

The "expedited review procedures" referred to in Sec. 46.110 could be a vehicle for the approval of certain research activities with less careful oversight. The list of categories of research referred to in Sec. 46.110(a) appears on page 17 of the OPRR document. However, electromagnetic radiation appears to be excluded from this list in the last sentence of (3). Executive Order NO.12975, and more particularly, the Memoranda of President dated March 27, 1997 (copy enclosed), addresses some of the concerns I have just expressed. An Executive Order does have the force of law, and can only be overridden by a statute or constitutional provision. The memoranda prohibits waiver of informed consent for classified research, and prohibits the use of expedited review procedures for classified research.

In summary, it appears that the federal government recognizes that unethical human radiation experiments quite possible have taken place, and may continue to take place. Congressional hearings were held, and measures have been, or are being implemented to stop such practices. There may have been some loopholes that allowed experimentation to take place without the knowledge and consent of human subjects. It appears these legal loopholes to informed consent are being closed, or at least severely narrowed recently. Hopefully, this will eliminate the quasi-legal nature of any unethical research activities and expose them to the light of day. Blatantly illegal research activities may continue to take place for some time, but we can only hope our government at least will be less inclined to engage in such practices in the future.

 -- End of Letter --

Webmaster's note:  The website and e-mail address below were not active at the time that I tested the links.  I have left them in tact, in case the server was temporarily down at the time that I checked.  

For further information please contact Thomas Clark at my email: Conextom@aol.com or visit my web site at http://hometown.aol.com/conextom, which has web pages dedicated to international and national legal activism for counter surveillance, mind control and EMF radiation protection issues.

Respectfully yours,

Thomas Clark
Email: Conextom@aol.com
Web: http://hometown.aol.com/conextom

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