ACLU Had Been Concerned Pandemic Plans ‘Resorted To Punitive, Police-State Tactics’

The American Civil Liberties Union issued a report in 2008 that declared, “A law enforcement approach is just the wrong tool for the job when it comes to fighting disease.”

The organization published the report after President George W. Bush adopted policies to deal with pandemics in the wake of 9/11.

“Coercive measures should be imposed only when there is a sound scientific and constitutional basis for so doing and only when they are the least restrictive alternative and are imposed in the least restrictive manner,” the report stated.

The ACLU said the government’s 2008 pandemic plans were “poorly coordinated and dangerously counterproductive.”

Its report stated: “For example, the U.S. Department of Health and Human Service’s Pandemic Influenza Plan posits a ‘containment strategy’ that calls for massive uses of government force, for example to ban public gatherings, isolate symptomatic individuals, restrict the movement of individuals, or compel vaccination or treatment.”

In 2020, many states have adopted policies that were criticized 12 years ago by the ACLU report. Arkansas, Iowa, Nebraska, North Dakota, South Dakota and Wyoming are the only states to have not ordered "stay-at-home" lockdowns as part of the COVID-19 strategy, according to the National Academy for State Health Policy.

The ACLU's 2008 report undermines the policies Michigan has implemented under a state of emergency. For example, the ACLU's report was critical of policies that have "criminal sanctions for those individuals who did not follow the rules." Police departments in Michigan have written thousands of tickets for violations of Gov. Gretchen Whitmer's executive orders. And the Michigan Department of Health & Human Services has encouraged Michigan residents to report businesses violating its pandemic directives so that the state can investigate and levy fines.

The 2008 report stated, "On the other hand, effective, preventive strategies that rely on voluntary participation do work. Simply put, people do not want to contract smallpox, influenza or other dangerous diseases. They want positive government help in avoiding and treating disease. As long as public officials are working to help people rather than to punish them, people are likely to engage willingly in any and all efforts to keep their families and communities healthy. ... Relying wherever possible on voluntary social distancing measures rather than mandatory quarantines."

The ACLU national office did not respond to an email seeking comment. Its 2008 report was a response to efforts by the administration of Republican President George W. Bush to expand and strengthen the federal government’s public health powers. This was part of its broader response to potential vulnerabilities revealed by the Sept. 11, 2001, terrorist attack that brought down the World Trade Center in New York.

The ACLU was concerned that pandemic response strategies associated with that effort “resorted to punitive, police-state tactics, such as forced examinations, vaccination and treatment, and criminal sanctions for those individuals who did not follow the rules.”

Its report from the time argues for “voluntary social distancing measures rather than mandatory quarantines” and “emphasizing community engagement rather than individual responsibility.”

Other excerpts from the report include:

• “If we allow the fear associated with a potential outbreak to justify the suspension of liberties in the name of public health, we risk not only undermining our fundamental rights, but alienating the very communities and individuals that are in need of help and thereby fomenting the spread of disease. Maintaining fundamental freedoms is essential for encouraging public trust and cooperation. If our public agencies work hand in hand with communities to provide them with a healthy environment, access to care, and a means for protecting their families, rather than treating them as the enemy, we will be far better prepared for a potential outbreak.”
• “The notion that we must ‘trade liberty for security’ is both false and dangerous. It is false because coercive actions are seldom conducive to public health protection. It is dangerous because it provides a ever-ending justification for the suppression of civil liberties while failing to safeguard public health.”
• “Americans generally do not want to spread disease to others and are generally capable of controlling their behavior to avoid infecting others. However, the law enforcement/national security approach converts the exception into the rule by treating everyone in the general population as a potential threat who warrants coercive treatment.”
• “The law enforcement approach to public health offers a rationale for the endless suspension of civil liberties. The ‘Global War on Terror’ may go on for a generation, but the war on disease will continue until the end of the human race. There will always be a new disease, always the threat of a new pandemic. If that fear justifies the suspension of liberties and the institution of an emergency state, then freedom and the rule of law will be permanently suspended.”
• “A major reason why most current plans (which continue to evolve) are useless is that they assume the worst case scenario. Worst case scenario planning encourages counterproductive overreactions in which law-enforcement techniques and drastic anti-civil liberties measures are used as the first resort, rather than the last resort.”
• “A lack of specifics. Because these plans do not give those in charge any specific, useful tasks to perform (beyond distributing stockpiled drugs and vaccines, if and when they are developed and produced), public authorities are apt to take useless and counterproductive anti-civil liberties actions to demonstrate that they are ‘doing something’ to respond to the crisis.”
• “The more latitude government officials are granted during emergencies, the more important it is to hold them accountable for significant errors, arbitrary actions and abuses of power.”
• “Coercive measures should be imposed only when there is a sound scientific and constitutional basis for so doing and only when they are the least restrictive alternative and are imposed in the least restrictive manner.”